| FORM 4 | UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 STATEMENT OF CHANGES IN BENEFICIAL OWNERSHIP Filed pursuant to Section 16(a) of the Securities Exchange Act of 1934 or Section 30(h) of the Investment Company Act of 1940 |
| |||||||||||||||
| Check this box if no longer subject to Section 16. Form 4 or Form 5 obligations may continue. See Instruction 1(b). | |||||||||||||||||
1. Name and Address of Reporting Person*
(Street)
| 2. Issuer Name and Ticker or Trading Symbol EMPIRE RESORTS INC [ NYNY ] | 5. Relationship of Reporting Person(s) to Issuer (Check all applicable)
| ||||||||||||||||||||||||
| 3. Date of Earliest Transaction (Month/Day/Year) 11/15/2019 | ||||||||||||||||||||||||||
| 4. If Amendment, Date of Original Filed (Month/Day/Year) | 6. Individual or Joint/Group Filing (Check Applicable Line)
| |||||||||||||||||||||||||
| Table I - Non-Derivative Securities Acquired, Disposed of, or Beneficially Owned | ||||||||||
|---|---|---|---|---|---|---|---|---|---|---|
| 1. Title of Security (Instr. 3) | 2. Transaction Date (Month/Day/Year) | 2A. Deemed Execution Date, if any (Month/Day/Year) | 3. Transaction Code (Instr. 8) | 4. Securities Acquired (A) or Disposed Of (D) (Instr. 3, 4 and 5) | 5. Amount of Securities Beneficially Owned Following Reported Transaction(s) (Instr. 3 and 4) | 6. Ownership Form: Direct (D) or Indirect (I) (Instr. 4) | 7. Nature of Indirect Beneficial Ownership (Instr. 4) | |||
| Code | V | Amount | (A) or (D) | Price | ||||||
| Common Stock | 11/15/2019 | P | 5,523,691(1)(2)(3)(4) | A | $9.74 | 34,438,297(1)(2)(3)(4) | I | See Explanation of Responses(1)(2)(3)(4)(5)(6)(7)(8) | ||
| Table II - Derivative Securities Acquired, Disposed of, or Beneficially Owned (e.g., puts, calls, warrants, options, convertible securities) | |||||||||||||||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| 1. Title of Derivative Security (Instr. 3) | 2. Conversion or Exercise Price of Derivative Security | 3. Transaction Date (Month/Day/Year) | 3A. Deemed Execution Date, if any (Month/Day/Year) | 4. Transaction Code (Instr. 8) | 5. Number of Derivative Securities Acquired (A) or Disposed of (D) (Instr. 3, 4 and 5) | 6. Date Exercisable and Expiration Date (Month/Day/Year) | 7. Title and Amount of Securities Underlying Derivative Security (Instr. 3 and 4) | 8. Price of Derivative Security (Instr. 5) | 9. Number of derivative Securities Beneficially Owned Following Reported Transaction(s) (Instr. 4) | 10. Ownership Form: Direct (D) or Indirect (I) (Instr. 4) | 11. Nature of Indirect Beneficial Ownership (Instr. 4) | ||||
| Code | V | (A) | (D) | Date Exercisable | Expiration Date | Title | Amount or Number of Shares | ||||||||
1. Name and Address of Reporting Person*
(Street)
| ||||||||||||
1. Name and Address of Reporting Person*
(Street)
| ||||||||||||
1. Name and Address of Reporting Person*
(Street)
| ||||||||||||
1. Name and Address of Reporting Person*
(Street)
| ||||||||||||
1. Name and Address of Reporting Person*
(Street)
| ||||||||||||
1. Name and Address of Reporting Person*
(Street)
|
| Explanation of Responses: |
| 1. On November 15, 2019, pursuant to the Agreement and Plan of Merger ("Merger Agreement") by and among Hercules Topco LLC ("Parent"), Hercules Merger Subsidiary Inc., a wholly owned subsidiary of Parent ("Merger Sub"), and the Issuer, Merger Sub merged with and into the Issuer, with the Issuer continuing as the surviving entity after the merger ("Merger"). |
| 2. In connection with the Merger, each issued and outstanding share of the Issuer's Common Stock, par value $0.01 per share ("Common Stock") (other than any Rollover Shares, Canceled Shares or Dissenting Shares, as defined below) at the effective time of the Merger (the "Effective Time") were automatically converted into the right to receive $9.74 per share in cash (the "Common Merger Consideration") and each issued and outstanding share of the Issuer's Series B Preferred Stock, par value $0.01 per share ("Series B Preferred Stock") (other than Rollover Shares, Canceled Shares or Dissenting Shares) at the Effective Time were automatically converted into the right to receive an amount in cash equal to the product of the Common Merger Consideration multiplied by the number of shares of Common Stock into which such share of Series B Preferred Stock was convertible (the "Series B Merger Consideration"). |
