8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 3, 2009

EMPIRE RESORTS, INC.
(Exact name of registrant as specified in its charter)
Delaware	001-12522	13-3714474
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)
c/o Monticello Casino and Raceway, Route 17B,  P.O. Box 5013, Monticello, NY		12701
(Address of principal executive offices)		(Zip Code)

Registrant’s telephone number, including area code: xxx

N/A

(Former name or former address, if changed since last report.)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01. Entry into a Material Definitive Agreement.

On June 3, 2009, Empire Resorts, Inc. (the “Company”) and Monticello Raceway Management, Inc., a wholly owned subsidiary of the Company, entered into a letter agreement (the “Agreement”) with KPMG Corporate Finance LLC (“KPMGCF”) whereby the Company retained KPMGCF as the Company’s exclusive financial advisor to raise for the Company up to $75 million in newly sourced capital (the “Transaction”) to address pending maturity and contractual issues relating to the Company’s $65 million Convertible Senior notes due July 31, 2014, which the holders have the right to require the Company to repurchase on July 31, 2009, and the transaction costs related thereto.

The Transaction may include, with respect to new funds sourced by KPMGCF pursuant to the Agreement: (i) a private placement of equity securities or debt obligations of the Company and/or any affiliate or subsidiary thereof, in one or more related transactions, to one or more “Accredited Investors” and/or source(s) of financing, in the form of debt obligations (including term and revolving debt and credit support facilities such as letters of credit), common stock, convertible preferred stock, convertible debt securities, preferred stock, equity-linked securities, warrants, equity or equity-linked joint ventures or other equity or equity-linked arrangements and/or (ii) the direct repurchase or retirement of all or a portion of the existing debt obligations of the Company.

The Agreement became effective as of June 3, 2009 and will continue until September 30, 2009. The Agreement may be extended thereafter upon the mutual written agreement of both parties or terminated after the expiration of 14 days after either party gives written notice of termination to the other party, except for certain provisions that survive termination of the Agreement.

Pursuant to the terms of the Agreement, the Company will pay to KPMGCF (i) a retainer of $75,000, (ii) a monthly fee of $60,000 and (iii) upon consummation of a Transaction, a percentage-based fee calculated with regard to the size of such transaction, subject to a minimum fee of $500,000.

On June 8, 2009, the Company entered into an employment agreement, dated as of June 1, 2009, with Joseph E. Bernstein (the “Employment Agreement”), which sets forth terms and provisions governing Mr. Bernstein's employment as Chief Executive Officer of the Company.  The Employment Agreement provides for an initial term that expires on December 31, 2009 at an annual base salary of $500,000 and will continue for a subsequent one (1) year extension if the Company has successfully restructured its debt during the initial six-month term.  In addition, Mr. Bernstein shall be entitled to participate in any annual bonus plan or equity based incentive programs maintained by the Company for its senior executives.  In connection with his employment, Mr. Bernstein received an option grant of a 5-year non-qualified stock option to purchase 500,000 shares of the Company’s common stock pursuant to the 2005 Equity Incentive Plan, subject to shareholder approval, at an exercise price per share of $1.78, vesting 33% six (6) months following the grant date, 33% on the first anniversary of the grant and 34% 18 months following the grant, subject to earlier vesting as provided in the Employment Agreement.  Mr. Bernstein received an additional option grant of a 10-year non-qualified stock option to purchase 1,000,000 shares, at an exercise price per share of $1.78, subject to shareholder approval and the consummation of debt restructuring transaction with an entity sourced by Mr. Bernstein.

The foregoing summaries of the Agreement and the Employment Agreement do not purport to be complete and are subject to and qualified in their entirety by reference to the actual text of such agreements, copies of which are attached hereto as Exhibit 10.1 and Exhibit 10.2, respectively, and incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d)           Exhibits

Exhibit No.	Exhibits
10.1	Letter Agreement by and among Empire Resorts, Inc., Monticello Raceway Management, Inc. and KPMG Corporate Finance LLC dated as of June 3, 2009.*
10.2	Employment Agreement, dated as of June 1, 2009, between Empire Resorts, Inc. and Joseph E. Bernstein.*

* Schedules and exhibits omitted pursuant to Item 601(b)(2) of Regulation S-K. The Company agrees to furnish supplementally a copy of any omitted schedule to the SEC upon request.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	EMPIRE RESORTS, INC.
Dated:  June 8, 2009	By:	/s/ Joseph E. Bernstein
		Name: Joseph E. Bernstein
		Title: Chief Executive Officer

EX-10.1

Exhibit 10.1

[KPMG Corporate Finance LLC Letterhead]

June 3, 2009

Privileged and Confidential

Empire Resorts, Inc.

204 State Route 17B

Monticello, NY 12701

Attn:      Joseph Bernstein

Bruce Berg

Re:  Engagement of KPMG Corporate Finance

Gentlemen:

This letter confirms the terms of the agreement (the “Agreement”) by and between KPMG Corporate Finance LLC (“KPMGCF”) and Empire Resorts, Inc. (“Empire”) and its subsidiary Monticello Raceway Management Inc. (“MRMI” and collectively with Empire, the “Company”) whereby the Company, from the date of this Agreement through the end of the Engagement Period (as defined below), has retained KPMGCF as the Company’s exclusive financial advisor to raise for the Company up to $75 million in newly sourced capital (the “Transaction”) to address pending maturity and contractual issues relating to the Company’s $65 million obligation to note holders under second lien notes due July 31, 2014 (callable by individual note holders on July 2 through July 31, 2009), and the transaction costs related thereto (the “Engagement”).

The term “Transaction” shall include, with respect to new funds sourced by KPMG pursuant to this Agreement: (i) a private placement of equity securities or debt obligations of the Company and/or any affiliate or subsidiary thereof, in one or more related transactions, to one or more “Accredited Investors” (as such term is defined in Rule 501 under the Securities Act) and/or source(s) of financing, in the form of debt obligations (including term and revolving debt and credit support facilities such as letters of credit), common stock, convertible preferred stock, convertible debt securities, preferred stock, equity-linked securities, warrants, equity or equity-linked joint ventures or other equity or equity-linked arrangements (collectively, “Securities”) and/or (ii) the direct repurchase or retirement of all or a portion of the existing debt obligations of the Company.

