UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
|
SCHEDULE
13D
Under the Securities Exchange Act of 1934
(Amendment No. 17)*
Empire
Resorts, Inc.
(Name of Issuer)
Common
Stock, $.01 Par Value Per Share
(Title of Class of Securities)
292052107
(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)
February 17, 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. 292052107
|
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 |
27,533,067
|
9. |
Sole Dispositive Power |
0
|
10. |
Shared Dispositive Power |
27,533,067
|
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
|
27,533,067 |
|
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)
|
88.7%
|
|
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 |
27,533,067
|
9. |
Sole Dispositive Power |
0
|
10. |
Shared Dispositive Power |
27,533,067
|
|
11.
|
Aggregate Amount Beneficially Owned by Each Reporting Person
|
27,533,067
|
|
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)
|
88.7%
|
|
14.
|
Type of Reporting Person (See Instructions)
|
IN
|
This Amendment No. 17 (this “Amendment No. 17”) 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.
17 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. 17 is incorporated herein by reference.
Item 4. Purpose of Transaction
As previously reported,
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.
On February 9, 2016,
in accordance with its obligations under the 2016 Standby Purchase Agreement, Kien Huat exercised the remainder of its basic subscription
rights with respect to 11,053,484 shares of Common Stock, paying the Issuer a total purchase price of $159,170,169.60
in connection with such exercise.
On
February 17, 2016, in accordance with its obligations under the 2016 Standby Purchase Agreement, Kien Huat exercised all
rights
not otherwise exercised
by the
other
holders in the 2016
Rights Offering
with respect to 6,825,985 shares of Common Stock, paying the Issuer a total purchase price of $98,294,184.00
in connection with such exercise (the “Standby Purchase”). In accordance
with its obligations under the 2016 Standby Purchase Agreement, the Issuer paid
Kien Huat
a fee
of $1,450,000 in connection with such exercise,
and reimbursed
Kien Huat
for $50,000 of
out-of-pocket
fees
and expenses
incurred in connection
with the transaction.
Simultaneous with
the completion of the Standby Purchase, the $17.4 million convertible note held by Kien Huat evidencing the remaining amount due
from the Issuer under the Loan Agreement was converted into 1,332,058 shares of Common Stock (the “Note Conversion”)
which conversion, along with the payment by the Issuer in cash of interest due, satisfied the note in full.
Also on February
17, 2016, at the request of the Company, Kien Huat and the Company entered into a letter agreement (the “Letter Agreement”),
pursuant to which, during the period commencing on February 17, 2016 and ending on the earlier of (i) the three year anniversary
of the closing of the Rights Offering and (ii) the one year anniversary of the opening of the Casino Project, Kien Huat has agreed
not to take certain actions with respect to the Company. In particular, during such time period, Kien Huat has agreed not to,
and to cause its affiliates other than the Company or its subsidiaries (collectively with Kien Huat, the “Kien Huat Parties”)
not to, take certain actions in furtherance of a “going-private” transaction (as such term is defined in the Letter
Agreement) involving the Company unless such transaction is subject to the approval of (x) holders of a majority of the votes
represented by the common stock, Series B preferred stock and any other capital stock of the Company entitled to vote together
with the common stock in the election of the board of directors (the “Board”) of the Company (other than any
such capital stock owned by any Kien Huat Parties) and (y) either (A) a majority of disinterested members of the Board or (B)
a committee of the Board composed of disinterested members of the Board. In addition, during such period, the Company and Kien
Huat have agreed to cooperate to ensure that, to the greatest extent possible, the Board includes no fewer than three (3) independent
directors (the definition of independence as determined under the standards of The Nasdaq Stock Market or any other securities
exchange on which the common stock of the Company is then listed).
References
to and
descriptions
of the Letter 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 Letter Agreement,
which has
been incorporated
by reference as
Exhibit 9
hereto and
is incorporated
herein by
this reference.
Item 5. Interest in Securities of the
Issuer
The disclosure set
forth under Item 4 of this Amendment No. 17 is incorporated herein by reference.
(a-b) As of the
date hereof, including the 21,294,860 shares of Common Stock acquired in accordance with Kien Huat’s obligations under the
2016 Standby Purchase Agreement and received pursuant to the Note Conversion, each as described above, the Reporting Persons may
be deemed to share beneficial ownership of 27,533,067 shares of Common Stock, representing approximately 88.7% of the outstanding
Common Stock (calculated on a the basis of a total of 31,031,797 shares of Common Stock believed to be outstanding (based on the
9,560,851 shares of Common Stock reported to be outstanding as of January 4, 2016, by the Issuer in its prospectus supplement in
respect of the 2016 Rights Offering, plus the 20,138,888 shares newly issued in such Rights Offering and the 1,332,058 shares newly
issued in the Note Conversion)).
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. 17 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: February 18, 2016
Kien Huat Realty III Limited
By: /s/ Gerard Lim
Name: Gerard Lim
Title: Director
|
|
|
|
/s/ Lim Kok Thay by Gerard Lim |
|
Lim Kok Thay |
|
EXHIBIT
INDEX
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
9 |
|
Letter Agreement
dated February
17, 2016, by and
between
Empire Resorts,
Inc.
and Kien
Huat Realty
III Ltd.
(incorporated
by reference
to Exhibit 4.1 to the
Current Report
on Form 8-K
filed by
the Issuer
on February 18, 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 |
|
|
|
By: /s/ Lim Kok Thay |
|
|
Name: Lim Kok Thay
Title: Director |
|
|
|
|
|
|
|
|
|
|
/s/ Lim Kok Thay |
|
Lim Kok Thay |
|
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Jul 2024 to Aug 2024
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Aug 2023 to Aug 2024