-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, EE/k/yJiMyWe+WIfWSSYFZart6ygLyWKfZ2PI+C4k9IbaVvLarAbCerqzhstlUEl IhzoZ5r6qL4RgUD7r0QjJg== 0000950137-05-015075.txt : 20051219 0000950137-05-015075.hdr.sgml : 20051219 20051219155259 ACCESSION NUMBER: 0000950137-05-015075 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20051219 DATE AS OF CHANGE: 20051219 GROUP MEMBERS: BKB, LLC GROUP MEMBERS: WATERTONE HOLDINGS, L.P. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BERMAN ROBERT ALAN CENTRAL INDEX KEY: 0001169337 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ALPHA HOSPITALITY CORP STREET 2: 29-76 NORTHERN BLVD CITY: LONG ISLAND CITY STATE: NY ZIP: 11101 BUSINESS PHONE: 7186853014 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: EMPIRE RESORTS INC CENTRAL INDEX KEY: 0000906780 STANDARD INDUSTRIAL CLASSIFICATION: RETAIL-EATING & DRINKING PLACES [5810] IRS NUMBER: 133714474 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-52151 FILM NUMBER: 051272583 BUSINESS ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 BUSINESS PHONE: (845) 807-0001 MAIL ADDRESS: STREET 1: RT 17B STREET 2: P.O. BOX 5013 CITY: MONTICELLO STATE: NY ZIP: 12701 FORMER COMPANY: FORMER CONFORMED NAME: ALPHA HOSPITALITY CORP DATE OF NAME CHANGE: 19930614 SC 13D/A 1 c00792a6sc13dza.txt AMENDMENT TO SCHEDULE 13D OMB APPROVAL -------------------------- OMB Number: 3235-0145 Expires: December 31, 2005 Estimated average burden hours per response....15 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 6)* EMPIRE RESORTS, INC. - -------------------------------------------------------------------------------- (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE - -------------------------------------------------------------------------------- (Title of Class of Securities) 292052 10 7 - -------------------------------------------------------------------------------- (CUSIP Number) Robert A. Berman Beth J. Rosner, Esq. 4446 St. Route 42 Neal, Gerber & Eisenberg LLP Monticello, NY 12701 2 N. LaSalle Street (845) 794-5300 Suite 2300 Chicago, Illinois 60602 (312) 269-8478 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) NOVEMBER 29, 2005 - -------------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. / / NOTE: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Section 240.13d-7 for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). PERSONS WHO RESPOND TO THE COLLECTION OF INFORMATION CONTAINED IN THIS FORM ARE NOT REQUIRED TO RESPOND UNLESS THE FORM DISPLAYS A CURRENTLY VALID OMB CONTROL NUMBER. SEC 1746 (11-03) - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 2 of 8 pages - ---------------------- ----------------- - -------------------------------------------------------------------------------- 1. Names 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 (See Instructions) (a) (b) - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization DELAWARE - -------------------------------------------------------------------------------- 7. Sole Voting Power Number of 0 Shares ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 25,000 Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting 0 Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 25,000 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 25,000 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) Less than 0.1% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) PN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 3 of 8 pages - ---------------------- ----------------- - -------------------------------------------------------------------------------- 1. Names 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 (See Instructions) (a) (b) - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization NEW YORK - -------------------------------------------------------------------------------- 7. Sole Voting Power Number of 0 Shares ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 25,000 Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting 0 Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 25,000 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 25,000 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) Less than 0.1% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) OO - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 4 of 8 pages - ---------------------- ----------------- - -------------------------------------------------------------------------------- 1. Names 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 (See Instructions) (a) (b) - -------------------------------------------------------------------------------- 3. SEC Use Only - -------------------------------------------------------------------------------- 4. Source of Funds (See Instructions) OO - -------------------------------------------------------------------------------- 5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) OR 2(e) - -------------------------------------------------------------------------------- 6. Citizenship or Place of Organization United States of America - -------------------------------------------------------------------------------- 7. Sole Voting Power Number of 4,302,399 Shares ----------------------------------------------------------------- 8. Shared Voting Power Beneficially 25,000 Owned by Each ----------------------------------------------------------------- 9. Sole Dispositive Power Reporting 4,041,699 Person ----------------------------------------------------------------- 10. Shared Dispositive Power With 25,000 - -------------------------------------------------------------------------------- 11. Aggregate Amount Beneficially Owned by Each Reporting Person 4,327,399 - -------------------------------------------------------------------------------- 12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - -------------------------------------------------------------------------------- 13. Percent of Class Represented by Amount in Row (11) 16.3% - -------------------------------------------------------------------------------- 14. Type of Reporting Person (See Instructions) IN - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 5 of 8 pages - ---------------------- ----------------- The following constitutes Amendment No. 6 ("Amendment No. 6") to the Schedule 13D filed by the undersigned. This Amendment No. 5 amends the Schedule 13D, as previously amended, as specifically set forth. Item 1 is hereby amended and restated as follows: ITEM 1. SECURITY AND ISSUER The title of the class of securities to which this filing relates is Common Stock, $.01 par value per share (the "Common Stock") of Empire Resorts, Inc., a Delaware corporation (the "Company"). The Company's principal executive office is located at 701 N. Green Valley Parkway, Suite 200, Henderson, Nevada 89074. The Company's telephone number is (702) 990-3355. Item 2(b) is amended and restated as follows: (b) The business address of Robert H. Berman is 4446 St., Route 42, Monticello, New York 12701. Item 2(c) is amended and restated as follows: (c) Robert Berman is a private investor. Watertone Holdings, LP is an investment partnership. BKB, LLC is the general partner of Watertone Holdings, LP. Item 5(a) is hereby amended and restated as follows: (a) Robert A. Berman ("Berman") beneficially owns 4,327,399 shares of Common Stock, constituting approximately 16.3% of outstanding Common Stock (based on 26,305,203 outstanding shares of Common Stock, as reported in the Company's Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission on November 14, 2005). Berman's total number of shares beneficially owned by him is comprised of (i) 3,209,108 shares of Common Stock owned directly by Berman, (ii) options that are currently exercisable into 281,689 shares of Common Stock, (iii) 811,602 shares of Common Stock held directly by Avon Road Partners, LP, ("Avon") with respect to which Berman is its general partner and (iv) 25,000 shares of common stock held directly by Watertone Holdings, L.P., ("Watertone") with respect to which BKB, LLC ("BKB") is its general partner. Berman owns 82% of BKB, LLC and serves as its managing member. Watertone directly owns 25,000 shares of Common Stock, constituting less than 0.1% of the Company's outstanding Common Stock. BKB beneficially owns 25,000 shares of Common Stock, constituting less than 0.1% of the Company's outstanding Common Stock. BKB's total number of shares beneficially owned by it is comprised solely of the 25,000 shares of Common Stock owned directly by Watertone, with respect to which BKB is its general partner. Item 5(b) is hereby amended and restated as follows: (b) Berman has the sole power to vote 99,098 shares of Common Stock owned directly by Berman which are subject to the pre-paid variable forward sale contract described in Item 5(c). Berman has the sole power to vote, and sole power to dispose of, 3,110,010 shares of Common Stock owned - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 6 of 8 pages - ---------------------- ----------------- directly by Berman. Berman has the sole power to vote, and sole power to dispose of, the 281,689 shares of Common Stock represented by options that are currently exercisable by Berman. As the sole general partner of Avon, Berman has the sole power to vote 161,602 shares of Common Stock owned directly by Avon, which are subject to the pre-paid variable forward sale contract described in Item 5(c), and the sole power to vote, and sole power to dispose, of 650,000 shares of Common Stock owned directly by Avon. Watertone holds 25,000 shares of Common Stock of the Company. BKB is the general partner of Watertone Holdings and Berman holds an 82% controlling interest in BKB and serves as its managing member. As a result, each of Watertone, BKB, and 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 the Company held by Watertone Holdings, L.P. Item 4 is amended to add the following: The March 7, 2005 transaction and the November 29-December 1, 2005 sales by the Reporting Persons described in Item 5(c) were entered into for investment purposes. Item 5(c) is amended to add the following: On March 7, 2005, Berman entered into a pre-paid variable forward sale contract (the "Contract") with Bear Stearns & Co., Inc. ("Bear"). Pursuant to the Contract, Berman pledged 260,700 shares of Common Stock of the Company, of which 99,098 shares were held directly by Berman and 161,602 shares were held directly by Avon, to secure his obligations to deliver a maximum of 260,700 shares of common stock on or about March 7, 2009 (the "Settlement Date"). Prior to the Settlement Date, Berman retains voting control over the 260,700 shares subject to the Contract. Under the Contract, Berman and Avon received on or about March 13, 2005 approximately $2,056,741, in proportion to each of their respective holdings, representing approximately 87% of the value of the 260,700 shares of Common Stock on March 11, 2005. Berman could settle this Contract by a cash payment to Bear equal to the product of 260,700 and the market price of the common stock on the Settlement Date (the "Settlement Price") or by the delivery of shares of Common Stock on the Settlement Date as provided below. If the Settlement Price is at or above $12.69 per share (the "Ceiling Price"), Berman would be obligated to deliver on the Settlement Date that number of shares equal to the product of (a) 260,700 and (b) the ratio that is obtained by dividing the sum (x) $10.151 per share (the "Floor Price") and (y) the difference between the Settlement Price and the Ceiling Price, by the Settlement Price. If the Settlement Price is between the Floor Price and the Ceiling Price, Berman would be obligated to deliver on the Settlement Date that number of shares equal to the product of (a) 260,700 and (b) the ratio that is obtained by dividing the Floor Price by the Settlement Price. If the Settlement Price is at or below the Floor Price, Berman would be obligated to deliver 260,700 shares on the Settlement Date. The number of shares of Common Stock to be delivered by Berman is also subject to adjustment in the case of certain antidilutive and extraordinary events and the payment of dividends on the common stock. This transaction was entered into by Berman and Avon for investment purposes. The Contract is filed as Exhibit No. 8 to this Amendment No. 6 to the Schedule 13D and is incorporated herein by reference. The foregoing description of the terms and conditions of the Contract 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. On November 29, 2005, Avon sold 93,600 shares of Common Stock of the Company in the open market at an average price of $5.70; on November 20, 2005, Avon sold 106,400 shares of Common Stock - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 7 of 8 pages - ---------------------- ----------------- of the Company in the open market at an average sale price of $5.68 per share and on December 1, 2005, Avon sold 50,000 shares of Common Stock of the Company in the open market at an average sales price of $5.88 per share. These sales were made for investment purposes. Item 6 is amended to add the following: On March 3, 2005 Berman entered into Amendment No. 1 to Voting Agreement ("Voting Agreement Amendment") with the Transferors in connection with the Company's entering into an Agreement and Plan of Merger and Contribution by and among the Company, Empire Resorts Holdings, Inc. ("Newco"), Empire Resorts Sub, Inc. ("Merger Sub"), Concord Associates Limited Partnership, and Sullivan Resorts, LLC (the "Merger Agreement"). The Merger Agreement amends, restates and supersedes the Letter Agreement. The Voting Agreement Amendment provides that (i) Berman can pledge up to 50% of his shares of Common Stock of the Company owned directly or indirectly by Berman provided that such pledge does not prevent Berman from voting the shares or fulfilling his obligations under the Voting Agreement and provided that the Transferors shall have the right to purchase all or any of the pledged shares that the secured party intends to cause to be sold at foreclosure or otherwise take title in lieu of foreclosure; (ii) Berman agrees not to enter into any agreement to dispose of the Newco common stock to be received in the Merger and (iii) Berman agrees to use commercially reasonable efforts to obtain any approvals applicable to Berman under the Hart Scott Rodino Act to the extent required in connection with the Merger Agreement. The Voting Agreement Amendment is filed as Exhibit No. 9 to this Amendment No. 6 to the Schedule 13D and is incorporated herein by reference. The foregoing description of the terms and conditions of the Voting Agreement Amendment 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. See Item 5(c) for a description of the Contract entered into by Berman and Avon. Item 7 is hereby amended to add the following exhibits: 8. Confirmation for Variable Forward Sale Contract dated March 7, 2005 between Robert A. Berman and Bear Stearns & Co., Inc. 9. Amendment No. 1 to Voting Agreement, dated as of March 3, 2005, by and among Robert A. Berman, Concord Associates Limited Partnership and Sullivan Resorts LLC. - ---------------------- ----------------- CUSIP No. 292052 10 7 13D Page 8 of 8 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: December 15, 2005 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 EX-99.8 2 c00792a6exv99w8.txt CONFIRMATION FOR VARIABLE FORWARD SALE CONTRACT BEAR STEARNS BEAR, STEARNS & CO. INC. 383 MADISON AVENUE NEW YORK, NEW YORK 10179 212-272-2000 DATE: 3/9/05 TO: Avon Road Partners, L.P. c/o Robert Berman TELEPHONE: 917-453-5100 FACSIMILE: 845-807-0000 FROM: Derivatives Documentation TELEPHONE: 212-272-2711 FACSIMILE: 212-272-9857 SUBJECT: Equity Derivatives Confirmation REFERENCE NUMBER: NY36586 The purpose of this letter agreement is to confirm the terms and conditions of the Transaction entered into on the Trade Date specified below (the "Transaction") between Bear Stearns Bank plc ("Bear Stearns") and {Counterparty}.