Neither the Company nor KPMGCF will offer or sell Securities in a Transaction to any investor unless it reasonably believes at the time of any offer and sale of the Securities that each purchaser of the Securities is an “Accredited Investor” or an otherwise sophisticated investor satisfactory to the Company and KPMGCF.  Neither the Company (or any person acting on its behalf) nor KPMGCF will offer or sell the Securities by any form of general solicitation or general advertising, including the methods described in Rule 502(c) under the Securities Act.  The Company will file in a timely manner with the Securities and Exchange Commission (the “SEC”) any notices with respect to the Securities required by Rule 503 and will furnish to KPMGCF promptly thereafter a signed copy of each such notice. The Company shall have the right to accept, limit the capital commitment of, or reject any proposed purchaser of the Securities.

All communications and inquiries from prospective investors regarding a Transaction, whether directed to Company (including but not limited to its officers, agents and employees), or Company’s counsel, accountants or other professionals, shall be re-directed to KPMGCF or KPMGCF shall be given notice of same.

1.           Scope of Engagement.  KPMGCF’s representation of the Company in connection with the Engagement will include, at the reasonable request or direction of the Company and in conjunction with the Company’s legal and other advisors:

(a)         Analyzing the Company’s business and financial projections;

(b)         Evaluating the Company’s strategic and financial alternatives;

(c)         Advising the Company on strategies for negotiating with the holders of existing debt and other liabilities of the Company (the “Creditors”) and other stakeholders of the Company (including, without limitation, the Company’s suppliers, customers and employees and governmental officials, and their respective professionals) in connection with any of the services to be provided by this Agreement;

(d)         Participating in meetings or negotiations with the Creditors and other stakeholders in connection with Section 1(c);

(e)         Meeting with the Company’s Officers or Board of Directors to discuss the proposed financial restructuring;

(f)          Assisting the Company in evaluating, structuring, negotiating and implementing the terms and conditions of the proposed financial restructuring;

(g)         Preparing descriptive materials to be provided to potential parties to a Transaction;

(h)         Assisting the Company in identifying, contacting and screening potential parties to a Transaction;

(i)          Assisting the Company to prepare a due diligence data room and to coordinate the due diligence investigations of potential parties to a Transaction;

(j)          Analyzing proposals that are received from potential parties to a Transaction;

(k)         If applicable, evaluating the prospects for debtor-in-possession financing, cash collateral usage and adequate protection therefore, and the prospects for exit financing in connection with any plan of reorganization and any budgets relating thereto;

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(l)          If applicable, assisting the Company in the preparation of a disclosure statement and plan of reorganization (collectively, a “Plan”) and in the confirmation of such Plan;

(m)        If applicable, providing testimony in court, on behalf of the Company, if necessary or as reasonably requested by the Company, subject to the terms of this Agreement; and

(n)         Performing such other services as may be mutually agreed upon.

2.           Additional Services.  KPMGCF’s services are limited to those specifically set forth in Section 1 or subsequently agreed upon in writing by the parties hereto, and KPMGCF shall have no obligation or responsibility to provide any other services.  Any services beyond the scope of this Agreement, including any services that the Company may request in the event of a bankruptcy proceeding, shall be subject to a written agreement and such fees as agreed to between KPMGCF and the Company.  KPMGCF is providing its services hereunder as an independent contractor, and the parties agree that this Agreement does not create an agency or fiduciary relationship between KPMGCF and the Company.

3.           Representation.  KPMGCF’s duties hereunder run solely to the Company. All financial advice, written or oral, provided by KPMGCF to the Company pursuant to this Agreement is intended solely for the use and benefit of the Company, which agrees that such advice may not be disclosed publicly (except in court pleadings, if any, to be filed by the Company in connection with the Transaction) or made available to third parties without the prior written consent of KPMGCF. At the direction of the Company’s counsel, certain communications and correspondence between KPMGCF and the Company, and work product and analyses prepared by KPMGCF for the Company in connection with this matter, will be considered to have been made in preparation for litigation over the restructuring of the Company, and accordingly will be subject to attorney-client and work-product privileges. Any non-public information provided to KPMGCF shall not be disclosed by KPMGCF without the prior written consent of the Company.

4.           Term of Agreement.  This Agreement shall commence as of the Effective Date (as defined below) and shall continue until September 30, 2009, and may be extended thereafter upon the mutual written agreement of both parties or terminated after the expiration of fourteen (14) days after either party gives written notice of termination to the other party. (the “Engagement Period”).  The provisions of Section 4 and Section 5 shall survive any termination of this Agreement to the extent such provisions relate to the payment of fees due and expenses incurred on or before the effective date of termination.  The provisions of Section 3 and Section 8 through Section 22 shall also survive any termination of this Agreement and shall remain in effect.  Additionally, if this Agreement is terminated by the Company, KPMGCF shall be entitled to payment of:  Transaction Fee (as defined below) if an agreement with respect to a Transaction is entered into, or a Transaction is announced or consummated, within twelve (12) months of the effective date of such termination with respect to (i) prospective investors sourced by KPMGCF pursuant to this Agreement who have executed a nondisclosure agreement prior to the date of termination of this Agreement relating to their interest in participating in a Transaction and who have received substantive transaction information from KPMGCF regarding such Transaction, or (ii) if Empire waives the requirement of a nondisclosure agreement and KPMGCF has provided a prospective investor sourced by KPMGCF pursuant to this Agreement with substantive transaction information regarding such transaction prior to the date of termination of this Agreement.  Empire may terminate this agreement upon written notice to KPMGCF in the event that Lorie Beers is no longer employed by KPMGCF or is no longer responsible for managing the Company’s account.

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5.           Fees and Expenses.

(a)         Retainer.  An earned upon receipt and non-refundable (including, without limitation, upon the filing by the Company of a voluntary petition for relief under the Bankruptcy Code (as defined below)) retainer of $75,000 payable in cash upon the signing of this Agreement.

(b)         Monthly Fee.  An earned upon receipt monthly fee of $60,000 payable in cash on the first day of each month thereafter.

