UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549 

Steven L. Wilner, Esq.

Cleary Gottlieb Steen & Hamilton LLP

One Liberty Plaza
New York, NY 10006

212-225-2000

I.R.S. Identification Nos. of above persons (entities only).

Kien Huat Realty III Limited

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

(b)

X

Number of

Shares

Beneficially

Owned by

Each Reporting

Person With

I.R.S. Identification Nos. of above persons (entities only).

Lim Kok Thay

Check the Appropriate Box if a Member of a Group (See Instructions)

(a)

(b)

X

Number of

Shares

Beneficially

Owned by

Each Reporting

Person With

/s/ Yap Chong Chew

Yap Chong Chew

Authorized Signatory*

Lim Kok Thay

Exhibit 14

Subscription Agreement, dated as of November 13, 2018, by and between Kien Huat Realty III Limited and Empire Resorts, Inc.

Exhibit 15

Amended and Restated Certificate of Designations for the Series F Convertible Preferred Stock, dated as of November 9, 2018.

Exhibit 16

Subscription Agreement, dated as of February 20, 2019, by and between Kien Huat Realty III Limited and Empire Resorts, Inc. (incorporated by reference to Exhibit 10.1 of the Current Report on Form 8-K filed by the Issuer on February 20, 2019)

Letter of Authorization, given by Lim Kok Thay

Kien Huat Realty III Limited

c/o 21^st Floor Wisma Genting

Jalan Sultan Ismail

Kuala Lumpur

Malaysia

Genting Malaysia Berhad

24^th Floor, Wisma Genting

Jalan Sultan Ismail

Kuala Lumpur

Malaysia

Upon the terms set forth herein and subject to the Purchase Conditions: 

On the fifth (5^th) business day following the satisfaction or waiver of the Purchase Conditions (the “Purchase Date”), Kien Huat shall sell, assign, transfer and convey to Gen USA (or such other entity as Genting and Kien Huat shall mutually agree) (“Purchaser”) and Purchaser shall purchase and accept 13,200,000 shares (the “Purchased Stock”) of common stock of Empire Resorts, Inc. (“Empire”), par value $0.01 (the “Common Stock”), free and clear of any and all liens and, in consideration of the Purchased Stock, Purchaser shall pay to Kien Huat an amount equal to $9.74 per share in cash, by wire transfer of immediately available funds to an account designated in writing by Kien Huat (the “Purchase”), less any applicable withholding taxes.

Concurrent with or immediately after entry into a definitive agreement with Empire in respect of the Merger (the “Merger Agreement”), the Parties hereby agree: (i) to form a Delaware limited liability company (or other form of entity as the Parties may mutually agree) (the “Company”) and (ii) that Purchaser and Kien Huat enter into an operating agreement (or similar governing document if the Company is not a limited liability company) of the Company to reflect terms that are consistent with this Term Sheet and such other terms as the Parties may agree (the “Definitive Agreement”). 

The duration of the Company shall be perpetual and the purpose of the Company shall be to engage in any lawful act or activity for which a limited liability company (or other applicable entity if the Company is not a limited liability company) may be formed under the laws of its jurisdiction of formation, either directly or through one or more subsidiaries. Purchaser shall have the right to designate the Company’s registered office and registered agent and to determine the Company’s place of business. 

Except as otherwise required by applicable law, the debts, obligations and liabilities of the Company, however arising, shall be solely the debts, obligations and liabilities of the Company, and the members of the Company (or equivalent persons in the event the Company is not a limited liability company) (the “Members”) shall have no obligation whatsoever for any such debt, obligation or liability of the Company solely by reason of being a Member, regardless of any failure of the Company to observe any corporate (or equivalent) formalities or requirements. 

In the event that the Merger Agreement has not been executed prior to the Initial Outside Date, the Merger has not been consummated by the Extended Outside Date or the Merger Agreement has been terminated by the parties thereto, the Parties shall negotiate in good faith to restructure the transactions contemplated hereby and amend this Term Sheet in order to form the Company and implement a transaction that has substantially the same effect as the Purchase, the Common Stock Contributions and the True-Up Contributions prior to the Formation Extended Outside Date such that Purchaser shall own a forty-nine percent (49%) membership interest in the Company and Kien Huat shall own a fifty-one percent (51%) membership interest in the Company.

