UWN Nevada Gold & Casinos, Inc.

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 14A INFORMATION

PROXY STATEMENT PURSUANT TO SECTION 14(A) OF THE SECURITIES
EXCHANGE ACT OF 1934

Filed by the Registrant   ☒

Filed by a Party other than the Registrant   ☐

Check the appropriate box:

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Preliminary Proxy Statement

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Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

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Definitive Proxy Statement

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Definitive Additional Materials

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Soliciting Material under §240.14a-12

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NEVADA GOLD & CASINOS, INC.

(Name of Registrant as Specified In Its Charter)

(Name of Person(s) Filing Proxy Statement, if other than Registrant)

Payment of Filing Fee (Check the appropriate box):

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No fee required.

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Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

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(1)

Title of each class of securities to which transaction applies:

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Common Stock, par value $0.12 per share, of Nevada Gold & Casinos, Inc. (“Common Stock”).

(2)

Aggregate number of securities to which transaction applies:

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16,917,382 shares of Common Stock (including restricted shares) and 676,000 options to purchase shares of Common Stock with exercise prices below $2.50.

(3)

Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

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Solely for the purpose of calculating the filing fee, the underlying value of the transaction was calculated based on the sum of  (A) 16,917,382 shares of Common Stock multiplied by $2.50 per share and (B) options to purchase 676,000 shares of Common Stock with exercise prices below $2.50, multiplied by $1.40 per share (which is the difference between $2.50 and the weighted average exercise price per share). In accordance with Section 14(g) of the Securities Exchange Act of 1934, as amended, the filing fee was determined by multiplying 0.0001212 by the sum of the preceding sentence.

(4)

Proposed maximum aggregate value of transaction:

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$43,239,855

(5)

Total fee paid:

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$5,240.67

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Fee paid previously with preliminary materials.

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Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

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(1)

Amount Previously Paid:
 

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(2)

Form, Schedule or Registration Statement No.:
 

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(3)

Filing Party:
 

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(4)

Date Filed:
 

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PRELIMINARY COPY — SUBJECT TO COMPLETION

NEVADA GOLD & CASINOS, INC.
133 E. WARM SPRINGS ROAD, SUITE 102
LAS VEGAS, NV 89119

Las Vegas, Nevada
[•]​

Dear Stockholder:

You are cordially invited to attend the special meeting of stockholders of Nevada Gold & Casinos, Inc. (the “Company”) to be held at [•], Pacific Time, on [•], [•] at [•].

At the special meeting, you will be asked to consider and vote upon a proposal to approve the Agreement and Plan of Merger, dated as of September 18, 2018, as amended by Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018 (as it may be further amended from time to time, the “Merger Agreement”), by and among the Company, Maverick Casinos LLC, a Nevada limited liability company (“Parent”), and Maverick Casinos Merger Sub, Inc., a Nevada corporation and a wholly-owned subsidiary of Parent (“Merger Sub”). Under the terms of the Merger Agreement, Merger Sub will be merged with and into the Company, with the Company continuing as the surviving corporation following the merger. If the Company’s stockholders approve the Merger Agreement and the merger is completed, you will be entitled to receive $2.50 in cash, subject to certain possible adjustments described in the Merger Agreement, without interest (the “Merger Consideration”); provided that if the merger occurs after February 1, 2019, the Merger Consideration will be automatically increased by $0.01 for each month following such date until (and including) the date of the merger (prorated by the number of days for partial months), and net of any taxes required to be withheld therefrom, for each share of the Company’s common stock you own immediately prior to the merger.

After careful consideration, our Board of Directors has, by unanimous vote, determined that the merger is fair to, and in the best interests of, the Company, including its stockholders, and unanimously approved and declared advisable the Merger Agreement, the merger, and the other transactions contemplated by the Merger Agreement, and recommends that you vote “ FOR ” the approval of the Merger Agreement.

At the special meeting, you will also be asked to consider and vote on (i) a proposal to approve, on an advisory and non-binding basis, certain compensation that will or may be paid or become payable to our named executive officers in connection with the proposed merger, and (ii) a proposal to adjourn the special meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the proposal to approve the Merger Agreement. Our Board of Directors unanimously recommends that you vote “ FOR ” the proposal to approve, on an advisory basis, certain compensation that will or may be paid or become payable to our named executive officers in connection with the Merger, and “ FOR ” the proposal to adjourn the special meeting, if necessary, to solicit additional proxies in favor of the proposal to approve the Merger Agreement.

The accompanying proxy statement provides you with detailed information about the proposed merger and the special meeting. Please give this material your careful attention.

Whether or not you plan to attend the special meeting, please fill in, date, sign, and return the enclosed proxy card which is solicited by, and on behalf of, the Board of Directors, or submit your proxy by telephone or the Internet. If your shares of common stock of the Company are held in an account at a broker, bank, or other nominee, you should instruct your broker, bank, or other nominee how to vote your shares in accordance with the instructions furnished by your broker, bank, or nominee. Regardless of the number of shares of common stock of the Company you own, your vote is important. The failure to vote has the same effect as a vote against the approval of the Merger Agreement.

Thank you for your cooperation and continued support.

Sincerely,

Michael P. Shaunnessy
Chief Executive Officer and President

Las Vegas, Nevada, [•]

This proxy statement is dated [•] and is first being mailed to the Company’s stockholders on or about [•].

NEVADA GOLD & CASINOS, INC.
133 E. WARM SPRINGS ROAD, SUITE 102
LAS VEGAS, NV 89119

TABLE OF CONTENTS

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TABLE OF CONTENTS
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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER

The following questions and answers address briefly some questions you may have regarding the special meeting and the proposed merger. These questions and answers may not address all questions that may be important to you as a stockholder of Nevada Gold & Casinos, Inc. Please refer to the more detailed information contained elsewhere in this proxy statement, the appendices to this proxy statement, and the documents referred to or incorporated by reference in this proxy statement. You may obtain the documents incorporated by reference into this proxy statement without charge by following the instructions in the section of this proxy statement entitled “Where You Can Find Additional Information.” In this proxy statement, the terms “Company”, “we”, “our”, “ours”, and “us” refer to Nevada Gold & Casinos, Inc.

Q:

What is the proposed transaction?

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A:

The proposed transaction is the acquisition of the Company by Maverick Casinos LLC (“Parent”) pursuant to an Agreement and Plan of Merger dated as of September 18, 2018, as amended by Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018 (as it may be further amended from time to time, the “Merger Agreement”), by and among the Company, Parent, and Maverick Casinos Merger Sub, Inc., a wholly-owned subsidiary of Parent (“Merger Sub”). If the Merger Agreement is approved by the Company’s stockholders and the other closing conditions under the Merger Agreement have been satisfied or waived, Merger Sub will be merged with and into the Company (the “Merger”). The Company will be the surviving corporation in the Merger (the “surviving corporation”) and will become a wholly-owned subsidiary of Parent.

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Q:

What will I receive in the Merger?

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A:

Upon completion of the Merger, you will be entitled to receive $2.50 in cash, subject to certain possible adjustments as provided in the Merger Agreement, without interest; provided that if the Merger occurs after February 1, 2019, the Merger consideration will be automatically increased by $0.01 for each month following such date until (and including) the date of the Merger (prorated by the number of days for partial months), and net of any taxes required to be withheld therefrom (see “Material United States Federal Income Tax Consequences”), for each share of our common stock that you own immediately prior to the Merger. You will not own any shares in the surviving corporation.

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Q:

Where and when is the special meeting?

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A:

The special meeting will be held at [•], Pacific Time, on [•], [•] at [•].

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Q:

Who is entitled to vote at the special meeting?

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A:

You may vote at the special meeting if you owned our common stock as of the close of business on [•], the record date of the special meeting. Each share of our common stock is entitled to one vote. As of the record date, there were [•] shares of our common stock outstanding and entitled to vote at the special meeting.

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Q:

What vote of our stockholders is required to approve the Merger Agreement?

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A:

For us to complete the Merger, stockholders holding at least a majority of the shares of our common stock outstanding at the close of business on the record date must vote “ FOR ” the approval of the Merger Agreement. Accordingly, failure to vote or an abstention will have the same effect as a vote against the approval of the Merger Agreement.

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Q:

How does the Company’s Board of Directors recommend that I vote on the proposal to approve the Merger Agreement?

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A:

Our Board of Directors, by unanimous vote, recommends that our stockholders vote “ FOR ” the approval of the Merger Agreement. You should read “The Merger — Reasons for the Merger” for a discussion of the factors that our Board of Directors considered in deciding to recommend the approval of the Merger Agreement.

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Q:

Why am I being asked to vote on a proposal to approve, on an advisory basis, certain compensation that will or may be paid or become payable to the Company’s named executive officers in connection with the Merger?

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A:

Under Securities and Exchange Commission (“SEC”) rules, we are required to seek approval on an advisory and non-binding basis of certain compensation that will or may be paid or become payable to our named executive officers in connection with the Merger. Approval of this proposal is not a condition to the completion of the Merger and the vote on this proposal is an advisory vote and will not be binding on either the Company or Parent.

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Q:

What vote of our stockholders is required to approve the proposal regarding certain compensation that will or may be paid or become payable to our named executives in connection with the Merger?

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A:

Approval of this proposal requires the affirmative vote of the holders of a majority of the outstanding shares of our common stock entitled to vote on the proposal and casting votes for or against the proposal. As noted above, the vote on this proposal is not binding on the Company. The outcome of the vote on this proposal will have no effect on the completion of the Merger and will not affect the payment of Merger-related compensation to our named executive officers, which is based on existing contractual arrangements with those officers.

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Q:

How does the Company’s Board of Directors recommend that I vote on the proposal regarding certain compensation that will or may be paid or become payable to our named executives in connection with the Merger?

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A:

Our Board of Directors, by unanimous vote, recommends that our stockholders vote “ FOR ” the proposal to approve, on an advisory basis, certain compensation that will or may be paid or become payable to our named executive officers in connection with the Merger.

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Q:

What vote of our stockholders is required to approve the proposal regarding adjournment of the special meeting, if necessary, to solicit additional proxies in favor of the proposal to approve the Merger Agreement?

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A:

If a quorum is present at the special meeting, then approval of this proposal requires the affirmative vote of the holders of a majority of the shares of our common stock entitled to vote on the proposal and casting votes for or against the proposal. If a quorum is not present at the special meeting, the Company’s stockholders entitled to vote at the special meeting, represented in person or by proxy at the special meeting, will have the power to adjourn the special meeting.

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Q:

How does the Company’s Board of Directors recommend that I vote on the proposal regarding adjournment of the special meeting, if necessary, to solicit additional proxies in favor of the proposal to approve the Merger Agreement?

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A:

Our Board of Directors, by unanimous vote, recommends that our stockholders vote “ FOR ” the proposal to adjourn the special meeting, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Merger Agreement.

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Q:

What do I need to do now?

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A:

We urge you to read this proxy statement carefully, including its appendices, and to consider how the Merger affects you. If you are a stockholder of record, then you can ensure that your shares are voted at the special meeting by submitting your proxy via the mail, by marking, signing, dating, and mailing each proxy card and returning it in the envelope provided, or by submitting your proxy by telephone or the Internet. You can vote by telephone or the Internet by accessing the telephone number or website specified on the enclosed proxy card. The control number provided on your proxy card is designed to verify your identity when voting by telephone or the Internet.

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Q:

If my shares are held in “street name” by my broker, bank, or other nominee will my broker, bank, or other nominee vote my shares for me?

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A:

Yes, but only if you provide instructions to your broker, bank, or other nominee on how to vote. You should follow the directions provided by your broker, bank, or other nominee regarding how to instruct your broker, bank, or other nominee to vote your shares. Without those instructions, your shares will not be voted on the proposals, which will have the same effect as a vote against the proposal to approve the Merger Agreement, but will not affect the proposal to approve, on an advisory basis, the Merger-related compensation, or the proposal to adjourn the special meeting, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the Merger Agreement.

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Q:

How do I revoke or change my vote?

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A:

You can change your vote at any time before your proxy is voted at the special meeting. You may revoke your proxy by notifying the Secretary of the Company in writing or by submitting a new proxy by mail, or by telephone, or the Internet, in each case, dated after the date of the proxy being revoked. In addition, your proxy may be revoked by attending the special meeting and voting in person. However, simply attending the special meeting will not revoke your proxy. If you have instructed a broker, bank, or other nominee to vote your shares, the above-described options for changing your vote do not apply, and instead you must follow the instructions received from your broker, bank, or other nominee to change your vote.

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Q:

What does it mean if I get more than one proxy card?

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A:

If your shares are registered differently and are in more than one account, you will receive more than one proxy card. Please complete and return all of the proxy cards you receive, or submit your proxy for each card you receive by telephone or the Internet, to ensure that all of your shares are voted.

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Q:

Who may attend the special meeting?

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A.

All stockholders of record at the close of business on [•], the record date, or their duly appointed proxies, may attend the special meeting. Please be prepared to present valid photo identification for admission to the special meeting.

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If you hold shares of our common stock in “street name” (that is, in a brokerage account or through a bank or other nominee) and you plan to vote in person at the special meeting, you will need to bring a valid photo identification and a copy of a statement reflecting your share ownership as of the record date, or a legal proxy from your broker or nominee.

Stockholders of record will be verified against an official list available in the registration area at the meeting. We reserve the right to deny admittance to anyone who cannot adequately show proof of share ownership as of the record date.

Q:

When do you expect the Merger to be completed?

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A:

The completion of the Merger is subject to receipt of stockholder approval of the proposal to approve the Merger Agreement and satisfaction of the other closing conditions under the Merger Agreement. See “The Merger Agreement — Conditions to the Merger”. Assuming the satisfaction of conditions, as of the date of this proxy statement, the Company expects the transaction to close in early 2019.

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Q:

Should I send in my stock certificates or other evidence of ownership now?

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A:

No. Shortly after the Merger is completed, you will receive a letter of transmittal with instructions informing you how to surrender your shares to the paying agent in exchange for the per share Merger consideration. You should use the letter of transmittal to surrender your stock certificates or uncertificated shares of our common stock in exchange for the per share Merger consideration to which you are entitled as a result of the Merger. DO NOT SEND ANY STOCK CERTIFICATES OR OTHER DOCUMENTS EVIDENCING OWNERSHIP OF SHARES OF OUR COMMON STOCK WITH YOUR PROXY.

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Q:

Who can help answer my other questions?

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A:

If you have more questions about the Merger, need assistance in submitting your proxy or voting your shares or need additional copies of the proxy statement or the enclosed proxy card, you should contact Ernest E. East, Vice President and Chief Compliance Officer of the Company, telephone: (702) 685-1000. If your broker, bank, or other nominee holds your shares, you should also call your broker, bank, or other nominee for additional information.

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other factors that may be described in the Company’s filings with the SEC.

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The internal financial information that the Company provided to RCO in connection with its opinion described below under “Opinion of the Company’s Financial Advisor” was prepared by the Company’s management. As a matter of policy, the Company does not publicly disclose internal management forecasts, projections or estimates of the type furnished to RCO in connection with its opinion, and such forecasts, projections, and estimates were not prepared with a view towards public disclosure. These forecasts, projections, and estimates were based on numerous variables and assumptions which are inherently uncertain and many of which are beyond the control of the Company, including, without limitation, factors related to general economic, business, regulatory, and competitive conditions. They involve significant elements of subjective judgment which may or may not be correct. Accordingly, actual results can be expected to vary from those set forth in or implied by such forecasts, projections and estimates, and such variations may be material.

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THE PARTIES TO THE MERGER

Nevada Gold & Casinos, Inc.

The Company was formed in 1977 and, since 1994, has been primarily a gaming company involved in financing, developing, owning, and operating gaming properties and projects. The Company’s current gaming facility operations are located in Washington State and Nevada. The Company operates nine mini-casinos in Washington State which include restaurants, bars, and approximately 125 table games. The Company also operates Club Fortune Casino, located in Henderson, Nevada. It has approximately 405 slot machines, seven table games and a poker room, two bars, an entertainment lounge, a William Hill sports book, a café, a snack bar, and a gift shop.

On June 27, 2018, the Company announced it had entered into a definitive agreement to sell Club Fortune Casino for $14.6 million, subject to certain adjustments, including a working capital adjustment.

The Company is a Nevada corporation with its principal executive offices at 133 E. Warm Springs Road, Suite 102, Las Vegas, Nevada 89119. The Company’s telephone number is (702) 685-1000.

Maverick Casinos LLC

Parent is a Nevada limited liability company with its principal executive offices at 2926 Montessouri Street, Las Vegas, Nevada 89117. Parent’s telephone number is (702) 461 6055. Parent was formed for the purpose of entering into the Merger Agreement and consummating the transactions contemplated by the Merger Agreement. It has not conducted any activities to date other than activities incidental to its formation and in connection with the transactions contemplated by the Merger Agreement.

Maverick Casinos Acquisition Sub, Inc.

Merger Sub is a Nevada corporation and a wholly-owned subsidiary of Parent. Merger Sub’s principal executive offices are located at 2926 Montessouri Street, Las Vegas, Nevada 89117 and its telephone number is (702) 461 6055. Merger Sub was formed solely for the purpose of entering into the Merger Agreement and consummating the transactions contemplated by the Merger Agreement. It has not conducted any activities to date other than activities incidental to its formation and in connection with the transactions contemplated by the Merger Agreement. Under the terms of the Merger Agreement, Merger Sub will merge with and into the Company. The Company will survive the Merger and Merger Sub will cease to exist.

Parent is managed and majority owned by Eric Persson. Based on information provided to the Company by Parent, Eric Persson is also a Manager of, and holds the largest percentage membership interest in, Maverick Gaming. Maverick Gaming owns the Wendover Nugget Hotel & Casino and Red Garter Hotel & Casino in Wendover, Nevada, along with various other assets.

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THE SPECIAL MEETING

Time, Place and Purpose of the Special Meeting

The special meeting will be held at [•], Pacific Time, on [•], [•] at [•]. The purpose of the special meeting is to consider and vote on (i) the proposal to approve the Merger Agreement, (ii) the proposal to approve, on an advisory basis, certain compensation that will or may be paid or become payable to our named executive officers in connection with the Merger (the “Merger-Related Compensation Proposal”), and (iii) the proposal to adjourn the special meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the special meeting to approve the Merger Agreement (the “Adjournment Proposal”).

Who Can Vote at the Special Meeting

The holders of record of Company Shares as of the close of business on [record date], which is the record date for the special meeting, are entitled to receive notice of and to vote at the special meeting. If you own shares that are registered in someone else’s name (for example, a broker), you need to direct that person to vote those shares or obtain an authorization from them and vote the shares yourself at the special meeting. On the record date, there were [•] Company Shares outstanding held by approximately [•] holders of record.

Vote Required

The approval of the proposal to approve the Merger Agreement requires the affirmative vote of the holders of a majority of the outstanding Company Shares entitled to vote. The approval on an advisory basis of the Merger-Related Compensation Proposal requires the affirmative vote of the holders of a majority of the Company Shares entitled to vote on the proposal and casting votes for or against the proposal. If a quorum is present at the special meeting, then the approval of the Adjournment Proposal requires the affirmative vote of the holders of a majority of the Company Shares entitled to vote on the proposal and casting votes for or against the proposal. If a quorum is not present at the special meeting, the Company’s stockholders entitled to vote at the special meeting, represented in person or by proxy at the special meeting, will have the power to adjourn the special meeting. Each Company Share is entitled to one vote. Failure to submit a proxy (by returning a properly executed proxy card or by telephone or the Internet) or to vote in person will have the same effect as a vote “AGAINST” the approval of the Merger Agreement.

Under stock exchange rules, brokers who hold shares in street name for customers have the authority to exercise investment discretion when they have not received instructions from beneficial owners. However, brokers are precluded from exercising their voting discretion with respect to the approval of non-routine matters such as the approval of the Merger Agreement and approval of the Merger-Related Compensation Proposal and, as a result, absent specific instructions from the beneficial owner of such shares, brokers are not empowered to vote those shares, referred to generally as “broker non-votes.” These broker non-votes will not be counted for quorum purposes, and will have the same effect as a vote “AGAINST” the proposal to approve the Merger Agreement, but will have no effect on the Merger-Related Compensation Proposal or the Adjournment Proposal. Abstentions will be treated as shares that are present and entitled to vote at the special meeting for purposes of determining whether a quorum exists and will have the same effect as votes “AGAINST” approval of the Merger Agreement. Abstentions will have no effect on the Merger-Related Compensation Proposal or the Adjournment Proposal.

The holders of a majority of the outstanding Company Shares entitled to vote as of the record date, represented in person or by proxy, will constitute a quorum for purposes of the special meeting. A quorum is necessary to hold the special meeting.

Adjournment and Postponement

Although it is not currently expected, the special meeting may be adjourned or postponed (to the extent permitted by law) for the purpose of, among other things, soliciting additional proxies. Any adjournment may be made without prior notice (if the adjournment is not for more than 120 days and no new record date is set), if the new date, time, or place of the meeting is announced before adjournment of the special meeting.

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If a quorum is present at the special meeting, then the Adjournment Proposal requires the affirmative vote of the holders of a majority of the Company Shares entitled to vote on the proposal and casting votes for or against the proposal. If a quorum is not present at the special meeting, the Company’s stockholders entitled to vote at the special meeting, represented in person or by proxy at the special meeting, will have the power to adjourn the special meeting. Any proxies received by the Company in which no voting instructions are provided on such proposal will be voted “ FOR ” the Adjournment Proposal. Any adjournment or postponement of the special meeting for the purpose of soliciting additional proxies in favor of the proposal to approve the Merger Agreement will allow stockholders who have already sent in their proxies to revoke them at any time prior to their use at the special meeting as adjourned or postponed.

Voting By Proxy

This proxy statement is being sent to you on behalf of the Board of Directors for the purpose of requesting that you allow your Company Shares to be represented at the special meeting by the persons named in the enclosed proxy card. All Company Shares represented at the special meeting by proxies submitted by properly executed proxy cards or by telephone or the Internet will be voted in accordance with the instructions indicated on that proxy. You can vote by telephone or the Internet by accessing the telephone number or website specified on the enclosed proxy card. The control number provided on your proxy card is designed to verify your identity when voting by telephone or the Internet. If you sign and return a proxy card without giving voting instructions, your shares will be voted as recommended by the Board of Directors. The Board of Directors, by unanimous vote, recommends a vote “FOR” approval of the Merger Agreement, “FOR” approval of the Merger-Related Compensation Proposal, and “FOR” approval of the Adjournment Proposal.

The persons in the proxy card will use their own judgment to determine how to vote your shares regarding any matters not described in this proxy statement that are properly presented at the special meeting. The Company does not know of any matter to be presented at the special meeting other than the proposal to approve the Merger Agreement, the Merger-Related Compensation Proposal, and the Adjournment Proposal.

