Amended Statement of Beneficial Ownership (sc 13d/a)
November 07 2018 - 5:04PM
Edgar (US Regulatory)
|
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
|
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 19)*
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)
November
6, 2018
(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. o
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
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1.
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Names of Reporting Persons.
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I.R.S. Identification Nos. of above persons (entities only).
Kien Huat Realty III Limited
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2.
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Check the Appropriate Box if a Member of a Group (See Instructions)
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4.
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Source of Funds (See Instructions)
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AF
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5.
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
____
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6.
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Citizenship or Place of Organization
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Isle of Man
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Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
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7.
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Sole Voting Power
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0
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8.
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Shared Voting Power
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28,914,606
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9.
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Sole Dispositive Power
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0
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10.
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Shared Dispositive Power
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11.
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Aggregate Amount Beneficially Owned by Each Reporting Person
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28,914,606
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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X
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13.
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Percent of Class Represented by Amount in Row (11)
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88.3%
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14.
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Type of Reporting Person (See Instructions)
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CO
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CUSIP No.
292052107
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1.
|
Names of Reporting Persons.
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|
|
I.R.S. Identification Nos. of above persons (entities only).
|
|
|
2.
|
Check the Appropriate Box if a Member of a Group (See Instructions)
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|
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4.
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Source of Funds (See Instructions)
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AF
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5.
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Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
____
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6.
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Citizenship or Place of Organization
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Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
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7.
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Sole Voting Power
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0
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8.
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Shared Voting Power
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28,914,606
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|
9.
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Sole Dispositive Power
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0
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10.
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Shared Dispositive Power
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28,914,606
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|
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11.
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Aggregate Amount Beneficially Owned by Each Reporting Person
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28,914,606
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12.
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Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)
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X
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13.
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Percent of Class Represented by Amount in Row (11)
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88.4%
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14.
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Type of Reporting Person (See Instructions)
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IN
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This Amendment No.
19 (this “Amendment No. 19”) 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. 19 and not otherwise defined herein have the meanings ascribed to such terms in the
Schedule 13D.
Items 4, 5 and 6 are hereby amended and
supplemented to add the following:
Item 4. Purpose of Transaction
On November 6, 2018, Kien
Huat and the Issuer entered into a commitment letter (the “Commitment Letter”) pursuant to which Kien Huat agreed to
subscribe for up to $126 million (the “Maximum Amount”) of shares of Series F Preferred Stock of the Issuer (the “Preferred
Stock”). The Maximum Amount will be reduced by the aggregate amount of additional financing (whether debt or equity) raised
by the Issuer from third parties (net of fees and transaction costs) after the date of the Commitment Letter (the “Third
Party Financing”). The Third Party Financing excludes $29 million of equity financing raised by the Issuer from any person
(or affiliate thereof) with which the Issuer enters into a commercial agreement relating to online gaming and sports betting at
Resorts World Catskills. The Issuer agreed in the Commitment Letter to use its reasonable efforts to secure Third Party Financing
in an amount at least equal to $126 million.
Pursuant to the Commitment
Letter, Kien Huat will subscribe for shares of Series F Preferred Stock on such dates and in such amounts mutually agreed upon
between Kien Huat and the Issuer, but no earlier than pursuant to the following installment schedule:
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Draw Date No Earlier Than
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Maximum Funding Amount
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11/9/2018
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$12 million
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2/15/2019
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$20 million
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5/15/2019
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$20 million
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8/15/2019
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$15 million
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11/15/2019
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$37 million
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3/15/2020
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$22 million
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The Issuer and Kien Huat
will enter into a separate subscription agreement for each subscription under the Commitment Letter. Kien Huat will be entitled
to a funding fee (the “Funding Fee”) in connection with each subscription in an amount of 1% of the amount so funded,
or such other amount as is mutually agreed upon by the Issuer and Kien Huat. Each Funding Fee payment shall be due and payable
simultaneously with the applicable funding by KHRL.
Unless earlier terminated
by mutual agreement by Kien Huat and the Issuer, the Commitment Letter will terminate (i) upon the Issuer’s receipt of funding
from Third Party Financing (as defined in the Term Sheet) in an amount no less than to $126 million and (ii) on April 15, 2020.
