Item 5.07. Submission of Matters to a Vote of Security Holders.
On November 13, 2019 at 9:00 a.m., Eastern Time, Empire Resorts, Inc., a Delaware corporation (the “Company”), held a special
meeting of its stockholders (the “Special Meeting”) to consider and vote upon several matters in connection with the consummation of the transaction contemplated by the Agreement and Plan of Merger, dated as of August 18, 2019 (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 Agreement and the transactions contemplated thereby are described in more
detail in the definitive proxy statement, dated October 11, 2019, as amended on November 8, 2019, filed by the Company on October 11, 2019 with the Securities and Exchange Commission (as supplemented, the “proxy statement”).
As of September 20, 2019, the record date for the Special Meeting (the “Record Date”), there were 34,435,907 shares of
Common Stock of the Company, par value $0.01 (the “Common Stock”), 44,258 shares of Series B Preferred Stock of the Company, par value $0.01 (the “Series B Preferred Stock”), and 890 shares of Series F Convertible Preferred
Stock, par value $0.01 (the “Series F Preferred Stock” and, together with Series B Preferred Stock and Common Stock, “Voting Stock”), issued and outstanding and entitled to vote. Each share of Common Stock entitled the holder
thereof to one vote, each share of Series B Preferred Stock entitled the holder thereof to fifty-four thousandths (0.054) of one vote, and each share of Series F Preferred Stock entitled the holder thereof to 5,000 votes. Accordingly, a total of
38,888,297 votes were capable of being cast at the Special Meeting.
At the Special Meeting, the holders of Voting Stock at the Record
Date were asked to vote upon:
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1.
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A proposal to adopt the Merger Agreement (the “Merger Proposal”);
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2.
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The approval of 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 “Compensation Proposal”); and
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3.
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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”).
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Merger Proposal
Approval of the Merger Proposal required the approval of (i) holders of a majority of the voting power of the outstanding shares of Voting
Stock entitled to vote thereon as of the Record Date of the Special Meeting, voting as one class (the “General Stockholder Vote”), and (ii) 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, entitled to vote thereon as of the Record Date of the Special Meeting, voting as one class (the “Public Stockholder Vote”). As of the Record Date, 5,410,507 votes were capable of being cast in respect of
the Public Stockholder Vote.
The total number of votes capable of being cast by the holders of Voting Stock as of the Record Date of the
Special Meeting pursuant to the General Stockholder Vote were voted as follows:
