sec document
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)1
EMPIRE RESORTS, INC.
--------------------------------------------------------------------------------
(Name of Issuer)
COMMON STOCK, PAR VALUE $0.01 PER SHARE
--------------------------------------------------------------------------------
(Title of Class of Securities)
292052 10 7
--------------------------------------------------------------------------------
(CUSIP Number)
Scott A. Kaniewski Robert H. Friedman, Esq.
Empire Resorts, Inc. Olshan Grundman Frome Rosenzweig & Wolosky LLP
707 Skokie Boulevard Park Avenue Tower
Suite 600 65 East 55th Street
Northbrook, Illinois 60062 New York, New York 10022
(847) 418-3804 (212) 451-2300
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
November 12, 2004
--------------------------------------------------------------------------------
(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 Rule 13d-1(e), 13d-1(f) or 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 Rule 13d-7
for other parties to whom copies are to be sent.
(Continued on following pages)
(Page 1 of 18 Pages)
--------
1 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 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).
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 2 of 18 pages
--------------------------- -------------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
WATERTONE HOLDINGS, L.P.
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
25,000
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
25,000
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
25,000
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
PN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 3 of 18 pages
--------------------------- -------------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
BKB, LLC
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
NEW YORK
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 0
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
25,000
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
25,000
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
25,000
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
OO
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 4 of 18 pages
--------------------------- -------------------------
================================================================================
1 NAME OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
ROBERT A. BERMAN
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) / /
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
OO
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) / /
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES
BENEFICIALLY 4,548,309
OWNED BY
EACH
REPORTING
PERSON WITH -----------------------------------------------------------------
8 SHARED VOTING POWER
25,000
-----------------------------------------------------------------
9 SOLE DISPOSITIVE POWER
4,548,309
-----------------------------------------------------------------
10 SHARED DISPOSITIVE POWER
25,000
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
4,548,309
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* / /
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.4%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
IN
================================================================================
*SEE INSTRUCTIONS BEFORE FILLING OUT!
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 5 of 18 pages
--------------------------- -------------------------
The following constitutes Amendment No. 5 ("Amendment No. 5") to the
Schedule 13D filed by the undersigned. This Amendment No. 5 amends the Schedule
13D as specifically set forth.
Item 5(a) is hereby amended and restated as follows:
(a) Robert A. Berman beneficially owns 4,573,309 shares of common stock,
constituting approximately 17.4% of Empire Resorts, Inc.'s outstanding common
stock (based on 26,075,242 outstanding shares of Empire Resorts, Inc.'s common
stock, as reported in Empire Resorts, Inc.'s Quarterly Report on Form 10-QSB
filed with the Securities and Exchange Commission on November 15, 2004). Robert
A. Berman's total number of shares beneficially owned by him is comprised of (i)
3,205,018 shares of common stock owned directly by Robert A. Berman, (ii)
options that are currently exercisable into 281,689 shares of common stock,
(iii) 1,061,602 shares of common stock held directly by Avon Road Partners, LP,
with respect to which Mr. Berman is its general partner and (iv) 25,000 shares
of common stock held directly by Watertone Holdings, L.P., with respect to which
BKB, LLC is its general partner. Robert A. Berman owns 82% of BKB, LLC and
serves as its managing member.
Watertone Holdings, L.P. directly owns 25,000 shares of common stock,
constituting less than 0.1% of Empire Resorts, Inc.'s outstanding common stock.
BKB, LLC beneficially owns 25,000 shares of common stock, constituting
less than 0.1% of Empire Resorts, Inc.'s outstanding common stock. BKB, LLC's
total number of shares beneficially owned by it is comprised solely of the
25,000 shares of common stock owned directly by Watertone Holdings, L.P., with
respect to which BKB, LLC is its general partner.
Item 5(b) is hereby amended and restated as follows:
(b) Robert A. Berman has the sole power to vote and to dispose or to
direct the disposition of the 3,205,018 shares of common stock owned directly by
Robert A. Berman and the 281,689 shares of common stock represented by options
that are currently exercisable by Robert A. Berman. As the sole general partner
of Avon Road Partners, LP, Robert A. Berman has the sole power to vote and to
dispose or to direct the disposition of the 1,061,602 shares of common stock
owned directly by Avon Road Partners, LP.
Watertone Holdings, L.P. holds 25,000 shares of common stock of Empire
Resorts, Inc. BKB, LLC is the general partner of Watertone Holdings, L.P. and
Robert A. Berman holds an 82% controlling interest in BKB, LLC and serves as its
managing member. As a result, each Watertone Holdings, L.P., BKB, LLC and Robert
A. Berman has shared power to vote and shared power to dispose or to direct the
disposition of all 25,000 shares of common stock of Empire Resorts, Inc. held by
Watertone Holdings, L.P.
Item 5(c) is amended to add the following:
On June 2, 2004, Watertone Holdings, L.P. distributed 4,475,788 shares of
common stock of Empire Resorts, Inc. to its general and limited partners,
including BKB, LLC, Robert A. Berman and Avon Road Partners, LP. Upon receiving
its shares of common stock as part of this distribution, BKB, LLC distributed
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 6 of 18 pages
--------------------------- -------------------------
its shares to its members and Avon Road Partners, LP distributed its shares to
its general and limited partners, including Robert A. Berman, Debbie N. Berman
and the Berman Family Trust. On June 2, 2004, Watertone Holdings, L.P. also
distributed 31,870 shares of common stock of Empire Resorts, Inc. to various
individuals and entities to satisfy outstanding indebtedness and 24,552 shares
of common stock of Empire Resorts, Inc. to Paul A. deBary in order to redeem Mr.
deBary's 2.97% limited partnership interest in Watertone Holdings, L.P. On
October 6, 2004, each of Robert A. Berman, Debbie N. Berman and the Berman
Family Trust transferred back to Avon Road Partners, LP 928,269, 31,833 and
101,500 shares of common stock of Empire Resorts, Inc., respectively, that each
of Robert A. Berman, Debbie N. Berman and the Berman Family Trust received as
part of Avon Road Partners, LP's June 2, 2004 distribution.
Item 5(e) is amended to add the following:
On June 2, 2004, both Watertone Holdings, L.P. and BKB, LLC ceased to be
the beneficial owners of more than five percent of Empire Resorts, Inc.'s common
stock.
Item 6. is hereby amended and restated as follows:
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
On November 12, 2004, Robert A. Berman ("Berman") entered into a voting
agreement (the "Voting Agreement") with Concord Associates Limited Partnership
("Concord") and Sullivan Resorts LLC ("Sullivan," and together with Concord, the
"Transferors") pursuant to which Berman agreed to vote all shares of common
stock of Empire Resorts, Inc. ("Empire") then owned or subsequently acquired, or
over which Berman has voting power (together, the "Shares"), in favor of the
adoption of that certain Letter Agreement, dated November 12, 2004, between
Empire and the Transferors (the "Letter Agreement"), the consummation of the
transactions contemplated by the Letter Agreement (the "Contemplated
Transactions"), including, without limitation, the transfer of certain resort
properties in the Catskills to Empire by the Transferors in exchange for
18,000,000 shares of Empire's common stock, and any action reasonably required
in furtherance of the Contemplated Transactions, and against any actions
inconsistent with the foregoing. Berman further agreed to vote his Shares
against any proposal or offer with respect to (a) (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, (b) any
alternative transaction involving the acquisition by Empire of hotel, gaming,
recreational or resort properties in the Catskills, (c) any action or agreement
that would reasonably be expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Empire under
the Letter Agreement or that would reasonably be expected to result in any of
the conditions to the obligations of the parties under the Letter Agreement not
being fulfilled, and (d) any other matter that would reasonably be expected to
prevent, interfere with or delay consummation of the Contemplated Transactions,
including any transaction that would result in a breach of the Letter Agreement
by Empire.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 7 of 18 pages
--------------------------- -------------------------
Subject to certain exemptions, Berman also agreed that from and after
November 12, 2004 until the first to occur of (1) ninety-first (91st) day
thereafter, or (2) the record date fixed by Empire for a stockholders meeting
with respect to the Contemplated Transactions, not to directly or indirectly
sell, pledge, encumber, grant any proxy or enter into any voting or similar
agreement with respect to, transfer or otherwise dispose of (collectively,
"Transfer"), or agree or contract to Transfer, any Shares (or any interest
therein, including as a trustee or in a similar fiduciary capacity). Finally,
under the Voting Agreement, Berman granted the Transferors an irrevocable proxy
with respect to the following matters that may be presented to the stockholders
of Empire: (i) votes or consents with respect to the Letter Agreement and the
Contemplated Transactions; (ii) votes or consents with respect to any other
matter relating to the consummation of the Contemplated Transactions with
respect to which Berman may be entitled to vote; (iii) votes or consents with
respect to any action or agreement that would reasonably be expected to result
in a breach of any covenant, representation or warranty or any other obligation
or agreement of Empire under the Letter Agreement or that would reasonably be
expected to result in any of the conditions to the obligations of the parties
under the Letter Agreement not being fulfilled; (iv) votes or consents with
respect to any other matter that would reasonably be expected to prevent,
interfere with or delay consummation of the Contemplated Transactions, including
any transaction that would result in a breach of the Letter Agreement by Empire;
(v) votes or consents relating to any other material change in the corporate
structure or business of Empire; (vi) votes or consents in favor and approval of
the matters Berman agreed to vote in favor of under the Voting Agreement; votes
or consents against the matters Berman agreed to vote against under the Voting
Agreement.
The Voting Agreement shall terminate upon the first to occur of (a) the
date of termination of the Letter Agreement and (b) the date on which the
Contemplated Transactions are consummated.
The Voting Agreement is filed as Exhibit No. 7 to this Amendment No. 5 to
the Schedule 13D and is incorporated herein by reference. The foregoing
description of the terms and conditions of the Voting Agreement described herein
is only a summary of some of the material provisions of such agreement and does
not purport to be complete and does not restate such agreement in its entirety.
Item 7 is hereby amended to add the following exhibit:
7. Voting Agreement, dated as of November 12, 2004, by and among Robert
A. Berman, Concord Associates Limited Partnership and Sullivan Resorts
LLC.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 8 of 18 pages
--------------------------- -------------------------
SIGNATURES
After reasonable inquiry and to the best of his knowledge and belief,
each of the undersigned certifies that the information set forth in this
statement is true, complete and correct.
Dated: November 24, 2004 WATERTONE HOLDINGS, L.P.
By: BKB, LLC
General Partner
By: /s/ Robert A. Berman
--------------------------------------
Robert A. Berman
Managing Member
BKB, LLC
By: /s/ Robert A. Berman
--------------------------------------
Robert A. Berman
Managing Member
/s/ Robert A. Berman
-----------------------------------------
ROBERT A. BERMAN
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 9 of 18 pages
--------------------------- -------------------------
Exhibit 7
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of November 12, 2004, by
and among Robert A. Berman ("STOCKHOLDER"), Concord Associates Limited
Partnership ("CONCORD") and Sullivan Resorts LLC ("SULLIVAN," together with
Concord and their respective affiliates that own or lease any portion of the
Resort Properties, "TRANSFERORS").
WHEREAS, simultaneously with the execution hereof, Empire and Transferors
are entering into a Letter Agreement (as amended or supplemented from time to
time, the "LETTER AGREEMENT"), pursuant to which, among other things, Empire
shall acquire the Resort Properties from Transferors (the "TRANSFER") and Empire
shall issue the Purchase Shares to Transferors, in accordance with the terms and
conditions set forth in the Letter Agreement and in the Additional Agreements to
be entered into pursuant to the Letter Agreement (capitalized terms used without
definition herein shall have the meanings ascribed to such terms in the Letter
Agreement);
WHEREAS, as of the date hereof, Stockholder owns, beneficially and of
record, the outstanding common stock, par value $0.01 per share, of Empire (the
"COMMON STOCK") set forth on Exhibit A hereto (such shares of Common Stock and
any additional shares of Common Stock and any other voting securities of Empire
owned in the future by Stockholder being herein referred to as the "SHARES");
WHEREAS, the Board of Directors of Empire have, prior to the execution of
this Agreement, duly and validly approved, among other things, the execution and
delivery of this Agreement and the Letter Agreement (and, when and if executed,
the Additional Agreements), and the consummation of the transactions
contemplated by the Letter Agreement (and, when and if executed, the Additional
Agreements), including the Transfer and the governance arrange-ments for the
initial board of directors of Empire (the "CONTEMPLATED TRANSACTIONS"), and such
approval has not been withdrawn;
WHEREAS, approval of the Letter Agreement (and, when and if executed, the
Additional Agreements) and the Contemplated Transactions by Empire's
stockholders is a condition to the Closing; and
WHEREAS, in consideration of Transferors' agreement to enter into the
Letter Agreement (and, when and if executed, the Additional Agreements),
Stockholder, among other things, (i) agrees to vote the Shares in favor of the
Letter Agreement (and, when and if executed, the Additional Agreements) and the
Contemplated Transactions, including the Transfer (subject to the irrevocable
proxy provided for in Section 3 hereof (the "PROXY")), (ii) grants to
Transferors the Proxy covering the Shares to vote in favor of or consent to the
Letter Agreement (and, when and if executed, the Additional Agreements) and the
Contemplated Transactions, including the Transfer, and agrees to grant any
necessary consents, all in accordance with the terms set forth in this
Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 10 of 18 pages