You may revoke your proxy at any time before the vote is taken at the special meeting. To revoke your proxy, you must either advise the Secretary of the Company in writing, deliver a proxy dated after the date of the proxy you wish to revoke, or attend the special meeting and vote your shares in person. Merely attending the special meeting will not constitute revocation of your proxy.

If your Company Shares are held in street name, you will receive instructions from your broker, bank or other nominee that you must follow to have your shares voted. If you do not instruct your broker to vote your shares, each uninstructed share will have the same effect as a vote “AGAINST” approval of the Merger Agreement, but will have no effect on the Merger-Related Compensation Proposal or the Adjournment Proposal.

The Company is furnishing this proxy statement to you in connection with the solicitation by the Board of Directors of the enclosed form of proxy card for the special meeting. The Company will bear the cost of such proxy solicitation. In addition to soliciting proxies by mail, directors, officers, and employees of the Company may solicit proxies personally and by telephone, email, or otherwise. None of these persons will receive additional or special compensation for soliciting proxies. Copies of solicitation materials will be furnished to banks, brokerage houses, fiduciaries, and custodians holding in their names Company Shares beneficially owned by others to forward to such beneficial owners, and such persons representing beneficial owners of Company Shares may be reimbursed for their costs of forwarding solicitation materials to such beneficial owners.

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THE MERGER

The discussion of the Merger in this proxy statement is qualified by reference to the Merger Agreement, which is attached to this proxy statement as Appendix A. You should read the Merger Agreement carefully.

Background of the Merger

During the past several years, as part of our ongoing consideration and evaluation of the Company’s long-term prospects and strategies, the Board of Directors (the “Board of Directors”) and senior management of the Company have regularly and formally reviewed and assessed the Company’s business strategies, objectives, and key initiatives, including strategic opportunities and challenges, and have considered various strategic options potentially available to the Company. The strategic considerations have focused on, among other things, the business environment facing the Company and its industry as well as the Company’s business prospects.

From time to time, these strategic evaluations included consideration of potential business combination transactions and included discussions with potential strategic buyers, including four potential strategic buyers who signed non-disclosure agreements with the Company on March 21, 2017, April 6, 2017, July 7, 2017, and December 27, 2017, respectively, and engaged in due diligence. None of the four potential buyers made any offer to acquire the Company.

In January 2018, the Company was approached by and engaged in discussions with a potential buyer of the Company, with experience lending to gaming operations (referred to herein as “Bidder 1”). On February 12, 2018, Bidder 1 proposed to the Company that the parties enter into a transaction pursuant to which it would acquire the Company for a purchase price equal to $3.00 per share conditioned upon (x) the Company shutting down its South Dakota slot route business, and (y) the Company placing its Club Fortune Casino in trust pending its sale to a third party, which would avoid anticipated delays in obtaining the regulatory approvals that Bidder 1 would have otherwise been required to obtain. Bidder 1 requested a 60-day exclusivity period to complete its due diligence and negotiate definitive documentation with respect to the transaction with the Company.

Pursuant to an engagement agreement between the Company and Rossoff  & Company, LLC (“RCO”), dated February 14, 2018, the Board of Directors retained RCO as its financial advisor to assist it with its review of the Company’s strategic alternatives, including a possible sale of the Company to Bidder 1 or other third parties.

On February 13, 2018, the Company, through RCO, presented Bidder 1 a counter-offer, proposing a purchase price of  $3.15 per share for all of the outstanding Company Shares and outstanding options and 45-day exclusivity period.

On February 13, 2018, Bidder 1 agreed orally to acquire the Company at a purchase price of  $3.10 per share, and on February 14, 2018, Bidder 1 submitted a non-binding proposal to acquire 100% of the outstanding Company Shares (including shares underlying in-the-money stock options) at a per share price of  $3.10 (the “Bidder 1 LOI”), which it said was its best and final offer. The offer was subject to, among other things, (x) Club Fortune Casino being placed in trust pending its sale to a third party, (y) the termination of the Company’s South Dakota slot machine rout operations, and (z) completion of Bidder 1’s due diligence. The Bidder 1 LOI included a provision granting Bidder 1 a 60-day exclusivity period during which time Bidder 1 would complete its due diligence, the parties would negotiate definitive documentation providing for the transaction, and the Company would be prohibited from soliciting alternative proposals or engaging in discussions with third parties regarding such proposals.

The Board of Directors reviewed and discussed the Bidder 1’s proposal, discussed with RCO its preliminary financial analysis of the proposed transaction, and also discussed among themselves and with RCO the potential risks and benefits of pursuing a transaction with Bidder 1. Following such review and discussions, at a meeting of the Board of Directors on February 13, 2018, the Board of Directors, by unanimous vote, approved the proposal submitted by Bidder 1. The Company and Bidder 1 executed the Bidder 1 LOI on February 15, 2018.

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On March 12, 2018, Bidder 1’s legal counsel sent the Company a draft merger agreement providing for the sale of the Company to Bidder 1. The Company, along with RCO and Hughes Hubbard & Reed LLP, the Company’s outside counsel, engaged in continued negotiations with Bidder 1 and its legal counsel, including multiple telephonic negotiations and exchanges of drafts of the proposed merger agreement and related documents from March 12, 2018 through May 22, 2018.

In March 2018, in connection with the possible transaction with Bidder 1, the Company commenced a process seeking possible buyers of Club Fortune Casino. Pursuant to an engagement agreement between the Company and RCO, dated March 20, 2018, the Board of Directors retained RCO to assist it with the possible sale of Club Fortune Casino, and at the direction of the Board of Directors, RCO commenced contacting potential parties that the RCO believed might be interested in a potential acquisition of Club Fortune Casino based on its professional judgment and knowledge of the marketplace and to make available certain confidential information concerning Club Fortune Casino and its potential sale to potential bidders once they had signed a customary non-disclosure agreement. This process resulted in the Company receiving bids from three bidders, including a bid from Truckee Gaming, LLC (“Truckee Gaming”) on April 8, 2018.

On April 13, 2018, in view of the continuing and ongoing discussions between the Company and Bidder 1 regarding a possible transaction, the parties agreed to extend the 60-day exclusivity period previously granted to Bidder 1 pursuant to the Bidder 1 LOI, which was scheduled to end on April 16, 2018, to May 31, 2018.

Following negotiations and discussions between the Company and the three bidders that provided bids to the Company related to the possible sale of Club Fortune Casino, under the direction of the Board of Directors, on April 30, 2018, the Company signed a letter of intent with Truckee Gaming providing for the sale of substantially all of the assets related to Club Fortune Casino to Truckee Gaming for $15.5 million, subject to certain adjustments. The letter of intent provided that the Company would not be required to complete the transaction if the closing of the sale of the Company to Bidder 1 was not consummated. Pursuant to the letter of intent, the Company agreed that it would not accept or entertain offers, negotiate, solicit interest, or otherwise enter into discussions with other parties for the purchase, lease, or disposition of Club Fortune Casino for a period of 45 days from the date of the letter of intent.

Also on April 30, 2018, a potential buyer of the Company (referred to herein as “Bidder 2”) sent an unsolicited letter to the Board of Directors proposing a merger of Bidder 2 with the Company. Bidder 2 offered to exchange shares of its common stock for all of the Company Shares at an exchange ratio of 0.65 share of Bidder 2 shares for each outstanding Company Share, with an implied price of  $2.10 per share based on Bidder 2’s share price at that time. The Company, through RCO, informed Bidder 2 that it was not in a position to discuss the proposal at that time.

At a meeting of the Board of Directors on May 1, 2018, the Board of Directors discussed and reviewed Bidder 2’s proposal. In light of the restrictions imposed by the Bidder 1 LOI on discussing a possible sale of the Company with other parties during the exclusivity period granted to Bidder 1, subject to Bidder 1’s approval, the Board authorized and instructed management of the Company to make a public announcement that the Company was engaged in exclusive discussions regarding the possible sale of the Company.

On May 2, 2018, the Company publicly announced that it was in exclusive discussions to sell the Company. The Chairman of the Board of Directors stated that there could be no assurance that a transaction would be consummated, and that the Company did not expect to provide further information or updates pending conclusion of the negotiations.

On May 3, 2018, Bidder 2 reiterated its initial proposal to acquire the Company in a stock for stock transaction in a letter that it sent to the Company.

Following discussions and negotiations with Michael J. Trucano, on May 8, 2018, the Company agreed in principal to sell its South Dakota route operation to Mr. Trucano for $400,000 in cash.

On May 22, 2018, Bidder 1 informed the Company that it had concluded its due diligence and had determined to not to move forward with a transaction with the Company and released the Company from its obligation to negotiate exclusively with Bidder 1 concerning the possible transaction.

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At a meeting of the Board of Directors on May 22, 2018 (the “May 22 Board Meeting”), following the termination of the Bidder 1 LOI, the Board of Directors discussed whether to engage in a broad-based review of the strategic and financial alternatives available to the Company, including, a full range of strategic, operational and financial alternatives, which might include a sale or other transaction, in order to maximize stockholder value (the “Strategic Review Process”). Following that discussion, the Board of Directors unanimously approved the undertaking of the Strategic Review Process. The Board of Directors authorized RCO to contact Bidder 2 and inform it that it no longer was in exclusive discussions to sell the Company and invite Bidder 2 to participate in the Strategic Review Process. The Board of Directors also authorized and instructed RCO to commence contacting other potential parties that the directors, management, and RCO believed might be interested in a potential acquisition of the Company based on their professional judgment and knowledge of the marketplace and previous discussions, and to work with management to prepare a confidential information memorandum concerning the Company and a possible sale of the Company, to be provided to potential bidders once they had signed a customary non-disclosure agreement (the “Confidential Information Memorandum”).

On May 23, 2018, the Company finalized and entered into an Asset Purchase Agreement with Michael J. Trucano to sell its South Dakota route operation (the “SD Route Operation APA”), including all fixtures, equipment, trade names, and operating agreements used in connection with such business, but excluding all cash in excess of  $400,000, to Michael J. Trucano, for $400,000 in cash.

On May 23, 2018, following the execution of the SD Route Operation APA, the Company publicly announced that it was no longer in exclusive discussions to sell the Company and that the Board of Directors had initiated the Strategic Review Process. As part of the process, the Board of Directors stated that it would be considering a full range of strategic, operational, and financial alternatives, which might include a sale or other transaction. The Company cautioned that there could be no assurance that the Strategic Review Process would result in any transaction or strategic alternative, or any assurance as to its outcome or timing. The Company also announced that it had entered into the SD Route Operation APA and had agreed to sell its South Dakota route operation, including all fixtures, equipment, trade names, and operating agreements used in connection with such business, but excluding all cash in excess of  $400,000, to Michael J. Trucano for $400,000 in cash. It stated that this transaction was expected to close on June 30, 2018, subject to the approval of the South Dakota Commission on Gaming.

Throughout the period from May 23, 2018 to August 3, 2018, the Company continued to engage in the Strategic Review Process. RCO, at the direction of the Board of Directors, contacted on behalf of the Company 117 parties to ascertain their interest in a potential acquisition of the Company. Eight of these potential bidders (including Maverick Gaming and Bidder 2) negotiated and executed non-disclosures agreements with the Company in order to receive confidential information of the Company in connection with their evaluation of a potential acquisition. Seven of these bidders, including Maverick Gaming and Bidder 2, were given copies of the Confidential Information Memorandum and access to an electronic data room with certain other diligence materials regarding the Company.

On June 5, 2018, in connection with negotiations concerning the non-disclosure agreement between the Company and Bidder 2, Bidder 2 asked the Company to grant it exclusivity and agree not to engage in discussions with third parties regarding a possible transaction involving a sale of the Company for a period of 14 days. Upon instruction by the Board of Directors, the Company rejected this proposal and the Company subsequently entered into a non-disclosure agreement with Bidder 2 on June 8, 2018, which did not contain an exclusivity provision.

At a meeting of the Board of Directors on June 6, 2018 (“June 6 Board Meeting”), RCO reported to the Board of Directors that Truckee Gaming remained interested in acquiring Club Fortune Casino on the terms previously discussed with the Company. RCO noted that the purchase price under the terms previously discussed by the parties would ratchet downward as a result of Club Fortune Casino’s recent operating results and the formerly agreed upon EBITDA adjustment to the purchase price. The Board of Directors unanimously agreed that a sale of Club Fortune Casino at a favorable price to the Company would be in the best interests of the Company and would likely have a positive effect on the overall Strategic Review Process regardless of whether the Board of Directors ultimately determined to pursue a sale of the Company or to continue to pursue its current business plan, including a possible restructuring of the

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Company, or otherwise. The Board of Directors instructed RCO to notify Truckee Gaming that the Company was prepared to move ahead with the sale of Club Fortune Casino on an expedited basis for $15 million with no upward or downward EBITDA adjustment.

At the June 6 Board Meeting, the Board of Directors also reviewed and discussed with RCO the report that RCO had prepared, at the request of the Board, and provided to the Board in advance of the June 6 Board Meeting, which set forth an analysis of the probable impact, including forecasted stock valuations, of a restructuring of the Company on a stand-alone-basis, assuming the disposition of Club Fortune Casino and the relocation of the Company’s headquarters to the State of Washington.

On June 8, 2018, following negotiations between the Company and Truckee Gaming between June 6, 2018 and June 10, 2018 and consultation with the members of the Board of Directors, the Company and Truckee Gaming, signed a non-binding letter of intent for the sale of Club Fortune Casino for a purchase price equal to $14.6 million, plus or minus net working capital, and plus or minus the amount by which cash transferred to Truckee Gaming would exceed or fall short of  $1.6 million.

The Company entered into non-disclosure agreements with three of its major stockholders (referred to herein as “Stockholder 1”, “Stockholder 2”, and “Stockholder 3”, respectively) on June 12, 2018, June 13, 2018, and June 19, 2018, respectively, in order to permit the Company to share with each of them certain confidential information concerning the Company, including information related to the Strategic Review Process.

Representatives of the Company and RCO engaged in discussions with representatives of Stockholder 1 on June 12, 2018, Stockholder 2 on June 12, 2018, and Stockholder 3 on June 19, 2018. Among other things, the Company discussed with each of them Bidder 1’s decision to cease to pursue a possible transaction with the Company and provided each of them with an update regarding the Strategic Review Process, including the possible sale of the Company, the possible sale of Club Fortune Casino, and the possible restructuring of the Company on a stand-alone-basis, including the possible relocation of the Company’s headquarters from Las Vegas, Nevada to the State of Washington.

On June 20, 2018, after being informed that any sale of the Company would exclude Club Fortune Casino, Maverick Gaming delivered a letter to the Company proposing to acquire all of the outstanding Company Shares for an aggregate cash purchase price of  $40 million (approximately $2.36 per share), subject to due diligence and negotiation and execution of a definitive agreement, and objecting to it being restricted from not making a bid for the entire Company, including Club Fortune Casino, and threatening to speak directly to the Company’s stockholders regarding a possible takeover of the Company and/or to make a takeover offer directly to the Company’s stockholders. In due course, the Company, through its legal counsel, responded to Maverick Gaming, through its legal counsel, and called to its attention its obligations under the non-disclosure agreement between the Company and Maverick Gaming, which included a six month standstill provision and restrictions on its use of confidential information provided by the Company or its representatives to Maverick Gaming and its representatives.

From June 8, 2018 through June 26, 2018, representatives of the Company and Truckee negotiated the terms of the proposed asset purchase agreement and the other definitive transaction documentation related to the proposed sale of the Club Fortune Casino.

At a meeting of the Board of Directors on June 25, 2018, following presentations by RCO and its legal counsel, the Board of Directors unanimously approved the sale of Club Fortune Casino on the terms and conditions set forth in the most recent draft of the asset purchase agreement that had been furnished to the Board of Directors in advance of the meeting.

On June 26, 2018, the Company entered into and publicly announced the signing of the Asset Purchase Agreement dated as of June 26, 2018, by and among Truckee Gaming, Nevada Gold & Casinos LV, LLC, and the Company, to sell Club Fortune Casino to Truckee Gaming for $14.6 million, subject to certain adjustments, including a working capital adjustment. The Company also announced that following the consummation of the sale of Club Fortune Casino, it intended to close its Las Vegas corporate office and move its corporate headquarters to its Washington State office in the Seattle, Washington area.

On June 30, 2018, the Company completed the sale of its South Dakota route operations to Michael J. Trucano in accordance with the terms of the SD Route Operation APA.

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On July 11, 2018, the Company publicly announced that effective upon the closure of the Company’s Las Vegas corporate office and relocation of its headquarters to the Seattle Washington area, Victor Mena, Vice President of the Company’s Washington Operations, would succeed Michael Shaunnessy as President and Chief Executive Officer of the Company. Mr. Mena’s appointment was approved unanimously by the Board of Directors.

On July 19, 2018, Bidder 2 delivered a notice to the Company, in accordance with the advance notice provisions contained in the Company’s bylaws, as to the nomination by Bidder 2 of two nominees for election to the Board of Directors at the 2018 annual meeting of the stockholders of the Company, or any meeting of the stockholders held in lieu thereof, and any adjournments, postponements, reschedulings, or continuations thereof.

On July 23, 2018, representatives of the Company and RCO engaged in discussions with representatives of Stockholder 1, and on July 24, 2018, representatives of the Company and RCO engaged in separate discussions with representatives Stockholder 2 and with Stockholder 3. Representatives of the Company and RCO updated each of them on the status of the Strategic Review Process, including the possible sale of the Company, the offer made by Bidder 2, and discussions concerning a possible transaction with Maverick Gaming and/or Parent, and discussed with each of them the Company’s then current business strategy and possible restructuring of the Company on a stand-alone-basis in the event that the Board of Directors determined that it was not in the best interests of the Company, including its stockholders, to sell the Company at the present time.

On July 24, 2018, the Board of Directors instructed RCO to contact representatives of Bidder 2 and of Parent and Maverick Gaming and solicit from them their best and final proposals. The response from Bidder 2 was not considered adequate by the Board of Directors, while the response of Parent and Maverick Gaming was of interest, subject to the receipt from Parent of a letter of intent that addressed principal transaction terms and availability of financing.

On July 26, 2018, Parent delivered a non-binding letter of intent to the Board of Directors (the “Maverick Letter of Intent”), pursuant to which it proposed to acquire the outstanding shares of common of the Company for $2.50 per share, subject to certain minor adjustments. Included with the proposal was a “highly confidential letter” from Parent’s proposed debt financing source. The letter of intent included a proposed 60-day “no-shop” period during which time the Company would be prohibited from negotiating or entering into any agreement with another party involving the sale of the Company and the parties would use reasonable efforts to negotiate a definitive merger agreement and Parent and its financing sources would complete their due diligence.

At a meeting of the Board of Directors on August 3, 2018 (the “August 3 Board Meeting”), following a presentation by RCO in which it (i) reviewed with the Board of Directors, among other things, (x) the status of the Strategic Review Process and discussions to date with potential bidders for the Company, and (y) Parent’s offer as set forth in the Maverick Letter of Intent, and (ii) provided the members of the Board of Directors with certain information regarding Parent and its proposed financing of the possible transaction, as well as its evaluation of the offered consideration, and due consideration of other strategic and financial alternatives available to the Company, the Board of Directors unanimously approved and authorized the Company to execute the Maverick Letter of Intent and following such execution, to publicly announce that the Company was in exclusive discussion to sell the Company. The Board of Directors also instructed RCO and the Company’s legal counsel to commence negotiations of a definitive merger agreement with Parent.

Following the August 3 Board Meeting, the Company publicly announced that it was in exclusive discussions to sell the Company. The Chairman of the Board of Directors stated that there could be no assurance that a transaction would be consummated, and that the Company did not expect to provide further information or updates pending conclusion of the negotiations.

On August 7, 2018, representatives of the Company delivered an initial draft merger agreement providing for the transaction to representatives of Parent, and on August 23, 2018, representatives of Parent circulated a revised draft merger agreement to representatives of the Company.

On August 14, 2018, the Company entered into a non-disclosure agreement with one of its major stockholders (referred to herein as “Stockholder 4”), in order to allow the Company to share with

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Stockholder 4 certain confidential information concerning the Company, including information related to the Strategic Review Process. On August 14, 2018, following execution of the non-disclosure agreement, representatives of the Company and RCO updated Stockholder 4 on the status of the Strategic Review Process, including the possible sale of the Company, and discussed the Company’s then current business strategy and the possible restructuring of the Company on a stand-alone-basis in the event that the Board of Directors determined that it was not in the best interests of the Company, including its stockholders, to sell the Company at the present time.

On August 28, 2018, representatives of the Company and Parent held a meeting by teleconference to discuss material open issues regarding the draft merger agreement. Among other things, the parties discussed and tentatively agreed upon the size of the termination fee to be payable under certain circumstances by the Company, and the size of the termination fee to be payable under certain circumstances by Parent, in the event of a termination of the merger agreement. The parties also discussed and negotiated, among other things, the conditions to closing, including the form of the legal opinion that Parent wanted to require the Company to deliver at the closing. On August 30, 2018, Hughes Hubbard circulated a revised draft of the merger agreement to representatives of Parent.

On September 5, 2018, representatives of the Company informed Stockholder 1, Stockholder 2, Stockholder 3, and Stockholder 4 in separate discussions of the highest and best offers received to date from Parent and Bidder 2 with respect to the possible sale of the Company. Each of them told the representatives of the Company that they were in favor of proceeding with a transaction with Parent on the terms outlined to each of them.

At a meeting of the Board of Directors on September 6, 2018 (the “September 6 Board Meeting”), RCO, the Company’s Vice President and Chief Regulatory & Compliance Officer, and Hughes Hubbard provided an update to the Board of Directors on the state of the documentation and the process of finalizing outstanding items with Parent related to the proposed sale of the Company to Parent. They reported that the parties were close to finalizing the merger agreement, but noted that the disclosure schedules to the merger agreement still needed to be completed and agreed upon, and that Parent needed to finalize the structure of its debt financing. They reviewed the terms of the proposed merger agreement, including, among other things, the merger consideration and possible minor adjustments thereto, the conditions to closing, the deal protection measures, and the termination rights and fees and the circumstances under which such fees may become payable. They noted that at the signing of the merger agreement, the parties would be entering into an escrow agreement pursuant to which Parent would be required to deposit $2 million in escrow, which would be applied satisfy Parent’s obligation to pay a reverse termination fee under certain circumstances. RCO discussed (i) the contents of the draft of the fairness opinion of RCO to be provided to the Board of Directors on the date of the merger agreement and a related presentation prepared by RCO for the Board of Directors, including the financial aspects of the draft merger agreement and certain financial analyses undertaken by RCO in connection with its draft fairness opinion. Throughout the September 6 Board Meeting, RCO and the Company’s legal advisors responded to questions from the Board of Directors regarding the proposed transaction, including, among other things, the financial analyses undertaken by RCO and the terms of the draft merger agreement.

