Empire Resorts : SC 13E3

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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SCHEDULE 13E-3

RULE 13E-3 TRANSACTION STATEMENT UNDER SECTION 13(e) OF THE

SECURITIES EXCHANGE ACT OF 1934

EMPIRE RESORTS, INC.

(Name of the Issuer)

EMPIRE RESORTS, INC.

TAN SRI LIM KOK THAY

KIEN HUAT REALTY III LIMITED

GENTING BERHAD

GENTING MALAYSIA BERHAD

GENTING (USA) LIMITED

HERCULES TOPCO LLC

HERCULES MERGER SUBSIDIARY INC.

(Names of Persons Filing Statement)

Common Stock, $0.01 par value

Series B Preferred Stock, $0.01 par value

(Title of Class of Securities)

292052305 (Common Stock)

(CUSIP Number of Class of Securities)

		Dato' Sri Lee Choong Yan
Ryan Eller	Yap Chong Chew	Genting Malaysia Berhad
Empire Resorts, Inc.	Kien Huat Realty III Limited	24th Floor, Wisma Genting
c/o Monticello Casino and Raceway	First Names House	Jalan Sultan Ismail
204 State Route 17B	Victoria Road	Kuala Lumpur
Monticello, New York 12701	Douglas, Isle of Man IM2 4DF	Malaysia
[phone]	Telephone: [phone]	+ (60) 3 2178 2288

	With copies to:
Douglas S. Ellenoff	Jeffrey D. Marell	Steven Wilner
Tamar Donikyan	Paul, Weiss, Rifkind, Wharton & Garrison	Matthew P. Salerno
Ellenoff Grossman & Schole LLP	LLP	Cleary Gottlieb Steen & Hamilton LLP
1345 Avenue of the Americas	1285 Avenue of the Americas	One Liberty Plaza
New York, New York 10105	New York, New York 10019	New York, New York 10006
[phone]	[phone]	[phone]

(Name, Address and Telephone Numbers of Person Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement)

This statement is filed in connection with (check the appropriate box):

1. ☒ The filing of solicitation materials or an information statement subject to Regulation 14A (§§240.14a-1 through 240.14b-2), Regulation 14C ( §§240.14c-1 through 240.14c-101) or Rule 13e-3(c)((§§240.13e-3(c)) under the Securities Exchange Act of 1934 (the "Act").
2. ☐ The filing of a registration statement under the Securities Act of 1933.
3. ☐ A tender offer.
4. ☐ None of the above.

Check the following box if the soliciting materials or information statement referred to in check box (a) are preliminary copies: ☒

Check the following box if the filing is a filing amendment reporting the results of the transaction: ☐

	CALCULATION OF FILING FEE
Transaction Valuation*		Amount of Filing Fee**
$57,933,753.76		$7,021.57

• For purposes of calculating the filing fee only, the transaction value was determined based upon (i) (A) 5,945,634 shares of common stock, par value $0.01 per share, of Empire Resorts, Inc. ("Common Stock") (including 406,000 shares of Common Stock issuable pursuant to a corresponding number of restricted stock units and 18,750 shares of restricted Common Stock) issued and outstanding plus (B) 2,390 shares of Common Stock issuable upon conversion of 44,258 shares of Series B Preferred Stock, par value, $0.01 per share, of Empire Resorts, Inc. issued and outstanding, multiplied by (ii) $9.74. The filing fee equals the product of 0.0001212 multiplied by the maximum aggregate value of the transaction.

• The filing fee, calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, is calculated by multiplying the Transaction Valuation by 0.0001212.

• Check the box if any part of the fee is offset as provided by §240.0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number of the Form of Schedule and the date of its filing.

Amount Previously paid: $7,021.57

Form or Registration No.: Proxy Statement of Schedule 14A (File No. 001-12522)

Filing Party: Empire Resorts, Inc.