Upon the terms set forth herein and subject to the Contribution Conditions: 

Common Stock Contributions 

Concurrent with the Merger, Purchaser shall make a capital contribution to the Company of the Purchased Stock, free and clear of any and all liens (the “Purchaser Common Stock Contribution”). 

Concurrent with the Purchaser Common Stock Contribution, Kien Huat shall make a capital contribution to the Company of 15,714,606 shares of Common Stock (the “Kien Huat Common Stock”), free and clear of any and all liens (the “Kien Huat Common Stock Contribution”) and, together with the Purchaser Common Stock Contribution, the “Common Stock Contributions”). 

Merger Contributions 

Concurrent with the Common Stock Contributions, the Members shall each contribute to the Company an amount of cash sufficient to pay such amounts as are due and payable by the Company at the closing of the Merger under the terms of the Merger Agreement (such amounts shall be allocated (i) forty-nine percent (49%), plus an amount equal to $9,429,839.44 (the “True-Up Contribution”) to Purchaser and (ii) fifty-one percent (51%), less an amount equal to the True-Up Contribution, to Kien Huat, subject, in each case (other than with respect to the True-Up Contribution), to adjustment as a result of any limitation on such Members’ (or its affiliates’) ability to do so under law or stock exchange regulations applicable to such Member or such Member’s affiliate), by wire transfer of immediately available funds to an account designated in writing by the Company (the “Cash Contributions” and together with the Common Stock Contributions, the “Contributions”). 

Concurrent with, and in consideration for, the Contributions, Purchaser shall receive a forty-nine percent (49%) membership interest in the Company and Kien Huat shall receive a fifty-one percent (51%) membership interest in the Company (subject to any adjustments as set forth in the immediately preceding paragraph). 

Equity Commitment Letters 

Each Party agrees, at any time from and after the formation of the Company, if requested by Kien Huat, Purchaser shall, and/or if requested by Genting, Kien Huat shall (the party making such request, the “Requesting Party”), enter into an equity commitment letter in customary form with the Company (and of which the Requesting Party shall be a third party beneficiary) obligating such Member to effect the Contributions immediately prior to the consummation of the Merger (an “Equity Commitment Letter”). Upon execution of such an Equity Commitment Letter, except to the extent set forth therein, the obligations of the Party signatory thereto with respect to the Contributions shall be of no further force or effect and shall be superseded entirely by such Equity Commitment Letter. 

The respective obligation of each Party to effect the Purchase is subject to the satisfaction (or waiver by the Party entitled to the benefit thereof) of each of the following conditions (together, the “Purchase Conditions”): 

●

In the case of both Parties: 

○

the Parties shall have received or have been deemed to have received all necessary pre-closing authorizations, consents, expirations of waiting periods (including any extensions thereof) and approvals of all Governmental Entities, including any Gaming/Racing Approvals and the expiration of any applicable waiting period (or any extension thereof) in respect of the Hart-Scott Rodino Antitrust Improvements Act of 1976 and the regulations promulgated thereunder (the “HSR Act”), in connection with the execution, delivery and performance of the Purchase; 

○  

there shall not have occurred, and the Purchase shall not result in, a change of control or equivalent event under any instrument or material agreement of Empire (including any agreement relating to material indebtedness) (any such change of control or equivalent event, a “CoC Event” and this Purchase Condition, the “Purchase CoC Condition”); and 

○  

no provision of law or injunction, order, decree, judgment or ruling shall be in effect that prohibits, restricts or otherwise makes illegal the performance of the Parties’ obligations to effect the Purchase. 

●        

In the case of Kien Huat, 

○  

the representations and warranties of Genting set forth herein shall be true and correct as of the date hereof and as of the Purchase Date as though made on the Purchase Date; 

○  

Genting shall have performed in all material respects all of the covenants and agreements that are required to be performed by them under this Term Sheet at or prior to the Purchase Date; and 

○  

since the date hereof through the Purchase Date, there shall not have occurred any change, development, effect, circumstance, state of facts or event that has had, or would reasonably be expected to have, a Genting Material Adverse Effect. 

