EXECUTION COPY
EMPIRE RESORTS, INC.
ROUTE 17B
MONTICELLO, NEW YORK 12701
November 12, 2004
Concord Associates Limited Partnership
Xxxxxxxx Resorts LLC
000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Re: Catskills Properties
--------------------
Gentlemen:
Recently, Empire Resorts, Inc. ("EMPIRE") and Concord Associates Limited
Partnership (Concord Associates Limited Partnership, together with Xxxxxxxx
Resorts LLC and any other affiliates thereof that own or lease any portion of
the Resort Properties, as hereinafter defined, "TRANSFEROR") have entered into
discussions concerning properties that we each own in the Catskills region of
New York and are seeking to develop into world class resorts under arrangements
with various federally recognized sovereign Indian tribes or nations permitting
each of us to develop and manage one or more fully licensed Class III gaming
enterprises (each a "Gaming Facility"). Empire and Transferor each contemplate
that, prior to embarking on full scale development of any property, we will have
arranged to secure an agreement with at least one such federally recognized
sovereign entity with respect to the development and management of a Gaming
Facility on the property. As a result of the recent discussions between Empire
and Transferor, the parties now contemplate that we would be able to pursue our
development efforts to achieve the necessary legal approvals for a Gaming
Facility on each of our respective properties more effectively on a joint basis.
The purpose of this Agreement is to set forth the terms that we have agreed upon
relating to the conveyance of certain real estate located in the County of
Xxxxxxxx, State of New York, hereinafter referred to as the "Property", by
Transferor to Empire. Contemporaneously with the execution and delivery of this
Agreement, the parties have entered into an Option Agreement dated, as of the
date hereof (the "Option Agreement").
1. CONVEYANCE OF RESORT PROPERTIES TO EMPIRE.
(a) Subject to the conditions of closing set forth in this Agreement,
Transferor will convey and Empire (or a subsidiary) will obtain title to the
following properties (the "Resort Properties") located in Xxxxxxxx County, New
York:
(i) Xxxxxxxxxx'x Resort Hotel and Golf Course, consisting of an
approximately 600 acre parcel of land, various hotel buildings, golf course
and related facilities, as shown on EXHIBIT A-1 attached hereto.
(ii) The Concord Hotel, consisting of an approximately 163 acre
parcel of land, hotel buildings, the Challenger golf course and related
facilities, as shown on EXHIBIT A-2 attached hereto.
(iii) The Concord Resort and Golf Club, consisting of the
International golf course, the ground lease for the Monster golf course, a
club house, and lodging and support facilities, as shown on EXHIBIT A-3
attached hereto.
(b) Empire will receive valid leasehold title to the Monster golf
course and valid fee title to the balance of the Resort Properties, free and
clear of all liens and encumbrances other than agreed upon permitted
encumbrances ("Permitted Encumbrances"), by bargain and sale deed without
covenants to the fee estates and an assignment of lease without covenants with
respect to the leasehold. Permitted Encumbrances shall include mortgages and
other obligations of Transferor or its affiliates (consisting of obligations
arising from (x) Transferor's original purchase of the Concord property, and (y)
the exercise by Empire (as provided in Section 3 hereof) of a lessee purchase
option under the ground lease for the Monster golf course) in an aggregate
amount not to exceed $30 Million, liens for taxes not yet due and payable, any
utility easements, rights of way, and other encumbrances that do not materially
impair the development, use or value of the property, and the reciprocal
easement agreements referred to below.
2. RELATED ASSETS AND CONTRACTS. Together with the Resort Properties,
Empire will receive all right, title and interest of Transferor in and to the
trademarks and service marks associated with the Resort Properties (provided
that Transferor shall retain the right to use or license, without additional
consideration, (x) the name "Concord" in connection with any residential
development projects at Transferor's remaining property, and (y) the name
"Concord" or "Xxxxxxxxxx'x" for reasonable uses unrelated to hotel, resort
and/or gaming operations of Empire), and the rights to all revenues and receipts
of Transferor generated by the Resort Properties after the Closing. Unless
Empire shall have assumed or received an assignment with respect to any such
contracts or licenses, all contracts of Transferor related to the operation,
maintenance or other use of the Resort Properties will be terminated. At the
Closing, Empire will offer employment to the existing operations and maintenance
employees at the Concord and Xxxxxxxxxx'x on current terms, provided that such
terms are customary and commercially reasonable. At Closing, the parties will
enter into (a) a license agreement providing (i) for the non-exclusive use of
the Concord Resort and Golf Club by residents and guests of the residential
properties intended to be developed by Transferor or its affiliates at the
balance of the Concord site (the "Retained Property"); it being agreed that from
and after the opening of a hotel by Empire on the Concord site, Empire's use of
the Concord Resort and Golf Club shall be limited to use by guests of its
casinos and hotels, (ii) for the sharing of capital, operating and maintenance
costs for the Concord Resort and Golf Club by Empire and Transferor in
proportion to the annual number of rounds of golf attributable to hotel/casino
guests and to the residents of the Retained Property and (iii) other customary
and commercially reasonable terms and conditions, and (b) such other use and/or
reciprocal easement agreements ("REAs") with respect to the Resort Properties
and the Retained Property providing for reasonable ingress and egress to and
from such properties, reasonable shared use of utilities servicing such
properties, the equitable sharing of certain costs and expenses applicable to
such properties, and other commercially reasonable and customary terms and
conditions provided that the same may not materially impair the development, use
or value of the Resort Properties or the Retained Property.
-2-
3. RETAINED PROPERTY.
(a) The parties confirm that the Retained Property will not be
conveyed by Transferor to Empire and that Transferor shall have the exclusive
right to develop, operate, maintain, lease or transfer the Retained Property or
any portion thereof. In addition, the parties confirm that (x) the Monster and
International golf courses themselves, plus the property within a 100 foot
setback line from such golf courses (and such additional land which may be
required by applicable law), are intended to be (and will be) conveyed by
Transferor to Empire at the Closing, and (y) certain unsubdivided property
outside of such setback area (the "Additional Property") will be conveyed by
Transferor to Empire at Closing, but such Additional Property is intended by the
parties to be retained and used by Transferor in connection with the Retained
Property. Subsequent to the Closing, Empire will, (i) at Empire's cost as
provided above, exercise the lessee's purchase option under the ground lease for
the Monster golf course, and (ii) at Transferor's cost, cause the Additional
Property to be subdivided and conveyed back to Transferor (for no additional
consideration), which conveyance by Empire shall be free and clear of all liens
and encumbrances other than those applicable to the Additional Property at the
time of its conveyance to Empire and those imposed in connection with the
subdivision and which may arise by reason of circumstances or events occurring
prior to the transfer back of the Additional Property by Empire to Transferor.
