NYNY Empire Resorts Inc

PROXY STATEMENT

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APPENDICES

Appendix A: Agreement and Plan of Merger

Appendix B: Opinion of Moelis & Company LLC

Appendix C: Section 262 of the Delaware General Corporation Law

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EMPIRE RESORTS, INC.

c/o Monticello Casino and Raceway

204 State Route 17B

P.O. Box 5013

Monticello, New York 12701

PROXY STATEMENT

This Proxy Statement contains information related to a special meeting of stockholders (the “Special Meeting”) of Empire Resorts, Inc., which will be held at                      , Eastern Time, on                     , 2019 at                     , and at any adjournments or postponements thereof. We are furnishing this Proxy Statement to our stockholders as part of the solicitation of proxies by our board of directors of the Company (the “Board”) for use at the Special Meeting. At the Special Meeting you will be asked to, among other things, consider and vote on the adoption of the Merger Agreement (as defined immediately below). This Proxy Statement is first being mailed to stockholders on or about                     , 2019.

SUMMARY TERM SHEET

This following summary term sheet highlights selected information contained in this Proxy Statement and may not contain all of the information that is important to you. We urge you to read this entire Proxy Statement carefully, including the appendices, before voting. We have included section references to direct you to a more complete description of the topics described in this summary term sheet. You may obtain the information incorporated by reference into this Proxy Statement without charge by following the instructions in “Where Stockholders Can Find More Information” beginning on page 153. Unless the context requires otherwise, references in this Proxy Statement to “we,” “us,” “our,” the “Company” or “Empire Resorts” refer to Empire Resorts, Inc., a Delaware corporation, and its subsidiaries. We refer to Hercules Topco LLC, a Delaware limited liability company, as “Parent,” and Hercules Merger Subsidiary Inc., a Delaware corporation, as “Merger Sub.” We refer to Merger Sub, Parent, Kien Huat Realty III Limited , an Isle of Man company limited by shares and our largest stockholder (“Kien Huat”), Genting (USA) Limited, an Isle of Man company limited by shares (“Gen USA”), Genting Malaysia Berhad, a Malaysian public company limited by shares (“GenM”), Genting Berhad, a Malaysian public company limited by shares (“Genting”) and Tan Sri Lim Kok Thay (collectively, the “Parent Filing Group Persons”). We refer to the board of directors of the Company as the “Board.” We refer to the special committee of the board of directors, comprised entirely of independent and disinterested directors, as the “Special Committee.”

Because the Merger is a “going private” transaction, the Company and the Parent Filing Group Persons have filed with the SEC a Transaction Statement on Schedule 13E-3 with respect to the Merger (as amended from time to time, the “Schedule 13E-3”). You may obtain additional information about the Schedule 13E-3 under the caption “Where You Can Find Additional Information.”

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See “The Merger Agreement—Termination” beginning on page 136.

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FORWARD-LOOKING STATEMENTS

The information in this Proxy Statement contains forward-looking statements. There are forward-looking statements throughout this Proxy Statement that reflect our expectations as to the completion and timing of the Merger, other information relating to the Merger, projected financial information and other forward-looking information, including under the headings, among others, “Summary Term Sheet,” “Questions and Answers About the Proposals and the Special Meeting,” “The Special Meeting,” “Special Factors,” and often in statements identified by the words “may,” “could,” “expect,” “intend,” “plan,” “seek,” “anticipate,” “believe,” “estimate,” “predict,” “potential,” “continue,” “likely,” “will,” “would,” and variations of these terms and similar expression, or the negative of these terms or similar expressions. These statements are based on management’s current beliefs, expectations, plans, assumptions and objectives of the Company and are subject to significant risks and uncertainties. All forward-looking statements speak only as of the date as of which they are made. These statements are not guarantees and involve certain risks, uncertainties and assumptions concerning future events that are difficult to predict. Factors that may cause actual results to differ materially from current expectations include, but are not limited to, risks related to the Merger, including the risk that the proposed Merger may not occur, the risk of unexpected costs or liabilities, delays due to regulatory review, the risk that certain closing conditions may not be timely satisfied or waived, the risk of litigation, the risk that any announcements relating to the proposed Merger could have adverse effects on the market price of the Company’s Common Stock, and the risk that general and business conditions may change. Risk factors are detailed in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2018 and subsequent reports filed with the SEC. Such reports are available on the SEC’s website (www.sec.gov). We caution you not to place undue reliance on any forward-looking statements, which are made as of the date hereof or as otherwise specified herein. The Company undertakes no obligation to update any of these forward-looking statements to reflect actual results, new information or future events, changes in assumptions or changes in other factors affecting forward-looking statements, except to the extent required by applicable law. If we update one or more forward-looking statements, no inference should be drawn that we will make additional updates with respect to those or other forward-looking statements.

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QUESTIONS AND ANSWERS ABOUT THE PROPOSALS AND THE SPECIAL MEETING

The following questions and answers, which are for your convenience only, briefly address some commonly asked questions about the Special Meeting and the Proposals to be presented at the Special Meeting and are qualified in their entirety by the more detailed information contained elsewhere in this Proxy Statement. These questions and answers may not address all questions that may be important to you as a stockholder of the Company. You should still carefully read this entire Proxy Statement, including the attached appendices.

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Immediately prior to the Effective Time of the Merger, each RSU you hold, whether or not then vested, will be canceled and extinguished, and you will have the right to receive an amount in cash equal to the product of (i) the aggregate number of shares of Common Stock underlying such RSUs, multiplied by (ii) the Common Stock Per Share Merger Consideration. For example, if you hold RSUs to acquire 100 shares of Common Stock, you will receive $974.00 in cash, less applicable withholding taxes. Immediately prior to the Effective Time of the Merger, each Company Stock Award you hold will be forfeited to the Company and converted into the right to receive an amount in cash equal to the product of the aggregate number of Company Stock Awards multiplied by the Common Stock Per Share Merger Consideration. The cash payments for outstanding RSUs and Company Stock Awards will be payable through the payroll system of the Company (or one of the Company’s subsidiaries), without interest and net of applicable tax withholding.

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The approval of the Merger Proposal requires the Required Stockholder Vote, which requires the approval of (i) the holders of a majority of the voting power of the outstanding shares of Voting Stock entitled to vote thereon as of the Record Date of the Special Meeting, voting as one class, and (ii) the holders of a majority of the voting power of the outstanding shares of Voting Stock held by Public Stockholders entitled to vote thereon as of the Record Date of the Special Meeting, voting as one class. Accordingly, abstentions and “broker non-votes” will have the same effect as a vote “AGAINST” the Merger Proposal.

The adoption of each of the Compensation Proposal and the Adjournment Proposal require the affirmative vote of a majority of the votes cast by holders of Voting Stock entitled to vote thereon as of the Record Date of the Special Meeting, voting as one class. Abstentions and “broker non-votes” are not considered votes cast for purposes of the Compensation Proposals and the Adjournment Proposal and will have no effect on the approval of those proposals.

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Beneficial Owner of Shares Held in Street Name. If your shares are held in an account at a brokerage firm, bank, broker-dealer, or other similar organization, then you are the beneficial owner of shares held in “street name,” and the proxy materials were forwarded to you by that organization. The organization holding your account is considered the stockholder of record for purposes of voting at the Special Meeting. As a beneficial owner, you have the right to instruct that organization on how to vote the shares held in your account. Those instructions are contained in a “voting instruction form.” If you request printed copies of the proxy materials by mail, you will receive a voting instruction form.

Even if you plan to attend the Special Meeting, it is strongly recommended you vote by proxy via the Internet or complete and return your proxy card before the Special Meeting date just in case your plans change.

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If your shares are held by your broker, bank or other agent as your nominee, you should follow the instructions provided by your broker, bank or other agent.

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SPECIAL FACTORS

The following, together with the summary of the Merger Agreement set forth under “The Merger Agreement,” is a description of the material aspects of the Merger. While we believe that the following description covers the material aspects of the Merger, the description may not contain all of the information that is important to you. We encourage you to read carefully this entire document, including the Merger Agreement attached to this Proxy Statement as Appendix A, for a more complete understanding of the Merger. The following description is subject to, and is qualified in its entirety by reference to, the Merger Agreement. You may obtain additional information without charge by following the instructions in “Where Stockholders Can Find More Information” beginning on page 153 of this Proxy Statement.

Background of the Merger

The Company regularly evaluates strategies for improving its competitive position and enhancing stockholder value. As part of these evaluations, the Company has, from time to time, considered various strategic alternatives, such as public offerings, joint ventures, collaborations and business combinations, including a possible sale of the Company. In that regard and in light of the fact that Kien Huat had become the holder of approximately 88.7% of the Company’s outstanding common stock following the closing of an approximately $290 million rights offering and related transactions in early 2016, the Company and Kien Huat entered into a letter agreement on February 17, 2016, and which they later amended on December 28, 2017, pursuant to which Kien Huat agreed not to, and to cause its affiliates not to, make any public announcement with respect to, or submit a proposal for, or offer in respect of a transaction or series of transactions that would constitute or result in a take-private of the Company until February 8, 2020, unless the proposed take-private were conditioned on the prior approval of a committee of independent directors and a majority of the minority stockholders. We refer to this letter agreement as amended as the “Kien Huat Letter Agreement.”

Due to ongoing losses from operations and increased debt service obligations, in November 2018, the Company and Kien Huat entered into a letter agreement (as amended and restated on November 9, 2018, the “KH 2018 Preferred Stock Commitment Letter”), under which Kien Huat committed to provide equity financing in support of the general corporate and working capital requirements of the Company. This equity financing took the form of a schedule by which the Company could request Kien Huat to purchase newly issued shares of Series F Preferred Stock. As of November 9, 2018, pursuant to the KH 2018 Preferred Stock Commitment Letter, Kien Huat committed to fund a total of $126 million, with funding dates roughly every three months in amounts ranging from up to $12 million to up to $37 million. On November 9, 2018, the Company issued 120 shares of Series F Preferred Stock to Kien Huat pursuant to the KH 2018 Preferred Stock Commitment Letter for an aggregate purchase price of $12 million.

In connection with the Board’s regular review of the Company’s liquidity and cash flow positions and forecasts, by February 2019 the Board began considering implementing cost-cutting measures, such as the planned closure, as publicly announced on January 22, 2019, of the Company’s video gaming machine operations at Monticello Casino and Raceway, which management also believed would drive patrons to the Company’s Resorts World Catskills property (“RWC”). The Board also considered the need to seek additional capital commitments from Kien Huat or third parties or to pursue other strategic alternatives if operating results did not improve. In connection with this review, the Board held a meeting on February 1, 2019, at which representatives of Paul, Weiss, Rifkind,

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Wharton & Garrison LLP (“Paul, Weiss”) were also in attendance. During the meeting, the Company’s senior management informed the Board that, unless newly implemented strategies produced improvements to the Company’s operating results, the Company’s liquidity and cash flow forecasts indicated the Company would likely run out of operating capital sometime during the first quarter of 2020. During the course of this meeting, the Board authorized Company management to negotiate and execute an engagement letter with Moelis & Company LLC (“Moelis”) to assist the Company in its review of the Company’s and its subsidiaries’ capital structure and related advisory services, given Moelis’ prior engagements by the Company and its familiarity with the Company’s business. The Board, together with the representatives of Paul, Weiss, also considered whether to form a special committee of independent directors in connection with these strategic explorations, given the possibility that any alternative might involve participation by Kien Huat as the Company’s largest stockholder. However, as no specific proposals from Kien Huat or recommendations from Company management regarding alternatives had been put forward at that time, the Board determined to defer formation of any such committee if and until it later became necessary.

On February 15, 2019, the Company and Moelis entered into an engagement letter in respect of Moelis’ general financial advisory services discussed at the February 1 Board meeting.

On February 20, 2019, the Company issued 200 shares of Series F Preferred Stock to Kien Huat pursuant to the KH 2018 Preferred Stock Commitment Letter for an aggregate purchase price of $20 million.

On March 12, 2019, the Board held a regular quarterly meeting at which Moelis reviewed the Company’s capital structure as well as related strategic options for the Company regarding existing debt obligations of Montreign Operating Company, LLC (“Montreign”), the Company subsidiary that owns and operates RWC, The Alder and an adjacent property.

On April 23, 2019, the Company ceased video gaming machine operations at Monticello Casino and Raceway, as previously announced. With the elimination of video gaming machine operations on the premises, the Company subsequently changed the name of this property to the Monticello Raceway.

Throughout the Spring of 2019, members of the Company’s senior management team had a number of discussions with representatives of Kien Huat about the Company’s need to accelerate the funding schedule under the KH 2018 Preferred Stock Commitment Letter. As a result of those discussions, on May 7, 2019, the Company and Kien Huat amended and restated the KH 2018 Preferred Stock Commitment Letter to accelerate the schedule on which Kien Huat would purchase additional shares of Series F Preferred Stock (the “May 2019 KH Commitment Amendment” and, together with the KH 2018 Preferred Stock Commitment Letter, the “Existing Preferred Stock Commitment Letter”). In particular, Kien Huat agreed in that amendment: (i) to increase its commitment to purchase up to $20 million of Series F Preferred Stock no earlier than May 15, 2019 to up to $27 million of Series F Preferred Stock by such date; (ii) to accelerate its commitment to purchase up to an incremental $15 million of Series F Preferred Stock to no earlier than June 17, 2019; and (iii) to maintain its commitment to purchase up to $15 million of Series F Preferred Stock no earlier than August 15, 2019 and up to $37 million of Series F Preferred Stock no earlier than November 15, 2019, respectively. Accordingly, Kien Huat accelerated its commitment to purchase up to the full commitment amount from March 15, 2020 to November 15, 2019.

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Also on May 7, 2019, the Board held a regular quarterly meeting at which Moelis reviewed the Company’s leverage capacity and potential funding options, including, among other things, an evaluation of the Company’s strategic options for achieving a potentially more sustainable capital structure in light of the Company’s continuing losses from operations.

On May 21, 2019, the Company issued 270 shares of Series F Preferred Stock to Kien Huat pursuant to the Existing Preferred Stock Commitment Letter for an aggregate purchase price of $27 million.

On June 5, 2019, the Board had a meeting during which, among other topics discussed, representatives of Ashby & Geddes, P.A., the Company’s outside Delaware counsel, and Paul, Weiss gave a joint presentation regarding the fiduciary duties of the directors of the Company, regarding the fiduciary duties of the board of managers of Montreign and regarding various options and considerations in respect of the Company’s liquidity strategy and Montreign’s ability to service its outstanding indebtedness.

On June 17, 2019, the Company issued 150 shares of Series F Preferred Stock to Kien Huat pursuant to the Existing Preferred Stock Commitment Letter for an aggregate purchase price of $15 million.

On June 20, 2019, the New York Legislature approved the creation of a video lottery terminal (“VLT”) gaming facility in Orange County, New York. In particular, the legislation allowed the Company to operate the new VLT facility in Orange County, subject to certain statutory requirements relating to, among other things, employment levels at the Company’s facilities, continued operation of racing at Monticello Raceway, location of the VLT facility within Orange County and entry into a mitigation agreement between the Company and the VLT facility operating at the Yonkers racetrack.

On June 21, 2019, the Board had a meeting at which, among other things, the Board discussed possible changes to the Company’s prospects due to the approval of the Orange County VGM facility. In addition, Moelis discussed with the Board certain financial aspects regarding the Company’s liquidity outlook and an overview of near-term key dates regarding the existing debt obligations of Montreign. Among other things, Moelis discussed with the Board the Company’s cash flow profile and certain financial implications attributable to key covenants in existing debt obligations at Montreign, and summarized the benefits and considerations of various approaches the Company could consider taking in respect of these issues. The Board also discussed with its advisors forecasts from management of the Company that projected that Montreign likely would not be able to meet interest and amortization payments, or cure other covenant defaults, due in August and September 2019 under its outstanding credit agreements unless the Company drew on the Existing Preferred Stock Commitment Letter and contributed the proceeds of the draw to Montreign. Also at the meeting and in connection with the Board’s review of the Company’s continuing losses from operations and general liquidity issues, and the Board’s belief of an increasing likelihood of Kien Huat’s being a potential source for further financing support, including as a possible counterparty in a business combination transaction with the Company, to redress the Company’s ongoing financial challenges, the Board resolved to form the Special Committee to engage in an evaluation of the potential options available to the Company, including, among other possibilities, a possible negotiated transaction involving the restructuring or refinancing of the Company’s indebtedness or an acquisition (whether by stock sale, merger or otherwise) of the Company by a related party or third party. The same resolutions appointed Keith L. Horn, Nancy A. Palumbo and Edward Marinucci to the Special Committee, with Mr. Horn

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serving as the Chair, with the Special Committee members to receive cash compensation for their service in the amount of $48,000 per year plus, in the case of the chair, an additional $48,000 per year, which was identical to the compensation paid to non-employee directors in respect of service on the extant Strategic Development Committee of the Board. As noted earlier in this Proxy Statement, the Board also determined at this meeting that each of the members of the Special Committee was independent and disinterested with respect to the Special Committee’s mandate. At that same meeting, the Board resolved to disband the Strategic Development Committee, which had, among other things, overseen the development of RWC. During the same meeting, the Special Committee determined to engage Paul, Weiss as its outside legal counsel and Moelis as its financial advisor in connection with its evaluation. In addition, Moelis orally indicated to the Special Committee during the meeting that, since August 2016, other than in respect of engagements by the Company and its subsidiaries, Moelis had not been engaged by and had not received fees from Kien Huat or GenM. Moelis’ oral indication was subsequently confirmed with a written disclosure letter delivered by Moelis to the Special Committee.

On June 24, 2019, the Company publicly announced the formation of the Special Committee and its engagement of Moelis as its financial advisor to evaluate strategic alternatives for the Company as a whole.

Also on June 24, a meeting was held at the offices of Cleary Gottlieb Steen & Hamilton LLP (“Cleary Gottlieb”), Kien Huat’s outside legal counsel at the time, that was attended by representatives of Cleary Gottlieb; representatives of Kien Huat; Emanuel R. Pearlman, Chairman of the Board, and Ryan Eller, President and Chief Executive Officer and then a member of the Board, from the Company; and representatives of Moelis and Paul, Weiss. At the meeting, the attendees discussed preliminary matters related to the formation of the Special Committee, key upcoming dates regarding the Company’s liquidity needs (including in respect of Montreign’s obligations to its lenders) and the draw schedule under the Existing Preferred Stock Commitment Letter, and the possibility of a potential transaction involving Kien Huat and the Company. However, the representatives of Kien Huat and Cleary Gottlieb also made clear that, while Kien Huat was in the process of reviewing various information relating to the Company and Kien Huat’s options in respect of Kien Huat’s investment in the Company, Kien Huat had not at that time made any changes to its investment purposes or future plans and it could not be assumed that Kien Huat ultimately would choose to make a proposal or engage in future discussions regarding a possible transaction with the Company.

On June 25, 2019, the Company and Moelis executed a new engagement letter relating to Moelis’ retention as financial advisor to the Special Committee in connection with the Special Committee’s exploration of strategic alternatives for the Company. Throughout the rest of June 2019 and into the first several weeks of July 2019, the Company’s senior management team worked to prepare financial models for Moelis to use in its financial analysis in connection with the Special Committee’s review of strategic alternatives as well as in preparation for a possible presentation to Montreign’s lenders, potentially as early as in August 2019.

On June 26, 2019, representatives of Paul, Weiss held a conference call with representatives of Cleary Gottlieb to continue their discussion from the June 24 meeting regarding various preliminary matters related to the formation of the Special Committee, key upcoming dates regarding the Company’s upcoming liquidity needs (including in respect of Montreign’s obligations to its lenders) and the draw schedule under the Existing Preferred Stock Commitment Letter, and the possibility of a potential transaction involving Kien Huat and the Company. Again during this call, Cleary Gottlieb

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indicated that there had not been any change to Kien Huat’s investment purposes or future plans at that time.

Effective July 17, 2019, Gregg Polle resigned from the Board because he had accepted employment at a new firm that requested he not serve on the board of a public company. Upon Mr. Polle’s resignation, to ensure the Board continued to comprise a majority of independent directors under the listing rules of The Nasdaq Stock Market, Mr. Eller also resigned from his position as a director of the Company, effective on the same day. Mr. Eller did not resign from his position as the Company’s President and Chief Executive Officer. At the same time, Mr. Marinucci was appointed to the Audit Committee of the Board (the “Audit Committee”) to fill the vacancy on that committee created by Mr. Polle’s resignation.

On July 25, 2019, Kien Huat submitted a letter (the “Initial Letter”) to the Company stating that Kien Huat no longer believed that the Company could become financially self-sustaining as a standalone public company at that time, and therefore did not intend to provide further equity or debt financing beyond Kien Huat’s obligations under the Existing Preferred Stock Commitment Letter while the Company remained a public company. In the Initial Letter, Kien Huat also stated that it would be willing to submit a proposal to acquire all of the outstanding equity of the Company not already owned by Kien Huat if so requested by the Company. Kien Huat also filed an amendment to its Schedule 13D in connection with the Initial Letter, which attached a copy of the Initial Letter as an exhibit.

Later that morning, the Special Committee held a meeting to discuss the Initial Letter. Paul, Weiss and Moelis attended the meeting. During the meeting, the Special Committee considered whether to solicit indications of interest from third parties to acquire the Company at that time, but ultimately concluded that, with Kien Huat’s having just publicly disclosed the Initial Letter, outbound solicitations were unlikely to be productive until further information regarding Kien Huat’s potential proposal and whether it would consider selling its shares to a third party could be disclosed to prospective counterparties. The Special Committee also discussed the fact that the Initial Letter did not address how Kien Huat might treat the Company’s outstanding indebtedness in any such transaction and the possible consequences from the Company’s and Montreign’s lenders’ perspective if additional clarity on that issue were not publicly disclosed in the near term. Additionally, the Special Committee discussed the fact that, having formed and publicly disclosed the existence of the Special Committee to review strategic alternatives, it was neither necessary to formally invite Kien Huat to make a proposal nor in the best interests of the Company’s Public Stockholders to do so, in that a public invitation to Kien Huat could be misinterpreted by other potential counterparties as a Company preference to deal exclusively with Kien Huat. Accordingly, the Special Committee directed Paul, Weiss to speak with Cleary Gottlieb regarding the Initial Letter and ask if Kien Huat would be willing to sell its interests in the Company to a third party, ask whether Kien Huat had definitive plans regarding treatment of the Company’s debt in any proposal Kien Huat might make and relay that the Special Committee was open to considering any offer Kien Huat might choose to make, as well as any other potential superior proposal from third parties, but that the Special Committee would not formally invite Kien Huat to make an offer. The Special Committee also discussed and approved a press release to be issued by the Company in respect of the Initial Letter.