--------------------------- -------------------------
SECTION 1. AGREEMENT TO VOTE. (a) From and after the date hereof until
the Termination Date (as defined in Section 1(b)), Stockholder hereby agrees to
attend the Stockholders Meeting (or any other meeting of stockholders of Empire
at which the matters contemplated by the Letter Agreement (and, when and if
executed, the Additional Agreements) or this Agreement are to be presented to a
vote of stockholders of Empire), in person or by proxy, and to vote (or cause to
be voted) the Shares for approval and adoption of the Letter Agreement (and,
when and if executed, the Additional Agreements) and the Contemplated
Transactions and any related action reasonably required in furtherance thereof,
and against any action inconsistent therewith, such agreement to vote to apply
also to any adjournment or adjournments or postponement or postponements of the
Stockholders Meeting of Empire (or any such other meeting). Stockholder hereby
further agrees that until the Termination Date, Stockholder shall, from time to
time, in connection with any solicitation for a written consent, including to
call a Stockholders Meeting relating to the Contemplated Transactions, timely
execute and deliver (or cause to be timely executed and delivered) a written
consent with respect to the Shares in favor of the approval of the Contemplated
Transactions and any action required in furtherance thereof.
(b) From and after the date hereof until the Termination Date,
Stockholder hereby agrees to vote (or cause to be voted) the Shares against (i)
any Acquisition Proposal and any related action reasonably required in
furtherance thereof, (ii) any alternative transaction involving the acquisition
by Empire of hotel, gaming, recreational or resort properties in the Catskills
(an "ALTERNATIVE TRANSACTION"), (iii) any action or agreement that would
reasonably be expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of Empire under the Letter
Agreement (and, when and if executed, the Additional Agreements) or that would
reasonably be expected to result in any of the conditions to the obligations of
the parties under the Letter Agreement (and, when and if executed, the
Additional Agreements) not being fulfilled, and (iv) any other matter that would
reasonably be expected to prevent, interfere with or delay consummation of the
Contemplated Transactions, including any transaction that would result in a
breach of the Letter Agreement (and, when and if executed, the Additional
Agreements) by Empire, including, without limitation, any motion to adjourn or
postpone a meeting of the stockholders in which any matters contemplated by the
Letter Agreement (and, when and if executed, the Additional Agreements) or this
Agreement are to be presented to a vote of the stockholders of Empire to a date
that is later than July 31, 2005, in each case, at any meeting of stockholders
of Empire (including any adjournments or postponements thereof). Stockholder
further agrees that, until the Termination Date, in connection with any
solicitation for a unanimous written consent relating to an Acquisition Proposal
or an Alternative Transaction or any other action described in clauses (iii) or
(iv) above, Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent with respect to the Shares against any
such Acquisition Proposal or Alternative Transaction or other action as
contemplated by the immediately preceding sentence. For purposes hereof, the
term "TERMINATION DATE" shall mean the first to occur of (a) the date of
termination of the Letter Agreement and, when and if executed, the Additional
Agreements in accordance with their respective terms prior to the Closing, and
(b) the date on which the Contemplated Transactions are consummated. For the
avoidance of doubt, the Termination Date shall be deemed not to occur in the
event that the Letter Agreement is terminated pursuant to the terms of
Additional Agreements, if any, upon the execution and delivery of any such
Additional Agreements.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 11 of 18 pages
--------------------------- -------------------------
(c) The voting agreements contained in this Section 1 shall apply to any
Shares which Stockholder has the power to vote (or direct the voting of) as of
any record date fixed by Empire for a Stockholders Meeting with respect to the
Contemplated Transactions, other than any Exempt Shares disposed of in
accordance with the volume restrictions set forth in Section 2.