Empire will promptly and diligently take all commercially reasonable actions
necessary (or that may be reasonably requested by Transferor) in connection with
such subdivision and transfer, provided that if such subdivision shall not be
completed within a reasonable time period after the Closing, then Empire and
Transferor shall promptly enter into commercially reasonable and customary
agreements and arrangements (whether through a ground lease or otherwise), at no
profit or loss to Empire, to permit Transferor to develop and/or use the
Additional Property in the same manner as if Transferor owned fee title to such
Additional Property. The Additional Property shall in no event include the
clubhouse and maintenance facilities for the golf courses.
(b) Notwithstanding anything to the contrary herein, Empire shall have
the option, upon written notice given to Transferor given not later than sixty
(60) days prior to the Closing, to elect not to purchase the Concord Resort and
Golf Club at Closing in connection with this transaction, and if Empire
exercises such option in a timely manner, (i) the Concord Resort and Golf Club
will not be conveyed to Empire at Closing but will be retained by Transferor,
(ii) the term "Resort Properties", as used herein, will not include the Concord
Resort and Golf Club, (iii) the debt and other obligations of Transferor to be
assumed by Empire in connection with this transaction will be reduced to
approximately $17.5 million (after deduction of the approximately $7.5 million
lessee purchase option price under the Monster golf course ground lease and
approximately $5 million of debt encumbering the golf courses), (iv) the parties
will enter into a mutually acceptable license agreement providing for the
non-exclusive use of the Concord Resort and Golf Club by guests of Empire's
hotels and casinos, and providing for the sharing of capital, operating and
maintenance costs for the Concord Resort and Golf Club by Empire and Transferor
in proportion to the annual number of rounds of golf attributable to
hotel/casino guests and residents of the Retained Property, and (v) the
provisions of Section 3(a) of this Agreement regarding the subdivision and
reconveyance of the Additional Property shall be terminated and shall be of no
force or effect.
-3-
4. PURCHASE PRICE. As consideration for the transfer of the Resort
Properties, Empire will issue and deliver to Transferor at Closing 18,000,000
shares of its common stock (the "Purchase Shares"), subject to registration and
governance rights as are provided below and subject to anti-dilution for events
occurring prior to or at the Closing, with mutually agreeable exceptions
including the conversion of Empire's existing convertible debt and existing
preferred stock pursuant to their terms and the issuance by Empire of stock for
cash or in exchange for asset contributions or services (including the issuance
of stock in connection with the exercise of employee stock options) in the
course of Empire's gaming and hospitality business, or to pay required dividends
(in the form of common stock) on Empire's existing preferred stock
(collectively, the "Excluded Shares"). The Purchase Shares will be issued to
Transferor at Closing free and clear of all liens (exclusive of any restrictions
imposed or referred to herein or by applicable federal or state licensing and
securities laws).
5. BOARD OF DIRECTORS AND SHAREHOLDER/GOVERNANCE RIGHTS. The Additional
Agreements shall further provide for the following:
(a) TRANSFEROR BOARD REPRESENTATION. Subject to any applicable
shareholder approval, the initial Board of Directors to be in office at the
Closing shall be comprised of eleven (11) members, two (2) of whom shall be
designees of Transferor (such designees or such other individuals designated
from time to time by Transferor to take their place or places, the "Transferor
Designees"). Empire and Transferor agree that the Transferor Designees shall be
members of the class of directors who will not be subject to reelection until
the annual meeting to be held in 2008. Of the remaining nine (9) members of the
initial Board of Directors at least seven (7) members of the Board of Directors
will be independent. Empire and Transferor agree that the seven initial (7)
independent members shall be comprised as follows: (1) In addition to
Transferor's right to designate the Transferor Designees, Transferor will be
entitled to designate three (3) of the seven (7) independent members of the
Board of Directors; (2) Empire will be entitled to designate three (3)
independent directors selected from the existing independent directors on the
Board; and (3) the six (6) independent directors selected pursuant to (1) and
(2) above will together select the seventh independent director. Committee
representation will be proportionate to representation on the Board (except that
committees that are required to be comprised of independent directors will have
comparable proportionate independent representatives). To the extent permitted
by applicable NASDAQ rules and by applicable law, for a period of at least three
years after the Closing, at least one of the Transferor Designees shall be
entitled to serve as a member of each committee of the Board of Directors.
Empire will use its reasonable commercial efforts so that until at least the
annual meeting held in 2008, at least two Transferor Designees will be members
of the Board of Directors. Empire agrees that each of Xxxxx Xxxxxxx and Xxxxx
Xxxxxxxx are acceptable as Transferor Designees (without limiting Transferor's
rights to make replacements), provided that Xxxxx Xxxxxxx and Xxxxx Xxxxxxxx are
able to comply with the suitability requirements of applicable state, federal
and tribal gaming regulators with jurisdiction over Empire's operations, and if
Xxxxx Xxxxxxx or Xxxxx Xxxxxxxx do not so comply, Transferor shall be entitled
to name replacement designees who meet such requirements. All Board members
shall be subject to suitability requirements of applicable state, federal and
tribal gaming regulators. Empire agrees to use all commercially reasonable
efforts to effect the foregoing, including seeking and obtaining any required
shareholder approvals of the foregoing at the Stockholders Meeting (or any
adjournment(s) or postponement(s) thereof), or any other meeting of shareholders
of Empire at which the matters contemplated by this Agreement or this Agreement
-4-
are to be presented to a vote of shareholders of Empire (or any adjournment(s)
or postponement(s) thereof). Xxxxxx also agrees that in connection with seeking
and obtaining any required shareholder approvals of the foregoing it shall
undertake the same efforts and comply with the same obligations with respect to
seeking and obtaining such approvals as those set forth in Section 6 of this
Agreement. Notwithstanding anything in this Agreement to the contrary, in the
event that any such required shareholder approval is not obtained for any
reason, the parties agree that such failure shall be treated for all purposes
(including, for purposes of determining the exercisability of the Option and the
termination of this Agreement) as a failure to satisfy the shareholder approval
condition to Closing set forth in Section 12(a)(1) and 13(g) of this Agreement.
