Litigation Relating to the Merger
As previously disclosed, on August 18, 2019, 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, GenM and their respective affiliates are currently the holders of approximately 86% of the voting power of the
Company’s 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”).
On October 8, 2019 and October 28, 2019, respectively, two putative class action
complaints challenging the Merger were filed in New York State Supreme Court, Sullivan County. The first Sullivan County case is captioned David Mullen v. Empire Resorts, Inc. et al., Index No. E2019-2085 (the “Mullen State Court
Litigation”). The second Sullivan County case is captioned Julie Milano v. Empire Resorts, Inc. et al., Index No. E2019-2207 (the “Milano Litigation,” and, collectively with the Mullen State Court Litigation, the “Sullivan
County Litigations”). The Sullivan County Litigations allege that the members of the Company’s Board of Directors (the “Board”) breached their fiduciary duties in connection with the negotiation and approval of the Merger
Agreement, as well as in authorizing the disclosures made in the Company’s preliminary proxy statement filed with the SEC on September 24, 2019 (the “Preliminary Proxy”). The Sullivan County Litigations further allege that each
of the Company, Parent, Merger Sub, Kien Huat, and GenM aided and abetted the Board’s alleged breaches of fiduciary duty. On October 28, 2019, the plaintiff in the Mullen State Court Litigation voluntarily dismissed the Mullen State Court
Litigation.
On October 15, 2019, October 18, 2019 and October 29, 2019, respectively, three federal complaints challenging
the Merger were filed in the United States District Court for the District of Delaware and the United States District Court for the Southern District of New York. The Delaware federal case is captioned Adam Franchi v. Empire Resorts, Inc. et
al., Case No. 1:19-cv-01947-RGA (the “Franchi Litigation”) and the two New York federal cases are captioned
David Mullen v. Empire Resorts, Inc. et al., Case No. 1:19-cv-09632-LAK (the “Mullen Federal Litigation”) and
Harold Litwin v. Empire Resorts, Inc. et al., Case No. 1:19-cv-10026 (the “Litwin Litigation,” and, collectively with the Franchi Litigation, the Milano
Litigation, and the Mullen Federal Litigation, the “Merger Litigations”). In the Franchi Litigation, Mullen Federal Litigation, and Litwin Litigation, each plaintiff asserts claims against the Company and certain members of the Board under
Section 14(a) of the Securities Exchange Act of 1934 (the “Exchange Act”) and Rule 14a-9 promulgated thereunder, as well as Section 20(a) of the Exchange Act. Each plaintiff alleges that
the Company’s Proxy Statement was misleading and omitted certain information with respect to the Merger.
Each of the Merger
Litigations seeks, among other things, to enjoin the Merger and recover damages, as well as an award of the plaintiffs’ attorneys’ fees and costs of the litigation.
The defendants deny all such allegations and believe the Merger Litigations are without merit. Furthermore, the defendants believe that the
disclosures in the Preliminary Proxy and the Proxy Statement are adequate under the law. However, to alleviate the costs, risks and uncertainties inherent in litigation and provide additional information to its stockholders, the Company has
determined to voluntarily supplement the Proxy Statement as described herein. Nothing in this Amendment No. 1 to the Proxy Statement shall be deemed an admission of the legal necessity or materiality under applicable laws of any of the
disclosures set forth herein. To the contrary, the Company specifically denies all allegations in the Merger Litigations that any additional disclosure was or is required. These supplemental disclosures will not affect the merger consideration to be
paid to the Company’s stockholders in connection with the Merger or the timing of the special meeting of the Company’s stockholders scheduled for 9:00 a.m., Eastern Time, on November 13, 2019 at the offices of Ellenoff
Grossman & Schole LLP, 1345 Avenue of the Americas, 11th Floor, New York, New York 10105.
Supplemental Disclosures
The following disclosures supplement the disclosures contained in the Proxy Statement and should be read in conjunction with the disclosures
contained in the Proxy Statement, which should be read in its entirety. To the extent that the information set forth herein differs from or updates information contained in the Proxy Statement, the information set forth herein shall supersede or
supplement the information in the Proxy Statement. All page references are to pages in the Proxy Statement, and terms used below, unless otherwise defined, have the meanings set forth in the Proxy Statement.
The carryover paragraph from pages 20 to 21 of the Proxy Statement is hereby amended by inserting the following new sentence immediately
prior to the second-to-last sentence thereof:
At that time, Gregg Polle served as a director of the Company and as a Managing Director of Moelis. As previously disclosed in the Company’s Quarterly
Report on Form 10-Q filed with the SEC on August 9, 2019, Mr. Polle refrained from participating in discussion of, and had abstained from voting on, whether to engage Moelis.