The Commitment Letter
provides that the price per share of Preferred Stock will be $100,000 (the “Stated Value”). The Preferred Stock will
be convertible to Common Stock of the Issuer as follows:
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·
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At any time prior to December 31, 2038 (the “Maturity Date”), the Preferred Stock
is convertible in whole or in part, at the option of the holder of the Preferred Stock, into shares (the “Conversion Shares”)
of Common Stock in such amount equal to the Stated Value divided by $20.00 (the “Conversion Price”) multiplied by the
number of shares of Preferred Stock being converted. The conversion price will be subject to certain customary adjustments, to
be agreed upon between the Issuer and Kien Huat.
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·
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If the holder of Preferred Stock has not given notice of conversion prior to the Maturity Date,
each share of Preferred Stock that is outstanding on the Maturity Date shall automatically be converted into that number of shares
of Common Stock determined by dividing the Stated Value by the 90-day volume-weighted average price for a share of Common Stock
for the period ending the day immediately prior to the Maturity Date.
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The Commitment Letter
provides that in the event of a change of control of the Issuer, holders of the Preferred Stock will participate on an as-converted
basis with the holders of all other equity of the Company at a conversion price equal to the purchase price of the Common Stock
in such change of control transaction.
Shares of Common Stock
issued upon conversion of the Preferred Stock will be subject to the registration rights under an agreement previously entered
into by the Issuer and Kien Huat..
The Commitment Letter
provides that holders of the Preferred Stock will be entitled to receive dividends and vote (as a single class with the Common
Stock) on an as-converted basis. Additionally, the Commitment Letter provides that the Preferred Stock will have a liquidation
preference equal to the Stated Value.
References
to and descriptions of the Commitment Letter do not purport to be complete and are qualified in their entirety by reference to
the actual document, which is filed as Exhibit 13 hereto, and is incorporated herein by reference.
Item 5. Interest
in Securities of the Issuer
The
disclosure set forth under Item 4 of this Amendment No. 19 is incorporated herein by reference.
(a-b)
As of the date hereof, the Reporting Persons may be deemed to share beneficial ownership of 28,914,606 shares of Common Stock,
representing approximately 88.3% of the outstanding Common Stock (calculated on a the basis of a total of 32,717,491 shares of
Common Stock outstanding, as reported by the Issuer in its Quarterly Report on Form 10-Q for the quarter ended June 30, 2018).
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. 19 is incorporated herein by reference.
Item 7. Contracts,
Arrangements, Understandings or Relationships With Respect to Securities of the Issuer
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Exhibit 13
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Commitment Letter, dated as of November 6, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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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:
November 7, 2018
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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
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Lim Kok Thay
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EX
H
I
B
IT
I
NDEX
Exhibit
Index
|
|
Description
|
|
|
|
|
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E
x
hib
i
t 1
|
|
J
oi
n
t
F
iling
A
g
r
e
e
m
e
nt, d
a
t
e
d
a
s of A
u
g
ust 27, 2
0
09,
b
y
a
nd
b
e
tw
e
e
n
L
im Kok Th
a
y
a
nd Ki
e
n Hu
a
t
Re
a
l
t
y
II
I
L
imit
e
d.
|
|
|
|
|
|
E
x
hib
i
t 2
|
|
I
n
v
e
stm
e
nt
A
g
r
e
e
m
e
nt,
d
a
t
e
d
a
s of A
u
g
ust 19, 20
0
9,
b
y
a
nd
b
e
tw
e
e
n Empi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
imit
e
d
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
e
fe
r
e
n
c
e
t
o E
x
hib
i
t 10.1 to the
C
u
rre
nt
R
e
p
o
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ssu
e
r on A
u
g
ust 19,
2
009
)
.
|
|
|
|
|
|
E
x
hib
i
t 3
|
|
S
to
c
khold
e
r Voting
A
g
r
e
e
m
e
nt, d
a
t
e
d
a
s
o
f A
u
g
u
s
t 19, 2009,
b
y
a
nd
a
mong Empi
r
e
R
e
so
r
ts,
I
n
c
., Ki
e
n H
u
a
t
R
ea
l
t
y
II
I
L
imit
e
d
a
nd t
h
e sto
c
khold
er
s s
i
g
n
a
to
r
y th
ere
to
(
in
c
o
r
po
ra
t
e
d
b
y
r
e
fe
r
e
n
c
e to E
x
hibit 10.3to the
C
u
rre
nt
R
e
po
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ss
u
e
r on A
u
g
ust19, 2009
)
.