(b) REGISTRATION RIGHTS/PIGGYBACK RIGHTS. Transferor will be entitled
to unlimited demand registration rights (although only the first three (3) will
be at the Empire's expense). The underwriter will be selected by Transferor but
must be reasonably acceptable to Empire. Transferor will be entitled to
piggyback rights on equity offerings by Empire (but in the case of Transferor's
exercise of piggyback rights, Empire will have priority in the event the
underwriter requires cutbacks.)
6. APPROVAL BY BOARD AND SHAREHOLDERS OF EMPIRE.
(a) Empire will take, in accordance with applicable law and its
certificate of incorporation and by-laws, all action necessary to convene a
meeting of holders of shares of its capital stock (the "Stockholders Meeting")
as promptly as possible to consider and vote upon the adoption of this
Agreement. Subject to applicable law, the Board of Directors of Empire shall
recommend the approval and adoption of the transactions contemplated by this
Agreement, such recommendation shall be included in the proxy statement
circulated in connection with the Stockholders Meeting, and the Board of
Directors of Empire shall take all lawful action to solicit the adoption thereof
by the holders of shares of its capital stock. In the event that subsequent to
the date of this Agreement, the Board of Directors of Empire reasonably
determines in good faith after consultation with outside counsel that its
fiduciary duties under applicable law require it to withdraw, modify or qualify
its recommendation in a manner adverse to Transferor, the Board of Directors of
Empire may so withdraw, modify or qualify its recommendation; however, subject
to applicable law, unless this Agreement is theretofore terminated, Empire shall
nevertheless submit this Agreement to the holders of the shares of its capital
stock for adoption at the Stockholders Meeting.
(b) By their execution of certain letter agreements dated as of the
date hereof, certain of Empire's shareholders holding approximately 40% in the
aggregate of Empire's common stock have covenanted and agreed to (i) vote their
shares in favor of this transaction at the Stockholders Meeting, 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 letter
agreements provide certain restrictions on the right of each such shareholder to
sell or otherwise dispose of their shares. In this Section 6(b), references to a
shareholder's "shares" shall be deemed to include any shares over which such
shareholder directly or indirectly (and whether as record owner, trustee, or
otherwise) holds voting power.
-5-
7. THE CLOSING.
(a) The closing of the transfer of the Resort Properties and the
issuance of the Purchase Shares (the "Closing") will take place
contemporaneously with the satisfaction of the last remaining closing condition
set forth in Section 12 (and the date of the Closing shall be hereinafter
referred to as the "Closing Date"), provided that if all such closing conditions
shall not have been satisfied by August 31, 2005 (which outside date shall be
subject to extension pursuant to Section 13 hereof), then the parties shall have
such rights to terminate this Agreement as are set forth in Section 13 hereof.
The Closing shall be held at the principal offices of Empire in Monticello, New
York or such other place as shall be mutually agreed upon by the parties. The
parties shall prorate all costs, expenses and fees (as customarily apportioned
in real estate closings) in connection with the Closing and the transfer of the
Resort Properties as of the day immediately preceding the Closing Date, on a
customary and commercially reasonable basis.
(b) Each of the parties will proceed in good faith to enter into, by
December 23, 2004, the additional agreements referenced in this Agreement,
including a non-exclusive license agreement with respect to the Concord Resort
and Golf Club, the REAs and a Shareholders Agreement between Empire and
Transferor (the "Additional Agreements"), provided that (i) this Agreement is
fully binding on the parties as of the date hereof and failure to enter into the
Additional Agreements shall in no way affect or impair the binding nature of
this Agreement (as provided in Section 19 hereof), and (y) in the event of any
dispute over the terms and conditions of any Additional Agreement, such dispute
shall be resolved by binding arbitration pursuant to Section 15 hereof. The
parties shall enter into an Additional Agreement setting forth customary and
commercially reasonable representations, warranties and interim covenants. The
parties hereby acknowledge and confirm that all material terms and conditions of
the Additional Agreements are described in this Agreement.
(c) Empire agrees to cooperate with Transferor and to take all
commercially reasonable steps necessary to structure the transaction
contemplated by this Agreement as a transaction in which no gain or loss will be
recognized by Transferor for income tax purposes or otherwise to reduce the tax
effect of the transaction on Transferor and its affiliates (a "Tax Free
Exchange"), provided that Transferor shall be responsible for any additional
taxes payable by Empire as a result of the conveyance of the Resort Property in
a Tax Free Exchange, but only to the extent that such taxes are in excess of the
taxes that would otherwise have been payable by Empire had the contemplated
transaction been a direct transfer of the Resort Property to Empire. The term
"taxes", as used in the preceding sentence, shall include or be deemed to
include any application of net operating losses of Empire in respect of tax
liabilities. The manner in which any Tax Free Exchange is structured shall be
mutually acceptable to tax counsel for both Empire and Transferor (in the
exercise of such tax counsel's reasonable discretion).
8. CERTAIN PRE-CLOSING COVENANTS.
(a) Empire covenants that during the term of this Agreement it shall,
and it shall cause its subsidiaries to, operate in the ordinary course of
business consistent with past practice. Without limiting the foregoing, Empire
shall not, and shall not permit any of its subsidiaries to, directly or
indirectly change its or their respective capital structure (except that Empire
-6-
may issue capital stock that complies with the definition of Excluded Shares set
forth in Section 4 herein), pay or declare any dividends (except as dividends on
Empire's preferred stock as provided above) or distributions or repurchase or
otherwise acquire any of their capital stock or commit to do any of the
foregoing. Transferor agrees that, during the term of this Agreement, it shall,
and shall cause its subsidiaries to, operate the Resort Properties in the
ordinary course of business consistent with past practices.