●        

In the case of Genting: 

○  

the representations and warranties of Kien Huat set forth herein shall be true and correct as of the date hereof and as of the Purchase Date as though made on the Purchase Date; 

○  

Kien Huat shall have performed in all material respects all of the covenants and agreements that are required to be performed by it under this Term Sheet at or prior to the Purchase Date; and 

○  

since the date hereof through the Purchase Date, there shall not have occurred any change, development, effect, circumstance, state of facts or event that has had, or would reasonably be expected to have, a Material Adverse Effect. 

The respective obligation of each Party to effect the Contributions is subject to the satisfaction (or waiver by the Party entitled to the benefit thereof) of each of the following conditions (together, the “Contribution Conditions” and, together with the Purchase Conditions, the “Conditions”):

●        

In the case of the Parties: 

○  

the Purchase shall have been consummated prior to, or concurrently with, the Contributions or the Parties shall have agreed to implement the Purchase through the Company as part of the Contribution; 

○  

the Parties shall have received or have been deemed to have received all necessary pre-closing authorizations, consents, expirations of waiting periods (including any extensions thereof) and approvals of all Governmental Entities, including any Gaming/Racing Approvals; 

○  

no provision of law or injunction, order, decree, judgment or ruling shall be in effect that prohibits, restricts or otherwise makes illegal the performance of the Parties’ obligations to effect the Contributions; 

○  

there shall not have occurred, and the Contributions shall not result in, a CoC Event (this Contribution Condition, the “Contribution CoC Condition” and, together with the Purchase CoC Condition, the “CoC Conditions”); and 

○  

the conditions to the Company’s (and, if applicable, its subsidiary’s) obligations to consummate the Merger set forth in the Merger Agreement shall have been satisfied or waived.

●        

In the case of Kien Huat, 

○  

the representations and warranties of Genting set forth herein shall be true and correct as of the date hereof and as of the date of consummation of the Merger as though made on the date of the consummation of the Merger; 

○  

Genting shall have performed in all material respects all of the covenants and agreements that are required to be performed by it under this Term Sheet at or prior to the date of the consummation of the Merger; and 

○

since the date hereof through the date of consummation of the Merger, there shall not have occurred any change, development, effect, circumstance, state of facts or event that has had, or would reasonably be expected to have, a Genting Material Adverse Effect. 

●        

In the case of Genting: 

○  

the representations and warranties of Kien Huat set forth herein shall be true and correct as of the date hereof and as of the date of consummation of the Merger as though made on the date of the consummation of the Merger; 

○  

Kien Huat shall have performed in all material respects all of the covenants and agreements that are required to be performed by it under this Term Sheet at or prior to the date of the consummation of the Merger; and 

○  

since the date hereof and through the date of the consummation of the Merger, there shall not have occurred any change, development, effect, circumstance, state of facts or event that has had, or would reasonably be expected to have, a Material Adverse Effect. 

“Gaming/Racing Approvals” means all licenses, permits or other authorizations required to own, operate and otherwise conduct gambling, gaming, racing, casino or similar operations of Empire issued by any Governmental Entity or under any law which are necessary to permit, in the case of the Purchase Conditions, the Purchase, and in the case of the Contribution Conditions, the Contributions (including, in each case, any approval so that Genting and the Company, as applicable, will not be a “Disqualified Holder” under the Empire certificate of incorporation). 

“Genting Material Adverse Effect” means any change, development, effect, circumstance, state of facts or event that, individually or in the aggregate, would prevent or materially delay, interfere with or hinder (i) the consummation by Genting of the transactions contemplated to be effected hereby on the Purchase Date or the date of consummation of the Merger, as applicable, or (ii) the compliance by the Company with its obligations under this Term Sheet.

“Governmental Entity” means (i) any federal, state, local, municipal, foreign or international government or governmental authority, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, public or private arbitrator or arbitral body or anybody exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature; (ii) any self-regulatory organization or (iii) any subdivision of any of the foregoing.

“Material Adverse Effect” means any change, development, effect, circumstance, state of facts or event that, individually or in the aggregate, (i) has had, or would reasonably be expected to have, a material adverse effect on the operations, business, assets, properties, liabilities or condition (financial or otherwise) of Empire and Empire’s subsidiaries taken as a whole or (ii) would prevent or materially delay, interfere with or hinder (a) the consummation by Kien Huat of the transactions contemplated to be effected hereby on the Purchase Date or the date of the consummation of the Merger, as applicable, or (b) the compliance by the Company with its obligations under this Term Sheet; provided, however, that subsection (i) of this definition shall only be applicable with respect to the Purchase Conditions.

