Sec Form 13D Filing - CAPPELLI LOUIS filing for EMPIRE RESORTS INC (NYNY) - 2012-05-18

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D
Under the Securities Exchange Act of 1934

(Amendment No. 14)*

(CUSIP Number) 

Louis R. Cappelli

c/o Cappelli Enterprises, Inc.

115 Stevens Avenue

Valhalla, NY 10595

Attention: Louis R. Cappelli

With a copy to:

Herrick, Feinstein LLP

2 Park Avenue

New York, NY 10016

Attention: Louis Goldberg, Esq.

Name of Reporting Persons: Louis R. Cappelli

Citizenship or Place of Organization

United States

(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 30,023,287 shares of Common Stock outstanding as of May 10, 2012 as reported in Empire’s Quarterly Report on Form 10-Q filed with the SEC on May 15, 2012. This percentage was calculated in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended.

Name of Reporting Persons: LRC Acquisition LLC

Citizenship or Place of Organization

New York

(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 30,023,287 shares of Common Stock outstanding as of May 10, 2012 as reported in Empire’s Quarterly Report on Form 10-Q filed with the SEC on May 15, 2012. This percentage was calculated in accordance with Rule 13d-3(d)(1)(i) promulgated under the Securities Exchange Act of 1934, as amended.

Paragraph (a) of Item 5 of the Schedule 13D is hereby deleted in its entirety and replaced by the following: 

On December 13, 2011, Empire completed a one-for-three reverse stock split in which every three shares of Empire’s pre-split Common Stock were automatically converted into one share of post-split Common stock (“Reserve Stock Split”). The total number of shares of Common Stock of Empire outstanding and the number of shares of Common Stock of Empire owned by each of Cappelli and LRC as reported on this Schedule 13D reflect share numbers after the completion of the Reserve Stock Split.

Cappelli has a beneficial ownership interest in 1,469,998 shares of Common Stock representing approximately 4.89% of Empire’s Common Stock, consisting of: (i) an indirect ownership interest in an aggregate of 1,441,665 shares of Common Stock representing approximately 4.80% 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. Cappelli’s ownership of Empire’s Common Stock as reported on this Schedule 13D reflects share numbers after the completion of the Reverse Stock Split.

LRC has a direct ownership interest in 1,441,665 shares of Common Stock representing approximately 4.80% 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 30,023,287 shares of Common Stock outstanding as of May 10, 2012 as reported in Empire’s Quarterly Report on Form 10-Q filed with the SEC on May 15, 2012. 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.

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. Additionally, as set forth in more detail in Item 5(c) below, in a series of transactions on from March 1, 2012 through May 17, 2012, LRC sold 195,706 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:

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 1,469,998 shares of Common Stock, consisting of (i) the 28,333 shares of Common Stock described in the previous sentence, and (ii) the 1,441,665 shares of Common Stock owned directly by LRC.

LRC has shared voting and dispositive voting power over 1,441,665 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:

On March 12, 2012, LRC sold an aggregate of 7,853 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.53.

On March 13, 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 $2.50.

On March 14, 2012, LRC sold an aggregate of 900 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.50.

On March 15, 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 $2.61.

On March 16, 2012, LRC sold an aggregate of 8,481 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.57.

On March 19, 2012, LRC sold an aggregate of 6,479 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.51.

On March 20, 2012, LRC sold an aggregate of 3,624 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.50.

On March 21, 2012, LRC sold an aggregate of 2,876 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.51.

On March 26, 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 $2.39.

On March 27, 2012, LRC sold an aggregate of 7,467 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.32.

On March 28, 2012, LRC sold an aggregate of 980 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.25.

On March 29, 2012, LRC sold an aggregate of 2007 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.27.

On March 30, 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 $2.27.

On April 2, 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 $2.28.

On April 3, 2012, LRC sold an aggregate of 700 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.28.

On April 18, 2012, LRC sold an aggregate of 1,851 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.25.

On April 19, 2012, LRC sold an aggregate of 8,067 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.26.

On April 25, 2012, LRC sold an aggregate of 1,600 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.32.

On April 30, 2012, LRC sold an aggregate of 8,281 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.25.

On May 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 $2.29.

On May 2, 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 $2.25.

On May 11, 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 $2.25.

On May 14, 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 $2.05.

On May 15, 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 $2.05.

On May 16, 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 $2.00.

On May 17, 2012, LRC sold an aggregate of 2,000 shares of Common Stock of Empire in a series of open market broker transactions at an average price of $2.01.

587,352 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.