-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ToJVa553Q4RrZNyRqk+OPhJt687U4Hu1iiNtKB44KtxaGb5GNfbUo/onv4Fa48lV jsN/juiNiGJV0XOxc3Bu3g== 0001019056-06-000003.txt : 20060103 0001019056-06-000003.hdr.sgml : 20060102 20060103153720 ACCESSION NUMBER: 0001019056-06-000003 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 1 FILED AS OF DATE: 20060103 DATE AS OF CHANGE: 20060103 GROUP MEMBERS: CATSKILL RESORT GROUP LLC GROUP MEMBERS: CONCORD ASSOCIATES, L.P. GROUP MEMBERS: CONVENTION HOTELS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE RESORTS INC CENTRAL INDEX KEY: 0000906780 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 133714474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-52151 FILM NUMBER: 06502390 BUSINESS ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 BUSINESS PHONE: (845) 807-0001 MAIL ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 FORMER COMPANY: FORMER CONFORMED NAME: ALPHA HOSPITALITY CORP DATE OF NAME CHANGE: 19930614 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Concord Associates, L.P. CENTRAL INDEX KEY: 0001337493 IRS NUMBER: 134008929 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: C/O CAPPELLI ENTERPRISES, INC. STREET 2: 115 STEVENS AVENUE CITY: VALHALLA STATE: NY ZIP: 10595 BUSINESS PHONE: (914) 769-6500 MAIL ADDRESS: STREET 1: C/O CAPPELLI ENTERPRISES, INC. STREET 2: 115 STEVENS AVENUE CITY: VALHALLA STATE: NY ZIP: 10595 SC 13D/A 1 empire_13da1.txt SCHEDULE 13D/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1)* Empire Resorts, Inc. - -------------------------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 292052 10 7 - -------------------------------------------------------------------------------- (CUSIP Number) Concord Associates, L.P. 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: Stephen M. Rathkopf, Esq. - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) December 30, 2005 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) 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 ss.ss.240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See ss.240.13d-7 for other parties to whom copies are to be sent. * 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. 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). 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. 2 CUSIP No. 292052 10 7 - -------------------------------------------------------------------------------- 1. Name of Reporting Persons: Concord Associates, L.P. I.R.S. Identification Nos. of above persons (entities only): 13-4008929 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds: OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization New York - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares --------------------------------------------------- Bene-ficially by 8. Shared Voting Power: 5,188,913 shares (1) Owned by Each --------------------------------------------------- Reporting 9. Sole Dispositive Power: 0 Person With --------------------------------------------------- 10. Shared Dispositive Power: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 16.48% (2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): PN - -------------------------------------------------------------------------------- (1) Includes the option to purchase 5,188,813 shares of Common Stock at $7.50 per share ("Option") which was granted by Empire Resorts, Inc. to Concord Associates, L.P. pursuant to the terms and provisions of the Stock Option Agreement, dated November 12, 2004, by and between Empire Resorts, Inc. and Concord Associates, L.P., as amended by Amendment No. 1 to Option Agreement, dated as of March 3, 2005 by and between Empire Resorts, Inc. and Concord Associates, L.P. (2) Based upon a total of 31,494,166 shares of Common Stock which, pursuant to Rule 13d-3(d)(1), consists of (i) 26,305,253 shares of Common Stock outstanding as of November 10, 2005 as reported in Empire Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended September 30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to the Option. 3 CUSIP No. 292052 10 7 - -------------------------------------------------------------------------------- 1. Name of Reporting Persons: Convention Hotels, Inc. I.R.S. Identification Nos. of above persons (entities only): 13-4040188 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds: OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization New York - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares --------------------------------------------------- Bene-ficially by 8. Shared Voting Power: 5,188,913 shares (1) Owned by Each --------------------------------------------------- Reporting 9. Sole Dispositive Power: 0 Person With --------------------------------------------------- 10. Shared Dispositive Power: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 16.48% (2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): CO, HC - -------------------------------------------------------------------------------- (1) Includes the option to purchase 5,188,813 shares of Common Stock at $7.50 per share ("Option") which was granted by Empire Resorts, Inc. to Concord Associates, L.P. pursuant to the terms and provisions of the Stock Option Agreement, dated November 12, 2004, by and between Empire Resorts, Inc. and Concord Associates, L.P., as amended by Amendment No. 1 to Option Agreement, dated as of March 3, 2005 by and between Empire Resorts, Inc. and Concord Associates, L.P. (2) Based upon a total of 31,494,166 shares of Common Stock which, pursuant to Rule 13d-3(d)(1), consists of (i) 26,305,253 shares of Common Stock outstanding as of November 10, 2005 as reported in Empire Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended September 30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to the Option. 