Empire Resorts : PREM14A

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• Preliminary Proxy Statement

• Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
• Definitive Proxy Statement
• Definitive Additional Materials
• Soliciting Material Pursuant to § 240.14a-12

EMPIRE RESORTS, INC.

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

• No fee required.

• Fee computed on table below per Exchange Act Rules 14(a)-6(i)(1) and 0-11.
• 1. Title of each class of securities to which transaction applies:
     Common stock, par value $0.01 per share, of Empire Resorts, Inc. ("Common Stock")
     Series B Preferred Stock, par value, $0.01 per share, of Empire Resorts, Inc. ("Series B Preferred Stock")
  2. Aggregate number of securities to which transaction applies:
     5,945,634 shares of Common Stock (including 406,000 shares of Common Stock issuable pursuant to a corresponding number of restricted stock units and 18,750 shares of restricted Common Stock) and 2,390 shares of Common Stock underlying 44,258 shares of Series B Preferred Stock.
  3. Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
     The proposed maximum aggregate value of transaction for purposes of calculating the filing fee is $57,933,753.76. The maximum aggregate value of the transaction was calculated based upon (i) (A) 5,945,634 shares of Common Stock (including 406,000 shares of Common Stock issuable pursuant to a corresponding number of restricted stock units and 18,750 shares of restricted Common Stock) issued and outstanding plus (B) 2,390 shares of Common Stock issuable upon conversion of 44,258 shares of Series B Preferred Stock issued and outstanding, multiplied by (ii) $9.74. The filing fee equals the product of 0.0001212 multiplied by the maximum aggregate value of the transaction.
  4. Proposed maximum aggregate value of transaction: $57,933,753.76
  5. Total fee paid: $7,021.57

• Fee paid previously with preliminary materials.
• Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
• 1. Amount Previously Paid:
  2. Form, Schedule or Registration Statement No.:
  3. Filing Party:
  4. Date Filed:

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PRELIMINARY PROXY MATERIAL SUBJECT TO COMPLETION

EMPIRE RESORTS, INC.

c/o Monticello Casino and Raceway

204 State Route 17B

P.O. Box 5013

Monticello, New York 12701

, 2019

Dear Stockholder:

You are cordially invited to attend a special meeting of the stockholders (the "Special Meeting") of Empire Resorts, Inc. ("Empire" or the

"Company"), which will be held at , Eastern Time, on , 2019 at . The Special Meeting is being held for the following purposes, as more fully described in the accompanying Proxy Statement:

1. To hold a vote on a proposal to adopt the Agreement and Plan of Merger, dated as of August 18, 2019 (as it may be amended, the "Merger Agreement"), by and among the Company, Hercules Topco LLC, a Delaware limited liability company ("Parent"), and Hercules Merger Subsidiary Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged with and into the Company (the "Merger"), with the Company surviving as a subsidiary of Parent (the "Merger Proposal");
2. To hold an advisory (non-binding) vote to approve certain items of compensation that are based on or otherwise related to the Merger that may become payable to the Company's named executive officers under existing agreements with the Company (the "golden parachute compensation" and the proposal, the "Compensation Proposal"); and
3. To hold a vote on a proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Merger Proposal (the "Adjournment Proposal").

If the Merger is completed, each share of common stock, par value $0.01 per share, of the Company ("Common Stock") that you own immediately prior to the effective time of the Merger (the "Effective Time"), other than as provided below, will be converted into the right to receive $9.74 in cash (the "Common Stock Per Share Merger Consideration"), without interest and less applicable withholding taxes, and each share of the Company's Series B Preferred Stock, par value $0.01 per share ("Series B Preferred Stock"), that you own immediately prior to the Effective Time of the Merger, other than as provided below, will be converted into the right to receive an amount in cash equal to the product of the Common Stock Per Share Merger Consideration multiplied by the number of shares of Common Stock into which such share of Series B Preferred Stock is convertible, without interest and less applicable withholding taxes. In addition, in connection with completion of the Merger: (i) shares of Common Stock or Series F Convertible Preferred Stock, par value $0.01 per share ("Series F Preferred Stock" and, together with the Common Stock and Series B Preferred Stock, the "Voting Stock"), owned by Kien Huat, GenM or their respective affiliates will remain outstanding, (ii) shares of Voting Stock owned by the Company or any of its wholly-owned subsidiaries will be canceled and (iii) shares of Voting Stock owned by any stockholder who properly exercises appraisal rights under Delaware law with respect to such shares will be canceled and entitle the holder thereof only to such appraisal rights, unless and until such holder fails to perfect, and therefore loses, such appraisal rights. Following the completion of the Merger, the Company will no longer have Common Stock listed on the Nasdaq Global Market and will no longer be required to file periodic and other reports with the Securities and Exchange Commission with respect to Common Stock. After the Merger, you will no longer have an equity interest in the Company and will not participate in any potential future earnings of the Company.