(b) Subject to the terms and conditions provided herein and to
applicable laws, each of the parties shall use its commercially reasonable
efforts to take, or cause to be taken, all actions, and do, or cause to be done,
and assist and cooperate with the other party in doing, in the most expeditious
manner practicable, all things necessary, proper or advisable to ensure that the
conditions set forth in Section 12 hereof are satisfied and to consummate the
transactions contemplated hereby. Without limiting the generality of the
foregoing, each of Empire and Transferor shall: (i) use their commercially
reasonable efforts to cooperate with one another in (A) timely making any
filings and notifications that are required to be made under applicable laws in
connection with gaming approvals and any other consents, licenses, approvals,
permits, waivers, orders or authorizations that are required to be obtained
under applicable laws from governmental entities or other persons in connection
with the consummation of the transactions contemplated by this Agreement, and
(B) as promptly as practicable, responding to any request for information from
such governmental entities or such other persons; (ii) use its commercially
reasonable efforts to avoid the entry of, or to have vacated, lifted, reversed,
overturned or terminated, any order, judgment, injunction or decree (whether
temporary, preliminary or permanent) or any other judicial, administrative or
legislative action or proceeding that would restrain, prevent or delay the
closing of the transactions contemplated by this Agreement, including, without
limitation, defending through litigation on the merits any claim asserted in any
court by any party; and (iii) use its commercially reasonable efforts to take
any steps necessary to avoid or eliminate any impediment under any applicable
law that may be asserted by any governmental entity or private party with
respect to the transactions contemplated by the Agreement so as to enable the
Closing to occur as soon as reasonably practicable after the date hereof.
(c) Transferor agrees to use all commercially reasonable efforts to
obtain the approval to this transaction of the Bankruptcy Court having
jurisdiction over the bankruptcy proceeding involving Frontline Capital Corp.
("Frontline"), which approval is a condition to Transferor's obligation to close
hereunder. In furtherance of the foregoing, Transferor and its members covenant
to cause Frontline to (x) promptly petition the Bankruptcy Court for such
approval, and (y) recommend that the Bankruptcy Court approve this transaction.
Notwithstanding the foregoing, in the event that the Bankruptcy Court
disapproves this transaction, then Transferor, upon written notice to Empire
given within ten (10) days after such disapproval, shall have the right to
terminate this Agreement, whereupon (i) this Agreement shall terminate and
neither party shall have any further rights or obligations hereunder, and (ii)
the Option (as defined in the Option Agreement) shall not be exercisable
thereafter.
9. GAMING FACILITIES. It is the preference of the parties that, subsequent
to the Closing, (a) any Gaming Facility to be developed and operated by Empire
in conjunction with the Seneca Cayuga Nation be located at the Concord, and (b)
any Gaming Facility to be developed and operated by Empire in conjunction with
-7-
the Cayuga Nation be located at the Monticello Raceway.
10. RESTRICTIONS REGARDING CERTAIN OTHER TRANSACTIONS.
(a) Empire agrees that neither it nor any of its subsidiaries nor any
of the officers and directors of it or its subsidiaries shall, and that it shall
cause its and its subsidiaries' employees, agents and representatives (including
any investment banker, attorney or accountant ("Representatives") retained by it
or any of its subsidiaries) not to, directly or indirectly, initiate or solicit
any inquiries or the making of any proposal or offer with respect to (i) a
merger, reorganization, share exchange, consolidation or similar transaction
involving Empire or any of its subsidiaries, (ii) any purchase of an equity
interest representing an amount equal to or greater than a 15% voting or
economic interest in Empire and its subsidiaries taken as a whole or (iii) any
purchase of assets, securities or ownership interests representing an amount
equal to or greater than 15% of the consolidated assets of Empire and its
subsidiaries taken as a whole (any such proposal or offer being hereinafter
referred to as an "Acquisition Proposal"). Empire further agrees that neither it
nor any of its subsidiaries nor any of the officers and directors of it or its
subsidiaries shall, and that it shall cause its and its subsidiaries' employees,
agents and Representatives not to, directly or indirectly, engage in any
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any person or entity relating to an Acquisition
Proposal; provided, however, that the foregoing shall not prevent Empire or its
Board of Directors from (x) complying with its disclosure obligations under
Sections 14d-9 and 14e-2 of the Securities Exchange Act of 1934 with regard to
an unsolicited Acquisition Proposal; provided, however, that if such disclosure
has the effect of withdrawing, modifying or qualifying the recommendation of its
Board of Directors in a manner adverse to Transferor or the approval of the
transactions contemplated by this Agreement by the Board of Directors of Empire,
Transferor shall have the right to terminate this Agreement, after which
termination the Option Agreement shall remain in full force and effect and the
Grantee under the Option Agreement shall thereafter have the right to exercise
the Option; and (y) at any time prior to, but not after, the time the
transactions contemplated by this Agreement are adopted by holders of shares of
capital stock of Empire, (A) providing information in response to a request
therefore by a person or entity who has made an unsolicited bona fide written
Acquisition Proposal if the Board of Directors of Empire receives from the
person or entity so requesting such information an executed confidentiality
agreement on customary terms; or (B) engaging in any negotiations or discussions
with any person or entity who has made an unsolicited bona fide written
Acquisition Proposal if the Board of Directors of Empire receives from such
person or entity an executed confidentiality agreement on customary terms; if
and only to the extent that, (1) in each such case referred to in clause (A) or
(B) above, the Board of Directors of Empire reasonably determines in good faith
after consultation with outside legal counsel that such action is necessary in
order for its directors to comply with their respective fiduciary duties under
applicable law, (2) in each case referred to in clause (A) or (B) above, the
Board of Directors of Empire reasonably determines in good faith (after
consultation with its financial advisor and outside counsel) that such
Acquisition Proposal, if accepted, is reasonably likely to be consummated,
taking into account all legal, financial and regulatory aspects of the proposal,
the likelihood of obtaining financing, and the person or entity making the
proposal, and if consummated, would result in a transaction more favorable to
Empire's stockholders from a financial point of view than the transaction
contemplated by this Agreement taking into account any change in any proposal
-8-
proposed by Transferor and (3) in the case of clause (A) and (B), Transferor
shall have had written notice of Empire's intention to take the action referred
to in clause (A) or (B) at least five business days prior to the taking of such
action by Empire; provided, that any more favorable Acquisition Proposal
referred to in clause (A) or (B) above must involve 50% rather than the 15% used
in the definition of Acquisition Proposal (any such more favorable Acquisition
Proposal is referred to in this Agreement as a "Superior Proposal"). Empire
agrees that it will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any person or entity conducted
heretofore with respect to any Acquisition Proposal. Xxxxxx agrees that it will
take the necessary steps to promptly inform the individuals or entities referred
to in the first sentence of this Section of the obligations undertaken in this
Section. Empire agrees that it will notify Transferor promptly, but in any event
within 48 hours if any such inquiries, proposals or offers are received by, any
such information is requested from, or any such discussions or negotiations are
sought to be initiated or continued with, it or any of its Representatives
indicating, in connection with such notice, the name of such person or entity
and the material terms and conditions of any proposals or offers and thereafter
shall keep Transferor informed on a current basis, and, in any event, within 48
hours of any changes in the status and terms of any such proposals or offers,
including whether any such proposal has been withdrawn or rejected. Empire also
agrees to provide any information to Transferor that it is providing to another
person or entity at substantially the same time it provides it to such other
person or entity and that it will promptly request each person or entity that
has heretofore executed a confidentiality agreement in connection with its
consideration of a transaction with Empire to return all confidential
information furnished prior to the execution hereof to or for the benefit of
such person or entity by or on behalf of it or any of its subsidiaries.