Throughout the day on July 25, 2019, Paul, Weiss held multiple calls with Cleary Gottlieb regarding the Initial Letter. During the calls, Paul, Weiss asked Cleary Gottlieb whether Kien Huat would be willing to sell its shares of common stock of the Company to a third party and Kien Huat’s

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intentions with respect to the Company’s outstanding indebtedness. Paul, Weiss also informed Cleary Gottlieb that the Company would be open to consider an offer if Kien Huat submitted one. On one of the calls between Cleary Gottlieb and Paul, Weiss, Cleary Gottlieb asked that the Special Committee grant a waiver (a “203 Waiver”) of the restrictions on transactions with interested stockholders under section 203 of the DGCL in order to facilitate an offer from one or more to-be-formed bidding entities.

The Special Committee held a second meeting later in the evening of July 25, 2019, at which the Special Committee further discussed the Initial Letter and the strategic alternatives that the Company might pursue. In particular, the Special Committee discussed strategic alternatives for the Company whether or not Kien Huat submitted a proposal. Among other things, the Special Committee members discussed in this regard: obligations and opportunities to preserve capital in the absence of a business combination transaction; possible effects of the public disclosure of the Initial Letter on the Company’s operations and development plans and on the Company’s relationships with various commercial counterparties and business relations, including in each case the risks to those operations and relationships that could result from management distraction on a potential business combination; and the long-term viability of the VLT facility in Orange County as a standalone alternative to a business combination transaction. The Special Committee also discussed appropriate and customary precautions to ensure Kien Huat’s representatives on the Board did not obtain confidential information regarding the Special Committee’s discussions about the Company’s review of potential strategic alternatives now that Kien Huat had publicly offered to be a counterparty in one such alternative.

On July 28, 2019, Cleary Gottlieb and Paul, Weiss had a call to further discuss the requested 203 Waiver. During that call, Cleary Gottlieb also informed Paul, Weiss that Kien Huat was considering submitting a non-binding indication of interest regarding an acquisition by Kien Huat of all of the outstanding shares of common and preferred stock of the Company not owned by Kien Huat and might do so on August 2, 2019. Cleary Gottlieb also informed Paul, Weiss that Kien Huat might transfer some of its shares of common and preferred stock of the Company to one or more affiliates in connection with a potential acquisition of the Company.

Later in the morning of July 28, 2019, the Special Committee held a meeting, which was attended by Paul, Weiss and Moelis, during which the Special Committee further discussed the Initial Letter and the request for the 203 Waiver. At the meeting, Paul, Weiss informed the Special Committee about Paul, Weiss’s calls with Cleary Gottlieb since July 25, 2019, including that Cleary Gottlieb indicated that (i) Kien Huat was considering submitting a non-binding indication of interest and might do so on or about August 2, 2019, (ii) were Kien Huat to make a proposal, the proposal would likely address the Company’s outstanding indebtedness and (iii) Cleary Gottlieb would revert to Paul, Weiss once Cleary Gottlieb confirmed with Kien Huat whether it would consider selling its shares of common and preferred stock of the Company in an alternative transaction or if Kien Huat was only willing to be a “buyer” in a proposal made by Kien Huat. At the meeting, the Special Committee again discussed with their financial advisor and legal counsel whether to solicit additional indications of interest from third parties before receipt of Kien Huat’s indication of interest, and again concluded that outbound solicitations were unlikely to be productive until more information was available regarding Kien Huat’s prospective proposal and its willingness to support alternative transactions. In reaching that determination, the Special Committee also considered that prospective third party acquirers should generally be aware that the Company was open to considering acquisition proposals due to the public disclosure of the Special Committee’s formation and mandate as well as of the Initial Letter. The Special Committee directed Paul, Weiss to inform Cleary Gottlieb that the Special Committee would be willing to grant the 203 Waiver to facilitate a bid by Kien Huat so long as

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any new entity agrees to abide by the Kien Huat Letter Agreement. Also during this meeting, the Special Committee discussed that Company management’s input would likely be necessary in any negotiations with Kien Huat or any other party. Accordingly, the Special Committee determined that Mr. Horn would speak with the Company’s management team regarding the importance of preserving the integrity and confidentiality of the strategic alternatives review process being run by the Special Committee whenever the Special Committee provided updates to Company management or requested their input. The Special Committee also discussed the potential engagement of a public relations firm in connection with a potential transaction with Kien Huat and authorized Mr. Horn to act on the Special Committee’s behalf in finalizing such an engagement. Finally, the Special Committee discussed personnel matters relating to the potential transaction, including potential effects on employee morale and retention and on the Company’s relations with the public and other key constituencies. The Special Committee further determined that it would explore providing retention compensation or incentives to certain employees of the Company if a definitive proposal or definitive agreement ultimately were forthcoming from Kien Huat.

Later that day, Paul, Weiss and Cleary Gottlieb had several calls to discuss the requested 203 Waiver and the Initial Letter. Among other things discussed during those calls, Cleary Gottlieb acknowledged that any to-be-formed entity receiving a 203 Waiver would be covered by the existing Kien Huat Letter Agreement between the Company and Kien Huat until it expired in February 2020.

On July 31, 2019, the Special Committee engaged Joele Frank, Wilkinson Brimmer Katcher (“Joele Frank”) as its public relations advisor.

On August 4, 2019, with the prior approval of the Special Committee, Mr. Pearlman met with Gerard Ewe Keng Lim, a director on the Board and representative of Kien Huat. Mr. Gerard Lim informed Mr. Pearlman that Kien Huat intended to submit a letter to the Company on August 5, 2019 containing an offer to purchase the outstanding equity of the Company not owned by Kien Huat at a per share price close to the closing price per share of Common Stock on August 2, 2019. Mr. Gerard Lim noted that the letter would not address the Company’s indebtedness. Mr. Gerard Lim further informed Mr. Pearlman that Kien Huat intended to transfer some of its shares of Company stock to GenM or one of its subsidiaries in furtherance of setting up a joint bidding arrangement among Kien Huat and GenM, but that Kien Huat would remain the owner, directly or indirectly, of 51% or more of the Company and GenM would own (indirectly through its subsidiary) 49% or less of the Company. Mr. Pearlman again promptly informed the Special Committee and its advisors of his discussion with Mr. Gerard Lim.

On August 5, 2019, Kien Huat and GenM submitted a letter to the Company containing a non-binding indication of interest (the “Proposal Letter”) whereby Kien Huat and GenM, through Parent (a to-be-formed jointly owned bidding entity), would acquire all of the outstanding equity of the Company not then owned by Kien Huat through a merger at a price of $9.74 per share of Company common stock, with each share of Series B Preferred Stock receiving such consideration on an as-converted basis (the “Offer Price”). The Proposal Letter further indicated that GenM would pay the Offer Price to Kien Huat to acquire 13.2 million shares of common stock of the Company owned by Kien Huat and that GenM would acquire such shares whether or not the proposed transaction with the Company were consummated, subject to certain conditions set forth in the Term Sheet (as defined below). In addition, the Proposal Letter stated that Kien Huat expected to remain the direct or indirect majority owner of the Company at all times and, following the closing of the proposed transaction, GenM would assist in the operation of the Company and its subsidiaries and that Kien Huat was not

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interested in, nor would it expect to vote in favor of or otherwise support, any alternative transactions involving the Company. Attached to the Proposal Letter was a copy of the Term Sheet setting forth terms relating to the formation and operations of Parent by Kien Huat and GenM, including with respect to the sale by Kien Huat to Gen USA of 13,200,000 shares of Common Stock at $9.74 per share, the same price as the Offer Price.

Also on August 5, 2019, the Special Committee held a meeting to discuss the Proposal Letter, the Term Sheet and related matters. Mr. Pearlman, Mr. Eller, Moelis and Paul, Weiss were present at the meeting. The Special Committee noted that the Offer Price reflected a relatively low premium over the August 2, 2019 closing price of $9.56 per share of common stock of the Company. Further, the Special Committee discussed the fact that Kien Huat and GenM indicated in the Proposal Letter that they were not willing to be “sellers” in or otherwise support alternative transactions, potentially limiting the Company’s alternatives to solicit superior offers if true. The Special Committee discussed issues relating to the timing of a potential transaction and the fact that the Company likely would have to divert cash and other resources toward efforts to negotiate and consummate a potential transaction with Kien Huat and GenM, which could pose risks to the Company’s and its subsidiaries’ already challenging liquidity position and contractual obligations without further financing support from Kien Huat, and, in the absence of such support, the need to proceed with preparations for a bankruptcy of Montreign. The Special Committee determined to take initial steps toward preparing for bankruptcy in parallel with negotiating the potential transaction with Kien Huat and GenM. In addition, the Special Committee discussed matters relating to retention bonuses and similar payments for certain employees in connection with a potential transaction with Kien Huat and GenM.

Later in the day on August 5, 2019, and at the Special Committee’s direction, Paul, Weiss had a call with Cleary Gottlieb to confirm various factual aspects of the Proposal Letter and Term Sheet. In particular, Cleary Gottlieb confirmed to Paul, Weiss that GenM is an affiliate of Kien Huat and therefore already was covered by the existing Kien Huat Letter Agreement between the Company and Kien Huat until it expired in February 2020. In addition, Moelis and Paul, Weiss asked Cleary Gottlieb if their client would not be willing to be a “seller” at any price; the Cleary Gottlieb representatives referred to the statement in the Proposal Letter that Kien Huat and GenM had no interest in selling any equity of the Company to any other party, and the Cleary Gottlieb representatives could not provide any confirmation beyond the statement made in the Proposal Letter.

On August 6, 2019, Kien Huat filed with the SEC an amendment to its Schedule 13D disclosing the Proposal Letter and the Term Sheet. Later that morning, the Company also issued a press release confirming the Company’s receipt of the Proposal Letter and indicating that the Special Committee would carefully review the Proposal Letter and consider it in the context of the Company’s ongoing strategic review.

On August 6, 2019, the Board held a regular quarterly meeting to discuss the business and operations of the Company. At the Board meeting, Mr. Horn was appointed to the Compensation Committee of the Board and to the Corporate Governance and Nominations Committee of the Board and Mr. Marinucci was appointed to the Regulatory Compliance Committee of the Board, in each case to fill the vacancy created when Mr. Polle resigned. After the Board meeting, the Special Committee met with Paul, Weiss, Moelis and Ellenoff Grossman & Schole LLP, the Company’s regular outside counsel (“EGS”), to discuss the Proposal Letter and the Company’s liquidity. At the meeting, Moelis reviewed with the Special Committee preliminary financial analyses regarding the Company and its near term liquidity needs and budgeted cash positions. Consistent with management’s analysis in February 2019, Moelis noted that the Company’s forecasts indicated that the Company remained on

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track to run out of operating capital not later than the end of February 2020. Accordingly, the Special Committee discussed the need to request additional liquidity support from Kien Huat and GenM in connection with their proposal. The Special Committee also again discussed the effectiveness of soliciting third party indications of interest at that time. At the conclusion of the meeting, the Special Committee directed Moelis and Paul, Weiss to communicate the following counterproposal to Cleary Gottlieb: (i) the Special Committee concluded that the Offer Price was not yet compelling and requested that Kien Huat and GenM increase the price offered, (ii) Kien Huat commit to continue financing the Company between signing and closing of the proposed Merger Agreement, including by committing to provide additional liquidity beyond the existing remaining commitments under the Existing Preferred Stock Commitment Letter and (iii) that the proposed Merger Agreement and related ancillary documents include provisions obligating Kien Huat and GenM to support superior proposals from third parties (subject to customary “match rights” in favor of Kien Huat and GenM).

Following the Special Committee meeting, Paul, Weiss, Moelis and Cleary Gottlieb held a call to discuss the Proposal Letter, during which Paul, Weiss and Moelis conveyed the Special Committee’s counter-proposal.

Later that day, Cleary Gottlieb, which was then outside counsel to GenM, and Morris, Nichols, Arsht & Tunnell LLP (“MNAT”), which was engaged as counsel to Kien Huat in connection with the Term Sheet negotiations and any subsequent negotiations regarding a potential transaction with the Company, sent Paul, Weiss a draft confidentiality agreement to facilitate due diligence by Kien Huat and GenM of the Company’s non-public information. That night, Paul, Weiss sent a revised draft of the confidentiality agreement to Cleary Gottlieb and MNAT. Paul, Weiss’s draft included, among other things, a covenant that Kien Huat and GenM would not acquire additional securities, assets or indebtedness of the Company for the next two years, a covenant that Kien Huat and GenM would not enter into any agreement with any potential debt financing source that would in any way limit the debt financing source’s ability to provide financing or other assistance to any other person in any other possible transaction involving the Company and a two-year term.

The Special Committee met on August 7, 2019, at which representatives of EGS were in attendance for a portion of the meeting. At the meeting, the Special Committee discussed, among other things, treatment of the Company’s restricted stock units in connection with the potential transaction with Kien Huat and GenM, possible retention payments relating to the potential transaction with Kien Huat and GenM, the call Paul, Weiss and Moelis had with Cleary Gottlieb the prior day regarding the Special Committee’s counter-proposal and the decline in GenM’s trading price since the Proposal Letter was disclosed as well as recent press coverage in the United States and Malaysia.

Later that evening, Cleary Gottlieb and MNAT sent a revised draft of the confidentiality agreement to Paul, Weiss. The draft provided by Cleary Gottlieb and MNAT included provisions that the confidentiality agreement would expire in February 2020 and that Kien Huat and GenM would have no restrictions on acquiring additional securities, assets or indebtedness of the Company.

On the morning of August 8, 2019, Paul, Weiss contacted Cleary Gottlieb to discuss the draft confidentiality agreement, requesting, in particular, that GenM and Kien Huat be subject to a limited restriction on their ability to acquire additional shares of the common stock of the Company without the prior written consent of the Special Committee so that, once the Kien Huat Letter Agreement expired in February 2020, Kien Huat and GenM could not have already become the owner of over 90% of each class of the Company’s securities and thereby entitled under the DGCL to effect a “short form

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merger” without the prior approval of the Board, the Special Committee or the Company’s other stockholders.

Later on August 8, 2019, the Special Committee met to discuss the confidentiality agreement and related transaction with Paul, Weiss and Moelis representatives in attendance. At the conclusion of this meeting, the Special Committee determined to accept a confidentiality agreement with Kien Huat and GenM that would expire in February 2020, but directed Paul, Weiss to continue negotiating for limited restrictions to ensure Kien Huat and GenM did not acquire additional Company stock until the Kien Huat Letter Agreement terminated in February 2020. Later that evening, Paul, Weiss sent a revised draft of the confidentiality agreement to Cleary Gottlieb and MNAT, consistent with the Special Committee’s directions.

Also in the evening of August 8, 2019, Moelis and Cleary Gottlieb had a call during which Cleary Gottlieb conveyed doubts from Kien Huat regarding whether the Company was interested in entering into a potential transaction or was merely pressuring Kien Huat to commit to provide incremental financing with the intention of using that incremental funding to support standalone operations as an independent company. To reassure Kien Huat that the Company was negotiating in good faith, Moelis indicated that the Company would be willing to promptly deliver a form of Merger Agreement. Overnight, Paul, Weiss sent a draft Merger Agreement to Cleary Gottlieb and MNAT.

On August 9, 2019, the Company filed its quarterly report on Form 10-Q with the SEC. As approved by the Board at its August 6, 2019 meeting, the notes to the Company’s financial statements in that filing included disclosure of the Company’s continuing negative cash flows from operations and need to obtain additional liquidity resources or possibly restructure the Company’s existing debts and other obligations in order to meet expected cash needs for the next 12 months, as well as, in the absence of such a restructuring, the Company’s substantial doubt about its ability to continue as a going concern and possible need to implement an in-court proceeding under Chapter 11 of the U.S. Bankruptcy Code with respect to Montreign and its subsidiaries. The Form 10-Q also disclosed several risk factors to the same effect, including that failing to obtain additional, adequate financing may require the Company to delay, scale back or eliminate some or all of its operations or enter into bankruptcy proceedings with respect to Montreign and its subsidiaries as well as adversely affect the Company’s ability to operate as a going concern.

Also on August 9, 2019, the Special Committee had a meeting to discuss updates in the negotiations between the Special Committee’s representatives and Kien Huat’s and GenM’s representatives.

Later that day, Paul, Weiss and Cleary Gottlieb had a call to discuss the confidentiality agreements between the Company and each of GenM and Kien Huat. In addition, after that call Paul, Weiss sent Cleary Gottlieb and MNAT a draft Voting Agreement to be entered into by Kien Huat, GenM and their respective affiliates that beneficially owned common and preferred stock of the Company, which would require those parties to vote in favor of the adoption of the Merger Agreement as well as to support any superior transaction that the Company entered into after terminating the Merger Agreement.

On August 10, 2019, Cleary Gottlieb contacted Paul, Weiss to confirm that Kien Huat and GenM would agree to restrictions in the confidentiality agreements on their ability to acquire 90% or more of the common stock of the Company until February 2020.

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On the morning of August 11, 2019, Cleary Gottlieb submitted a list of due diligence requests to Paul, Weiss on behalf of Kien Huat and GenM. Later that afternoon, the Company entered into confidentiality agreements with Kien Huat and GenM.

Subsequently, late that night, Cleary Gottlieb and MNAT sent Paul, Weiss a revised draft of the Merger Agreement. Among the revisions and notes to the proposed Merger Agreement were the following: Kien Huat would commit to no more than $15 million of liquidity support in addition to the remaining $52 million of commitments under the Existing Preferred Stock Commitment Letter, no increase to the Offer Price, a new covenant that the Company pay the principal and interest on its debts between signing and closing, a new condition that Kien Huat and GenM would not need to close the transaction if an event of default had occurred under the Company’s credit agreements, elimination of the Company’s right to terminate the transaction to enter into an unsolicited superior proposal, and that the parties would have the right to terminate the agreement if the merger had not been consummated by October 31, 2019.

On August 12, 2019, Paul, Weiss and Cleary Gottlieb had a call to discuss Cleary Gottlieb and MNAT’s revisions to the proposed Merger Agreement. On the call, Paul, Weiss informed Cleary Gottlieb that, among other issues, the October 31, 2019 termination date likely would be unacceptable to the Special Committee, that the Company would need additional liquidity support between signing and closing and that the Company would need flexibility to take cost-saving measures between signing and closing to continue the operation of the business. Cleary Gottlieb indicated that, among other things, Kien Huat considered the Offer Price to be its best and final offer and that the October 31, 2019 termination date was intended to signal that Kien Huat and GenM were serious about proceeding quickly with the transaction.

On August 12, 2019, representatives of GenM and Kien Huat asked the Special Committee whether the Company would host representatives of GenM and Kien Huat for a due diligence site visit at the Company’s facilities the following day.

Later that evening, the Special Committee had a meeting, at which Messrs. Pearlman and Eller and representatives of Moelis and Paul, Weiss also were in attendance. During the meeting, the Special Committee discussed updates relating to the potential transaction with Kien Huat and GenM and preparations for a potential bankruptcy filing by Montreign. With regard to the negotiations, the Special Committee discussed several of the outstanding issues in the proposed Merger Agreement draft sent by Cleary Gottlieb and MNAT the prior night. Paul, Weiss conveyed to the Special Committee the substance of its call with Cleary Gottlieb earlier that day. Among the issues in the proposed Merger Agreement that the Special Committee discussed were the Offer Price, the termination date, whether to seek a “go-shop” provision allowing the Company to solicit indications of interest from third parties for a period of time following signing of the Merger Agreement, the covenant to pay the principal and interest on the Company’s outstanding debt, the condition on Kien Huat’s and GenM’s obligation to close the transaction if an event of default has occurred under the Company’s credit agreements and whether to seek additional liquidity support from Kien Huat. In addition, the Special Committee discussed how to seek additional merger consideration, including through additional capital support from Kien Huat that would allow the Company to pay a special dividend to the Company’s other stockholders out of the Company’s pre-closing cash on hand as a way to effectively increase the merger consideration without the need for Kien Huat and GenM to increase their Offer Price. The Special Committee and its advisors also discussed whether the $67 million in total liquidity support offered by Kien Huat (i.e., the incremental $15 million proposed on August 11 together with the

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remaining $52 million of commitments under the Existing Preferred Stock Commitment Letter) would be sufficient to keep the Company cash balance positive through the estimated closing of a merger, as well as various potential unexpected, unbudgeted events that could have adverse effects on the Company during that period. In addition to the discussions regarding the proposed Merger Agreement, the Special Committee and its advisors discussed preparations the Company would need to take in anticipation of a potential bankruptcy filing by Montreign.

At the end of the meeting, the Special Committee directed Moelis and Paul, Weiss to prepare a response to Cleary Gottlieb addressing the following key points: (i) the Special Committee would seek new capital commitments totaling $30 million, with $15 million to be drawn on or after August 28, 2019 and $15 million to be drawn on or after February 1, 2020, $5 million of which to be used to fund a special dividend to the Company’s stockholders in connection with the completion of the potential transaction; (ii) at the direction of the Special Committee, Moelis would begin outbound solicitations for offers from third parties prior to signing; and (iii) revisions to the draft Merger Agreement so that the Company would have a right to terminate the Merger Agreement to accept a superior offer from a third party, but without requiring Kien Huat’s advance commitment to support a superior proposal. The Special Committee further directed Paul, Weiss to revise the draft Merger Agreement accordingly and send it to Cleary Gottlieb the following day. The Special Committee directed Moelis to reach out to potential third-party acquirers, as well.

On August 13, 2019, at the direction of the Special Committee, Moelis and Paul, Weiss had a call with Cleary Gottlieb and MNAT on which Paul, Weiss and Moelis presented the Special Committee’s counter-proposal and Moelis opened a virtual data room to Kien Huat, GenM and their respective advisors and other representatives.

Later that night, Paul, Weiss circulated revised drafts of the Merger Agreement and Voting Agreement to Cleary Gottlieb and MNAT, each reflecting the positions discussed at the Special Committee meeting on August 12, 2019.