From September 7, 2018 through September 17, 2018, representatives of the Company and Parent continued to negotiate the terms of the proposed merger agreement and circulate revised drafts and to finalize the disclosure schedules and the other definitive transaction documentation, including an escrow agreement, as well as the form of legal opinion to be delivered by the Company at closing, and Parent’s debt and equity commitment letters.

At a meeting of the Board of Directors on September 17, 2018 (the “September 17 Board Meeting”), RCO and its legal advisors updated the Board of Directors on developments since the September 6 Board Meeting, including finalization of the proposed merger documentation being presented to the Board of Directors for its consideration and approval. RCO reported that prior to the meeting Parent had delivered to the Company copies of signed debt and equity commitment letters, and RCO and legal counsel summarized the terms of such commitment letters. The Board of Directors discussed certain legal matters with its legal counsel and reviewed with them the terms of the proposed merger agreement and the other transaction documents. RCO discussed with the Board of Directors its financial analyses of the merger

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consideration, which had not changed since the September 6 Board Meeting, and rendered to the Board of Directors an oral opinion, which was subsequently confirmed by delivery of a written opinion dated September 18, 2018, to the effect that, as of such date and based upon and subject to various qualifications and assumptions set forth therein, the consideration to be received by the Company’s stockholders pursuant to the merger agreement was fair, from a financial point of view, to the Company’s stockholders (other than Parent, Merger Sub, and their respective affiliates). Throughout the September 17 Board Meeting, RCO and the Company’s legal advisors responded to questions from the Board of Directors regarding the proposed merger agreement and the transactions contemplated thereby, including the merger of Merger Sub with and into the Company. Following additional discussion and deliberation, the Board of Directors unanimously (a) determined that the merger contemplated by the merger agreement was fair to and in the best interests of the Company, including the stockholders of the Company, (b) adopted resolutions approving and declaring the advisability of the merger agreement and the merger and other transactions contemplated by the merger agreement, including the escrow agreement to be entered into in connection therewith. Concurrently with the execution of the merger agreement, upon the terms and subject to the conditions set forth in the merger agreement, pursuant to Chapters 78 and 92A of the Nevada Revised Statutes, and (c) on the terms and subject to the conditions set forth in the merger agreement, resolved to recommend that the Company’s stockholders approve the merger agreement.

On September 18, 2018, (i) the Company, Parent, and Merger Sub executed the Merger Agreement, (ii) the Company, Parent, and Fidelity Title executed the Initial Escrow Agreement, (iii) Parent deposited $2 million into a segregated escrow account, to be held, released, or disposed of by Fidelity Title in accordance with the terms of the Initial Escrow Agreement, and (iv) Parent delivered to the Company copies of executed financing commitments that had been delivered to Parent. Thereafter, on such date, the Company issued a press release announcing the execution of the Merger Agreement. That day, the Company also filed with the SEC a Current Report on Form 8-K relating thereto and including the Merger Agreement as an exhibit.

On November 29, 2018, in order to facilitate and avoid delays associated with obtaining the approvals of the Washington State Gambling Commission required in order to consummate the Merger, (a) the Company and Parent entered into the Securities Purchase Agreement, and pursuant to and in accordance with the terms thereof, the Company issued and sold to Parent the Parent Shares for the Share Purchase Price, (b) the Company, Parent, and the Escrow Agent entered into the Securities Escrow Agreement, pursuant to which all of the Parent Shares were deposited in a segregated escrow account, to be held, released, or disposed of by the Escrow Agent in accordance with the terms of the Securities Escrow Agreement and the Securities Purchase Agreement and Merger Agreement, and (c) the Company, Parent, and Merger Sub entered into Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018, by and among the Company, Parent, and Merger Sub (“Amendment No. 1”). Thereafter, on such date, the Company filed with the SEC a Current Report on Form 8-K relating to the foregoing and including the Securities Purchase Agreement, the Securities Escrow Agreement, and Amendment No. 1, as exhibits. The Board of Directors unanimously approved the Company entering into the Securities Purchase Agreement, the Securities Escrow Agreement, and Amendment No. 1, and consummating the transactions contemplated thereby, prior to their execution by the parties thereto. See “Securities Purchase Agreement and Escrow Deposit”.

Reasons for the Merger

The Board of Directors sought and received input from senior management and advice from the Company’s financial and legal advisors and considered a number of factors in reaching its decision to approve the Merger Agreement and the transactions contemplated by the Merger Agreement, and to recommend that the Company’s stockholders vote “ FOR ” the approval of the Merger Agreement. These factors included, without limitation, the following:

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The value of the Merger Consideration relative to the prospects of the Company’s business plan as an independent company in the context of the Board of Directors’ assessment of the Company’s business, operations, financial position, personnel, competitive positioning, and prospects, and recent industry trends and developments and broader economic and commercial trends affecting the Company’s business and financial results.

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•

The presentations to the Board of Directors made by RCO, the Company’s financial advisor in connection with the Strategic Review Process, and RCO’s oral opinion (confirmed by delivery of a written opinion dated September 18, 2018) to the Board of Directors to the effect that, as of that date and based upon and subject to various qualifications and assumptions set forth therein, the consideration to be received by the Company’s stockholders pursuant to the Merger Agreement was fair, from a financial point of view, to the Company’s stockholders (other than Parent, Merger Sub, and their respective affiliates), as more fully described in “Opinion of the Company’s Financial Advisor” (the full text of the written opinion of RCO is attached as Appendix D to this proxy statement).

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•

The Strategic Review Process (during which 117 potential bidders, including both potential strategic and financial bidders, were contacted by RCO), including the fact that the Company publicly disclosed the Strategic Review Process by press release on May 23, 2018, entered into non-disclosure agreements with and provided confidential information to eight parties in connection with the potential acquisition of the Company.

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The financial aspects and other terms of the final offer received from Parent.

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Business considerations including the short-term and long-term risks and uncertainties of pursuing other strategic options available to the Company, including remaining independent and continuing to implement the Company’s business plan or pursuing other strategic alternatives.

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The Company’s business, current financial condition and results of operations, and future prospects as a stand-alone public entity, including consideration of the risks and uncertainties with respect to (i) achieving the Company’s growth targets in light of the current and foreseeable market conditions, including the risks and uncertainties in the U.S. economy generally and the gaming industry specifically, (ii) general stock market conditions and volatility, including the performance of broad-based stock market indices and exchanges, (iii) governmental regulations affecting the gaming industry, including regulations of labor and employment (including Washington State’s recent minimum wage increase) and Washington State’s lack of limitations on card room licenses, and (v) the “risk factors” set forth in our Form 10-K for the fiscal year ended April 30, 2018.

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The relationship of the Merger Consideration to the historical market prices of the Company Shares.

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The Board of Directors’ judgment, in light of, among other things, the Strategic Review Process, prior negotiations with potential bidders, and the arms-length negotiations with Parent, that the Merger represented the best transaction reasonably available to the Company, including its stockholders.

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The fact that the Merger Consideration is all cash, which provides certainty of value and immediate liquidity to the Company’s stockholders, treats all of the Company’s stockholders on the same basis, and avoids potential long-term business and execution related risks.

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The absence of any financing condition or due diligence condition to completion of the Merger.

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The fact that Parent received an executed debt financing commitment letter from a financing party with significant experience in similar lending transactions, and the fact that Eric Persson provided an equity financing commitment letter to fund, or cause to be funded, $6 million of equity financing.

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The expectation that the conditions to funding set forth in the debt and equity financing commitment letters will be timely met and the financings will be provided in a timely manner, and the obligation of Parent and Merger Sub to use commercially reasonable best efforts to consummate and obtain the proceeds of the financings.

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The fact that the Merger Agreement, subject to specified limitations and requirements, allows the Board of Directors to furnish information to and conduct negotiations with third parties making unsolicited bids under certain circumstances. See “The Merger Agreement — No Solicitation of Alternative Proposals”.

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•

The fact that the Merger Agreement, subject to specified limitations and requirements (including payment by the Company of a termination fee), allows the Board of Directors to terminate the Merger Agreement in order to accept a superior proposal, and the size of the termination fee (which, in the case of a termination by the Company to accept a superior proposal (other than a superior proposal from one of the parties that had entered into a confidentiality agreement with the Company in connection with the Strategic Review Process) would be $1,720,000. See “The Merger Agreement — No Solicitation of Alternative Proposals”, “The Merger Agreement —  Termination”, and No Solicitation of Alternative Proposals”, and “The Merger Agreement — Termination Fees”.

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•

The fact that the Merger Agreement, subject to specified limitations and requirements (including payment by the Company of the applicable foregoing termination fee), allows the Board of Directors to change its recommendation that the Company’s stockholders vote in favor of the approval of the Merger Agreement. See “The Merger Agreement — No Solicitation of Alternative Proposals”, “The Merger Agreement — Termination”, No Solicitation of Alternative Proposals”, and “The Merger Agreement — Termination Fees”.

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Inclusion in the Merger Agreement of a provision obligating Parent and Merger Sub to pay a termination fee to the Company if the Merger Agreement is terminated by the Company under certain conditions, and the size of the termination fee, which is $2 million. See “The Merger Agreement — Termination” and “Merger Agreement — “Termination Fees”.

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The fact that Parent has deposited 890,390 Company Shares into a segregated escrow account to secure its obligation under the Merger Agreement to pay the termination fee payable to the Company in certain circumstances. See “Securities Purchase Agreement and the Escrow Deposit”.

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The Board of Directors’ understanding that the termination fees payable to Parent under the Merger Agreement, and the circumstances under which it is payable, are reasonable in light of the benefits of the Merger, the Strategic Review Process conducted by the Company, the overall terms of the Merger Agreement (including the Merger Consideration), and commercial practice.

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The fact that Parent and Merger Sub generally would be obligated to close the Merger notwithstanding any breaches of the Company’s representations and warranties, unless those breaches would result in a Company Material Adverse Effect (as defined in “The Merger Agreement — Representations and Warranties”).

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The other terms of the Merger Agreement, including the conditions to closing the Merger. See “The Merger Agreement — Conditions to the Merger”.

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The Board of Directors also took into account a number of risks and countervailing factors relating to the Merger Agreement and the proposed Merger, including, without limitation, the following:

•

The Company would no longer exist as an independent company and its stockholders would no longer participate in its future earnings and growth, if any, as an independent company, and will cease to benefit from any increases in the value of the Company Shares.

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There can be no assurance that all conditions to the parties’ obligations to complete the Merger would be satisfied and, as a result, it is possible that the Merger would not be completed even if the Merger Agreement is approved by the Company’s stockholders.

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The risk that the Merger would not occur if Parent does not obtain the requisite financing notwithstanding the absence of a financing condition to the Merger Agreement (but in such case, if certain requirements were met, the Company would be entitled to a termination fee of $2 million).

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If the Merger is not completed, the Company may incur significant risks and costs, including the possibility of negative effects on the market price of the Company Shares, disruption to its operations, diversion of management and employee attention, employee attrition, and potentially negative effects on business and customer relationships.

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•

The possibility that the payment to Parent of the termination fee of  $1,720,000 upon the Company’s acceptance of a superior proposal could discourage other potential bidders from making a competing bid to acquire the Company.

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If the Merger is not completed and the Merger Agreement is terminated, the Company may be required to pay its own fees and expenses associated with the Merger Agreement and the transactions contemplated thereby, including the Merger, and, depending on the circumstances of termination, to pay to Parent the foregoing termination fee and/or to reimburse certain expenses of up to $300,000 incurred by Parent and Merger Sub. See “The Merger Agreement —  Termination Fees”.

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The interests of the Company’s directors and executive officers in the Merger. See “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger”.

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The other potential strategic alternatives available to the Company, some of which could result in a more successful and valuable company.

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The possible diversion of management focus and resources from other potential strategic opportunities and from operational matters while working to implement the Merger, and possible management and employee disruption associated with the Merger.

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•

The gain (if any) upon the receipt of cash in exchange for Company Shares arising from the Merger will be taxable to tax-paying stockholders for United States federal income tax purposes. See “Material United States Federal Income Tax Consequences”.

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The foregoing discussion of the information and factors considered by the Board of Directors is not exhaustive. In view of the variety of factors, both positive and negative, considered in connection with its evaluation of the Merger, the Board of Directors did not find it practicable to, nor did it attempt to, quantify, rank, or otherwise seek to assign relative or specific weight or values to any of these factors, nor did the Board of Directors evaluate whether these factors were of equal importance. Rather, the Board of Directors viewed its determinations as being based on the judgment of its members, in light of the totality of the information considered, including the knowledge of such directors of the Company’s business, financial condition, and prospects and the advice of its financial advisor and legal counsel. In considering the factors described above, individual directors may have given different weights to different factors and may have applied different analyses to each of the material factors considered by the Board of Directors.

Recommendation of the Board of Directors

After careful consideration, the Board of Directors by unanimous vote:

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has determined that the Merger is fair to and in the best interests of the Company, including the Company’s stockholders;

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•

has determined that the Merger Agreement, the Merger, and the other transactions contemplated by the Merger Agreement is advisable;

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•

has approved the Merger Agreement, the Merger, and the other transactions contemplated by the Merger Agreement;

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recommends that the Company’s stockholders vote “ FOR ” the approval of the Merger Agreement;

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recommends that the Company’s stockholders vote “ FOR ” the approval of the Merger-Related Compensation Proposal; and

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recommends that the Company stockholders vote “ FOR ” the approval of the Adjournment Proposal.

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

In considering the recommendation of the Board of Directors with respect to the proposal to approve the Merger Agreement, you should be aware that some of the Company’s directors and executive officers have interests in the Merger that may be different from, or in addition to, the interests of our stockholders generally. These interests, to the extent material, are described below. The Board of Directors was aware of these interests and considered them, among other matters, in approving the Merger Agreement and the Merger. Nothing in this proxy statement should be interpreted as providing any executive officer or director of the Company with an entitlement to any payments or other benefits in excess of the payments or other benefits to which he or she would otherwise be entitled in connection with the Merger pursuant to the terms of these arrangements. The Company’s current named executive officers are Michael P. Shaunnessy (Chief Executive Officer), James D. Meier (Vice President, CFO and Secretary), and Victor H. Mena (Vice President of Washington Operations). Each were named executive officers in the Company’s most recent annual proxy statement. The Company’s one other executive officer is Ernest E. East (Vice President, General Counsel and Compliance Officer).

Treatment of Company Equity Awards

Stock Options .   At the Effective Time, each outstanding Company option (whether vested or unvested) held by an executive officer or non-employee director will be cancelled and, in exchange therefor, converted into the right to receive an amount in cash, if any, equal to the product of  (i) the number of Company Shares issuable upon the exercise of the Company option, multiplied by (ii) the excess, if any, of the Merger Consideration over the exercise price of such Company option (subject to applicable withholdings), with such amount payable promptly following the Effective Time. Any Company option which has an exercise price per share that is greater than or equal to the per share Merger Consideration will be cancelled at the Effective Time for no consideration or payment.

Restricted Shares .   At the Effective Time, each Company restricted share held by an executive officer or non-employee director that is outstanding and unvested shall automatically and without any required action on the part of the holder thereof, be fully vested and free of any restrictions, and, by virtue of the Merger, each Company restricted share shall be treated as a Company share for purposes of the Merger Agreement, including the right to receive the Merger Consideration.

For an estimate of the amounts that would become payable to each of the Company’s executive officers in settlement of his or her equity awards, see the section entitled “— Golden Parachute Compensation”.

Executive Officer Employment Agreements

The Company has employment agreements with each of Messers. Shaunnessey, Meier, Mena, and East. Those agreements provide for severance benefits following a qualifying termination of employment, which are described in further detail below.

If during the term of Mr. Shaunnessy’s employment the Company terminates Mr. Shaunnessy without “cause” (as defined in his employment agreement), Mr. Shaunnessy will be entitled to payment of  (i) his annual base salary for twelve months, paid in installments, (ii) a pro-rata performance bonus, and (iii) accrued but unused vacation as of the date of termination. If Mr. Shaunnessy timely elects continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act of 1986, as amended (“COBRA”), the Company will reimburse Mr. Shaunnessy monthly for the COBRA premiums for such coverage for twelve months from the date of termination (the “Continuation Benefit”). Mr. Shaunnessy may terminate his employment with the Company within 30 days of a “change of control” (as defined in his employment agreement), in which case, Mr. Shaunnessy will be entitled to a lump sum amount equal to (i) twelve months annual salary, (ii) a pro rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. Mr. Shaunnessy will also be entitled to the Continuation Benefit described above. Mr. Shaunnessy must give notice of his intent to terminate his employment within thirty days of the date of the change of control. The Merger will be a change of control for purposes of his employment agreement. According to the terms of his employment agreement, in the event of a termination without “cause” or a termination by executive within thirty days of a change of control, all of

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his unvested options will vest. For purposes of calculating any pro-rata performance bonus, the Company will apply the same percentage of annual base salary applied to the performance bonus paid in the fiscal year proceeding the fiscal year during which the termination became effective, pro-rated for the portion of the fiscal year that transpired prior to the termination. Mr. Shaunnessy is subject to a restriction with respect to (i) non-solicitation of Company management employees for one year following his termination for any reason, and (ii) non-competition with the Company (solely with respect to a voluntary termination or termination with “cause”).

If during the term of Mr. Meier’s employment the Company terminates Mr. Meier without “cause” (as defined in his employment agreement), Mr. Meier will be entitled to payment of  (i) his annual base salary for twelve months, paid in installments, (ii) a pro-rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. If Mr. Meier timely elects continuation coverage pursuant to COBRA, the Company will provide Mr. Meier with the Continuation Benefits described above for 12 months following the date of termination. Mr. Meier may terminate his employment with the Company within 30 days of a “change of control” (as defined in his employment agreement), in which case, Mr. Meier will be entitled to a lump sum amount equal to (i) twelve months annual salary, (ii) a pro rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. Mr. Meier will also be entitled to the Continuation Benefit described above. Mr. Meier must give notice of his intent to terminate his employment within thirty days of the date of the change of control. The Merger will be a change of control for purposes of his employment agreement. According to the terms of his employment agreement, in the event of a termination without “cause” or a termination by executive within thirty days of a change of control, all of his unvested options will vest. For purposes of calculating any pro-rata performance bonus, the Company will apply the same percentage of annual base salary applied to the performance bonus paid in the fiscal year proceeding the fiscal year during which the termination became effective, pro-rated for the portion of the fiscal year that transpired prior to the termination. Mr. Meier is subject to a restriction with respect to (i) non-solicitation of Company management employees for one year following his termination for any reason, and (ii) non-competition with the Company (solely with respect to a voluntary termination or termination with “cause”).

If during the term of Mr. Mena’s employment the Company terminates Mr. Mena without “cause” (as defined in his employment agreement), Mr. Mena will be entitled to payment of  (i) his annual base salary for twelve months, paid in installments, (ii) a pro-rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. If Mr. Mena timely elects continuation coverage pursuant to COBRA, the Company will provide Mr. Mena with the Continuation Benefit described above for 12 months following the date of termination. Mr. Mena may terminate his employment with the Company within 30 days of a “change of control” (as defined in his employment agreement), in which case, Mr. Mena will be entitled to a lump sum amount equal to (i) twelve months annual salary, (ii) a pro rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. Mr. Mena will also be entitled to the Continuation Benefit described above. Mr. Mena must give notice of his intent to terminate his employment within thirty days of the date of the change of control. The Merger will be a change in control for purposes of his employment agreement. According to the terms of his employment agreement, in the event of a termination without “cause” or a termination by executive within thirty days of a change in control, all of his unvested options will vest. For purposes of calculating any pro-rata performance bonus, the Company will apply the same percentage of annual base salary applied to the performance bonus paid in the fiscal year proceeding the fiscal year during which the termination became effective, pro-rated for the portion of the fiscal year that transpired prior to the termination. Mr. Mena is subject to a restriction with respect to (i) non-solicitation of Company management employees for one year following his termination for any reason, and (ii) non-competition with the Company (solely with respect to a voluntary termination or termination with “cause”).

If during the term of Mr. East’s employment the Company terminates Mr. East without “cause” (as defined in his employment agreement), Mr. East will be entitled to payment of  (i) his annual base salary for twelve months, paid in installments, (ii) a pro-rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. If Mr. East timely elects continuation coverage pursuant to COBRA, the Company will provide Mr. East with the Continuation Benefit described above for 12 months following the date of termination. Mr. East may terminate his employment with the Company within 30 days of a “change of control” (as defined in his employment agreement), in which case, Mr. East will be entitled to a lump sum

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amount equal to (i) twelve months annual salary, (ii) a pro rata annual bonus, and (iii) accrued but unused vacation as of the date of termination. Mr. East will also be entitled to the Continuation Benefit described above. Mr. East must give notice of his intent to terminate his employment within thirty days of the date of the change of control. The Merger will be a change in control for purposes of his employment agreement. According to the terms of his employment agreement, in the event of a termination without “cause” or a termination by executive within thirty days of a change in control, all of his unvested options will vest. For purposes of calculating any pro-rata performance bonus, the Company will apply the same percentage of annual base salary applied to the performance bonus paid in the fiscal year proceeding the fiscal year during which the termination became effective, pro-rated for the portion of the fiscal year that transpired prior to the termination. Mr. East is subject to a restriction with respect to (i) non-solicitation of Company management employees for one year following his termination for any reason, and (ii) non-competition with the Company (solely with respect to a voluntary termination or termination with “cause”).

For an estimate of the amounts that would become payable to the Company’s executive officers upon a qualifying termination of employment immediately following consummation of the Merger, see “— Golden Parachute Compensation”.

Golden Parachute Compensation

This section sets forth the information required by Item 402(t) of Regulation S-K regarding the compensation for each named executive officer of the Company, as well as the Company’s one other executive officer, that is based on or otherwise relates to the Merger and that will or may become payable to each such named executive officer and such other executive officer at the Effective Time or on a qualifying termination of employment in connection with the Merger. The “named executive officers” are the individuals listed as such in the Company’s most recent annual proxy statement.

The estimated potential payments in the table below are based on (i) per share Merger Consideration of $2.50, unless otherwise noted; (ii) base salary, target bonus levels, and equity award holdings as of October 31, 2018; (iii) the Merger closing on January 7, 2019 (the assumed date of the closing of the Merger solely for purposes of this golden parachute compensation disclosure); and (iv) a termination of each executive officer by the Company without “cause” or by the executive within thirty days following the consummation of the Merger. Depending on when the Merger occurs, certain equity awards that are now unvested and included in the table below may vest pursuant to the terms of the equity awards based on the completion of continued service with the Company, independent of the Merger. The amounts indicated below are estimates based on multiple assumptions that may or may not actually occur, including assumptions described in this proxy statement, and do not reflect certain compensation actions that may occur before completion of the Merger. As a result, the actual amounts, if any, to be received by an executive officer may materially differ from the amounts set forth below. All dollar amounts have been rounded to the nearest whole dollar.