(b) During the term of this Agreement, (i) Empire shall work
exclusively with Transferor (and Indian tribes) in connection with any
transaction involving the direct or indirect acquisition by Empire of hotel,
gaming or resort properties in the Catskills ("Catskills Acquisition"), and (ii)
Empire shall not solicit, contact, facilitate or engage in discussions or
negotiations with any third party (other than Transferor and Indian tribes) with
respect to any Catskills Acquisition.
(c) During the term of this Agreement, (i) Transferor shall work
exclusively with Empire in connection with any transaction involving the direct
or indirect transfer by Transferor of hotel, gaming or resort properties in the
Catskills ("Catskills Transfer"), and (ii) Transferor shall not solicit,
contact, facilitate or engage in discussions or negotiations with any third
party (other than Empire) with respect to any Catskills Transfer.
(d) Transferor agrees that neither Transferor, nor any of its
subsidiaries and affiliates, shall, for a period of twenty (20) years after the
Closing, (i) build, own or operate a Gaming Facility located on the Retained
Property, or (ii) build, own or operate a hotel located on the Retained Property
that is a competitor of a hotel developed on the Concord Property, provided that
Transferor or its subsidiaries or affiliates may build, own or operate a
boutique luxury hotel on the Retained Property (the parties hereby agreeing that
a boutique luxury hotel will be deemed not to be a competitor of a hotel
developed on the Concord Property). Other than as set forth in this Agreement,
Transferor's actions with respect to the Retained Property shall not be limited
or restricted pursuant to this Agreement.
-9-
11. ACCESS FOR DUE DILIGENCE. In connection with each party's due diligence
review and otherwise during the term of this Agreement, each party will give the
other party (and its consultants and representatives) reasonable access to its
books, records, contracts, agreements, financial information, documents,
personnel, and other relevant materials and information, subject to the
Confidentiality Agreement executed by the parties contemporaneously herewith,
and provided that any on-site inspections or testing shall have obtained the
approval of the party owning the applicable property (which approval shall not
be unreasonably withheld or delayed)
12. CLOSING CONDITIONS.
(a) Empire's obligation to close the transactions contemplated hereby,
including the issuance of the Purchase Shares and delivery thereof to
Transferor, is subject to the following conditions having been met as of the
Closing Date, except to the extent that the same may have been waived in writing
by Empire:
(1) The conveyance of the Resort Properties to Empire and the
issuance and delivery of the shares to be issued by Empire as consideration
therefore shall have been approved by the shareholders of Empire in
accordance with all applicable federal and state laws;
(2) Each of the representations and warranties made by Transferor
herein and in the Additional Agreements shall be true and correct in all
material respects on the date made and as of the date of Closing as if made
again on and as of the date of the Closing, except for such failures as
would not have a material adverse effect;
(3) The Resort Properties shall be conveyed to Empire and shall
be free and clear of any and all liens and encumbrances other than
Permitted Encumbrances;
(4) No decision, order or similar ruling shall have been issued
(and remain in effect) restraining or enjoining the transactions
contemplated hereby;
(5) The first to occur of either (1) (x) the execution of a
definitive binding agreement between the Seneca Cayuga Nation and the State
of New York settling all outstanding land claims in the State of New York
(which agreement has all requisite United States approvals (either from
Congress and/or the Department of the Interior)), (y) the execution of a
binding Compact between the Seneca Cayuga Nation and the governor of New
York, which Compact has been approved by the Department of the Interior of
the United States (and which does not require further legislative approval
by the legislature of the State of New York) and (z) all requisite United
States approvals (either from Congress and/or the Department of Interior)
to take land into trust for the benefit of the Seneca Cayuga Nation (and
the consummation of the transfer to such trust) for the purpose of
operating a Class III Gaming Facility, which land into trust would be from
either the Monticello Property or the Concord Property, and any other
federal approvals required to own or operate a Class III Gaming Facility,
with all such agreements and approvals described in the preceding clauses
(x), (y), and (z) being in full force and effect (collectively (x), (y) and
(z), the "Requisite Seneca Cayuga Approvals"); and (2) (a) the execution of
a definitive binding agreement between the Cayuga Nation and the State of
-10-
New York settling all outstanding land claims in the State of New York
(which agreement has all requisite United States approvals (either from
Congress and/or the Department of the Interior)), (b) the execution of a
binding Compact between the Cayuga Nation and the governor of New York,
which Compact has been approved by the Department of the Interior of the
United States (and which does not require further legislative approval by
the legislature of the State of New York) and (c) all requisite United
States approvals (either from Congress and/or the Department of Interior)
to take land into trust for the benefit of the Cayuga Nation (and the
consummation of the transfer to such trust) for the purpose of operating a
Class III Gaming Facility, which land into trust would be from either the
Monticello Property or the Concord Property and any other federal approvals
required to own or operate a Class III Gaming Facility, with all such
agreements and approvals described in the preceding clauses (a), (b), and
(c) being in full force and effect (collectively (a), (b) and (c), the
"Requisite Cayuga Approvals", and together with the Requisite Seneca Cayuga
Approvals, the "Requisite Approvals");
(6) Any internal, third party or court approvals or consents
required with respect to Empire shall have been obtained (and Empire
represents that, to the best of its knowledge, such required approvals or
consents are set forth on Schedule 1 hereto, provided that Empire shall
have the right, prior to November 19, 2004, to deliver to Transferor an
amended Schedule 1, setting forth any additional required consents and
approvals);
(7) There shall have been no material adverse change to (x) the
properties, assets, business, prospects, or financial or other condition of
the Resort Properties (or Transferor to the extent relevant to the
transactions contemplated, including obtaining gaming licenses), or (y) the
ability of Transferor to consummate the transactions described herein, from
the date of completion by Empire of its due diligence review (referred to
in clause (8) below) through the Closing Date, which determination shall be
based upon (in the case of clause (x) above) the purposes for which the
parties intend to develop, operate, use and maintain the Resort Properties
after the Closing (and not the current use or operation of the Resort
Properties); and
(8) Empire shall have (x) completed a due diligence review with
respect to the Resort Properties and Transferor, which due diligence must
be completed prior to December 14, 2004 (subject to adequate access to
documents and information having been provided by Transferor), and (y) in
performing such due diligence review, Empire shall not have found any
information (whether or not arising under applicable law) that materially
and adversely affects (i) the utility or value of the Resort Properties,
which determination shall be based upon the purposes for which the parties
intend that the Resort Properties be developed, operated, used and
maintained after the Closing (and not the current utility or value of the
Resort Properties), or (ii) the ability of Transferor to consummate the
transactions contemplated hereby (including in accordance with applicable
law).
