|
|
LRC has a direct ownership interest
in 1,637,371 shares of Common Stock representing approximately 5.48% of Empire’s Common Stock. The foregoing is based
upon a total of 29,930,840 shares of Common Stock outstanding as of February 29, 2012 as reported by
Bloomberg, and the percentage was calculated in accordance with Rule 13d-3(d)(1)(i) promulgated under the
Securities Exchange Act of 1934, as amended.
The following is a description of all transactions
effected by LRC prior to the date hereof with respect to Empire’s Common Stock. The share numbers reported below reflect
share amounts prior to the completion of the Reverse Stock Split. On April 29, 2008, LRC purchased 4,200,000 shares of Common
Stock pursuant on April 29, 2008 pursuant to that certain Stock Purchase Agreement dated as of March 31, 2008, made by and between
Empire and LRC, as amended by Amendment No. 1 to Stock Purchase Agreement dated April 28, 2008, made by and between Empire and
LRC, as further amended by Amendment No. 2 to Stock Purchase Agreement, dated as of June 26, 2008, made by and between Empire
and LRC (as amended, the “
Stock Purchase Agreement
”). In September 2008, LRC also acquired 1,174,512 shares
of Common Stock of Empire from Cappelli Resorts, LLC (“
Cappelli Resorts
”). Cappelli Resorts acquired such shares
through a distribution by Concord Associates, L.P. (“
Concord
”), effective as of May 1, 2008. Cappelli serves
as the managing member and majority owner of both LRC and Cappelli Resorts, and though his interest in Cappelli Resorts, Cappelli
also owns a controlling interest in Concord. Beginning in November 2010, LRC sold 267,201 of the 4,200,000 shares of Common Stock
in a series of open market broker transactions, as reported on the following Form 4’s filed with the SEC by Cappelli: (i)
the Form 4 filed with the SEC on November 24, 2010, (ii) the Form 4 filed with the SEC on November 29, 2010, (iii) the Form 4
filed with the SEC on December 1, 2010, and (iv) the Form 4 filed with the SEC on December 6, 2010. In addition, as set forth
in more detail in Item 5(c) below, in a series of transactions on December 16, 2010, December 17, 2010 and December 20, 2010,
LRC sold 195,197 shares of Common Stock in the aggregate.
Each of the Reporting Persons hereby disclaims
beneficial ownership of any shares of Common Stock other than the shares directly owned by such Reporting Person. 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.
Paragraph (b) of Item 5 of the Schedule 13D
is hereby deleted in its entirety and replaced by the following:
|
|
(b)
|
Cappelli has sole voting and dispositive power
over 28,333 shares of Common Stock, which consist of: (i) 3,333 shares of restricted Common Stock granted on January 4, 2010 pursuant
to the Company’s 2005 Equity Incentive Plan and (ii) options which are currently exercisable to purchase 25,000 shares of
Common Stock. Cappelli has shared voting and dispositive power over 1,665,704
shares
of Common Stock, consisting
of (i) the 28,333 shares of Common Stock described in the previous sentence, and (ii) the 1,637,371 shares of Common Stock owned
directly by LRC
LRC has shared voting and dispositive voting
power over 1,637,371 shares of Common Stock, which it owns directly. Louis R. Cappelli is the sole member and managing member of
LRC.
Paragraph (c) of Item 5 of the Schedule 13D
is hereby amended by adding the following at the end thereof:
|
|
(c)
|
On December 16, 2010, LRC sold
an aggregate of 87,564 shares of Common Stock of Empire in a series of open market broker transactions at an average price of
ranging from $1.10.
On December 17, 2010, LRC sold an aggregate
of 91,198 shares of Common Stock of Empire in a series of open market broker transactions at an average price of ranging from $1.125.
On December 20, 2010, LRC sold an aggregate
of 16,435 shares of Common Stock of Empire in a series of open market broker transactions at an average price of ranging from $1.106.
The transactions described in this Item 5(c)
occurred prior to the completion of the Reverse Stock Split and, accordingly, the share numbers reported above reflect share numbers
in effect prior to the completion of the Reverse Stock Split.
|