UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
|
SCHEDULE
13D
Under the Securities Exchange Act of 1934
(Amendment No. 16)*
Empire
Resorts, Inc.
(Name of Issuer)
Common
Stock, $.01 Par Value Per Share
(Title of Class of Securities)
292052206
(CUSIP Number)
Steven L. Wilner, Esq.
Cleary Gottlieb Steen & Hamilton LLP
One Liberty Plaza
New York, NY 10006
212-225-2000 |
(Name, Address and Telephone Number of
Person Authorized to Receive Notices and Communications)
January
14, 2016
(Date of Event which Requires Filing
of this Statement)
If
the filing
person
has
previously
filed
a statement
on Schedule
13G
to report
the acquisition
that
is the
subject
of this
Schedule
13D,
and
is filing
this schedule
because
of §§
240.13d-1(e),
240.13d-1(f)
or 140.13d-1(g),
check
the following
box.
[ ]
Note:
Schedules
filed
in paper
format
shall
include
a signed
original
and
five
copies
of the
schedule,
including
all exhibits.
See
§
240.13d-7
for
other
parties to
whom
copies
are to be
sent.
*
The
remainder
of this
cover
page
shall
be filled
out for
a reporting
person’s
initial
filing
on this
form
with respect
to the
subject
class
of securities,
and
for
any subsequent
amendment
containing
information
which
would
alter
the disclosures
provided
in a prior
cover
page.
The
information
required
in the
remainder
of this
cover
page
shall
not be
deemed
to be
“filed”
for
the purpose
of Section
18 of
the Securities
Exchange
Act of
1934 (“Act”)
or otherwise
subject
to the
liabilities
of that
section
of the
Act but
shall
be subject
to all other
provisions
of the
Act
(however,
see the Notes).
CUSIP No. 292052206
|
1.
|
Names of Reporting Persons.
|
|
I.R.S. Identification Nos. of above persons (entities only).
Kien Huat Realty III Limited
|
|
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
|
|
|
4.
|
Source of Funds (See Instructions)
|
AF
|
|
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ____
|
|
6.
|
Citizenship or Place of Organization
|
Isle of Man
|
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
|
7. |
Sole Voting Power |
0
|
8. |
Shared Voting Power |
8,321,540
|
9. |
Sole Dispositive Power |
0
|
10. |
Shared Dispositive Power |
8,321,540
|
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
|
8,321,540 |
|
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
|
X
|
|
13.
|
Percent of Class Represented by Amount in Row (11)
|
71.5%
|
|
14.
|
Type of Reporting Person (See Instructions)
|
CO
|
CUSIP No. 292052107
|
1.
|
Names of Reporting Persons.
|
|
I.R.S. Identification Nos. of above persons (entities only).
|
|
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
|
|
|
4.
|
Source of Funds (See Instructions)
|
AF
|
|
5.
|
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) ____
|
|
6.
|
Citizenship or Place of Organization
|
|
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
|
7. |
Sole Voting Power |
0
|
8. |
Shared Voting Power |
8,321,540
|
9. |
Sole Dispositive Power |
0
|
10. |
Shared Dispositive Power |
8,321,540
|
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
|
8,321,540
|
|
12.
|
Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
|
X
|
|
13.
|
Percent of Class Represented by Amount in Row (11)
|
71.5%
|
|
14.
|
Type of Reporting Person (See Instructions)
|
IN
|
This Amendment No. 16 (this “Amendment No.
16”) amends and supplements the Schedule 13D filed by Kien Huat Realty III Limited (“Kien Huat”)
and Lim Kok Thay (“Mr. Lim” and, together with Kien Huat, the “Reporting Persons”) with
the Securities and Exchange Commission on August 27, 2009, as previously amended (the “Schedule 13D”), relating
to the common stock, par value $.01 per share (the “Common Stock”) of Empire Resorts, Inc. (the “Issuer”).
All capitalized terms used in this Amendment No. 16 and not otherwise defined herein have the meanings ascribed to such terms
in the Schedule 13D.