(1)

The amounts in this column reflect the cash severance payments payable to each of Messrs. Shaunnessy, Meier, Mena, and East in the event of a qualifying termination of employment. Pursuant to the terms of our employment agreements with each of Messers. Shaunnessy, Meier, Mena, and East the amount represents double-trigger cash severance equal to the sum of  (i) annual base salary, (ii) pro rata performance bonus for the year of his termination, and (iii) accrued but unused

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vacation as of October 31, 2018. The date chosen to calculate accrued vacation was chosen solely for purposes of calculating cash severance amounts for this proxy statement. The actual amount paid for accrued vacation will vary depending on the date of termination and the amount of vacation taken, if any, between the date listed above and the actual termination date. The section entitled “— Interests of the Company’s Directors and Executive Officers in the Merger”, provides more information on the payment of cash severance to each of the executive officers, including whether such amount will be paid in lump sum or in installment payments. We use the term “single-trigger” to refer to vesting or payment events that will occur solely as a result of the consummation of the Merger. We use the term “double-trigger” to refer to vesting or payment events that will occur as a result of the occurrence of both the consummation of the Merger and the relevant individual subsequently experiencing a qualifying termination of employment.

(2)

This single trigger payment represents the value of all unvested Company restricted shares that will be fully vested and free of any restrictions, and, by virtue of the Merger, each Company restricted share shall be treated as a Company share for purposes of the Merger Agreement, including the right to receive Merger Consideration.

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(3)

This single trigger payment represents the value of all vested Company options that will be cancelled and converted into the right to receive an amount in cash, if any, equal to the product of  (1) the number of Company Shares issuable upon the exercise of the Company option, multiplied by (2) the excess, if any, of the Merger consideration over the exercise price of such Company option.

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(4)

This double trigger payment represents the value of the medical plan premiums required for COBRA continuation coverage for each of the executive officers and his eligible dependents for one year following termination. These amounts are estimates based on a blended rate for the executive officers, which includes a base COBRA cost and incremental costs for the portion of the premiums that the Company pays. The estimated amounts are given because of certain Health Insurance Portability and Accountability Act of 1996 (HIPAA) privacy regulations and are expected to be close to the true rate for each individual.

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Indemnification and Insurance

The Merger Agreement provides that, after the Effective Time, to the fullest extent permitted by applicable law, Parent will cause the surviving corporation to honor all of all rights to indemnification, advancement of expenses and exculpation now existing in favor of each person who is, or has been, or who becomes prior to the Effective Time, an officer or director of the Company or any of its subsidiaries (each an “Indemnified Party”) provided in the Company’s articles of incorporation and bylaws, in each case, as in

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effect on September 18, 2018, including provisions relating to the advancement of expenses incurred in the defense of any action, suit, or proceeding, or as permitted under applicable law, for a period of not less than six years after the Effective Time.

The Merger Agreement also provides that for six years following the Effective Time, to the fullest extent permitted under applicable law, the surviving corporation shall indemnify, defend, and hold harmless each Indemnified Party against all losses, claims, damages, liabilities, fees, expenses, judgments, and fines arising in whole or in part out of actions or omissions in their capacity as such occurring at or prior to the Effective Time (including in connection with the transactions contemplated by the Merger Agreement), and shall reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such Indemnified Party in connection with investigating or defending any such losses, claims, damages, liabilities, fees, expenses, judgments, and fines as such expenses are incurred, subject to the surviving corporation’s receipt of an undertaking by such Indemnified Party to repay such legal and other fees and expenses paid in advance if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party is not entitled to be indemnified under applicable law; provided , however , that Parent and the surviving corporation will not be liable for any settlement effected without the surviving corporation’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed).

In addition to the surviving corporation’s indemnification obligations described above, prior to the Effective Time, Parent is required to, or to cause the surviving corporation to, purchase a “tail” officers’ and directors’ liability insurance policy, which by its terms will survive the Merger and shall provide each Indemnified Party with coverage for not less than six years following the Effective Time with at least the same coverage and amounts and containing terms and conditions no less favorable to the Indemnified Parties than the terms of the directors’ and officers’ liability insurance policy currently maintained by the Company in respect of actions or omissions of such officers and directors prior to the Effective Time in their capacities as such; provided , however , that in no event will Parent or the surviving corporation be required to expend more than 300% of the current annual premium paid by the Company for such policy to purchase the “tail” policy”; provided , further , however , that if the amount of the annual premiums necessary to procure such insurance coverage exceeds such amount, Parent is required to spend up to such amount to purchase such lesser coverage as may be obtained with such amount.

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FINANCING

The Merger is not conditioned upon the receipt of financing by Parent or Merger Sub. Parent and Merger Sub have obtained debt and equity financing commitments, the proceeds of which, together with other commitments obtained by Parent, will be sufficient to fund the Merger Consideration and other amounts required to be paid pursuant to Article III of the Merger Agreement and to pay all related fees and expenses required to be paid by Parent in connection with the Merger and the related debt and equity financings.

The Debt Commitment Letter

In connection with the execution and delivery of the Merger Agreement, Parent entered into a debt commitment letter dated September 17, 2018 with Nevada State Bank, pursuant which Nevada State Bank committed to provide a $29 million secured term loan facility, subject to the terms and conditions set forth therein. On November 28, 2018, Parent and Maverick Gaming obtained a new debt commitment letter (the “Debt Commitment Letter”) from HG Vora Special Opportunities Master Fund, Ltd. for alternative financing in replacement of the financing contemplated by the debt commitment letter from Nevada State Bank, which provides for a $68 million secured term loan facility, including at least $29 million to be used solely to fund a portion of the Merger Consideration and related expenses (the “Debt Financing”), to be provided by HG Vora Special Opportunities Master Fund, Ltd. or one of its affiliates (“Lender”), subject to the terms and conditions set forth in the Debt Commitment Letter. This commitment is subject to certain conditions specified therein, including (i) the accuracy of the representations and warranties in the Merger Agreement relating to the Company and its subsidiaries and the Merger itself, and the satisfaction (without waiver) of all conditions precedent to the consummation of the Merger set forth in the Merger Agreement, in each case, to the extent that Parent has the right to terminate its obligations under the Merger Agreement or to decline to consummate the Merger (regardless of whether it exercises any such right) as a result of such inaccurate representation or failure of a condition precedent, as applicable, (ii) the execution of definitive loan documentation by an entity to be formed that will wholly own Parent and Maverick Gaming (“Borrower”) and the applicable guarantors, including Maverick Gaming, Parent and Borrower’s other direct and indirect United States subsidiaries, in form and substance satisfactory to Lender, (iii) the execution of definitive acquisition documentation relating to Lender’s acquisition of 9.9% of the outstanding equity in Borrower, (iv) the granting by Borrower and Parent, Maverick Gaming and each of the other applicable guarantors of perfected first priority security interests in the collateral described in the Debt Commitment Letter, (v) the absence of any material adverse change from the date of the Debt Commitment Letter in the loan market or the financial markets in general, (vi) the execution and delivery of non-compete agreements from certain senior personnel, in form and substance satisfactory to Lender, (vii) Parent and Merger Sub having not consented to any waivers to any closing conditions or amendments to the Merger Agreement except as Lender shall deem satisfactory, (ix) the consummation of the Merger substantially concurrently with the borrowings under the Debt Financing, (x) Borrower being the sole direct or indirect owner of Wendover Nugget Hotel & Casino and the Red Garter Hotel & Casino in Wendover, Nevada and, upon the closing of the Merger, the Washington card rooms that are owned by the Company and its subsidiaries, and (xi) other customary conditions precedent.

The Equity Commitment Letter

Parent has received an equity commitment letter, dated September 17, 2018 (the “Equity Commitment Letter”), from Eric Persson. Pursuant to the Equity Commitment Letter, Eric Persson, subject to the terms and conditions set forth therein, has agreed to purchase, or cause to be purchased, $1.5 million of the equity interests of Parent, and to cause certain other investors to purchase, or cause to be purchased, $5.5 million of the equity interests of Parent (the “Equity Financing”), solely for the purpose of allowing Parent to fund pursuant to and in accordance with the Merger Agreement, together with the Debt Financing, the aggregate Merger Consideration and related expenses. The obligation of Eric Persson and each such other investor to purchase, or cause the purchase of, such equity interests is subject to (i) the execution and delivery of the Merger Agreement by the Company; (ii) the satisfaction or waiver by Purchaser of each of the conditions precedent to Parent’s and Merger Sub’s obligations to consummate the Merger set forth in the Merger Agreement (other than conditions precedent that by their nature are to be satisfied at the closing of the Merger, provided that such conditions would reasonably be expected to be

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satisfied at the closing); (iii) the availability of the Debt Financing on the terms and conditions described in the Debt Commitment Letter, as amended or replaced in accordance with the Merger Agreement, and the satisfaction of all of the conditions precedent to the funding of the Debt Financing (other than conditions precedent that by their nature are to be satisfied at the closing of the Debt Financing, provided that such conditions would reasonably be expected to be satisfied at such closing); and (iv) the substantially simultaneous consummation of the closing of the Merger in accordance with the terms of the Merger Agreement.

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SECURITIES PURCHASE AGREEMENT AND ESCROW DEPOSIT

Concurrently with the signing of the Merger Agreement, on September 18, 2018, Parent deposited $2 million in escrow, pursuant to the Escrow Agreement dated as of September 18, 2018 (the “Initial Escrow Agreement”), by and among the Company, Parent, and Fidelity National Title Agency of Nevada, Inc., a Nevada corporation dba Fidelity National Title Group, as escrow agent, to secure Parent’s obligation to pay a termination fee of  $2 million to the Company upon the termination of the Merger Agreement in certain circumstances.

On November 29, 2018, in order to facilitate and avoid delays associated with obtaining the approvals of the Washington State Gambling Commission required in order to consummate the Merger, the Company and Parent entered into a Securities Purchase Agreement dated as of November 29, 2018 (as amended from time to time, the “Securities Purchase Agreement”). Pursuant to the Securities Purchase Agreement, on November 29, 2018, the Company issued and sold to Parent 890,390 Company Shares (the “Parent Shares”), representing 5.0% of the outstanding Company Shares (based on the number of outstanding Company Shares on November 29, 2018, after giving effect to the issuance and sale of the Parent Shares), in a private placement, for $2.42 per share, the closing market price for Company Shares on the last trading day prior to the issuance and sale of the Parent Shares to Parent (and for an aggregate purchase price of  $2,154,743.80 (the “Share Purchase Price”)).

Pursuant to the terms of the Securities Purchase Agreement, Parent has agreed not to sell, assign, dispose of, exchange, pledge, encumber, or otherwise transfer any of the Parent Shares, or any interest therein, except to the Company as described below, and with respect to all matters presented to the Company’s stockholders, Parent has agreed to vote all of the Parent Shares in the same manner and in the same proportion (rounded to the nearest whole share) as Company Shares that are not held by Parent are voted. The Securities Purchase Agreement also contains representations, warranties, and other provisions customary for transactions of this nature.

A portion of the Share Purchase Price was funded by the release of all funds held in escrow ($2,001,085.03) pursuant to the Initial Escrow Agreement. The remaining portion of the Purchase Price ($153,658.77) was paid in cash by Parent (the “Cash Payment”).

In connection with the Securities Purchase Agreement, (i) the Company, Parent, and Mutual of Omaha Bank (the “Escrow Agent”) entered into the Escrow Agreement dated as of November 29, 2018 (as amended from time to time, the “Securities Escrow Agreement”), and (ii) all of the Parent Shares were deposited with the Escrow Agent into a segregated escrow account to secure Parent’s obligations to pay a termination fee of  $2 million to the Company upon the termination of the Merger Agreement in certain circumstances. Such obligation was formerly secured by the funds held in escrow under the Initial Escrow Agreement that were used to pay portion of the Purchase Price for the Parent Shares as described above.

If the Merger is consummated, the Parent Shares will be released to Parent and, like any other Company Shares owned by Parent, will be cancelled and will cease to exist, without any conversion thereof and no payment or distribution will be made with respect thereto pursuant to the Merger Agreement. In the event that the Merger Agreement is terminated prior to the consummation of the Merger under circumstances in which Parent is required to pay a termination fee of  $2 million to the Company, as promptly as practicable (and in any event within two business days) following the date giving rise to the obligation of Parent to pay such fee, (a) Parent will forfeit all of the Parent Shares and they will be released from escrow and delivered to the Company in satisfaction of such fee, and (b) the Company will pay to Parent an amount equal to the Cash Payment. In the event the Merger Agreement is terminated prior to the consummation of the Merger under circumstances in which Parent is not required to pay a termination fee of  $2 million to the Company, as promptly as practicable (and in any event within two business days) following such termination of the Merger Agreement, the Company will be required to purchase all of the Parent Shares from Parent for an amount equal to the Share Purchase Price, and the Parent Shares will be released from escrow and delivered to the Company. See “The Merger Agreement — Termination Fees”.

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In connection with the Securities Purchase Agreement, on November 29, 2018, the Company, Parent, and Merger Sub entered into Amendment No. 1 to Agreement and Plan of Merger dated as of November 29, 2018 (“Amendment No. 1”) to, among other things, amend certain representations, warranties, and covenants set forth in the Merger Agreement so as to permit the Company to enter into the Securities Purchase Agreement and consummate the transactions contemplated thereby, including the issuance and sale of the Parent Shares to Parent, without triggering any violation or breach of such representations, warranties, or covenants. Amendment No. 1 also modified certain provisions of the Merger Agreement to conform with the provisions of the Securities Purchase Agreement related to the disposition of the Parent Shares in the event that the Merger Agreement is terminated prior to the consummation of the Merger.

In addition, as noted above, in connection with the Securities Purchase Agreement, on November 29, 2018, the Company, Parent, and Merger Sub entered into the Securities Escrow Agreement. Pursuant to the terms of the Securities Escrow Agreement, the Escrow Agent agreed to establish the escrow account into which the Parent Shares were deposited and to hold, release, and dispose of the Parent Shares in accordance the terms of the Securities Purchase Agreement and the Merger Agreement described above. The Securities Escrow Agreement contains customary representations, warranties and covenants from the Company, Parent, and the Escrow Agent, and customary indemnification obligations of the Company and Parent in favor of the Escrow Agent.

The foregoing summaries of certain provisions of the Securities Purchase Agreement and the Securities Escrow Agreement, and the transactions contemplated thereby, do not purport to be complete and are subject to and qualified in their entirety by reference to the copies of such agreements attached as Appendix B and Appendix C, respectively, and which are incorporated herein by reference.

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CLUB FORTUNE CASINO SALE

The obligations of the Company, Parent, and Merger Sub to consummate the Merger are subject to the closing of the sale of Club Fortune Casino in accordance with the terms of the Club Fortune Asset Purchase Agreement (the “Club Fortune Casino Sale”) ( provided , that the Company will be deemed to have irrevocably waived this condition in the event that the Company’s or any of its subsidiaries’ breach of the Club Fortune Asset Purchase Agreement has materially contributed to the failure of the Club Fortune Casino Sale to occur). See “The Merger Agreement — Conditions to the Merger.”

The Club Fortune Casino Sale is subject to the satisfaction or waiver of certain conditions set forth in the Club Fortune Asset Purchase Agreement, including the satisfaction or waiver of the following conditions:

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no governmental authority having initiated any action seeking, or having enacted, issued, promulgated, enforced, or entered any order, executive order, stay, decree, resolution, judgment or injunction, or statute, rule, or regulation to prevent or prohibit the consummation of any of the transactions contemplated by Club Fortune Asset Purchase Agreement or to make it illegal for any party thereto to perform its obligations thereunder;

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•

no action, suit, or proceeding having been instituted, that remains pending, against Truckee Gaming, the Company, or Nevada Gold & Casinos LV, LLC, a wholly-owned subsidiary of the Company (“NGC LV LLC”), or their respective affiliates by any unaffiliated third party (other than an governmental authority), which (i) challenges or otherwise seeks to prevent, or would reasonably be expected to materially delay, any of the transactions contemplated by the Club Fortune Asset Purchase Agreement, (ii) would reasonably be expected to result in a material liability for Truckee Gaming, NGC LV LLC, or any of their respective affiliates, (iii) would reasonably be expected to adversely effect in any material respect the ability of Truckee Gaming, the Company, or NGC LV LLC or any of their respective affiliates to perform their obligations under, or consummate any of the transactions contemplated by, the Club Fortune Asset Purchase Agreement, or to operate any of their respective businesses in the State of Nevada, or (iv) would reasonably be expected to subject Truckee Gaming, the Company, or NGC LV LLC or any of their respective affiliates or their respective officers or directors to material liability in relation to any of the transactions contemplated by the Club Fortune Asset Purchase Agreement ( provided , however , in the event any such action, suit, or proceeding has been instituted and remains pending and Truckee Gaming is not willing to waive this condition, then to the extent such waiver is permitted by applicable law, NGC LV LLC may, in its discretion, waive this condition, provided that it and the Company sign an undertaking, in form and substance satisfactory to Truckee Gaming, to jointly and severally indemnify Truckee Gaming, its affiliates, and its and their directors, officers, employees, agents, and representatives, from and against any and all losses, incurred or sustained by, or imposed upon them, resulting from, arising out of, or otherwise incurred in connection with such action, suit, or proceeding); and

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•

all required approvals of the Nevada Gaming Control Board, the Nevada Gaming Commission, and the City of Henderson, Nevada having been obtained and being in full force and effect.

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The obligations of Truckee Gaming to complete the Club Fortune Casino Sale and the other transactions contemplated by the Club Fortune Asset Purchase Agreement is also subject to the satisfaction or waiver of the following conditions:

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the representations and warranties of NGC LV LLC and the Company in the Club Fortune Asset Purchase Agreement (i) that are qualified by materiality, being true and correct in all respects, and (ii) that are not so qualified, being true and correct in all material respects, in each case, on and as of June 26, 2018, and at and as of the closing date of the Club Fortune Casino Sale (except to the extent such representations and warranties speak as of a specific date, which representations and warranties must be true and correct, or true and correct in all material respects, as the case may be, as of such specific date);

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•

the performance by NGC LV LLC and the Company, in all material respects, of all covenants and agreements required to be performed by them at or prior to the closing of the Club Fortune Casino Sale;

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there having been no change, event or condition that, individually or in the aggregate, has had or would reasonably be expected to have a Material Adverse Effect (as defined in the Club Fortune Asset Purchase Agreement);

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receipt by Truckee Gaming of a binding commitment from a nationally recognized title insurance company to issue a title insurance policy with respect to the owned real property on which Club Fortune Casino is located in an amount of no less than $8,071,817.79, subject to standard preprinted tile exceptions and non-monetary encumbrances that do not materially detract from the value of such property as it is currently valued, or materially adversely impact the use and occupancy of such property as it is currently used, and that is not be subject to any monetary encumbrances of public record on such property, and evidence reasonably satisfactory to Truckee Gaming that the issuer of such title commitment is unconditionally prepared to issue a title insurance policy as set forth in such title commitment;

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the receipt of required third party consents to the assignment of certain contracts to be assigned by NGC LV LLC to Truckee (or NGC LV LLC’s agreement to retain and continue to hold such contracts and ensure that Truckee Gaming receives the full benefits of the provisions of such contracts for the duration of their respective terms);

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the receipt of all required consents under the Company’s amended and restated credit agreement with Mutual of Omaha Bank and the related loan documents; and

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EBITDA (as defined in the Club Fortune Asset Purchase Agreement) of Club Fortune Casino for the twelve 12 calendar month period ending April 30, 2018 having been at least $1,716,000 as reflected in NGC LV LLC’s internal unaudited financial statements; and

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the receipt by the Truckee Gaming of certain certificates and other closing documents specified in the Club Fortune Asset Purchase Agreement, including an escrow agreement (the “Club Fortune Escrow Agreement”), pursuant to which 5% of the estimated purchase price (as determined at the time of the closing) will be held in escrow for 12 months to secure indemnification claims, if any, against the Company.

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The obligations of the Company to complete the Club Fortune Casino Sale and the other transactions contemplated by the Club Fortune Asset Purchase Agreement are also subject to the satisfaction or waiver of the following conditions:

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the representations and warranties of Truckee Gaming in the Club Fortune Asset Purchase Agreement (i) that are qualified by materiality being true and correct in all respects, and (ii) that are not so qualified being true and correct in all material respects, in each case, on and as of June 26, 2018, and at and as of the closing date of the Club Fortune Casino Sale (except to the extent such representations and warranties speak as of a specific date, which representations and warranties must be true and correct, or true and correct in all material respects, as the case may be, as of such specific date);

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the performance by Truckee Gaming, in all material respects, of all covenants and agreements required to be performed by it at or prior to the closing of the Club Fortune Casino Sale; and

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the receipt by the Company and NGC LV LLC of certain certificates and other closing documents specified in the Club Fortune Asset Purchase Agreement, including the Club Fortune Escrow Agreement.

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There can be no assurances that the conditions to closing set forth in the Club Fortune Asset Purchase Agreement will be satisfied or waived. The Club Fortune Asset Purchase Agreement may be terminated by Truckee Gaming, on the one hand, or the Company or NG LV LLC, on the other hand, if the Club Fortune Casino Sale has not occurred by March 31, 2019. Assuming the satisfaction of such conditions, as of the date of this proxy statement, the Company expects the transaction to close in early 2019.

The foregoing summary of certain provisions of the Club Fortune Asset Purchase Agreement and the transactions contemplated thereby does not purport to be completed and is subject to and qualified in its entirety by reference to the copy of such agreement attached as an exhibit to the Form 8-K filed by the Company with the SEC on June 27, 2018 and incorporated herein by reference.

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OPINION OF THE COMPANY’S FINANCIAL ADVISOR

The Company retained Rossoff  & Company, LLC (“RCO”) to provide the Board of Directors with financial advisory services in connection with the Merger and an opinion as to the fairness to the holders of shares of Company common stock of the consideration to be received by such holders in connection with a possible merger, sale or other strategic business combination. At the meeting of the Board of Directors on September 17, 2018, RCO rendered its oral opinion to the Board of Directors, confirmed by delivery of a written opinion dated September 18, 2018, to the effect that, as of that date and based upon and subject to various qualifications and assumptions set forth therein, the consideration to be received by the Company’s stockholders pursuant to the Merger Agreement was fair, from a financial point of view, to the Company’s stockholders (other than Parent, Merger Sub, and their respective affiliates).