On August 14, 2019, Paul, Weiss notified Cleary Gottlieb that the Company would provide Kien Huat with the necessary notice on August 15, 2019 in order for the Company to make a draw on August 19, 2019 under the Existing Preferred Stock Commitment Letter.

Later that day, Cleary Gottlieb sent Paul, Weiss a supplemental due diligence request list based on Cleary Gottlieb’s, Kien Huat’s and GenM’s review of the virtual data room.

On August 15, 2019, Paul, Weiss had a call with Cleary Gottlieb on which Cleary Gottlieb indicated that Kien Huat would be calling Moelis to inform Moelis that (i) Kien Huat would not increase its offered purchase price above the Offer Price, whether through an increase to the per-share purchase price or through a capital commitment used to fund a special dividend to the minority stockholders of the Company, (ii) Kien Huat would only be willing to provide $15 million in liquidity support in addition to Kien Huat’s remaining commitments of $52 million under the Existing Preferred Stock Commitment Letter, (iii) Kien Huat and GenM would insist on covenants in the Merger Agreement obligating the Company to pay principal and interest on its debts between signing and closing and a condition to Kien Huat’s and GenM’s obligation to close the Merger that no event of payment default will have occurred under the Company’s credit agreements, (iv) Kien Huat targeted Monday, August 19, 2019 at 4:01 p.m. Eastern Time for signing of the Merger Agreement and (v) Kien Huat would not be able to form Parent and Merger Sub unless the Special Committee granted the 203 Waiver requested in July 2019.

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Later that night, at the direction of the Special Committee, Moelis held a call with Cleary Gottlieb to further discuss the Company’s liquidity needs, including the fact that $15 million of incremental financing would be insufficient to support the Company’s operations through the estimated closing of the proposed merger.

Later that night, Paul, Weiss circulated an initial draft of the Company disclosure letter to the Merger Agreement to Cleary Gottlieb and MNAT and a draft amendment to the Existing Preferred Stock Commitment Letter with regard to incremental financing (the “Preferred Stock Commitment Letter Amendment”).

In the morning on August 16, 2019, Cleary Gottlieb and MNAT circulated an updated draft of the Merger Agreement to Paul, Weiss. The updated draft reflected the following changes, among others: (i) the purchase price remained the Offer Price, with no special dividend or other additional consideration, (ii) incremental liquidity support consisting of commitments of $7.5 million drawable no sooner than September 15, 2019, $7.5 million drawable no sooner than October 15, 2019 and $10 million drawable no sooner than February 15, 2020, (iii) no ability for the Company to terminate the Merger Agreement to enter into a definitive agreement constituting a superior proposal, (iv) covenants obligating the Company to pay the principal and interest under its debt, (v) a condition to Kien Huat’s and GenM’s obligation to close that no event of payment default will have occurred under the Company’s credit agreements and (vi) a cap on damages payable by Kien Huat, GenM and their affiliates in the event of a willful and material breach of the Merger Agreement.

Also on the morning of August 16, 2019, Cleary Gottlieb and Paul, Weiss had a call, during which Cleary Gottlieb indicated that it was important to Kien Huat and GenM that the proposed transaction be announced by Monday, August 19, 2019 and that they could not guarantee that they would be willing to continue negotiations beyond Sunday, August 18, 2019. On the call, Cleary Gottlieb also indicated that Kien Huat and GenM would need to receive the requested 203 Waiver that day so that GenM and Kien Huat could form Parent and Merger Sub during the last regular business day before their requested accelerated timeline to sign a definitive agreement. Cleary Gottlieb and Paul, Weiss also discussed the $25 million of incremental financing reflected in the last draft of the Merger Agreement, that Kien Huat would be willing to allow a 10-business-day “go-shop” period in the Merger Agreement, and a request that the Company delay drawing on Kien Huat’s existing capital commitment for one week so the draw would be effected on August 28, 2019.

Also on August 16, 2019, Mr. Pearlman received an unsolicited call from a representative of a New York-based investment fund (“Party A”) regarding potential capital support Party A would consider providing to the Company. Mr. Pearlman promptly informed the Special Committee and its advisors of the call.

Later that morning, Cleary Gottlieb, EGS, Paul, Weiss and members of the Company’s senior management had a legal due diligence call during which Cleary Gottlieb asked senior management of the Company questions regarding the Company.

Early in the afternoon on August 16, 2019, the Special Committee had a telephonic meeting to discuss the most recent draft of the Merger Agreement, the anticipated timing of signing the Merger Agreement, alternatives to a transaction with Kien Huat and GenM (including bankruptcy of Montreign) and resolutions approving the formation of Parent and Merger Sub for purposes of Section 203 of the DGCL. The attendees at the Special Committee meeting discussed whether the

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Offer Price would maximize value for the Company and its stockholders, whether the 10-business-day “go-shop” would be sufficient to solicit and explore potential indications of interest from third parties, how the Company’s stockholders would perceive a transaction with Kien Huat and GenM at the Offer Price, and the risks to the Company of not entering into a definitive agreement with Kien Huat and GenM. During the meeting, Moelis informed the Special Committee that of the approximately 10 to 20 likely potential counterparties Moelis had already identified and contacted, at least 6 (representing the largest strategic parties) had already definitively declined to engage in discussions regarding a transaction with the Company, and that Moelis had had an initial discussion with representatives of Party A and intended to have further discussions with Party A later that day. At the conclusion of the meeting, the Special Committee reached a preliminary consensus view that, subject to reaching agreement on definitive transaction documents acceptable to the Special Committee, the Special Committee was prepared to accept the Offer Price and enter into a definitive merger agreement over the upcoming weekend. In addition, the Special Committee resolved to grant the requested 203 Waiver so as to facilitate the ability of Parent and Merger Sub to be formed and to enter into the Merger Agreement over the upcoming weekend. Further, the Special Committee directed Paul, Weiss and Moelis to respond to Cleary Gottlieb with the following counter-positions, among others: (i) that the Company would accept a condition to Kien Huat’s and GenM’s obligation to close that no payment defaults had occurred under the Company’s credit agreements, subject to Kien Huat’s also not having defaulted under the Existing Preferred Stock Commitment Letter, as amended by the Preferred Stock Commitment Letter Amendment, (ii) that the Company would be willing to accept a covenant requiring the Company to pay the principal and interest on its debts, again subject to the same absence of a prior default by Kien Huat of its financing commitments to the Company, (iii) that a damages cap of the proposed aggregate purchase price would likely be acceptable and (iv) that the Special Committee’s willingness to proceed on the proposed accelerated timeline to signing was conditioned on obtaining a 10-business day “go-shop” period for Moelis to complete its third party solicitation efforts.

Immediately following the meeting, Paul, Weiss relayed to Cleary Gottlieb and MNAT that the Special Committee had granted the requested 203 Waiver.

In the early evening of August 16, 2019, Cleary Gottlieb and MNAT circulated to Paul, Weiss a draft equity commitment letter to be entered into by Kien Huat and a controlled affiliate of GenM in connection with entry into the Merger Agreement.

Later that evening, Paul, Weiss and Cleary Gottlieb had several calls to discuss the Special Committee’s and Paul, Weiss’s comments to the Merger Agreement draft circulated that morning and remaining open issues and the targeted timing of Sunday, August 18, 2019 to enter into definitive agreements. As of the conclusion of the last of those calls, inclusion of a “go-shop” provision in the Merger Agreement remained an open point.

Also on the evening of August 16, 2019, Paul, Weiss sent Cleary Gottlieb and MNAT revised drafts of the Preferred Stock Commitment Letter Amendment, an amendment (the “Series F COD Amendment”) to the Amended and Restated Certificate of the Designations, Powers, Preferences and Rights of the Series F Preferred Stock (the “Series F COD”), (the purpose of which was to increase the authorized shares of Series F Preferred Stock to conform with the contemplated $25 million of incremental financing support as well as to eliminate an arguable interpretation that the transactions contemplated by the Term Sheet in advance of closing the merger could have triggered automatic conversion of the Series F Preferred Stock into common stock), and the equity commitment letters, and

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Cleary Gottlieb circulated to Paul, Weiss a revised draft of the Company Disclosure Letter to the Merger Agreement.

On the morning of August 17, 2019, Paul, Weiss, MNAT and Cleary Gottlieb had a call on which they discussed the open issues in the proposed Merger Agreement. During that call, Cleary Gottlieb confirmed that Kien Huat and GenM were amenable to the “go-shop” provision, and also requested that Kien Huat’s obligations under the Preferred Stock Commitment Letter Amendment terminate in the event the Merger Agreement terminated.

Throughout August 17, 2019, Paul, Weiss, on the one hand, and Cleary Gottlieb and MNAT, on the other hand, exchanged revised drafts of the Merger Agreement, the Voting Agreement, the documents relating to Kien Huat’s additional capital commitments, the Company Disclosure Letter to the Merger Agreement and the Parent Disclosure Letter to the Merger Agreement.

In the afternoon of August 17, 2019, Moelis, Paul, Weiss, MNAT and Cleary Gottlieb had a call to discuss the remaining open issues in the proposed Merger Agreement. During that call, Paul, Weiss informed MNAT and Cleary Gottlieb that the Company could not accept the request received that morning that Kien Huat’s commitments under the Existing Preferred Stock Commitment Letter terminate if the Merger Agreement terminated, but the Company would be willing to permit the $25 million in incremental funding provided by the Preferred Stock Commitment Letter Amendment (as opposed to any of the commitments already in place under the Existing Preferred Stock Commitment Letter) to terminate if the Merger Agreement terminated due to the Company’s willful and material breach or acceptance of a Superior Proposal. Following the call, Cleary Gottlieb circulated a revised draft of the Merger Agreement reflecting the finalized positions of the parties as discussed on the call. That evening, Cleary Gottlieb, MNAT and Paul, Weiss exchanged finalized versions of the Parent Disclosure Letter to the Merger Agreement and the Company Disclosure Letter to the Merger Agreement, as well as finalized versions of the other transaction documents, including the equity commitment letters from Kien Huat and GenM’s controlled affiliate and the Preferred Stock Commitment Letter Amendment and related documents. The finalized Preferred Stock Commitment Letter Amendment reflected the position offered by the Paul, Weiss representatives earlier in the day that termination of the Merger Agreement in certain circumstances would result in termination of only the $25 million incremental funding provided by the Preferred Stock Commitment Letter Amendment but not terminate Kien Huat’s capital commitments under the Existing Preferred Stock Commitment Letter.

In the early evening of August 17, 2019, Moelis distributed its financial analysis regarding the proposed Common Stock Per Share Merger Consideration to the Special Committee.

On the morning of August 18, 2019, the Audit Committee, Special Committee and Board held a joint meeting with representatives from the Company’s management, Moelis, Paul, Weiss and EGS. Mr. Gerard Lim, who, although a director of the Company, is also a representative of Kien Huat, did not attend the meeting. Representatives of Paul, Weiss reviewed with the directors their fiduciary duties under applicable law and the provisions of the proposed Merger Agreement and other transaction documents. Also at this meeting, Moelis reviewed with the Special Committee Moelis’ financial analysis regarding the Common Stock Per Share Merger Consideration. After discussion of the financial analysis among members of the Special Committee and representatives of Moelis, including questions and answers, Moelis delivered to the Special Committee an oral opinion, which was confirmed by delivery of a written opinion, dated August 18, 2019, addressed to the Special

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Committee to the effect that, as of the date of the opinion and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, the Common Stock Per Share Merger Consideration to be received in the Merger pursuant the Merger Agreement by holders of Common Stock (other than the Excluded Holders), was fair, from a financial point of view, to such holders. After careful consideration of various reasons to approve the Merger Agreement, the Voting Agreement, the Preferred Stock Commitment Letter Amendment, the Series F COD Amendment and certain countervailing factors, (i) the Audit Committee unanimously determined that the various transaction documents to which Kien Huat and any of its affiliates were parties, including the Merger Agreement and the Preferred Stock Commitment Letter Amendment, were fair and in the best interests of the Company and its stockholders, and recommended that the Board approve such transaction documents and the transactions contemplated thereby, (ii) the Special Committee unanimously approved and recommended that the Board approve the form, terms and provisions of, and the transactions contemplated by, the Merger Agreement, the Voting Agreement, the Preferred Stock Commitment Letter Amendment and the Series F COD Amendment, and (iii) the Board, on the unanimous vote of those directors in attendance at the meeting, declared that the form, terms and provisions of, and the transactions contemplated by, the Merger Agreement, the Voting Agreement, the Preferred Stock Commitment Letter Amendment and the Series F COD Amendment, including the Merger, were advisable and fair to and in the best interests of the Company and its stockholders, approved the form, terms and provisions of, and the transactions contemplated by, the Merger Agreement, including the Merger, and authorized the Company to enter into the Merger Agreement and other transaction documents and perform each of its obligations thereunder, including the Merger, and recommended that the company’s stockholders adopt the Merger Agreement.

Later in the day on August 18, 2019, the parties executed the Merger Agreement and the other transaction documents, including the amendment to the 2018 Kien Huat Preferred Stock Commitment, by electronic exchange of signatures and Kien Huat delivered a written consent, in its capacity as the Company’s majority stockholder, approving the adoption of the Series F COD Amendment.

Early in the morning of August 19, 2019, the Company issued a press release announcing the entry into the Merger Agreement. That afternoon, after market close, the Company filed with the SEC a current report on Form 8-K in respect of the Merger Agreement and other definitive transaction documents, which appended the Merger Agreement, Voting Agreement, the Preferred Stock Commitment Letter Amendment and the press release as exhibits.

On August 20, 2019, Kien Huat filed an amendment to its Schedule 13D in respect of the Merger Agreement and other definitive transactions entered into on August 18, 2019.

On August 26, 2019, the Company filed with the SEC a preliminary information statement on Schedule 14C pursuant to Section 14(c) of the Exchange Act relating to the written consent delivered by Kien Huat approving the Series F COD Amendment and the issuance of additional shares of Series F Preferred Stock under the Preferred Stock Commitment Letter Amendment.

Also on August 26, 2019, the Company issued 150 shares of Series F Preferred Stock to Kien Huat pursuant to the Existing Preferred Stock Commitment Letter, as amended by the Preferred Stock Commitment Letter Amendment, for an aggregate purchase price of $15 million.

During the Go-Shop Period (which ran from signing of the Merger Agreement to 12:00 p.m. Eastern Time on August 30, 2019), the Company, with the assistance of Moelis, the financial advisor

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to the Special Committee, contacted 19 potential bidders. Each party that was contacted either notified the Company that it would not be interested in pursuing a potential transaction with the Company or did not respond. The Company also continued its discussions with Party A and received a second inbound indication of interest from another potential financing source. Ultimately, however, both of these parties failed to make a proposal constituting a “Takeover Proposal” as defined by the Merger Agreement. Starting immediately after 12:00 p.m. Eastern time on August 30, 2019 and in accordance with the terms of the Merger Agreement, the Company became subject to customary covenants restricting its ability to solicit takeover proposals from third parties or to provide information to and engage in discussions with a third party in relation to a takeover proposal, subject to certain customary exceptions to permit the Board comply with its fiduciary duties, as set forth in the Merger Agreement.

On September 3, 2019, the Company filed a Current Report on Form 8-K with the SEC publicly disclosing the results of the Go-Shop Period.

On September 5, 2019, the Company filed with the SEC a definitive information statement on Schedule 14C pursuant to Section 14(c) of the Exchange Act relating to the written consent delivered by Kien Huat approving the Series F COD Amendment and the issuance of additional shares of Series F Preferred Stock under the Preferred Stock Commitment Letter Amendment.

On September 23, 2019, the Company issued 75 shares of Series F Preferred Stock to Kien Huat pursuant to the Existing Preferred Stock Commitment Letter for an aggregate purchase price of $7.5 million.

Recommendation of the Special Committee and Our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger

As described in the section titled “—Background of the Merger,” prior to and in reaching their respective determinations to approve the Merger Agreement, the Voting Agreement, the Preferred Stock Commitment Letter Amendment and the Series F COD Amendment, the Special Committee and the Board consulted with and received the advice of the Company’s management and the Company’s and the Special Committee’s outside legal counsel and, in the case of the Special Committee, the Special Committee’s financial advisor, and considered a variety of factors weighing positively in favor of the approval of the Merger Agreement, the Voting Agreement, the May 2019 KH Commitment Amendment, the Series F COD Amendment and the transactions contemplated thereby, including the Merger, including the following material factors:

Merger Consideration

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Available Alternatives

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Negotiations with Kien Huat and GenM

High Likelihood of Completion

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Financial Advisor’s Opinion

Terms of the Merger Agreement and Certain Other Agreements

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Approval by the Company’s Directors

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Stockholder Approval and Availability of Appraisal Rights

The Special Committee and the Board also considered a variety of risks and other countervailing or negative factors related to the Merger Agreement and the Merger, including the following material factors:

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In addition, the Special Committee and the Board were aware of and considered the fact that certain of the Company’s directors and executive officers have financial interests in the transactions contemplated by the Merger Agreement that may be different from, or in addition to, those of the Company’s stockholders generally, including those interests that are a result of employment and compensation arrangements with the Company, as more fully described in the section titled “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger.”

The foregoing discussion of the factors considered by the Special Committee and the Board is not intended to be exhaustive but does set forth the principal factors considered by the Special Committee and the Board. The Special Committee collectively reached the unanimous conclusion to recommend that the Board approve the Merger Agreement, and the Board collectively reached the conclusion, by unanimous vote of the directors present at the meeting, to approve the Merger Agreement, in light of the various factors described above and other factors that each director deemed relevant. In view of the wide variety of factors considered by the members of the Special Committee and the Board in connection with their evaluation of the Merger Agreement and the complexity of these matters, the Special Committee and the Board did not consider it practical, and did not attempt, to quantify, rank or otherwise assign relative weights to the specific factors they considered in reaching their decisions. The Special Committee and the Board made their decisions based on the totality of information presented to and considered by them. In considering the factors discussed above, individual directors may have given different weights to different factors. The Board, on the unanimous recommendation of the Special Committee, determined, by unanimous vote of the directors present at the meeting, that the Merger is advisable, fair to and in the best interests of, the Company and its stockholders and has approved and declared advisable the Merger Agreement, the Merger and

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the other transactions contemplated by the Merger Agreement. The Board recommends that you vote “FOR” the proposal to adopt the Merger Agreement.

In light of the procedural protections described above, and the engagement of Paul,Weiss and Moelis by the Special Committee, the Special Committee and the Board did not consider it necessary to make any provision to grant Public Stockholders access to the Company’s corporate files or to obtain counsel or appraisal services for Public Stockholders.

financial statements and other information regarding the Company contained in the Company’s public filings with the SEC.

The financial projections do not take into account any circumstances or events occurring after the date they were prepared, and, except as may be required in order to comply with applicable securities laws, the Company does not intend to update or otherwise revise the financial projections, or the specific portions presented, to reflect circumstances existing after the date when they were made or to reflect the occurrence of future events, even in the event that any or all of the assumptions are shown to be in error. For the foregoing reasons, as well as the bases and assumptions on which the financial projections were compiled, the inclusion of specific portions of the financial projections in this Proxy Statement should not be regarded as an indication that such projections are an accurate prediction of future events, and they should not be relied on as such.

Set forth below is a summary of the financial projections that the Special Committee and its advisors considered in their evaluation of the Merger. As part of its annual financial planning process, the Company prepares management projections for its upcoming fiscal year and multi-year treasury models, which the Company then updates from time to time. In this capacity, the Company had prepared, and subsequently made available to the Special Committee and its advisors a set of management projections in July 2019, which included projected financials for fiscal years 2019 through 2024. Management prepared two sets of projections with one to include the introduction of online sports gambling beginning in 2021.

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Projection inclusive of online sports gambling beginning in 2021;

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The summary financial projections excluded any impacts associated with the positive effect of a potential video gaming machine facility in Orange County, the negative effect of any prospective opening of potential casino(s) in downstate New York and any impact of a potential management contract with Resorts World Casino New York City.

The summary financial projections were utilized by Moelis, at the direction of the Special Committee, in performing its financial analysis in connection with its opinion rendered to the Special Committee on August 18, 2019 as to the fairness, as of such date and from a financial point of view, of the Common Stock Per Share Merger Consideration to be received by the holders of Common Stock (other than the Excluded Holders) pursuant to the Merger Agreement.

For additional information on the Company’s actual results for fiscal year 2018, which were reported on March 15, 2019, and first and second quarters of 2019, which were reported on May 8, 2019, and August 9, 2019, respectively, see “Selected Financial Information” and “Where Stockholders Can Find Additional Information.”

Opinion of Financial Advisor to the Special Committee

At the meeting of the Special Committee on August 18, 2019, to evaluate and approve the Merger, Moelis delivered an oral opinion, which was confirmed by delivery of a written opinion, dated August 18, 2019, addressed to the Special Committee to the effect that, as of the date of the opinion and based upon and subject to the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, the Common Stock Per Share Merger Consideration to be received in the Merger pursuant to the Merger Agreement by the holders of Common Stock, other than the Excluded Holders, was fair, from a financial point of view, to such holders.

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The full text of Moelis’ written opinion dated August 18, 2019, which sets forth the assumptions made, procedures followed, matters considered and limitations on the review undertaken in connection with the opinion, is attached as Annex B to this Proxy Statement and is incorporated herein by reference. Moelis’ opinion was provided for the use and benefit of the Special Committee (solely in its capacity as such) in its evaluation of the Merger. Moelis’ opinion is limited solely to the fairness, from a financial point of view, to the holders of Common Stock, other than the Excluded Holders, of the Common Stock Per Share Merger Consideration to be received in the Merger pursuant to the Merger Agreement, and does not address the Company’s underlying business decision to effect the Merger or the relative merits of the Merger as compared to any alternative business strategies or transactions that might be available with respect to the Company. Moelis’ opinion does not constitute a recommendation to any holder of securities of the Company as to how such securityholder should vote or act with respect to the Merger or any other matter. Moelis’ opinion was approved by a Moelis fairness opinion committee.

In arriving at its opinion, Moelis, among other things:

In connection with Moelis’ review, with the Special Committee’s consent, Moelis relied on the information supplied to, discussed with or reviewed by it for purposes of its opinion being complete and accurate in all material respects. In connection with its review, Moelis did not assume any responsibility for, and Moelis did not undertake any, independent verification of any such information.

