UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
DIVISION OF
CORPORATION FINANCE
October 7, 2019
Ryan Eller
Empire Resorts, Inc.
c/o Monticello Casino and Raceway
204 State Route 17B
Monticello, New York 12701
Re: Empire Resorts, Inc.
PREM14A preliminary merger proxy statement on Schedule 14A
File No. 001-12522
Filed on September 24, 2019 by Empire Resorts, Inc.
Schedule 13E-3
Filed on September 24, 2019 by Empire Resorts, Inc. et al.
File No. 005-52151
Dear Mr. Eller,
We have reviewed the above-captioned filings, and have the following
comments. Some
comments may ask for additional information so that we may better understand
the disclosure.
Please respond to this letter by amending the filings and/or by
providing the requested
information. After reviewing any amendment to the filings and any information
provided in
response to these comments, we may have additional comments.
If you do not believe our comments apply to your facts and
circumstances, and/or do not
believe an amendment is appropriate, please tell us why in a written response.
Schedule 13E-3
Cover Page
1. Please refer to the following statement: "No Filing Person, including the
Company, is
responsible for the accuracy of any information supplied by any other Filing
Person." This
assertion is inconsistent with the required attestation appearing at the
outset of the signature
pages, and otherwise operates as an implied disclaimer for the entire filing
except for the
discrete portion of the disclosure specifically provided by each filing
person. Please revise.
Item 2(b)
2. The information disclosed in response to this line item has not been
incorporated by
reference. To the extent the disclosure has been limited to the Schedule
13E-3, please be
advised that an obligation exists to disseminate such disclosure under Rule
13e-3(f)(1)(i).
Ryan Eller
Empire Resorts, Inc.
October 7, 2019
Page 2
Please confirm that such information will be disseminated together with the
proxy statement,
or, alternatively, please direct us to the page in the proxy statement where
such disclosure
which is required by Rule 13e-3(e)(1)(v) has already been made but
ostensibly not
incorporated by reference into the Schedule 13E-3.
Item 13
3. Financial information has been incorporated by reference into Item 13 of
Schedule 13E-3
from the issuer's periodic reports. Under General Instruction F of Schedule
13E-3, an
express reference must be made to a document that contains the required
information. Under
Item 16(a)(5) of Schedule 13E-3, the document from which the information has
been so
incorporated also must be filed as an exhibit. The reference to "a copy" in
General
Instruction F is only intended to mean the substantive content of
information so incorporated
as distinguished from the controlling requirement to identify the
information so incorporated
as an entry on the exhibit list. Accordingly, please revise the exhibit
list, or advise.
Exhibit (a)(1) | Proxy Statement
4. The first page of the proxy statement, as defined in Rule 14a-1(g) and
distinguished from
the Notice or any letter to shareholders must be marked as preliminary.
Given that a
preliminary proxy statement may be lawfully disseminated under Rule
14a-3(a), please
revise. Please also include the prophylactic statement regarding the fact
the form of proxy is
only a preliminary copy on the draft proxy card. See Rule 14a-6(e)(1) of
Regulation 14A.
5. Rule 14a-6(d) and Item 1(b) of Schedule 14A together require that the
approximate date upon
which the proxy statement will be mailed to shareholders be placed on the
first page of the
proxy statement as defined under Rule 14a-1(g). At present, an attempt to
include this date
has been made between the shareholder letter and Notice, both of which
documents are
outside the scope of the cited definition of proxy statement and otherwise
not identified
within Rule 14a-101. Please revise the proxy statement, as defined within
Rule 14a-1(g) of
Regulation 14A, to include this required information.
6. The legend required by Rule 13e-3(e)(1)(iii) is required to appear on the
outside front cover
page of the disclosure document that must be distributed to unaffiliated
security holders
under the federal securities laws. As neither the letter to shareholders nor
Notice are required
disclosures under the federal securities laws, please revise the submission
to ensure that the
legend appears on the outside front cover page of a federally-mandated
disclosure document.
Recommendation of the [ ] Board of Directors, page 36
7. Please revise to consistently state, if true, that the Board produced the
fairness determination
on behalf of Empire. Item 8 of Schedule 13E-3 and corresponding Item 1014(a)
of
Regulation M-A apply to the subject company of the proposed transaction as
distinguished
from the Board. The term "subject company" is defined in Item 1000(f) of
Regulation M-A.
Ryan Eller
Empire Resorts, Inc.
October 7, 2019
Page 3
8. Notwithstanding the fact the Board's fairness determination was directed at
Empire's
"stockholders", please revise to expressly state whether Empire reasonably
believes that the
proposed transaction is fair or unfair to unaffiliated security holders as
defined at Rule 13e-
3(a)(4) and as required by Item 8 of Schedule 13E-3 and Item 1014(a) of
Regulation M-A.
9. Please revise to indicate, if true, that a specific going concern value was
not calculated by the
Special Committee, and thus not considered by the Board, when making its
fairness
determination. Refer to Instruction 2(iv) of Item 1014 of Regulation M-A and
Questions and
Answers 20-21 in Exchange Act Release 17719 (April 13, 1981).