Kien Huat represents and warrants to Genting as of the date hereof, as of the Purchase Date and as of the date of the consummation of the Merger (or if a different date or time is specified in the applicable representation and warranty, as of such date or time): 

●        

Kien Huat has all requisite power and authority to enter into this Term Sheet and to carry out its obligations hereunder and to consummate the transactions contemplated hereby (including all power and authority to sell, assign, transfer and convey (i) all of the Purchased Stock on the Purchase Date and (ii) all of the Kien Huat Common Stock on the date of the consummation of the Merger). Kien Huat is duly organized and existing under the laws of its jurisdiction of organization. 

●

The execution and delivery by Kien Huat of this Term Sheet, the performance by Kien Huat of its obligations hereunder and the consummation by Kien Huat of the transactions contemplated hereby have been duly authorized and approved by all requisite corporate or other similar action on the part of Kien Huat. 

●

The execution and delivery by Kien Huat of this Term Sheet and the performance by Kien Huat of its obligations hereunder and the consummation by Kien Huat of the transactions contemplated hereby do not and will not (i) conflict with, or result in the breach of, any organizational documents of Kien Huat, (ii) result in any violation, breach, conflict, default or event of default (or an event which with notice, lapse of time or both, would constitute a default or event of default) under the terms of any contract or agreement to which Kien Huat is a party or (iii) violate, in any material respect, any law applicable to Kien Huat. 

●

Kien Huat is acquiring an interest in the Company for its own account for the purpose of investment and not with a view to any sale or other disposition of all or any part thereof. Kien Huat is sophisticated in financial matters and capable of evaluating the risks of an investment in the Company and bearing the risk of loss on such investment indefinitely. Kien Huat is an “accredited investor” within the meaning of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”). 

●

This Term Sheet has been duly and validly executed and delivered by Kien Huat and, assuming due authorization, execution and delivery by Gen M and Gen USA, this Term Sheet constitutes a legal, valid and binding obligation of Kien Huat enforceable against Kien Huat in accordance with its terms, subject to the effects of bankruptcy, insolvency and general principles of equity. 

●

Kien Huat is, (i) as of the date hereof and as of the date of the Purchase, the beneficial and sole record owner of, and has good, valid and marketable title to, all of the Purchased Stock and (ii) as of the date hereof and as of the date of the consummation of the Merger, the beneficial and sole record owner of and has good, valid and marketable title to, all of the Kien Huat Common Stock), in each case, free and clear of all liens or any other restrictions on transfer other than those set forth in the certificate of incorporation of Empire. 

●

Tan Sri Lim Kok Thay beneficially owns, has, for at least three years prior to the date hereof, beneficially owned, and will, through the date of the Contributions, beneficially own, all outstanding shares of Kien Huat. 

Genting represents and warrants to Kien Huat as of the date hereof, as of the Purchase Date and as of the date of consummation of the Merger (or if a different date or time is specified in the applicable representation and warranty, as of such date or time): 

●

Genting has all requisite power and authority to enter into this Term Sheet and to carry out its obligations hereunder and consummate the transactions contemplated hereby. Each of Gen M and Gen USA is duly organized and existing under the laws of their respective jurisdictions of organization. 

●

The execution and delivery by each of Gen M and Gen USA of this Term Sheet, the performance by Gen M and Gen USA of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby have been (or, if the Purchaser is not Gen USA, will be) duly authorized and approved by all requisite corporate or other similar action on the part of Gen M and Purchaser. 

●

The execution and delivery by Gen M and Gen USA of this Term Sheet and the performance by Gen M and Gen USA of its obligations hereunder and the consummation by Purchaser of the transactions contemplated hereby do not and will not (i) conflict with, or result in the breach of, any organizational documents of Gen M or Purchaser, (ii) result in any violation, breach, conflict, default or event of default (or an event which with notice, lapse of time or both, would constitute a default or event of default) under the terms of any contract or agreement to which Gen M or Purchaser is a party or (iii) violate, in any material respect, any law applicable to Gen M or Purchaser. 

