UNITED
STATES
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SECURITIES
AND EXCHANGE COMMISSION
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Washington,
D.C. 20549
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SCHEDULE
13D
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Under
the Securities Exchange Act of 1934
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(Amendment
No. 13)*
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Empire
Resorts, Inc.
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(Name of Issuer)
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Common
Stock, par value $.01 per share
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(Title of Class of
Securities)
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292052
10 7
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(CUSIP Number)
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Louis
R. Cappelli
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c/o Cappelli
Enterprises, Inc.
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115 Stevens
Avenue
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Valhalla,
NY 10595
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Attention:
Louis R. Cappelli
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With a
copy to:
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Herrick,
Feinstein LLP
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2 Park
Avenue
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New York,
NY 10016
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Attention:
Louis Goldberg, Esq.
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(Name,
Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March
7, 2012
(Date
of Event which Requires Filing of this Statement)
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If
the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule
13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box.
£
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Note:
Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits.
See §240.13d-7 for other parties to whom copies are to be sent.
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* The remainder
of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior
cover page.
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The information
required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of
the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the Notes).
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Persons who respond
to the collection of information contained in this form are not required to respond unless the form displays a currently valid
OMB control number.
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CUSIP
No. 292052 10 7
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1.
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Name
of Reporting Persons:
Louis R. Cappelli
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
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(a)
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£
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(b)
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S
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3.
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SEC
Use Only
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4.
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Source
of Funds:
AF, PF
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
£
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6.
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Citizenship
or Place of Organization
United States
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Number
of
Shares Bene-ficially by
Owned by Each
Reporting
Person With
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7.
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Sole
Voting Power:
28,333 (1)
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8.
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Shared
Voting Power:
1,614,831 shares (2)
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9.
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Sole
Dispositive Power:
28,333 (1)
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10.
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Shared
Dispositive Power:
1,614,831 shares (2)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person:
1,643,164 shares (2)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
£
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13.
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Percent
of Class Represented by Amount in Row (11):
5.50% (3)
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14.
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Type
of Reporting Person (See Instructions):
IN
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(1) Includes options granted
by Empire Resorts, Inc. (“
Empire
”) to Louis R. Cappelli (“
Cappelli
”) which are currently
exercisable to purchase 25,000 shares of Empire’s Common Stock.
(2) These shares of Common
Stock of Empire are owned directly by LRC Acquisition LLC (“
LRC
”).
(3) Based upon a total of
29,864,100 shares of Common Stock outstanding as of February 29, 2012 as reported by Bloomberg. This percentage was calculated
in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended.
CUSIP
No. 292052 10 7
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1.
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Name
of Reporting Persons:
LRC Acquisition
LLC
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2.
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Check
the Appropriate Box if a Member of a Group (See Instructions)
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(a)
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£
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(b)
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S
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3.
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SEC
Use Only
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4.
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Source
of Funds:
WC
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5.
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Check
if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e)
£
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6.
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Citizenship
or Place of Organization
New York
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Number
of
Shares Bene-ficially by
Owned by Each
Reporting
Person With
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7.
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Sole
Voting Power:
0
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8.
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Shared
Voting Power:
1,614,831 shares (1)
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9.
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Sole
Dispositive Power:
0
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10.
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Shared
Dispositive Power:
1,614,831 shares (1)
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11.
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Aggregate
Amount Beneficially Owned by Each Reporting Person:
1,614,831 shares (1)
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12.
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Check
if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
£
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13.
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Percent
of Class Represented by Amount in Row (11):
5.41% (2)
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14.
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Type
of Reporting Person (See Instructions):
OO
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(1) These shares of Common
Stock of Empire Resorts, Inc. (“
Empire
”) are owned directly by LRC Acquisition LLC (“
LRC
”).
(2) Based upon a total of
29,864,100 shares of Common Stock outstanding as of February 29, 2012 as reported by Bloomberg. This percentage was calculated
in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended.
This
Amendment No. 13 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, as further amended by Amendment No. 10 to Schedule 13D, effective as
of August 21, 2009, by Louis R. Cappelli, LRC Acquisition LLC and Cappelli Resorts LLC, as further amended by Amendment No. 11
to Schedule 13D, effective as of December 13, 2010, by Louis R. Cappelli and LRC Acquisition LLC, and as further amended by Amendment
No. 12 to Schedule 13D, effective as of March 1, 2012, by Louis R. Cappelli and LRC Acquisition 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 the following:
On
March 7, 2012, Concord Associates, L.P., an affiliate of the Reporting Persons, and certain other affiliates of the Reporting
Persons (collectively, the “
Concord Entities
”) commenced an action against Empire and certain of its affiliates
(collectively, the “
Empire Entities
”) in the United States District Court for the Southern District
of New York. The complaint (the “
Concord Complaint
”) alleges claims under Sections 1 and 2 of the Sherman Antitrust
Act, and also alleges claims against the Empire Entities for tortious interference with contract and business relations. The Concord
Complaint seeks actual damages in excess of $500 million, treble damages in an amount not less than $1.5 billion, and permanent
injunctive relief. As of the date of this filing, the Empire Entities have not filed an answer to the Concord Complaint.
