<DOCUMENT>
<TYPE>SC 13D
<SEQUENCE>1
<FILENAME>empire_13d.txt
<DESCRIPTION>SCHEDULE 13D
<TEXT>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. ________)*
Empire Resorts, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
292052 10 7
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(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.
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
August 20, 2005
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(Date of Event which Requires Filing of this Statement)
<PAGE>
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
<PAGE>
CUSIP No. 292052 10 7
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1. Name of Reporting Persons: Concord Associates, L.P.
I.R.S. Identification Nos. of above persons (entities only):
13-4008929
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
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3. SEC Use Only
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4. Source of Funds: OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization
New York
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7. Sole Voting Power: 0
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Number of
Shares Bene- 8. Shared Voting Power: 5,188,913 shares (1)
ficially by -------------------------------------------------------------
Owned by Each
Reporting 9. Sole Dispositive Power: 0
Person With -------------------------------------------------------------
10. Shared Dispositive Power: 5,188,913 shares (1)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person:
5,188,913 shares (1)
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions):
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13. Percent of Class Represented by Amount in Row (11): 16.58% (2)
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14. Type of Reporting Person (See Instructions): PN
(1) Includes the option to purchase 5,188,913 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 31,291,913 shares of Common Stock which,
pursuant to Rule 13d-3(d)(1), consists of (i) 26,103,000 shares of
Common Stock outstanding as of August 11, 2005 as reported in Empire
Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended June
30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to
the Option.
3
<PAGE>
CUSIP No. 292052 10 7
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1. Name of Reporting Persons: Convention Hotels, Inc.
I.R.S. Identification Nos. of above persons (entities only):
13-4040188
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
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3. SEC Use Only
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4. Source of Funds: OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization
New York
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7. Sole Voting Power: 0
-------------------------------------------------------------
Number of
Shares Bene- 8. Shared Voting Power: 5,188,913 shares (1)
ficially by -------------------------------------------------------------
Owned by Each
Reporting 9. Sole Dispositive Power: 0
Person With -------------------------------------------------------------
10. Shared Dispositive Power: 5,188,913 shares (1)
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11. Aggregate Amount Beneficially Owned by Each Reporting Person:
5,188,913 shares (1)
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions):
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11): 16.58% (2)
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14. Type of Reporting Person (See Instructions): CO, HC
(1) Includes the option to purchase 5,188,913 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 31,291,913 shares of Common Stock which,
pursuant to Rule 13d-3(d)(1), consists of (i) 26,103,000 shares of
Common Stock outstanding as of August 11, 2005 as reported in Empire
Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended June
30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to
the Option.
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4
<PAGE>
CUSIP No. 292052 10 7
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1. Name of Reporting Persons: Catskill Resort Group LLC
I.R.S. Identification Nos. of above persons (entities only):
13-4109858
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2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) [ ]
(b) [X]
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3. SEC Use Only
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4. Source of Funds: OO
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5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e)
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6. Citizenship or Place of Organization
New York
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7. Sole Voting Power: 0
-------------------------------------------------------------
Number of
Shares Bene- 8. Shared Voting Power: 5,188,913 shares (1)
ficially by -------------------------------------------------------------
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)
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12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions):
--------------------------------------------------------------------------------
13. Percent of Class Represented by Amount in Row (11): 16.58% (2)
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14. Type of Reporting Person (See Instructions): OO, HC
(1) Includes the option to purchase 5,188,913 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 31,291,913 shares of Common Stock which,
pursuant to Rule 13d-3(d)(1), consists of (i) 26,103,000 shares of
Common Stock outstanding as of August 11, 2005 as reported in Empire
Resorts, Inc.'s Quarterly Report on Form 10-Q for the period ended June
30, 2005 and (ii) 5,188,913 shares of Common Stock which are subject to
the Option.
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5
<PAGE>
Item 1. Security and Issuer
This statement on 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 principal executive offices of Empire
are located at Route 17B, P.O. Box 5013, Monticello, New York 12701. As reported
in Empire's Form 10-Q for the quarter ended June 30, 2005, as of August 11, 2005
there were 26,103,000 shares of Common Stock outstanding.