Date Filed: September 24, 2019

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INTRODUCTION

This Rule 13e-3 Transaction Statement on Schedule 13E-3, together with the exhibits hereto (this "Transaction Statement"), is being filed with the Securities and Exchange Commission (the "SEC") pursuant to Section 13(e) of the Securities Exchange Act of 1934, as amended (together with the rules and regulations promulgated thereunder, the "Exchange Act"), by: (i) Empire Resorts, Inc., a Delaware corporation and the issuer of the common stock, par value $0.01 per share (the "Common Stock") and Series B Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock"); (ii) Hercules Topco LLC ("Parent"), a Delaware limited liability company; (iii) Hercules Merger Subsidiary Inc. ("Merger Sub"), a Delaware corporation and a wholly owned subsidiary of Parent; (iv) Genting Berhad, a Malaysian public company limited by shares; (v) Genting Malaysia Berhad, a Malaysian public company limited by shares; (vi) Genting (USA) Limited, an Isle of Man limited company ("Gen USA"); (vii) Kien Huat Realty III Limited, an Isle of Man limited company ("Kien Huat") and (viii) Tan Sri Lim Kok Thay, a Malaysian citizen. Collectively, the persons filing this Transaction Statement are referred to as the "Filing Persons." Filing Persons (ii) through (viii) are collectively referred to herein as "Parent Filing Group Persons".

The Transaction Statement relates to the Agreement and Plan of Merger, dated August 18, 2019 (as it may be amended from time to time, the "Merger Agreement"), by and among Hercules Topco LLC, a Delaware limited liability company ("Parent"), Hercules Merger Subsidiary Inc., a Delaware corporation (Merger Sub") and Empire Resorts, Inc., a Delaware corporation (the "Company"). Parent and Merger Sub are affiliates of Kien Huat Realty III Limited ("Kien Huat") and Genting Malaysia Berhard ("GenM"). Kien Huat is currently the holder of approximately 86% of the voting power of the Company's outstanding capital stock. Concurrently with the filing of this Transaction Statement, the company is filing with the SEC a preliminary Proxy Statement (the "Proxy Statement") under Regulation 14A of the Exchange Act, relating to a special meeting of the stockholders of the Company (the "Special Meeting") at which the stockholders of the Company will hold (i) a vote on a proposal to adopt the Merger Agreement, pursuant to which Merger Sub will be merged with and into the Company (the "Merger"), with the Company surviving as a subsidiary of Parent (the "Merger Proposal"), (ii) an advisory (non-binding) vote to approve certain items of compensation that are based on or otherwise related to the Merger (as defined herein) that may become payable to the Company's named executive officers under existing agreements with the Company and (iii) vote on a proposal to adjourn the Special Meeting, if necessary or appropriate to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Merger Proposal. The Proxy Statement is incorporated by reference herein as Exhibit (a)(1). A copy of the Merger Agreement is annexed to the Proxy Statement as Appendix A and is incorporated herein by reference.

If the Merger is completed, each share of Common Stock owned immediately prior to the effective time of the Merger (the "Effective Time"), other than as provided below, will be converted into the right to receive $9.74 in cash (the "Common Stock Per Share Merger Consideration"), without interest and less applicable withholding taxes, and each share of the Series B Preferred Stock owned immediately prior to the Effective Time of the Merger, other than as provided below, will be converted into the right to receive an amount in cash equal to the product of the Common Stock Per Share Merger Consideration multiplied by the number of shares of Common Stock into which such share of Series B Preferred Stock is convertible (the "Series B Per Share Merger Consideration"), without interest and less applicable withholding taxes. In addition, in connection with completion of the Merger: (i) shares of Common Stock or Series F Convertible Preferred Stock, par value $0.01 per share ("Series F Preferred Stock" and, together with the Common Stock and Series B Preferred Stock, the "Voting Stock"), owned by Kien Huat, GenM or their respective affiliates will remain outstanding,

1. shares of Voting Stock owned by the Company or any of its wholly-owned subsidiaries will be canceled and (iii) shares of Voting Stock owned by any stockholder who properly exercises appraisal rights under Delaware law with respect to such shares will be canceled and entitle the holder thereof only to such appraisal rights, unless and until such holder fails to perfect, and therefore loses, such appraisal rights. Following the completion of the Merger, the Company will no longer have Common Stock listed on the NASDAQ Global Market and will no longer be required to file periodic and other reports with the SEC with respect to Common Stock.

