Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT (this "AGREEMENT"), dated as of November 12, 2004, by and
among ____________________ ("STOCKHOLDER"), Concord Associates Limited
Partnership ("CONCORD") and ▇▇▇▇▇▇▇▇ Resorts LLC ("▇▇▇▇▇▇▇▇," together with
Concord and their respective affiliates that own or lease any portion of the
Resort Properties, "TRANSFERORS").
WHEREAS, simultaneously with the execution hereof, Empire and Transferors
are entering into a Letter Agreement (as amended or supplemented from time to
time, the "LETTER AGREEMENT"), pursuant to which, among other things, Empire
shall acquire the Resort Properties from Transferors (the "TRANSFER") and Empire
shall issue the Purchase Shares to Transferors, in accordance with the terms and
conditions set forth in the Letter Agreement and in the Additional Agreements to
be entered into pursuant to the Letter Agreement (capitalized terms used without
definition herein shall have the meanings ascribed to such terms in the Letter
Agreement);
WHEREAS, as of the date hereof, Stockholder owns, beneficially and of
record, the outstanding common stock, par value $0.01 per share, of Empire (the
"COMMON STOCK") set forth on Exhibit A hereto (such shares of Common Stock and
any additional shares of Common Stock and any other voting securities of Empire
owned in the future by Stockholder being herein referred to as the "SHARES");
WHEREAS, the Board of Directors of Empire have, prior to the execution of
this Agreement, duly and validly approved, among other things, the execution and
delivery of this Agreement and the Letter Agreement (and, when and if executed,
the Additional Agreements), and the consummation of the transactions
contemplated by the Letter Agreement (and, when and if executed, the Additional
Agreements), including the Transfer and the governance arrangements for the
initial board of directors of Empire (the "CONTEMPLATED TRANSACTIONS"), and such
approval has not been withdrawn;
WHEREAS, approval of the Letter Agreement (and, when and if executed, the
Additional Agreements) and the Contemplated Transactions by Empire's
stockholders is a condition to the Closing; and
WHEREAS, in consideration of Transferors' agreement to enter into the
Letter Agreement (and, when and if executed, the Additional Agreements),
Stockholder, among other things, (i) agrees to vote the Shares in favor of the
Letter Agreement (and, when and if executed, the Additional Agreements) and the
Contemplated Transactions, including the Transfer (subject to the irrevocable
proxy provided for in Section 3 hereof (the "PROXY")), (ii) grants to
Transferors the Proxy covering the Shares to vote in favor of or consent to the
Letter Agreement (and, when and if executed, the Additional Agreements) and the
Contemplated Transactions, including the Transfer, and agrees to grant any
necessary consents, all in accordance with the terms set forth in this
Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. AGREEMENT TO VOTE. (a) From and after the date hereof until the
Termination Date (as defined in Section 1(b)), Stockholder hereby agrees to
attend the Stockholders Meeting (or any other meeting of stockholders of Empire
at which the matters contemplated by the Letter Agreement (and, when and if
executed, the Additional Agreements) or this Agreement are to be presented to a
vote of stockholders of Empire), in person or by proxy, and to vote (or cause to
be voted) the Shares for approval and adoption of the Letter Agreement (and,
when and if executed, the Additional Agreements) and the Contemplated
Transactions and any related action reasonably required in furtherance thereof,
and against any action inconsistent therewith, such agreement to vote to apply
also to any adjournment or adjournments or postponement or postponements of the
Stockholders Meeting of Empire (or any such other meeting). Stockholder hereby
further agrees that until the Termination Date, Stockholder shall, from time to
time, in connection with any solicitation for a written consent, including to
call a Stockholders Meeting relating to the Contemplated Transactions, timely
execute and deliver (or cause to be timely executed and delivered) a written
consent with respect to the Shares in favor of the approval of the Contemplated
Transactions and any action required in furtherance thereof.
