Kien Huat Realty III Ltd. (‘Kien Huat') and Genting Malaysia Berhad (KLSE:GENM) (‘Genting Malaysia‘) submitted a preliminary non-binding proposal to acquire remaining 16.04% stake in Empire Resorts, Inc. (NasdaqGM:NYNY) (‘Empire') for $57.9 million on August 5, 2019. Kien Huat Realty III Ltd. and Genting Malaysia Berhad entered into a definitive agreement to acquire remaining 16.04% stake in Empire Resorts, Inc. on August 18, 2019. Kien Huat and Genting Malaysia will acquire all of the outstanding equity of Empire not owned by Kien Huat, Lim Kok Thay, Genting Berhad, Genting Malaysia and its subsidiaries for cash payment of $9.74 per share. In a related transaction, Genting (USA) Limited entered into a binding term sheet to acquire a 38.36% stake in Empire Resorts, Inc. from Kien Huat Realty III Limited for approximately $130 million on August 5, 2019.

The financing of the merger will be done with cash provided by Kien Huat and Genting Malaysia or their respective affiliated entities. Under the terms of the agreement, Empire Resorts' special committee, with the assistance of its financial advisor, will conduct a 10-business day 'go-shop' process following the date of the announcement of the definitive agreement, during which it will actively initiate, solicit, encourage and evaluate alternative acquisition proposals, and potentially enter into negotiations with any parties that may offer alternative acquisition proposals. Upon completion of the transaction, Empire Resorts will become a privately-held company and its common stock will no longer be listed on any public market. Empire Resorts will pay a termination fee of $1.75 million.

The transaction is subject to the approval of the Special Committee or another committee of the Board of Directors of the Empire and holders of a majority of the votes represented by the outstanding shares of Common Stock and Series B Preferred Stock other than Voting Stock owned by Kien Huat, Genting Malaysia, or their affiliates and associates and executive management. The merger would also be subject to, among other things, the completion of due diligence, including financial, legal, accounting, tax and business and operations diligence, the negotiation and execution of mutually acceptable definitive transaction documentation, successfully obtaining all required or advisable regulatory approvals including, without limitation, any required approvals under the New York State Gaming Commission, satisfaction of any other applicable regulatory or stock exchange requirements. Kien Huat has also entered into a voting agreement under which it has committed its voting shares in support of the transaction. As of August 19, 2019, the Board of Directors of Empire Resorts has approved the transaction on the unanimous recommendation of the previously formed special committee of independent Directors. As of October 11, 2019, the special meeting of shareholders of Empire Resorts will be held on November 13, 2019. As of October 29, 2019, Empire Resorts sent letter to shareholder to approve the merger at the special meeting. As of November 8, 2019, Empire Resorts announced that all three independent proxy advisory firms, Institutional Shareholder Services Inc. (“ISS”), Glass, Lewis & Co. and Egan Jones, recommend a vote for the adoption of the transaction. As of November 13, 2019, shareholders of Empire Resorts approved the transaction.

The transaction is expected to close in the fourth quarter of 2019. Augusto Sasso, Ramy Ibrahim, Dan Lee, Barak Klein, Alan Aberg and Jeremy Burke of Moelis & Company (NYSE:MC) acted as financial advisor and fairness opinion advisor and Jeffrey D. Marell, Raphael Russo, David Huntington, Bruce Gruder, Frances Mi, Patricia Vaz de Almeida, Geoffrey Chepiga, Aidan Synnott, Elizabeth McColm, Brian Hermann, Samuel Lovett, Sarah Harnett, Harris Freidus, Marta Kelly, Todd Hatcher, Richard Elliott and William O'Brien of Paul, Weiss, Rifkind, Wharton & Garrison LLP acted as legal advisor to Empire Resorts' special committee. Steven L. Wilner, Matthew P. Salerno, James E. Langston, Sean O Neal, Arthur Kohn, Duane McLaughlin, Ken Reinker, Daniel Ilan, Adam Fleischer and Jason Factor of Cleary Gottlieb Steen & Hamilton LLP and Melissa DiVincenzo and Eric Klinger-Wilensky of Morris, Nichols, Arsht & Tunnell LLP acted as legal advisors to Genting Malaysia. MacKenzie Partners, Inc. acted as a proxy solicitor to Empire Resorts with a fee of approximately $0.015 million. Moelis is entitled to receive monthly fees, creditable against the transaction fee, of $0.3 million and earned an additional fee of $1 million for the delivery of its Opinion. In addition, Moelis will receive a transaction fee of $3.2 million (net of the $0.3 million of monthly fees received) contingent upon the closing of the transaction.

Kien Huat Realty III Ltd. (‘Kien Huat') and Genting Malaysia Berhad (KLSE:GENM) (‘Genting Malaysia‘) completed the acquisition of remaining 16.04% stake in Empire Resorts, Inc. (NasdaqGM:NYNY) (‘Empire') on November 15, 2019.