(d) Stockholder agrees to cooperate reasonably with Empire and the other
parties hereto in connection with the Letter Agreement (and, when and if
executed, the Additional Agreements) and the consummation of the Contemplated
Transactions, including without limitation, using its reasonable best efforts in
its capacity as a stockholder to cause the initial Empire board of directors to
be as set forth in Section 5 of the Letter Agreement and the corre-sponding
provisions of the Additional Agreements, effective as of such date.
SECTION 2. DISPOSITION OF SHARES. From and after the date hereof until
the first to occur of (1) ninety-first (91st) day after the date hereof, or (2)
the record date fixed by Empire for a Stockholders Meeting with respect to the
Contemplated Transactions (such period, the "FULL RESTRICTION PERIOD"),
Stockholder hereby agrees that Stockholder will not directly or indirectly sell,
pledge, encumber, grant any proxy or enter into any voting or similar agreement
with respect to, transfer or otherwise dispose of (collectively, "TRANSFER"), or
agree or contract to Transfer, any Shares (or any interest therein, including as
a trustee or in a similar fiduciary capacity) with respect to which Stockholder
directly or indirectly controls the right to Transfer. From and after the end of
the Full Restriction Period until the record date fixed by Empire for a
Stockholders Meeting with respect to the Contemplated Transactions, Stockholder
hereby agrees that Stockholder will not directly or indirectly Transfer, or
agree or contract to Transfer, a number of Shares (or any interest therein,
including as a trustee or in a similar fiduciary capacity) with respect to which
Stockholder directly or indirectly controls the right to Transfer greater than
one percent (1%) of the issued and outstanding shares of Common Stock of Empire
in any 90 consecutive day period (such Shares, the "EXEMPT SHARES"); provided
that following the Full Restriction Period, no Transfer (other than the Transfer
of Exempt Shares) shall be permitted or effective unless the transferee (and
each subsequent transferee) agrees (in a manner reasonably acceptable to
Transferors) to be bound in writing to the terms of this Agreement (including,
without limitation, voting provisions and transfer restrictions) with respect to
the Shares so transferred as if it were the initial Stockholder hereunder, and
such Transfer would not invalidate any of Stockholder's or such transferee's
voting power or prevent Stockholder or such transferee from fulfilling such
obligations. Notwithstanding anything in this Section 2 to the contrary,
Stockholder shall be entitled to Transfer Shares solely for purposes of estate
planning for the benefit of such Stockholder's spouse, children, grandchildren
or other living descendants, if such transferees (and each subsequent
transferee) agree (in a manner reasonably acceptable to Transferors) to be bound
in writing to the terms of this Agreement (including without limitation the
voting provisions and transfer restrictions hereof) with respect to the Shares
so transferred as if such transferee were the initial Stockholder hereunder, if
such Transfer would not invalidate any of Stockholder's or such transferee's
voting power or prevent Stockholder or such transferee from fulfilling such
obligations, and if Transferors are reasonably satisfied that such Transfers do
not interfere with the enforceability of the provisions of this Agreement
(including without limitation the voting provisions and transfer restrictions
hereof) or result in a reduction in the number of Shares that would otherwise be
subject to such provisions. Any Transfer of Shares not permitted hereby shall be
null and void.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 12 of 18 pages
--------------------------- -------------------------
SECTION 3. PROXY WITH RESPECT TO SHARES. Stockholder hereby irrevocably
appoints Transferors as its attorney and proxy, with full power of substitution,
to vote or to act by consent in such manner as such attorney and proxy or its
substitute shall, in its sole discretion, deem proper, and otherwise act with
respect to all of the Shares which it is entitled to vote at any meeting of the
stockholders (whether annual or special and whether or not an adjourned meeting)
of Empire or to act by consent with respect to any action; PROVIDED, HOWEVER,
that Stockholder grants a proxy hereunder only with respect to the following
matters that may be presented to the stockholders of Empire (the "DESIGNATED
MATTERS"): (i) votes or consents with respect to the Letter Agreement (and, when
and if executed, the Additional Agreements) and the Contemplated Transactions,
including the Transfer; (ii) votes or consents with respect to any other matter
relating to the consummation of the Contemplated Transactions with respect to
which Stockholder may be entitled to vote; (iii) votes or consents with respect
to any action or agreement that would reasonably be expected to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of Empire under the Letter Agreement (and, when and if executed, the
Additional Agreements) or that would reasonably be expected to result in any of
the conditions to the obligations of the parties under the Letter Agreement
(and, when and if executed, the Additional Agreements) not being fulfilled; (iv)
votes or consents with respect to any other matter that would reasonably be
expected to prevent, interfere with or delay consummation of the Contemplated