With the Special Committee’s consent, Moelis relied upon, without independent verification, the assessment of the Company and its legal, tax, regulatory and accounting advisors with respect to legal, tax, regulatory and accounting matters. With respect to the financial forecasts referred to above, Moelis assumed, at the Special Committee’s direction, that they have been reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of the Company as to the future performance of the Company. Moelis expressed no views as to the

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reasonableness of any financial forecasts or the assumptions on which they are based. In addition, with the Special Committee’s consent, Moelis did not make any independent evaluation or appraisal of any of the assets or liabilities (contingent, derivative, off-balance-sheet, or otherwise) of the Company, nor had Moelis been furnished with any such evaluation or appraisal.

Moelis’ opinion did not address the Company’s underlying business decision to effect the Merger or the relative merits of the Merger as compared to any alternative business strategies or transactions that might be available to the Company and does not address any legal, regulatory, tax or accounting matters. At the direction of the Special Committee, Moelis was not asked to, nor did it, offer any opinion as to any terms of the Merger Agreement or any aspect or implication of the Merger, except for the fairness of the Common Stock Per Share Merger Consideration from a financial point of view to the holders of Common Stock, other than the Excluded Holders, to the extent expressly specified in Moelis’ opinion. In addition, Moelis noted and took into account the Company’s disclosure in its Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2019 that the Company may be required, in the absence of obtaining additional liquidity sources or restructuring its existing debt and other obligations, to pursue an in-court proceeding for protection under Chapter 11 of the United States Bankruptcy Code with respect to certain subsidiaries of the Company in light of liquidity challenges facing the Company and its subsidiaries. Moelis did not express any opinion as to fair value or the solvency of the Company following the closing of the Merger. In rendering its opinion, Moelis assumed, with the consent of the Special Committee, that the final executed form of the Merger Agreement would not differ in any material respect from the draft that Moelis reviewed, that the Merger would be consummated in accordance with its terms, without any waiver or modification that could be material to Moelis’ analysis, and that the parties to the Merger Agreement would comply with all the material terms of the Merger Agreement. Moelis assumed, with the Special Committee’s consent, that all governmental, regulatory or other consents or approvals necessary for the completion of the Merger would be obtained, except to the extent that could not be material to its analysis.

Moelis’ opinion was necessarily based on economic, monetary, market and other conditions as in effect on, and the information made available to Moelis as of, the date of the opinion, and Moelis assumed no responsibility to update its opinion for developments occurring or coming to its attention after the date of its opinion. Moelis noted that the credit, financial and stock markets had been experiencing unusual volatility and Moelis expressed no opinion or view as to any potential effects of such volatility on the Company or the Merger.

Moelis’ opinion did not address the fairness of the Merger or any aspect or implication of the Merger to, or any other consideration of or relating to, the holders of any class of securities, creditors or other constituencies of the Company, other than the fairness of the Common Stock Per Share Merger Consideration to be received in the Merger from a financial point of view to the holders of Common Stock, other than the Excluded Holders. In addition, Moelis did not express any opinion as to the fairness of the amount or nature of any compensation to be received by any officers, directors or employees of any parties to the Merger, or any class of such persons, relative to the Common Stock Per Share Merger Consideration or otherwise. Except as described in this summary, the Special Committee did not impose any other limitations on Moelis with respect to the investigations made or procedures followed by Moelis in rendering its opinion.

The following is a summary of the material financial analyses presented by Moelis to the Special Committee at its meeting held on August 18, 2019, in connection with its opinion.

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Some of the summaries of financial analyses below include information presented in tabular format. In order to fully understand Moelis’s analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the analyses. Considering the data described below without considering the full narrative description of the financial analyses, including the methodologies and assumptions underlying the analyses, could create a misleading or incomplete view of Moelis’ analyses.

For purposes of its analyses, Moelis reviewed a number of financial metrics, including the following:

Unless the context indicates otherwise, (i) Enterprise Values used in the selected public companies analyses described below were calculated using the market prices of the common stock of the selected companies listed below as of August 15, 2019, (ii) the estimates of the future financial performance for the selected companies listed below were based on certain publicly available research analyst estimates for those companies, and (iii) the estimates of the future financial performance of the Company relied upon for the financial analyses described below were based on the Company Forecasts. Share count information for the Company was obtained from the Company’s Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2019.

Financial Analyses

Discounted Cash Flow Analysis. Moelis performed discounted cash flow (“DCF”) analyses of the Company using financial forecasts and other information and data provided by the Company. Given the uncertainty around online sports betting regulation, the Special Committee advised Moelis to analyze two scenarios to calculate the present value of the estimated future unlevered free cash flows projected to be generated by the Company. In one scenario, the Company Forecasts used by Moelis in its analysis excluded financial contribution from the Company’s online sports betting business and, given the views of the Company’s management as to the Company’s future taxable income in this scenario, reflected no utilization of the Company’s net operating losses (“Scenario A”). In the second scenario, the Company Forecasts used by Moelis in its analysis reflected management’s expected financial contribution from the Company’s online sports betting business and, given the views of the Company’s management as to the Company’s future taxable income in this scenario, the Company’s anticipated utilization of its net operating losses (“Scenario B”). In performing its DCF analysis of the Company, Moelis utilized a range of discount rates of 8.5% to 10.0% to calculate estimated present values as of September 30, 2019 of (i) the Company’s estimated after-tax unlevered free cash flows for the period from October 1, 2019 to December 31, 2024 and (ii) estimated terminal values derived by applying a range of terminal multiples of 7.0x to 9.0x to a terminal year 2024 Adjusted EBITDA. Moelis selected a range of discount rates based on an estimate of the Company’s weighted average cost of capital (“WACC”) that reflected a derived cost of equity using (i) a selected range of betas and debt

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to total capitalization ratios in each case informed by selected public companies that Moelis considered similar for this purpose as of August 15, 2019 and (ii) a size premium based on public companies with equity values similar to the Company. This analysis indicated the following implied per share reference ranges for the Company’s Common Stock based on Scenario A and Scenario B (with numbers in parentheses in the table below being negative values), as compared to the $9.74 Common Stock Per Share Merger Consideration in the Merger:

Selected Public Companies Analysis. Moelis reviewed financial and stock market information of the selected publicly traded companies noted below that are certain U.S. regional land-based gaming operators listed on a major U.S. exchange deemed relevant by Moelis in certain respects to the Company. Moelis also reviewed financial and stock market information of certain publicly traded casino operators with a national or international focus, however due to certain differences from the Company, these companies were not deemed relevant by Moelis for purposes of its analyses.

Moelis reviewed, among other things, Enterprise Values of the selected companies as a multiple of estimated EBITDA for calendar year 2020 (or, for Caesars Entertainment Corporation, Penn National Gaming, Inc., Eldorado Resorts, Inc. and Boyd Gaming Corporation. Enterprise Value is a multiple of estimated EBITDA(R) (EBITDA less rent expense) for calendar year 2020, with rent expense capitalized based on the book value of these companies’ capitalized lease obligations). Financial data for the selected companies were based on publicly available consensus research analysts’ estimates, public filings and other publicly available information. The selected companies and the Enterprise Value to calendar year 2020E estimated Adjusted EBITDA(R) multiples are summarized below:

Moelis then noted that the mean, median, high and low Enterprise Value to 2020E EBITDA(R) multiples for the selected companies were 8.9x, 8.5x, 13.1x and 6.3x, respectively. Moelis noted that it focused less on (i) Twin River Worldwide Holdings given its trading may have been impacted by contract negotiations with the State of Rhode Island and other parties regarding slot machines at its

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casinos and on Monarch Casino & Resort as its trading may have been affected by expectations regarding the new Black Hawk resort. Moelis applied a range of selected multiples derived from the selected companies of 7.0x to 9.0x to 2020E Adjusted EBITDA of the Company. Financial data for the Company was based on the financial forecasts and other information and data provided by the Company’s management and, since the Company’s estimated 2020E EBITDA was the same under Scenario A and Scenario B, only one reference range was derived. This analysis indicated the following implied per share reference range for the Company (with numbers in parentheses in the table below being negative values), as compared to the $9.74 Common Stock Per Share Merger Consideration in the Merger:

The Special Committee selected Moelis as its financial advisor in connection with the Merger because Moelis has substantial experience in similar transactions and familiarity with the Company. Moelis is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, strategic transactions, corporate restructurings, and valuations for corporate and other purposes.

Moelis acted as financial advisor to the Special Committee in connection with the Merger. Under the terms of its engagement, Moelis is entitled to receive monthly fees, creditable against the transaction fee, of $300,000 and earned an additional fee of $1,000,000 for the delivery of its Opinion. In addition, Moelis will receive a transaction fee of $3,200,000 (net of the $300,000 of monthly fees received) contingent upon the closing of the Merger.

Moelis will also receive a capital raise fee for its services of $1,000,000 for negotiations regarding increasing Kien Huat’s remaining commitments from $52 million to $77 million. In addition, the Company has agreed to indemnify Moelis and certain related parties for certain liabilities, including liabilities under the federal securities laws, arising out of its engagement.

Moelis’ affiliates, employees, officers and partners may at any time own securities (long or short) of the Company and Parent. Moelis in the past provided and currently provides investment banking and other services to the Company unrelated to the Merger and has received and may receive compensation for such services. In the two years prior to the date of Moelis’ opinion, Moelis acted, among other things, (i) as a financial advisor to the Company in connection with a capital markets transaction in January 2017, (ii) as a financial advisor to the Company in connection with a capital markets transaction in May 2017, (iii) as a financial advisor to a subsidiary of the Company for general advisory services in December 2017, (iv) as a financial advisor to the Company in connection with a sports betting strategic alliance in November 2018, and (v) currently as a financial advisor to the Company in connection with a potential acquisition transaction. Moelis may in the future provide investment banking and other services for the Company, Parent, or any their respective affiliates, including of the Parent Filing Group Persons, and may receive compensation for such services. Since January 2017, Moelis received fees from the Company and its subsidiaries for investment banking services of approximately $7,125,000. Additionally, Mr. Gregg Polle, who served as a director of the Company from December 2010 to July 2019, was a Managing Director of Moelis until July 23, 2019.

Purposes and Reasons of the Company for the Merger

The Company’s purpose in engaging in the Merger is to enable its stockholders to receive $9.74 per share of in cash, without interest and net of applicable withholding taxes, which $9.74 price represents a premium of $0.18 per share over the reported closing price of Common Stock on August 2, 2019, the last full trading day prior to the date that Kien Huat and GenM submitted the Proposal Letter. The Company has determined to undertake the Merger at this time based on the analyses, determinations and conclusions of the Special Committee and the Board described in detail above under “Special Factors—Recommendation of the Special Committee and our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger.”

Purposes and Reasons of the Parent Filing Group Persons for the Merger

Under the SEC rules governing “going-private” transactions, the Parent Filing Group Persons may be deemed to be affiliates of the Company and, therefore, are required to express their purposes

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and reasons for the Merger to the Public Stockholders. The Parent Filing Group Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act.

For the Parent Filing Group Persons, the purpose of the Merger is to enable Parent to acquire all outstanding equity of the Company not already owned by the Parent Filing Group Persons or their respective affiliates for the Per Share Merger Consideration, so that Gen USA and Kien Huat, through their ownership of Parent and through Kien Huat’s direct ownership of the Series F Preferred Stock, will bear the rewards and risk of the ownership of the Company after shares of Common Stock cease to be publicly traded.

As stated in the Initial Letter Kien Huat decided to pursue the Merger because Kien Huat no longer believed that the Company could become financially self -sustaining as a standalone public company. However, the Parent Filing Group Persons believe that ownership of the entire Company by the Parent and Kien Huat would help the Company to meet its present liquidity challenges, provided that the Company undergoes certain immediate improvements to its operations following completion of the Merger. As communicated in the Proposal Letter, Kien Huat and GenM believe that the Merger will create a path to such improvements in the long -term operating performance of the Company by, among other things, leveraging the institutional support and industry experience of GenM, including through the entry into an arm’s length operations agreement following the closing of the Merger.

In the Parent Filing Group Persons opinion, in addition to those benefits outlined above, there would be a number of other benefits to Kien Huat, Parent and the Company that would follow from the Company becoming wholly-owned by Parent and Kien Huat in addition to those outlined above. These benefits include but are not limited to the following:

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The Parent Filing Group Persons were aware of and considered the interests that certain Parent Filing Group Persons may have with respect to the Merger due to their interests as stockholders, directors and otherwise, as described in “Special Factors—Interests of the Company’s Directors and Executive Officers in the Merger” on page 68.

The foregoing discussion summarizes the material factors considered by the Parent Filing Group Persons in their consideration of the Merger. In view of the wide variety of factors considered by the Parent Filing Group Persons, the amount of information considered and the complexity of these matters, the Parent Filing Group Persons did not find it practicable to, and did not attempt to, rank, quantify, make specific assignments of, or otherwise assign relative weights to the specific factors considered in reaching its determination. The Parent Filing Group Persons considered these factors as a whole, and in their totality considered them to be favorable to, and support, its determination.

Positions of the Parent Filing Group Persons Regarding the Fairness of the Merger

Under the SEC rules governing “going-private” transactions, the Parent Filing Group Persons may be deemed to be affiliates of the Company and, therefore, are required to express their beliefs as to the fairness of the Merger to the Public Stockholders. The Parent Filing Group Persons are making the statements included in this section solely for the purpose of complying with the requirements of Rule 13e-3 and related rules under the Exchange Act.

As described below, the Parent Filing Group Persons believe that the Merger is fair to the Public Stockholders on the basis of (i) the factors as described in “Special Factors—Recommendation of the Special Committee and our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger” beginning on page 36, which factors the Parent Filing Group Persons agree with and adopt and (ii) the additional factors described below.

The Parent Filing Group Persons believe that the interests of the Public Stockholders were represented by the Special Committee, which negotiated the terms and conditions of the Merger Agreement on behalf of the Public Stockholders with the assistance of its independent legal and financial advisors.

None of the Parent Filing Group Persons participated in the deliberations of the Special Committee regarding, or received advice from the Special Committee’s independent legal or financial advisors as to, the substantive or procedural fairness of the Merger. Kien Huat has interests in the Merger different from those of the Public Stockholders of the Company by virtue of Kien Huat’s continuing equity interest in Parent and the Company following the Merger. The Parent Filing Group Persons have not performed, or engaged a financial advisor to perform, any valuation or other analysis

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for the purpose of assessing the fairness of the Merger to the Public Stockholders of the Company. GenM engaged Union Gaming Securities LLC and affiliates (“Union Gaming”) as a financial advisor in connection with the Merger and, from time to time, upon the request of GenM, Union Gaming provided its advice, and consulted with, GenM with respect to illustrative summary valuation ranges of the Company.

Based on the Parent Filing Group Persons’ knowledge and analysis of available information regarding the Company, as well as discussions with members of the Company’s senior management regarding the Company and its business and the factors considered by, and findings of, the Board and the Special Committee discussed in “Special Factors—Recommendation of the Special Committee and our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger” beginning on page 36 (which findings the Parent Filing Group Persons agree with and adopt), the Parent Filing Group Persons believe that the Merger is substantively fair to the Public Stockholders of the Company. The Parent Filing Group Persons base their belief on the following factors, among others, each of which, in their judgment, supports their view as to the fairness of the transaction:

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In addition, the Parent Filing Group Persons believe that the transaction is procedurally fair to the Public Stockholders, based on the following factors, among others:

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The Parent Filing Group Persons’ consideration of the factors described above reflects its assessment of the fairness of the Per Share Merger Consideration payable in the Merger to the Company’s Public Stockholders in relation to the going concern value of the Company on a stand-alone basis. The Parent Filing Group Persons considered the value of the Company in a sale as a going concern by taking into account the Company’s current and anticipated business, financial condition, results and operations, prospects, synergies and other forward-looking matters. The Parent Filing Group Persons did not, however, calculate a stand-alone going concern value for the Company because the Parent Filing Group Persons believe that going concern value is not an appropriate method of determining the value of the shares of Common Stock for the purposes of the Merger. The Parent Filing Group Persons believe that the trading price of the Common Stock at any given time represents the best available indicator of the Company’s going-concern value at that time, so long as the trading price is not impacted by speculation regarding the likelihood of a potential transaction.

In reaching their conclusion as to fairness, the Parent Filing Group Persons did not consider the net book value of the Company, which is an accounting concept, as a factor because the Parent Filing Group Persons believe that net book value is not a material indicator for the value of the Company as a going concern but rather is indicative of historical costs.

In addition, while the Company publicly disclosed in its June 30 10-Q that it may be required to seek a voluntary bankruptcy, the liquidation value of the Company was not considered by the Parent Filing Group Persons in reaching their conclusion as to fairness. The Parent Filing Group Persons believe that the value of the Company’s assets that might be realized in a liquidation would be significantly less than the price being offered in the Merger and might not return any value for the Company’s stockholders. Due to the fact that the Company is being sold as a going concern and the Parent Filing Group Persons have no plans to liquidate the Company, the Parent Filing Group Persons did not consider the liquidation value of the Company relevant to a determination as to whether the Merger is fair to the Public Stockholders.

In making their determination as to the substantive fairness of the Merger to the Public Stockholders, while the Parent Filing Group Persons considered the trading history of the shares of Common Stock, and noted that in certain instances it reflected prices above the Common Stock Per Share Merger Consideration, the Parent Filing Group Persons concluded that these factors were not conclusive in determining current value. In the judgment of the Parent Filing Group Persons, the prices paid in the past for shares of Common Stock are not indicative of the Company’s present market value because such prices were made at then-current trading prices of the Common Stock and, in part, were

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supported by Kien Huat’s financial support of the Company and speculation regarding a potential acquisition. The Parent Filing Group Persons did not consider the prices paid for Common Stock or Series F Preferred Stock by certain Parent Filing Group Persons in making their determination as to the substantive fairness of the Merger to the Public Stockholders, as such purchases were made in consideration of (i) then-current trading prices of the Common Stock, (ii) then-current and then-anticipated business, financial condition, results and operations, prospects, synergies and other forward-looking matters and (iii) the existing relationship of Kien Huat to the Company. See “Common Stock Transaction Information—Transactions by the Parent Filing Group Persons” on page 147.

Except as set forth in “Common Stock Transaction Information—Transactions by the Parent Filing Group Persons” on page 147 and “The Parties Involved in the Merger—Company Transactions with the Parent Filing Group Persons” on page 101, in making their determination as to the substantive fairness of the Merger to the Public Stockholders, the Parent Filing Group Persons were not aware of any firm offers during the prior two years by any person for (a) the merger or consolidation of the Company with another company, (b) the sale or transfer of all or any substantial part of the Company’s assets or (c) a purchase of the Company’s securities that would enable the holder to exercise control of the Company.

The foregoing discussion summarizes the material factors considered by Parent in its consideration of the Merger and is not intended to be exhaustive. In view of the wide variety of factors considered by Parent, the amount of information considered and the complexity of these matters, Parent did not find it practicable to, and did not attempt to, rank, quantify, make specific assignments of, or otherwise assign relative weights to the specific factors considered in reaching its determination. Parent considered these factors as a whole, and in their totality considered them to be favorable to, and support, its determination. Parent’s view as to the fairness of the transaction to stockholders of the Company should not be construed as a recommendation to any stockholder as to whether that stockholder should vote its shares in favor of the Merger.

Summary of Union Gaming Letter

GenM engaged Union Gaming as its independent financial advisor in connection with the potential acquisition of the Company. In selecting Union Gaming as its financial advisor, GenM primarily considered Union Gaming’s qualifications and knowledge of GenM’s business affairs and the global gaming industry, as well as its internationally recognized reputation as one of the leading boutique investment banks and advisory firms that is exclusively focused on the gaming industry. At the request of GenM, Union Gaming provided advice to GenM’s board of directors on July 22, 2019 which, on August 5, 2019, was formalized in a letter, dated as of July 22, 2019, which reflected the transaction terms known on August 5, 2019 and otherwise formalized the advice provided to GenM’s board of directors on July 22, 2019 (the “UG Letter”).

Union Gaming was not asked to deliver and has not delivered an opinion to GenM, the Special Committee or the Board as to the fairness, from a financial point of view or otherwise, of the consideration to be paid or received, as the case may be, in connection with the Merger. Union Gaming prepared the UG Letter for the sole use and benefit by GenM and its board of directors in connection with their evaluation of the consideration of a potential transaction and as such did not prepare the UG Letter for the benefit of any other party (including any of GenM’s shareholders, the Company’s stockholders, the Company’s management team and/or the Board) and as such should not be used or

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relied upon by any other party. Union Gaming did not determine or recommend the consideration of $9.74 per share of Common Stock nor did it determine the proposed transaction structure, both of which were determined by negotiations between GenM, Kien Huat and the Special Committee and approved by the Board. The UG Letter and accompanying analysis does not constitute a recommendation, and was not prepared to support a recommendation, to the Public Stockholders with respect to any particular offer price for the shares not held by Kien Huat or at all. Furthermore, Union Gaming did not prepare the UG Letter to support a determination that the consideration is fair, from a financial point of view or otherwise. The UG Letter is not an opinion concerning the trading price or value of any securities of GenM or the Company following the announcement, completion, or termination of the Merger.

THE FULL TEXT OF THE UG LETTER HAS BEEN FILED AS EXHIBIT C(2) TO THE STATEMENT ON SCHEDULE 13E-3 FILED BY THE COMPANY AND THE PARENT FILING GROUP PERSONS AND IS INCORPORATED HEREIN BY REFERENCE. COPIES OF THE UG LETTER MAY BE OBTAINED FROM THE SEC IN THE MANNER DESCRIBED IN “WHERE STOCKHOLDERS CAN FIND MORE INFORMATION” BEGINNING ON PAGE 153. YOU ARE URGED TO, AND SHOULD, READ THE UG LETTER IN ITS ENTIRETY. THE UG LETTER DOES NOT CONSTITUTE A RECOMMENDATION AS TO WHETHER ANY STOCKHOLDER SHOULD VOTE IN FAVOR OF THE MERGER OR AS TO HOW SUCH STOCKHOLDER SHOULD ACT IN CONNECTION WITH THE MERGER.

In connection with preparing the UG Letter, Union Gaming has reviewed, relied upon (without verifying or attempting to verify independently the completeness or accuracy thereof), or carried out, among other things, the following:

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The following is a summary of the material financial analysis conducted by Union Gaming as part of the UG Letter. The following, however, does not purport to be a complete description of the financial analyses performed by Union Gaming, nor does the order of analyses described represent the relative importance or weight given to those analyses by Union Gaming.