(c)         Transaction Fee.  In addition to all other payments pursuant to this Section 5, (i) immediately upon consummation of a Restructuring Transaction, the Company shall pay KPMGCF a cash fee equal to the pro rata portion of the Minimum Fee based on the percentage of the outstanding debt obligations that are modified (the “Restructuring Fee”) and (ii) immediately upon consummation of a Recapitalization Transaction, the Company shall pay KPMGCF a cash fee (the “Recapitalization Fee” and, together with the Restructuring Fee, the “Transaction Fee”) equal to the greater of (a) the Minimum Transaction Fee or (b) the sum of the following percentages of the Recapitalization Consideration (as defined below):

(i)           6.0% of any Recapitalization Consideration from $0-$10 million, plus

(ii)          3.0% of any Recapitalization Consideration between $10 million and $25 million, plus

(iii)        2.25% of any Recapitalization Consideration between $25 million and $45 million, plus

(iv)        2.0% of any Recapitalization Consideration between $45 million and $65 million, plus

(v)         1.5 % of any Recapitalization Consideration between $65 and $75 million;

;provided, however, for purposes of clarification, the Restructuring Fee and the Recapitalization Fee shall not both be applied to the same portion of the indebtedness that is restructured or refinanced.

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(d)         Notwithstanding anything to the contrary in this Agreement:

(A) No Transaction Fee or Minimum Transaction Fee shall be paid to KPMGCF with respect to any refinancing or acquisition of the first mortgage credit facility of up to $10 million by the parties listed on Exhibit A attached hereto, during or after the Engagement Period; and

(B) 50% of the Transaction Fee shall be paid to KPMGCF, subject to the Minimum Transaction Fee, with respect to a Transaction with the parties listed on Exhibit B attached hereto, or their respective parent, subsidiaries, beneficial owners or other affiliates, which entities have been sourced by Empire prior to the date of this Agreement, provided the Transaction is executed on or before June 15, 2009 or 75% of the Transaction Fee shall be paid to KPMGCF, subject to the Minimum Transaction Fee, provided the Transaction is executed within the Engagement Period and closed during or after such period.

“Recapitalization Transaction” means a private or public placement of securities or debt obligations of the Company and/or any affiliate or subsidiary thereof, in one or more related transactions, to one or more investor(s) and/or source(s) of financing, in the form of debt obligations (including term and revolving debt and credit support facilities such as letters of credit), common stock, convertible preferred stock, convertible debt securities, preferred stock, equity-linked securities, warrants, equity or equity-linked joint ventures or other equity or equity-linked arrangements (collectively, “Securities”).

“Restructuring Transaction” means any modification to the existing debt obligations including without limitation, the direct or indirect repurchase of all or a portion of the existing debt obligations of the Company, modification of the terms of the existing debt obligations, or the exchange of the existing debt obligations for new debt obligations or debt or equity securities or any combination thereof.

“Recapitalization Consideration” means:

(A)           The total consideration for the Securities sold which is received, directly or indirectly, by the Company, including the assumption or extinguishment of indebtedness, the issuance of guarantees and contingent payment obligations; and

(B)           Any amounts paid into escrow and amounts payable in the future whether or not subject to any contingency.

(e)          “Minimum Transaction Fee” shall mean a minimum cash fee equal to $500,000 payable to KPMGCF contemporaneously upon the consummation of a Transaction provided, that the Company shall be obligated to pay the Minimum Transaction Fee only once. Only the Minimum Transaction Fee shall be paid to KPMGCF in the event of a settlement with existing holders of the Company’s second lien notes.  When calculating the Minimum Transaction Fee, the Company will not be credited with the Retainer or Monthly Fees paid to KPMG up to the date of closing of the Transaction.

(f)          Expense Reimbursement.  In addition to all other payments pursuant to this Section 5, the Company shall reimburse KPMGCF for all reasonable out-of-pocket expenses incurred in connection with the services to be provided under this Agreement, promptly as billed.  Out-of-pocket expenses shall include, but not be limited to, all reasonable travel expenses, expenses incurred in connection with background screening, computer and research charges, attorney fees incurred in connection with the documentation of this Agreement and obtaining Bankruptcy Court approval hereof, messenger services and long-distance telephone and cellular calls incurred by KPMGCF in connection with the services to be provided to the Company.  Payment of all fees and reimbursed out-of-pocket expenses shall be made in care of KPMG Corporate Finance LLC, Attention: Rebecca McGinley, per the following wire transfer instructions:

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Wire Transfer Instructions:

BB&T

200 E Pratt Street, Ste 2051

Baltimore, MD 21202-6103

ABA #055003308

Account #0005156267076

6.           Confidential Information.  In connection with KPMGCF’s engagement, the Company will furnish KPMGCF with all information that KPMGCF reasonably requests and will provide KPMGCF with access to the Company’s officers, directors, accountants, counsel and other advisors, and will otherwise cooperate with KPMGCF in all phases of its financial advisory services.  The Company recognizes and confirms that in rendering services hereunder, KPMGCF will be using and relying on, and assuming the accuracy of, without any independent verification, data, material and other information (collectively, the “Information”) furnished to KPMGCF by or on behalf of the Company or other third parties (including their agents, counsel, employees and representatives).  The Information will be, to the Company’s best knowledge, accurate and complete in all material respects at the time it is provided, and the Company hereby agrees to correct any Information so provided to KPMGCF if it subsequently becomes aware that any such Information was or has become inaccurate or misleading in any respect.  The Company understands that KPMGCF will not be responsible for independently verifying the accuracy of the Information and shall not be liable for inaccuracies in any such Information.  The Company will assure that all Information supplied to KPMGCF by or on behalf of the Company will, as of its respective dates, be accurate and complete in all material respects.

7.           Choice of Law; Jury Trial.  This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to any principles of conflict of laws.  To the extent permitted by law, the parties to this Agreement waive any right to trial by jury in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) related to or arising out of the engagement of KPMGCF pursuant to, or the performance by KPMGCF of the services contemplated by, this Agreement.