4 CUSIP No. 292052 10 7 - -------------------------------------------------------------------------------- 1. Name of Reporting Persons: Catskill Resort Group LLC I.R.S. Identification Nos. of above persons (entities only): 13-4109858 - -------------------------------------------------------------------------------- 2. Check the Appropriate Box if a Member of a Group (See Instructions) (a) [ ] (b) [X] - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds: OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization New York - -------------------------------------------------------------------------------- Number of 7. Sole Voting Power: 0 Shares --------------------------------------------------- Bene-ficially by 8. Shared Voting Power: 5,188,913 shares (1) Owned by Each --------------------------------------------------- Reporting 9. Sole Dispositive Power: 0 Person With --------------------------------------------------- 10. Shared Dispositive Power: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person: 5,188,913 shares (1) - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11): 16.48% (2) - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions): OO, HC - -------------------------------------------------------------------------------- (1) Includes the option to purchase 5,188,813 shares of Common Stock at $7.50 per share ("Option") which was granted by Empire Resorts, Inc. to Concord Associates, L.P. pursuant to the terms and provisions of the Stock Option Agreement, dated November 12, 2004, by and between Empire Resorts, Inc. and Concord Associates, L.P., as amended by Amendment No. 1 to Option Agreement, dated as of March 3, 2005 by and between Empire Resorts, Inc. and Concord Associates, L.P. (2) Based upon a total of 31,494,166 shares of Common Stock which, pursuant to Rule 13d-3(d)(1), consists of (i) 26,305,253 shares of Common Stock outstanding as of November 10, 2005 as reported in Empire Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended September 30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to the Option. 5 This amendment No. 1 amends the Statement on Schedule 13D (the "Schedule 13D") filed with the Securities and Exchange Commission (the "Commission") on August 30, 2005 by Concord Associates, L.P., a New York limited partnership ("Concord Associates"), Convention Hotels, Inc., a New York corporation ("Convention Hotels") and Catskill Resort Group LLC, a New York limited liability company ("Catskill Resort Group"). This amendment to the Schedule 13D relates to the common stock ("Common Stock"), par value $.01 per share, of Empire Resorts, Inc., a Delaware corporation ("Empire" or "Issuer"). The following amendments to the Schedule 13D are hereby made. 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 supplemented by the following: On December 30, 2005, Empire Resorts, Inc., Concord Associates L.P. and Sullivan Resorts LLC ("Sullivan Resorts") entered into a letter agreement terminating the Agreement and Plan of Merger and Contribution among Empire, Concord Associates and Sullivan Resorts, dated as of March 3, 2005, and setting forth the certain agreements among the parties with respect to the Option (the "Termination Agreement"). Item 5. Interest in Securities of the Issuer Item 5 of the Schedule 13D is hereby amended in its entirety to read as follows: (a) As of the date hereof, the Reporting Persons have the following interest in the securities of Empire: Concord Associates holds the Option. As a result, Concord Associates may be deemed to beneficially own an aggregate of 16.48% of Empire's Common Stock (which is calculated based upon a total of 31,494,166 shares of Common Stock and which, pursuant to Rule 13d-3(d)(1), consists of (i) 26,305,253 shares of Common Stock outstanding as of November 10, 2005 as reported in Empire's Quarterly Report on Form 10-Q for the period ended September 30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to the Option). (b) The Reporting Persons have the shared power to dispose or direct the disposition of 5,188,913 shares of Common Stock which are subject to the Option. (c) There have been no purchases or sales of Empire's Common Stock by the Reporting Persons, or other persons identified in Item 2(a) above, within the last sixty (60) days. (d) Except as set forth herein, no person other than each respective owner referred to herein of Empire's Common Stock is known to have the right to receive or the power to direct the receipt of dividends from or the proceeds from the sale of such Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer 1. The Termination Agreement is hereby incorporated by reference into this Item 6. Item 7. Material to Be Filed as Exhibits Exhibit 1. Letter Agreement between Empire Resorts, Inc., Concord Associates, L.P. and Sullivan Resorts LLC, dated December 30, 2005. 