SC 13D/A 1 kien-sc13da_103019.htm AMENDMENT TO FORM SC 13D
 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 30)*

 

Empire Resorts, Inc.

(Name of Issuer)

Common Stock, $.01 Par Value Per Share

(Title of Class of Securities)

292052305

(CUSIP Number)

 

Steven L. Wilner

Matthew P. Salerno

James E. Langston

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)

October 30, 2019

(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).

 

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CUSIP No.  292052305

 

  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)

(a)

(b)

 

         

   ☒   

 

       
       
  3. SEC Use Only  

 

       
       
  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 34,114,606 (1)
9. Sole Dispositive Power 0
10. Shared Dispositive Power 34,114,606 (1)

 

  11. Aggregate Amount Beneficially Owned by Each Reporting Person    34,114,606 (1)

 

       
       
  12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ☒  

 

       
       
  13. Percent of Class Represented by Amount in Row (11)  86.06% (2)

 

       
       
  14. Type of Reporting Person (See Instructions)  CO

 

 

 

1 This includes 28,914,606 shares of common stock, par value $.01 per share (the “Common Stock”), of Empire Resorts, Inc. (the “Issuer”) and 5,200,000 shares of Common Stock into which the Series F Preferred Stock (the “Preferred Stock”) beneficially owned by the reporting person can currently be converted.

 

2 Calculated on the basis of a total of 34,435,907 shares of Common Stock outstanding as of August 9, 2019, as reported by the Issuer in its Quarterly Report on Form 10-Q filed on August 9, 2019 (the “10-Q”), 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 5,200,000 shares of Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.

 

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CUSIP No.  292052305

 

  1. Names of Reporting Persons.

 

 

I.R.S. Identification Nos. of above persons (entities only).

 

Lim Kok Thay

 

       
       
  2.

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

(b)

 

           

    ☒    

 

       
       
  3. SEC Use Only  

 

       
       
  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  Malaysia

 

Number of

Shares

Beneficially

Owned by

Each Reporting

Person With

 7. Sole Voting Power 0
8. Shared Voting Power 34,114,606 (3)
9. Sole Dispositive Power 0
10. Shared Dispositive Power 34,114,606 (3)

 

  11. Aggregate Amount Beneficially Owned by Each Reporting Person  34,114,606 (3)

 

       
       
  12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions)    ☒  

 

       
       
  13. Percent of Class Represented by Amount in Row (11)  86.06% (4)

 

       
       
  14. Type of Reporting Person (See Instructions)  IN

 

 

 

3 This includes 28,914,606 shares of the Common Stock and 5,200,000 shares of Common Stock into which the Preferred Stock beneficially owned by the reporting person can currently be converted.

 

4 Calculated on the basis of a total of 34,435,907 shares of Common Stock outstanding as of August 9, 2019, as reported by the Issuer in the Form 10-Q, 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 5,200,000 shares of Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.

 

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This Amendment No. 30 (this “Amendment No. 30”) amends and supplements the Schedule 13D filed by Kien Huat Realty III Limited (“Kien Huat”) and Lim Kok Thay (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 of the Issuer. All capitalized terms used in this Amendment No. 30 and not otherwise defined herein have the meanings ascribed to such terms in the Schedule 13D.

Items 4, 5, 6 and 7 are hereby amended and supplemented to add the following:

Item 4. Purpose of Transaction.

On October 24, 2019, pursuant to the Existing Preferred Stock Commitment Letter and the Preferred Stock Commitment Letter Amendment, the Issuer requested that Kien Huat subscribe for 75 shares of the Preferred Stock for consideration of $100,000 per share, in the aggregate amount of $7,500,000 (the “Issuance”). On October 30, 2019, the Issuer and Kien Huat entered into a subscription agreement in connection with the Issuance.

Item 5. Interest in Securities of the Issuer

The disclosure set forth under Item 4 of this Amendment No. 30 is incorporated herein by reference.