8.           Dispute Resolution; Jurisdiction.

(a)         Any controversy arising out of or concerning this Agreement shall be determined by arbitration upon the initiation of either party, and shall be settled and conclusively resolved by a single, mutually-acceptable arbitrator who shall be experienced in corporate finance matters (including mergers and acquisitions).  The cost of such arbitrator shall be borne equally by the parties.  The arbitration shall be conducted under the auspices of, and subject to the rules of, the Financial Industry Regulatory Authority (“FINRA”).  If the parties are unable to agree upon an arbitrator, the arbitrator shall be selected in accordance with FINRA rules.  The arbitration shall be conducted in New York, New York and the written decision of the arbitrator shall be final and binding on the parties and enforceable in any court of competent jurisdiction.  If the dispute or controversy between the parties concerns the determination or calculation of fees payable to KPMGCF hereunder, KPMGCF and the Company agree that the amounts in dispute shall be placed in an escrow account upon the consummation of the Transaction (with any amounts not in dispute being paid to KPMGCF at closing) pending the outcome of the arbitration.

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(b)         Notwithstanding the provisions of Section 9(a), in the event that the Company files a voluntary petition for relief under the Bankruptcy Code, the parties hereby consent and submit to the exclusive jurisdiction of the Bankruptcy Court for any actions, suits or proceedings arising out of or relating to this Agreement and all matters contemplated hereby and agree not to commence any action, suit or proceeding relating thereto except in such court.

9.           Severability.  If it is found in a final judgment by a court of competent jurisdiction (not subject to further appeal) that any term or provision hereof is invalid or unenforceable, (a) the remaining terms and provisions hereof shall be unimpaired and shall remain in full force and effect and (b) the invalid or unenforceable provision or term shall be replaced by a term or provision that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term or provision.

10.         Counterparts.  This Agreement may be executed simultaneously in two counterparts, and by the parties hereto in separate counterparts, each of which when executed will be deemed an original, but all of which taken together will constitute one and the same instrument.  Any signature delivered by facsimile or electronic mail shall be deemed to be an original signature hereto.

11.         Publicity.  When the Transaction is completed, and subject to compliance with applicable securities laws, KPMGCF may, at its option and expense, place announcements and advertisements or otherwise publicize the Transaction and KPMGCF’s role in it (which may include the reproduction of the Company’s logo) on KPMGCF’s internet website and in such newspapers and periodicals as it may choose stating that KPMGCF has acted as financial advisor to the Company with respect to the Transaction.

12.         Entire Agreement.  This Agreement embodies the entire agreement and understanding of the parties hereto and supersedes any and all prior agreements, arrangements and understanding relating to the matters provided for herein.  No alteration, waiver, amendment, change or supplement hereto shall be binding or effective unless the same is set forth in writing signed by a duly authorized representative of each party.

13.         Attorneys’ Fees.  If any party to this Agreement brings an action directly or indirectly based upon this Agreement or the matters contemplated hereby against any other party, the prevailing party shall be entitled to recover from the non-prevailing party, in addition to any other appropriate amounts, its reasonable costs and expenses in connection with such proceeding, including, but not limited to, reasonable attorneys’ fees (including in-house counsel) and court costs.

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14.         Indemnification.

(a)         The Companyshall defend, indemnify and hold harmless KPMGCF, its affiliates, and their respective directors, officers, members, employees, agents, representatives and controlling persons (KPMGCF and each such entity or person being an “Indemnified Party”) from and against any and all losses, claims, damages, expenses and liabilities (collectively, “Losses”), as incurred, to which such Indemnified Party may become subject, related to or arising out of activities performed by or on behalf of an Indemnified Party pursuant to this Agreement, any transactions contemplated hereby, or the Indemnified Party’s role in connection therewith. The Company shall have no obligation to indemnify and hold harmless an Indemnified Party for any Losses found in a final judgment by a Court of competent jurisdiction to have resulted primarily from actions taken or omitted to be taken by the Indemnified Party in bad faith or from the Indemnified Party’s gross negligence or willful misconduct in performing the services described.

(b)         Promptly after receipt by an Indemnified Party of notice of any claim or the commencement of any action, suit or proceeding with respect to which an Indemnified Party may be entitled to indemnity hereunder, the Indemnified Party will notify the Company in writing of such claim or of the commencement of such action or proceeding, provided that the failure to notify the Company shall not relieve it from any liability under this Agreement except to the extent it has been materially prejudiced by such failure.  The Companymay, upon written notice to the Indemnified Party,assume the defense of such claim, action, suit or proceeding, will employ counsel satisfactory to the Indemnified Party to represent the Indemnified Party, and will pay the fees and disbursements of such counsel, as incurred.  Each Indemnified Party shall have the right to retain its own counsel at its own expense.  Notwithstanding the foregoing, the Company shall not have the right to assume the defense of such claim, action, suit or proceeding and shall pay or reimburse as incurred the fees and expenses of not more than one separate law firm per relevant jurisdiction (including local counsel) representing such Indemnified Party if (a) the Company shall have failed to timely assume the defense of such claim, action, suit, or proceeding, or (b) the named parties to any such claim, action, suit, or proceeding (including any impleaded parties) include one or more Indemnified Parties and the Company and the Indemnified Party shall have reasonably concluded that a conflict may arise between the positions of the Indemnified Party and the Company or that there may be legal defenses available to it that are different from or additional to those available to the Company.

(c)         The Company shall not be liable for any settlement of any claim, action, suit, or proceeding without its consent (which consent shall not be unreasonably withheld), but, if settled with its consent or if there be final judgment for a plaintiff in any claim, suit, action, or proceeding, the Company shall defend, indemnify, and hold harmless each Indemnified Party from and against any and all Losses by reason of such settlement or judgment to the extent provided in this Agreement.  Notwithstanding the immediately preceding sentence, if at any time an Indemnified Party shall have requested the Company to reimburse such Indemnified Party for legal or other expenses in connection with investigating, responding to, or defending any claim, action, suit, or proceeding as contemplated by this Agreement, the Company shall be liable for any settlement of any such claim, action, suit, or proceeding without its consent if (a) such settlement is entered into more than 30 days after receipt by the Company of such request for reimbursement and (b) the Company shall not have reimbursed such Indemnified Party in accordance with such request prior to the date of such settlement.  The Companyshall not, without the Indemnified Party’s prior written consent, settle, compromise or consent to the entry of any judgment in any pending or threatened claim, action or proceeding in respect of which indemnification could be sought under this Agreement (whether or not any Indemnified Party is an actual or potential party to such claim, action or proceeding), unless such settlement, compromise or consent includes an unconditional release of each Indemnified Party from all liability arising out of such claim, action or proceeding and does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any Indemnified Party.