Items 3, 4, 5 and 6
are hereby amended and supplemented to add the following:
Item 3. Source and Amount of Funds
or Other Consideration
The disclosure set
forth under Item 4 of this Amendment No. 16 is incorporated herein by reference.
Item 4. Purpose of Transaction
In a press release
filed by the Issuer on Form 8-K on January 4, 2016, the Issuer announced the commencement of a rights offering (the “2016
Rights Offering”) of transferable subscription rights to holders of record of the Issuer’s Common Stock and Series
B Preferred Stock as of January 4, 2016 to purchase up to 20,138,888 shares of the Issuer’s Common Stock, granting each such
holder without charge one transferable subscription right for each 0.4748644 shares of Common Stock owned, or into which the Series
B Preferred Stock is convertible. Each subscription right entitles the holder to purchase one share of Common Stock at a subscription
price of $14.40 per share. The Issuer’s Form 8-K states that the gross proceeds of the 2016 Rights Offering are expected
to be used for the expenses relating to (i) development of the Montreign Resort Casino, to be located at the site of Adelaar (“Adelaar”),
a four-season destination resort planned for The Town of Thompson in Sullivan County, New York, (ii) redemption of outstanding
shares of Series E Preferred Stock of the Company pursuant to an existing settlement agreement and (iii) development of the golf
course and entertainment village that are part of the initial phase of Adelaar and for the Issuer’s working capital purposes.
In
connection with the
2016 Rights
Offering,
the Issuer
and Kien Huat
entered into
a Standby
Purchase
Agreement
(the “2016
Standby
Purchase
Agreement”)
whereby
Kien Huat
agreed
(i) to exercise its basic subscription rights to acquire approximately $30 million of the Issuer’s Common Stock within ten
days of the commencement of the 2016 Rights Offering with a closing proximate thereto and (ii) to exercise the remainder of its
basic subscription rights prior to the expiration date of the 2016 Rights Offering (currently scheduled for February 10, 2016,
unless earlier terminated or extended). In addition,
Kien Huat
also agreed
to exercise
all rights
not otherwise exercised
by the
other
holders in the 2016
Rights Offering
in an aggregate
amount not to exceed
$50,000,000 (the “2016
Standby
Offering”).
In consideration
for
Kien Huat’s
participation
in the 2016 Standby
Offering,
the Issuer
agreed
to pay Kien
Huat a fee
of $1,450,000 on the date
of the
2016 Standby
Offering
closing,
and to reimburse
Kien Huat
for up
to $50,000 of out-of-pocket
fees
and expenses
incurred in connection
with the transactions.
Pursuant
to the terms of the 2016 Standby Purchase Agreement,
Kien Huat agreed
that it and
its affiliates
would not acquire
shares of Common Stock
between the date of the 2016 Standby Purchase Agreement and
the closing date of the 2016 Standby
Offering
unless authorized
to do so by the Issuer.
The Issuer agreed,
subject to certain
limited exceptions,
to not issue any capital
stock or securities exchangeable for
capital stock of the Issuer
between
the date
of the 2016 Standby Purchase Agreement and
the earlier of the
closing date
of the 2016 Standby
Offering or
any termination
date of the 2016 Standby Purchase Agreement.
The obligations
of the Issuer and Kien
Huat to perform
their respective
obligations under
the 2016 Standby Purchase Agreement are subject
to the following: (i) no
judgment, injunction,
decree, regulatory
proceeding or other
legal restraint
shall prohibit, or have the effect
of rendering
unachievable,
the consummation of the 2016 Rights
Offering,
the 2016 Standby
Offering
or the material
transactions contemplated by the 2016 Standby Purchase Agreement; (ii) no
stop order suspending the effectiveness
of the Issuer’s registration
statement
on Form S-3 relating
to the 2016 Rights Offering (the
“2016 Registration Statement”)
or any
part thereof
shall have been
issued and no proceeding for that
purpose shall
have been
initiated or threatened by the Securities and
Exchange Commission (the
“Commission”), and any request
of the Commission for inclusion
of additional information
in the 2016 Registration Statement or otherwise
shall have been complied
with; and (iii)
the shares of Common Stock
issued in the 2016 Rights
Offering and
the 2016 Standby
Offering
shall have
been authorized for listing on
the Nasdaq
Global Market
prior to the
issuance of
such shares.
