This Amendment
No. 10 amends the Statement on Schedule 13D filed with the Securities and
Exchange Commission on April 10, 2008 by Louis R. Cappelli in connection with
the common stock of Empire Resorts, Inc (the
Original 13D
), as amended by
Amendment No. 1 to Schedule 13D, effective as of May 1, 2008, by Louis R.
Cappelli and LRC Acquisition LLC, as further amended by Amendment No. 2 to
Schedule 13D, effective as of May 16, 2008, by Louis R. Cappelli, LRC
Acquisition LLC and Cappelli Resorts LLC, as further amended by Amendment No. 3
to Schedule 13D, effective as of June 5, 2008, by Louis R. Cappelli, LRC
Acquisition LLC and Cappelli Resorts LLC, as further amended by Amendment No. 4
to Schedule 13D, effective as of July 3, 2008, by Louis R. Cappelli, LRC Acquisition
LLC and Cappelli Resorts LLC, as further amended by Amendment No. 5 to Schedule
13D, effective as of August 4, 2008, by Louis R. Cappelli, LRC Acquisition LLC
and Cappelli Resorts LLC, as further amended by Amendment No. 6 to Schedule
13D, effective as of August 22, 2008, by Louis R. Cappelli, LRC Acquisition LLC
and Cappelli Resorts LLC, as further amended by Amendment No. 7 to Schedule
13D, effective as of December 31, 2008, by Louis R. Cappelli, LRC Acquisition
LLC and Cappelli Resorts LLC, as further amended by Amendment No. 8 to Schedule
13D, effective as of February 5, 2009, by Louis R. Cappelli, LRC Acquisition
LLC and Cappelli Resorts LLC, as further amended by Amendment No. 9 to Schedule
13D, effective as of March 25, 2009, by Louis R. Cappelli, LRC Acquisition LLC
and Cappelli Resorts LLC (the Original Schedule 13D, as amended, the
Schedule
13D
). Unless otherwise defined herein, all capitalized terms shall have the
meanings ascribed to them in the Schedule 13D.
|
|
Item 4.
|
Purpose of Transaction
|
Item
4 of the Schedule 13D is hereby amended by deleting in its entirety the last
paragraph thereof and inserting in its place the following:
Concurrently
with the execution of that certain Investment Agreement, dated as of August 19,
2009, entered into by and among Empire and Kien Haut Realty III Limited (the
Investment Agreement
), as a condition and inducement to Kien Haut Realty III
Limiteds willingness to enter into such Investment Agreement, Louis R. Cappelli,
along with certain other stockholders in Empire, entered into a Stockholder
Voting Agreement (the
Voting Agreement
), pursuant to which Louis Cappelli and
such other stockholders agreed, among other things, to vote all of the shares
of voting capital stock of Empire that such stockholders own in favor of the
proposals to be recommended by Empire at the special meeting of stockholders to
be held to approve the transactions contemplated by the Investment Agreement
and other related matters.
The
foregoing description of the Voting Agreement does not purport to be complete
and is qualified in its entirety by reference to the Voting Agreement, a copy
of which is filed herewith as Exhibit 14 and is incorporated herein by
reference.
In
addition, on August 12, 2009, Bruce M. Berg resigned from his position as a
director of Empire, effective immediately.
The
Reporting Persons intend continuously to review their rights and options with
respect to the 2009 Agreement, the Voting Agreement, the shares of Common Stock
and other debt and equity securities of Empire in light of all existing
circumstances, including without limitation, market conditions, regulatory
environment, business factors and other circumstances existing from time to
time. The Reporting Persons will take such actions in the future as they may
deem appropriate in light of all existing circumstances, which actions may
include, without limitation, the sale of shares of Common Stock pursuant to a
registration statement filed pursuant to a demand for registration made under
the Option Agreement or otherwise, or the purchasing of debt or equity
securities of Empire in the open market or through privately negotiated
transactions. Any of such future actions may include one or more of the actions
specified in paragraphs (a) through (j) of Item 4 of this Schedule 13D:
|
|
|
|
(a)
|
The
acquisition by any person of additional securities of the issuer, or the
disposition of securities of the issuer;
|
|
|
|
|
(b)
|
An
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the issuer or any of its subsidiaries;
|
|
|
|
|
(c)
|
A sale or
transfer of a material amount of assets of the issuer or any of its
subsidiaries;
|
|
|
|
|
(d)
|
Any change
in the present board of directors or management of the issuer, including any
plans or proposals to change the number or term of directors or to fill any
existing vacancies on the board;
|
|
|
|
|
(e)
|
Any material
change in the present capitalization or dividend policy of the issuer;
|
|
|
|
|
(f)
|
Any other
material change in the issuers business or corporate structure including but
not limited to, if the issuer is a registered closed-end investment company,
any plans or proposals to make any changes in its investment policy for which
a vote is required by section 13 of the Investment Company Act of 1940;
|
|
|
|
|
(g)
|
Changes in
the issuers charter, bylaws or instruments corresponding thereto or other
actions which may impede the acquisition of control of the issuer by any
person;
|
5
|
|
|
|
(h)
|
Causing a
class of securities of the issuer to be delisted from a national securities
exchange or to cease to be authorized to be quoted in an inter-dealer
quotation system of a registered national securities association;
|
|
|
|
|
(i)
|
A class of
equity securities of the issuer becoming eligible for termination of
registration pursuant to Section 12(g)(4) of the Act; or
|
|
|
|
|
(j)
|
Any action
similar to any of those enumerated above.