●

Purchaser is acquiring an interest in the Company for its own account for the purpose of investment and not with a view to any sale or other disposition of all or any part thereof. Purchaser is sophisticated in financial matters and capable of evaluating the risks of an investment in the Company and bearing the risk of loss on such investment indefinitely. Purchaser is an “accredited investor” within the meaning of Regulation D of the Securities Act. 

●

This Term Sheet has been duly and validly executed and delivered by Gen M and Gen USA and, assuming due authorization, execution and delivery by Kien Huat, this Term Sheet constitutes a legal, valid and binding obligation of each of Gen M and Gen USA enforceable against Gen M and Gen USA in accordance with its terms. 

●

Subject to the consummation of the Purchase and the accuracy of Kien Huat’s corresponding representation and warranty set forth above, as of the date of the consummation of the Merger, Purchaser will be the beneficial and sole record owner of, and have good, valid and marketable title to, all of the Purchased Stock, free and clear of all liens or any other restrictions on transfer other than those set forth in the certificate of incorporation of Empire. 

●

Genting Malaysia Berhad beneficially owns all outstanding securities of Purchaser. Tan Sri Lim Kok Thay has been for three years prior to the date hereof, and will be through the Contributions, a director of Gen USA.

Without Gen M’s prior written consent, in no event shall Purchaser or any affiliate of Gen M own fifty percent (50%) or greater of the membership interests in the Company following the Contributions (the “Genting Ownership Limit”). In the event that any capital contribution by Purchaser pursuant to the Contributions shall result in Genting exceeding the Genting Ownership Limit, Purchaser shall reduce any such contribution (and, if necessary, Kien Huat shall increase its contribution) such that, following such contribution, Purchaser shall own less than the Purchaser Ownership Limit (the “Adjusted Equity Contribution”) and Purchaser shall have no further obligation to fund any amounts in excess of the Adjusted Equity Contribution in respect of such Contribution. 

In the event that, at any time, a transaction or series of transactions is proposed by the Company or any Member that would result in Purchaser exceeding the Purchaser Ownership Limit, at Purchaser’s option, the Company shall, immediately prior to the consummation of such transaction or series of transactions, redeem an amount of membership interests held by Purchaser, at fair market value, that shall result in Purchaser owning less than the Genting Ownership Limit immediately following the consummation of such transaction or series of transactions.

Pre-Emptive Rights:

No Member shall transfer any membership interests in the Company to any person other than a Controlled Affiliate, and no transferee other than a Controlled Affiliated shall be admitted as a member of the Company, without, in each case, the prior written consent of the other Members; provided that, as a condition of such transfer, such Controlled Affiliate shall execute a joinder agreement to this Term Sheet, the terms of which shall be mutually agreed by the Parties. 

“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise. 

“Controlled Affiliate” means, with respect to any Member, any other person that is Controlled by, or under common Control of, such Member.

Each Member shall have customary information rights with respect to the Company and its subsidiaries, including unaudited monthly and quarterly financial statements, audited annual financial statements, and customary inspection and other rights to information reasonably requested.

The Parties shall cause the Company and its subsidiaries to provide each Member with any information that such Member shall require in order to satisfy its reporting obligations under any applicable law.

This Term Sheet may be terminated and the transactions contemplated hereby abandoned as follows, in which case this Term Sheet shall become null and void and of no further force or effect whatsoever without liability on the part of any Party hereto and all rights and obligations of the Parties shall cease (provided, that the provisions regarding Expenses, Termination, Entire Agreement, Severability, No Third Party Beneficiaries, Notices, Non-Reliance and Governing Law shall survive any such termination in accordance with the terms thereof and that no such termination shall relieve any Party of liability for any breach occurring prior such termination): 

●

at any time, by the mutual written consent of the Parties; 