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The completion of the Merger requires the affirmative vote of holders of a majority of the voting power of the outstanding shares of Common Stock, Series B Preferred Stock, and Series F Preferred Stock entitled to vote thereon as of the record date of the Special Meeting, voting as one class (the "General Stockholder Vote"). In addition, the Merger Agreement makes it a condition to the parties' obligations to consummate the Merger that the holders of a majority of the voting power of the outstanding shares of Voting Stock not held by Kien Huat Realty III Limited, an Isle of Man company limited by shares ("Kien Huat"), Genting Malaysia Berhad, a Malaysian public company limited by shares ("GenM"), their respective affiliates, or any director or executive officer of the Company (such holders, collectively, the "Public Stockholders"), entitled to vote thereon as of the record date of the Special Meeting, voting as one class, vote in favor of the Merger Proposal (the "Public Stockholder Vote" and, together with the General Stockholder Vote, the "Required Stockholder Vote"). In connection with the execution of the Merger Agreement, Kien Huat, entered into a voting agreement with the Company, pursuant to which Kien Huat has agreed to vote its shares of Voting Stock in favor of the Merger Proposal, subject to the limitations set forth in the voting agreement.

Pursuant to the binding term sheet by and between GenM, Kien Huat and Genting (USA) Limited, an Isle of Man company limited by shares ("Gen USA"), dated as of August 5, 2019, subject to the satisfaction of certain conditions (including receipt of regulatory approvals), it is expected that prior to the completion of the Merger, Kien Huat will sell to Gen USA 13,200,000 shares of Common Stock at $9.74 per share, the same price as the Common Stock Per Share Merger Consideration. Following such purchase, it is expected that Kien Huat and Gen USA will contribute their shares of Common Stock to Parent. As a result, it is expected that Parent will own all of the Company's Common Stock and Kien Huat will own all of the Company's Series F Preferred Stock following the completion of the Merger, no other parties will own any capital stock of the Company, and neither Kien Huat, Gen USA, nor Parent will receive the Common Stock Per Share Merger Consideration or the Series B Per Share Merger Consideration (as defined herein).

Each of the Compensation Proposal and the Adjournment Proposal will be approved if a majority of the votes cast by holders of Voting Stock vote in favor of such proposal. Approval of the Compensation Proposal and the Adjournment Proposal are not conditions to the completion of the Merger.

The board of directors of the Company (the "Board") formed a special committee comprised entirely of independent and disinterested directors (the "Special Committee") to consider and negotiate the terms and conditions of the Merger and to recommend to the Board whether to pursue the Merger and, if so, on what terms and conditions.

The Board, based in part on the unanimous recommendation of the Special Committee, has adopted and approved the Merger Agreement and recommends a vote "FOR" the Merger Proposal, "FOR" the Compensation Proposal and "FOR" the Adjournment Proposal.

In arriving at its recommendations, the Board and the Special Committee carefully considered a number of factors described in the accompanying Proxy Statement.

In considering the recommendation of the Board, you should be aware that certain of the Company's directors and executive officers may have interests in the Merger that are different from, or in addition to, the interests of our stockholders generally as further described in the accompanying Proxy Statement. You should also be aware that Kien Huat has interests in the Merger that are different from, or in addition to, the interests of the Company's other stockholders, as further described in the accompanying Proxy Statement.

Any holder of Voting Stock who does not vote in favor of the Merger Proposal will have the right to seek appraisal of the fair value of such holder's shares of capital stock as determined by the Delaware Chancery Court if the Merger is completed, but only if such holder does not vote in favor of the Merger Proposal and otherwise complies with the procedures of Section 262 of the General Corporation Law of the State of Delaware (the "DGCL"), which is the appraisal rights statute applicable to Delaware corporations. These appraisal rights are summarized in the accompanying Proxy Statement. The accompanying Proxy Statement will constitute notice to you from the Company of the availability of appraisal rights under

Section 262 of the DGCL.