The full text of the written opinion of RCO, dated September 18, 2018, is attached hereto as Appendix D. The opinion sets forth, among other things, the qualifications and assumptions made, procedures followed, matters considered and limitations on the scope of the review undertaken by RCO in rendering its opinion. The Company encourages you to read the opinion carefully and in its entirety. RCO’s opinion was directed to the Board of Directors and addresses only the fairness, from a financial point of view, of the consideration to be received by the Company’s stockholders pursuant to the Merger Agreement as of the date of the opinion. It does not address any other aspects of the Merger and does not constitute a recommendation as to how any holder of Company Shares should vote on the Merger or any matter related thereto. The summary of the opinion of RCO set forth below is qualified in its entirety by reference to the full text of the opinion.

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

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reviewed a draft, received by RCO on September 17, 2018, of the Merger Agreement;

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reviewed certain publicly available business and financial information relating to the Company that RCO deemed to be relevant;

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reviewed certain information relating to the historical, current and future operations, financial condition, and prospects of the Company made available to RCO by the Company, including (a) financial projections prepared by the management of the Company relating to the Company for the fiscal years ending April 30, 2019 through 2022;

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spoke with certain members of the management of the Company regarding the Company’s businesses, operations, financial condition, and prospects, the Merger, and related matters;

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compared the financial and operating performance of the Company with that of companies with publicly traded equity securities that RCO deemed to be relevant;

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considered the publicly available financial terms of certain transactions that RCO deemed to be relevant;

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reviewed the current and historical market prices of the publicly traded securities of certain other companies that RCO deemed to be relevant;

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discussed the terms of the Merger with the Company and its other advisors;

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compared the proposed financial terms of the Merger with the financial terms of certain other transactions that RCO deemed relevant;

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reviewed the results of the Board’s publicly announced strategic review process begun on May 23, 2018 to evaluate potential strategic alternatives to maximize stockholder value; and

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conducted such other financial studies, analyses and inquiries and considered such other information and factors as RCO deemed appropriate.

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In RCO’s review and analysis and in rendering its opinion, RCO assumed and relied upon, but did not assume any responsibility to independently investigate or verify, the accuracy and completeness of all data, material, and other information that was supplied or otherwise made available by the Company to RCO or that was publicly available (including, without limitation, the information described above), or that was otherwise reviewed by RCO. In its review, RCO relied on assurances of the management of the Company that management was not aware of any facts or circumstances that would make such information inaccurate or misleading. In its review, RCO did not obtain any independent evaluation or appraisal of any of the assets, properties, or liabilities of, nor did RCO conduct a physical inspection of any of the assets, properties or facilities of, the Company. RCO was not furnished with any such evaluations or appraisals and did not assume any responsibility to obtain any such evaluations or appraisals.

With respect to the financial projections provided to and examined by RCO, RCO’s opinion noted that management of the Company had advised RCO, and RCO had assumed, that the projections reviewed by RCO had been reasonably prepared in good faith on bases reflecting the best currently available estimates and judgments of such management as to the future financial results and condition of the Company. RCO assumed that the projections were a reasonable basis on which to evaluate the Company and used and relied upon such information. RCO expressed no view or opinion with respect to the Company’s projections or the assumptions on which they were based.

RCO’s opinion was based on financial, economic, market, and other conditions as in effect on, and the information made available to RCO as of, the date of its opinion. RCO expressly disclaimed any undertaking or obligation to update, revise, reaffirm, or withdraw its opinion, or otherwise comment on or consider events occurring or coming to its attention after the date of its opinion.

RCO relied upon and assumed, without independent verification, that (a) the representations and warranties of all parties to the Merger Agreement and all other related documents and instruments that are referred to therein were true and correct, (b) each party to the Merger Agreement and the other related documents and instruments will fully and timely perform all of the covenants and agreements required to be performed by such party, (c) all conditions to the consummation of the Merger will be satisfied without waiver of any material term, condition, or agreement, and (d) the Merger will be consummated in a timely manner in accordance with the terms described in the Merger Agreement and such other related documents and instruments, without any material amendments or modifications thereto.

RCO also 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 consummation 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 have an adverse effect on the Merger, the Company, or Parent, or any expected benefits of the Merger that would be material to RCO’s analyses or its opinion. In addition, RCO relied upon and assumed, without independent verification, that the final form of the Merger Agreement will not differ in any material respect from the draft of the Material Agreement identified above.

RCO made no independent investigation of any legal or accounting matters affecting the Company, and relied on the assessments by the Board of Directors, the Company, Parent, and their respective advisors, as to all legal, regulatory, accounting, insurance, and tax matters with respect to the Company and the Merger or otherwise. In addition, in preparing its opinion, RCO did not take into account any tax consequences of the transaction to any holder of Company Shares.

RCO’s opinion does not constitute a recommendation as to how any holder of Company Shares should vote on the Merger or any matter related thereto. RCO’s opinion only addressed whether the Merger Consideration to be received by the Company’s stockholders in the Merger pursuant to the Merger Agreement is fair, from a financial point of view, to the Company’s stockholders (other than Parent, Merger Sub, and their respective affiliates) in the manner provided in its opinion and did not address any other aspect or implication of the Merger or any agreement, arrangement, or understanding entered into in connection therewith. RCO’s opinion did not express an opinion as to or otherwise address, among other things: (i) the underlying business decision of the Board of Directors, the Company, Parent, their respective security holders, or any other party to proceed with or effect the Merger, (ii) the terms of any arrangements,

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understandings, agreements, or documents related to, or the form, structure, or any other portion or aspect of the Merger or otherwise (other than the Merger Consideration to the extent expressly specified in RCO’s opinion), (iii) the fairness of any portion or aspect of the Merger to the holders of any class of securities, creditors, or other constituencies of the Company or Parent or to any other party, except if and only to the extent expressly set forth in RCO’s opinion, (iv) the relative merits of the Merger as compared to any alternative business strategies or transactions that might be available for the Company or Parent, or any other party, (v) the fairness of any portion or aspect of the Merger to any one class or group of the Company, Parent, or any other party’s security holders or other constituents vis-à-vis any other class or group of the Company’s, Parent’s, or such other party’s security holders or other constituents (including, without limitation, the allocation of any consideration amongst or within such classes or groups of security holders or other constituents), (vi) whether or not the Company, Parent, their respective security holders, or any other party is receiving or paying reasonably equivalent value in the Merger, (vii) the solvency, creditworthiness, or fair value of the Company, Parent, or any other participant in the Merger, or any of their respective assets, under any applicable laws relating to bankruptcy, insolvency, fraudulent conveyance, or similar matters, or (viii) the fairness, financial or otherwise, of the amount, nature or any other aspect of any compensation to or consideration payable to or received by any officers, directors, or employees of any party to the Merger (other than in their capacity as stockholders of the Company), or any class of such persons, relative to the Merger Consideration or otherwise.

In preparing its opinion, RCO performed a variety of financial and comparative analyses. The preparation of a fairness opinion is a complex process involving various determinations as to the most appropriate and relevant quantitative and qualitative methods of financial analysis and the applications of those methods to the particular circumstances and, therefore, is not necessarily susceptible to partial analysis or summary description. RCO believes that its analyses must be considered as a whole. Considering any portion of RCO’s analyses or the factors considered by RCO, without considering all analyses and factors, could create a misleading or incomplete view of the process underlying the conclusion expressed in RCO’s opinion. In addition, RCO may have given various analyses more or less weight than other analyses, and may have deemed various assumptions more or less probable than other assumptions, so that the range of valuations resulting from any particular analysis described below should not be taken to be RCO’s view of the Company’s actual value. Accordingly, the conclusions reached by RCO are based on all analyses and factors taken as a whole and also on the application of RCO’s own experience and judgment.

In performing its analyses, RCO made numerous assumptions with respect to industry performance, general business, economic, monetary, regulatory, market, and other conditions and other matters, many of which are beyond the Company’s and RCO’s control. The analyses performed by RCO are not necessarily indicative of actual values or actual future results, which may be significantly more or less favorable than suggested by such analyses. In addition, analyses relating to the per share value of Company Shares do not purport to be appraisals or to reflect the prices at which Company Shares may actually be sold. The analyses performed were prepared solely as part of RCO’s analysis of the fairness, from a financial point of view, of the consideration to be received by the Company’s stockholders pursuant to the Merger Agreement, and were provided to the Board of Directors in connection with the delivery of RCO’s opinion.

The following is a summary of the material financial and comparative analyses performed by RCO in connection with RCO’s delivery of its opinion and that were presented to the Board of Directors on September 17, 2018. The financial analyses summarized below include information presented in tabular format. In order to fully understand RCO’s financial analyses, the tables must be read together with the text of each summary. The tables alone do not constitute a complete description of the financial 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 RCO’s financial analyses.

Transaction Overview

Based upon the approximately 17.295 million Company Shares that were outstanding as of July 15, 2018 on a fully diluted basis (calculated using the treasury stock method based on options outstanding), RCO noted that the Merger consideration of  $2.50 per Company Share implied an equity value of approximately $43,238,000. After adding indebtedness and subtracting unrestricted cash and cash

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equivalents as of July 31, 2018, resulting in a net debt amount of approximately $1,600,000, RCO noted that the Merger consideration of  $2.50 per Company Share implied an enterprise value of approximately $44,838,000. RCO also noted that the Merger consideration of  $2.50 per Company Share represented a premium of:

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23% over the closing price per Company Share on July 31, 2018 of  $2.03, the latest full trading day prior to significant movement in the price of the Company Shares, likely due to takeover speculation;

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16% over the closing price per Company Share on August 3, 2018, the last full trading day prior to the Company’s public announcement that it had entered into exclusive negotiations to sell the Company, of  $2.15;

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26% over the volume weighted average price per Company Share, or VWAP, for the 20-trading day period ending July 31, 2018;

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24% over the VWAP for the 40-trading day period ending July 31, 2018; and

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24% over the VWAP for the 60-trading day period ending July 31, 2018

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Small Cap Gaming Sector Trading Multiple Analysis

Using publicly available information and information provided by the Company’s management, RCO analyzed the trading multiples of the Company and the corresponding trading multiples of the following small cap gaming sector companies:

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Monarch Casino & Resorts, Inc.,

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Full House Resorts, Inc., and

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Century Casinos, Inc.

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In its analysis, RCO derived and compared multiples for the Company and the selected small cap gaming sector companies, calculated as follows:

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the enterprise value divided by earnings before interest, taxes, depreciation and amortization, or EBITDA, for the trailing twelve months (“TTM”) as of July 31, 2018, the 2018 fiscal year (“FY2018”), and the 2019 fiscal year (“FY2019”).

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This analysis indicated the following:

Selected Small Cap Gaming Sector Company Multiples

RCO noted that the Company had traditionally traded at a significant discount to its sector, as its assets are located primarily in Washington State, which has no limitation on card room licenses and very low capital requirements for entry. RCO therefore employed for this analysis a multiple range of 6.0x – 6.5x, the range within which the Company had traded in recent years.

Using the reference range for the valuation benchmark set forth below and the Company’s TTM EBITDA, RCO determined implied enterprise values for the Company, then subtracted indebtedness and added unrestricted cash and cash equivalents to determine an implied equity value. After accounting for the vesting of in-the-money stock options (calculated using the treasury stock method), this analysis indicated the following range of implied values per Company Share, on a fully diluted basis, compared to the Merger consideration of  $2.50 per Company Share:

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Selected Small Cap Gaming Sector Company Reference Ranges and Implied Price Ranges

No company in the small cap gaming sector is identical to the Company. In evaluating the selected small cap gaming sector companies, RCO made judgments and assumptions with regard to industry performance, general business, economic, market, and financial conditions and other matters, many of which are beyond the Company’s and RCO’s control. Mathematical analysis, such as determining the mean or median, is not in itself a meaningful method of using selected company data.

Selected Precedent Transactions Analysis

Using publicly available information, RCO examined the following four transactions involving companies in the small cap gaming sector announced since September 2015. The transactions considered and the month and year each transaction was announced were as follows:

Using publicly available estimates for each of these transactions, RCO reviewed the enterprise value as a multiple of the target company’s EBITDA for the trailing 12 months as of the announcement date of such transaction, which is referred to below as “Enterprise Value/TTM EBITDA.”

This analysis indicated the following:

Selected Precedent Transaction Multiples

Using a reference range of 6.5x to 7.0x the Company’s TTM EBITDA as of July 31, 2018, RCO determined an implied enterprise value for the Company, then subtracted indebtedness and added cash and cash equivalents to determine an implied equity value. After accounting for the vesting of in-the-money stock options (calculated using the treasury stock method), this analysis indicated a range of implied values per Company Share of approximately $2.24 to $2.41, compared to the Merger consideration of  $2.50 per Company Share.

No transaction utilized as a comparison in the selected precedent transactions analysis is identical to the Merger. In evaluating the Merger, RCO made numerous judgments and assumptions with regard to industry performance, general business, economic, market, and financial conditions and other matters, many of which are beyond the Company’s and RCO’s control. Mathematical analysis, such as determining the mean or the median, is not in itself a meaningful method of using selected transaction data.

Restructuring and Share Repurchase Analysis

RCO compared the proposed financial terms of the Merger with the financial terms of a potential restructuring and share repurchase of Company Shares using the proceeds of the sale of Club Fortune Casino. Using the pro forma EBITDA for the 2019 fiscal year (“Pro Forma EBITDA”) and a range of multiples of 4.50x to 5.50x (an appropriate range for a company with assets in Washington State only), RCO determined implied enterprise values for the Company of  $23.7 million to $29.0 million. RCO then subtracted expected indebtedness and added expected unrestricted cash and cash equivalents to determine an implied equity value range. Using the proceeds from the sale of Club Fortune Casino of  $14.6 million,

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RCO calculated the number of Company Shares that could be repurchased at of price of  $2.50 per Company Share and calculated the resulting pro forma number of Company Shares. After accounting for the vesting of in-the-money stock options and the number of Company Shares to be repurchased by the Company, this analysis indicated the range of implied values per Company Share, on a fully diluted basis, net of Company Shares to be repurchased, compared to the Merger consideration of  $2.50 per Company Share:

Discounted Cash Flow Analysis

RCO performed a discounted cash flow analysis to estimate the present value of the free cash flows of the Company through the fiscal quarter ending October 31, 2018 based on the average of the Company management’s “best case” and “worst case” financial projections, discount rates ranging from 10% to 11%, which were based on a weighted average cost of capital analysis, and terminal year EBITDA multiples ranging from 4.5x to 5.5x (an appropriate range for a company with assets in Washington State only). To determine the implied total equity value for the Company, RCO subtracted indebtedness from and added unrestricted cash and cash equivalents to the implied enterprise value for the Company. After accounting for the vesting of in-the-money stock options, this analysis indicated a range of implied values per Company Share of approximately $2.19 to $2.38, compared to the Merger consideration of  $2.50 per Company Share.

General

RCO’s opinion was one of many factors taken into consideration by the Board of Directors in making its determination to approve the Merger and should not be considered determinative of the views of the Board of Directors with respect to the Merger or the Merger consideration. The information utilized in preparing this material was obtained from the management of the Company, as well as public sources. Unless otherwise indicated, all estimates and projections have been prepared or provided by Company management. No representations or warranty, express or limited, is made as to the accuracy or completeness of such information and nothing contained herein is, or shall be relied upon as, a representation, whether as to the past or the future.

RCO is an independent investment banking and advisory firm. RCO, as part of its investment banking business, is regularly engaged in the valuation of businesses and securities in connection with mergers and acquisitions, competitive biddings, private placements, financial restructurings and other financial services.

Pursuant to an engagement agreement between the Company and RCO, dated February 14, 2018, the Company agreed to pay RCO a fee in the amount of  $150,000 upon the execution of the engagement agreement, an additional $150,000 upon signing a definitive agreement in connection with a transaction including the sale of all or part of the Company and the delivery by RCO to the Company of a fairness opinion with respect to such transaction and a success fee upon the consummation of such transaction equal to 2.0% of the total consideration paid for part or all off the Company, including assumption of indebtedness, if any. The $150,000 fee due upon the execution of the engagement agreement, the $150,000 fee due upon the singing of a definitive agreement in connection with a transaction including the sale of all or part of the Company, and quarterly retainer fees payable to RCO between February 14, 2018 and December 31, 2018 shall be credited again the success fee. The Company has agreed to reimburse RCO for certain out-of-pocket expenses incurred.

Pursuant to an additional engagement agreement between the Company and RCO, dated March 20, 2018, the Company agreed to pay RCO a success fee upon the consummation of a transaction, defined as one or a series of transactions whereby, directly or indirectly, all or any substantial portion of the Company’s Club Fortune Casino subsidiary, the assets (or any right to all or any substantial portion of the revenues or income) of Club Fortune Casino is acquired by or combined with any person, equal to 2.0% of the total consideration paid for the Company. The Company has agreed to reimburse RCO for certain out-of-pocket expenses incurred.

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RCO has in the past provided financial advisory and/or other financial services to the Company for which RCO has received compensation. Since 2009, the Company has paid RCO a reoccurring quarterly advisory fee of  $25,000 for financial advisory services provided to the management of the Company and the Board of Directors by RCO. The Company has agreed to reimburse RCO for certain documented out-of-pocket expenses incurred.

The Company also has agreed to indemnify RCO against certain liabilities arising out of or in connection with the services rendered and to be rendered by it under its engagement.

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MATERIAL UNITED STATES FEDERAL INCOME TAX CONSEQUENCES

The following is a summary of certain material United States federal income tax consequences of the Merger relevant to beneficial holders of Company Shares whose shares are converted to cash in the Merger. The discussion is for general information purposes only and does not purport to consider all aspects of federal income taxation that might be relevant to a beneficial holder of Company Shares in light of such holder’s particular circumstances. The discussion is based on the Internal Revenue Code of 1986, as amended (the “Code”), proposed and temporary regulations promulgated thereunder, rulings, administrative pronouncements and judicial decisions, all as of the date hereof and each of which is subject to change (possibly on a retroactive basis), which could materially affect the tax consequences described herein. The discussion applies only to beneficial holders of Company Shares in whose hands the Company Shares are capital assets within the meaning of Section 1221 of the Code and does not address beneficial holders who are subject to special rules under the United States federal income tax laws, such as beneficial holders that acquired their shares pursuant to the exercise of employee stock options or other compensation arrangements with the Company, beneficial holders whose functional currency is not the U.S. dollar, persons who hold their Company Shares as part of a hedge, straddle, conversion or other integrated transaction, brokers and dealers in securities or foreign currencies, insurance companies, other financial institutions, regulated investment companies, tax-exempt entities, S corporations and partnerships (and owners of or partners in such entities). In addition, this discussion does not discuss the federal income tax consequences to a beneficial holder of Company Shares who, for United States federal income tax purposes, is a non-resident alien individual, a foreign corporation, a foreign partnership or a foreign estate or trust, nor does it consider the effect of any state, local or foreign tax laws, or the impact of U.S. alternative minimum, net investment income, estate, or gift taxes.

The receipt of cash for Company Shares pursuant to the Merger will be a taxable transaction for United States federal income tax purposes. In general, a beneficial holder who receives cash in exchange for shares pursuant to the Merger will recognize gain or loss for federal income tax purposes equal to the difference, if any, between the amount of cash received (determined before the deduction of any applicable withholding taxes) and the beneficial holder’s adjusted tax basis in the shares surrendered therefor. A beneficial holder’s adjusted tax basis generally will equal the price it paid for its Company Shares. Gain or loss will be determined separately for each block of shares (i.e., shares acquired at the same price per share in a single transaction) surrendered for cash pursuant to the Merger. Such gain or loss will be capital gain or loss, and will be long-term capital gain or loss if the beneficial holder’s holding period for such shares is more than one year at the time of consummation of the Merger. Under current law, long-term capital gains of certain non-corporate taxpayers are taxed at a lower rate than ordinary income. Short-term capital gains are taxed at ordinary income rates. The deductibility of capital losses is subject to limitations.

Backup withholding may apply to cash payments a beneficial holder of shares receives pursuant to the Merger. Backup withholding generally will apply only if the beneficial holder fails to furnish a correct taxpayer identification number or otherwise fails to comply with applicable backup withholding rules and certification requirements. Each beneficial holder should complete and sign the substitute Form W-9 that will be part of the letter of transmittal to be returned to the paying agent in order to provide the information and certification necessary to avoid backup withholding, unless an applicable exemption exists and is proved in a manner acceptable to the paying agent. Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules will be allowable as a refund or credit against a beneficial holder’s United States federal income tax liability provided the required information is furnished to the Internal Revenue Service in a timely manner.

Because individual circumstances may differ, each beneficial holder of Company Shares is urged to consult such beneficial holder’s own tax advisor as to the particular tax consequences of the Merger to such beneficial holder, including the application and effect of federal non-income and state, local, foreign and other tax laws.

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REGULATORY APPROVALS

The consummation of the Merger is subject to the receipt of required approvals of the Washington State Gambling Commission and Washington State Liquor and Cannabis Board, the deregistration of the Company as a public company with the Nevada Gaming Commission, and receipt of required approvals of the Club Fortune Casino Sale of the Nevada Gaming Control Board, the Nevada Gaming Commission, and the City of Henderson, Nevada.

We believe that the notification and waiting period requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”) do not apply to the Merger and that we are not be required to make any filings with the Department of Justice’s Antitrust Division or the Federal Trade Commission (“FTC”) under the HSR Act. However, the FTC and the Antitrust Division frequently scrutinize the legality under the antitrust laws of transactions such as the Merger. At any time before or after the consummation of the Merger, the FTC or the Antitrust Division could take such action under the antitrust laws as it deems necessary or desirable in the public interest, including seeking to enjoin the transaction or seeking the divestiture of substantial assets of Parent, the Company, or their respective subsidiaries. Private parties, state attorneys general, or foreign governmental entities may also bring legal action under antitrust laws under certain circumstances. Based upon an examination of information available relating to the businesses in which Parent, the Company, and their respective subsidiaries are engaged, we believe that the Merger will not violate applicable antitrust laws. Nevertheless, there can be no assurance that a challenge to the Merger on antitrust grounds will not be made or, if such a challenge is made, what the result would be.

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THE MERGER AGREEMENT

This section describes the material terms of the Merger Agreement. The description in this section and elsewhere in this proxy statement is qualified in its entirety by reference to the Merger Agreement, a copy of which is attached to this proxy statement as Appendix A and which is incorporated herein by reference. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. We encourage you to read carefully the Merger Agreement in its entirety.