Item 2. Identity and Background
This statement on Schedule 13D is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (i) Concord
Associates, L.P., a New York limited partnership ("Concord Associates"); (ii)
Convention Hotels, Inc., a New York corporation ("Convention Hotels"); and (iii)
Catskill Resort Group LLC, a New York limited liability company ("Catskill
Resort Group"). Such filing persons may be deemed to be a "group" within the
meaning of Rule 13d-5 promulgated under the Securities Exchange Act of 1934, as
amended.
Set forth below is certain information relating to the Reporting
Persons:
(1) Concord Associates, L.P.
Concord Associates is a New York limited partnership. The principal
activity of Concord Associates is to hold ownership interests in real
property. The principal business address of Concord Associates is c/o
Cappelli Enterprises, Inc., 115 Stevens Avenue, Valhalla, NY 10595. The
general partner of Concord Associates is Convention Hotels. The sole
shareholder of Convention Hotels is Catskill Resort Group.
(2) Convention Hotels, Inc.
Convention Hotels is a New York corporation. The principal activity of
Convention Hotels is to hold ownership interests in real property. The
principal business address of Convention Hotels is c/o Cappelli
Enterprises, Inc., 115 Stevens Avenue, Valhalla, NY 10595. The sole
shareholder of Convention Hotels is Catskill Resort Group. The
executive officers of Convention Hotels are: Louis R. Cappelli,
President, and Bruce Berg, Vice President (Mr. Cappelli and Mr. Berg,
together, referred to as the "Convention Hotels Officers").
During the last five years, no Convention Hotels Officer has been
convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) and no Convention Hotels Officer has been a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any Convention Hotels Officer was or
is subject to a judgment, decree or final order enjoining further
violations of, or prohibiting or mandating activities subject to,
federal or state securities laws or finding any violation with respect
to such laws.
(3) Catskill Resort Group LLC
Catskill Resort Group is a New York limited liability company. The
principal activity of Catskill Resort Group is to hold ownership
interests in real property. The principal business address of Catskill
Resort Group is c/o Cappelli Enterprises, Inc., 115 Stevens Avenue,
Valhalla, NY 10595. The managing members of Catskill Resort Group are
Cappelli Resorts, LLC and Meville-Catskill, LLC, each of which holds a
50% membership interest in Catskill Resort Group.
Item 3. Source and Amount of Funds or Other Consideration
No funds have been expended by the Reporting Persons in connection with
the Option (as defined in Item 4). Should Concord Associates choose to exercise
the Option, working capital, borrowed money or other funds of Concord Associates
or one of its affiliates will be used to acquire the shares of Common Stock.
Item 4. Purpose of Transaction
Empire, Empire Resorts Holdings, Inc. ("Newco"), Empire Resorts Sub,
Inc., Concord Associates and Sullivan Resorts, LLC ("Sullivan Resorts") entered
into an Agreement and Plan of Merger and Contribution, dated as of March 3, 2005
(the "Merger Agreement"). The Merger Agreement provides for the acquisition by
Empire from Concord Associates and Sullivan Resorts of certain real estate
assets, including the sites of Concord and Grossinger's resorts, which are
located in the Catskill Mountain region of New York. Prior to the acquisition of
the real estate assets, Empire will be reorganized into a holding company
6
<PAGE>
structure with Newco being the publicly traded holding company. Immediately
thereafter, Empire will acquire the real estate assets in exchange for the
issuance by Newco to Concord Associates and Sullivan Resorts of an aggregate of
18,000,000 common shares of Newco representing in the aggregate approximately
40% of the total number of issued and outstanding common shares of Empire after
the closing, on fully diluted basis. The consummation of the Merger Agreement is
subject to certain terms and conditions and there is no assurance that the
Merger Agreement will be consummated.