(Counterparty) This letter agreement, together with the Transaction supplements described below, constitute the sole and complete "Confirmation," as referred to in the Master Agreement specified below, with respect to this Transaction. 1. In lieu of negotiating an ISDA Master Agreement and Schedule, Bear Stearns and Counterparty hereby agree that an agreement in the form of the ISDA Master Agreement (Multicurrency-Cross Border (the "Form Master Agreement") as published by the International Swaps and Derivatives Association, Inc. ("ISDA"), with a Schedule attached thereto containing all elections, modifications and amendments thereto contained in "Elections, Modifications and Amendments Under the Master Agreement" below (as so supplemented, the "Master Agreement")shall be deemed to have been executed by both of us on the Trade Date on which we entered into the first "Transaction" (as defined in the Master Agreement). This Confirmation and the Transaction to which it relates, as well as all other Transactions between us (unless otherwise specified in the Confirmations relating to such Transactions) shall supplement, form a part of and be subject to such Master Agreement. All provisions contained in, or incorporated by reference to the Master Agreement shall govern the Transaction referenced in this Confirmation, as well as all other Transactions between the parties heretofore or hereafter entered into,except as expressly modified herein or therein. THUS THIS CONFIRMATION CONSTITUTES BOTH A MASTER AGREEMENT AND A CONFIRMATION THEREUNDER. Certain of the economic terms of this Transaction will be embodied in Transaction Supplements issued from time to time by Bear Stearns to Counterparty, Each of these Transaction Supplements shall, upon issuance thereof by Bear Stearns be incorporated herein by reference, and shall be deemed to supersede all prior Transaction Supplements. Counterparty shall be bound by the terms of such Transaction Supplement, unless such Transaction Supplement is inconsistent with the agreements between the parties intended to be memorialized thereby and Counterparty notifies Bear Stearns of that fact within one Business Day of the receipt by Counterparty of such Transaction Supplement. A form of Transaction Supplement is attached hereto as Exhibit A. NY36586 Avon Road Partners, L.P. Page 2 of 16 The Final Transaction Supplement (the "Final Transaction Supplement"), which shall embody the final terms of the Transaction, shall be issued not later than five Exchange Business Days following the end of the Execution Period specified below, and shall represent the final written agreement of Bear Stearns with the Counterparty setting forth the final terms of this. This Confirmation is subject to and incorporates the 2OOO ISDA Definitions (the "Definitions") and the 1996 Equity Derivatives Definitions (the "1996 Definitions"), each as published by ISDA. In the event of any inconsistency between this Confirmation and the Definitions or the Master Agreement, this Confirmation shall prevail. In the event of any inconsistency between the portion of this confirmation embodied in this letter agreement and the portion of this Confirmation embodies in a Transaction Supplement, the Transaction Supplement shall prevail. 2. This Transaction consists of a variable share pre-paid forward purchase transaction relating to the Shares specified below. The terms of the particular Transaction to which this Confirmation relates are as follows: GENERAL TERMS RELATING TO THE TRANSACTION: Trade Date: March 9, 2005 Purchaser: Bear Stearns Seller: Counterparty Base Amount: As specified in the Transaction Supplement. The Base Amount represents the number of Shares sold by Bear Stearns during the Execution Period. In the case of any Transaction Supplement other than the Final Transaction Supplement, this will represent all shares sold through the "As of" date specified on the Transaction Supplement.In the case of the Final Transaction Supplement, this will represent all Shares sold throughout the Execution Period. The parties hereto hereby agree that they shall enter into this Transaction with respect to up to the Maximum Base Amount specified below based on the execution price of sales of the Shares effected by Bear Stearns over the Execution Period specified below. Maximum Base Amount: 161,602 Execution Period: From and including the Trade Date to and including the earlier to occur of (a) the date on which Bear Stearns has effected sales of Shares in number equal to the Maximum Base Amount and (b) the fifth Exchange Business Day following the Trade Date. Floor Price: As specified in the Transaction Supplement. The Floor Price will represent the product of (a) the Floor Price Percentage and (b) the Execution Price. Floor Price Percentage: 100% NY36586 Avon Road Pariners L.P. Page 3 of 16 Cap Price: As specified In the Transaction Supplement. The Cap Price will represent the product of (a) the Cap Price Percentage and (b) the Execution Price. Cap Price Percentage: 125% Execution Price: As specified in the Transaction Supplement. The Execution Price represents the average of the actual sale price of Shares sold by Bear Stearns during the Execution Period. In the case of any Transaction Supplement other than the Final Transaction Supplement, this will be based on all Shares sold through the "As of" date specified on the Transaction Supplement. In the case of the Final Transaction Supplement, this will be based on all Shares sold throughout the Execution Period. Shares: The common shares of Empire Resorts, Inc., currently trading under the ticker symbol NYNY. Exchange: NASDAQ Related Exchange (s): The exchanges on quotation systems, if any, on which options or further contracts on the Shares are traded or quoted, and as may be selected from time to time by the Calculation Agent. Calculation Agent: Bear Stearns PREPAYMENT AMOUNT: Payment of prepayment Amount: On the Prepayment Amount Payment Date, the Purchaser will pay the Prepayment Amount to Seller. Prepayment Amount: As specified in the Transaction Supplement. The Prepayment Amount will represent the produce of (a) the Prepayment Percentage and (b) the Execution Price and (c) the Base Amount. Prepayment Amount Payment Date: The third Exchange Business Day following the final day of the Execution Period and such earlier date as the parties may agree. NY36586 Avon Road Pariners, L.P. Page 4 of 16 DETERMINATION OF PRICING DATE: Pricing Date: As specified in the Final Transaction Supplement. Consequence of Market Disruption Event: The provisions of Section 4.2 of the 1996 Definitions will apply as if this Transaction were a "Share Transaction" for which the pricing Date were the Valuation Date, and Market Disruption Event had the meaning specified below. Market Disruption Event: Shall have the meaning specified in Section 4.3 of the 1996 Definition, with this Transaction being deemed a "Share Transaction" for purposes of such section. RIGHT OF SELLER TO ELECT CASH SETTLEMENT: Seller shall have the right to elect that the Cash Settlement Terms apply to this Transaction. If no such election is made, then the Physical Settlement Terms will apply. Notice of such election must be given to Bear Stearns between the hours of 9:00 a.m. and 4:00 p.m. (New York time) not less than five Exchange Business Days prior to the pricing Date. Such notice shall be given telephonically and shall be irrevocable when given. As a condition precedent to the Seller's election that the Cash Settlement Terms apply, the Seller shall post by the last date on which such election can be made, additional Collateral in a form and of an amount determined by Bear Stearns in its sole discretion. PHYSICAL SETTLEMENT TERMS. Physical Settlement: On the Settlement Date, Seller will deliver the Number of Shares to be Delivered. Such delivery will be made on the Settlement Date through the Clearance System at the accounts specified in this Confirmation and will be made on a "free" basis. In addition, on the Settlement Date, Seller will pay to the Purchaser at the accounts specified in this Confirmation cash in an amount equal to the Rounding Correction. All such deliveries will be required to be made at or before 10.00 a.m. on the Settlement Date. Number of Shares to Be Delivered: Notwithstanding Section 6.3 of the 1996 Definitions, the "Number of Shares to be Delivered" for the Settlement Date will be a number of Shares equal to the Delivery Amount for the Pricing Date, with such sum being rounded down to the nearest whole share. NY36586 Avon Road Partners, L.P. Page 5 of 16 Relevant Price: The closing price per Share as quoted by the Exchange at the close of trading on the Exchange on the Pricing Date. Delivery Amount: For the Settlement Date, an amount calculated as follows: (a) if the Relevant Price for the Pricing Date is greater than or equal to the Cap Price, then: Floor Price+Relevant Price=Cap Price Base amount x ------------------------------------ Relevant Price (b) if the Relevant Price for the Pricing Date is less than the Cap Price but greater than the Floor Price, then: Floor Price Base Amount x ------------------- Relevant Price (c) if the Relevant Price for the Pricing Date is Less than or equal to the Floor Price, then: Base Amount Rounding Correction: An amount equal to the product of (a) the Relevant Price for the Pricing Date and (b) the difference, if any, between (i) the Delivery Amount for the Pricing Date and (ii) the Number of Shares to be Delivered with respect to the related Settlement Date. Settlement Date: Shall have the meaning set forth in Section 6.2 of the 1996 Definitions, gave that the references in such provision to "Exercise Date" will be deemed to be references to the Pricing Date. Applicability of Certain Sections of the 1996 Definitions: Sections 6.6 (Expenses) and, except to the extent expressly set forth to the country herein, 6.7 (Dividends) of the 1996 Definitions will apply to any delivery of shares hereunder, save that the reference to "Exercise Date" will be deemed to be a reference to "Pricing Date". Section 6.8 (Representation and Agreement) of the 1996 Definitions will apply to any delivery of Shares hereunder. For the avoidance of doubt, the "Additional Representations of the Counterparty" set forth below will also apply to any delivery of Shares hereunder, including, without limitation, subparagraph (a) thereof, which imposes conditions on the Shares that Seller may deliver. Section 6.9 (Failure to Deliver) of the 1996 Definitions will apply to any obligation to deliver Shares hereunder, save that the NY36586 Avon Road Partners, L.P. Page 6 of 16 reference to "Exercise Date" will be deemed to be a reference to "Pricing Date." Section 6.10 (Default Interest) of the 1996 Definitions will apply to any obligation to deliver Shares hereunder. Clearance System: The principal domestic clearance system customatily setting trades on a free delivery basis in the Shares as of the Pricing Date, as selected by the Calculation Agent, subject to "Settlement by Delivery of Collateral" below. Settelment by Delivery of Collateral : The partice agree that if Bear Stearns would otherwise be obligated to return Collateral (as defined in the Collateral Provisions below) in accordance with the Collateral Provisions and Seller would otherwise be obligated to deliver Shares hereunder, Bear Stearns may, at its sole option, retain the Collateral (but only to the extent of the number of Shares required to be delivered by seller) and Seller will thereupon not be obligated to deliver the shares. The "Settlement by Delivery of Collateral" as described above, shall take place, as to Seller, in account maintained by Seller at Bear Stearns in accordance with the Customer Agreement between Counterparty and Bear Stearns dated as of {insert date},between Counterparty and Bear Stearns and its affiliates as amended hereby (the "Customer Agreement"), and all such property and monies maintained in such accounts shall be Collateral and will be subject to the security interest of Bear Stearns. In such event, transfer on the books and records of the party maintaining such account shall be deemed to be the clearance System for all purposes hereunder. In addition, such transaction shall be governed by, and subject to the provisions of, the agreements and terms governing such accounts, as amended hereby. Cash Settlement Terms: Payment: On the Cash Settlement Payment Dare, Seller will pay to Purchaser the Cash Settlement Amount, if any. Cash Settlement Payment Date: The third Exchange Business Day following the Pricing Date (or if such day is not a Currency Business Day, the next which is a Currency Business Day). Cash Settlement Amount: As to the Cash Settlement Payment Date, Delivery Amount x Relevant Price where: "Delivery Amount" means the "Delivery Amount" which would have applied to the Pricing Date in accordance With the Physical Settlement Terms had NY36586 Avon Road Partners, L.P. Page 7 of 16 Seller not elected that these Cash Settlement Terms apply: and "Relevant Price" is the Relevant Price which would have applied to the Pricing Date had Seller not elected that these Cash Settlement Terms apply. PAYMENTS AND DELIVERIES IN RESPECT OF DIVIDENDS: Determinations and Obligations: If there are one or more dividends, whether ordinary or extraordinary, having an "ex-dividend" date during the period from but excluding the Trade Date to and including the Pricing Date: (a) with respect to any such dividends which are in cash, the Seller shall pay to the Purchaser on the Paythrough Date (as defined below) the Paythrough Amount. The "Paythrough Amount" with respect to any dividend that is in cash shall equal the portion of such dividend expressed on a per Share basis multiplied by (b) the Base Amount(s); and (b) with respect to any such dividends which are not in cash, the Seller shall deliver to the Purchaser on the Delivery Date (as defined below) the Dividend/ Distribution Quantity. The "Dividend/Distribution Quantity" with respect to any non-cash dividend shall equal (a) the quantity of assets comprising such dividend, expressed on a per share basis, multiplied by (b) the Base Amount. The "Paythrough Date" will be the New York Business Day following the date on which the dividend with respect to which the related Paythrough Amount is payable would have been received by persons who held the shares on the relevant ex-dividend date; The "Delivery Date" will be the New York Business Day following the date on which the related non-cash dividend or distribution with respect to which the related Dividend/Distribution Quantity is payable in accordance with the paragraph above would have been received by persons who held the shares on the relevant ex-dividend date. ADJUSTMENTS: Method of Adjustment: Following the declaration by the Issuer of the terms of any Potential Adjustment Event, the Calculation Agent shall determine whether such Potential Adjustment Event has a dilutive or concentrative affect on the theoretical value of the shares and, if, so, will (a) make the corresponding adjustments to NY36586 Avon Road Partners, L.P. Page 8 of 6 any one or more of the Cap Price, the Floor Price and the Base Amount and any other variable relevant to the settlement or payment terms of this Transaction as the Calculation Agent determines appropriate to account for that dilutive or concentrative effect and (b) determine the effective date (s) of the adjustment(s). For the avoidance of doubt, for purposes of determining whether an event is a Potential Adjustment Event (including, but not limited to, those specified in Section 9.1(e)(ii), 9.1(e)(iii), and 9.1(e)(vi) to the extent analogous to the foregoing) and any adjustment to be made in respect thereof, the Calculation Agent shall take into account the effect of other provisions of this Confirmation, including those relating to Paythrough Amounts and Distribution Quantities. ADJUSTMENTS FOR EXTRAORDINARY EVENTS: Share-for-Share or Share-for-Combined Merger Event: If there is a Merger Event for which the Merger Consideration is Share-for-Share or if there is a Merger Event for which the Merger Consideration is Share-for-Combined then, not earlier than twenty Exchange Business Days not later then the fifteenth Exchange Business Day prior to the proposed Merger Date, Seller may request that Purchaser provide terms under which the Transaction may continue (a "Continued Terms Request"), If Seller makes a Continued Terms Request, then Purchaser shall, not later than ten Exchange Business Days prior to the proposed Merger Date notify Seller of the terms, as determined by Purchaser in a commercially reasonable manner (which would be reflective of both increases and decreases in value attendant upon the Merger Event), under which the Transaction may continue after the Merger Date, If Seller notifies Purchaser that Seller accepts such terms by no later than the third Exchange Business Day following the date on which Purchaser provides such terms then the Transaction shall continue under the terms so provided by Purchaser and agreed to by Seller. All notices under this provision may be given orally (and confirmed in writing, which failure to confirm shall not vitiate the effectiveness of the notice) and must be given between 9:00 a.m. and 4:00 p.m. (New York time). If Seller fails to make a Continued terms Request as provided herein or if the parties do not agree the terms on which to continue the Transaction, then the Merger Event shall be an Additional Termination Event for which Seller shall be the sole Additional Termination Event for which Seller shall be the sole Affected Party, this Transaction shall be the sole Affected Transaction and Second Method and Loss will apply. ADDITIONAL TERMINATION NY36586 Avon Road Partners, L.P. page 9 of 16 EVENTS: It shall be an Additional Termination Event if any of the following should occur at any time from and including the Trade Date to and including the Pricing Date: (a) the Merger Date of any Merger Event (other than a Merger Event which is a Share- for-Share Merger or a Share-for-Combined Merger (for which the parties agreed on the terms on which to continue the Transaction)), shall occur (save that for purposes of determining if any event is a Merger Event, the requirement that the Merger Date be on or before the Expiration Date or Valuation Date shall be replaced with a requirement that the Merger Date be on or before the Pricing Date); (b) the Announcement Date of any Nationalization, Insolvency and Delisting (as defined below) shall occur. "Delisting" means that the Exchange announces that pursuant to the rules of such Exchange, the Shares cease (or will cease) to be listed, traded or publicly quoted on the Exchange for any reason (other than a Merger Event) and are not immediately re-listed, re-traded or re-quoted on an exchange or quotation system located in the same country as the Exchange (or, where the Exchange is within the European Union, in any member state of the European Union). (c) the occurrence of a Hedge Event. A "Hedge Event" shall be deemed to have occurred if Bear Steams cost of borrowing the shares is greater than 0.00. For purposes of the foregoing Additional Termination Events, (a) Counterparty shall be the sole Affected Party (b) this Transaction shall be the sole Affected Transaction (c) Second Method and Loss will be deemed to apply. COLLATERAL PROVISION: (a) On or before the Local Business Day following the Trade Date, Counterparty shall deliver to and or all times during the Execution Period maintain with Bear Stearns as collateral Shares in number equal to the Maximum Base Amount. At all times after the Execution Period, Counterparty shall deliver to and at all times during the Execution Period maintain with Bear Stearns as collateral Shares in number equal to the Base Amount ( as such Base Amount may be from time to time adjusted in accordance herewith). (b) These Collateral Provision shall be deemed a security agreement, and notwithstanding anything to the contrary contained in the Executed Agreement on this Confirmation, these provisions shall be governed by the laws of the State of New York, without giving effect to the conflicts or choice of law NY36586 Avon Road Partners, L.P. Page 10 of 16 provisions thereof. The Counterparty hereby grants a first priority continuing security interest in all Collateral provided hereunder and in any and all substitutions thereof, proceeds thereof and distributions thereof. These Collateral Provisions constitute a Credit Support document and the failure by a party to deliver or return Collateral in accordance with these Collateral Provisions (if such failure is not remedied on or before the Local Business Day after notice of such failure is given to such party) shall constitute an Event of Default for purposes of Section 5(a)(iii) of the Master Agreement with respect to such party. For purpose of these Collatral Provisions, the term "Local Business Day" shall have the meaning given such term in the Master Agreement, except that references to a payment in clause (b) thereof will be deemed to include a delivery or return of Collateral hereunder. (c) The Collateral delivered hereunder shall be used to secure Counterparty's obligations under this Transaction, as well as under any other transaction with Bear Stearns or any of its affiliates, (in any case, a "Bear Stearns Entity"), including, without limitation, any loans or other extensions of credit made by a Bear Stearns Entity. Any such transactions, loans or other extensions of credit shall be subject to the Customer Agreement (defined herein) between Counterparty and any Bear Stearns Entity and/or any affiliate(s) thereof. In addition, you may from time to time be required to post addition collateral with Bear Stearns in accordance with the provisions of the Customer Agreement. For purposes of this paragraph, "Customer Agreement" means, as applicable, any document(s) provided by a Bear Stearns Entity which is referred to as the Customer Agreement, the Professional Account Agreement, the Institutional Account Agreement, the Standard Terms and Conditions of Business, or a similar name. (d) Counterparty shall have the right to substitute different Shares (of a like class and number) for shares maintained as collareral, and upon verification that the substitute Shares are acceptable collateral, the original Shares for which the substitute Shares are substituted shall be released to Counterparty within a reasonable time following its request. (e) Counterparty agrees that Bear Stearns or any of its affiliates may borrow, repledge, use in its own business and rehypothecate the Shares pledged by Counterparty as Collateral on terms determined by Bear Stearns. 3. Account Details and Settlement Information: PAYMENT TO BEAR STEARNS: Citibank N.A., New York ABA code: 021-00-089, for the account of Bear, Stearns Securities Corp. Account Number: 0925-3186, for further credit to NY36586 Avon Road Partners, L.P. Page 11 of 16 Bear Stearns Bank plc PAYMENTS TO COUNTERPARTY: Avon Road Partners, L.P. Bear Stearns Bank A/C 380-81083 ADDITIONAL PROVISIONS: Agency. Counterparty acknowledges that Bear, Stearns & Co. Inc. ("BS&C") has acted as agent for Counterparty solely for the purposes of arranging this Transaction with its Affiliate, Bear Stearns and has acted as agent for Bear Stearns (Without accepting any liability for Bear Stearns's performance or non-performance of Bear Stearns's obligations under the Transaction) in connection with the execution of this confirmation on Bear Stearns's behalf. This Confirmation is being provided by BS&C in such capacity. Upon your written request, BS&C will furnish you with the time at which this Transaction was entered into. Bear Stearns is not a member of the Securities Investor Protection Corporation. Eligible Contract Participant. Each party represents that it constitutes an "eligible contract participant" as such term is defined in Section 1(a)12 of the Commodity Exchange Act, as amended. Non-Reliance. Each party represents to the other party that (a) it has not received and is not relying upon any legal, tax, regulatory, accounting or other advice (whether written or oral) of the other party regarding this Transaction, other than representations expressly made by that other party in this Confirmation and in the Master Agreement and (b) in respect of this Transaction, (i) it has the capacity to evaluate (internally or through independent professional advice) this Transaction and has made its own decision to enter into this Transaction and (ii) it understands the terms, conditions and risks of this Transaction and is willing to assume (financially and otherwise) those risks. Counterparty acknowledges that Bear Stearns has advised Counterparty to consult its own tax and legal advisors in connection with this Transaction evidenced by this Confirmation and that the Counterparty has done so. Additional Representations of the Counterparty. With respect to the Shares pledged as Collateral under this Transaction and any Shares delivered in accordance herewith, Counterparty represents and warrants to Bear Stearns and its affiliates and subsidiaries (which representation and warranty, except in the case of (e) below, will be deemed repeated at all times during the period from and including the Trade Date to and including the Settlement Date) that: (a) Counterparty is the beneficial owner of the Shares and there are not now any liens, claims, charges, pledges, debts or other encumbrances on the Shares, and Counterparty has transferred a valid, perfected first priority security interest in such Shares to Bear Stearns; (b) the Shares are not shall not be subject to any condition, restriction or limitation on the ability of the holder thereof to freely sell, assign, pledge or otherwise transfer the Shares, other than the legal restrictions imposed by the Securities Act, as amended (the "Act"), on persons who are "affiliates" (as that term is defined in (a) (1) of Rule 144 under the Act) of the Issuer; (c) for purposes of determining the holding period under Rule 144, Counterparty acquired and fully paid for the Shares on a date which is no less than one year prior to the date of this Confirmation; NY36586 Avon Road Partners, L.P. Page 12 of 16 (d) Counterparty is not a member of a "syndicate" or "group" within the meaning of Section 13(d)(3) of the Security Exchange Act: (e) Counterparty is not as of the trade date or any date during the Execution Period in possession of any material adverse non public information regarding the Shares or the Issuer, and Counterparty has not provided Bear Stearns with any material non-public information relating to the Issuer. (f) Counterparty has not entered into any agreements with the Issuer or any other person which would prohibit or limit Counterparty from selling, transferring, or entering into any contracts or hedging activities relating to the Shares on the Trade Date or on the as of date of any Transaction Suppliment, or from entering into this Transaction on the Trade Date or on the as of date of any Transaction Suppliment or performing its obligation under this Transaction or any transactions in connection herewith; (g) all representations made by the Counterparty in the Risk Disclosure Form were true and correct as of the date made or deemed made; (h) Counterparty agrees to execute and deliver, or cause to be executed and delivered, all such further instruments and documents, and to take all such other actions and to do all such things as Bear Stearns may reasonably request in connection with any disposition of the Shares in accordance with the terms of the Customer Agreement executed by Counterparty or this Confirmation; (i) Counterparty has the sole legal right, power and authority to sell, pledge, transfer and deliver the Shares, and authorizes Bears Stearns to have the Shares pledged as Collateral reregistered into Bear Stearns "street name"; and (j) Counterparty hereby authorizes Bear Stearns (and any of its affiliates, agents and representatives) to make any inquiry of the Issuer of the shares, its transfer agents and counsel, as Bear Stearns may deem necessary or advisable in connection with the pledge of the Shares. Document to be Delivered by Counterparty to Bear Stearns. The Counterparty agrees to deliver no later than Trade Date any documentation or instrument necessary in order to have the shares reregistered into the name of Bear Stearns or its nominee which may include stock powers duly executed in blank, in proper form for transfer or like instrument of transfer. Additional Covenants of the Counterparty Relating to the Transactions. The Counterparty agree that during the Execution Period it shall not (a) sell any Shares (or securities convertible into Shares) or (b) agree with any person (natural or legal) to act in concert for the purpose of selling Shares or any securities convertible into Shares. Additional Mutual Covenants Relating to this Transaction. Each of Counterparty and Bear Stearns agrees that (1) it will not treat this Transaction, any portion of this Transaction of any obligation hereunder as giving rise to any interest income or other inclusions of ordinary income; (ii) it will not treat the delivery of any portion of the Shares, assets or cash to be delivered pursuant to this Agreement as the payment of interest or ordinary income; (iii) it will treat this Agreement in its entirety as a forward contract for the delivery Of Shares; and (iv) it will not take any action (including filing any tax returns or form or taking any position in any tax proceeding) inconsistent with the obligations contained in (i) through (iii). Notwithstanding the preceding sentence, either party may take any position required by law, provided NY36586 Avon Road Partners,L.P. Page 13 and 16 that such party delivers to the other party an opinion of counsel, nationally recognized as expert in Federal tax matters, concerning the regulation or an administrative arrangement or interpretation or applicable court decision published after the date of this Agreement. Furthermore, Bear Stearns may treat this agreement in such fashion it deems appropriate to accurately reflect this Transactions, economic substance in its own booking, accounting and risk management systems. ELECTIONS, MODIFICATIONS AND AMENDMENTS UNDER THE MASTER AGREEMENT: Survival. The following provisions shall apply to all Transactions that are or will be governed by the Master Agreement, notwithstanding the termination of this particular Transaction. Payments Date Netting. The parties agree that subparagraph (ii) of section 2(c) of Master Agreement will not apply to any Transaction that are of will be governed by the Master Agreement. Thus all amounts payable on the same date in the same currency in respect of all Transaction shall be netted. Payment Measure. For all Transactions that are or will be governed by the Master Agreement, "Loss" and "Second Method" shall be the payment measure for purpose of section 6(c) of the Master Agreement, subject however, as to any particular Terminated Transaction, to the Confirmation therefor. Transfer. For all Transactions that are will or will be governed by the Master Agreement, either party may transfer its rights and obligation under this Agreement Transaction in accordance with section 7 of the Master Agreement. However, Bear Stearns may also transfer in right and obligations under this Transaction, in whole or in part, to The Bear Stearns Companies Inc. ("TBSCI") or any of its Affiliates, provided (a) such Affiliates obligations under this Transaction shall be fully and unconditionally guaranteed by TBSCI and (b) such transfer shall not results in the occurrence of an Event of Default or Potential Event of Default. Address for Notice. For all Transactions that are or will be governed by the Master Agreement, the address of the parties shown as such on the most recently executed Confirmation under Master Agreement shall be deemed to have specified as the address for notice (for purpose of Section 12(a) of the Master Agreement. Governing Law. For all Transaction that are or will be governed by the Master Agreement, the law of the State of New York, without reference to the choice of law principle thereof will be the governing law for purpose of Section 13(a) of the Master Agreement. Dispute Resolution. EXCEPT AS OTHERWISE SET FORTH HEREIN AS IT MAY RELATE TO SECTION 9.7 OF THE 1996 DEFINITIONS, CONTROVERSIES ARISING BETWEEN THE COUNTERPARTY AND BSC SHALL BE DETERMINED IN ACCORDANCE WITH THE ARBITRATION PROVISIONS OF THE CUSTOMER AGREEMENT. Rate of interest. For all Transactions that are or will be governed by the Master Agreement and for purposes of determining the Default Rate, the Non-default Rate or the Termination Rate, it will be deemed that each party's cost of funding will be determined daily as equaling USD-Federal Funds H-15 for such day (as defined in the Definitions). Credits Support Document. For all Transaction which are or will be governed by the Master Agreement, each of (a) the Collateral Provision contained in this Confirmation, or any like provisions contained in any other Confirmation and (b) the Customer Agreement dated as of (insert date) between each and every subsidiary of TBSCI and the Counterparty (the "Customer Agreement") will be deemed to be a credit Support Document. NY36586 Avon Road Partners, LP. Page 14 of 16 Specified Transaction. For all Transactions that are or will be governed by the Master Agreement and for purposes of Section (c) of the definition of "Specified Transactions" contained in Section 14 of the Master Agreement, Specified Transactions shall mean any transaction, agreement (including the Customer Agreement) and extensions of credit between BSC or any Specified Entity of BSC and the Counterparty or any Specified Entity of the Counterparty, whether now existing or hereafter entered into. "Specified Entity" with respect to any person shall mean any Affiliate of such person. Termination Currency. For all Transactions that are or will be governed by the Master Agreement, USD. This Confirmation may be executed in several counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Counterparty hereby agrees to check this Confirmation and to confirm that the foregoing correctly sets forth the terms of the Transaction by signing in the space provided below and returning to Bear Stearns a facaimile of the fully-executed Confirmation to 212-272-9857. For inquiries regarding U.S. Transactions, please contact Fenaba Addo by telephone at 212-272-2463. For all other inquiries please contact Orlaith O'Dea by telephone at 353-1-402-6220. Originals will be provided for your execution upon your request. NY36586 Avon Road Partners, L.P. Page 15 of 16 We are very pleased to have executed this Transaction with you and we look forward to completing other transactions with you in the near future. Very truly yours, BEAR, STEARNS & CO. INC., AS AGENT FOR BEAR STEARNS BANK PLC By: /s/ HAROLD ENGELMAN --------------------------- Name: HAROLD ENGELMAN Title: SENIOR MANAGING DIRECTOR Countarparty hereby agrees to, accepts and confirms the terms of the foregoing as of the Trade Date. AVON ROAD PARTNERS, L.P. By: /s/ Mr. Robert Berman -------------------------- Name: Mr. Robert Berman Title: General Partner Dated: 3/09/05 BEAR STEARNS BEAR STEARNS & CO INC. 383 MADISON AVENUE NEW YORK, NEW YORK 10179 212-272-2000 TRANSACTION SUPPLEMENT TO: Avon Road Partners, L.P. ("Counterparty") c/o Robert Berman TELEPHONE: 917-453-5100 FACSIMILE: 845-807-0000 FROM: Bear Stearns Bank plc ("Bear Stearns") DATE: As of Match 9, 2OO5 REFERENCE NUMBER: NY36586 THIS TRANSACTION SUPPLEMENT IS THE FINAL TRANSACTION SUPPLEMENT. This is a Transaction Supplement as described in the letter agreement between Bear Stearns and Counterparty dated as of March 9,2005. It embodies certain of the economic terms of this Transaction described in that letter agreement. This Transaction Supplement shall, upon its issuance by Bear Stearns be incorporated into the letter agreement by reference, and shall be deemed to supersede all prior Transaction Supplement. For purposes of the letter agreement, this Transaction Supplement specifies the following economic terms: Transaction Supplement Date: March 9, 2005 Base Amount: 161,602 Shares Floor Price: USD 9.0838 Cap Price: USD 11.3548 Execution Price: USD 9.0838 Prepayment Amount: USD 1,274,926.66 Prepayment Percentage: 86.85% Pricing Date: March 9, 2009 Counterparty shall be bound by the terms of this Transaction Supplement, unless this Transaction Supplement is inconsistent with the agreements between the parties intended to be memorialized hereby and Counterparty notifies Bear Stearns of that fact within one Business Day of the receipt by Counterparty of this Transaction Supplement. EX-99.9 3 c00792a6exv99w9.txt AMENDMENT NO.1 TO VOTING AGREEMENT EXHIBIT 9 AMENDMENT NO. 1 TO VOTING AGREEMENT AMENDMENT NO. 1 TO VOTING AGREEMENT (this "AGREEMENT"), dated as of March 3, 2005, 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, Stockholder, Concord, and Sullivan entered into that certain Voting Agreement, dated as of November 12, 2004 (the "ORIGINAL AGREEMENT"); WHEREAS, capitalized terms used herein without definition shall have the meanings set forth in the Original Agreement; WHEREAS, the parties hereto desire to amend the Original Agreement as provided herein;. 