The Merger Agreement has been included to provide you with information regarding its terms and is not intended to provide any other factual information about the Company, Parent, Merger Sub, or their affiliates. The Merger Agreement contains representations and warranties the parties thereto made to and solely for the benefit of each other. The assertions embodied in the representations and warranties of the Company are qualified by information in a confidential disclosure schedule that the parties have exchanged in connection with signing the Merger Agreement and that modifies, qualifies, and creates exceptions to the representations and warranties of the Company contained in the Merger Agreement. Accordingly, you should not rely on the representations and warranties as characterizations of the actual state of facts, since (i) they were made only as of the date of the Merger Agreement or a prior, specified date, (ii) in some cases they are subject to qualifications with respect to materiality, knowledge, and/or other matters, and (iii) they are modified in important part by the underlying confidential disclosure schedule and previous public filings by the Company. The confidential disclosure schedule contains information that has been included in the Company’s prior public disclosures, as well as non-public information. Moreover, information concerning the subject matter of the representations and warranties may have changed since the date of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.

Effective Time

The effective time of the Merger (the “Effective Time”) will occur at the time that the Company files articles of merger (“the “Articles of Merger”) with the Secretary of State of the State of Nevada with respect to the Merger or such later time as provided in the Articles of Merger and agreed to by Parent and the Company. The closing date will occur as soon as practicable (but in no event later than the tenth day (or if such date is not a business day, the next succeeding business day) following the day on which the last to be satisfied or waived of the conditions set forth in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing, but subject to the fulfillment or waiver of those conditions) have been satisfied or waived in accordance with the Merger Agreement, or such other date as agreed to by the parties.

The Structure

At the Effective Time, Merger Sub will merge with and into the Company. The Company will survive the Merger and continue to exist after the Merger as a wholly-owned subsidiary of Parent. At the Effective Time, the effect of the Merger shall be as provided in the Merger Agreement, the Articles of Merger and the applicable provisions of the Nevada Revised Statutes (the “NRS”). Without limiting the generality of the foregoing and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the surviving corporation, and all liabilities of the Company and Merger Sub shall become the liabilities of the surviving corporation.

Treatment of Stock and Options

Company Common Stock

At the Effective Time, each share of the common stock, par value $0.12 per share, of the Company (each, a “Common Share” and collectively, the “Common Shares”) issued and outstanding immediately prior to the Merger will automatically be converted into the right to receive $2.50 in cash, subject to certain possible adjustments as provided in the Merger Agreement, without interest (the “Merger Consideration”); provided that if the Merger occurs after February 1, 2019, the Merger Consideration will be automatically increased by $0.01 for each month following such date until (and including) the date of the Merger

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(prorated by the number of days for partial months), and net of any taxes required to be withheld therefrom (see “Material United States Federal Income Tax Consequences”), other than Company Shares held in treasury and Company Shares that are owned, directly or indirectly, by a wholly-owned subsidiary of the Company, or Parent or Merger Sub, which Company Shares shall be cancelled and shall cease to exist, without any conversion thereof and no payment or distribution shall be made with respect thereto. The Company Shares that are to be so converted into the right to receive the Merger Consideration are referred to herein as the “Merger Shares.”

All of the Company Shares that convert into the right to receive the Merger Consideration described above will automatically be cancelled and cease to exist. At and as of the Effective Time, each holder of stock certificates representing Merger Shares or uncertificated Merger Shares held of record in book entry form will cease to have any rights with respect thereto, except the right to receive the Merger Consideration.

If, at any time during the period between September 18, 2018 and the Effective Time, the outstanding Company Shares shall have been changed into a different number of shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, split, combination, exchange of shares, or similar transaction, the Merger Consideration shall be appropriately adjusted to reflect fully the effect of such stock dividend, subdivision, reclassification, split, combination, exchange of shares, or similar transaction and to provide the holders of Company Shares the same economic effect as contemplated by the Merger Agreement prior to such event.

Adjustments to the Merger Consideration Related to Club Fortune Casino Sale

If the net working capital and closing cash adjustments (the “Club Fortune Working Capital Adjustment) under the Asset Purchase Agreement dated as of June 26, 2018 (as it may be amended from time to time, the “Club Fortune Asset Purchase Agreement”), by and among Truckee Gaming, LLC (“Truckee Gaming”), Nevada Gold & Casinos LV, LLC, a wholly-owned subsidiary of the Company, and the Company, as preliminarily determined as of the closing of the sale of the Company’s Club Fortune Casino located in Henderson, Nevada (“Club Fortune Casino”) is greater or less than $146,000, then the Merger Consideration shall be increased or decreased by the amount by which the Club Fortune Working Capital Adjustment is greater or less than $146,000, divided by the Fully Diluted Share Number. For purposes of the Merger Agreement, “Fully Diluted Share Number” means (a) the aggregate number of Company Shares outstanding immediately prior to the Effective Time (other than Company Shares held in treasury and each Company Share that is owned, directly or indirectly, by a wholly-owned subsidiary of the Company, Parent or Merger Sub immediately prior to the Effective Time), plus (b) the aggregate number of Company Shares issuable upon the exercise in full of all options to purchase Company Share granted pursuant to the Company’s 2009 Equity Incentive Plan and outstanding immediately prior to the Effective Time (whether vested or unvested), other than options having an exercise price in excess of the Merger Consideration (after giving effect to any adjustment thereof), which shall be excluded from the calculation of the Fully Diluted Share Number, plus (c) the aggregate number of Company restricted shares.

If the Cash Closing Payment (as defined in the Club Fortune Asset Purchase Agreement) exceeds $14.6 million for any reason other than on account of the Club Fortune Working Capital Adjustment, the Merger Consideration will be increased by any amount equal to the excess, divided by the Fully Diluted Share Number.

Treatment of Company Equity Awards

Stock Options .   At the Effective Time, each outstanding Company option (whether vested or unvested) will be cancelled and, in exchange therefor, converted into the right to receive an amount in cash, if any, equal to the product of  (i) the number of Company Shares issuable upon the exercise of the Company option, multiplied by (ii) the excess, if any, of the Merger Consideration over the exercise price of such Company option (subject to applicable withholdings), with such amount payable promptly following the Effective Time. Any Company option which has an exercise price per share that is greater than or equal to the per share Merger Consideration will be cancelled at the Effective Time for no consideration or payment.

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Restricted Shares .   At the Effective Time, each Company restricted share that is outstanding and unvested will automatically and without any required action on the part of the holder thereof, be fully vested and free of any restrictions, and, by virtue of the Merger, each Company restricted share will be treated as a Company Share for purposes of the Merger Agreement, including the right to receive the Merger Consideration.

Exchange and Payment Procedures

On the date of the closing and prior to the filing of the Articles of Merger, Parent is required to deposit or cause to be deposited with the bank or trust company appointed by Parent prior to the Effective Time (and reasonably satisfactory to the Company) to serve as the paying agent (the “Paying Agent”) cash in an amount sufficient to permit payment of the aggregate Merger Consideration to each holder of Company Shares (other than restricted shares), in each case for the benefit of the holders of the Company Shares (other than restricted shares), for payment in accordance with the Merger Agreement through the Paying Agent (the “Payment Fund”). Promptly after the Effective Time, but in any event not more than two business days after the Effective Time, Parent and the surviving corporation will cause the Paying Agent to mail to each holder of record of Merger Shares (other than The Depository Trust Company or its nominee (“DTC”)) as of the Effective Time (and, to the extent commercially practicable, Parent will, or will cause the Paying Agent to, make available for collection by hand, during customary business hours commencing immediately after the Effective Time, if so elected by any such holder) a letter of transmittal and instructions thereto. The letter of transmittal and instructions will explain how affect the surrender of stock certificates representing Merger Shares (“Company Share Certificates”) or uncertificated Merger Shares held of record in book entry form (“Uncertificated Company Shares”) in exchange for the Merger Consideration.

You should not return your stock certificate or certificates with the enclosed proxy card, and you should not forward your stock certificate or certificates to the Paying Agent without a letter of transmittal.

You will not be entitled to receive the Merger Consideration until you surrender to the Paying Agent your Company Share Certificates or Uncertificated Company Shares in compliance with the procedures set forth in the letter of transmittal and instructions thereto, together with a letter of transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions. The DTC upon surrender of the Merger Shares held of record by it in accordance with the customary surrender procedures of the DTC and the Paying Agent, will be entitled to receive as promptly as practicable in exchange for each surrendered Merger Share, the amount of cash the DTC has the right to receive pursuant to the Merger Agreement. No person beneficially owning Company Shares through the DTC will be required to deliver a letter of transmittal to receive the Merger Consideration. Any such Person will receive its Merger Consideration in accordance with the customary payment procedures of the DTC following the Effective Time.

In the event of a transfer of ownership of Merger Shares that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of such Merger Shares may be made to a person or entity other than the person or entity in whose name the Company Share Certificates or the Uncertificated Company Shares so surrendered are registered if such Company Share Certificates shall be properly endorsed or otherwise be in proper form for transfer or such Uncertificated Company Shares shall be properly documented for transfer and the person or entity requesting such payment shall pay any transfer tax or other taxes required by reason of the payment of the Merger Consideration in respect thereof or establish to the reasonable satisfaction of the surviving corporation that such tax has been paid or is not applicable. Until surrendered as contemplated by the Merger Agreement, each Company Share Certificate or Uncertificated Company Share will be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration.

If any Company Share Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the person or entity claiming such Company Share Certificate to be lost, stolen, or destroyed and, if required by the surviving corporation, the posting by such person of a bond, in such reasonable amount as the surviving corporation may reasonably direct, as indemnity against any claim that

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may be made against it with respect to such Company Share Certificate, the Paying Agent will pay in respect of Merger Shares to which such lost, stolen, or destroyed Company Share Certificate relates the Merger Consideration to which the holder thereof is entitled.

At the Effective Time, the stock transfer books of the Company will be closed and there shall be no further registration of transfers of Merger Shares thereafter on the records of the Company. From and after the Effective Time, the holders of Company Share Certificates or Uncertificated Company Shares will cease to have any rights with respect to such shares, except as otherwise provided in the Merger Agreement, the articles of incorporation of the surviving corporation, or by applicable law.

Any portion of the Payment Fund that remains undistributed to the holders of Merger Shares for 12 months after the Effective Time will be delivered to the surviving corporation, upon demand, and any holders of Merger Shares who have not theretofore complied with the Merger Agreement shall thereafter look only to the surviving corporation for, and the surviving corporation shall remain liable for, payment of their claim for the Merger Consideration (and Parent will take all actions necessary to ensure that the surviving corporation has or has access to sufficient funds to make such payments). Any portion of the Exchange Fund remaining unclaimed by holders of Merger Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any governmental authority shall, to the extent permitted by applicable law, become the property of the surviving corporation free and clear of any claims or interest of any person or entity previously entitled thereto. None of Parent, the Paying Agent, or the surviving corporation will be liable to any holder of Merger Shares (or dividends or distributions with respect thereto) or Company options or restricted shares or cash delivered to a public official pursuant to any abandoned property, escheat, or similar law.

The Company, the surviving corporation, Parent, Merger Sub, and the Paying Agent, as applicable, will be entitled to deduct and withhold from the Merger Consideration and any other payment otherwise payable pursuant to the Merger Agreement to any holder of Company Shares or Company options or restricted shares, as applicable, such amounts as it is required to deduct and withhold with respect to the making of such payment under the Internal Revenue Code of 1986, as amended (the “Code”), or any provision of state, local, or foreign tax law in accordance with such tax law. To the extent that amounts are so withheld or paid over to or deposited with the applicable tax authority, such amounts will be treated for all purposes of the Merger Agreement as having been paid to the holder of the Company Shares or Company options or restricted shares, as applicable, in respect of which such deduction and withholding was made by the Company, the surviving corporation, Parent, Merger Sub, or the Paying Agent, as applicable. If any withholding obligation may be avoided by such holder providing information or documentation to the Company, the surviving corporation, Parent, Merger Sub, and the Paying Agent, as applicable, such information will be requested prior to any such withholding and the parties to the Merger Agreement will reasonably cooperate to reduce or eliminate such withholding.

Representations and Warranties

The Company makes various representations and warranties in the Merger Agreement that are subject, in some cases, to exceptions and qualifications. Our representations and warranties relate to, among other things:

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the Company’s due incorporation, valid existence, good standing, and qualification to do business;

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our articles of incorporation and by-laws;

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our subsidiaries;

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our capitalization, including the number of Company Shares and Company options and restricted shares;

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any outstanding contractual obligations of the Company or any of its subsidiaries to repurchase, redeem or otherwise acquire any Company Shares or any other equity securities of the Company, or any voting trusts or other contracts to which the Company or any of its subsidiaries is a party with respect to the voting of any capital stock of, or other equity interest in, the Company or any of its subsidiaries, or any outstanding bonds, debentures, notes, or other indebtedness of the

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Company or any of its subsidiaries that have the right to vote (or are convertible into, or exchangeable for, securities having the right to vote) on any matters on which holders of equity securities in the Company or any of its subsidiaries may vote;

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our corporate power and authority to enter into the Merger Agreement, the Securities Escrow Agreement, and all other agreements and documents contemplated by the Merger Agreement to which we are a party, and to consummate the other transactions contemplated by the Merger Agreement, the Securities Escrow Agreement, and such other agreements and documents (the “Transactions”);

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the required vote of our stockholders in connection with the approval of the Merger Agreement;

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the approval by the Company’s Board of Directors (the “Board of Directors”) of the Merger Agreement and the consummation of the Transactions, including the Merger, and the recommendation by the Board of Directors that the Company’s stockholders vote in favor of approval of the Merger;

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the fact that pursuant to Section 92A.390 of the NRS, no appraisal rights will be available to holders of Company Shares in connection with the Merger;

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the absence of certain specified violations of, or conflicts with, our governing documents and the governing documents of our subsidiaries, applicable laws, or certain agreements as a result of entering into the Merger Agreement, the Securities Escrow Agreement, and all other agreements and documents contemplated thereby, and the consummation of the Transactions;

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the required consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, or filings with, or notifications to, governmental authorities in connection with the execution, delivery, and performance of the Merger Agreement and consummation by us of the Transactions;

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compliance with applicable laws and permits;

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compliance with applicable gaming laws;

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the forms, reports, schedules, registration statements, definitive proxy statements, and other documents required to be filed or furnished by us with or to the Securities and Exchange Commission (the “SEC”) during the period since July 29, 2016 through September 18, 2018 (the “Company SEC Reports”), including the financial statements contained therein;

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the certifications required by Rule 13a-14 or 15d-14 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Sections 302 and 906 of the Sarbanes-Oxley Act, in each case, with respect to the Company SEC Reports, to be made by our principal executive officer and principal financial officer;

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our disclosure controls and procedures and internal controls over financial reporting;

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our compliance with securities laws, current listing and corporate governance requirements of the New York Stock Exchange (the “NYSE”), and all rules, regulations, and requirements of the Sarbanes-Oxley Act and the SEC;

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the absence of certain undisclosed liabilities;

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the absence of a Company Material Adverse Effect (as defined below) and certain other changes or events related to the Company or its subsidiaries since April 30, 2018;

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legal proceedings, settlements, similar agreement, and governmental orders;

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employment and labor matters affecting the Company or its subsidiaries, including matters relating to the Company or its subsidiaries’ employee benefit plans;

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intellectual property;

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taxes;

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environmental matters;

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contracts;

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title to property and assets;

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owned and leased real property, and other tangible assets;

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interested party transactions;

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suppliers;

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insurance policies;

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compliance with applicable anti-corruption and anti-bribery laws;

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this proxy statement;

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the receipt by the Board of Directors of a fairness opinion from Rossoff  & Company, LLC;

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the absence of undisclosed brokerage, finder’s, or other fees or commissions in connection with the Transactions based upon arrangements made by or on behalf of the Company or any of its subsidiaries; and

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actions taken to ensure the inapplicability to the Merger Agreement and the Merger of NRS 78.378 through NRS 78.3793, inclusive, and NRS 78.411 through 78.444, inclusive.

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Some of our representations and warranties in the Merger Agreement are qualified by knowledge, materiality, or “Company Material Adverse Effect” qualifications. For purposes of the Merger Agreement, “Company Material Adverse Effect” means (a) any occurrences, conditions, changes, events, developments, or effects that are (or could reasonably expected to be) materially adverse to the business, assets, financial condition, operations, results of operations, or business prospects of the Company and its subsidiaries taken as a whole, or (b) an effect that prevents or materially impairs the ability of the Company to perform its obligations under the Merger Agreement or consummate the Transactions; provided , however , that for purposes of clause (a) none of the following, either alone or in combination, shall be taken into account in determining whether there has been a Company Material Adverse Effect: (i) general economic or political conditions; (ii) any changes in conditions generally affecting the industries in which the Company and its subsidiaries operate; (iii) any changes in financial, credit, or securities markets in general; (iv) any acts of war (whether or not declared), armed hostilities, or terrorism, or the escalation, de-escalation, worsening, or lessening thereof, or any natural disasters, acts of God, or comparable events; (v) changes or proposed changes in applicable law (other than changes or proposed changes in applicable law that are or could reasonably be expected to be materially adverse to the business and operations of the Company as constituted prior to September 18, 2018, including gaming operations in jurisdictions in which the Company operates) or generally accepted accounting principles in the United States as in effect from time to time (“GAAP”) or in any interpretation thereof; (vi) the announcement of the Merger Agreement or the Transactions; or (vii) the ability or inability of Parent and/or Merger Sub to pay or obtain financing to consummate the Transactions; provided , however , in the case of clauses (i), (ii), (iii), (iv), and (v), except to the extent that the Company and its subsidiaries, taken as a whole, are disproportionately affected relative to other participants in the industries in which the Company and its subsidiaries operate.

The Merger Agreement also contains various representations and warranties made by Parent and Merger Sub that are subject, in some cases, to exceptions and qualifications, including knowledge and materiality qualifications. The representations and warranties relate to, among other things:

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their due organization, valid existence, and good standing;

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the purpose and capitalization of Merger Sub;

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their corporate or limited liability company power and authority to enter into the Merger Agreement, the Securities Escrow Agreement, and all other agreements and documents contemplated by the Merger Agreement to which they are a party, and to consummate the Transactions;

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the absence of certain specified violations of, or conflicts with, their governing documents, applicable laws, or certain agreements as a result of entering into the Merger Agreement, the Securities Escrow Agreement, and all other agreements and documents contemplated thereby, and consummating the Transactions;

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the required consents, approvals, orders, or authorizations of, or registrations, qualifications, designations, or filings with, or notifications to, governmental authorities in connection with the execution, delivery, and performance of the Merger Agreement, and the consummation of the Transactions;

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the information supplied (or to be supplied) in writing by or on behalf of Parent specifically for inclusion or incorporation by reference in this proxy statement;

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legal proceedings and governmental orders;

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the absence of undisclosed brokerage, finder’s, or other fees or commissions in connection with the Transactions based upon arrangements made by or on behalf of Parent or any of its subsidiaries;

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Parent’s financing for the Merger;

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their ownership of Company Shares;

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the licensability of Parent, Merger Sub, and their respective officers, directors, partners, managers, members, principals, or affiliates that will be included in the process of determining the suitability of Parent or Merger Sub for any required gaming approval by any gaming authority; and

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the due diligence conducted by Parent and Merger Sub.

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The representations and warranties in the Merger Agreement of each of the Company, Parent, and Merger Sub will terminate and be of no further force and effect as of the Effective Time.

Conduct of the Company’s Business Pending the Merger

Under the Merger Agreement, the Company has agreed that, subject to certain exceptions, between September 18, 2018 and the Effective Time, unless Parent gives its prior consent (which consent will not be unreasonably withheld, conditioned, or delayed), the Company will, and will cause each of its subsidiaries to, conduct its business in all material respects in the ordinary course consistent with past practice and use its reasonable best efforts to:

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preserve substantially intact the assets and business organization of the Company and its subsidiaries,

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preserve in all material respects the current beneficial relationships they have with any persons or entities (including suppliers, partners, contractors, distributors, sales representatives, customers, licensors, licensees, and governmental authorities) with which they have material business relations, and

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keep available in all material respects the services of their present officers and key employees.