|
|
|
|
|
|
E
x
hib
i
t 4
|
|
R
e
g
ist
ra
tion
R
i
g
hts
A
g
r
e
e
m
e
nt, d
a
t
e
d
a
s
o
f A
u
g
u
s
t 19, 2009,
b
y
a
nd
b
e
tw
e
e
n Empi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
imit
e
d
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
e
fe
r
e
n
c
e
t
o E
x
hib
i
t 10.2 to the
C
u
rre
nt
R
e
p
o
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ssu
e
r on A
u
g
ust 19,
2
009
)
.
|
|
|
|
|
|
E
x
hib
i
t 5
|
|
Custo
d
y
A
g
r
e
e
m
e
nt, d
a
t
e
d
a
s of A
u
g
ust 19, 2009,
b
y
a
nd
b
e
tw
e
e
n Ki
e
n H
u
a
t
R
ea
l
t
y
II
I
L
imit
e
d
a
nd
J
P
Mo
r
g
a
n
C
h
a
se
B
a
nk, N
a
tion
a
l Asso
c
i
a
tion,
a
s
C
ustodi
a
n
(
in
c
o
r
po
ra
t
e
d
b
y
r
e
fe
r
e
n
c
e to E
x
hibit 5to
S
c
h
e
dule 13D
f
il
e
d on A
u
g
ust 2
7
, 2009
)
.
|
|
|
|
|
|
E
x
hib
i
t 6
|
|
S
t
a
nd
b
y
P
u
rc
h
a
se
A
g
r
e
e
m
e
nt d
a
t
e
d
a
s of A
p
r
il 12, 2013,
b
y
a
nd
b
e
tw
e
e
n
E
mpi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
td.
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
ef
e
re
n
c
e to
Ex
hib
i
t 6 to Am
e
ndm
e
nt No. 8 to
S
c
h
e
dule 13D
f
il
e
d on A
p
r
il 15, 2013
)
.
|
|
|
|
|
|
E
x
hib
i
t 7
|
|
S
t
a
nd
b
y
P
u
rc
h
a
se
A
g
r
e
e
m
e
nt d
a
t
e
d
a
s of
J
a
nu
a
r
y 2, 2015,
b
y
a
nd
b
e
tw
e
e
n Empi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
td.
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
ef
e
re
n
c
e to
Ex
hib
i
t 99.1 to the
C
u
rre
nt
R
e
p
o
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ssu
e
r on
J
a
nu
a
r
y 5,
2
015
)
.
|
|
|
|
|
|
E
x
hib
i
t 8
|
|
St
a
nd
b
y
P
u
rc
h
a
se
A
g
r
e
e
m
e
nt d
a
t
e
d
a
s of
December 31,
2015,
b
y
a
nd
b
e
tw
e
e
n Empi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
td.
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
ef
e
re
n
c
e to
Ex
hib
i
t 99.1 to the
C
u
rre
nt
R
e
p
o
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ssu
e
r on
J
a
nu
a
r
y 4,
2
016
)
.
|
|
|
|
|
|
Exhibit 9
|
|
Letter
A
g
r
e
e
m
e
nt d
a
t
e
d
February 17, 2016
,
b
y
a
nd
b
e
tw
e
e
n Empi
r
e
R
e
so
r
ts,
I
n
c
.
a
nd K
i
e
n
H
u
a
t
R
ea
l
t
y
II
I
L
td.
(
i
n
c
o
r
po
ra
t
e
d
b
y
r
ef
e
re
n
c
e to
Ex
hib
i
t 4.1 to the
C
u
rre
nt
R
e
p
o
r
t on
F
o
r
m 8
-
K
f
il
e
d
b
y the
I
ssu
e
r on
February 18
,
2
016
)
.
|
|
|
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|
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Exhibit 10
|
|
Note Exchange Agreement, dated as of December 28, 2017, among Empire Resorts, Inc., Montreign Holding Company, LLC, and Kien Huat Realty III Limited (incorporated by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
|
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Exhibit 11
|
|
Amendment to Commitment Agreement, dated as of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 99.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
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Exhibit 12
|
|
Amendment to Letter Agreement, dated as of December 28, 2017, by and between Empire Resorts, Inc., and Kien Huat Realty III Limited (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K filed by the Issuer on January 3, 2018).
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Exhibit 13
|
|
Commitment Letter, dated as of November 6, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
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