The completion of the Merger requires the affirmative vote of holders of a majority of the voting power of outstanding shares of Voting Stock, entitled to vote thereon as of the record date for the Special Meeting, voting as a single class. In addition, the Merger Agreement makes it a condition to the parties' obligations to consummate the Merger that the holders of a majority of the voting power of the outstanding shares of Voting Stock not held by Kien Huat, GenM, and their respective affiliates, or any director or executive officer of the Company, entitled to vote

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thereon as of the record date for the Special Meeting, voting as a single class, vote in favor of the Merger Proposal. In connection with the execution of the Merger Agreement, Kien Huat entered into a voting agreement with the Company, pursuant to which Kien Huat has agreed to vote its shares of Voting Stock in favor of the Merger Proposal, subject to the limitations set forth in the voting agreement.

Pursuant to the binding term sheet by and between GenM, Kien Huat and Gen USA, dated as of August 5, 2019, subject to the satisfaction of certain conditions (including receipt of regulatory approvals), it is expected that prior to the completion of the Merger, Kien Huat will sell to Gen USA 13,200,000 shares of Common Stock at $9.74 per share, the same price as the Common Stock Per Share Merger Consideration. Following such purchase, Kien Huat and Gen USA will contribute their shares of Common Stock to Parent. As a result, Parent will own all of the Company's Common Stock and Kien Huat will own all of the Company's Series F Preferred Stock following the completion of the Merger, no other parties will own any capital stock of the Company, and neither Kien Huat, Gen USA, nor Parent will receive the Common Stock Per Share Merger Consideration or the Series B Per Share Merger Consideration.

Pursuant to General Instruction F to Schedule 13E-3, the information in the Proxy Statement, including all appendices thereto, is expressly incorporated by reference herein in its entirety, and responses to each item herein are qualified in their entirety by the information contained in the Proxy Statement. The cross-references below are being supplied pursuant to General Instruction G to Schedule 13E-3 and show the location in the Proxy Statement of the information required to be included in response to the items of Schedule 13E-3. As of the date hereof, the Proxy Statement is in preliminary form and is subject to completion and/or amendment. Capitalized terms used but not defined in this Schedule 13E-3 have the meanings given to them in the Proxy Statement.

All information concerning the Company contained in, or incorporated by reference into, this Transaction Statement and the Proxy Statement was supplied by the Company. Similarly, all information concerning each other Filing Person contained in, or incorporated by reference into, this Transaction Statement and the Proxy Statement was supplied by such Filing Person. No Filing Person, including the Company, is responsible for the accuracy of any information supplied by any other Filing Person.

While each of the Filing Persons acknowledge that the Merger is a "going private" transaction for purposes of Rule 13e-3 under the Exchange Act, the filing of this Transaction Statement shall not be construed as an admission by any Filing Person, or by any affiliate of a Filing Person, that the Company is "controlled" by any Filing Person or that any Filing Person is "controlled" by any other Filing Person.

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	TABLE OF CONTENTS
Item 1.	Summary Term Sheet	4
Item 2.	Subject Company Information	4
Item 3.	Identity and Background of Filing Persons	4
Item 4.	Terms of the Transaction	5
Item 5.	Past Contacts, Transactions, Negotiations and Agreements	7
Item 6.	Purposes of the Transaction and Plans or Proposals	8
Item 7.	Purposes, Alternatives, Reasons and Effects	9
Item 8.	Fairness of the Transaction	10
Item 9.	Reports, Opinions, Appraisals and Negotiations	11
Item 10.	Source and Amounts of Funds or Other Consideration	12
Item 11.	Interest in Securities of the Subject Company	12
Item 12.	The Solicitation or Recommendation	13
Item 13.	Financial Statements	14
Item 14.	Persons/Assets, Retained, Employed, Compensated or Used	14
Item 15.	Additional Information	15
Item 16.	Exhibits	15