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The Company has also agreed that, during the same time period, subject to certain exceptions, the Company will not, and will cause each of its subsidiaries not to, among other things, take any of the following actions, unless Parent gives its prior written consent (which consent will not be unreasonably withheld, conditioned, or delayed):

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amend the Company’s articles of incorporation or bylaws, or any of the organizational documents of any subsidiary of the Company;

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(i) issue, deliver, sell, grant, dispose of, pledge, or otherwise encumber any shares of capital stock of any class or any other ownership interest of the Company or any of its subsidiaries (the “Company Securities”), or any rights, warrants, options, calls, commitments, or any other agreements to purchase or acquire any Company Securities, or any securities or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for, any Company

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Securities, other than upon the exercise or settlement of Company options or restricted shares outstanding on September 18, 2018 in accordance with their terms as of such date; (ii) adjust, split, combine, subdivide, or reclassify any Company Securities; (iii) enter into any contract with respect to the sale, voting, registration, or repurchase of any Company Securities; or (iv) except as required by the terms of the Merger Agreement, amend or waive any of its rights under, or accelerate the vesting under (except as required by the terms of the Company’s 2009 Equity Incentive Plan), any provision of the Company’s 2009 Equity Incentive Plan or any agreement evidencing any outstanding Company options, or restricted shares, or any similar or related contract;

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directly or indirectly acquire or agree to acquire the equity interest in, or properties or assets of, any person or entity or division or business of any person or entity (other than a wholly-owned subsidiary of the Company), except in any such case (i) in the ordinary course of business consistent with past practice, (ii) to the extent contemplated by the Company’s current annual capital plan made available to Parent (the “Current Annual Capital Plan”), or (iii) pursuant to contracts in force on September 18, 2018;

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sell, pledge, dispose of, transfer, abandon, allow to lapse, or expire, lease, license, mortgage, or otherwise encumber or subject to any lien (other than certain permitted liens), any properties, rights, or assets (including Company Securities), except (i) transfers among the Company and its wholly-owned subsidiaries, (ii) dispositions of obsolete or other assets not used in or not material to the Company or its subsidiaries, (iii) pursuant to contracts in force on September 18, 2018, and (iv) in connection with the sale of Club Fortune Casino in accordance with the terms of the Club Fortune Asset Purchase Agreement (the “Club Fortune Casino Sale”);

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sell, pledge, dispose of, transfer, abandon, allow to lapse or expire, lease, license, mortgage, or otherwise encumber or subject to any lien (other than certain permitted liens), any material intellectual property or property rights owned or leased by the Company or its subsidiaries other than in the ordinary course consistent with past practice;

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declare, set aside, make or pay any dividend or other distribution other than dividends by any direct or indirect subsidiary of the Company only to the Company or any wholly-owned subsidiary of the Company, or redeem, repurchase, or otherwise acquire any of the Company Shares;

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except as required pursuant to applicable law or any employee benefit plan or other contract in accordance with its terms as in effect on September 18, 2018, (i) increase in any material respect the compensation of any of its directors, officers, or employees, except in the ordinary course of business consistent with past practice and not to exceed 10% in the aggregate; (ii) enter into, establish, amend, or terminate, or increase any compensation or benefits under, any employment (other than offer letters to new hires which are terminable at will with no payment of severance), consulting, compensation plan, policy, agreement, or arrangement; (iii) grant any severance or termination benefits to any director, officer, employee, independent contractor, or consultant of the Company or any of its subsidiaries, other than severance or termination pay in the ordinary course of business consistent with past practice for terminated employees in exchange for a general release of claims or other customary covenants; (iv) take any action to accelerate the vesting or payment, or fund or in any other way secure the payment of, material compensation or benefits under any employee benefit plan; (v) enter into, establish, amend, or terminate any employee benefit plan, policy, agreement, or arrangement other than in the ordinary course of business consistent with past practice; or (vi) enter into any, or amend any existing, collective bargaining agreement or other agreement with a labor union, works council or similar organization;

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effect any material reduction in force, lay-off, or other program or effort concerning the termination of employment of employees of the Company or any of its subsidiaries;

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incur, create, assume, or otherwise become liable for any indebtedness, other than advances of expenses to employees in the ordinary course of business consistent with past practice;

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make any material changes in financial accounting methods, principles, or practices (or change an annual accounting period), except as required by GAAP, applicable law, or regulatory guidelines;

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release, assign, compromise, settle, or agree to settle any action, suit, proceeding, or claim that (i) relates to the Merger Agreement or the Transactions, (ii) involves the payment of monetary damages by the Company or its subsidiaries in excess of  $50,000 in the aggregate, or (iii) contemplates, with respect to any non-monetary terms and conditions, any actions that would have a material effect on the continuing operations of the Company and subsidiaries;

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(i) make, change, or revoke any material tax election or adopt or change any method of tax accounting, (ii) enter into any “closing agreement” as described in Section 7121 of the Code (or any comparable or similar provisions of applicable law), (iii) settle or compromise any material liability with respect to taxes or surrender any claim for a refund of a material amount of taxes, (iv) file any amended tax return, or (v) consent to any extension or waiver of the limitations period applicable to any claim or assessment with respect to taxes;

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make or commit to any capital expenditures in excess of  $100,000 in the aggregate that (i) involve the purchase of real property, or (ii) are not budgeted for in the Current Annual Capital Plan;

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(i) enter into or terminate certain material contracts, (ii) materially modify, amend, waive any right under or renew certain material contracts, other than in the ordinary course of business consistent with past practice, (iii) enter into or extend the term or scope of any contract that purports to restrict the Company, or any of its subsidiaries or affiliates or any successor thereto, from engaging or competing in any line of business or in any geographic area, or (iv) enter into any contract which contains a change of control or similar provision that would require a payment to the other party or parties in connection with the consummation of the Transactions, provided that the foregoing will not preclude the Company or its subsidiaries from entering into contracts with customers or suppliers in the ordinary course of business consistent with past practice;

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make any investment in, or loan or advance (other than travel and similar advances to its employees in the ordinary course of business consistent with past practice) in excess of  $25,000 in the aggregate to, any person or entity other than a direct or indirect wholly-owned subsidiary of the Company;

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enter into, amend or cancel any insurance policies other than in the ordinary course of business consistent with past practice, or with respect to any request for a quote or proposal for any directors’ and officers’ liability insurance to be obtained pursuant to the Merger Agreement;

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merge or consolidate the Company or any of its subsidiaries with any person or entity, or adopt a plan of complete or partial liquidation;

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enter into any new material line of business in any geographic area; or

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authorize or enter into any agreement or otherwise make any commitment to do any of the foregoing actions.

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No Solicitation of Alternative Proposals

The Company was required upon the execution of the Merger Agreement to, and to cause its subsidiaries to, and to instruct its representatives to (i) cease and terminate, or cause to be terminated, any and all discussions, solicitations, knowing encouragements or negotiations with any person or entity conducted heretofore with respect to an Acquisition Proposal (as defined below) or any inquiry, proposal or request for information that may reasonably be expected to lead to an Acquisition Proposal, (ii) terminate all physical and electronic data room access previously granted to any such person or entity or such person’s or entities’ representatives, and (iii) request (or, to the extent the Company is contractually permitted to do so, require) the return or destruction of all copies of confidential information previously provided to such persons or entities by or on behalf of the Company, its subsidiaries or representatives.

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Except as provided herein (and in the Merger Agreement), the Company is also required not to, and to cause its subsidiaries not to, and to instruct its representatives not to, directly or indirectly:

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solicit, initiate, cause, knowingly facilitate, or encourage (including by way of furnishing information) the submission of any inquiries, proposals, or offers that constitute or would reasonably be expected to lead to any Acquisition Proposal, or engage in any discussions or negotiations with respect thereto, or enter into any agreement relating to an Acquisition Proposal (other than a confidentiality agreement which contains provisions that are no less favorable in the aggregate to the Company than the confidentiality agreement the Company has entered into with an affiliate of Parent (an “Acceptable Confidentiality Agreement”)), or

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withdraw, modify, or qualify, in a manner adverse to Parent or Merger Sub, the Board of Directors’ recommendation that the Company’s stockholders vote in favor of approval of the Merger Agreement or approval or declaration of the advisability of the Merger Agreement and the Transactions (including the Merger), or approve or recommend, or resolve to, or publicly propose to, approve or recommend, any Acquisition Proposal (an “Adverse Recommendation Change”).

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For purpose of the Merger Agreement, an “Acquisition Proposal” means any inquiry, proposal, offer, or indication of interest for or relating to (in one transaction or a series of related transactions) any of the following: any direct or indirect acquisition or purchase (including by any license or lease) by any person or entity of  (a) assets (including voting equity securities of any of the Company’s subsidiaries, but excluding sales of assets in the ordinary course of business) or businesses of the Company and its subsidiaries that constitute 15% or more of the fair market value of the assets of the Company and its subsidiaries on a consolidated basis or that generate 15% or more of the aggregate revenues or net income of the Company and its subsidiaries on a consolidated basis, or (b) beneficial ownership of 15% or more of any class of voting equity securities of the Company or of any of its subsidiaries, the assets or business of which constitutes 15% or more of the fair market value of the assets of the Company and its subsidiaries on a consolidated basis or that generates 15% or more of the aggregate revenues or net income of the Company and the Company’s subsidiaries on a consolidated basis; provided that the term “Acquisition Proposal” does not include the Transactions or the Club Fortune Casino Sale.

Notwithstanding the foregoing, if at any time prior to approval of the Merger Agreement by our stockholders (i) the Company has received from a third party, a written, bona fide Acquisition Proposal, (ii) a material breach by the Company of the non-solicitation obligations contained in the Merger Agreement and described herein has not contributed to the making of such Acquisition Proposal, (iii) the Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes or is reasonably likely to lead to a Superior Proposal (as defined below), and (iv) after consultation with its outside counsel, the Board of Directors determines in good faith that failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, then the Company may (A) furnish confidential information with respect to the Company and its subsidiaries to the person or entity making such Acquisition Proposal, and (B) participate in discussions or negotiations with such person or entity regarding such Acquisition Proposal; provided , however , that the Company (x) will not, and will instruct its representatives not to, disclose any non-public information to such person or entity unless the Company first enters into an Acceptable Confidentiality Agreement with such person or entity, (y) will promptly (and in any event within 24 hours) provide to Parent notice of its intention to enter into such Acceptable Confidentiality Agreement, and (z) will provide to Parent prior to or substantially concurrent with the time it is provided to such Person any non-public information not previously provided to Parent.

We may also following the receipt of an Acquisition Proposal or an inquiry, proposal, or request for information that may reasonably be expected to lead to an Acquisition Proposal, contact the person or entity that has made such Acquisition Proposal, inquiry, proposal, or request such person or entity to clarify the terms and conditions thereof solely to the extent necessary to enable the Board of Directors to determine whether such Acquisition Proposal, inquiry, proposal, or request constitutes or is reasonably likely to lead to, or result in, a Superior Proposal, and to inform such person or entity of the non-solicitation obligations contained in the Merger Agreement and described herein.

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For purposes of the Merger Agreement, “Superior Proposal” means any bona fide Acquisition Proposal made by any person or entity that:

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if consummated, would result in such person or entity owning, directly or indirectly, more than 50% of the voting equity securities of the Company, or consolidated assets (including voting equity securities of any of the Company’s subsidiaries) or businesses that constitute more than 50% of the assets of the Company and its subsidiaries on a consolidated basis,

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is otherwise on terms that the Board of Directors has determined in good faith (after consultation with its financial advisors and outside counsel and after taking into account such legal, financial, regulatory, and other aspects of the proposal, including the financing terms thereof, as the Board of Directors deems appropriate in the exercise of its fiduciary duties, including the factors outlined in NRS 78.138(4)) is more favorable to the Company from a financial point of view than the Transactions (taking into account the terms of any proposal by the Parent to modify the terms of the Transactions), and

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the Board of Directors has determined in good faith (after consultation with its financial advisors and outside counsel and after taking into account all legal, financial, regulatory, and other aspects of the proposal as the Board of Directors deems appropriate in the exercise of its fiduciary duties) is reasonably capable of being consummated.

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Prior to approval of the Merger Agreement by our stockholders, we are required to promptly (and in any event within 48 hours):

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notify Parent if we or any of our subsidiaries or representatives receives (i) any Acquisition Proposal or indication by any person or entity that it is considering making an Acquisition Proposal, (ii) any request for non-public information in contemplation of an Acquisition Proposal, or (iii) any inquiry or request for discussions or negotiations regarding any Acquisition Proposal, and

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provide Parent with the identity of such person or entity and a copy of such Acquisition Proposal, indication, inquiry, or request (or, if it is not in writing, a written description of the material terms and conditions of such Acquisition Proposal, indication, inquiry, or request), including any modifications thereto.

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We are also required to keep Parent informed on a current basis (and in any event no later than 48 hours after the occurrence of any material changes, developments, discussions, or negotiations) of the status of any Acquisition Proposal, indication, inquiry, or request, and any developments, discussions, and negotiations, and to promptly (and in any event within 24 hours) notify Parent if we determine to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal (and we may not begin providing such information or engaging in such discussions or negotiations prior to providing such notice). In addition, we may not, and must cause our subsidiaries not to, terminate, waive, or modify any provision of, or grant permission or request under, any standstill or confidentiality agreement to which we or any of our subsidiaries is or becomes a party, except if the Board of Directors determines in good faith after consultation with its outside counsel, that the failure to do so would be inconsistent with its fiduciary duties.

Notwithstanding anything to the contrary described above, if  (i) we receive from a third party a written, bona fide Acquisition Proposal, (ii) a material breach by us of the non-solicitation obligations contained in the Merger Agreement and described herein has not contributed to the making of such Acquisition Proposal, and (iii) the Board of Directors determines in good faith, after consultation with its financial advisors and outside counsel, that such Acquisition Proposal constitutes a Superior Proposal, after giving effect to all of the adjustments to the terms of the Merger Agreement which may be offered by Parent, the Board of Directors may at any time prior to approval of the Merger Agreement by our stockholders, if it determines in good faith, after consultation with its outside counsel, that failure to take such action would be inconsistent with its fiduciary duties to the Company’s stockholders under applicable law, (x) effect an Adverse Recommendation Change and/or (y) terminate the Merger Agreement in order to enter into a definitive agreement with respect to such Superior Proposal (provided that in advance of or

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concurrently with such termination we pay a $1.72 million termination fee to Parent in immediately available funds (see “— Termination Fees” below); provided , however , that the Board of Directors may not effect an Adverse Recommendation Change or terminate the Merger Agreement as described above unless:

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we have provided prior written notice to Parent, at least three business days in advance (the “Notice Period”), of our intention to take such action, which notice will specify the material terms and conditions of any such Superior Proposal (including the identity of the party making such Superior Proposal), and will have contemporaneously provided to Parent a copy of any proposed definitive agreement(s) with respect to such Superior Proposal (the “Alternative Acquisition Agreement”),

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if requested in writing by Parent, prior to effecting such Adverse Recommendation Change or terminating the Merger Agreement to enter into an Alternative Acquisition Agreement with respect to such Superior Proposal, we will, and will instruct our representatives to, during the Notice Period, negotiate with Parent in good faith to make such adjustments proposed by Parent to the terms and conditions of the Merger Agreement, and

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following any such negotiation, if any, such Acquisition Proposal continues to constitute a Superior Proposal.

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In the event of any material revisions to the terms of an Acquisition Proposal after the start of the Notice Period, we will be required to deliver a new written notice to Parent and to comply with the requirements described above with respect to such new written notice; provided , however , that, in any such case, the Notice Period shall be two business days instead of three business days, and the Notice Period will be deemed to have re-commenced on the date of such new notice.

Under the terms of the Merger Agreement, we and the Board of Directors may (i) comply with our disclosure obligations under U.S. federal or state law with regard to an Acquisition Proposal, including taking and disclosing to the Company’s stockholders a position contemplated by Rule 14d-9 or Rule 14e-2(a) under the Exchange Act (or any similar communication to the Company’s stockholders), or (ii) making any “stop look and listen” or similar communication to the Company’s stockholders of the type contemplated by Rule 14d-9 under the Exchange Act (or any similar communications to the Company’s stockholders); provided , however , that any such action taken or disclosure made will not limit or modify the effect that any such action or disclosure may have under any provision of the Merger Agreement.

In addition, the Merger Agreement prohibits the Company from taking any action to exempt any person or entity (other than Parent, Merger Sub, and their respective affiliates) from the provisions of “control share acquisitions” contained in any anti-takeover law or otherwise cause such restrictions not to apply, in each case unless such actions are taken simultaneously with a termination of the Merger Agreement prior to approval of the Merger Agreement by the Company’s stockholders in connection with a Superior Proposal as described above.

Access to Information; Financing Cooperation

Until the Merger is effective, subject to certain exceptions and limitations, we have agreed pursuant to the Merger Agreement, upon reasonable notice and subject to applicable laws relating to the exchange of information, to, and to cause our subsidiaries to, and to use reasonable best efforts to cause our and our subsidiaries’ representatives to, (i) give to Parent, Merger Sub, and their authorized representatives (including, subject to Parent’s reimbursement obligations contained in the Merger Agreement and described below, Parent’s financing sources) reasonable access during normal business hours, and in a manner as shall not unreasonably interfere with the business or operations of the Company or any of its subsidiaries, to the offices, properties, plants and other facilities, employees, agents, assets, books, and records of the Company or any of its subsidiaries, and (ii) furnish to Parent, Merger Sub, and their authorized representatives (including, subject to Parent’s reimbursement obligations contained in the Merger Agreement and described below, the Financing Sources) such existing financial and operating data (including tax returns and records) and other existing information as such persons and entities may reasonably request.

Subject to certain exceptions and limitations, we have also agreed, and have agreed to cause our subsidiaries, and to use reasonable best efforts to cause the representatives of the Company and its subsidiaries to, provide Parent with all cooperation reasonably requested by Parent in connection with the

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Debt Financing ( provided , that such requested cooperation is consistent with applicable laws and does not unreasonably interfere with the operations of the Company and its subsidiaries).

Parent will promptly, upon request by the Company, reimburse the Company for all reasonable fees, costs, and expenses incurred by the Company, its subsidiaries, or any of their respective representatives in connection with the Parent’s financing for the Transaction, and will indemnify and hold the Company, its subsidiaries and other affiliates, and their respective representatives harmless from and against any losses, damages, claims, costs, or expenses suffered or incurred by any of them in connection with the arrangement of such financing and any information used in connection therewith.

We will not be required to provide and may withhold any document or information the disclosure of which (i) would reasonably be expected to conflict with, violate, breach or otherwise contravene any applicable law or contract, or (ii) would be reasonably likely to risk a loss of legal privilege (provided that we use our reasonable best efforts to allow for such access or disclosure (or as much as possible) in a manner that would not be reasonably likely to risk a loss of legal privilege). If any material is withheld by us pursuant to the immediately preceding sentence, we are required, to the extent possible without violating any law or contract or risking a loss of legal privilege, to inform Parent as to the general nature of what is being withheld.

Employee Matters

Under the Merger Agreement, the surviving corporation is required to:

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for one year following the Effective Date (or if earlier, the date of the applicable employee’s termination of employment with the surviving corporation or Parent or any affiliate thereof), the surviving corporation will use its best efforts to cause the following to be provided to employees of the Company and its subsidiaries as of the Effective Time (the “Company Employees”) (i) base salary or hourly wage rates, as applicable, that are no less favorable than the Company Employees’ base salary or hourly wage rates, as applicable, in effect immediately prior to the Effective Time, (ii) employee benefits that are substantially comparable to the employee benefits provided to the Company Employees as of immediately prior to the Effective Time, excluding for purposes of this comparison any equity-based compensation, defined benefit plans, retiree medical benefits, and change of control, sale, or similar bonuses provided by the Company and its subsidiaries prior to the Effective Time, and (iii) severance benefits in amounts and on terms and conditions that are no less favorable than those provided to Company Employees immediately prior to the Effective Time;

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use its best efforts to cause the compensation and benefit plans (other than equity-based benefits or arrangements, defined benefit pension benefits, and nonqualified deferred compensation benefits) maintained by Parent, the surviving corporation, or their affiliates for the Company Employees after the Effective Time to treat the service of the Company Employees with the Company and its subsidiaries attributable to any period before the Effective Time as service rendered to Parent, the surviving corporation, or their affiliates following the Effective Time for purposes of eligibility and vesting (and benefits accrual solely for purposes of vacation and severance) under all compensation and benefit plans, to the extent such service was credited under a similar or comparable plan immediately prior to the Effective Time; provided that such crediting of service shall not operate to duplicate any benefit or the funding of any benefit; and

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use its best efforts to establish or maintain, or cause to be established or maintained, one or more group health plans which shall cover all Company Employees and dependents;

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waive (or cause to be waived) any pre-existing condition requirements, evidence of insurability provisions, waiting period requirements, or any similar provisions for any Company Employees under any medical, dental, disability, or life insurance plan maintained or sponsored by or contributed to by Parent, the surviving corporation or its affiliates for the Company Employees after the Effective Time to the extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable plan immediately prior to Effective Time; and

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apply toward any deductible requirements and out-of-pocket maximum limits, under any plans maintained or sponsored by or contributed to by Parent or the surviving corporation or its affiliates for the Company Employees after the Effective Time, amounts paid (or accrued) by each Company Employee under the comparable plans during the calendar year in which the Closing occurs.

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Parent is required to inform us 30 days prior to the closing date if it wishes to continue the employment following the closing of the Merger of any of the senior executive officers of the Company (any such officer selected by Parent to continue his employment will hereinafter be referred to as a “Continuing Officer”). Prior the closing, we are required to cooperate with Parent in its efforts to negotiate new employment arrangements with any Continuing Officers to be effective as of the closing. Any senior executive officer that is not a Continuing Officer and any Continuing Officer that is unable to negotiate a mutually agreeable new employment arrangement with Parent, will resign at closing and receive (i) the change in control severance amounts due under his employment agreement with the Company as in effect on September 18, 2018, which shall be paid in a lump sum at closing, and (ii) continuation health and other benefits for a period of one year following the effective date of termination in accordance with the terms of his employment agreement.

The provisions of the Merger agreement described in this section were included in the Merger Agreement for the sole benefit of the parties to the Merger Agreement and do not create any right in any other person, including any Company Employee. Nothing contained in these provisions will (i) be treated as an amendment or establishment of any particular employee benefit plan or any other benefit or compensation arrangement of Parent, the surviving corporation, or their respective affiliates, (ii) give any third party any right to enforce such provisions, or (iii) require Parent, the surviving corporation, or any of their respective affiliates to (x) maintain any particular employee benefit plan, or (y) retain the employment of any particular employee for any period of time.

Indemnification; Directors’ and Officers’ Insurance

The Merger Agreement provides that, after the Effective Time, Parent will cause the surviving corporation to honor all rights to indemnification, advancement of expenses, and exculpation now existing in favor of each person who is or has been, or who becomes prior to the Effective Time, an officer or director of the Company or any of its subsidiaries (each an “Indemnified Party”) provided in the Company’s articles of incorporation and bylaws, in each case, as in effect on September 18, 2018. In addition, for six years following the Effective Time, the surviving corporation has undertaken certain indemnification obligations with respect to each Indemnified Party. The Merger Agreement also requires Parent to, or to cause the surviving corporation to, purchase a “tail” officers’ and directors’ liability insurance policy, which by its terms will survive the Merger and will provide each Indemnified Party with coverage for not less than six years following the Effective Time; provided , however , that in no event will Parent or the surviving corporation be required to expend more than 300% of the current annual premium paid by the Company for such policy to purchase the “tail” policy”; provided , further , however , that if the amount of the annual premiums necessary to procure such insurance coverage exceeds such amount, Parent is required to spend up to such amount to purchase such lesser coverage as may be obtained with such amount. See “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger” and “— Indemnification and Insurance” for a more detailed discussion of these obligations.

Further Action; Efforts; Regulatory Approvals

Prior to the Effective Time, the Company has agreed to use its reasonable best efforts to obtain any consents, approvals, or waivers of third parties with respect to any contracts to which the Company or any of its subsidiaries is a party as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any contract as a result of the execution, performance, or consummation of the Transactions, provided , however , the Company may not, without the prior written consent of Parent, proffer or agree to grant or make any material concession or incur or assume any additional material liability with any contract counterparty or any of its affiliates in order to obtain any consent sought under any contract.

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Subject to the terms and conditions of the Merger Agreement, prior to the Effective Time, the Company, Parent, and Merger Sub are each required, as promptly as practicable, to use its reasonable best efforts to take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper, or advisable under applicable law to consummate the Transactions. In furtherance thereof, each party must, among other things, prior to the Effective Time, (i) use reasonable best efforts to obtain all required gaming approvals, (ii) make or cause to be made all necessary filings, and thereafter make or cause to be made any other required submissions with respect to the Merger Agreement and the Transactions, (iii) schedule and attend (or cause to be scheduled and attended) any hearings or meetings with gaming authorities necessary to obtain all required gaming approvals as promptly as practicable, and (iv) cooperate and consult with each other in determining which other filings, if any, are required to be made with, and which other material consents, approvals, permits, notices, or authorizations, if any, are required to be obtained prior to the Effective Time from, governmental authorities, and timely make or seek all such filings, consents, approvals, permits, notices, or authorizations.