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(d)         In the event any Indemnified Party is requested or required to appear as a witness in any action, suit or proceeding brought by or on behalf of or against the Company or any affiliate or any participant in a Transaction covered hereby in which such Indemnified Party is not named as a party, the Company agrees to reimburse the Indemnified Party for all reasonable expenses incurred by it in connection with such Indemnified Party’s appearing and preparing to appear as a witness, including, without limitation, the fees and disbursements of its legal counsel, and to compensate KPMGCF at its then-prevailing hourly rates.

15.         Contribution.

If for any reason the indemnification provided in this Agreement is unavailable to an Indemnified Party or insufficient to hold an Indemnified Party harmless, the Company shall contribute to the amount paid or payable by such Indemnified Party as a result of such Losses (or actions or proceedings in respect thereof) in such proportion as is appropriate to reflect the relative benefits received or proposed to be received by the Company on one hand and the Indemnified Party on the other hand in connection with services provided by KPMGCF under this Agreement.  If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or otherwise, the Company shall contribute to such amount paid or payable by any Indemnified Party to reflect not only the relative benefits but also the relative fault of the Company on the one hand and the Indemnified Parties on the other hand in connection with any actions or omissions or any other matters that result in any such Losses as well as any other relevant equitable considerations.  Relative benefits to the Company, on the one hand, and to an Indemnified Party, on the other hand, shall be deemed to be in the same proportion as (a) the total value of the Transaction or proposed Transaction bears to (b) all fees actually received by KPMGCF under the Agreement.  Notwithstanding the foregoing, the aggregate contribution of all Indemnified Parties to all Losses shall not exceed the amount of fees actually received by KPMGCF under this Agreement.

16.         Reimbursement of Litigation Expenses.

The Company also agrees to reimburse KPMGCF, its affiliates, and their respective directors, officers, members, employees, agents, representatives and controlling persons for all expenses (including counsel fees and disbursements) as they are incurred by such entity or person in connection with the investigation of, preparation for, or defense of any pending or threatened claim, or any action, investigation, suit or proceeding related to or arising out of activities performed by or on behalf of such entity or person pursuant to this Agreement, any transactions contemplated hereby, or its or his role in connection therewith, whether or not such entity or person is a party and whether or not such claim, action or proceeding is initiated or brought by or on behalf of the Company.

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17.         Limitation of Liability.

The Company alsoagrees that KPMGCF, its affiliates, and their respective directors, officers, members, employees, agents, representatives and controlling persons shall not be liable (whether directly or indirectly, in contract or tort or otherwise) to the Company or its security holders or creditors, for any matter, cause or thing related to or arising out of the engagement of KPMGCF pursuant to, or the performance by KPMGCF of the services contemplated by, this Agreement, except to the extent that KPMGCF is found in a final judgment by a Court of competent jurisdiction to have acted or failed to act in bad faith or with gross negligence or willful misconduct in performing the services described in this Agreement.

The provisions of Sections 15, 16, 17 and 18 shall be in addition to any liability that the Company may otherwise have and shall be binding upon and inure to the benefit of any successors, assigns, heirs, and personal representatives of the Company. These provisions shall be operative in full force and effect regardless of any termination or expiration of this Agreement.

18.         Successors and Assigns.  The benefits of this Agreement shall inure to the respective successors and permitted assigns of the parties hereto and the obligations and liabilities assumed in this Agreement by the parties hereto shall be binding upon their respective successors and assigns.  This Agreement may not be assigned without the prior written consent of the nonassigning party.

19.         No Conflict.  KPMGCF has informed you that it is currently providing services to several industry participants, some of which may be competitors of the Company. You agree that the Company and its directors and shareholders will not commence any action, suit or proceeding or make any demand, complaint or claim against KPMGCF, its subsidiaries or affiliates, or their partners, directors, officers, or other personnel during or subsequent to the Engagement Period alleging that KPMGCF was in a conflict of interest by providing services to both the Company and other industry participants.

20.         Member Firms.  KPMGCF may, in its discretion, request that employees of one of its member firms affiliated with KPMG International (“Member Firms”) assist KPMGCF in its performance under this Agreement.  KPMGCF will remain responsible to Company for the conduct of any such Member Firms in connection with the performance of this Agreement.  Company acknowledges that Member Firms are not parties to this Agreement and the obligations set out in this Agreement are intended to be enforceable by Company only against KPMGCF.

21.         Force Majeure.  KPMGCF shall have no liability for delays, failure in performance, or damages due to fire, explosion, lighting, power surges or failures, strikes or labor disputes, water, acts of god, the elements, war, civil disturbances, acts of civil or military authorities, telecommunications failure, fuel or energy shortages, acts or omissions of communications carriers, or other causes beyond KPMGCF’s control whether or not similar to the foregoing.

10

22.          Intellectual property.  KPMGCF shall retain ownership of the copyright and all other intellectual property rights in the product of KPMGCF’s services performed hereunder, whether oral or tangible, and ownership of KPMGCF’s work papers.  Company shall acquire ownership of any product of the services performed in its tangible form upon payment in full of KPMGCF’s fees and full reimbursement of expenses.  For the purposes of delivering services to Company and other KPMGCF clients, KPMGCF and its related entities shall be entitled to use, develop or share with each other knowledge, experience and skills of general application gained through performing the services hereunder.

This Agreement shall be effective as of June 3, 2009 (the “Effective Date”).

EMPIRE RESORTS, INC.
By:	/s/ Joseph E. Bernstein
	Name:	Joseph E. Bernstein
	Title:	President and CEO

MONTICELLO RACEWAY MANAGEMENT INC.
By:	/s/ Ronald Radcliffe
	Name:	Ronald Radcliffe
	Title:	Treasurer and Secretary

KPMG CORPORATE FINANCE LLC
By:	/s/ Lorie R. Beers
	Name:	Lorie R. Beers
	Title:	Managing Director

11

EX-10.2

Exhibit 10.2

EMPLOYMENT AGREEMENT

This EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of June 1, 2009 (the “Effective Date”), by and between Empire Resorts, Inc., a Delaware corporation (the “Company”), and Joseph E. Bernstein (“Executive”, and the Company and the Executive collectively referred to herein as the “Parties”).