(b) From and after the date hereof until the Termination Date, Stockholder
hereby agrees to vote (or cause to be voted) the Shares against (i) any
Acquisition Proposal and any related action reasonably required in furtherance
thereof, (ii) any alternative transaction involving the acquisition by Empire of
hotel, gaming, recreational or resort properties in the Catskills (an
"ALTERNATIVE TRANSACTION"), (iii) any action or agreement that would reasonably
be expected to result in a breach of any covenant, representation or warranty or
any other obligation or agreement of Empire under the Letter Agreement (and,
when and if executed, the Additional Agreements) or that would reasonably be
expected to result in any of the conditions to the obligations of the parties
under the Letter Agreement (and, when and if executed, the Additional
Agreements) not being fulfilled, and (iv) any other matter that would reasonably
be expected to prevent, interfere with or delay consummation of the Contemplated
Transactions, including any transaction that would result in a breach of the
Letter Agreement (and, when and if executed, the Additional Agreements) by
Empire, including, without limitation, any motion to adjourn or postpone a
meeting of the stockholders in which any matters contemplated by the Letter
Agreement (and, when and if executed, the Additional Agreements) or this
Agreement are to be presented to a vote of the stockholders of Empire to a date
that is later than July 31, 2005, in each case, at any meeting of stockholders
of Empire (including any adjournments or postponements thereof). Stockholder
further agrees that, until the Termination Date, in connection with any
solicitation for a unanimous written consent relating to an Acquisition Proposal
or an Alternative Transaction or any other action described in clauses (iii) or
(iv) above, Stockholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent with respect to the Shares against any
such Acquisition Proposal or Alternative Transaction or other action as
contemplated by the immediately preceding sentence. For purposes hereof, the
term "TERMINATION DATE" shall mean the first to occur of (a) the date of
termination of the Letter Agreement and, when and if executed, the Additional
Agreements in accordance with their respective terms prior to the Closing, and
(b) the date on which the Contemplated Transactions are consummated. For the
avoidance of doubt, the Termination Date shall be deemed not to occur in the
event that the Letter Agreement is terminated pursuant to the terms of
Additional Agreements, if any, upon the execution and delivery of any such
Additional Agreements.
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(c) The voting agreements contained in this Section 1 shall apply to any
Shares which Stockholder has the power to vote (or direct the voting of) as of
any record date fixed by Empire for a Stockholders Meeting with respect to the
Contemplated Transactions, other than any Exempt Shares disposed of in
accordance with the volume restrictions set forth in Section 2.
(d) Stockholder agrees to cooperate reasonably with Empire and the other
parties hereto in connection with the Letter Agreement (and, when and if
executed, the Additional Agreements) and the consummation of the Contemplated
Transactions, including without limitation, using its reasonable best efforts in
its capacity as a stockholder to cause the initial Empire board of directors to
be as set forth in Section 5 of the Letter Agreement and the corresponding
provisions of the Additional Agreements, effective as of such date.
SECTION 7. DISPOSITION OF SHARES. From and after the date hereof until the
first to occur of (1) ninety-first (91st) day after the date hereof, or (2) the
record date fixed by Empire for a Stockholders Meeting with respect to the
Contemplated Transactions (such period, the "FULL RESTRICTION PERIOD"),
Stockholder hereby agrees that Stockholder will not directly or indirectly sell,
pledge, encumber, grant any proxy or enter into any voting or similar agreement
with respect to, transfer or otherwise dispose of (collectively, "TRANSFER"), or
agree or contract to Transfer, any Shares (or any interest therein, including as
a trustee or in a similar fiduciary capacity) with respect to which Stockholder
directly or indirectly controls the right to Transfer. From and after the end of
the Full Restriction Period until the record date fixed by Empire for a
Stockholders Meeting with respect to the Contemplated Transactions, Stockholder
hereby agrees that Stockholder will not directly or indirectly Transfer, or
agree or contract to Transfer, a number of Shares (or any interest therein,
including as a trustee or in a similar fiduciary capacity) with respect to which
Stockholder directly or indirectly controls the right to Transfer greater than
one percent (1%) of the issued and outstanding shares of Common Stock of Empire
in any 90 consecutive day period (such Shares, the "EXEMPT SHARES"); provided
that following the Full Restriction Period, no Transfer (other than the Transfer
of Exempt Shares) shall be permitted or effective unless the transferee (and
each subsequent transferee) agrees (in a manner reasonably acceptable to
Transferors) to be bound in writing to the terms of this Agreement (including,
without limitation, voting provisions and transfer restrictions) with respect to
the Shares so transferred as if it were the initial Stockholder hereunder, and
such Transfer would not invalidate any of Stockholder's or such transferee's
voting power or prevent Stockholder or such transferee from fulfilling such
obligations. Notwithstanding anything in this Section 2 to the contrary,
Stockholder shall be entitled to Transfer Shares solely for purposes of estate
planning for the benefit of such Stockholder's spouse, children, grandchildren
or other living descendants, if such transferees (and each subsequent
transferee) agree (in a manner reasonably acceptable to Transferors) to be bound
in writing to the terms of this Agreement (including without limitation the
voting provisions and transfer restrictions hereof) with respect to the Shares
so transferred as if such transferee were the initial Stockholder hereunder, if
such Transfer would not invalidate any of Stockholder's or such transferee's
voting power or prevent Stockholder or such transferee from fulfilling such
obligations, and if Transferors are reasonably satisfied that such Transfers do
not interfere with the enforceability of the provisions of this Agreement
(including without limitation the voting provisions and transfer restrictions
hereof) or result in a reduction in the number of Shares that would otherwise be
subject to such provisions. Any Transfer of Shares not permitted hereby shall be
null and void.