Transactions, including any transaction that would result in a breach of the
Letter Agreement (and, when and if executed, the Additional Agreements) by
Empire, including, but not limited to, (a) any reorganization or liquidation
involving Empire, (b) any change in the board of directors of Empire, except as
otherwise agreed to in writing by Transferors, or (c) any material change in the
present capitalization of Empire; (v) votes or consents relating to any other
material change in the corporate structure or business of Empire; (vi) votes or
consents in favor and approval of the matters Stockholder has agreed to vote in
favor of in Section 1(a) hereof; and (vii) votes or consents against the matters
Stockholder has agreed to vote against in Section 1(b) hereof. This proxy is
irrevocable, is coupled with an interest sufficient in law to support an
irrevocable proxy and is granted in consideration of and as an inducement to
cause Transferors to enter into the transactions contemplated by the Letter
Agreement (and, when and if executed, the Additional Agreements). This proxy
shall revoke any other proxy granted by Stockholder at any time with respect to
the Shares and no subsequent proxies will be given by Stockholder with respect
to the Shares while the Proxy is in effect. In addition, if subsequent to the
date hereof Stockholder is entitled to vote the Shares or act by consent with
respect to the Shares for any purpose, it shall take all actions necessary to
vote, or act by consent with respect to, the Shares pursuant to instructions
received from Transferors; PROVIDED, HOWEVER, that the provisions of this
sentence shall only apply to the Designated Matters. This proxy shall apply to
any Shares which Stockholder has the power to vote (or direct the voting of) as
of any record date fixed by Empire for a Stockholders Meeting with respect to
the Contemplated Transactions, other than any Exempt Shares disposed of in
accordance with the volume restrictions set forth in Section 2.
SECTION 4. ACQUISITION PROPOSALS. (a) Without limiting Stockholder's
other obligations under this Agreement, Stockholder agrees that it shall not,
and shall cause its representatives (including any investment banker, attorney
or accountant retained by it) ("REPRESENTATIVES") not to, directly or
indirectly, initiate or solicit any inquiries or the making of any proposal or
offer with respect to an Acquisition Proposal. Stockholder further agrees that
it shall not, and shall cause its Representatives not to, directly or
indirectly, engage in any negotiations concerning, or provide any confidential
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 13 of 18 pages
--------------------------- -------------------------
information or data to, or have any discussions with, any person or entity
relating to an Acquisition Proposal. Stockholder 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. Stockholder 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. Stockholder
agrees that it will notify Transferors promptly, but in any event within 48
hours if any such inquiries, propos-als 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
indicat-ing, 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 Transferors 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.
(b) From and after the date hereof until the Termination Date, (i)
Stockholder shall work exclusively with Transferors 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)
Stockholder shall not solicit, contact or engage in discussions or negotiations
with any third party (other than Transferors) with respect to any Catskills
Acquisition.
(c) Notwithstanding the foregoing, nothing in this Section 4 shall limit
or in any way affect the rights or obligations of Stockholder as a director or
officer of Empire or of Empire's Board of Directors.
SECTION 5. FURTHER ASSURANCES. Each party shall execute and deliver such
ad-ditional instruments and other documents and shall take such further actions
as may be reasona-bly necessary or appropriate to effectuate, carry out and
comply with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, prior to the Termination Date none of the parties
hereto shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) or take any other action (or
fail to take any other action) if such action (or failure) would materially
impair the ability of any party to effectuate, carry out or comply with all the
terms of this Agreement. Stockholder agrees to (and to cause Stockholder's
affiliates and associates to) cooperate with Empire and Transferors in
connection with any filings required to be made by Empire or Transferors in
connection with this Agreement, the Letter Agreement (and, when and if executed,
the Additional Agreements) or the Contemplated Transactions.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. (a) Stockholder
represents and warrants to Transferors, as follows: Stockholder has the power
and authority to execute and deliver this Agreement. This Agreement has been
duly executed and delivered by Stockholder. This Agreement constitutes the valid
and binding agreement of Stockholder enforceable in accordance with its terms.
Stockholder has the full power and authority to vote, or execute a consent, with
respect to, all of the Shares as contemplated hereby. The securities of Empire
described in Exhibit A attached are the only securities of Empire lawfully owned
by Stockholder, and over which Stockholder has the power to vote (or direct the
voting).