(9) Transferor shall have performed all of its obligations and
covenants under this Agreement, the failure of which to be performed shall
have a material adverse effect on the ability of the parties to consummate
-11-
the transactions contemplated hereby.
(b) Transferor's obligation to close the transactions contemplated
hereby, including the transfer of the Resort Properties to Empire, is subject to
the following conditions having been met as of the Closing Date, except to the
extent that the same have been waived in writing by Transferor:
(1) The Purchase Shares shall be issued to Transferor and shall
be free and clear of all liens and encumbrances;
(2) Each of the representations and warranties made by Empire
herein and in the Additional Agreements shall be true and correct in all
material respects on the date made and as of the date of Closing as if made
again on and as of the date of the Closing, except for such failures as
would not have a material adverse effect;
(3) No decision, order or similar ruling shall have been issued
(and remain in effect) restraining or enjoining the transactions
contemplated hereby;
(4) There shall have been no material adverse change to (x) the
properties, assets, business, prospects, or financial or other condition of
Empire, or (y) the ability of Empire to consummate the transactions
described herein, from the date of completion by Transferor of its due
diligence review (referred to in clause (7) below) through the Closing
Date, which determination shall be based upon (in the case of clause (x)
above) the hospitality and gaming business intended to be conducted by
Empire at the Resort Properties after receipt of the Requisite Approvals
(and not the current properties, assets, business, prospects, or financial
or other condition of Empire);
(5) The Requisite Seneca Cayuga Approvals or the Requisite Cayuga
Approvals shall have been obtained and shall remain in full force and
effect;
(6) Any internal, third party or court approvals or consents
required with respect to Transferor shall have been obtained (and
Transferor represents that, to the best of its knowledge, such approvals or
consents are set forth on Schedule 2 hereto, provided that Transferor shall
have the right, prior to November 19, 2004, to deliver to Empire an amended
Schedule 2, setting forth any additional required consents and approvals);
and
(7) Transferor shall have (x) completed a due diligence review
with respect to Empire, which due diligence review must be completed prior
to December 14, 2004 (subject to adequate access to documents and
information having been provided by Empire), and (y) in performing such due
diligence review, Transferor shall not have found any information (whether
or not disclosed in Empire's public filings or arising under applicable
law) that materially and adversely affects (i) the properties, assets,
business, prospects, or financial or other condition of Empire, or (ii) the
ability of Empire to consummate the transactions described herein
(including in accordance with applicable law) and the ability of Transferor
to obtain necessary governmental approvals to consummate the issuance of
the Purchase Shares to Transferor, which determination shall be based upon
-12-
(in the case of clause (i) above) the hospitality and gaming business
intended to be conducted by Empire at the Resort Properties after receipt
of the Requisite Approvals (and not the current properties, assets,
business, prospects, or financial or other condition of Empire).
(8) Empire shall have performed all of its obligations and
covenants under this Agreement and the Empire Shareholders (as hereinafter
defined) shall have performed all of their obligations under the Empire
Shareholders Agreement (as hereinafter defined), the failure of which to be
performed shall have a material adverse effect on the ability of the
parties to consummate the transactions contemplated hereby.
13. FAILURE OF CONDITIONS; CERTAIN TERMINATION RIGHTS.
(a) Subject to this Section 13, in the event that the conditions to
either party's obligation to close hereunder shall not have been satisfied by
August 31, 2005 (for reasons other than a breach or default under this Agreement
by such party), then such party may elect to terminate this Agreement by written
notice to the other party given on or after September 1, 2005 but not later than
September 20, 2005, and if such notice is timely delivered then this Agreement
shall terminate and be of no further force or effect, and neither party shall
have any further rights or obligations hereunder.
(b) In the event that this Agreement shall terminate in accordance
with its terms, then the Option Agreement shall remain in full force and effect
in accordance with its terms and shall continue to be fully binding on the
parties thereto, and the Option may thereafter be exercised by the Grantee under
the Option Agreement. Notwithstanding the foregoing, the Option shall not be
exercisable by the Grantee under the Option Agreement following the termination
of this Agreement (i) by Empire pursuant to Section 13(a) due to the failure of
the closing conditions set forth in Sections 12(a)(2), 12(a)(3), 12(a)(4),
12(a)(5), 12(a)(7), 12(a)(8) or 12(a)(9) to be satisfied; (ii) by Transferor
pursuant to Section 13(a) due to the failure of the closing conditions set forth
in Section 12(b)(3), 12(b)(4), 12(b)(5), 12(b)(6) or 12(b)(7) to be satisfied,
or (iii) by Empire pursuant to Section 14(b) following a material default
hereunder by Transferor.
(c) In the event Empire shall terminate this Agreement in accordance
with Section 13(a) due to the failure of the condition set forth in Section
12(a)(6) to be satisfied, Empire shall not solicit, contact, facilitate or
engage in discussions or negotiations with any third party (other than
Transferor and Indian tribes) with respect to any Catskills Acquisition for a
period of eighteen (18) months following such termination.