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SECTION 3. PROXY WITH RESPECT TO SHARES. Stockholder hereby irrevocably
appoints Transferors as its attorney and proxy, with full power of substitution,
to vote or to act by consent in such manner as such attorney and proxy or its
substitute shall, in its sole discretion, deem proper, and otherwise act with
respect to all of the Shares which it is entitled to vote at any meeting of the
stockholders (whether annual or special and whether or not an adjourned meeting)
of Empire or to act by consent with respect to any action; PROVIDED, HOWEVER,
that Stockholder grants a proxy hereunder only with respect to the following
matters that may be presented to the stockholders of Empire (the "DESIGNATED
MATTERS"): (i) votes or consents with respect to the Letter Agreement (and, when
and if executed, the Additional Agreements) and the Contemplated Transactions,
including the Transfer; (ii) votes or consents with respect to any other matter
relating to the consummation of the Contemplated Transactions with respect to
which Stockholder may be entitled to vote; (iii) votes or consents with respect
to any action or agreement that would reasonably be expected to result in a
breach of any covenant, representation or warranty or any other obligation or
agreement of Empire under the Letter Agreement (and, when and if executed, the
Additional Agreements) or that would reasonably be expected to result in any of
the conditions to the obligations of the parties under the Letter Agreement
(and, when and if executed, the Additional Agreements) not being fulfilled; (iv)
votes or consents with respect to any other matter that would reasonably be
expected to prevent, interfere with or delay consummation of the Contemplated
Transactions, including any transaction that would result in a breach of the
Letter Agreement (and, when and if executed, the Additional Agreements) by
Empire, including, but not limited to, (a) any reorganization or liquidation
involving Empire, (b) any change in the board of directors of Empire, except as
otherwise agreed to in writing by Transferors, or (c) any material change in the
present capitalization of Empire; (v) votes or consents relating to any other
material change in the corporate structure or business of Empire; (vi) votes or
consents in favor and approval of the matters Stockholder has agreed to vote in
favor of in Section 1(a) hereof; and (vii) votes or consents against the matters
Stockholder has agreed to vote against in Section 1(b) hereof. This proxy is
irrevocable, is coupled with an interest sufficient in law to support an
irrevocable proxy and is granted in consideration of and as an inducement to
cause Transferors to enter into the transactions contemplated by the Letter
Agreement (and, when and if executed, the Additional Agreements). This proxy
shall revoke any other proxy granted by Stockholder at any time with respect to
the Shares and no subsequent proxies will be given by Stockholder with respect
to the Shares while the Proxy is in effect. In addition, if subsequent to the
date hereof Stockholder is entitled to vote the Shares or act by consent with
respect to the Shares for any purpose, it shall take all actions necessary to
vote, or act by consent with respect to, the Shares pursuant to instructions
received from Transferors; PROVIDED, HOWEVER, that the provisions of this
sentence shall only apply to the Designated Matters. This proxy shall apply to
any Shares which Stockholder has the power to vote (or direct the voting of) as
of any record date fixed by Empire for a Stockholders Meeting with respect to
the Contemplated Transactions, other than any Exempt Shares disposed of in
accordance with the volume restrictions set forth in Section 2.