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: 1. The following shall be added as the new third (3rd) sentence to Section 2 of the Original Agreement: "Notwithstanding the foregoing, Stockholder shall be entitled to grant a lien or security interest (an "Encumbrance") to a bank, insurance company, securities firm or similar financial institution (collectively, a "Secured Party"), or agree or contract to grant an Encumbrance to a Secured Party, free and clear of this Agreement (but subject to proviso below), on a number of Shares constituting, in the aggregate, not more than fifty percent (50%) of the Shares with respect to which Stockholder owns and/or directly or indirectly controls the right to Transfer or grant an Encumbrance (which number of Shares is set forth on EXHIBIT A to the Original Agreement) (any such Shares pledged by Stockholder pursuant to this sentence shall be referred to herein as "Pledged Shares"), and, at the request of a Secured Party, the Pledged Shares shall be placed in the name of such Secured Party; provided that (1) such Encumbrance (including placing the Pledged Shares in the name of the Secured Party) would not invalidate any of Stockholder's voting power or prevent Stockholder from fulfilling its obligations under this Agreement, (2) Stockholder shall provide Transferors with prior written notice of such Encumbrance, which notice shall set forth the material terms of the related financing transaction (and any security agreement and other loan or security documents creating or evidencing such Encumbrance shall be referred to herein collectively as the "Loan Documents"), and (3) such Secured Party, Stockholder and Transferors, at the closing of the transaction granting such Encumbrance, shall enter into an agreement reasonably satisfactory to such parties pursuant to which Transferors shall have the right (but not the obligation) to purchase all or any portion of the Pledged Shares that Secured Party intends to cause to be sold at a public or private foreclosure sale or otherwise take title to in lieu of foreclosure, free and clear of any Encumbrance and other liens or claims, at the then market price of such Pledged Shares, prior to Secured Party conducting a public or private foreclosure sale of the Pledged Shares or otherwise exercising any remedy under the Loan Documents effecting a transfer of title to the Pledged Shares, provided that Transferors shall exercise such purchase right and close upon such purchase within four (4) business days after written notice from Secured Party to Transferors of an event of default under the Loan Documents and the intent of the Secured Party to exercise remedies thereunder (which notice shall not be given by Secured Party to Transferors until all of the Stockholder's notice and cure periods under the Loan Documents shall have expired); and if Transferors shall fail to exercise such purchase right and close upon such purchase within such four (4) business day period, then Secured Party shall have the right to sell all or any portion of such Pledged Shares at a public or private foreclosure sale or exercise any other remedy available to Secured Party under the Loan Documents, free and clear of this Agreement, any and all voting obligations hereunder, and any rights of Transferors hereunder. Any such Pledged Shares purchased by Transferors pursuant to this section shall be deemed to have been conveyed by the Stockholder, as transferor (and not by the Secured Party)." 2. The following new Sections 6(c), (d) and (e) shall be added to the Original Agreement: "(c) Stockholder represents and warrants to Newco, Empire, and Tranferors that it has not entered into, and prior to the Effective Time, will not enter into, any agreement pursuant to which it has agreed to sell, exchange, transfer by gift or otherwise dispose of any of the Newco Common Stock to be received in the Merger. Notwithstanding the foregoing, Stockholder may grant or may agree to grant certain Encumbrances on Shares in accordance with Section 2 hereof. Stockholder understands that Latham & Watkins LLP, as counsel to Newco and Empire, and Wachtell, Lipton, Rosen & Katz, as counsel to Transferors, will rely on this representation and warranty in rendering their opinions as to certain United States federal income tax consequences of the Merger and the Contribution. Capitalized terms used and not defined in this Section 6(c) shall have the meanings ascribed to them in the Agreement and Plan of Merger and Contribution dated as of March 3, 2005, by and among Empire, Empire Resorts Holdings, Inc., Empire Resorts Sub Inc., and Transferors (the "Merger Agreement"). (d) Stockholder agrees to use commercially reasonable efforts to file for and obtain any approvals applicable to Stockholder under the Hart Scott Rodino Act to the extent required in connection with the Merger Agreement, subject to Transferors' obligation to pay certain of the filing fees and other costs therefor, as set forth in Section 5.24 of the Merger Agreement. (e) The parties agree and confirm that (i) the Merger Agreement constitutes an "Additional Agreement" as the term "Additional Agreement" is used in the Voting Agreement, and (ii) the Letter Agreement shall be deemed to remain in effect for purposes of determining the meaning of capitalized terms used in the Voting Agreement but not defined therein." 3. 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. 4. 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 -2- 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. 5. ORIGINAL AGREEMENT RATIFIED. Except as modified herein, the Original Agreement is hereby ratified by the parties and shall remain in all respects in full force and effect. [Signature Page Follows] -3- IN WITNESS WHEREOF, the parties have duly executed this Amendment 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., as general partner By: /s/ Louis R. Cappelli -------------------------------------- Name: Louis R. Cappelli Title: President SULLIVAN RESORTS, LLC By: Catskill Resort Group, LLC as Managing Member By: Cappelli Resorts LLC, as Managing Member By: /s/ Louis R. Cappelli -------------------------- Louis R. Cappelli, Managing Member By: Melville-Catskill, LLC, as Managing Member By: Reckson Strategic Venture Partners, LLC, as Managing Member By: /s/ Scott Rechler ------------------------- Scott Rechler, Authorized Signatory -----END PRIVACY-ENHANCED MESSAGE-----