(d) Notwithstanding anything to the contrary in Section 13(a) hereof,
in the event that Transferor shall terminate this Agreement pursuant to Section
12(b)(6) (other than due to the failure to obtain Bankruptcy Court approval of
this transaction as described in Section 8(c) hereof), then Transferor shall not
solicit, contact, facilitate or engage in discussions or negotiations with any
third party (other than Empire) with respect to any Catskills Transfer for a
period of eighteen (18) months following such termination.
-13-
(e) In the event that one or more closing conditions shall not have
been satisfied as of August 31, 2005, but such closing conditions are reasonably
capable of being satisfied within sixty (60) days thereafter, then at the
election of either party, such August 31, 2005 date shall be extended to a date
not later than October 31, 2005, and each party (or the applicable party) shall
use its commercially reasonable efforts to satisfy such closing conditions prior
to such extended outside date. If such closing conditions shall not be satisfied
by such extended outside date, then either party shall have a right to terminate
after such extended outside date pursuant to the procedure set forth in Section
13(a), provided that in such event the termination notice shall be given within
twenty (20) days after such extended outside date. If such closing conditions
(and all other closing conditions) shall have been satisfied prior to such
extended outside date, then the Closing shall occur contemporaneously with the
satisfaction of the last such closing condition (or as soon as practicable
thereafter), as contemplated in Section 7(a).
(f) With respect to the required consent from the holders of Empire's
convertible bonds, as set forth on Schedule 1 hereof, relating to the proposed
assumption of certain debt by Empire at Closing, if the parties determine that
such consent is unlikely to be obtained by Empire, then the parties shall
reasonably cooperate to restructure the transaction, with no adverse effect on
either party, in such manner as to eliminate the requirement of such consent
(which restructuring may include, without limitation, the pay-off of debt by
Transferor and an increase in the number of Purchase Shares or other
consideration to Transferor in respect of such pay-off).
(g) If the shareholders of Empire shall fail to approve this
transaction at the Stockholders Meeting, if (other than as a result of delays in
the SEC review process) Empire shall fail for any reason to submit the
transactions contemplated hereby for shareholder approval by August 20, 2005, or
if the Board of Directors of Empire changes its favorable recommendation with
respect to this transaction, then Transferor shall, upon written notice to
Empire, have the right to terminate this Agreement, provided that, in such
event, the Option Agreement shall remain in full force and effect and shall be
fully binding upon the parties following any such termination of this Agreement
by Transferor, and the Option may thereafter be exercised by the Grantee under
the Option Agreement.
(h) In the event that the due diligence condition for Empire set forth
in Section 12(a)(8), or the due diligence condition for Transferor set forth in
Section 12(b)(7), shall not be satisfied as of the completion of due diligence
on December 14, 2004, then Empire or Transferor, as the case may be, shall have
the right to terminate this Agreement upon written notice to the other party
given not later than December 17, 2004, whereupon this Agreement shall terminate
and neither party shall have any further rights or obligations hereunder, and
the Option shall not thereafter be exercisable by the Grantee under the Option
Agreement.
(i) In the event that (x) a material adverse change with respect to
Transferor shall occur as set forth in Section 12(a)(7), or (y) a material
adverse change with respect to Empire shall occur as set forth in Section
12(b)(4), then Empire (in the case of (x) above) or Transferor (in the case of
(y) above) shall give written notice (such party being hereinafter referred to
as the "MAC Notice Party") to the other party promptly after obtaining knowledge
of such material adverse change, and if such material adverse change shall not
be substantially cured (in the reasonable judgment of the MAC Notice Party)
-14-
within sixty (60) days after delivery of such notice, then the MAC Notice Party
shall have the right to terminate this Agreement upon written notice to the
other party, whereupon this Agreement shall terminate and neither party shall
have any further rights or obligations under this Agreement, and the Option
shall not thereafter be exercisable by the Grantee under the Option Agreement.
(j) Notwithstanding anything to the contrary herein, the provisions of
this Section 13 shall survive the termination of this Agreement.
14. DEFAULT.
(a) If Empire shall default in the performance of its material
obligations under this Agreement (including, without limitation, the obligations
of Empire pursuant to Sections 6 and 10 hereof), and if such default is not
cured by Empire within fifteen (15) business days after written notice thereof
from Transferor to Empire, then Transferor shall have the right, at Transferor's
option, to (x) sue Empire for actual damages suffered by Transferor as a result
of such default, (y) institute a suit against Empire for specific performance of
Empire's obligations under this Agreement and/or (z) if the default has a
material adverse effect, terminate this Agreement (provided that the remedies
described in clauses (x), (y) and (z) may be sought by Transferor in the
alternative in any pleadings or related documents to the extent permitted by
law). In the event that the Transferor does not terminate this Agreement
following a default by Empire, Transferor shall have the right to sue Empire for
an amount equal to damages multiplied by 166%. In the event of such an uncured
material default, and until such time as Transferor shall obtain a
non-appealable judgment of specific performance against Empire, then (i) the
Option Agreement shall remain in full force and effect in accordance with its
terms and shall continue to be fully binding on the parties thereto, (ii) and
Empire shall not solicit, contact, facilitate or engage in discussions or
negotiations with any third party (other than Transferor) with respect to any
Catskills Acquisition for a period of eighteen (18) months following the
initiation of any such suit for damages or specific performance. Following any
termination of this Agreement by Transferor as described in this Section 14(a)
arising from a default that has a material adverse effect, the Grantee under the
Option Agreement shall have the right to exercise the Option.
(b) If Transferor shall default in the performance of its material
obligations under this Agreement (including, without limitation, its obligations
under Section 8(c) hereof), and if such default is not cured by Transferor
within fifteen (15) business days after written notice thereof from Empire to
Transferor, then Empire shall have the right, at Empire's option, to (x) sue
Transferor for actual damages suffered by Empire as a result of such default,
(y) institute a suit against Transferor for specific performance of Transferor's
obligations under this Agreement and/or (z) if the default has a material
adverse effect, terminate this Agreement (provided that the remedies described
in clauses (x), (y) and (z) may be sought by Empire in the alternative in any
pleadings or related documents to the extent permitted by law). In the event
that the Empire does not terminate this Agreement following a default by
Transferor, Empire shall have the right to sue Transferor for damages. In the
event of such an uncured material default by Transferor, and until such time as
Empire shall obtain a non-appealable judgment of specific performance against
Transferor, then Transferor shall not solicit, contact, facilitate or engage in
discussions or negotiations with any third party (other than Empire) with
respect to any Catskills Transfer for a period of eighteen (18) months following
-15-
the initiation of any such suit for damages or specific performance. Following
any termination of this Agreement by Empire as described in this Section 14(b)
arising from a default that has a material adverse effect, the Option shall not
be exercisable by Grantee under the Option Agreement.