10. While the Special Committee considered historical and recent trading ranges
of Empire, its
consideration of these factors is not tantamount to Empire having
considered the same
factors. Unless Empire considered these factors independently from the
Special Committee,
please revise to have Empire expressly adopt the analyses of the Special
Committee that
considered these factors. Please also revise to indicate, if true, that
specific net book and
liquidation values were not calculated or considered by Empire when making
its fairness
determination. Refer to Instruction 2(iv) of Item 1014 of Regulation M-A
and Questions and
Answers 20-21 in Exchange Act Release 17719 (April 13, 1981). Refer to
General
Instruction E of Schedule 13E-3. Alternatively, please similarly direct us
to the disclosure
that indicates Empire adopted the analyses of another person with respect
to these factors.
11. Notwithstanding the existence of disclosure regarding the required vote
needed to approve
the proposed Rule 13e-3 transaction, as well as the two-tiered voting
structure described in
the letter to shareholders, please revise to specifically address whether
or not the transaction
has been structured so that approval of at least a majority of unaffiliated
security holders is
required. See Item 1014(c) of Regulation M-A and General Instruction E of
Schedule 13E-3
that requires negative responses to Item 8 of Schedule 13E-3 to be
expressly stated.
12. Notwithstanding the existence of the Special Committee, please disclose, if
true, that an
unaffiliated representative was not "retained" to act solely on behalf of
unaffiliated security
holders for purposes of negotiating the transaction, or advise. See Item
1014(d) of
Regulation M-A and General Instruction E of Schedule 13E-3 that requires
negative
responses to Item 8 of Schedule 13E-3 to be expressly stated.
Positions of the Parent Filing Group Persons Regarding the Fairness of the
Merger, page 54
13. Please revise the fairness determination to specifically address the
fairness of the proposed
Rule 13e-3 transaction to unaffiliated security holders. "Public
Stockholders," as defined in
the proxy statement, is not the equivalent of the term defined in Rule
13e-3(a)(4).
Certain Effects of the Merger, page 64
14. Given that Empire, as a privately-held entity, will be relieved of many of
the expenses,
burdens and constraints imposed on companies that are subject to the public
reporting
Ryan Eller
Empire Resorts, Inc.
October 7, 2019
Page 4
requirements under the federal securities laws of the United States,
including the Exchange
Act and Sarbanes-Oxley Act of 2002, please revise to quantify the annual
savings that are
expected to be received and identify the constituency that will become the
beneficiary of
such savings. See Item 1013(d) of Regulation M-A and corresponding
Instruction 2 thereto.
15. Empire suffered net operating losses in the fiscal years end ended December
31, 2017-2018.
Please specify the constituency expected to become the beneficiary of
Empire's and/or its
successor's future use of any net operating loss carryforwards, if any.
Please quantify that
benefit to the extent practicable. See Instruction 2 to Item 1013(d) of
Regulation M-A.
16. Please itemize the Parent Filing Group's direct and indirect interests in
Empire's net book
value and net earnings to disclose each individual affiliate's specific
interest before and after
the transaction, or advise. See Instruction 3 to Item 1013 of Regulation
M-A.
Selected Financial Information, page 142
17. Given that financial statements have been incorporated by reference in
order to fulfill
Empire's disclosure obligations partly due to the application of Item 13 of
Schedule 13E-3,
summarized financial information must be included pursuant to Instruction 1
thereto. This
summarized financial information should have been prepared in accordance
with Item
1010(c) of Regulation M-A. At present, however, it appears as though not
all of the
information required by Item 1010(c)(1) has been provided. Please revise or
advise.
Exhibit (c)(2)-(c)(3) | Moelis & Company
18. The introductory legend of both of the cited exhibits explains Moelis'
written consent is
needed as a prerequisite to the inclusion of its materials. Please include
disclosure in the
associated proxy statement and/or these exhibits to remove the implication
that security
holders are precluded from being eligible to rely upon these disclosures by
affirmatively
stating, if true, that Moelis consents to the inclusion of such materials
in these filings and
security holders may rely upon such information without limitation.
Alternatively, provide
the disclosures recommended by the Division of Corporation Finance
accessible via the
following link as being necessary to clarify security holders' right to
rely on such materials.
http://www.sec.gov/divisions/corpfin/guidance/ci111400ex_regm-a.htm
Ryan Eller
Empire Resorts, Inc.
October 7, 2019
Page 5
We remind you that the filing persons are responsible for the accuracy
and adequacy of
their disclosures, notwithstanding any review, comments, action or absence of
action by the staff.
You may contact me at (202) 551-3266 with any questions.
Sincerely,
/s/ Nicholas P.
Panos
Nicholas P. Panos
Senior Special
Counsel
Office of Mergers &
Acquisitions
cc: Douglas S. Ellenoff, Esq.
Tamar Donikyan, Esq.
Jeffrey D. Marell, Esq.
Steven Wilner, Esq.
Matthew P. Salerno, Esq.