In connection with the Merger Agreement, Empire granted Concord
Associates the option to purchase 5,188,913 shares of Common Stock at a price of
$7.50 per share ("Option") pursuant to the terms and provisions of the Stock
Option Agreement, dated November 12, 2004, by and between Empire and Concord
Associates, as amended by Amendment No. 1 to Option Agreement, dated as of March
3, 2005 by and between Empire and Concord Associates ("Option Agreement"). The
Option is exercisable by Concord Associates if the Merger Agreement is
terminated under certain circumstances. One of the occurrences which would make
the Option exercisable is the failure of Empire for any reason to submit the
transactions contemplated by the Merger Agreement to its shareholders for their
approval by August 20, 2005 (other than as a result of delays in the SEC review
process). To the knowledge of the Reporting Persons, Empire has failed to submit
the transactions contemplated by the Merger Agreement to its shareholders for
their approval by August 20, 2005.
In connection with the Merger Agreement, certain shareholders of Empire
holding approximately 40% in the aggregate of its Common Stock covenanted and
agreed pursuant to separate Voting Agreements, dated as of November 12, 2004, by
and among each Stockholder, Concord Associates and Sullivan Resorts, as amended
by separate Amendments No. 1 to Voting Agreement, dated as of March 3, 2005, by
and among each Stockholder, Concord Associates and Sullivan Resorts (the "Voting
Agreements") to (i) vote their shares in favor of the transactions contemplated
in the Merger Agreement at a stockholders meeting convened to vote on the
adoption of the Merger Agreement, and (ii) vote their shares against any
acquisition proposal and any alternative transaction involving the acquisition
by Empire of hotel, gaming, or resort properties in the Catskills at any
applicable stockholders meeting. In addition, such Voting Agreements provide
certain restrictions on the right of each such shareholder to sell or otherwise
dispose of their shares, including any shares over which such shareholder
directly or indirectly (and whether as record owner, trustee or otherwise) holds
voting power.
The Reporting Persons have not made any decision with regard to the
exercise of their right to terminate the Merger Agreement and reserve all rights
with regard to such termination and the exercise of the Option. The Reporting
Persons intend continuously to review their rights and options and will take
such actions in the future as they may deem appropriate in light of the
circumstances existing from time to time, which may include one or more of the
actions specified in paragraphs (a) through (j) of Item 4 of this Schedule.
Other than as set forth in the Merger Agreement, the Option Agreement
and the Voting Agreements, the Reporting Persons have no plans or proposals
which relate to or would result in:
(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 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;
(g) 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;
(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.
7
<PAGE>
Item 5. Interest in Securities of the Issuer
(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 own an aggregate of 16.58% of Empire's Common Stock
(which is calculated based upon a total of 31,291,913 shares of Common
Stock which, pursuant to Rule 13d-3(d)(1), consists of (i) 26,103,000
shares of Common Stock outstanding as of August 11, 2005 as reported in
Empire's Quarterly Report on Form 10-Q for the period ended June 30,
2005 and (ii) 5,188,913 shares of Common Stock which are subject to the
Option.
In connection with the Merger Agreement, certain shareholders of Empire
have entered into Voting Agreements (for a more detailed description of
these agreements see Item 4).
(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. Agreement and Plan of Merger and Contribution, dated as of March 3, 2005, by
and among, Empire Resorts, Inc., Empire Resorts Holdings, Inc., Empire Resorts
Sub, Inc., Concord Associates, L.P. and Sullivan Resorts, LLC (For a more
detailed description of this agreement see Item 4).
2. Stock Option Agreement, dated November 12, 2004, by and between Empire
Resorts, Inc. and Concord Associates, L.P. (For a more detailed description of
this agreement see Item 4).
3. Voting Agreement by and between Concord Associates, L.P. and Stockholder (For
a more detailed description of these agreements see Item 4).
4. Amendment No. 1 to Option Agreement, dated as of March 3, 2005, by and
between Empire Resorts, Inc. and Concord Associates, L.P. (For a more detailed
description of this agreement see Item 4).