The obligation
of Kien Huat
to perform its obligations
under the 2016 Standby Purchase Agreement
is also subject to certain additional conditions,
including the accuracy of the Issuer’s representations and
warranties,
the absence
of a material adverse effect,
trading in
the Issuer’s common
stock not having been
suspended and receipt
of any required regulatory approvals. In addition,
the 2016 Standby Purchase Agreement
includes customary representations,
warranties and covenants by the Issuer and also
provides for
indemnification
of Kien Huat against certain
liabilities or
contribution to payments
Kien Huat may be
required to make because of
any of those liabilities.
The
2016 Standby
Purchase
Agreement
may be
terminated
by Kien
Huat at
any
time prior to the
closing date
of the 2016 Standby
Offering
by written
notice to the
Issuer
if (i)
any condition to the
obligations of
Kien Huat set
forth
in the preceding
paragraph
is not satisfied,
or because of
any refusal,
inability
or failure
of the Issuer
to perform
any
agreement
or comply
with any
provision contained
in the 2016 Standby
Purchase
Agreement
other than
by reason
of a default
by Kien
Huat; (ii)
the 2016 Rights
Offering
shall have
been cancelled,
terminated
or withdrawn on or prior
to either
the closing
date for
Kien Huat’s
basic
subscription exercise
pursuant to the
2016 Rights Offering
or the
closing date
of the 2016 Standby
Offering;
or (iii)
if the 2016 Rights
Offering
will not be consummated
on or before
February
22, 2016, unless such failure
shall be due
to a default
by Kien
Huat.
The 2016 Standby Purchase Agreement
may also
be terminated by either party if
(i) at any time prior to
the closing date for
Kien Huat’s
basic subscription exercise
pursuant to the 2016 Rights
Offering
or the
closing date
of the 2016 Standby
Offering,
if there
is a material
breach of the 2016 Standby Purchase Agreement by the other party
that is not cured
within fifteen (15) days after
the non-breaching
party has delivered written
notice to the breaching party
of such breach, except
that if such
breach
occurs on
or prior to the
closing date
for Kien
Huat’s
basic
subscription exercise
pursuant to the
2016 Rights Offering,
such closing
will not occur until such breach
has been
cured; or
(ii) consummation
of the 2016 Standby
Offering
is prohibited by
law, rule
or regulation.
In
addition, the 2016 Standby
Purchase
Agreement
may be
terminated
by the
Issuer
in the event that
the Issuer
determines
that it is not in the best
interests of the
Issuer
and its shareholders
to go forward
with the 2016 Rights
Offering.
References
to and
descriptions
of the 2016
Standby
Purchase
Agreement
set forth
above in this
Item
4 do not
purport
to be complete
and are
qualified
in their
entirety
by reference
to the full
text
of the 2016 Standby
Purchase
Agreement,
which has
been filed
as Exhibit
8 hereto
and is incorporated
herein by
this reference.
Kien
Huat received
13,136,817 subscription rights
pursuant
to the 2016 Rights
Offering.
On January 14, 2016, in accordance with the 2016 Standby Purchase Agreement, Kien Huat exercised
its subscription rights with respect to 2,083,333 shares of Common Stock, paying the Issuer a total purchase price of $29,999,995.20
in connection with such exercise.
Item 5. Interest in Securities of the
Issuer
The disclosure set
forth under Item 4 of this Amendment No. 16 is incorporated herein by reference.