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Your vote is important. Whether or not you plan to attend the Special Meeting in person, to ensure that your shares are represented at the Special Meeting, please vote via the Internet or by telephone as instructed in the accompanying proxy materials or complete, date and sign and return a proxy card as promptly as possible. Even if you plan to attend the Special Meeting, please take advantage of one of the advance voting options to ensure that your shares are represented at the Special Meeting. You may revoke your proxy at any time before it is voted by following the procedures described in the accompanying Proxy Statement. The Merger cannot be completed unless the Merger Proposal is approved by the affirmative vote of: (i) holders of a majority of the voting power of the outstanding shares of Voting Stock, voting as a single class, entitled to vote thereon as of the record date for the Special Meeting, and (ii) holders of a majority of the voting power of the outstanding shares of Voting Stock not held by Kien Huat, GenM, their respective affiliates or any director or executive officer of the Company entitled to vote thereon as of the record date for the Special Meeting, voting as a single class.

Thank you for your continued support.

Sincerely,

Emanuel R. Pearlman

Executive Chairman of the Board

Neither the U.S. Securities and Exchange Commission nor any state securities commission has approved or disapproved the Merger, passed upon the merits or fairness of the Merger Agreement or the transactions contemplated thereby, including the proposed Merger, or passed upon the adequacy or accuracy of the information contained in this document or the accompanying Proxy Statement. Any representation to the contrary is a criminal offense.

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EMPIRE RESORTS, INC.

c/o Monticello Raceway

204 State Route 17B

P.O. Box 5013

Monticello, New York 12701

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

Dear Stockholder:

You are cordially invited to attend a special meeting of the stockholders (the "Special Meeting") of Empire Resorts, Inc. ("Empire Resorts"

or the "Company") which will be held at , Eastern Time, on , 2019 at . The Special Meeting is being held for the following purposes, as more fully described in the accompanying Proxy Statement:

1. To hold a vote on a proposal to adopt the Agreement and Plan of Merger, dated as of August 18, 2019 (as it may be amended, the "Merger Agreement"), by and among the Company, Hercules Topco LLC, a Delaware limited liability company ("Parent"), and Hercules Merger Subsidiary Inc., a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), pursuant to which Merger Sub will be merged with and into the Company (the "Merger"), with the Company surviving as a subsidiary of Parent (the "Merger Proposal");
2. To hold an advisory (non-binding) vote to approve certain items of compensation that are based on or otherwise related to the Merger that may become payable to the Company's named executive officers under existing agreements with the Company (the "golden parachute compensation" and the proposal, the "Compensation Proposal"); and
3. To hold a vote on a proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the Merger Proposal (the "Adjournment Proposal" and, together with the Merger Proposal and the Compensation Proposal, the "Proposals").

The Proposals are more fully described in the accompanying Proxy Statement, which the Company urges you to read carefully and in its entirety. A copy of the Merger Agreement is attached as Appendix A to the accompanying Proxy Statement, which the Company also urges you to read carefully and in its entirety.

The board of directors of the Company (the "Board"), based in part on the unanimous recommendation of a special committee comprised entirely of independent and disinterested directors (the "Special Committee"), has adopted and approved the Merger Agreement and recommends a vote "FOR" the Merger Proposal, "FOR" the Compensation Proposal and "FOR" the Adjournment Proposal. The Company does not expect a vote to be taken on any other matters at the Special Meeting or any adjournment or postponement thereof.

Holders of record of the Company's common stock, par value $.01 per share (the "Common Stock"), Series B Preferred Stock, par value $.01 per share (the "Series B Preferred Stock"), and Series F Convertible Preferred Stock, par value $.01 per share (the "Series F Preferred Stock," and,

together with the Common Stock and Series B Preferred Stock, the "Voting Stock"), at the close of business on , 2019 (the "Record Date") will be entitled to notice of and to vote at the Special Meeting or any adjournment or postponement thereof. Each share of Common Stock entitles the holder thereof to one vote, each share of Series B Preferred Stock entitles the holder thereof to fifty-four thousandths (.054) of one vote, and each share of Series F Preferred Stock entitles the holder thereof to 5,000 votes.

The completion of the Merger requires the affirmative vote of holders of a majority of the voting power of the outstanding shares of Voting Stock entitled to vote thereon as of the Record Date for the Special Meeting,

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