5. Amendment No. 1 to Voting Agreement, dated as of March 3, 2005, by and among
Stockholder, Concord Associates, L.P. and Sullivan Resorts, LLC (For a more
detailed description of these agreements see Item 4).
Item 7. Material to Be Filed as Exhibits
Exhibit 1. Agreement and Plan of Merger and Contribution, dated as of March 3,
2005, by and among, Empire Resorts, Inc., Empire Resorts Holdings, Inc., Empire
Resorts Sub, Inc., Concord Associates, L.P. and Sullivan Resorts, LLC,
incorporated by reference to Exhibit 2.1 to Empire's Form 8-K filed with the SEC
on March 8, 2005.
Exhibit 2. Stock Option Agreement, dated November 12, 2004, by and between
Empire Resorts, Inc. and Concord Associates, L.P., incorporated by reference to
Exhibit 10.1 to Empire's Form 8-K filed with the SEC on November 18, 2004.
Exhibit 3. Form of Voting Agreement, dated as November 12, 2004, by and among
Stockholder, Concord Associates, L.P. and Sullivan Resorts, LLC, incorporated by
reference to Exhibit 10.2 to Empire's Form 8-K filed with the SEC on November
18, 2004.
Exhibit 4. Amendment No. 1 to Option Agreement, dated as of March 3, 2005, by
and between Empire Resorts, Inc. and Concord Associates, L.P., incorporated by
reference to Exhibit 10.1 to Empire's Form 8-K filed with the SEC on March 8,
2005.
Exhibit 5. Form of Amendment No. 1 to Voting Agreement, dated as of March 3,
2005, by and among Stockholder, Concord Associates, L.P. and Sullivan Resorts,
LLC, incorporated by reference to Exhibit 10.2 to Empire's Form 8-K filed with
the SEC on March 8, 2005.
Exhibit 6. Joint Filing Agreement Pursuant to Rule 13d-1(k)(1), dated August 29,
2005, by and among Concord Associates, L.P., Convention Hotels, Inc. and
Catskill Resort Group LLC.
8
<PAGE>
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: August 29, 2005
CONCORD ASSOCIATES, L.P.
By: Convention Hotels, Inc., as General Partner
By: /s/ LOUIS R. CAPPELLI
----------------------------------------
Louis R. Cappelli, President
9
<PAGE>
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: August 29, 2005
CONVENTION HOTELS, INC.
By: /s/ LOUIS R. CAPPELLI
---------------------------------
Louis R. Cappelli, President
10
<PAGE>
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: August 29, 2005
CATSKILL RESORT GROUP, LLC
By: Cappelli Resorts, LLC, as Managing Member
By: /s/ LOUIS R. CAPPELLI
------------------------------------------
Louis R. Cappelli, President
11
<PAGE>
JOINT FILING AGREEMENT PURSUANT TO RULE 13d-1(k)(1)
This agreement is made pursuant to Rule 13d-1(k)(1) under the Securities
Exchange Act of 1934, as amended (the "Act") by and among the parties listed
below, each referred to herein as a "Joint Filer." The Joint Filers agree that a
statement of beneficial ownership as required by Section 13(d) of the Act and
the Rules thereunder may be filed on each of their behalf on Schedule 13D or
Schedule 13G, as appropriate, and that said joint filing may thereafter be
amended by further joint filings. The Joint Filers state that they each satisfy
the requirements for making a joint filing under Rule 13d-1.
Dated: August 29, 2005
CONCORD ASSOCIATES, L.P.
By: Convention Hotels, Inc., as General Partner
By: /s/ LOUIS R. CAPPELLI
----------------------------------------
Louis R. Cappelli, President
CONVENTION HOTELS, INC.
By: /s/ LOUIS R. CAPPELLI
------------------------------------------
Louis R. Cappelli, President
CATSKILL RESORT GROUP LLC
By: Cappelli Resorts, LLC, as Managing Member
By: /s/ LOUIS R. CAPPELLI
----------------------------------------
Louis R. Cappelli, President
</TEXT>
</DOCUMENT>