Union Gaming prepared its analysis based upon the following methodologies:

Discounted Cash Flow Analysis—The discounted cash flow analysis is a forward-looking enterprise valuation methodology that estimates the value of an asset or business by calculating the present value of expected future cash flows to be generated by that asset or business. The total enterprise value is determined by calculating the present value of unlevered after-tax free cash flows over the course of the projection period plus an estimate for the value of the Company beyond the projection period, known as the terminal value. The terminal value is commonly derived pursuant to two methods, the comparable company analysis (as discussed separately) or using the perpetuity growth method, in which the projected cash flows beyond the projection period are estimated using an assumed growth rate. The discounted cash flow analysis, based on five-year forecasted cash flows of the Company (including projected synergies and expansions to current operations that would require substantial additional investment to implement) discounted at between 7.7% to 8.7%, with a terminal value of 8.0x to 9.0x of 2024E EBITDA, indicated an implied potential valuation range following the Merger of $5.44-$15.95 per share of Common Stock.

Comparable Company Analysis—The comparable company analysis estimates the value of a company based on a relative comparison with publicly traded companies with similar operating and financial characteristics. Under this methodology, the enterprise value for each selected public company is determined by examining the trading prices for the equity securities of such company in the public markets and adding the aggregate amount of outstanding net debt (at the market trading value of debt, if available) and minority interests in unconsolidated subsidiaries. Such enterprise values are commonly expressed as multiples of various measures of financial and operating statistics, most commonly EBITDA and EBITDAR. The total enterprise value of the Company is then calculated by applying these multiples to the Company’s projected forward financial and operational metrics. The comparable company analysis, based on 7.0x to 9.0x Enterprise Value/EBITDA multiples of a range of listed gaming companies and the Company’s 2021E EBITDA (including projected synergies and expansions to current operations that would require substantial additional investment to implement), indicated an implied potential valuation range following the Merger of $6.46-$13.11 per share of Common Stock.

Precedent Transaction Analysis—The precedent transaction analysis estimates the value of a company based on a relative comparison with recently announced and completed mergers and acquisitions with similar operating and financial characteristics. Under this methodology, the enterprise value for each of the selected transactions is based on the gross consideration paid for the company or

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enterprise value. Such enterprise values are commonly expressed as multiples of various measures of financial and operating statistics, most commonly EBITDA and EBITDAR. The total enterprise value of the company is then calculated by applying these multiples to the company’s financial and operational metrics. The precedent transaction analysis, based on 8.0x to 9.5x Enterprise Value/EBITDA multiples of comparable single asset resort transactions in the region and the Company’s 2021E EBITDA (including projected synergies and expansions to current operations that would require substantial additional investment to implement), indicated an implied potential valuation range following the Merger of $9.79-$14.77 per share of Common Stock.

Given GenM’s unique ability to execute on potential expansion plans and ability to realize substantial synergies with Genting Americas and existing operations in the New York State area, Union Gaming believes the Discounted Cash Flow Analysis is most reflective of the illustrative valuation range of the Company following the Merger, taking into account projected synergies and expansions to current operations that would require substantial additional investment to implement. These analyses do not reflect the valuation of the Company on a standalone basis based on the Company’s historical and current operations, financial condition and prospects, and can only be realized through the recognition of synergies with GenM and the expansion of current operations after significant additional investment by the Company in its business and operations.

Assumptions and Limitations

The UG Letter and above summary thereof are subject to the assumptions, explanations, and limitations set forth below and included in the referenced UG Letter.

Union Gaming has, subject to the exercise of its professional judgment, relied, without independent verification, upon the completeness, accuracy and fair presentation of all of the financial and other information, financial projections, data, advice, opinions and representations obtained by it from public sources, or that was provided to Union Gaming by GenM, and its associates and affiliates and advisors (collectively, the “Information”), and we have assumed that this Information did not omit to state any material facts or any facts necessary to be stated to make that Information not misleading. The analysis is conditional upon the completeness, accuracy and fair presentation of such Information.

Union Gaming relied on the Information provided by GenM while preparing the UG Letter. Additionally, management of GenM has advised Union Gaming, and Union Gaming have assumed, that GenM’s projections of the Company have been reasonably prepared in good faith and on a basis reflecting the best currently available estimates and judgments of such management as to the future financial results and condition of the Company following the Merger, taking into account projected synergies and expansions to current operations that would require substantial additional investment to implement. Union Gaming expresses no view or opinion with respect to such projections or the assumptions on which they are based.

Union Gaming has relied upon and assumed, without independent verification, that there has been no change in the business, assets, liabilities, financial condition, results of operations, cash flows or prospects of the Company since the respective dates of the most recent financial statements and other information, financial or otherwise, provided to Union Gaming that would be material to Union Gaming’s analyses, and that there is no information or any facts that would make any of the information reviewed by Union Gaming incomplete or misleading.

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Furthermore, Union Gaming relied on guidance and forecasts from GenM, subject to the exercise of its professional judgment and without independent verification, as it related to certain net operating losses and other tax matters at the Company.

Union Gaming is not a legal, tax, or accounting expert, and Union Gaming expresses no opinion concerning any legal, tax, or accounting matters concerning the Merger.

Union Gaming’s analysis is provided on the basis of securities markets, economic, and general business and financial conditions prevailing as at the date of the UG Letter and the conditions and prospects, financial and otherwise, of RWNY and the Company as they are reflected in the Information and as they were represented to Union Gaming in Union Gaming’s discussions with management of GenM and any of its affiliates and advisors.

Union Gaming’s analysis does not represent a fairness opinion on the Merger. Union Gaming’s analysis and Letter was furnished to non-interested directors of GenM’s Board of Directors in connection with their consideration of the Merger and should not be used for any other purpose or relied upon by any other party. Union Gaming’s analysis is not intended to be and did not constitute a recommendation to the non-interested directors of GenM’s Board of Directors to approve the Merger, nor as an opinion concerning the trading price or value of any securities of GenM or the Company following the announcement, completion, or termination of the Merger.

Furthermore, Union Gaming’s analysis is not, and should not be construed as, advice as to the trading price at which the securities of GenM or the Company may trade at any time.

In connection with Union Gaming’s analysis, Union Gaming has not been requested to make, and has not made, any physical inspection or independent appraisal or evaluation of any of the assets, properties or liabilities (fixed contingent, derivative, off-balance-sheet or otherwise) of the Company, nor was Union Gaming provided with any such appraisal or evaluation.

Union Gaming has relied upon and assumed, without independent verification, that (i) the Merger will be consummated in a manner that complies in all respects with all applicable federal and state statutes, rules and regulations, and (ii) all governmental, regulatory, and other consents and approvals necessary for the completion of the Merger will be obtained and that no delay, limitations, restrictions or conditions will be imposed or amendments, modifications or waivers made that would result in the disposition of any assets of GenM or the Company, or otherwise have an effect on the Merger, GenM or the Company or any expected benefits of the Merger that would be material to Union Gaming’s analyses.

Union Gaming believes that its analyses must be considered as a whole and that selecting portions of its analyses and the factors considered by it, without considering all factors and analyses together, could create a misleading view of the process underlying the analysis. The preparation of an analysis is complex and is not necessarily susceptible to partial analysis or summary description and any attempt to do so could lead to undue emphasis on any particular factor or analysis. Furthermore, the valuation of any company or its assets is inherently imprecise and is subject to certain uncertainties and contingencies, all of which are difficult to predict and are beyond Union Gaming’s control. In performing Union Gaming’s analysis, Union Gaming made numerous assumptions with respect to industry performance and general business and economic conditions, many of which are beyond the control of GenM or the Company.

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Independence of Union Gaming

Neither Union Gaming nor any of its affiliates or associates is an insider, associate or affiliate of GenM, Parent or any of their respective subsidiaries, associates or affiliates, and is not an advisor to any person or company other than to GenM with respect to this Merger. Union Gaming and certain of its affiliates have in the past provided and are currently providing financial advisory and/or other financial or consulting services to certain affiliates of GenM, (Genting Americas Inc., RW Orange County LLC, Resorts World Las Vegas), for which Union Gaming and its affiliates have received, and may receive, compensation. Union Gaming has not provided any investment banking services to the Company in the past two years.

Union Gaming may, in the ordinary course of its business, provide financial advisory or investment banking services to GenM or any of its affiliates or associates, from time to time and receive fees for rendering such services. In addition, Union Gaming may execute transactions on behalf of GenM or other clients for which Union Gaming may receive compensation. Also, as an investment dealer in Hong Kong and the United States, Union Gaming conducts research on securities and may, in the ordinary course of its business, provide research reports and investment advice to its clients on investment matters, including with respect to GenM and its affiliates or associates.

Under the terms of its agreement with GenM, Union Gaming is to be paid certain fees for its services as financial advisor, including a portion of its fee which is payable following the closing of the Merger. In addition, pursuant to the agreement, GenM has agreed to reimburse Union Gaming’s expenses and indemnify Union Gaming against certain liabilities that may arise out of its engagement.

Certain Effects of the Merger; Plans for the Company

If the Merger is consummated, all of the equity interest in the Company will be owned by Parent and Kien Huat. No current Company stockholder (other than Kien Huat and, following the Term Sheet Acquisition, Gen USA or Parent) will have any ownership interest in, or be a stockholder of, the Company. As a result, the Company’s stockholders (other than the Parent Filing Group Persons) will no longer benefit from any increases in the Company’s value, nor will they bear the risk of any decreases in the Company’s value. Following the Merger, Parent and Kien Huat will benefit from the Company’s future earnings, growth and increases in the value of the Company, if any, and will be entitled to vote on corporate matters affecting the Company following the Merger. Similarly, Parent and Kien Huat will bear the risk of ongoing operations, including the risk of any decreases in the value of the Company after the Merger and operational and other risks.

If the Merger is consummated, each share of Common Stock and Series B Preferred Stock issued and outstanding immediately prior to the Effective Time will be canceled and converted into the right to receive the Per Share Merger Consideration, respectively, without interest and less any applicable withholding taxes. This does not apply to the Rollover Shares, the Canceled Shares or the Dissenting Shares. In connection with the completion of the Merger: (i) the Rollover Shares will remain outstanding, (ii) the Canceled Shares will be canceled and (iii) the Dissenting Shares will be canceled and entitle the holder thereof only to appraisal rights, unless and until such holder fails to perfect, and therefore loses, such appraisal rights. Immediately prior to the Effective Time, each RSU that is outstanding, whether or not then vested, will be canceled, extinguished and then converted into the right to receive an amount in cash equal to the product of the aggregate number of shares of Common Stock underlying such RSUs multiplied by the Common Stock Per Share Merger

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Consideration. Immediately prior to the Effective Time, each Company Stock Award that is outstanding will be forfeited to the Company and converted into the right to receive an amount in cash equal to the product of the aggregate number of Company Stock Awards multiplied by the Common Stock Per Share Merger Consideration. The cash payments for outstanding RSUs and Company Stock Awards will be payable through the payroll system of the Company (or one of the Company’s subsidiaries), without interest and net of applicable tax withholding.

Pursuant to the Term Sheet, subject to the satisfaction of certain conditions (including receipt of regulatory approvals), it is expected that prior to the completion of the Merger Kien Huat will sell to Gen USA 13,200,000 shares of Common Stock at $9.74 per share (the “Term Sheet Acquisition”). In addition, prior to completion of the Merger, it is expected that (i) Gen USA will contribute the Term Sheet Shares to Parent and Kien Huat will contribute 15,714,606 shares of Common Stock (representing all shares of Common Stock held by Kien Huat following the Term Sheet Acquisition) to Parent (the “Term Sheet Common Stock Contributions”) and (ii) Gen USA will contribute an amount of cash equal to 49% of the aggregate Per Share Merger Consideration plus approximately $9.4 million (the “True -Up Payment”) and Kien Huat will contribute an amount of cash equal to 51% of the aggregate Per Share Merger Consideration less the True -Up Payment. In exchange for the Term Sheet Common Stock Contributions, (a) Gen USA will continue to hold a 49% membership interest in Parent and (b) Kien Huat will continue to hold a 51% membership interest in Parent and will also receive an amount equal to the True -Up Payment. The True -Up Payment will be contributed to Parent by Gen USA in order for Gen USA to maintain a membership interest of 49%, assuming that all shares of Company Common Stock contributed in the Term Sheet Common Stock Contributions have a value of $9.74 per share.

Pursuant to the terms of the Delayed Draw Term Loan Credit Agreement (the “Bangkok Bank Loan Agreement” and amounts lent thereunder, the “Bangkok Bank Loan”) by and between the Company and Bangkok Bank PCL, New York Branch (“Bangkok Bank”), as lender, and Monticello Raceway Management, Inc., a wholly-owned subsidiary of the Company, as guarantor, neither the Company nor any of its subsidiaries is permitted to declare or pay any dividends or make other payments to purchase, redeem, retire or otherwise acquire any capital stock of the Company. Such restriction will lapse upon the payment in full of any amounts outstanding under the Bangkok Bank Loan Agreement. Notwithstanding the foregoing, so long as no event of default has occurred, subsidiaries of the Company are permitted to pay dividends to Company and the Company may pay dividends on the Series B Preferred Stock and for withholding taxes payable in connection with equity compensation programs. During 2018 and 2019, quarterly payments of dividends to the holders of Series B Preferred Stock in the amount of $32,087 were made on January 2, 2018, April 2, 2018, July 3, 2018, October 1, 2018, January 2, 2019, April 2, 2019 and July 1, 2019. If the Merger is consummated, no Series B Preferred Stock will remain outstanding and such Series B Preferred Stock dividend payments will cease.

If the Merger is consummated, the Common Stock will be delisted from the Nasdaq Global Market and deregistered under the Exchange Act, and the Company will no longer be required to file periodic reports with the SEC with respect to Common Stock.

From and after the Effective Time of the Merger, (i) the directors of Merger Sub immediately prior to the Effective Time of the Merger will be the directors of the Company until their successors are duly elected and qualified or until their earlier death, resignation or removal in accordance with the Company’s certificate of incorporation, bylaws and applicable law following the Merger and (ii) the

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officers of the Company immediately prior to the Effective Time of the Merger will continue to be the officers of the Company until their successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Company’s certificate of incorporation, bylaws and applicable law following the Merger.

Pursuant to the Term Sheet, GenM, or an affiliate thereof, will enter into an arm’s length operations agreement following the closing of the Merger, the terms of which have not yet been determined.

The Parent Filing Group Persons expect Parent to review the Company and its assets, corporate structure, capitalization, operations, properties, policies, management and personnel to determine what changes, if any, would be desirable following the Merger in order to best organize and realize synergies from the ongoing activities of Parent’s affiliates and the Company. The Parent Filing Group Persons expressly reserve the right to make any changes that they deem necessary or appropriate in light of Parent’s review of the Company or in light of future developments.

The Parent Filing Group Persons have no current plans, proposal or negotiations which relate to or would result in an extraordinary corporate transaction involving the Company’s corporate structure, business or management, such as a merger, reorganization, liquidation, relocation of any operations, or sale or transfer of a material amount of assets, or the incurrence of any indebtedness, in each case, except as described above or elsewhere in this Proxy Statement, including under “Special Factors—Purposes and Reasons of the Parent Filing Group Persons for the Merger” beginning on page 52. However, the Parent Filing Group Persons expressly reserve the right to make any changes that they deem necessary or appropriate in light of Parent’s review of the Company or in light of future developments.

If the Merger is completed, the Public Stockholders will have no interest in the Company’s net book value or net earnings or losses. As a result of the completion of the Merger, the Parent Filing Group Persons’ interest in the Company’s net book value and net losses will increase. According to the Company’s Quarterly Report on Form 10 -Q filed on March 15, 2019, the Company’s net book value at December 31, 2018, was approximately $211.8 million and net loss attributable to the Company for the twelve months ended December 31, 2018 was approximately $138.7 million. Assuming the Parent Filing Group Persons owned approximately 86% of the outstanding shares of Common Stock throughout 2018 (the percentage of shares of Common Stock owned as of the date hereof), the Parent Filing Group Persons’ interest in the Company’s net book value and net loss as of December 31, 2018, would have been approximately $181.7 million and $119 million, respectively. Assuming the Merger is consummated, the Parent Filing Group Persons’ interest in those items would increase to 100%, and the Parent Filing Group Persons would be entitled to all other benefits resulting from its 100% ownership of the Company, including all income generated by the Company’s operations and any future increase in the Company’s value. Similarly, the Parent Filing Group Persons would also bear all of the risk of losses generated by the Company’s operations and any decrease in the value of the Company after the completion of the Merger. Upon completion of the Merger, the Company will become a privately held corporation. Accordingly, former stockholders will not have the opportunity to participate in the earnings and growth of the Company and will not have any right to vote on corporate matters. Similarly, former stockholders will not face the risk of losses generated by the Company’s operations or decline in the value of the Company.

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Alternatives to the Merger

As noted above, in response to the proposed offer from Kien Huat and GenM, the Special Committee evaluated potential strategic alternatives, including a potential sale of the Company, with the assistance of the Company’s executive officers and advisors. The Special Committee considered the risks and potential likelihood of achieving greater value for the Public Stockholders by pursuing strategic alternatives to the Merger, including continuing as an independent public company or, in view of the Company’s challenging liquidity position, to prepare for a voluntary bankruptcy of Montreign, relative to the benefits of the Merger. In this regard, the Special Committee took into account that Kien Huat had an effective veto over any alternative extraordinary transaction and that Kien Huat and GenM had stated in their Proposal Letter on August 5, 2019 that it and its affiliates intended to remain the majority owner of the Company at all times and would not vote for any alternative sale, merger or other extraordinary corporate transaction involving the Company. The Special Committee also considered the fact that, since the public announcement of the Proposal Letter through the expiration of the Go-Shop Period on August 30, 2019, despite contacting 19 potential bidders, the Company only received inbound indications of interest from two potential financing sources. Ultimately, however, both of these parties failed to make a proposal constituting a Takeover Proposal. Starting immediately after 12:00 p.m., Eastern Time, on August 30, 2019 and in accordance with the terms of the Merger Agreement, the Company became subject to customary covenants restricting its ability to solicit Takeover Proposals from third parties or to provide information to and engage in discussions with a third party in relation to a Takeover Proposal, subject to certain customary exceptions to permit the Board to comply with its fiduciary duties. For more information on the process behind the Special Committee’s determination, see “Special Factors—Background of the Merger” and “Special Factors—Recommendation of the Special Committee and our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger.”

Effects on the Company if the Merger is not Completed

If the Company’s stockholders do not adopt the Merger Proposal or if the Merger is not completed for any other reason, the Company’s stockholders will not receive any payment for their shares of Voting Stock unless the Company is sold to a third party. Instead, unless the Company is sold to a third party, we will remain a public company, our Common Stock will continue to be listed and traded on the Nasdaq Global Market, and our stockholders will continue to be subject to similar risks and opportunities as they currently are with respect to their ownership of Voting Stock. If the Merger is not completed, there is no assurance as to the effect of these risks and opportunities on the future value of your shares of Voting Stock, including the risk that the market price of Voting Stock may decline to the extent that the current market price of Voting Stock reflects a market assumption that the Merger will be completed. If the Company’s stockholders do not adopt the Merger Proposal or if the Merger is not completed for any other reason, there is no assurance that any other transaction acceptable to the Company will be offered or that the business, prospects or results of operations of the Company will not be adversely impacted, including as a result of the significant costs and expenses incurred by the Company in connection with the Merger.

Pursuant to the Merger Agreement, under certain circumstances, the Company is permitted to terminate the Merger Agreement and recommend an alternative transaction. See “The Merger Agreement—Termination” beginning on page 136. Additionally, under certain circumstances, if the Merger is not completed, the Company may be obligated to pay to Parent a termination fee. See “The Merger Agreement—Effect of Termination; Fees and Expenses” beginning on page 137.

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Financing of the Merger

The Parent Filing Group Persons estimate that Parent will need up to approximately $60.2 million to consummate the Merger and other transactions contemplated by the Merger Agreement, including the payment by Parent of the aggregate Per Share Merger Consideration and all related fees and expenses that Parent is obligated to pay. Under the terms of the Equity Commitment Letters, Kien Huat’s and RW Omni’s obligation to fund the payment of monetary damages payable to the Company by Parent or Merger Sub arising out of the Merger Agreement will be limited to Kien Huat’s and RW Omni’s respective portions of the Equity Commitment. The Company has customary third party beneficiary rights under each of the Equity Commitment Letters. The obligations of Parent and Merger sub to consummate the Merger under the Merger Agreement are not subject to a condition of Parent or Merger Sub obtaining funds to consummate the Merger. Parent has obtained equity financing commitments for the transactions contemplated by the Merger Agreement, the aggregate proceeds of which are expected to be sufficient, assuming such financing commitments are funded in accordance with their terms, to consummate the Merger and other transactions contemplated by the Merger Agreement, including the payment by Parent of the aggregate Per Share Merger Consideration and all related fees and expenses that Parent is obligated to pay.

Equity Commitment Letters

Pursuant to separate Equity Commitment Letters, each of Kien Huat and RW Omni, have committed to, among other things, provide equity support sufficient, in the aggregate, to fund all of Parent’s payment obligations and relevant fees and expenses to be reimbursed by Parent under the Merger Agreement. Pursuant to the Kien Huat Equity Commitment Letter, Kien Huat is obligated, subject to the terms and conditions thereof, to make a contribution to Parent of $30.7 million. Pursuant to the RW Omni Equity Commitment Letter, RW Omni is obligated, subject to the terms and conditions thereof, to make a contribution to Parent of $29.5 million. The funding of amounts payable under the Equity Commitment Letters are subject to the satisfaction or waiver by Parent of all of the conditions to the obligations of Parent and Merger Sub to effect the completion of the Merger in the Merger Agreement (other than conditions which by their terms are to be satisfied by actions to be performed at the completion of the Merger, provided that such conditions would be satisfied or waived at the completion of the Merger). The Company has customary third party beneficiary rights under each of the equity commitment letters.

The foregoing description of the Equity Commitment Letters does not purport to be complete and is qualified in its entirety by reference to the complete text of each Equity Commitment Letter, copies of which are attached as exhibits (d)(4) and (d)(5) to the statement on Schedule 13E-3 filed by the Company and the Parent Filing Group Persons with the SEC on September  24, 2019.