(a-b) As of the date hereof, the Reporting Persons, as a result of the Issuance, may be deemed to share beneficial ownership of 34,114,606 shares of Common Stock, representing approximately 86.06% of the outstanding Common Stock (calculated on the basis of a total of 34,435,907 shares of Common Stock outstanding as of August 9, 2019, as reported by the Issuer in its Quarterly Report on Form 10-Q filed on August 9, 2019, 2,390 shares of Common Stock into which the Series B Preferred Stock can be converted, and 5,200,000 shares of Common Stock into which the Preferred Stock beneficially owned by the reporting persons can currently be converted.)

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. 30 is incorporated herein by reference.

Item 7. Material to be Filed as Exhibits

 Exhibit 31

  

Subscription Agreement, dated as of October 30, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on October 30, 2019)

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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: October 30, 2019

Kien Huat Realty III Limited  
     
By: /s/ Yap Chong Chew    
Name: Yap Chong Chew
Title: Authorized Signatory		    

Lim Kok Thay  
     
By: /s/ Yap Chong Chew    
Name: Lim Kok Thay
By: Yap Chong Chew		    

* The Letter of Authorization given by Kien Huat Realty III Limited is filed as Exhibit 21 hereto.
**The Letter of Authorization given by Lim Kok Thay is filed as Exhibit 22 hereto.

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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 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).
     
 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).
     
Exhibit 13   Commitment Agreement by and between Kien Huat Realty III Limited and Empire Resorts, Inc. as amended and restated by the Amended and Restated Commitment Agreement, dated as of November 9, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
     

Exhibit 14

  

Subscription Agreement, dated as of November 13, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
     

Exhibit 15

  

Amended and Restated Certificate of Designations for the Series F Convertible Preferred Stock, dated as of November 9, 2018,
     

Exhibit 16

  

 Subscription Agreement, dated as of February 20, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on February 20, 2019)
     
Exhibit 17   Amendment, dated May 7, 2019,  to the Commitment Agreement by and between Kien Huat Realty III Limited and Empire Resorts, Inc. as amended and restated by the Amended and Restated Commitment Agreement, dated as of November 9, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
     

Exhibit 18

  

Subscription Agreement, dated as of May 21, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. 
     

Exhibit 19

  

 Subscription Agreement, dated as of June 17, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.
     
Exhibit 20   Proposal, dated as of July 25, 2019, by Kien Huat Realty III Limited to the special committee of the board of directors of Empire Resorts, Inc.
     
Exhibit 21   Letter of Authorization, given by Kien Huat Realty III Limited
     
Exhibit 22

Letter of Authorization, given by Lim Kok Thay
     
Exhibit 23   Proposal Letter, dated as of August 5, 2019, by Kien Huat Realty III Limited and Genting Malaysia Berhad to the special committee of the board of directors of Empire Resorts, Inc.

 

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Exhibit 24   Term Sheet, dated as of August 5, 2019, by and between Kien Huat Realty III Limited and Genting Malaysia Berhad.
     
Exhibit 25   Agreement and Plan of Merger, dated as of August 18, 2019, by and among Hercules Topco LLC, Hercules Merger Subsidiary Inc. and Empire Resorts, Inc. (incorporated by reference to Exhibit 2.1 of the Current Report on Form 8-K filed by the Issuer on August 19, 2019)
     
Exhibit 26  

Voting Agreement, dated as of August 18, 2019, by and among Empire Resorts, Inc. and Kien Huat Realty III Limited (incorporated by reference to Exhibit 2.3 of the Current Report on Form 8-K filed by the Issuer on August 19, 2019)

     
Exhibit 27   Letter Agreement re: Equity Financing Commitment, dated as of August 18, 2019, by and among Hercules Topco LLC and Kien Huat Realty III Limited.
     
Exhibit 28  

Amendment, dated August 18, 2019, to Letter Agreement, as last amended on May 7, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 2.2 of the Current Report on Form 8-K filed by the Issuer on August 19, 2019)

     

 Exhibit 29

  

Subscription Agreement, dated as of August 26, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on August 26, 2019)

     

 Exhibit 30

  

 Subscription Agreement, dated as of September 23, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on September 23, 2019)

     
Exhibit 31   Subscription Agreement, dated as of October 30, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on October 30, 2019)

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