W I T N E S S E T H:

WHEREAS, the Company desires to hire Executive and to employ him as the Chief Executive Officer (“CEO”) of the Company, and the Parties desire to enter into this Agreement embodying the terms of such employment;

NOW, THEREFORE, in consideration of the premises and the mutual covenants and promises of the Parties contained herein, the Parties, intending to be legally bound, hereby agree as follows:

1.           Title and Job Duties.

A.           Subject to the terms and conditions set forth in this Agreement, the Company agrees to employ Executive as CEO.  Executive shall report directly to the Board of Directors of the Company (the “Board”).

B.           Executive accepts such employment and agrees, during the term of his employment, to devote substantially all his work time and attention to the Company, and agrees faithfully to perform his duties and responsibilities in an efficient, trustworthy and business like manner.  Executive also agrees that the Board shall determine from time to time such other duties as may be assigned to him customary for a Chief Executive Officer.  Executive agrees to carry out and abide by such directions of the Board.  Executive acknowledges that he will perform substantially all his duties in the Company’s New York office or New York City Metro Area..

C.           Anything herein to the contrary notwithstanding, during the Term, nothing shall preclude the Executive from managing his personal affairs and investments, existing real estate development projects, existing legal matters and responsibilities with the Catskill Litigation Trust, provided that none of these activities materially interfere with the proper performance of his duties and responsibilities hereunder.

2.           Salary and Additional Compensation.

A.           Base Salary.  During the Term, the Company shall pay to Executive an annual base salary of $500,000, less applicable withholdings and deductions, in accordance with the Company’s normal payroll procedures.

B.           Bonus.  The Executive shall be entitled to participate in any annual bonus plan maintained by the Company for its senior executives on such terms and conditions as may be determined from time to time by the Compensation Committee of the Board.  The payment of any such bonus shall be in the absolute discretion of the Board or Compensation Committee.

Joseph E. Bernstein

June 1, 2009

Page 2

C.           Equity Compensation.  The Executive shall be entitled to participate in the Company’s equity based incentive programs to the extent such programs are put into place and maintained for the Company’s senior executives on such terms and conditions as may be determined from time to time by the Compensation Committee of the Board, consistent with this Agreement, and commensurate with his position.

D.           Sign-on Stock Option Grants.  As of the date of execution of this Agreement (“Execution Date”), the Company shall grant the Executive, subject to stockholder approval of an amendment to the Company’s 2005 Equity Incentive Plan (the “Plan”), a 5-year non-qualified stock option to purchase 500,000 shares of the Company’s common stock pursuant to the Plan, at an exercise price per share determined at the close of business on the Execution Date, which shall be the date of grant. The options under this paragraph shall vest 33% six (6) months following the grant date, 33% twelve (12) months following the grant date, and 34% eighteen (18) months following the grant date, and subject to earlier vesting as provided herein.  If this Agreement is not extended as provided herein for an additional 12 months after the initial six-month period of the Term, all of the options granted under this paragraph shall vest on December 31, 2009, provided, however, if Executive is terminated for Cause or if Executive resigns, all options granted hereunder shall be considered in accordance with, and governed by, the Plan. For purposes of this Agreement, “Cause” shall mean that the Executive (i) pleads “guilty” or “no contest” to or is convicted of an act which is defined as a felony under federal or state law or as a crime under federal or state law which involves Executive’s fraud or dishonesty, (ii) in carrying out his duties, engages in conduct that constitutes willful neglect or willful misconduct; provided such plea, conviction, neglect or misconduct results in material economic harm to the Company, (iii) Executive’s failure to apply for, eventually obtain and subsequently maintain required licenses in the jurisdiction where the Company currently operates or has plans to operate, or (iv) the Executive’s material breach of this Agreement.   The options shall not terminate before their ultimate 5-year expiration date because the Term or any extension thereof has previously expired.

E.           Additional Stock Option Grants.  The Company shall grant the Executive, subject to stockholder approval of an amendment to the Company’s Plan, a 10-year non-qualified stock option to purchase 1,000,000 shares of the Company’s common stock pursuant to the Plan, at an exercise price per share determined at the close of business on the Execution Date, which shall be the date of grant, vesting upon the consummation of a Debt Restructure (as defined in 3.B below) with an entity sourced by the Executive before or after the Effective Date, including but not limited to the persons and entities set forth on Exhibit A, their beneficial owners, family members or affiliates. The options shall not terminate before their ultimate 10-year expiration date because the Term or any extension thereof has previously expired.

F.           Previous Stock Option Grants.  Nothing in this Agreement shall affect the terms and conditions relating to the grant of 500,000 stock options to the Executive prior to the date of this Agreement, provided, however, that the April 27, 2009 grant of 250,000 options shall vest upon a Debt Restructure.  The options shall not terminate before their ultimate 5-year expiration date because the Term or any extension thereof has previously expired.

Joseph E. Bernstein

June 1, 2009

Page 3

G.           Expenses.  In accordance with Company policy, the Company shall reimburse Executive for all reasonable business expenses properly and necessarily incurred and paid by Executive in the performance of his duties under this Agreement upon his presentment of detailed receipts in the form required by the Company’s policy, however, Executive acknowledges and agrees that the Company shall not reimburse Executive for travel expenses related to travel between Florida and New York.

H.           Benefits.  The Executive shall be entitled to participate in all employee benefit plans, practices and programs maintained by the Company and made available to senior level executive officers generally and as may be in effect from time to time.  The Executive’s participation in such plans, practices and programs shall be on the same basis and terms as are applicable to senior level executive officers of the Company generally.  Such level of benefits shall be at a level commensurate with the Executive’s position as Chief Executive Officer.  In addition, all options referenced in Sections 2 D., E., and F. hereof shall be exercisable by the estate of Executive through the respective term of each such option.