Interests of the Company’s Directors and Executive Officers in the Merger

In considering the recommendation of the Board, you should be aware that, aside from their interests as stockholders of the Company, the Company’s directors and executive officers have interests in the Merger that are different from, or in addition to, the interests of other stockholders of the Company generally. The members of the Special Committee were aware of and considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and the Merger, and in making it recommendations to the Board, which was also aware of and took into account these

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interests, among other matters, when making its recommendation to the stockholders of the Company that the Merger Agreement be approved. See “—Background of the Merger” and “Recommendation of the Special Committee and Our Board of Directors; Reasons for Recommending the Adoption of the Merger Agreement; Fairness of the Merger.”

Stockholders should take these interests into account in deciding whether to vote “FOR” the Merger Proposal. These interests are described in more detail below, and certain of them are quantified in the narrative and the tables below.

Compensation of the Special Committee

The Special Committee consists of three independent members of the Board, Keith Horn, Nancy Palumbo and Edmund Marinucci. At a meeting of the Compensation Committee held on July 17, 2019, the compensation committee unanimously adopted resolutions providing that each member of the Special Committee would receive compensation of $48,000 on an annualized basis and the chairman of the Special Committee, Keith Horn, would receive an additional $48,000 on an annualized basis for service as the Chairman of the Special Committee. These fees are not dependent on the closing of the Merger or on the Special Committee’s or the Board’s approval of, or recommendations with respect to, the Merger.

In recommending and approving the compensation structure, the compensation committee considered, among other things, precedent compensation structures for special committees formed by the Company for purposes comparable to those for which the Special Committee was formed. The compensation committee considered the nature and scope of the proposed transaction and the time expected to be required by the Special Committee members and chairperson. The compensation committee also considered the advantages and disadvantages of alternative arrangements, including retainers, and determined that the fee structure chosen was consistent with the precedent for comparable transactions that it reviewed with counsel.

Indemnification of Directors and Officers; Directors’ and Officers’ Insurance

The Company’s Second Amended and Restated Certificate of Incorporation contains certain provisions permitted under the DGCL relating to the liability of our directors. These provisions eliminate a director’s personal liability for monetary damages resulting from a breach of fiduciary duty, except in certain circumstances involving wrongful acts, including:

These provisions do not limit or eliminate our rights or those of any stockholder to seek non-monetary relief, such as an injunction or rescission, in the event of a breach of a director’s fiduciary duty. These provisions will not alter a director’s liability under federal securities laws.

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The Company’s Second Amended and Restated Certificate of Incorporation also provides that if the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of the Company’s directors will be eliminated or limited to the fullest extent permitted by the DGCL. We believe that these provisions are necessary to attract and retain qualified individuals to serve as directors and officers.

The Company’s Third Amended and Restated Bylaws provide that we will indemnify our directors and officers to the fullest extent permitted by the DGCL, as it now exists or may in the future be amended, against all expenses and liabilities reasonably incurred for their service. The Third Amended and Restated Bylaws provide that we will advance the expenses incurred by a director or officer in advance of the final disposition of an action or proceeding; provided that such advances will be repaid to us to the extent that it is ultimately determined that the director or officer is not entitled to be so indemnified. The Third Amended and Restated Bylaws, together with our Second Amended and Restated Certificate of Incorporation, also authorize us to indemnify, on a case-by-case basis, any of our employees or agents and permit us to secure insurance on behalf of any officer, director, employee or agent for any liability arising out of his or her action in that capacity.

The Merger Agreement provides that Parent and the surviving corporation will cause all rights of indemnification, advancement of expenses and exculpation existing in favor of any present or former director, officer or employee of the Company or any of its subsidiaries to survive the Merger and continue in full force and effect for at least six years after the Effective Time. In addition, for six years following the Effective Time, the Company and its subsidiaries will cause their respective organizational documents to contain provisions with respect to indemnification, exculpation and the advancement of expenses that are at least as favorable as the indemnification, exculpation and advancement of expenses provisions set forth in the respective organizational documents of the Company and its subsidiaries as of the date of the Merger Agreement.

Following the Effective Time, the Company and its subsidiaries will indemnify and hold harmless, to the fullest extent permitted by applicable law, any present or former director, officer or employee of the Company or its subsidiaries, respectively, against any costs or expenses, judgments, fines, losses, claims, damages or liabilities incurred in connection with any threatened or actual action or proceeding arising out of such individual’s role as a director, officer or employee of the Company, including matters, acts or omissions occurring in connection with the approval of the Merger Agreement and the transactions contemplated by the Merger Agreement, including the Merger.

Additionally, for a period of six years after the Effective Time, the Company will maintain in effect the policies of directors’ and officers’ liability insurance currently maintained by the Company or policies of at least the same coverage and amounts containing terms and conditions no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time, provided that the Company is not obligated to expend on an annual basis an amount in excess of 300% of the current annual premium paid by the Company. In lieu of such policies, the Company may purchase a “tail” directors’ and officers’ liability insurance policy, provided that such policy covers the matters currently covered by directors’ and officers’ liability insurance and such policy is maintained in effect for six years following the Effective Time.

Merger Proceeds in Respect of Company Equity-Based Awards

Treatment of RSUs and Company Stock Awards Immediately prior to the Effective Time, each RSU that is outstanding, whether or not then vested, will be canceled, extinguished and converted into

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the right to receive an amount in cash equal to the product of the aggregate number of shares of Common Stock underlying such RSUs, multiplied by the Common Stock Per Share Merger Consideration. Immediately prior to the Effective Time, each Company Stock Award that is outstanding will be forfeited to the Company and converted into the right to receive an amount in cash equal to the product of the aggregate number of Company Stock Awards, multiplied by the Common Stock Per Share Merger Consideration. The cash payments for outstanding RSUs and Company Stock Awards will be payable through the payroll system of the Company (or one of the Company’s subsidiaries), without interest and net of applicable tax withholding.

The following table shows, for each member of the Board and for each named executive officer of the Company, as applicable: (1) the number of shares of Common Stock underlying outstanding RSU awards and the number of shares of Common Stock subject to unvested Company Stock Awards and (2) the value of such awards. The values in the table below have been determined using the Common Stock Per Share Merger Consideration of $9.74, and are based on applicable holdings as of August 31, 2019, which date is the assumed date of the completion of the Merger solely for purposes of this compensation-related disclosure.

Outstanding Shares Held by Directors and Executive Officers

The members of the Board and the executive officers that own Common Stock, Company Stock Awards and RSUs will receive the same Common Stock Per Share Merger Consideration of $9.74 on the same terms and conditions as other Company stockholders.

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The following table shows, for each member of the Board and for each executive officer of the Company, as applicable: (1) the number of shares of Common Stock held by such individual, and (2) the value of such Common Stock. The values in the table below have been determined using the Common Stock Per Share Merger Consideration of $9.74, and are based on applicable holdings as of August 31, 2019, which date is the assumed date of the completion of the Merger solely for purposes of this compensation-related disclosure.

Employment Arrangements with Company Executive Officers

Each of Mr. Eller, Ms. Horner and Mr. Sanko has entered into an employment agreement with the Company. The employment agreements provide for certain severance benefits to be paid in the event of an executive’s termination of employment by the Company without “Cause” or by an executive with “Good Reason” (each as defined in the applicable employment agreement). The occurrence of a change in control event is not in itself a severance trigger. The amount of the severance benefit upon a termination without Cause or with Good Reason, is enhanced if it occurs on or following a change in control. The transactions contemplated by the Merger Agreement may constitute a “Change in Control” as defined in the employment agreements.

Specifically, in the event that the Company terminates an executive’s employment without Cause (as defined in the applicable employment agreement) or the executive resigns with Good Reason (as defined in the applicable employment agreement) following a Change in Control (as defined in the applicable employment agreement), the Company is obligated to pay or provide (i) accrued obligations, (ii) a pro rata portion of any bonus awarded pursuant to a bonus plan in which the executive is a participant, (iii) continued base salary payments during the Salary Continuation Period (as defined below), (iv) accelerated vesting of any equity awards held by the executive and (v) fully subsidized COBRA premiums during the Salary Continuation Period. The Salary Continuation Period means (x) if the termination occurs following a Change in Control, the greater of (A) 24 months or (B) the remainder of the term of the executive’s employment agreement, and (y) if the termination occurs prior to a Change in Control, the lesser of (A) 18 months or (B) the remainder of the term of the executive’s employment agreement.

Mr. Eller’s employment agreement was effective March 27, 2017 and the term extends through February 28, 2021. Ms. Horner’s employment agreement, dated as of March 11, 2019, was effective as of January 1, 2019 and the term extends through January 4, 2021. Mr. Sanko’s employment agreement was effective as of December 12, 2017 and the term extends through December 11, 2020.

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For a tabular discussion of severance benefits payable to the above-mentioned executives see the Golden Parachute Compensation table below.

Golden Parachute Compensation

The following table sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation for each of the Company’s named executive officers that is based on or otherwise becomes payable immediately prior to, or upon the effectiveness of, the Merger, assuming that the Merger was consummated on August 31, 2019 and, with respect to the severance payments, that a qualifying termination occurs in connection with the closing of the Merger.

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Benefit Arrangements of the Surviving Corporation

As described under “The Merger Agreement—Covenants of Parent and/or Merger Sub—Employee Matters” beginning on page 131, the Merger Agreement requires Parent to continue to provide certain compensation and benefits following the completion of the Merger to all Company employees, including the Company’s executive officers, who remain employed by the Company following completion of the Merger.

Intent to Vote in Favor of the Merger

Our directors and executive officers have informed us that, as of the date of this Proxy Statement, they intend to vote all of the shares of Common Stock owned directly by them in favor of the Merger Proposal. As of     the Record Date, our directors and executive officers directly owned, in the aggregate, 113,184 shares of Common Stock entitled to vote at the Special Meeting, or approximately 0.3% of the outstanding shares of Common Stock entitled to vote at the Special Meeting.

Voting Agreement

In connection with the execution of the Merger Agreement, Kien Huat entered into the Voting Agreement with the Company pursuant to which Kien Huat has agreed to vote its shares in the Company, representing approximately 86% of the voting power of the outstanding shares of Voting Stock, in favor of the Merger Proposal, subject to the limitations set forth in the Voting Agreement. Under the Voting Agreement, Kien Huat agreed not to transfer any of its shares in the Company, except to certain permitted transferees that agree to join the Voting Agreement. Kien Huat’s obligations under the Voting Agreement will automatically terminate upon the earliest to occur of (i) the mutual agreement of the parties thereto to terminate the Voting Agreement; (ii) the termination of the Merger Agreement in accordance with its terms, and (iii) the Effective Time.

The foregoing description of the Voting Agreement does not purport to be complete and is qualified in its entirety by reference to the complete text of the Voting Agreement, a copy of which is attached as exhibit (d)(2) to the statement on Schedule 13E-3 filed by the Company and the Parent Filing Group Persons with the SEC on the date hereof.

Dividends

Pursuant to the terms of the Bangkok Bank Loan Agreement, neither the Company nor any of its subsidiaries is permitted to declare or pay any dividends or make other payments to purchase, redeem, retire or otherwise acquire any capital stock of the Company. Such restriction will lapse upon the payment in full of any amounts outstanding under the Bangkok Bank Loan Agreement. Notwithstanding the foregoing, so long as no event of default has occurred, subsidiaries of the Company are permitted to pay dividends to the Company and the Company may pay dividends on the Series B Preferred Stock and for withholding taxes payable in connection with equity compensation programs. Quarterly payments in the amount of $32,087 were made to the holders of Series B Preferred Stock on April 2, 2019 and July 1, 2019 for the first two quarters of 2019, and quarterly payments in the amount of $32,087 to the holders of Series B Preferred Stock were made on April 2, 2018, July 2, 2018, October 1, 2018 and January 2, 2019 for the 2018 period.

The Merger Agreement provides that, except with respect to periodic cash dividends paid on the Series B Preferred Stock, neither the Company nor its subsidiaries will make, declare, set aside or

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pay any dividend or distribution on, or make any other distributions in respect of, any of their respective capital stock, other than dividends and distributions by wholly-owned subsidiaries of the Company, without the prior written consent of Parent. See “The Merger Agreement—Covenants of the Company—Conduct of Business Pending the Merger” below.

Appraisal Rights

The summary of the provisions set forth in this section is not a complete statement of your appraisal rights under Delaware law and is qualified in its entirety by reference to the text of Section 262 of the DGCL, a copy of which is attached as Appendix C to this Proxy Statement and is incorporated herein by reference. Stockholders intending to exercise appraisal rights should carefully review Appendix C to this Proxy Statement. Failure to follow any of the statutory procedures precisely may result in a termination or waiver of these rights.

Holders of Voting Stock who do not vote in favor of the adoption of the Merger Proposal and who properly demand and perfect appraisal of their shares will be entitled to appraisal rights in connection with the Merger in accordance with Section 262 of the DGCL. In order to exercise and perfect appraisal rights, a record holder of shares of Voting Stock must follow properly and in a timely manner the statutory procedures of Section 262 of the DGCL. Such holders will be entitled to have their shares of Voting Stock appraised by the Delaware Court of Chancery (the “Court”) and to receive the “fair value” of such shares in cash as determined by the Court, together with interest, if any, to be paid on the amount determined to be the fair value, in lieu of the consideration that such stockholder would otherwise be entitled to receive pursuant to the Merger Agreement.

The following is a brief summary and not a complete statement of all applicable requirements of Section 262 of the DGCL, which sets forth the procedures for dissenting from the Merger and demanding and perfecting appraisal rights. Failure to follow the procedures set forth in Section 262 of the DGCL precisely could result in the loss of appraisal rights. Under Section 262 of the DGCL, where a merger is to be submitted for approval at a meeting of stockholders, such as the Special Meeting, not less than 20 days prior to the meeting, the corporation must notify each of its stockholders as of the record date for notice of such meeting with respect to shares for which appraisal rights are available that such appraisal rights are available and include in each such notice a copy of Section 262 of the DGCL. This Proxy Statement constitutes such notice to holders of Voting Stock concerning the availability of appraisal rights in accordance with Section 262 of the DGCL. A stockholder of record wishing to assert appraisal rights must hold the shares of stock on the date a demand for appraisal rights with respect to such shares is made and must continuously hold such shares through the effective time of such merger. Accordingly, a stockholder who is the record holder of shares of stock on the date the written demand for appraisal is made, but who thereafter transfers such shares prior to the effective time of such merger, will lose any right to appraisal in respect of such shares. Moreover, because of the complexity of the procedures for exercising the right to seek appraisal of shares of Voting Stock, if a stockholder considers exercising such rights, such stockholder should seek the advice of legal counsel.

Stockholders who desire to exercise their appraisal rights must satisfy all of the conditions of Section 262 of the DGCL. A written demand for appraisal of shares must be delivered to the Company before the taking of the vote on the Merger at the Special Meeting. This written demand for appraisal of shares must be in addition to, and separate from, a vote against the Merger Proposal, or an abstention or failure to vote in favor of the Merger Proposal. Stockholders electing to exercise their appraisal rights must not vote FOR the Merger Proposal. Any proxy or vote against the Merger

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Proposal in and of itself will not constitute a demand for appraisal within the meaning of Section 262 of the DGCL.

A demand for appraisal must be executed by or for the stockholder of record. If the shares are owned of record in a fiduciary capacity, such as by a trustee, guardian or custodian, the demand must be executed by or for the record owner. If the shares are owned by or for more than one person, as in a joint tenancy or tenancy in common, the demand must be executed by or for all joint owners. An authorized agent, including an agent for two or more joint owners, may execute the demand for appraisal for a stockholder of record; however, the agent must identify the record owner or owners and expressly disclose the fact that, in exercising the demand, he is acting as agent for the record owner or owners. Beneficial owners of shares of Voting Stock have no right directly to demand appraisal; such demands must be made through the record holder of such shares. A person having a beneficial interest in Voting Stock held of record in the name of another person, such as a broker or nominee, must act promptly to cause the record holder to follow the steps summarized herein and in a timely manner to perfect whatever appraisal rights the beneficial owner may have. A record holder who holds shares as nominee for several beneficial owners may exercise appraisal rights with respect to the shares of Voting Stock held for one or more beneficial owners while not exercising such rights with respect to the shares held for other beneficial owners; in such case, the written demand should set forth the number of shares as to which appraisal is sought. If the number of shares of Voting Stock is not expressly stated, the demand will be presumed to cover all shares held in the name of the record owner. If Voting Stock is held through a broker who in turn holds the Voting Stock through a central securities depository nominee such as Cede & Co., a demand for appraisal of such Voting Stock must be made by or on behalf of the depository nominee and must identify the depository nominee as record holder.

A stockholder who elects to exercise appraisal rights should mail or deliver the required written demand to the Company at Empire Resorts, Inc., c/o Monticello Casino and Raceway, 204 State Route 17B, P.O. Box 5013, Monticello, New York 12701, Attention: Nanette Horner, Executive Vice President, Chief Counsel and Chief Compliance Officer.

The demand must reasonably inform the Company of the identity of the holder as well as the holder’s intention to demand the appraisal of the shares held by the holder. A stockholder’s failure to make the written demand prior to the taking of the vote on the adoption of the Merger Agreement at the Special Meeting will constitute a waiver of appraisal rights. Within 10 days after the Effective Time, the Company must provide notice of the Effective Time to all of the Company’s stockholders who have complied with Section 262 of the DGCL and have not voted in favor of the adoption of the Merger Agreement.

Within 120 days after the Effective Time (but not thereafter), any stockholder who has satisfied the requirements of Section 262 of the DGCL will be entitled, upon written request, to receive from the Company a statement listing the aggregate number of shares not voted in favor of adoption of the Merger Agreement and with respect to which demands for appraisal have been received and the aggregate number of holders of such shares. The statement must be mailed within 10 days after a written request therefor has been received by the Company or within 10 days after the expiration of the period for delivery of demands for appraisal, whichever is later. A person who is the beneficial owner of shares of Voting Stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own name, request from the Company the statement described in this paragraph.

Within 120 days after the Effective Time (but not thereafter), either the Company or any stockholder who has complied with Section 262 of the DGCL and who is otherwise entitled to

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appraisal rights may commence an appraisal proceeding by filing a petition in the Delaware Court of Chancery demanding a determination of the value of the shares of Voting Stock owned by stockholders entitled to appraisal rights. If no such petition is filed within such 120-day period, appraisal rights will be lost for all stockholders who had previously demanded appraisal of their shares. The Company has no obligation or present intention to file such a petition if demand for appraisal is made, and holders should not assume that the Company will file a petition. Accordingly, it is the obligation of the holders of Voting Stock to initiate all necessary action to perfect their appraisal rights in respect of shares of Voting Stock within the time prescribed in Section 262 of the DGCL. A person who is the beneficial owner of shares of Voting Stock held either in a voting trust or by a nominee on behalf of such person may, in such person’s own name, file such a petition.

Upon the filing of any petition by a stockholder in accordance with Section 262 of the DGCL, service of a copy thereof must be made upon the Company. The Company must, within 20 days after such service, file in the office of the Register in Chancery in which the petition was filed, a duly verified list containing the names and addresses of all stockholders who have demanded payment for their shares and with whom the Company has not reached agreements as to the value of their shares. The Court may require the stockholders who have demanded an appraisal for their shares (and who hold stock represented by certificates) to submit their stock certificates to the Register in Chancery for notation thereon of the pendency of the appraisal proceedings and the Court may dismiss the proceedings as to any stockholder that fails to comply with such direction.

At the hearing on such petition, the Court will determine those stockholders who have complied with Section 262 of the DGCL and who have become entitled to appraisal rights thereunder. After the Court determines the holders of Voting Stock entitled to appraisal, the appraisal proceeding will be conducted in accordance with the rules of the Court, including any rules specifically governing appraisal proceedings. Through such proceeding, the Court will determine the “fair value” of the shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, to be paid upon the amount determined to be the fair value. Unless the Court in its discretion determines otherwise for good cause shown, interest from the Effective Time through the date of payment of the judgment will be compounded quarterly and will accrue at 5.0% over the Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the Effective Time and the date of payment of the judgment. If immediately before the Effective Time, the shares of the Voting Stock are listed on a national securities exchange, the Court will dismiss the proceedings as to all holders of shares who are entitled to appraisal rights unless the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal or the value of the consideration provided in the Merger for such total number of shares exceeds $1 million.

In determining fair value, the Court will take into account all relevant factors. In Weinberger v. UOP, Inc., the Supreme Court of Delaware discussed the factors that could be considered in determining fair value in an appraisal proceeding, stating that “proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court” should be considered, and that “fair price obviously requires consideration of all relevant factors involving the value of a company.” The Supreme Court of Delaware stated that, in making this determination of fair value, the court must consider market value, asset value, dividends, earnings prospects, the nature of the enterprise and any other facts that could be ascertained as of the date of the Merger that throw any light on future prospects of the merged corporation. Section 262 of the DGCL provides that fair value is to be “exclusive of any element of value arising from the

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accomplishment or expectation of the Merger.” In Cede & Co. v. Technicolor, Inc., the Supreme Court of Delaware stated that such exclusion is a “narrow exclusion that does not encompass known elements of value,” but which rather applies only to the speculative elements of value arising from such accomplishment or expectation. In Weinberger, the Supreme Court of Delaware also stated that “elements of future value, including the nature of the enterprise, which are known or susceptible of proof as of the date of the Merger and not the product of speculation, may be considered.” Stockholders considering seeking appraisal of their shares should note that the fair value of their shares determined in accordance with Section 262 of the DGCL could be more, or less than, or equal to, the consideration they would receive pursuant to the Merger Agreement if they did not seek appraisal of their shares.

Stockholders also should be aware that investment banking opinions as to the fairness, from a financial point of view, of the consideration payable in a sale transaction, such as the Merger, are not opinions as to, and do not otherwise address, fair value under Section 262 of the DGCL. Although the Company believes that the Per Share Merger Consideration is fair, no representation is made as to the outcome of the appraisal of fair value as determined by the Court. Moreover, the Company does not anticipate offering more than the Per Share Merger Consideration to any stockholder exercising appraisal rights and reserves the right to assert, in any appraisal proceeding, that for purposes of Section 262 of the DGCL, the “fair value” of a share of Voting Stock is less than the Per Share Merger Consideration.