|
|
|
Item 5.
|
Interest in Securities of the Issuer
|
Paragraph
(a) of Item 5 of the Schedule 13D is hereby deleted in its entirety and
replaced by the following:
|
|
|
|
(a)
|
Cappelli has
an indirect ownership interest in an aggregate of 5,374,512 shares representing approximately 13.16% of Empires Common Stock
(based
upon a total of 40,842,149 shares of Common Stock which consists of (i)
34,037,961 shares of Common Stock outstanding as of August 13, 2009 as
reported in Empires Quarterly Report on Form 10-Q for the fiscal quarter
ended June 30, 2008 and (ii) 6,804,188 additional shares of Common Stock
issued on August 19, 2008 as reported in a Form 8-K filed by Empire on August
19, 2009). The 5,374,512 shares
consist of (i) the 811,030 shares of Common Stock purchased by LRC on April
29, 2008, (ii) the 1,174,512 shares of Common Stock distributed to Cappelli
Resorts LLC by Concord, effective as of May 1, 2008, (iii) the 811,030 shares
of Common Stock purchased by LRC on June 2, 2008, (iv) the 811,030 shares of
Common Stock purchased by LRC on June 30, 2008 and (v) the 1,766,910 shares
of Common Stock purchased by LRC on July 31, 2008.
|
|
|
|
|
|
LRC has a
direct ownership interest in 4,200,000 shares
representing approximately 10.28% of Empires Common Stock (based upon a
total of 40,842,149 shares of Common Stock which consists of (i) 34,037,961
shares of Common Stock outstanding as of August 13, 2009 as reported in
Empires Quarterly Report on Form 10-Q for the fiscal quarter ended June 30,
2008 and (ii) 6,804,188 additional shares of Common Stock issued on August 19,
2008 as reported in a Form 8-K filed by Empire on August 19, 2009).
|
|
|
|
|
|
Cappelli
Resorts has a direct ownership interest in 1,174,512 shares representing
approximately 2.88% of Empires Common Stock (based upon a total of
40,842,149 shares of Common Stock which consists of (i) 34,037,961 shares of
Common Stock outstanding as of August 13, 2009 as reported in Empires
Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2008 and
(ii) 6,804,188 additional shares of Common Stock issued on August 19, 2008 as
reported in a Form 8-K filed by Empire on August 19, 2009).
|
|
|
|
|
|
As a result
of the Voting Agreement described in Item 4 above, each of the Reporting
Persons may be deemed to constitute a group, within the meaning of Section
13(d)(3) of the Act, with the other parties to the Voting Agreement. As a
result, the Reporting Persons may be deemed to own any shares of Common Stock
that are beneficially owned by such other parties as described in reports
filed, or that may be filed, by such other parties.
|
|
|
|
|
|
Each of the
Reporting Persons hereby disclaims beneficial ownership of any shares of
Common Stock that may be beneficially owned by any other party to the Voting
Agreement (other than Louis Cappelli) and their respective affiliates. Neither
the filing of this Schedule 13D nor any of its contents shall be deemed to
constitute an admission that any Reporting Person or any of its affiliates
has an obligation to file this Schedule 13D or is a member of a group
within the meaning of Section 13(d)(3) of the Act.
|
|
|
Item 6.
|
Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer
|
Item
6 of the Schedule 13D is hereby supplemented by the following:
|
|
|
|
5.
|
Stockholder
Voting Agreement, dated as of August 19, 2009, entered into by and among
Empire, Kien Huat Realty III Limited, Louis R. Cappelli and certain other
stockholders of Empire Resorts, Inc. party thereto (for a more detailed
description of the Stockholder Voting Agreement, see Item 4 of this Schedule
13D).
|
|
|
Item 7.
|
Material to be Filed as Exhibits
|
Item
7 of the Schedule 13D is hereby supplemented by the following:
|
|
Exhibit 14.
|
Stockholder
Voting Agreement, dated as of August 19, 2009, entered into by and among
Empire, Kien Huat Realty III Limited, Louis R. Cappelli and certain other
stockholders of Empire Resorts, Inc. party thereto (incorporated by reference
to Exhibit 10.3 to Empires Form 8-K filed with the SEC on August 19, 2009)
|
6
SIGNATURE
After
reasonable inquiry and to the best of my knowledge and belief, the undersigned
certify that the information set forth in this statement is true, complete and
correct.
Dated: August
20, 2009
|
|
|
|
|
/s/ Louis R.
Cappelli
|
|
|
|
LOUIS R. CAPPELLI
|
|
|
|
|
LRC ACQUISITION LLC
|
|
|
|
|
By:
|
/s/ Louis R.
Cappelli
|
|
|
|
|
|
Louis R.
Cappelli, Managing Member
|
|
|
|
|
CAPPELLI RESORTS LLC
|
|
|
|
|
By:
|
/s/ Louis R.
Cappelli
|
|
|
|
|
|
Louis R.
Cappelli, Managing Member
|
7
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Jun 2024 to Jul 2024
Empire Resorts (NASDAQ:NYNY)
Historical Stock Chart
From Jul 2023 to Jul 2024