SECTION 4. ACQUISITION PROPOSALS. (a) Without limiting Stockholder's other
obligations under this Agreement, Stockholder agrees that it shall not, and
shall cause its representatives (including any investment banker, attorney or
accountant retained by it) ("REPRESENTATIVES") not to, directly or indirectly,
initiate or solicit any inquiries or the making of any proposal or offer with
respect to an Acquisition Proposal. Stockholder further agrees that it shall
not, and shall cause its Representatives not to, directly or indirectly, engage
in any negotiations concerning, or provide any confidential information or data
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to, or have any discussions with, any person or entity relating to an
Acquisition Proposal. Stockholder agrees that it will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any person or entity conducted heretofore with respect to any Acquisition
Proposal. Stockholder agrees that it will take the necessary steps to promptly
inform the individuals or entities referred to in the first sentence of this
Section of the obligations undertaken in this Section. Stockholder agrees that
it will notify Transferors promptly, but in any event within 48 hours if any
such inquiries, proposals or offers are received by, any such information is
requested from, or any such discussions or negotiations are sought to be
initiated or continued with, it or any of its Representatives indicating, in
connection with such notice, the name of such person or entity and the material
terms and conditions of any proposals or offers and thereafter shall keep
Transferors informed on a current basis, and, in any event, within 48 hours of
any changes in the status and terms of any such proposals or offers, including
whether any such proposal has been withdrawn or rejected.
(b) From and after the date hereof until the Termination Date, (i)
Stockholder shall work exclusively with Transferors in connection with any
transaction involving the direct or indirect acquisition by Empire of hotel,
gaming or resort properties in the Catskills ("CATSKILLS ACQUISITION"), and (ii)
Stockholder shall not solicit, contact or engage in discussions or negotiations
with any third party (other than Transferors) with respect to any Catskills
Acquisition.
(c) Notwithstanding the foregoing, nothing in this Section 4 shall limit or
in any way affect the rights or obligations of Stockholder as a director or
officer of Empire or of Empire's Board of Directors.
SECTION 5. FURTHER ASSURANCES. Each party shall execute and deliver such
additional instruments and other documents and shall take such further actions
as may be reasonably necessary or appropriate to effectuate, carry out and
comply with all of their obligations under this Agreement. Without limiting the
generality of the foregoing, prior to the Termination Date none of the parties
hereto shall enter into any agreement or arrangement (or alter, amend or
terminate any existing agreement or arrangement) or take any other action (or
fail to take any other action) if such action (or failure) would materially
impair the ability of any party to effectuate, carry out or comply with all the
terms of this Agreement. Stockholder agrees to (and to cause Stockholder's
affiliates and associates to) cooperate with Empire and Transferors in
connection with any filings required to be made by Empire or Transferors in
connection with this Agreement, the Letter Agreement (and, when and if executed,
the Additional Agreements) or the Contemplated Transactions.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER. (a) Stockholder
represents and warrants to Transferors, as follows: Stockholder has the power
and authority to execute and deliver this Agreement. This Agreement has been
duly executed and delivered by Stockholder. This Agreement constitutes the valid
and binding agreement of Stockholder enforceable in accordance with its terms.
Stockholder has the full power and authority to vote, or execute a consent, with
respect to, all of the Shares as contemplated hereby. The securities of Empire
described in Exhibit A attached are the only securities of Empire lawfully owned
by Stockholder, and over which Stockholder has the power to vote (or direct the
voting).
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(b) Stockholder hereby represents and warrants to Transferors, as follows:
Stockholder has good, valid and marketable title to the Shares, free and clear
of all liens, encumbrances, restrictions, options, warrants, rights to purchase
and claims of every kind (other than the encumbrances created by this
Agreement), and has the power to vote (including by an irrevocable power to vote
or execute a consent) such Shares. The execution, delivery and performance by
Stockholder of and under this Agreement does not violate or breach or require
any consent or approval under any law or any contract, instrument, agreement or
arrangement to which Stockholder is a party or by which Stockholder is bound.