The
Reporting Persons intend continuously to review their rights and options with respect to 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
. T
he
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:
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(a)
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The acquisition by any person of additional securities
of the issuer, or the disposition of securities of the issuer;
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(b)
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An extraordinary corporate transaction, such as a merger, reorganization
or liquidation, involving the issuer or any of its subsidiaries;
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(c)
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A sale or transfer of a material amount of assets of the issuer
or any of its subsidiaries;
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(d)
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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;
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(e)
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Any material change in the present capitalization or dividend policy
of the issuer;
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(f)
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Any other material change in the issuer’s 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;
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(g)
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Changes in the issuer’s charter, bylaws or instruments corresponding
thereto or other actions which may impede the acquisition of control of the issuer by any person;
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(h)
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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;
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(i)
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A class of equity securities of the issuer becoming
eligible for termination of registration pursuant to Section 12(g)(4) of the Act; or
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(j)
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Any action similar to any of those enumerated above.
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Item 5.
Interest in Securities of the Issuer
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Paragraph (a) of Item 5 of
the Schedule 13D is hereby deleted in its entirety and replaced by the following:
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(a)
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Cappelli
has a beneficial ownership interest in 1,643,164
shares
of Common Stock
representing approximately 5.50%
of Empire’s Common Stock, consisting of: (i) an indirect ownership interest in an aggregate of 1,614,831
shares
of Common Stock
representing approximately 5.41% of Empire’s Common Stock, which shares of Common Stock are owned
directly by LRC, and (ii) a direct ownership interest in an aggregate 28,333 shares of Common Stock, representing approximately
0.09% of Empire’s Common Stock. The 28,333 shares owned directly by Cappelli 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.
LRC
has a direct ownership interest in 1,614,831
shares of Common Stock representing approximately 5.40% of Empire’s
Common Stock. All of the numbers of shares of Common Stock of Empire reported above in this Item 4(a) are based upon a
total of 29,864,100 shares of Common Stock outstanding as of February 29, 2012, as reported by Bloomberg. The percentages
of ownership reported above in this Item 4(a) were calculated in accordance with Rule 13d-3(d)(1)(i) promulgated
under the Securities Exchange Act of 1934, as amended.
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.
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Paragraph (b) of Item 5 of
the Schedule 13D is hereby deleted in its entirety and replaced by the following:
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(b)
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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 1,619,831 shares of Common Stock, which it owns directly. Louis R. Cappelli
is the sole member and managing member of LRC.
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Paragraph (c) of Item 5 of the Schedule 13D is hereby amended by adding the following at the end thereof:
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(c)
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On March 1,
2012, LRC sold an aggregate of 10,000 shares of Common Stock of Empire in a series of open market broker transactions at an average
price of $2.85.
On March
2, 2012, LRC sold an aggregate of 1,734 shares of Common Stock of Empire in a series of open market broker transactions
at an average price of $2.72.
On March
6, 2012, LRC sold an aggregate of 4,600 shares of Common Stock of Empire in a series of open market broker transactions
at an average price of $2.52.
On March
7, 2012, LRC sold an aggregate of 1,206 shares of Common Stock of Empire in a series of open market broker transactions
at an average price of $2.50.
On March 9, 2012, LRC sold an aggregate of 5,000 shares of Common
Stock of Empire in a series of open market broker transactions at an average price of $2.62.
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Item 6.
Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer
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Item 6 of the Schedule 13D is hereby amended by deleting the last two paragraphs thereof in their entirety and replacing them
with the following:
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755,518
of the shares of Common Stock of Empire owned by LRC are
pledged to Edward J. Minskoff (“
Minskoff
”)
to secure certain loan obligations owed by LRC to Minskoff.
270,334
of the shares of Common Stock of Empire owned by LRC are pledged to Richard Ferrucci (“
Ferrucci
”),
to secure certain loan obligations owed by LRC to Ferrucci.
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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: March 9, 2012
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/s/ Louis R. Cappelli
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LOUIS R. CAPPELLI
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LRC ACQUISITION LLC
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By:
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/s/ Louis R. Cappelli
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Louis R. Cappelli, Managing Member
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7
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