I.           Vacation.  Executive shall be entitled to four (4) weeks vacation on an annual basis.

J.           Health Insurance D & O, Indemnification and Other Plans. As of the Effective Date, Executive shall be eligible to participate in the Company’s medical, dental, D & O, and other employee benefit programs, if any, that are provided by the Company for its employees at Executive’s level in accordance with the provisions of any such plans, as the same may be in effect from time to time. Executive shall be entitled to COBRA benefits upon termination of the Term or any extended term.

K.           Assistance.  The Company shall provide the Executive access to a Secretary during business hours. Should the Executive believe that it is necessary to hire a full or part-time executive assistant, the decision to hire such an assistant shall be in the sole discretion of the Board of Directors of the Company and the Company shall determine the appropriate duties and salary level of the assistant.

3.           Term and Termination.

A.           The term of this Agreement (“Term”) will commence on the Effective Date and shall remain in effect through December 31, 2009 and will continue for a subsequent one (1) year extension if a Debt Restructure, as defined in paragraph 3.B below, has occurred during the initial six month Term.

B.           For purposes of this Agreement, “Debt Restructure” shall be defined as the combination of one or more of a restructuring, refinancing, deferral of puts under the Convertible Secured Notes, a buy out of note holders’ interests in the Convertible Secured Notes, in whole or part, or other similar transaction(s) between the Effective Date and December 31, 2010, relating to all of the Company's existing secured debt obligations under its $65,000,000 5½% Convertible Senior Notes due 2014 and credit facility with Bank of Scotland (“Secured Debt Obligations”), such that either (i) the Company has restructured its Secured Debt Obligations so that the Secured Debt Obligations or any replacements thereof shall not become due prior to December 31, 2010 (other than any interest payments thereon) and has not filed for bankruptcy protection under the Federal bankruptcy laws, or (ii) on or before December 31, 2010, the Company has filed for and emerged from bankruptcy under the Federal bankruptcy laws, and the Company’s shareholders at the time the Company emerges from bankruptcy hold at least fifty percent (50%) of the equity in the post-bankruptcy or post-restructured Company.

Joseph E. Bernstein

June 1, 2009

Page 4

4.           Confidentiality Agreement.

A.           Executive understands that during the Term, he may have access to unpublished and otherwise confidential information both of a technical and non-technical nature, relating to the business of the Company and any of its parents, subsidiaries, divisions, affiliates (collectively, “Affiliated Entities”), or clients, including without limitation any of their actual or anticipated business, research or development, any of their technology or the implementation or exploitation thereof, including without limitation information Executive and others have collected, obtained or created, information pertaining to clients, accounts, vendors, prices, costs, materials, processes, codes, material results, technology, system designs, system specifications, materials of construction, trade secrets and equipment designs, including information disclosed to the Company by others under agreements to hold such information confidential (collectively, the “Confidential Information”).  Executive agrees to observe all Company policies and procedures concerning such Confidential Information.  Executive further agrees not to disclose or use, either during his employment or at any time thereafter, any Confidential Information for any purpose, including without limitation any competitive purpose, unless authorized to do so by the Company in writing, except that he may disclose and use such information when necessary in the performance of his duties for the Company.  Executive’s obligations under this Agreement will continue with respect to Confidential Information, whether or not his employment is terminated, until such information becomes generally available from public sources through no fault of Executive.  Notwithstanding the foregoing, however, Executive shall be permitted to disclose Confidential Information as may be required by a subpoena or other governmental order, provided that he first notifies the Company of such subpoena, order or other requirement and allows the Company the opportunity to obtain a protective order or other appropriate remedy.

B.           During Executive’s employment, upon the Company’s request, or upon the termination of his employment for any reason, Executive will promptly deliver to the Company all documents, records, files, notebooks, manuals, letters, notes, reports, customer and supplier lists, cost and profit data, e-mail, apparatus, computers, blackberries or other PDAs, hardware, software, drawings, blueprints, and any other material of the Company or any of its Affiliated Entities or clients, including all materials pertaining to Confidential Information developed by Executive or others, and all copies of such materials, whether of a technical, business or fiscal nature, whether on the hard drive of a laptop or desktop computer, in hard copy, disk or any other format, which are in his possession, custody or control.

C.           Executive will promptly disclose to the Company any idea, invention, discovery or improvement, whether patentable or not related to the gaming business of the Company (“Creations”), conceived or made by him alone or with others at any time during his employment.  Executive agrees that the Company owns any such Creations, conceived or made by Executive alone or with others at any time during his employment, to the extent of the Executive’s interests therein, and Executive hereby assigns and agrees to assign to the Company all rights he has or may acquire therein and agrees to execute any and all applications, assignments and other instruments relating thereto which the Company deems necessary or desirable.  These obligations shall continue beyond the termination of his employment with respect to Creations and derivatives of such Creations conceived or made during his employment with the Company.  Executive understands that the obligation to assign Creations to the Company shall not apply to any Creation which is developed entirely on his own time without using any of the Company’s equipment, supplies, facilities, and/or Confidential Information unless such Creation (a) relates in any way to the business or to the current or anticipated research or development of the Company or any of its Affiliated Entities; or (b) results in any way from his work at the Company.

Joseph E. Bernstein

June 1, 2009

Page 5

D.           Executive will not assert any rights to any invention, discovery, idea or improvement relating to the business of the Company or any of its Affiliated Entities or to his duties hereunder as having been made or acquired by Executive prior to his work for the Company, except for the matters, if any, described in Appendix A to this Agreement.

E.           During the Term, if Executive incorporates into a product or process of the Company or any of its Affiliated Entities anything listed or described in Appendix A, the Company is hereby granted and shall have a non-exclusive, royalty-free, irrevocable, perpetual, worldwide license (with the right to grant and authorize sublicenses) to make, have made, modify, use, sell, offer to sell, import, reproduce, distribute, publish, prepare derivative works of, display, perform publicly and by means of digital audio transmission and otherwise exploit as part of or in connection with any product, process or machine.