| 3. In addition, as part of the Merger, (i) shares of the Issuer's capital stock owned by Kien Huat, GenM or their respective affiliates (the "Rollover Shares") remain outstanding, (ii) shares of capital stock owned by the Issuer or any of its wholly owned subsidiaries were canceled (the "Canceled Shares") and (iii) shares of capital stock owned by any stockholder who properly exercised appraisal rights under Delaware law (the "Dissenting Shares") now entitle the holder thereof only to such appraisal rights. |
| 4. As a result of the Merger, each share of the Common Stock and Series B Preferred Stock issued and outstanding immediately prior to the Effective Time (other than Rollover Shares) was automatically converted into the right to receive the Common Merger Consideration or Series B Merger Consideration, as applicable, and ceased to exist or be outstanding. In addition, as a result of the Merger, all shares of common stock of Merger Sub issued and outstanding immediately before the Effective Time were converted into 5,523,691 shares of Common Stock, representing the number of shares of Common Stock issued and outstanding immediately prior to the Effective Time (other than Rollover Shares and Canceled Shares), assuming conversion of all Series B Preferred Stock into Common Stock. Following the consummation of the Merger, Parent holds 34,438,297 shares of Common Stock, representing 100% of the outstanding Common Stock. |
| 5. Kien Huat holds a 51% membership interest in Parent and Gen USA holds a 49% membership interest in Parent. |
| 6. Kien Huat is indirectly controlled by Lim Kok Thay through two irrevocable private trusts: Golden Hope Unit Trust, a private unit trust held directly and indirectly by a discretionary trust established solely for the benefit of Lim Kok Thay and certain other members of his family (the "KH Discretionary Trust"). Lim Kok Thay may cause the removal of the trustee of each trust at any time in his sole discretion. |
| 7. Lim Kok Thay may be deemed to indirectly control Genting Berhad, which may be deemed to control GenM, which controls its indirect, wholly owned subsidiary Gen USA. Genting Berhad may be deemed to be indirectly controlled by Lim Kok Thay through a discretionary trust of which Parkview Management Sdn Bhd is the trustee, which owns 100% of voting shares of Kien Huat International Limited, which, in turn, owns 100% of the voting shares in Kien Huat Realty Sdn Berhad ("KHR"), which, in turn, owns 100% of the voting shares of Inverway Sdn Bhd ("Inverway"). KHR and Inverway own ordinary shares in Genting Berhad. |
| 8. Because of the relationship between Lim Kok Thay, Kien Huat, Genting Berhad, GenM, Gen USA (together, the "KH and Genting Reporting Persons") and Parent, the KH and Genting Reporting Persons may be deemed to beneficially own the securities herein to the extent of their respective direct or indirect pecuniary interest in Parent. Each of the KH and Genting Reporting Persons disclaim beneficial ownership of the securities reported herein, except to the extent of their pecuniary interest therein, if any. |
| Remarks: |
| 9. Yap Chong Chew is signing on behalf of Kien Huat Realty III Limited and Lim Kok Thay pursuant to the letters of authorization dated July 25, 2019, which were previously filed with the Securities and Exchange Commission. 10. The Reporting Persons are jointly filing this Form 4 pursuant to Rule 16a-3(j) under the Exchange Act. |
| /s/ Yap Chong Chew for Kien Huat Realty III Limited (9)(10) | 11/15/2019 | |
| /s/ Yap Chong Chew for Lim Kok Thay (9)(10) | 11/15/2019 | |
| /s/ Loh Bee Hong, Secretary, Genting Berhad (10) | 11/15/2019 | |
| /s/ Ms. Koh Poy Yong, Chief Financial Officer, Genting Malaysia Berhad (10) | 11/15/2019 | |
| /s/ Ms. Koh Poy Yong, Chief Financial Officer, Genting (USA) Limited (10) | 11/15/2019 | |
| /S/ Gerard Lim, Vice-President and Secretary, Hercules Topco LLC (10) | 11/15/2019 | |
| ** Signature of Reporting Person | Date | |
| Reminder: Report on a separate line for each class of securities beneficially owned directly or indirectly. | ||
| * If the form is filed by more than one reporting person, see Instruction 4 (b)(v). | ||
| ** Intentional misstatements or omissions of facts constitute Federal Criminal Violations See 18 U.S.C. 1001 and 15 U.S.C. 78ff(a). | ||
| Note: File three copies of this Form, one of which must be manually signed. If space is insufficient, see Instruction 6 for procedure. | ||
| Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB Number. | ||