(a-b) As of the
date hereof, including the 2,083,333 shares of Common Stock purchased as described above, the Reporting Persons may be deemed to
share beneficial ownership of 8,321,540 shares of Common Stock, representing approximately 71.5% of the outstanding Common Stock
(based on 9,560,851 shares of Common Stock reported to be outstanding as of January 4, 2106, by the Issuer in its prospectus supplement
in respect of the 2016 Rights Offering, plus such 2,083,333 newly issued shares
Item 6. Contracts, Arrangements, Understandings
or Relationships With Respect to Securities of the Issuer
The
disclosure set forth under Item 4 of this Amendment No. 16 is incorporated herein by reference.
SIGNATURES
After reasonable inquiry and to the
best of my knowledge, I certify that the information set forth in this statement is true, complete and correct.
Dated: January 20, 2016
Kien Huat Realty III Limited
By: /s/ Gerard Lim
Name: Gerard Lim
Title: Director
|
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/s/ Lim Kok Thay by Gerard Lim |
|
Lim Kok Thay |
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EXHIBIT
INDEX
Description
Exhibit
Index |
|
Description |
|
|
|
Exhibit 1 |
|
Joint Filing
Agreement,
dated as
of August
27, 2009, by
and between
Lim Kok Thay
and Kien Huat
Realty
III Limited. |
|
|
|
Exhibit 2 |
|
Investment Agreement, dated as of August 19, 2009, by and between Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K filed by the Issuer on August 19, 2009). |
|
|
|
Exhibit 3 |
|
Stockholder Voting Agreement, dated as of August 19, 2009, by and among Empire Resorts, Inc., Kien Huat Realty III Limited and the stockholders signatory thereto (incorporated by reference to Exhibit 10.3 to the Current Report on Form 8-K filed by the Issuer on August 19, 2009). |
|
|
|
Exhibit 4 |
|
Registration
Rights Agreement,
dated as
of August
19, 2009, by and
between
Empire Resorts,
Inc.
and Kien
Huat Realty
III Limited
(incorporated
by reference
to Exhibit
10.2 to the Current
Report
on Form 8-K
filed by
the Issuer
on August 19, 2009). |
|
|
|
Exhibit 5 |
|
Custody Agreement,
dated as
of August
19, 2009, by and
between
Kien Huat
Realty
III Limited
and JPMorgan
Chase
Bank, National
Association, as
Custodian (incorporated
by reference
to Exhibit 5 to Schedule
13D filed on August
27, 2009). |
|
|
|
Exhibit 6 |
|
Standby Purchase Agreement dated as of April 12, 2013, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 6 to Amendment No. 8 to Schedule 13D filed on April 15, 2013). |
|
|
|
Exhibit 7 |
|
Standby Purchase Agreement dated as of January 2, 2015, by and between Empire Resorts, Inc. and Kien Huat Realty III Ltd. (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K filed by the Issuer on January 5, 2015). |
|
|
|
Exhibit 8 |
|
Standby
Purchase
Agreement
dated as
of December 31, 2015, by
and between
Empire Resorts,
Inc.
and Kien
Huat Realty
III Ltd.
(incorporated
by reference
to Exhibit 99.1 to the
Current Report
on Form 8-K
filed by
the Issuer
on January
4, 2016). |
EXHIBIT 1
JOINT FILING AGREEMENT
The undersigned agree to file jointly with the Securities and Exchange Commission a statement on Schedule 13D (and any amendments or supplements thereto required under Section 13(d) of the Securities Exchange Act of 1934, as amended (the Exchange Act)), in connection with the holdings by the undersigned of the common stock of Empire Resorts, Inc., pursuant to and in accordance with the provisions of Rule 13d-1(k)(1) under the Exchange Act. The undersigned further agree that this joint filing agreement shall be included as an Exhibit to the Schedule 13D and each such amendment. This Joint Filing Agreement may be executed in two or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument.
Dated: August 27, 2009
Kien Huat Realty III Limited |
|
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By: /s/ Lim Kok Thay |
|
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Name: Lim Kok Thay
Title: Director |
|
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/s/ Lim Kok Thay |
|
Lim Kok Thay |
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