EMPIRE RESORTS, INC. (NASDAQ:NYNY) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01. Entry into a Material Definitive Agreement.
On August 18, 2019, Empire Resorts, Inc., a Delaware corporation (the Company), entered into an Agreement and Plan of Merger (the Merger Agreement), by and among Hercules Topco LLC, a Delaware limited liability company (Parent), Hercules Merger Subsidiary, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (Merger Sub), and 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 Companys outstanding capital stock.
The Merger Agreement provides for, upon the terms and subject to the conditions set forth in the Merger Agreement, the merger of Merger Sub with and into the Company, with the Company surviving as a subsidiary of Parent (the Merger).
to the Merger Agreement, at the effective time of the Merger (the Effective Time), each issued and outstanding share of the Companys Common Stock, par value $0.01 per share (other than any Rollover Shares, Canceled Shares or Dissenting Shares, as defined below), will be converted into the right to receive $9.74 in cash, without interest (the Common Merger Consideration), and each issued and outstanding share of the Companys Series B Preferred Stock, par value $0.01 per share (other than Rollover Shares, Canceled Shares or Dissenting Shares), will be 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 is convertible. In addition, to the Merger Agreement, at the Effective Time, (i) shares of the Companys Common Stock or Series F Convertible Preferred Stock, par value $0.01 per share, owned by Kien Huat, GenM or their respective affiliates (the Rollover Shares) will remain outstanding, (ii) shares of Common Stock or any series of the Companys Preferred Stock owned by the Company or any of its wholly-owned subsidiaries will be canceled (the Canceled Shares) and (iii) shares owned by any stockholder who properly exercises appraisal rights under Delaware law (the Dissenting Shares) will entitle the holder thereof only to such appraisal rights.
Stockholders of the Company will be asked to vote on the adoption of the Merger Agreement at a special meeting that will be held on a date to be announced (the Special Meeting). A condition to the consummation of the Merger is the adoption of the Merger Agreement by (A) holders of a majority of the voting power of the outstanding shares of the Companys Common Stock, Series B Preferred Stock and Series F Convertible Preferred Stock, voting as a single class, entitled to vote thereon as of the record date for the Special Meeting; and (B) holders of a majority of the voting power of the outstanding shares of the Companys Common Stock and Series B Preferred Stock, voting as a single class, that are not owned by Kien Huat, GenM, their respective affiliates or any officer or director of the Company (the Requisite Company Vote). Consummation of the Merger is also subject to a number of other customary conditions, including without limitation that certain requisite gaming authority approvals have been obtained and remain in full force and effect, the absence of any law or order enjoining or prohibiting the Merger, and that at least twenty-one calendar days shall have elapsed since an information statement relating to an amendment to the terms of the Series F Convertible Preferred Stock (discussed further below) was cleared by the staff of the SEC and mailed to the Companys stockholders. Moreover, each partys obligation to consummate the Merger is subject to certain other conditions, including without limitation: (a) the accuracy of the other partys representations and warranties contained in the Merger Agreement (subject to certain materiality qualifiers); and (b) the other partys compliance with its covenants and agreements contained in the Merger Agreement in all material respects. In addition, the obligation of Parent to consummate the Merger is subject to the non-occurrence of an event of default under certain of the Companys outstanding indebtedness, subject to certain exceptions, and the non-occurrence of a Company Material Adverse Effect (as defined in the Merger Agreement) from the date of the Merger Agreement to the Effective Time. Availability of financing for the Merger is not a condition to Parents obligations to consummate the Merger.