●

by either Party upon written notice to the others, if the Merger has not been consummated by 11:59 p.m. New York time on October 31, 2019 (as it may be extended, the “Initial Outside Date”); provided, that the right to terminate this Term Sheet shall not be available to any Party who shall have breached its obligations under this Term Sheet in any material respect and such breach shall have caused the failure to consummate the transactions contemplated by this Term Sheet by the Initial Outside Date; provided, further, that, if a Merger Agreement is executed prior to the Initial Outside Date, the Initial Outside Date shall be extended until the outside date (or other equivalent date) under the Merger Agreement (as it may be extended, the “Extended Outside Date”); provided, further, that if the transactions contemplated hereby have not been consummated by (i) the Initial Outside Date (if the Merger Agreement has not been executed on or prior to the Initial Outside Date), (ii) the Extended Outside Date (if the Merger Agreement has been executed on or prior to the Initial Outside Date) or (iii) the date of termination of the Merger Agreement (the “Termination Date”), the Initial Outside Date, in the case of (i), or the Extended Outside Date, in the case of (ii) or (iii), shall be extended until a date that is three months after the Initial Outside Date, the Extended Outside Date or the Termination Date, as applicable (the “Formation Extended Outside Date”) solely to permit the completion of the steps contemplated by the last paragraph under “Company” above and to permit the consummation of the transactions contemplated thereby; 

●

at any time prior to the effectiveness of the Contributions, by Kien Huat upon written notice to Gen M or Gen USA that there has been a material violation or breach by Gen M or Gen USA of any covenant, representation or warranty contained in this Term Sheet, such that any condition to the obligations of Kien Huat would not be satisfied and such violation or breach has not been waived by Kien Huat or cured by Gen M or Purchaser no later than the earlier to occur of twenty (20) business days following written notice of such breach and the Initial Outside Date, the Extended Outside Date or the Formation Extended Outside Date, as applicable; provided that Kien Huat may not so terminate if it has breached its obligations under this Term Sheet in any material respect and such breach shall have caused a failure of any Condition of Genting to be satisfied; 

●

at any time prior to the effectiveness of the Contributions, by Gen M or Gen USA upon written notice to Kien Huat that there has been a material violation or breach by Kien Huat of any covenant, representation or warranty contained in this Term Sheet, such that any condition to the obligations of Genting would not be satisfied and such violation or breach has not been waived by Genting or cured by Kien Huat no later than the earlier to occur of twenty (20) business days following written notice of such breach and the Initial Outside Date, the Extended Outside Date or the Formation Outside Date, as applicable; provided that Genting may not so terminate if it has breached its obligations under this Term Sheet in any material respect and such breach shall have caused a failure of any Condition of Kien Huat to be satisfied; and 

●

subject to the proviso contained in this clause, at any time prior to the effectiveness of the Contributions, by either Party in the event that a Governmental Entity of competent jurisdiction shall have issued an injunction, order, decree, judgment or ruling (“Order”), enjoining or otherwise prohibiting consummation of any transaction contemplated by this Term Sheet and such Order shall have become final and non-appealable; provided that no Party may terminate any obligations regarding the Purchase under this clause unless such Order enjoins or otherwise prohibits consummation of the Purchase.

This Term Sheet shall be binding on the Parties hereto solely for the benefit of each other Party and nothing set forth in this Term Sheet, express or implied, shall be construed to confer any benefit, rights or remedies upon any other person. 

This Term Sheet shall be governed and construed in all respects by the laws of the State of Delaware, without regard to conflicts of law principles that would have the effect of giving effect to the laws of another jurisdiction. Each of the Parties (i) consent to submit itself to the personal jurisdiction of the Court of Chancery in the State of Delaware (or if such court finds it lacks subject matter jurisdiction, the federal or other state courts of Delaware) in connection with any dispute that arises out of this Term Sheet, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Term Sheet in any court other than the Court of Chancery in the State of Delaware (or if such court finds it lacks subject matter jurisdiction, the federal or other state courts of Delaware) unless venue would not be proper under rules applicable in such courts. Notwithstanding the previous sentence, a Party may commence any such action in a court other than the above-named courts solely for the purpose of enforcing an order or judgment issued by one of the above-named courts. 

Each Party agrees that service of summons, complaint or other process in connection with any such action may be made in the manner set forth in the “Notices” provision of this Term Sheet and that such service shall be as effective as if personally made in the State of Delaware. 

EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS TERM SHEET. 

The Parties agree that irreparable damage would occur in the event that any of the provisions of this Term Sheet were not performed in accordance with their specific terms or were otherwise breached. Accordingly, in the event of any actual or threatened breach by a Party of any of the provisions of this Term Sheet, the other Parties shall be entitled to equitable relief in addition to all other remedies available at law or in equity. Each of the Parties hereby further waives (i) any defense in any action for injunctive relief that a remedy at law would be adequate and (ii) any requirement under any law to post security as a prerequisite to obtaining equitable relief.