(c) Notwithstanding anything to the contrary herein, the provisions of
this Section 14 shall survive the termination of this Agreement.
15. DISPUTE RESOLUTION. Any claim or dispute between the parties
(including, without limitation, any dispute with respect to the terms and
conditions of any of the Additional Agreements) arising under this Agreement
shall be definitively resolved by binding arbitration. Upon written notice from
either party that such party desires to submit a claim or dispute to
arbitration, the parties shall attempt to mutually agree upon one reputable,
independent arbitrator to arbitrate such claim or dispute. If the parties shall
mutually agree on such arbitrator, then such arbitrator shall be directed to
conduct the arbitration and make a final decision within thirty (30) days after
being appointed. In the event that the parties shall be unable to agree upon one
arbitrator within five (5) business days after delivery of such written notice,
then either party shall have the right to submit such claim or dispute to
binding arbitration by JAMS (formerly Judicial Arbitration and Mediation
Services) and JAMS shall be instructed to conduct such arbitration on an
expedited basis. The parties shall share any costs relating to any such
arbitration. Notwithstanding anything to the contrary herein, the determination
in any such arbitration proceeding shall be final and binding upon the parties.
The provisions of this Section 15 shall survive the termination of this
Agreement.
16. MUTUAL REPRESENTATIONS. Each party represents and warrants that (i) it
is duly organized, validly existing and in good standing under the laws of the
State of its organization and has all requisite power and authority, (ii) it has
the corporate power and authority to execute and deliver, and taken all
necessary corporate action to authorize the execution, delivery and performance
of, this Agreement, and has all authorizations, licenses, permits and
certifications, necessary for it to own its properties and assets and to carry
on its business as it is now being conducted, (iii) the execution and delivery
by each party of, and the performance and compliance by each party with, the
terms and provisions of this Agreement do not violate in any material respect
any term, condition or provision of (A) such party's organizational or governing
documents; (B) any judgment, order, injunction, decree, regulation or ruling of
any court or other governmental authority to which such party is subject; or (C)
any agreement or contract by which such party is bound, except with respect to
those consents or approvals set forth on Schedules 1 and 2 hereof (as such
Schedules may be supplemented in accordance with the terms hereof); and (iv) no
broker, finder, agent or similar intermediary is entitled to any broker's,
finder's, placement or similar fee or other commission in connection with the
transactions contemplated hereby based on any agreement, arrangement or
understanding with such party.
17. GOVERNING LAW AND OTHER PROVISIONS. This Agreement is to be governed by
the laws of the State of New York. The agreements contained herein and the
rights, duties and obligations hereunder may not be assigned or delegated by
either party without the prior written consent of the other party hereto. This
Agreement may be executed in counterparts. Notwithstanding anything to the
contrary herein, the provisions of this Section 17 shall survive the termination
of this Agreement.
-16-
18. CONFIDENTIALITY; RELEASE OF INFORMATION.
(a) Each party agrees to keep all information with respect to this
Agreement (including, without limitation, information concerning the existence
or the nature of any discussions or negotiations (i) between the parties, (ii)
by any party or their agents with any sovereign Indian tribe or nation, (iii) by
any party or their agents with any Federal or State official or agency or (iv)
by any party or their agents with any nationally recognized gaming company)
confidential, except (x) as expressly agreed upon by the parties, (y)
disclosures to Federal, state and Indian tribal officials or agencies or a
nationally recognized gaming company for the sole purpose of furthering the
goals contemplated by this Agreement and (z) except for disclosures required by
law, by any court or by the rules of the Nasdaq or any stock exchange upon which
the shares of Empire or any affiliate of Transferor are then traded (which to
the extent reasonably practicable shall be made only after reasonable notice to
and consultation with the other party). With respect to any disclosure pursuant
to clause (y), the parties will inform the person or persons to whom disclosure
is made of the confidential nature of such information and will use commercially
reasonable efforts to obtain the agreement of such person or persons to maintain
the confidentiality of the information disclosed. Any press release or other
public announcement of the transactions contemplated by this Agreement will be
subject to the reasonable approval of both parties, except with respect to
legally required publicly filed documents of Empire (in which event Empire shall
endeavor to give Transferor a reasonable opportunity to review such documents
prior to their public filing). Notwithstanding anything to the contrary in this
Agreement, the provisions of this Section 18 shall survive the termination of
this Agreement.
(b) In addition to, and not in limitation of the foregoing, the
parties confirm that they have entered into a Confidentiality Agreement, dated
as of the date hereof, which Confidentiality Agreement remains in full force and
effect.
19. BINDING AGREEMENT. This Agreement is intended to be fully binding on
Transferor and Empire. In amplification of and not in limitation of the
foregoing, the parties shall use reasonable and good faith efforts to finalize
and execute the Additional Agreements (which agreements shall be consistent with
the terms of this Agreement) as soon as practicable, and in any event prior to
December 23, 2004, provided that the failure of the parties to enter into the
Additional Agreements shall in no way affect or impair the binding nature of
this Agreement, and this Agreement shall remain in full force and effect
regardless of whether the Additional Agreements are finalized and/or executed.
[Remainder of page intentionally left blank]
-17-
Please indicate your agreement to the foregoing by signing this Agreement
in the space below.
Yours truly,
EMPIRE RESORTS, INC.
By: /s/ Xxxxx Xxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxx
Title: President
ACCEPTED AND AGREED:
CONCORD ASSOCIATES
LIMITED PARTNERSHIP
By: Convention Hotels, Inc., its General Partner
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
XXXXXXXX RESORTS, LLC
By: Catskill Resort Group, LLC
as Managing Member
By: Xxxxxxxx Resorts LLC, as Managing Member
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx, Managing Member
By: Melville-Catskill, LLC, as Managing Member
By: Reckson Strategic Venture Partners, LLC,
as Managing Member
By: /s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx, Authorized Signatory
-18-