F.           Executive agrees to cooperate fully with the Company, both during and after his employment with the Company, with respect to the procurement, maintenance and enforcement of copyrights, patents, trademarks and other intellectual property rights (both in the United States and foreign countries) relating to such Creations.  Executive shall sign all papers, including, without limitation, copyright applications, patent applications, declarations, oaths, formal assignments, assignments of priority rights and powers of attorney, which the Company may deem necessary or desirable in order to protect its rights and interests in any Creations.  Executive further agrees that if the Company is unable, after reasonable effort, to secure Executive’s signature on any such papers, any officer of the Company shall be entitled to execute such papers as his agent and attorney-in-fact and Executive hereby irrevocably designates and appoints each officer of the Company as his agent and attorney-in-fact to execute any such papers on his behalf and to take any and all actions as the Company may deem necessary or desirable in order to protect its rights and interests in any Creations, under the conditions described in this paragraph.

5.           Non-solicitation; non-competition.

A.           Executive agrees that, during the Term and until twelve (12) months thereafter, Executive will not, directly or indirectly, including on behalf of any person, firm or other entity, employ or solicit for employment any employee of the Company or any of its Affiliated Entities, or anyone who was an employee of the Company or any of its Affiliated Entities within the six (6) months prior to the termination of Executive’s employment, or induce any such employee to terminate his or her employment with the Company or any of its Affiliated Entities.

Joseph E. Bernstein

June 1, 2009

Page 6

B.           Executive further agrees that, during the Term and until twelve (12) months after the termination of his employment, Executive will not, directly or indirectly, including on behalf of any person, firm or other entity, without the express written consent of an authorized representative of the Company, (i) perform services within the Territory (as defined below) for any Competing Business (as defined below), whether as an employee, consultant, agent, contractor or in any other capacity, (ii) hold office as an officer or director or like position in any Competing Business, (iii) request any present or future customers or suppliers of the Company or any of its Affiliated Entities to curtail or cancel their business with the Company or any of its Affiliated Entities, and (iv) accept business from such customers or suppliers of the Company or any of its Affiliated Entities.  These obligations will continue for the specified period regardless of whether the termination of Executive’s employment was voluntary or involuntary or with or without Cause.

C.           “Competing Business” means any entity or person (other than the Company) which is engaged in the operation, development or planning of, or the preparation of applications or obtaining of approvals for, gaming projects within the Territory.

D.           “Territory” shall mean 120 miles of Monticello, New York

E.           Executive agrees that in the event a court determines the length of time or the geographic area or activities prohibited under this Section 7 are too restrictive to be enforceable, the court may reduce the scope of the restriction to the extent necessary to make the restriction enforceable.

F.           Representation and Warranty.  Executive represents and warrants to the Company that he is not subject to any non-competition provision of any other agreement restricting his ability fully to act hereunder.  Executive hereby indemnifies and holds the Company harmless against any losses, claims, expenses (including attorneys’ fees), damages or liabilities incurred by the Company as a result of a breach of the foregoing representation and warranty.

G.           Injunctive Relief.  Without limiting the remedies available to the Company, Executive acknowledges that a breach of any of the covenants contained in Sections 6 and 7 above may result in material irreparable injury to the Company for which there is no adequate remedy at law, that it will not be possible to measure damages for such injuries precisely and that, in the event of such a breach or threat thereof, the Company shall be entitled, without the requirement to post bond or other security, to obtain a temporary restraining order and/or injunction restraining Executive from engaging in activities prohibited by this Agreement or such other relief as may be required to specifically enforce any of the covenants in Sections 6 and 7 of this Agreement.

6.           Notice.  Any notice or other communication required or permitted to be given to the Parties shall be deemed to have been given if personally delivered, if sent by nationally recognized overnight courier or if mailed by certified or registered mail, return receipt requested, first class postage prepaid, and addressed as follows:

Joseph E. Bernstein

June 1, 2009

Page 7

i If to Executive, prior to July 1, 2009 to:

Joseph E. Bernstein

1045 Fifth Avenue, 8th Floor

New York, New York 10028

ii If to the Company, to:

Empire Resorts, Inc.

P.O. Box 5013

Monticello, New York 12701-5193

Attn. Compensation Committee Chairman

with a copy to:

Robert H. Friedman, Esq.

Olshan Grundman Frome Rosenzweig & Wolosky LLP

65 East 55th Street

New York, New York 10022

7.           Severability.  If any provision of this Agreement is declared void or unenforceable by a court of competent jurisdiction, all other provisions shall nonetheless remain in full force and effect.

8.           Governing Law.  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to the conflict of laws provisions thereof.  Any action, suit or other legal proceeding that is commenced to resolve any matter arising under or relating to any provision of this Agreement shall be submitted to the exclusive jurisdiction of any state or federal court in New York County.

9.           Waiver.  The waiver by either Party of a breach of any provision of this Agreement shall not be or be construed as a waiver of any subsequent breach.  The failure of a Party to insist upon strict adherence to any provision of this Agreement on one or more occasions shall not be considered a waiver or deprive that Party of the right thereafter to insist upon strict adherence to that provision or any other provision of this Agreement.  Any waiver must be in writing.

10.           Assignment.  This Agreement is a personal contract and Executive may not sell, transfer, assign, pledge or hypothecate his rights, interests and obligations hereunder.  Except as otherwise herein expressly provided, this Agreement shall be binding upon and shall inure to the benefit of Executive and his personal representatives and shall inure to the benefit of and be binding upon the Company and its successors and assigns, including without limitation, any corporation or other entity into which the Company is merged or which acquires all or substantially all of the assets of the Company.

Joseph E. Bernstein

June 1, 2009

Page 8

11.           Entire Agreement.  This Agreement (together with Exhibits A and B hereto) embodies all of the representations, warranties, and agreements between the Parties relating to Executive’s employment with the Company.  No other representations, warranties, covenants, understandings, or agreements exist between the Parties relating to Executive’s employment.  This Agreement shall supersede all prior agreements, written or oral, relating to Executive’s employment.  This Agreement may not be amended or modified except by a writing signed by the Parties.

[Signature page follows]

Joseph E. Bernstein

June 1, 2009

Page 9

IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered on the date above.

EMPIRE RESORTS, INC.
By:	/s/ Bruce Berg
	Name:	Bruce Berg
	Title:	Special Operating Committee

Agreed to and Accepted:

/s/ Joseph E. Bernstein

Joseph E. Bernstein