The costs of the appraisal proceeding (which do not include attorneys’ fees or the fees and expenses of experts) may be determined by the Court and taxed against the parties as the Court deems equitable under the circumstances. Upon application of a dissenting stockholder, the Court may order all or a portion of the expenses incurred by any dissenting stockholder in connection with the appraisal proceeding, including reasonable attorneys’ fees and the fees and expenses of experts, to be charged pro rata against the value of all shares entitled to appraisal. In the absence of a determination or assessment, each party bears his, her or its own expenses.

Any stockholder who has duly demanded appraisal in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote for any purpose the shares subject to demand or to receive payment of dividends or other distributions on such shares, except for dividends or distributions payable to stockholders of record at a date prior to the Effective Time.

At any time within 60 days after the Effective Time, any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party will have the right to withdraw his, her or its demand for appraisal and to accept the terms offered in the Merger Agreement. After this period, a stockholder may withdraw his, her or its demand for appraisal and receive payment for his, her or its shares as provided in the Merger Agreement only with the Company’s written consent. No appraisal proceeding in the Court will be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however, that any stockholder who has not commenced an appraisal proceeding or joined that proceeding as a named party may withdraw his, her or its demand for appraisal and accept the Per Share Merger Consideration offered pursuant to the Merger Agreement within 60 days after the Effective Time. If the Company does not approve a request to withdraw a demand for appraisal when that approval is required, or, except with respect to any stockholder who withdraws such stockholder’s right to appraisal in accordance with the proviso in the immediately preceding sentence, if the Court does not approve the dismissal of an appraisal proceeding, the stockholder will be entitled to receive

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only the appraised value determined in any such appraisal proceeding, which value could be more or less than, or equal to, the consideration being offered pursuant to the Merger Agreement. If no petition for appraisal is filed with the court within 120 days after the Effective Time, stockholders’ rights to appraisal (if available) will cease. Inasmuch as the Company has no obligation to file such a petition, any stockholder who desires a petition to be filed is advised to file it on a timely basis.

Failure by any stockholder to comply fully with the procedures of Section 262 of the DGCL (as reproduced in Appendix C to this Proxy Statement) may result in termination of such stockholder’s appraisal rights. In view of the complexity of Section 262 of the DGCL, stockholders of the Company who may wish to dissent from the Merger and pursue appraisal rights should consult their legal advisors.

Accounting Treatment of the Merger

The Merger will be accounted for in accordance with U.S. generally accepted accounting principles (“GAAP”). The Company does not believe the Merger will have a material impact on the accounting for the Company.

Material U.S. Federal Income Tax Consequences

Except as specifically described below, the following is a discussion of the material U.S. federal income tax consequences of the Merger to “U.S. holders” and “non-U.S. holders” (in each case, as defined below) of Voting Stock whose shares of Voting Stock are converted into the right to receive cash in the Merger, that hold such shares as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment) and that will not own (actually or constructively) any equity interests in the surviving corporation or Parent after the Merger. The following discussion is based upon the Code, judicial decisions, administrative rulings and existing and proposed Treasury regulations, all as in effect as of the date hereof. All of the preceding authorities are subject to change, possibly with retroactive effect, so as to result in U.S. federal income tax consequences different from those discussed below. The Company has not requested, and will not request, a ruling from the U.S. Internal Revenue Service (the “IRS”) with respect to any of the U.S. federal income tax consequences described below, and as a result there can be no assurance that the IRS will not disagree with or challenge any of the conclusions the Company has reached and described herein.

This discussion is not a complete analysis or listing of all of the possible tax consequences of the Merger and does not address all tax considerations that might be relevant to particular holders in light of their personal circumstances or to persons that are subject to special tax rules. In addition, this discussion of the material U.S. federal income tax consequences does not address the tax treatment of special classes of holders, such as: banks, insurance companies or other financial institutions; mutual funds; real estate investment trusts or regulated investment companies; tax-exempt organizations or governmental organizations; an entity or arrangement treated for U.S. federal income tax purposes as a partnership, S-corporation or other pass-through entity (or an investor in such an entity or arrangement); controlled foreign corporations, passive foreign investment companies or corporations that accumulate earnings to avoid U.S. federal income tax (or stockholders of such corporations); retirement plans, pension funds or other tax-deferred accounts; persons holding shares of Voting Stock as part of a hedging, straddle, synthetic security, conversion or other integrated transaction; persons deemed to have sold their shares of Voting Stock under the constructive sale provisions of the Code; persons who acquired Voting Stock through the exercise or cancellation of employee stock options,

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through a tax qualified retirement plan or otherwise as compensation for their services; U.S. expatriates or entities covered by the U.S. anti-inversion rules; persons subject to the alternative minimum tax; dealers, traders or brokers in stocks and securities or currencies; U.S. holders (as defined below) whose functional currency is not the U.S. dollar; traders in securities that elect mark-to-market treatment; U.S. holders (as defined below) who hold shares of Voting Stock through a bank financial institution or other entity, or a branch or office thereof, that is located, organized or resident outside the United States; or persons that are required to report income no later than when such income is reported in an “applicable financial statement.” This discussion also does not address the receipt of cash in connection with the cancellation of RSUs or options to purchase shares of Voting Stock and does not address any other matters relating to equity compensation or benefit plans.

This discussion does not address any tax consequences other than U.S. federal income tax consequences, including estate and gift tax consequences and consequences under any state, local or non-U.S. laws.

For purposes of this section, the term “U.S. holder” means a beneficial owner of Voting Stock that is: (i) an individual citizen of the United States or a resident of the United States as determined for U.S. federal income tax purposes, (ii) a corporation (or other entity treated as a corporation for U.S. federal income tax purposes) created or organized under the laws of the United States or any state thereof or the District of Columbia, (iii) an estate the income of which is subject to U.S. federal income taxation regardless of its source or (iv) a trust (a) if a court within the United States is able to exercise primary supervision over the administration of such trust and one or more U.S. persons have authority to control all substantial decisions of the trust or (b) that has a valid election in effect under applicable Treasury regulations to be treated as a domestic trust.

The term “non-U.S. holder” means a beneficial owner of Voting Stock that is, for U.S. federal income tax purposes, an individual, corporation, trust or estate that is not a U.S. holder. The term “holder” means a U.S. holder or a non-U.S. holder.

If an entity treated as a partnership (or other pass-through entity) for U.S. federal income tax purposes is a beneficial owner of Voting Stock, the U.S. federal income tax treatment of a partner or other owner will generally depend upon the status of the partner (or other owner) and the activities of the partner (or other owner) and the entity. If you are a partner (or other owner) of a partnership or other pass-through entity for U.S. federal income tax purposes, you are urged to consult your tax advisor regarding the tax consequences of the Merger.

The following discussion is for general information only and is not intended to be, nor should it be construed to be, legal or tax advice to any holder or prospective holder of Voting Stock and no opinion or representation with respect to the U.S. federal income tax consequences to any such holder or prospective holder is made. Each holder of Voting Stock is urged to consult such holder’s tax advisors as to the particular consequences to such holder of the Merger under U.S. federal, state and local, and applicable non-U.S. tax laws.

U.S. Holders

General. The exchange of shares of Voting Stock for cash in the Merger will be a taxable transaction for U.S. federal income tax purposes. A U.S. holder of Voting Stock whose shares are converted into the right to receive cash in the Merger generally will recognize capital gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of

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cash received (determined prior to reduction for any applicable withholding taxes) and the U.S. holder’s adjusted tax basis in such shares. A U.S. holder’s adjusted tax basis generally will equal the price the U.S. holder paid for such shares. Such gain or loss will be capital gain or loss and will be treated as long-term capital gain or loss if the holding period for the shares of Voting Stock exceeds one year at the Effective Time. If the holding period for such shares is one year or less at the Effective Time, any capital gain or loss generally will be treated as short-term capital gain or loss. Long-term capital gains of non-corporate U.S. holders (including individuals) are generally eligible for reduced rates of taxation. The deductibility of capital losses is subject to certain limitations. If a U.S. holder acquired different blocks of Voting Stock at different times or different prices, such U.S. holder must determine its adjusted tax basis and holding period separately with respect to each block of Voting Stock.

Information Reporting and Backup Withholding. Information reporting and backup withholding may apply to payments made in connection with the Merger. Backup withholding will not apply, however, to a U.S. holder of Voting Stock that (1) furnishes a correct taxpayer identification number (“TIN”), certifies that such U.S. holder is not subject to backup withholding on the IRS Form W-9 (or appropriate successor form) included in the transmittal materials that such U.S. holder will receive, and otherwise complies with all applicable requirements of the backup withholding rules; or (2) provides proof that such U.S. holder is otherwise exempt from backup withholding. Backup withholding is not an additional tax, and any amounts withheld under the backup withholding rules may be refunded or credited against a U.S. holder’s U.S. federal income tax liability, if any; provided, that such U.S. holder furnishes the required information to the IRS in a timely manner. The IRS may impose a penalty upon any taxpayer that fails to provide the correct TIN.

Non-U.S. Holders

General. A non-U.S. holder’s receipt of cash in exchange for shares of Voting Stock pursuant to the Merger generally will not be subject to U.S. federal income tax unless:

A non-U.S. holder described in the first bullet point immediately above will generally be subject to tax on any gain derived from the Merger in the same manner as if it were a U.S. holder. In addition, such a non-U.S. holder that is a corporation may be subject to a branch profits tax equal to 30% of its effectively connected earnings and profits or such lower rate as may be specified by an applicable income tax treaty. A non-U.S. holder described in the second bullet point immediately above will be subject to U.S. federal income tax at a rate of 30% (or such lower rate as may be specified by an applicable income tax treaty) on any gain realized as a result of the Merger, which may be offset by certain U.S. source capital losses recognized in the same year.

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If the Company is or has been a USRPHC at any time within the shorter of the five-year period preceding the Effective Time or a non-U.S. holder’s holding period with respect to the applicable shares of Voting Stock, the exchange of Voting Stock for cash in the Merger by such non-U.S. holder will be subject to U.S. federal income tax at rates generally applicable to U.S. persons, except that the branch profits tax will not apply. The Company believes that it is not, and has not been, a USRPHC at any time during the five-year period preceding the offer, and therefore does not expect these rules to apply to non-U.S. holders of the Company’s Voting Stock. However, even if the Company is or has been a USRPHC during the 5-year testing period described above, so long as Voting Stock is regularly traded on an established securities market, the Company’s treatment as a USRPHC would cause only a non-U.S. holder who holds or held, directly or indirectly under certain ownership rules of the Code, more than 5% of Voting Stock (at any time during the shorter of the five-year period preceding the Merger or the period that the non-U.S. holder held Voting Stock), and is not eligible for a treaty exemption, to incur such tax liability (the “publicly traded exception”). Because the Company’s Common Stock is regularly traded on the Nasdaq Global Market, an established securities market for this purpose, the Company believes that holders of less than 5% of the Company’s Common Stock will be entitled to the publicly traded exception.

The publicly traded exception may not apply to holders of Voting Stock other than Common Stock, such as the Series B Preferred Stock. Such holders are urged to consult their tax advisors regarding the U.S. tax consequences of receiving the Per Share Merger Consideration in light of their particular circumstances.

Information Reporting and Backup Withholding. Information reporting and backup withholding will generally apply to payments made pursuant to the Merger to a non-U.S. holder effected by or through the U.S. office of any broker, U.S. or foreign, unless the holder certifies its status as a non-U.S. holder properly and correctly on an appropriate version of IRS Form W-8 and satisfies certain other requirements, or otherwise establishes an exemption. Copies of applicable information returns reporting such payments and any withholding may also be made available to the tax authorities in the non-U.S. holder’s country in which such holder resides under the provisions of an applicable treaty or agreement. Payments of disposition proceeds to a non-U.S. holder where the transaction is effected through a non- U.S. office of a non-U.S. broker generally will not be subject to backup withholding or information reporting. However, if such broker is for U.S. federal income tax purposes: a U.S. person; a controlled foreign corporation; a non-U.S. person 50% or more of whose gross income is effectively connected with a U.S. trade or business for a specified three-year period; or a non-U.S. partnership with certain connections to the United States, then information reporting will be required unless the broker has in its records documentary evidence that the beneficial owner is not a U.S. person and certain other conditions are met or the beneficial owner otherwise establishes an exemption. Backup withholding may apply to any payment that such broker is required to report if the broker has actual knowledge or reason to know that the beneficial owner is a U.S. person. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules from a payment to a non-U.S. holder can be refunded or credited against the non-U.S. holder’s U.S. federal income tax liability (if any) provided, that an appropriate claim is timely filed with the IRS.

Regulatory Approvals

In connection with the Merger, the Company is required to make certain filings with, and comply with certain laws of, various federal and state governmental agencies, including filing the certificate of Merger with the Secretary of State of the State of Delaware in accordance with the DGCL at the closing of the Merger and complying U.S. federal securities laws.

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The ownership, management and operation of RWC and Monticello Raceway are subject to extensive state regulatory oversight. This oversight includes the responsibilities, financial stability and character of the owners and managers of our gaming operations as well as persons financially interested or involved in gaming operations, and require such parties to obtain certain licenses, permits and approvals. The Company has submitted the Merger Agreement to the New York State Gaming Commission (“NYSGC”).

In connection with the Merger, the Parent Filing Group Persons will also be required to apply for NYSGC approval with respect to changes in the ownership and management of RWC, Montreign and its related corporate entities; any financing that could constitute a “material debt transaction” under the gaming laws; financial sources involved in the financing of RWC in connection with the Merger or otherwise. Additionally, any changes in the sources and total amount of capitalization to maintain and operate RWC post-Merger must be filed with the NYSGC at least 10 business days prior to such changes. Appropriate applications related to the suitability of certain key persons and entities related to any enterprise that owns, directly or indirectly, RWC must be filed with the NYSGC, which will cause the subsequent investigation of such applications.

Delisting and Deregistration of Voting Stock

If the Merger is completed, the shares of the Company’s Voting Stock will no longer be publicly traded and will be delisted from the Nasdaq Global Market. Additionally, the Voting Stock will be deregistered under the Exchange Act, and the Company will no longer be required to file periodic reports with the SEC with respect to its Voting Stock.

Effective Time of Merger

The Merger will become effective when the Certificate of Merger has been duly filed with the Secretary of State of the State of Delaware or at such other subsequent date or time as Parent and the Company may agree and specify in the Certificate of Merger in accordance with the DGCL (the “Effective Time”).

Payment of the Per Share Merger Consideration and Surrender of Stock Certificates

At the Effective Time, each share of Common Stock and Series B Preferred Stock issued and outstanding immediately prior to the Effective Time will be canceled and converted into the right to receive the Per Share Merger Consideration, respectively, without interest and less any applicable withholding taxes. This does not apply to the Rollover Shares, Canceled Shares or Dissenting Shares. Prior to the Effective Time, Parent will designate a paying agent, satisfactory to the Company in its reasonable discretion, to make the cash payments contemplated by the Merger Agreement. At or prior to the Effective Time of the Merger, Parent will deposit or cause to be deposited with the paying agent an aggregate amount of cash sufficient to pay the aggregate Per Share Merger Consideration to the holders of shares of Common Stock and Series B Preferred Stock (other than Rollover Shares, Canceled Shares and Dissenting Shares). The paying agent will deliver the Per Share Merger Consideration, as the case may be, according to the procedure summarized below.

Promptly after the Effective Time, but in no event later than five business days thereafter, Parent will cause the paying agent to send each record holder of shares of Common Stock and Series B Preferred Stock that were converted into the Per Share Merger Consideration, respectively, a letter of transmittal and instructions for use in effecting the delivery of shares of such stock to the paying agent

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and for effecting the surrender of any certificates (or, in lieu thereof, an affidavit of loss and posting of a customary bond as indemnity against any claim that may be made with respect to such certificate) in exchange for the Per Share Merger Consideration. Each holder of shares of Common Stock and Series B Preferred Stock that have been converted into the right to receive the Per Share Merger Consideration will be entitled to receive such Per Share Merger Consideration upon (i) surrender to the paying agent a duly completed letter of transmittal and any other documents reasonably required by the paying agent and (ii) surrender of a certificate or certificates representing such shares (or, in lieu thereof, an affidavit of loss and posting of a customary bond as indemnity against any claim that may be made with respect to such certificate) or, in the case of book-entry shares, adherence to the procedures set forth in the letter of transmittal. After the Effective Time, until so surrendered, each certificate and book entry share representing shares of Common Stock and Series B Preferred Stock will represent only the right to receive the Per Share Merger Consideration.

The Company will pay to each holder of RSUs and Company Stock Awards the cash amounts described above under “Treatment of Outstanding RSUs and Company Stock Awards” solely through the Company’s payroll system or its applicable subsidiaries, less applicable withholding taxes and other deductions (if any), as soon as reasonably practicable following the Effective Time but in no event later than the second payroll date following the closing of the Merger.

After the completion of the Merger, you will cease to have any rights as a Company stockholder, other than the right to receive the Per Share Merger Consideration.

Upon demand, the paying agent will return to Parent all funds in its possession one year after the Merger occurs, and the paying agent’s duties will terminate. After that time, if you have not received payment of the Per Share Merger Consideration, you may look only to Parent and/or the Company for payment of the Per Share Merger Consideration without interest, subject to applicable abandoned property, escheat and similar laws.

Fees and Expenses

Except as otherwise described in “The Merger Agreement—Effect of Termination; Fees and Expenses” beginning on page 137, all fees, expenses and costs incurred in connection with the Merger Agreement, including legal, accounting, investment banking and other fees, expenses and costs, will be paid by the party incurring such fees, expenses and costs, whether or not the Merger is consummated, except that expenses incurred in connection with the filing, printing and mailing of this Proxy Statement and the Schedule 13E-3 will be paid by Parent.

Estimated fees and expenses to be incurred by the Company and the Parent Filing Group Persons in connection with the Merger are as follows:

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THE PARTIES INVOLVED IN THE MERGER

The Parties Involved in the Merger

Empire Resorts, Inc.

Empire Resorts, Inc. was organized as a Delaware corporation on March 19, 1993 and, since that time, has served as a holding company for various subsidiaries engaged in the hospitality and gaming industries.

Our indirect, wholly-owned subsidiary, Montreign Operating Company, LLC, doing business as RWC, owns and operates RWC, a casino resort, which is located at the approximately 1,700 acre site of a four-season destination resort (“Destination Resort”) in Sullivan County, New York, approximately 90 miles from New York City. The Destination Resort in which RWC is located also includes a 101-room lifestyle hotel (“The Alder”) adjacent to RWC. The Alder is owned and operated by Empire Resorts Real Estate II, LLC, a wholly-owned subsidiary of Montreign. Empire Resorts I, LLC, which is a wholly-owned subsidiary of Montreign, is developing a golf course (the “Golf Course Project” and, together with RWC and The Alder, the “Development Projects”) at the Destination Resort.

On March 25, 2019, the NYSGC approved a request by Montreign to adjust certain conditions of the gaming facility license with respect to RWC which would reduce the minimum number of slot machines from no less than 2,150 to no less than 1,600.

Through our wholly-owned subsidiary, Monticello Raceway Management, Inc., we own and operate Monticello Raceway, which began racing operations in 1958 in Monticello, New York, which is proximate to RWC. Monticello Raceway featured a video gaming machine (“VGM”) and harness horseracing facility. VGM operations and food and beverage service at Monticello Raceway ceased on April 23, 2019. We generate racing revenues through pari-mutuel wagering on the running of live harness horse races, the import simulcasting of harness and thoroughbred horse races from racetracks across the country and internationally, and the export simulcasting of our races to offsite pari-mutuel wagering facilities.

On June 20, 2019, the New York State legislature approved the creation of a VGM facility in Orange County, New York. In particular, the legislation allows the Company to operate the new VGM facility in Orange County, subject to certain statutory requirements relating to, among other things, employment levels at the Company’s facilities, continued operation of racing at Monticello Raceway, location of the VGM facility within Orange County and entry into a mitigation agreement between the Company and the VGM facility operating at the Yonkers racetrack. The Company will work with local, state and federal agencies and officials to obtain the necessary permits and approvals to designate the site for, and begin construction on, the new VGM facility.

The principal business address and phone number of the Company are:

Empire Resorts, Inc.

c/o Monticello Casino and Raceway

204 State Route 17B

P.O. Box 5013

Monticello, New York 12701

Telephone: (845) 807-0001

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Tan Sri Lim Kok Thay

Tan Sri Lim indirectly controls Kien Huat, which is a member of Parent and the Company’s largest stockholder. Tan Sri Lim, for purposes of Rule 13e-3, may be deemed to indirectly control Genting Berhad, which controls GenM, which controls its indirect, wholly-owned subsidiary Genting (USA) Limited, which is a member of Parent.

Kien Huat is indirectly controlled by Tan Sri Lim through two irrevocable private trusts: Golden Hope Unit Trust, a private unit trust held directly and indirectly by a discretionary trust established solely for the benefit of Tan Sri Lim and certain other members of his family (the “KH Discretionary Trust”). Tan Sri Lim may cause the removal of the trustee of each trust at any time in his sole discretion.

For purposes of Rule 13e-3, Genting Berhad may be deemed to be indirectly controlled by Tan Sri Lim through a discretionary trust of which Parkview Management Sdn Bhd is the trustee, which owns 100% of voting shares of Kien Huat International Limited, which, in turn, owns 100% of the voting shares in Kien Huat Realty Sdn Berhad (“KHR”), which, in turn owns 100% of the voting shares of Inverway Sdn Bhd (“Inverway”). KHR and Inverway own ordinary shares in Genting Berhad.

Tan Sri Lim is a citizen of Malaysia.

Tan Sri Lim is the Chairman (since January 2004), Chief Executive (since November 2002) and a Director (since October 1988) of Gen M.

Tan Sri Lim is the Chairman (since January 2004), Chief Executive (since November 2002) and a director (since August 1976) of Genting Berhad. He was formerly President from November 2002 to June 2007 ).

Tan Sri Lim is also a Director (since May 2010) and Chief Executive Officer (since June 2011) of Gen USA.

Tan Sri Lim is the Executive Chairman (since September 2005) and a Director (since October 1986) of Genting Singapore Limited. The principal activities of Genting Singapore and its subsidiaries are in the development, management and operation of integrated resort destinations including gaming, hospitality, MICE, leisure and entertainment facilities. Genting Singapore Limited’s principal address is 10 Sentosa Gateway, Resorts World Sentosa, Singapore 098270.