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 14 of 18 pages
--------------------------- -------------------------
(b) Stockholder hereby represents and warrants to Transferors, as
follows: Stockholder has good, valid and marketable title to the Shares, free
and clear of all liens, encumbrances, restrictions, options, warrants, rights to
purchase and claims of every kind (other than the encumbrances created by this
Agreement), and has the power to vote (including by an irrevocable power to vote
or execute a consent) such Shares. The execution, delivery and performance by
Stockholder of and under this Agreement does not violate or breach or require
any consent or approval under any law or any contract, instrument, agreement or
arrangement to which Stockholder is a party or by which Stockholder is bound.
SECTION 7. NO ENCUMBRANCES. Except as expressly contemplated by this
Agreement, Stockholder's Shares and the certificates representing such Shares
are now, and at all times during the term hereof will be, held by Stockholder,
or by a nominee or custodian for the benefit of Stockholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
SECTION 8. EFFECTIVENESS. It is a condition precedent to the
effectiveness of this Agreement that the Letter Agreement shall have been duly
executed and delivered by the parties thereto.
SECTION 9. MISCELLANEOUS.
(a) NOTICES, ETC. All notices, requests, demands or other communications
re-quired by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or one day after being mailed by courier service that
guarantees overnight delivery, in each case to the applicable addresses set
forth below:
If to Stockholder, to its address as set forth in the records of Empire
If to Transferors: Concord Associates Limited Partnership
115 Stevens Avenue
New York, New York 10595
Attn: Louis R. Cappelli
With a copy to: Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019
Attn.: Stephen Gellman
or to such other address as such party shall have designated by notice so
given to each other party.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by each of the parties hereto.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 15 of 18 pages
--------------------------- -------------------------
(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation in the case of
Stockholder, any trustee, executor, heir, legatee or personal representative
succeeding to the ownership of (or power to vote) Stockholder's Shares or other
securities subject to this Agreement (including as a result of the death,
disability or incapacity of Stockholder).
(d) ENTIRE AGREEMENT. This Agreement (together with the Letter Agreement
(and, when and if executed, the Additional Agreements)) embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than those expressly set
forth in this Agreement and the Letter Agreement (and, when and if executed, the
Additional Agreements).
(e) SEVERABILITY. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) SPECIFIC PERFORMANCE. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discre-tion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief.
(g) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(i) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be
for the benefit of and shall not be enforceable by any Person who or which is
not a party hereto.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 16 of 18 pages
--------------------------- -------------------------
(j) JURISDICTION; WAIVER OF TRIAL BY JURY. Each party hereby irrevocably
submits to the exclusive jurisdiction of any court of the State of New York or
the United States District Court for the District of New York in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); provided, however, that such consent to jurisdiction is solely
for the purpose referred to in this paragraph (j) and shall not be deemed to be
a general submission to the jurisdiction of said courts or in the State of New
York other than for such purposes. Each party hereto hereby waives any right to
a trial by jury in connection with any such action, suit or proceeding.
(k) GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
(l) NAME, CAPTIONS, GENDER. The name assigned to this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) EXPENSES. Stockholder shall bear its own expenses incurred in
connection with this Agreement and the Letter Agreement (and, when and if
executed, the Additional Agreements) and the transactions contemplated hereby
and thereby.
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 17 of 18 pages
--------------------------- -------------------------
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
STOCKHOLDER
/s/ Robert A. Berman
-----------------------------------------
Name: Robert A. Berman
CONCORD ASSOCIATES LIMITED
PARTNERSHIP
By: Convention Hotels, Inc.,
its General Partner
By: /s/ Louis R. Capelli
--------------------------------------
Name: Louis R. Capelli
Title: President
SULLIVAN RESORTS, LLC
By: Catskill Resort Group, LLC
as Managing Member
By: Cappelli Resorts LLC,
as Managing Member
By: /s/ Louis R. Capelli
--------------------------------------
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
[Signature Page of Voting Agreement]
--------------------------- -------------------------
CUSIP No. 292052 10 7 13D Page 18 of 18 pages
--------------------------- -------------------------
EXHIBIT A
VOTING SECURITIES OWNED BY STOCKHOLDER
NUMBER OF SHARES OF EMPIRE VOTING SECURITIES
--------------------------------------------
4,573,309