SECTION 7. NO ENCUMBRANCES. Except as expressly contemplated by this
Agreement, Stockholder's Shares and the certificates representing such Shares
are now, and at all times during the term hereof will be, held by Stockholder,
or by a nominee or custodian for the benefit of Stockholder, free and clear of
all liens, claims, security interests, proxies, voting trusts or agreements,
understandings or arrangements or any other encumbrances whatsoever, except for
any such encumbrances or proxies arising hereunder.
SECTION 8. EFFECTIVENESS. It is a condition precedent to the effectiveness
of this Agreement that the Letter Agreement shall have been duly executed and
delivered by the parties thereto.
SECTION 9. MISCELLANEOUS.
(a) NOTICES, ETC. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or one day after being mailed by courier service that
guarantees overnight delivery, in each case to the applicable addresses set
forth below:
If to Stockholder, to its address as set forth in the records of Empire
If to Transferors: Concord Associates Limited Partnership.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
With a copy to: Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to such other address as such party shall have designated by notice so given
to each other party.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated except by an instrument
in writing signed by each of the parties hereto.
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(c) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns, including without limitation in the case of Stockholder,
any trustee, executor, heir, legatee or personal representative succeeding to
the ownership of (or power to vote) Stockholder's Shares or other securities
subject to this Agreement (including as a result of the death, disability or
incapacity of Stockholder).
(d) ENTIRE AGREEMENT. This Agreement (together with the Letter Agreement
(and, when and if executed, the Additional Agreements)) embodies the entire
agreement and understanding among the parties relating to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter. There are no representations, warranties or covenants by the
parties hereto relating to such subject matter other than those expressly set
forth in this Agreement and the Letter Agreement (and, when and if executed, the
Additional Agreements).
(e) SEVERABILITY. If any term of this Agreement or the application thereof
to any party or circumstance shall be held invalid or unenforceable to any
extent, the remainder of this Agreement and the application of such term to the
other parties or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, PROVIDED that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) SPECIFIC PERFORMANCE. The parties acknowledge that money damages are
not an adequate remedy for violations of this Agreement and that any party may,
in its sole discretion, apply to a court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, each party waives any objection to
the imposition of such relief.
(g) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) NO WAIVER. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) NO THIRD PARTY BENEFICIARIES. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any Person who or which is not a
party hereto.
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(j) JURISDICTION; WAIVER OF TRIAL BY JURY. Each party hereby irrevocably
submits to the exclusive jurisdiction of any court of the State of New York or
the United States District Court for the District of New York in any action,
suit or proceeding arising in connection with this Agreement, and agrees that
any such action, suit or proceeding shall be brought only in such court (and
waives any objection based on forum non conveniens or any other objection to
venue therein); PROVIDED, HOWEVER, that such consent to jurisdiction is solely
for the purpose referred to in this paragraph (j) and shall not be deemed to be
a general submission to the jurisdiction of said courts or in the State of New
York other than for such purposes. Each party hereto hereby waives any right to
a trial by jury in connection with any such action, suit or proceeding.
(k) GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
(l) NAME, CAPTIONS, GENDER. The name assigned to this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) EXPENSES. Stockholder shall bear its own expenses incurred in
connection with this Agreement and the Letter Agreement (and, when and if
executed, the Additional Agreements) and the transactions contemplated hereby
and thereby.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
STOCKHOLDER
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Name:
CONCORD ASSOCIATES LIMITED PARTNERSHIP
By:
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Name:
Title:
▇▇▇▇▇▇▇▇ RESORTS, LLC
By: Catskill Resort Group, LLC
as Managing Member
By: ▇▇▇▇▇▇▇▇ Resorts LLC,
as Managing Member
By:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Managing Member
By: Melville-Catskill, LLC,
as Managing Member
By: Reckson Strategic Venture Partners,
LLC, as Managing Member
By:
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▇▇▇▇▇ ▇▇▇▇▇▇▇, Authorized Signatory
[Signature Page of Voting Agreement]
EXHIBIT A
VOTING SECURITIES OWNED BY STOCKHOLDER
NUMBER OF SHARES OF EMPIRE VOTING SECURITIES