Tan Sri Lim is the Executive Chairman (since July 2011) and a Director (since January 2007) of Genting UK Plc. Genting UK Plc is one of the United Kingdom’s largest leisure and entertainment businesses, operating 43 casinos, 42 of which are spread across the United Kingdom from Edinburgh to Plymouth and the 43^rd is Crockfords Cairo. Genting UK Plc’s principal address is Genting Club Star City, Watson Road, Birmingham B7 5SA.

Tan Sri Lim was the Chief Executive (since February 2008) and Director (since September 1977) of Genting Plantations Berhad until he relinquished his position of Chief Executive and assumed the position of Deputy Chairman and Executive Director in January 2019. Genting Plantations Berhad has a landbank of about 64,600 hectares in Malaysia and some 182,800 hectares in Indonesia, owns seven oil mills in Malaysia and four in Indonesia and has ventured into the manufacturing of

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downstream palm-based products. Genting Plantations Berhad has also diversified into property development and invested in biotechnology in a major effort to apply genomics--based solutions to increase crop productivity and sustainability. Genting Plantations Berhad’s principal address is 10th Floor, Wisma Genting, Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia.

Tan Sri Lim is a Founding Member and a Permanent Trustee of The Community Chest, Malaysia. The Community Chest, Malaysia is an independent, not-for-profit, non-governmental charitable organization established in July 2011 to promote and support education for the sole benefit of the Malaysian community.

Tan Sri Lim sits on the boards of other Malaysian and foreign companies as well as the Boards of Trustees of several charitable organizations in Malaysia.

Tan Sri Lim is the Chairman (since December 1997), Chief Executive Officer (since November 2000) and a Director (since September 1994) of Genting Hong Kong Limited, a company listed on the Main Board of The Stock Exchange of Hong Kong Limited. Genting Hong Kong Limited is principally engaged in the business of cruise and cruise-related operations, shipyard operations and leisure, entertainment and hospitality activities. Genting Hong Kong Limited’s principal address is Suite 1501, Ocean Centre, 5 Canton Road, Tsimshatsui, Kowloon, Hong Kong.

Tan Sri Lim is also a Director (since September 2009) of Travellers International Hotel Group, Inc., a company listed on the Main Board of The Philippine Stock Exchange, Inc. Travellers International Hotel Group, Inc. is the developer and operator of Resorts World Manila, the first and largest integrated tourism resort in the Philippines. Travellers International Hotel Group, Inc.’s principal address is 10/F Newport Entertainment & Commercial Centre, Newport Boulevard, Newport, Cybertourism Economic Zone, Pasay City, Philippines 1309. Travellers International Hotel Group, Inc on August 20, 2019, filed a petition for voluntary delisting of their common shares from the Main Board of the Philippine Stock Exchange, Inc.

The principal business address and phone number of Tan Sri Lim are:

25^th Floor, Wisma Genting

Jalan Sultan Ismail

50250 Kuala Lumpur, Malaysia

Telephone: +(60) 3 2178 2288

Kien Huat Realty III Limited

Kien Huat Realty III Limited, which we refer to as “Kien Huat”, is an Isle of Man company limited by shares. The principal business of Kien Huat is to act as an investment holding company for investments held ultimately for a trust for the benefit of Tan Sri Lim and certain other members of his family.

The registered office address and phone number of Kien Huat are:

First Names House

Victoria Road

Douglas, Isle of Man IM2 4DF

Telephone: 603-21782299

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Genting Berhad

Genting Berhad was incorporated on July 30, 1968 and listed on the Main Market of Bursa Malaysia Securities Berhad in 1971. Genting Berhad is principally an investment holding and management company. Genting Berhad owns interests in several listed companies: GenM, Genting Plantations Berhad and Genting Singapore Limited, as well as wholly-owned unlisted subsidiaries Genting Energy Limited and Resorts World Las Vegas LLC. Genting Berhad and the companies in which it owns interests are involved in leisure and hospitality, oil palm plantations, power generation, oil and gas, property development, life sciences and biotechnology activities, with operations spanning across the globe, including in Malaysia, Singapore, Indonesia, India, China, the United States of America, Bahamas, the United Kingdom and Egypt.

The principal business address and phone number of Genting Berhad are:

24^th Floor, Wisma Genting

Jalan Sultan Ismail

50250 Kuala Lumpur, Malaysia

Telephone: +(60) 3 2178 2288

Genting Malaysia Berhad

Genting Malaysia Berhad, which we refer to as “GenM”, was incorporated as Resorts World Sdn Bhd, a Malaysian private company limited by shares, on May 7, 1980. In 1989, Resorts World Sdn Bhd converted to a public company and changed its name to Resorts World Bhd. In 2009, Resorts World Bhd changed its name to GenM.

GenM is one of the leading destination resort operators in the world. GenM owns and operates major resort properties including Resorts World Genting in Malaysia, RWNY in the United States, Resorts World Bimini in the Bahamas, Resorts World Birmingham and over 40 casinos in the United Kingdom and Crockfords Cairo in Egypt. GenM also owns and operates two seaside resorts in Malaysia, namely Resorts World Kijal in Terengganu and Resorts World Langkawi on Langkawi Island.

The principal business address and phone number of GenM are:

Genting Highlands Resort

69000 Genting Highlands

Pahang Darul Makmur, Malaysia

Telephone: +(60) 3 6101 1118

Genting (USA) Limited

Genting (USA) Limited, which we refer to as “Gen USA”, is an Isle of Man company limited by shares. The principal business of Gen USA is to act as an investment holding company for investments indirectly held by GenM, including the transactions contemplated by the Term Sheet. Upon completion of the Term Sheet Acquisition, Gen USA will hold 13,200,000 shares of Common Stock, which, prior to the completion of the Merger, will be contributed into Parent.

Gen USA is indirectly wholly-owned by GenM. Tan Sri Lim owns, directly and indirectly, 49.83% of the voting shares of GenM. Tan Sri Lim Kok Thay also owns, indirectly, 100% of Kien

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Huat, which currently owns approximately 86% of the voting power of the Company. As a result, Gen USA may be deemed to be an affiliate of the Company by virtue of Tan Sri Lim Kok Thay’s common indirect ownership of both Gen USA and the Company.

The registered office address and phone number of Gen USA are:

First Names House,

Victoria Road, Douglas

Isle of Man, IM2 4DF

Telephone: +44 1624 630600

Hercules Topco LLC

Hercules Topco LLC, which we refer to as “Parent”, is a newly formed Delaware limited liability company, in which Gen USA currently holds a 49% membership interest and Kien Huat currently holds a 51% membership interest. Parent has not carried on any activities to date, except for activities incidental to its formation, in connection with the financing of the Merger and as otherwise contemplated by the Merger Agreement. Upon completion of the Merger, Parent will hold all Common Stock.

The correspondence address and phone number of Parent are:

Hercules Topco LLC

c/o Genting Malaysia Berhad

24^th Floor, Wisma Genting

Jalan Sultan Ismail

50250 Kuala Lumpur, Malaysia

Telephone: +(60) 3 2178 2288

Hercules Merger Subsidiary Inc.

Hercules Merger Subsidiary Inc., which we refer to as “Merger Sub”, is a newly formed Delaware corporation, wholly-owned by Parent. Merger Subsidiary has not carried on any activities to date, except for activities incidental to its formation and as otherwise contemplated by the Merger Agreement. Upon completion of the Merger, Merger Sub will merge with and into the Company, Merger Sub will cease to exist and the Company will continue as the surviving corporation of which 100% of the Common Stock will be owned by Parent and 100% of the Series F Preferred Stock will be owned by Kien Huat.

The correspondence address and phone number of Merger Sub are:

Hercules Merger Subsidiary Inc.

c/o Genting Malaysia Berhad

24^th Floor, Wisma Genting

Jalan Sultan Ismail

50250 Kuala Lumpur, Malaysia

Telephone: +(60) 3 2178 2288

The name, business address, current principal occupation or employment, five-year employment history and citizenship of each directors and executive officer of Kien Huat, Genting

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Berhad, GenM, Gen USA, Parent and Merger Sub are set forth in “The Parties Involved in the Merger —Business and Background of Natural Persons Related to Parent Filing Group Persons” on page 94.

We refer to Tan Sri Lim, Kien Huat, Genting Berhad, GenM, Gen USA, Parent and Merger Sub, collectively, as the “Parent Filing Group Persons”.

None of the Parent Filing Group Persons or, to the Parent Filing Group Persons’ knowledge after reasonable inquiry, the persons listed in “The Parties Involved in the Merger—Business and Background of Natural Persons Related to Parent Filing Group Persons” on page 94 (the “Parent Filing Group Natural Persons”) has been (a) convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding during the past five years that resulted in a judgment, decree or final order enjoining that person from future violations of, or prohibiting future activities subject to, federal or state securities laws or a finding of any violation of federal or state securities laws.

Business and Background of Natural Persons Related to the Company

A biography for each of our current directors and executive officers is set forth below. None of the Company nor any of the Company’s directors or executive officers has, during the past five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors). Except for Mr. Gerard Lim, each of the Company’s directors and executive officers listed below is a United States citizen. None of the Company nor any of the Company’s directors or executive officers listed below has been (a) convicted in a criminal proceeding during the past five years (excluding traffic violations or similar misdemeanors) or (b) a party to any judicial or administrative proceeding during the past five years that resulted in a judgment, decree or final order enjoining that person from future violations of, or prohibiting future activities subject to, federal or state securities laws or a finding of any violation of federal or state securities laws.

Directors

Emanuel R. Pearlman has served as a director since May 2010 and as the Executive Chairman of the Board since June 2016. Mr. Pearlman served as Non-Executive Chairman of the Board from September 2010 through May 2016. He is the Chairman and Chief Executive Officer of Liberation Investment Group, LLC, a New York-based investment management and financial consulting firm, which he founded in January 2003. Mr. Pearlman has been a member of the Board of Directors of CEVA Logistics AG (SIX: CEVA) since May 2018 and serves on its Audit Committee and, from May 2018 through April 2019, he served on its Nomination and Governance Committee. From June 2013 through May 2018, he served on the Board of Directors of CEVA Holdings, LLC. Mr. Pearlman has been a director of Network-1 Technologies, Inc. (NYSE American:NTIP) since 2012, where he serves as Chairman of the Audit Committee and a member of the Corporate Governance Committee. From November 2018 through February 2019, Mr. Pearlman served on the Board of Managers and as President of each of SRC O.P. LLC, SRC Facilities LLC and SRC Real Estate (TX) LLC, which are special purpose bankruptcy remote limited liability companies with ownership of approximately 100 real estate properties of Sears, Roebuck and Company. From May 2017 through September 2017, Mr. Pearlman served on the Board of Directors of ClubCorp Holdings, Inc. (NYSE:MYCC) where he served on the Strategic Review Committee, and from 2009 to 2014, he served as the sole independent director of Fontainebleau Miami JV LLC, which currently owns and operates the Fontainebleau Hotel in Miami Beach. He also served as a director of Multimedia Games,

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Inc. (Nasdaq-GS:MGAM) from October 2006 to March 2010. Mr. Pearlman holds an MBA from Harvard Business School and a B.A. in Economics from Duke University.

Keith L. Horn has served as a director of the Company since April 2016. He is the founder and Managing Member of Loring Capital Advisors, an investment advisory and consulting firm since July 2016. Mr. Horn served as Chief Operating Officer and a member of the Management Committee of Elliott Management Corporation (“Elliott”), a global, multi-strategy private investment fund with more than $30 billion of assets under management, from 2003 to 2015. Mr. Horn’s role at Elliott encompassed, among other things, direct responsibility for operations, accounting, finance, IT, applications development, human resources, compliance and all aspects of infrastructure and security. Prior to joining Elliott, beginning in 1987, Mr. Horn spent 16 years at Merrill Lynch serving in various capacities, including global head of Leveraged Finance, head of Latin America Debt, Chief of Staff to the Chairman and President and a managing director in High Yield Finance and Investment Banking. Mr. Horn began his career in private practice as a corporate and securities attorney. He is a member of the Binghamton University Foundation Board of Directors and the Vice Chairman of the Foundation’s Investment Committee. In addition, Mr. Horn is a member of the Board of Directors of PeacePlayers International, a non-profit organization that uses sports to educate and unite children in areas of conflict around the world. From 2011 to 2015, Mr. Horn served as a member of the Board of Directors of the Managed Funds Association, and was also a member of such Board’s Executive Committee and served as Chairman of its Nominating Committee and Chairman of its International Affairs Committee. In 2018, he joined the Board of Directors of ShopOne Centers REIT, Inc., a leading owner, operator and manager of high-quality shopping centers, and the Board of Managers of The Laundry Chute, LLC, a technology-driven laundry service for students on college campuses. Since July 2019, Mr. Horn has served on the strategic advisory board of Investcorp Strategic Capital Partners, a fund established to assemble a diverse portfolio of general partner stakes in alternative asset managers. Also, since July 2019, Mr. Horn has served as director of 5071 Inc., a holding company for various businesses engaged in the consumer and commercial food and beverage industries. Mr. Horn received his J.D. cum laude from Georgetown University Law Center and holds B.A. degrees in Economics and Political Science from Binghamton University, where he graduated Phi Beta Kappa with highest honors.

Edmund Marinucci has served as a director since March 2014. Mr. Marinucci has been a partner at PCH Hotels, LLC, a boutique hotel and resort operator based in San Francisco that is an operating division of Pacific Union Company since 1983. From October 1983 to December 2008, Mr. Marinucci served as President of PCH Hotels, LLC. During his tenure as President, PCH Hotels owned and managed properties in the U.S. and the Caribbean. Such properties included Meadowood Resort (Napa, California), Windermere Island Club (Bahamas), Divi Resorts (Aruba), Downtown Athletic Club (New York City), Frangipani Resort (Anguilla) and Marriott Resort (Grand Cayman). During his presidency of PCH Hotels, he oversaw the ground-up development of The Hotel Griffon and the renovation and repositioning of the Drisco Hotel (each in San Francisco). Prior to PCH Hotels, Mr. Marinucci served as Director of Development for HCP Hotels/Aston Resorts in Hawaii. In such position, Mr. Marinucci oversaw all development aspects of the hotel group and grew inventory from 15 to 20 hotel resorts. From 1978 to 1981, Mr. Marinucci served as Director of Resort Operations for Kapalua Resort Maui in Hawaii. While at Kapalua Resort Maui, Mr. Marinucci was responsible for the daily operations of the resort, including the Kapalua Bay Hotel, 150 rental villas, two golf courses, The Bay and The Village. He currently serves on the Board of Directors of The Dominick, a five-star boutique hotel located in Soho in New York City. Mr. Marinucci previously served on the Board of

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Directors of Jameson Inns/Colony Capital, a private hotel and resort company, and from November 2009 to January 2018, he served on the Board of Directors of Miami JV Member LLC, an investor in a private hotel and resort company known as the Fountainbleu. Mr. Marinucci is a member of The Cornell Hotel Society. Mr. Marinucci received a BS in Hotel Administration from the Cornell University School of Hotel Administration.

Nancy A. Palumbo has served as director since June 2009. Ms. Palumbo also acts as an independent consultant in the areas of strategic marketing, corporate communications and business development. Ms. Palumbo has also served as a principal in CRAMN LLC, a global business development company. From March 2009 to December 2010, she served as President of the Green Planet Group, a company that advised on solar and renewable energy solutions. Prior to joining Green Planet Group, from May 2007 to March 2009, Ms. Palumbo was the General Manager for Walker Digital Lottery and from October 2006 to May 2007, she served as the Senior Vice President for Strategic Marketing and Corporate Communications for the New York Daily News. From January 2004 to October 2006, Ms. Palumbo served as the Director of the New York Lottery, where she managed a $6 billion a year business and oversaw the opening of six video gaming facilities. From February 1995 to January 2004, Ms. Palumbo served as the Executive Deputy Commissioner for the Office of Parks Recreation and Historic Preservation for the State of New York, where she was instrumental in developing public-private partnerships to generate additional revenue to expand park services. Ms. Palumbo is a graduate of St. Bonaventure University.

Gerard Ewe Keng Lim has served as a director since September 2017. Mr. Gerard Lim serves as a director of Kien Huat, the Company’s largest stockholder. Since February 2009, Mr. Gerard Lim has served as General Manager of Kien Huat Realty Sdn Berhad (“KHRSB”), which is a holding company that is a substantial shareholder of Genting Berhad. He was appointed as a director of KHRSB in September 2017. Genting Berhad is the holding company for the Genting Group, a multi-national conglomerate that includes, among other things, hospitality and casino holdings worldwide. Mr. Gerard Lim also serves as director of Golden Hope Limited (“Golden Hope”), which acts as trustee for a private unit trust primarily involved in investment holding. Golden Hope as trustee of the unit trust is an affiliate of Kien Huat and a substantial shareholder of Genting Hong Kong Limited (formerly known as Star Cruises Limited) which is publicly traded in Hong Kong. In his position as General Manager of KHRSB and director of KHRSB and Golden Hope, and in his positions as director of various subsidiaries and affiliates of KHRSB and Golden Hope, Mr. Gerard Lim oversees the investments of KHRSB and Golden Hope in various concerns, including a ski resort, casino resorts, genomics, real estate and leisure lifestyle companies. Mr. Gerard Lim also serves as a director of Resorts World Inc Pte Ltd., an affiliate of the Genting Group and the parent entity of RW Services Pte. Ltd., from which the Company licenses the “Resorts World” and “Genting” brand names. Mr. Gerard Lim also serves as a director of Grand Banks Yachts Limited, a company publicly traded in Singapore with significant subsidiaries in the business of manufacturing and selling luxury yachts worldwide. Genting Hong Kong Limited indirectly holds a substantial ownership interest in Grand Banks Yachts Limited. Prior to joining KHRSB and Golden Hope, from 1997 to 2007, Mr. Gerard Lim held various positions with Genting Hong Kong Limited. Most recently, Mr. Gerard Lim served as its Chief Financial Officer from 2004 to 2007. Mr. Gerard Lim holds a Bachelor of Science in Chemical Engineering from the University of Birmingham and a Master’s degree in Business Administration from the University of Aston.

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Executive Officers

Ryan Eller has served as our President and Chief Executive Officer since June 2017. Mr. Eller served as our President and Chief Operating Officer from March 2017 through June 2017 and served as a director from September 2017 through July 2019. From June 2013 to March 2017, Mr. Eller served in various executive officer positions with Genting New York LLC (“Genting NY”), which operates RWNY. From June 2013 to October 2014, Mr. Eller served as Chief Financial Officer and from October 2014 to March 2017, Mr. Eller served as President of Genting NY. During his tenure at Genting NY, Mr. Eller oversaw RWNY’s planning with respect to a $315 million expansion to add 1,000 video lottery terminals, a new hotel and convention complex. Concurrently with his position at Genting NY, from October 2014 to March 2017, Mr. Eller served as Senior Vice President of Development of Genting Americas Inc. (“Genting Americas”), an indirect, wholly-owned subsidiary of GenM, which is also the parent entity of Genting NY. In his role with Genting Americas, Mr. Eller oversaw the design and development of the Resorts World Las Vegas integrated resort, a $4 billion project on the Las Vegas Strip. From September 2012 to June 2013, Mr. Eller served as Executive Vice President and Chief Financial Officer of Choctaw Resort Development Enterprise, a wholly-owned enterprise of the Mississippi Band of Choctaw Indians, which operates three casinos including the Pearl River Resort, a fully integrated casino and resort facility that includes two casinos, a golf course and waterpark in Choctaw, Mississippi. In this role, Mr. Eller was responsible for the overall financial operations of the Choctaw’s gaming and resort enterprises as well as a restructuring of the property’s operations following an extended period of distress. From September 2007 to September 2012, Mr. Eller served as Treasurer and Executive Director of Finance of PCI Gaming Authority, a business enterprise created by the Poarch Band of Creek Indians, where he helped design, open and operate three casino and hotels representing capital investments over $600 million. At PCI Gaming Authority, Mr. Eller also directed operations and oversaw efforts to acquire and integrate pari-mutuel wagering facilities in Florida and Alabama. From 2006 to 2007, Mr. Eller served as Regional Manager, Planning and Analysis at Caesar’s Entertainment, Inc., where he led a team responsible for strategic, operational and marketing analysis. Mr. Eller served in the United States Marine Corps from 1997 to 2004 where he attained the rank of Major, holds an MBA with honors from Harvard Business School and a bachelor’s degree with distinction from the U.S. Naval Academy.

Nanette L. Horner joined the Company in July 2010 and currently serves as Executive Vice President, Chief Counsel and Chief Compliance Officer. Ms. Horner has been an attorney in the gaming industry since 1996. Prior to her employment with the Company, Ms. Horner was a regulator with the Pennsylvania Gaming Control Board (“PGCB”) from August 2005 to June 2010 where she served as Deputy Chief Counsel assigned to the Bureau of Licensing. In September 2006, Ms. Horner was named the PGCB’s first director of the Office of Compulsive and Problem Gambling. She is a member of the Board of Directors for the National Council on Problem Gambling, and is a member of American Mensa and the International Masters of Gaming Law.

Jamie M. Sanko has served as Chief Accounting Officer since December 2017. Prior to joining the Company, from December 2014 to December 2017, Mr. Sanko served as the Chief Financial Officer of Genting Americas Inc., where he was responsible for financial oversight of operations in New York, Miami, Bimini and Las Vegas. From January 2011 to October 2014, Mr. Sanko served as the Director of Finance and as of October 2014, the Chief Financial Officer for RWNY. From July 2008 to November 2011, Mr. Sanko was the Reconciliation Manager and Trade Services Manager for DuPont Capital Management in Wilmington, Delaware. From 2003 to 2007, Mr. Sanko was an audit manager and audit senior for Ernst & Young LLP, where he served as the

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engagement executive for various public companies as well as non-public partnerships. Mr. Sanko earned his Bachelor’s degree from LaSalle University and his MBA from Drexel University.

Business and Background of Natural Persons Related to the Parent Filing Group Persons

The name, citizenship, current principal occupation or employment and material occupations, positions, offices or employment for the past five years of each director and executive officer of the Parent Filing Group Persons are set forth below.

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Genting Berhad

Unless otherwise indicated, each occupation set forth opposite an individual’s name refers to employment with Genting Berhad. The correspondence address of each such person is 24^th Floor, Wisma Genting, Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia, unless otherwise indicated. Directors are identified by an asterisk. Unless otherwise indicated, all directors and officers listed below are citizens of Malaysia.

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