6 SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: December 30, 2005 CONCORD ASSOCIATES, L.P. By: Convention Hotels, Inc., as General Partner By: /s/ LOUIS R. CAPPELLI --------------------------------- Louis R. Cappelli, President 7 SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: December 30, 2005 CONVENTION HOTELS, INC. By: /s/ LOUIS R. CAPPELLI ------------------------------------- Louis R. Cappelli, President 8 SIGNATURE --------- After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: December 30, 2005 CATSKILL RESORT GROUP, LLC By: Cappelli Resorts, LLC, as Managing Member By: /s/ LOUIS R. CAPPELLI --------------------------------- Louis R. Cappelli, President By: Melville-Catskill, LLC, as Managing Member By: Reckson Strategic Venture Partners, LLC, as Managing Member By: /s/ SCOTT RECHLER ----------------------------- Scott Rechler, President 9 [Execution Copy] Concord Associates Limited Partnership Sullivan Resorts LLC c/o 115 Stevens Avenue Valhalla, New York 10595 December 30, 2005 Empire Resorts, Inc. c/o Monticello Raceway Route 17B Monticello, New York 12701 Re: Merger Agreement and Option Agreement ------------------------------------- This is to formalize our agreement with respect to the Agreement and Plan of Merger and Contribution, dated as of March 3, 2005 (the "Merger Agreement") and the Stock Option Agreement, dated as of November 12, 2004, as amended (the "Option Agreement"). Capitalized terms used in this letter agreement and not defined herein shall have the same meanings as are set forth in the Option Agreement. The parties hereby agree that the Merger Agreement is terminated by mutual consent of the parties, effective on the date of this letter agreement. Notwithstanding anything in the Merger Agreement or any related agreement to the contrary, no party shall have any liability or obligation to any other party in respect of the Merger Agreement or any related agreement except in connection with the Option Agreement as set forth herein. The parties hereby agree that clause (ii) of Section 2(b) of the Option Agreement shall be amended to read, in its entirety, "December 29, 2006". Notwithstanding anything to the contrary in the Option Agreement, the anti-dilution provisions of Section 3(b) of the Option Agreement shall not be applicable to the first 5 million shares of Issuer's common stock issued in 2006 (individually or in the aggregate), but the anti- dilution provisions in such Section 3(b) shall be applicable to any other issuances of Issuer's common stock, as provided therein. Empire hereby further confirms that (a) the Option and the Option Agreement remain in full force and effect, (b) they represent valid and binding obligations of Empire, enforceable in accordance with their terms, (c) an Exercise Event has occurred, and (d) Grantee shall be entitled to exercise the Option from and after the date hereof in accordance with the terms of the Option Agreement. The parties hereby agree that the Option Agreement is hereby amended to the extent necessary to give effect to the foregoing. This letter agreement may be executed in counterparts and faxed signatures shall be deemed valid and binding. Very truly yours, CONCORD ASSOCIATES LIMITED PARTNERSHIP By: Convention Hotels, Inc., as general partner By: /s/ LOUIS R. CAPPELLI ------------------------------------- Louis R. Cappelli, President SULLIVAN RESORTS LLC By: Catskill Resort Group, LLC, as managing member By: Cappelli Resorts LLC as managing member By: /s/ LOUIS R. CAPPELLI ----------------------------- Louis R. Cappelli, Managing Member By: Melville-Catskill LLC, as Managing Member By: Reckson Strategic Venture Partners, LLC as managing member By: /s/ SCOTT RECHLER --------------------------------- Scott Rechler, Authorized Signatory Acknowledged and Agreed to as of December 30, 2005 Empire Resorts, Inc. By: __________________________. Name: Title: Very truly yours, CONCORD ASSOCIATES LIMITED PARTNERSHIP By: Convention Hotels, Inc., as general partner By: ------------------------------------- Louis R. Cappelli, President SULLIVAN RESORTS LLC By: Catskill Resort Group, LLC, as managing member By: Cappelli Resorts LLC as managing member By: ----------------------------- Louis R. Cappelli, Managing Member By: Melville-Catskill LLC, as Managing Member By: Reckson Strategic Venture Partners, LLC as managing member By: --------------------------------- Scott Rechler, Authorized Signatory Acknowledged and Agreed to as of December 30, 2005 Empire Resorts, Inc. By: /s/ DAVID P. HANLON ----------------------------- Name: David P. Hanlon Title: President, CEO -----END PRIVACY-ENHANCED MESSAGE-----