In connection with the efforts described above, each of the Company, on the one hand, and Parent and Merger Sub, on the other hand, have agreed to (i) cooperate with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) subject to applicable laws, supply the other with any information that may be reasonably required in connection with the foregoing, (iii) keep each other reasonably informed of any communication received from, or given by, such party to any governmental authority, and of any communication received or given by such party in connection with any proceeding by a private party, regarding the Transactions, and (iv) permit the other party to review any communication given by it to, and consult with each other in advance of any meeting or conference with, any governmental authority or, in connection with any proceeding by a private party, with any other person or entity, and to the extent permitted by such governmental authority or other person or entity, give the other party the opportunity to attend and participate in such meetings and conferences.

Subject to the limitations set forth in the Merger Agreement, if any objections are asserted with respect to the Transactions under any applicable law or if any action, suit, or proceeding is instituted (or threatened to be instituted) by any governmental authority or private party challenging any of the Transactions as violative of any law or which would otherwise prohibit, prevent, restrict, materially impede, or materially delay the consummation of the Transactions, the Company, Parent, and Merger Sub are each required to use its reasonable best efforts to resolve any such objections or actions, suits, or proceedings so as to permit consummation of the Transactions, and in the event that any action, suit, or proceeding is instituted (or threatened to be instituted) by a governmental authority or private party challenging the Merger or any of the other Transactions, to cooperate with each other and to use its reasonable best efforts to contest and resist any such action, suit, or proceeding, and to have vacated, lifted, reversed, or overturned any order, whether temporary, preliminary, or permanent, that is in effect and that prohibits, prevents, or restricts the consummation of the Merger or any of the other Transactions.

However, notwithstanding the foregoing, Parent, Merger Sub, and their respective affiliates are not obligated to agree to, and without the prior written consent of Parent, the Company and its subsidiaries are not permitted to, (i) sell, hold separate, or otherwise dispose of all or a portion of its respective business, assets, or properties, or conduct its business in a specified manner, other than the Club Fortune Casino Sale, (ii) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any contract any accommodation or other concession, (iii) limit in any manner whatsoever the ability of such entities to conduct, own, operate, or control any of their respective businesses, assets, or properties or of the businesses, properties or assets of the Company and its subsidiaries, or (iv) waive any of the conditions to the obligations of the parties to effect the Merger set forth in the Merger Agreement.

Financing Activities

Parent has agreed to use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and obtain the proceeds of all financing needed by Parent to consummate the Transactions (the “Financing”), including (i) the equity commitment letter and debt commitment letter (the “Financing Commitments”) described above in the section entitled “Financing” closing on the terms and subject only to the conditions set forth in the

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Financing Commitments, including using reasonable best efforts to negotiate and enter into definitive agreements with respect to the Financing on the terms and subject only to the conditions set forth in the Financing Commitments or, subject to the terms of the Merger Agreement, on other terms reasonably satisfactory to Parent, and satisfy on a timely basis all conditions in the Financing Commitments and the definitive agreements related thereto that are within its control (or, if necessary or deemed advisable by Parent, seek the waiver of conditions applicable to Parent contained in the Financing Commitments or such definitive agreements related thereto). Parent may not agree to, permit, or otherwise consent to certain amendments of, supplements or modifications to, or waivers under, the Financing Commitments or the definitive agreements relating to the Financing without our prior written consent, which may not unreasonably be withheld or delayed, including amendments, supplements, modifications, or waivers that would reasonably be expected to prevent or materially delay the closing of the Merger or the ability of Parent to consummate the Transactions.

If any of the Financing or either of the Financing Commitments (or any definitive financing agreement relating thereto) expire or are terminated or otherwise become, or is reasonably expected to become, unavailable prior to the closing of the Merger, Parent has agreed to (i) promptly notify us thereof (and the reason for any such unavailability), and (ii) use its reasonable best efforts promptly to arrange for and obtain alternative financing from other sources on terms and conditions not materially less favorable, taken as a whole, to Parent than the terms and conditions of the Financing contained in such Financing Commitment to replace the Financing contemplated by such expired or terminated or unavailable Financing Commitment (“Alternative Financing”);

Parent has also agreed to (i) give us prompt written notice of any material breach or default (or any event or circumstance that, with or without notice, lapse of time or both, would reasonably be expected to result in a material breach or default) by any party to either Financing Commitment of which Parent becomes aware, and of the receipt of any written notice or other written communication from any person or entity with respect to any material dispute or disagreement between or among any parties to either Financing Commitment, (ii) keep us informed on a reasonably current basis in reasonable detail of the status of its efforts to arrange and consummate the Financing, and (iii) provide to us copies of executed copies of the definitive documents related to the Financing (provided that any fee letters, engagement letters, or other agreements that, in accordance with customary practice, are confidential by their terms, and that do not affect the conditionality or amount of the Financing, may be redacted in a customary manner so as not to disclose economic terms), and copies of written notices or communications related to any actual or potential breach, default, termination, or repudiation by any party to either of the Financing Commitments, or any material dispute or disagreement between or among any parties to either of the Financing Commitments.

Additional Covenants

The Merger Agreement contains additional covenants regarding the conduct of the parties prior to the Merger, some of which are described below.

Company Stockholders’ Meeting

The Merger Agreement requires us, subject to the terms and conditions of the Merger Agreement, to duly call, give notice of, convene and hold (on a date selected by the Company and reasonably acceptable to Parent) a special meeting of the Company’s stockholders (the “Company Stockholders’ Meeting”) solely for the purpose of obtaining the approval of the Company’s stockholder of the Merger Agreement and the advisory vote required by Rule 14a-21(c) under the Exchange Act in connection therewith. The Company is required, through the Board of Directors, to recommend that the Company’s stockholders vote in favor of approval of the Merger Agreement, and include such Board of Directors recommendation in this proxy statement, except to the extent that the Board of Directors shall have effected an Adverse Recommendation Change as permitted by Merger Agreement and described above (see “— No Solicitation of Alternative Proposals”). We may, without the prior consent of Parent, make one or more successive postponements or adjournments of the Company Stockholders’ Meeting (i) to ensure that any supplement or amendment to this proxy statement required under applicable law is timely provided to Company’s stockholders within a reasonable amount of time, in the good faith judgment of the Board of Directors (after consultation with

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its outside counsel), in advance of the Company Stockholders’ Meeting, (ii) if, on a date for which the Company Shareholders’ Meeting is scheduled, there are insufficient Company Shares represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of such meeting, (iii) if required by applicable law or a request from the SEC or its staff, or (iv) if, on a date for which the Company Stockholders’ Meeting is scheduled, the Company has not received proxies representing a sufficient number of Company Shares to obtain the approval of the Company’s stockholder of the Merger Agreement, whether or not a quorum is present; provided that the duration of any such adjournment or postponement shall be limited to the minimum duration reasonably necessary to remedy the circumstances giving rise to such adjournment or postponement. All other postponements or adjournments will require the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned, or delayed).

Securities Litigation

The Company has agreed to give Parent the opportunity to participate in the defense or settlement of any securityholder litigation against the Company and/or its directors relating to the Transactions, and we may not agree to any such settlement without Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed).

Delisting and Deregistration of Company Common Stock

Prior to the Effective Time, the Company, Parent, and Merger Sub have agreed to cooperate in taking, or causing to be taken, all actions reasonably necessary to delist the Company Shares from the NYSE and terminate the registration of the Company Shares under the Exchange Act as promptly as promptly as practicable after the Effective Time. As a result of such deregistration, the Company will no longer be required to file reports with the SEC or otherwise be subject to the United States federal securities laws applicable to public companies.

Obligations of Merger Sub

Prior to the Effective Time or the termination of the Merger Agreement in accordance with its terms, (a) Merger Sub has agreed it will not, and Parent had agreed it will cause Merger Sub not to, undertake any business or activities other than in connection with the Merger Agreement and engaging in the Merger and the other Transactions, (b) Parent has agreed to take all action necessary to cause Merger Sub to perform its obligations under the Merger Agreement and to consummate the Merger and the other Transactions on the terms and conditions set forth in the Merger Agreement, and (c) Parent and Merger Sub have agreed not to (and Parent has agreed to cause the other affiliates of Parent not to) engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into that could reasonably be expected to materially delay or prevent the consummation of, or otherwise adversely affect, the Merger or any of the other Transactions.

Company Credit Agreement

At or prior to the Effective Time, and subject to the other terms and conditions set forth in the Merger Agreement, the Company is required to (a) apply a portion of the proceeds received by the Company and its subsidiaries from the Club Fortune Casino Sale to pay all indebtedness and other outstanding liabilities payable by the Company and its subsidiaries under its amended and restated credit agreement with Mutual of Omaha Bank (the “Payoff Amount”), and (b) cause the Mutual of Omaha Bank to deliver to the Company a pay-off letter, in form and substance reasonably satisfactory to Parent (the “Payoff Letter”), with respect to the repayment of the Payoff Amount and the release of all liens with respect to the property and assets of the Company and its subsidiaries securing the obligations under such amended and restated credit agreement upon Mutual of Omaha Bank’s receipt of the Payoff Amount.

Other Covenants and Agreements

The Merger Agreement also contains additional covenants, including covenants relating to (1) the filing of this proxy statement, (2) announcements concerning the Merger Agreement or the Transactions, (3) actions related to anti-takeover statutes, (4) notifications to the other party(ies) of certain matters, (5) documents required to be filed or furnished by the Company with or to the SEC prior to the Effective Time, and (6) certain actions related to Section 16 of the Exchange Act.

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Conditions to the Merger

The obligations of the parties to consummate the Merger are subject to the satisfaction or waiver of the following mutual conditions:

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Stockholder Approval.    The approval of the Merger Agreement by our stockholders.

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Approvals.    The receipt of all required approvals of the Washington State Gambling Commission and Washington State Liquor and Cannabis Board to the Transactions, and the deregistration of the Company as a public company with the Nevada Gaming Commission.

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No Injunctions or Restraints; Illegality.    No temporary restraining order, preliminary or permanent injunction, or other order issued by any court of competent jurisdiction or other legal restraint or prohibition preventing the consummation of the Merger being in effect, or any law or order having been enacted, entered, or enforced, and remaining in effect, that prevents or prohibits the consummation of the Merger.

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Club Fortune Casino Sale.    The Club Fortune Casino Sale having been consummated in accordance with the terms of the Club Fortune Asset Purchase Agreement and the Cash Closing Payment Cash under and as defined in the Club Fortune Asset Purchase Agreement, before giving effect to the Club Fortune Working Capital Adjustment, having been no less than $14.6 million ( provided , that the Company will be deemed to have irrevocably waived this condition in the event that the Company’s or any of its subsidiaries’ breach of the Club Fortune Asset Purchase Agreement has materially contributed to the failure of the Club Fortune Casino Sale to occur).

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The obligations of Parent and Merger Sub to effect the Merger are subject to the satisfaction or waiver of the following additional conditions:

•

Representations and Warranties.    The truth and correctness of the Company’s representations and warranties contained in the Merger Agreement at and as of the closing of the Merger (or, if made as of a specific date, at and as of such date), subject to the following qualifications:

​

•

our representations and warranties regarding certain matters relating to our and our subsidiaries’ compliance with applicable gaming laws must be true and correct in all material respects as though made at and as of immediately prior to the Effective Time (or, if made as of a specific date, at and as of such date);

​

•

our representations and warranties regarding certain matters relating to our due incorporation, organization, and qualification, our articles of incorporation and bylaws, our capitalization, our corporate power and authority, the approval by the Board of Directors of the Merger Agreement and the consummation of the Transactions, and its recommendation that the Company’s stockholders vote in favor of approval of the Merger, brokerage, finder’s, or other fees or commissions, and anti-takeover laws must be true and correct in all respects, except for de minimis inaccuracies, as though made at and as of immediately prior to the Effective Time (or, if made as of a specific date, at and as of such date); provided such failures of such representations and warranties to be true and correct do not, in the aggregate, constitute a Company Material Adverse Effect; and

​

•

all of our other representations and warranties must be true and correct (without regard to any qualifications therein as to materiality or Company Material Adverse Effect, other than (i) any materiality or Company Material Adverse Effect qualification that requires (x) the listing of items on the confidential disclosure letter delivered by the Company to Parent and Merger Sub concurrently with the execution of the Merger Agreement, or (y) delivering (or making available) to Parent or Merger Sub copies of items, and (ii) any such qualifications contained in our representations and warranties regarding the absence of a Company Material Adverse Effect and certain other changes or events related to the Company or its subsidiaries since April 30, 2018) as though made at and as of immediately prior to the Effective Time (or, if made as of a specific date, at and as of such date), except for such failures to be true and correct as has not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

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•

Performance of Obligations.    The performance, in all material respects, by the Company of all obligations and agreements in the Merger Agreement to be performed or complied with by the Company at or prior to the closing of the Merger.

​

•

No Company Material Adverse Effect.    There having been no event, occurrence, condition, change, development, state of facts, or circumstance since September 18, 2018 that has had, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.

​

•

Closing Certificate.    The receipt by Parent of a certificate of the Company, dated as of the closing date, signed by the chief executive officer or chief financial officer of the Company to evidence satisfaction of the conditions summarized in the preceding bullet points with respect to the satisfaction of the conditions relating to our representations, warranties, obligations, and agreements, and the absence of the occurrence of any event, occurrence, condition, change, development, state of facts, or circumstance having, or reasonably expected to have, a Company Material Adverse Effect.

​

•

Payment of Payoff Amount.    The delivery by the Company to Parent of evidence, reasonably satisfactory to Parent, of the payment of the Payoff Amount.

​

•

Cash and Cash Equivalents.    The delivery to Parent of evidence, reasonably satisfactory to Parent, that, after giving effect to the payment of the Payoff Amount, the Company and its subsidiaries having as of immediately prior to the Effective Time no less than $7 million of cash and cash equivalents, including all cash and restricted cash on the balance sheets of the Company and its subsidiaries.

​

•

Legal Opinion.    The delivery by the Company to Parent of a legal opinion in substantially the form agreed upon by the parties and attached to the Merger Agreement.

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•

Resignations.    Receipt by Parent and Merger Sub of resignations, effective as of the closing of the Merger, of each director of the Company and each of its subsidiaries.

​

Our obligation to effect the Merger is subject to the satisfaction or waiver of the following additional conditions:

•

Representations and Warranties.    The truth and correctness of Parent’s and Merger Subs’ representations and warranties contained in the Merger Agreement at and as of the closing of the Merger (or, if made as of a specific date, at and as of such date), subject to the following qualifications:

​

•

the representations and warranties of Parent and Merger Sub regarding certain matters relating their due organization and qualification, their corporate or limited liability company power and authority, and brokerage, finder’s, or other fees or commissions, except for de minimis inaccuracies, must be true and correct in all respects, as though made at and as of immediately prior to the Effective Time (or, if made as of a specific date, at and as of such date); and

​

•

all of the other representations and warranties of Parent and Merger Sub must be true and correct at and as of the Closing (without regard to any qualifications therein as to materiality or material adverse effect), as though made at and as of immediately prior to the Effective Time (or, if made as of a specific date, at and as of such date), except for such failures to be true and correct as would not reasonably be expected to prevent, materially impair or materially delay the ability of Parent and Merger Sub to perform their obligations under the Merger Agreement or to consummate the Transactions.

​

•

Performance of Obligations.    The performance, in all material respects, by Parent and Merger Sub of all obligations and agreements contained in the Merger Agreement to be performed or complied with by them at or prior to the closing.

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•

Closing Certificate    The receipt by the Company of a certificate of the Parent, dated as of the closing date, signed by the chief executive officer or chief financial officer of Parent to evidence satisfaction of the conditions summarized in the preceding bullet points with respect to the satisfaction of the conditions relating to Parent’s and Merger Subs’ representations, warranties, obligations, and agreements.

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Termination

The Merger Agreement may be terminated and the Merger and the other Transactions may be abandoned at any time prior to the Effective Time, whether before or after the approval of the Merger Agreement by the Company’s stockholders (unless specifically indicated otherwise), as follows:

•

by mutual written consent of the Company and Parent;

​

•

by either the Company or Parent, if the Effective Time has not occurred on or before April 15, 2019 (the “Outside Date”); provided , however , that this termination right will not be available to a party whose inaccuracy or breach of any representation, warranty, covenant, or agreement set forth in the Merger Agreement has caused, or resulted in, the failure of the Merger to be consummated on or before such date (the “Outside Date Termination Right”);

​

•

by either Parent or the Company, if any governmental authority has (i) enacted, issued, promulgated, or enforced any law that makes consummation of the Merger illegal or otherwise prohibited, or (ii) enacted, issued, promulgated, enforced, or entered any order which has the effect of making the consummation of the Merger illegal or otherwise preventing or prohibiting consummation of the Merger, and such law or order has become final and nonappealable; provided , however , that this termination right will not be available to a party whose breach of any representation, warranty, covenant, or agreement set forth in the Merger Agreement has caused, or resulted in, the issuance, promulgation, or enforcement of such law, or the enactment, issuance, promulgation, enforcement, or entry of any such order;

​

•

by Parent, if prior to the Effective Time, there has been a breach or inaccuracy of any representation, warranty, covenant, or agreement on the part of the Company contained in the Merger Agreement, which breach or inaccuracy would give rise to the failure of the closing condition with respect thereto, and is incapable of being cured or has not been cured prior to the Outside Date; provided that Parent has given the Company at least 10 days written notice prior to such termination stating Parent’s intention to terminate the Merger Agreement pursuant to this termination right; and provided further , that Parent will not have the right to terminate the Merger Agreement pursuant to this termination right if Parent or Merger Sub is then in material breach of any representation, warranty, or covenant of Parent or Merger Sub under the Merger Agreement, that is not cured after 10 days from written notice of such material breach from the Company to Parent (the “Company Material Breach Termination Right”);

​

•

by either Parent or the Company, if the Company Stockholders’ Meeting (including any adjournment or postponement thereof) has concluded, the Company’s stockholders have voted, and the approval of the Merger Agreement by the Company’s stockholders has not been obtained (the “No-Approval Termination Right”);

​

•

by Parent, if  (i) an Adverse Recommendation Change has occurred, or (ii) the Board of Directors or any committee thereof  (A) has not have rejected any Acquisition Proposal within seven days of the making thereof  (including, for these purposes, by taking no position with respect to the acceptance by the Company’s stockholders of a tender offer or exchange offer, which will constitute a failure to reject such Acquisition Proposal), or (B) has failed, pursuant to Rule 14e-2 promulgated under the Exchange Act or otherwise, to publicly reconfirm the Board of Director’s recommendation that the Company’s stockholders approve the Merger Agreement within ten business days after receipt of a written request from the Parent that it do so if such request is made following the making by any person or entity of an Acquisition Proposal (“Change in Recommendation Termination Right”);

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•

by the Company prior to the Effective Time, if there has been a breach or inaccuracy of any representation, warranty, covenant, or agreement on the part of Parent or Merger Sub contained in the Merger Agreement, which breach or inaccuracy would give rise to the failure of the closing condition with respect thereto, and is incapable of being cured or has not been cured prior to the Outside Date; provided that the Company has given Parent at least 10 days written notice prior to such termination stating the Company’s intention to terminate the Merger Agreement pursuant to this termination right; and provided further , that the Company will not have the right to terminate the Merger Agreement pursuant to this termination right if the Company is then in material breach of any representation, warranty, or covenant of the Company under the Merger Agreement, that is not cured after 10 days from written notice of such material breach from Parent to the Company (the “Parent/Merger Sub Material Breach Termination Right”);

​

•

by the Company, prior to obtaining the approval of the Company’s stockholders of the Merger Agreement, as described above in connection with a Superior Proposal (the “Superior Proposal Termination Right”) (see “— No Solicitation of Alternative Proposals”); or

​

•

by the Company, if  (i) all of the conditions of Parent and Merger Sub to effect the Merger have been satisfied or waived (other than those conditions (A) that, by their nature, can only be satisfied or waived at the closing of the Merger, but which would be capable of being satisfied if the closing date were the date of such termination, or (B) that are not satisfied or waived as a result of a breach by Parent or Merger Sub of the Merger Agreement), and (ii) Parent and Merger Sub have failed to consummate the Transactions within two business days after the date on which the closing of the Merger is required to occur under the Merger Agreement (the “Parent/Merger Sub Failure Termination Right”).

​

In some cases, termination of the Merger Agreement pursuant to the above conditions may require us to pay a termination fee to Parent, or require Parent to pay a termination fee to us, as described below under “— Termination Fees”.

Company Termination Fee and Expense Reimbursement

In the following circumstances, the Company will be required to pay to Parent a termination fee of $1.72 million (the “Company Termination Fee”):

•

if the Merger Agreement is terminated by (i) the Company pursuant to the Superior Proposal Termination Right, or (ii) Parent pursuant to the Change in Recommendation Termination Right; or

​

•

if the Merger Agreement is terminated (i) by Parent or the Company pursuant to the Outside Date Termination Right, or by Parent pursuant to the Company Material Breach Termination Right or the No-Approval Termination Right, (ii) at or prior to the date of termination, an Acquisition Proposal has been made known to the Company or has been made directly to the Company’s stockholders generally, or any person or entity has publicly announced an intention to make an Acquisition Proposal (whether or not conditional) and such Acquisition Proposal or publicly announced intention has not been withdrawn prior to such termination, and (iii) concurrently with such termination or within 12 months following such termination, the Company enters into an Alternative Acquisition Agreement to consummate or consummates a transaction contemplated by any Acquisition Proposal (provided that for these purposes, each reference to 15% in the definition of  “Acquisition Proposal” will be replaced with “50%”).

​

In addition, the Company will be required to reimburse Parent for all of the reasonable and documented out-of-pocket costs and expenses actually incurred by Parent and Merger Sub prior to the termination of the Merger Agreement in connection with the Merger Agreement and the Transactions in an amount not to exceed $300,000 (the “Expense Reimbursement”). In the event the Expense Reimbursement is paid and the Company Termination Fee is thereafter payable as described above, the Company Termination Fee otherwise payable will be reduced by the amount of the Expense Reimbursement.

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Except with respect to the termination of the Merger Agreement by the Company pursuant to the Superior Proposal Termination Right, in which case the Company Termination Fee must be paid by the Company in advance of or concurrently with such termination, in the event that the Company Termination Fee or Expense Reimbursement, as applicable, is payable by the Company, the Company Termination Fee or Expense Reimbursement, as applicable, must be paid by the Company in immediately available funds promptly following (and in any event within two business days after) the date of the event giving rise to the obligation to make such payment. In no event will Parent or Merger Sub be entitled to both the payment of the Company Termination Fee and specific performance of the Merger Agreement.

Parent Termination Fee

Parent will be required to pay the Company a termination fee of  $2 million in the event the Merger Agreement is terminated (i) by the Company pursuant to the Outside Termination Date Right at a time when the Company would also have the right to terminate the Merger Agreement pursuant to the Parent/​Merger Sub Material Breach Termination Right or Parent/Merger Sub Failure Termination Right and at the time of such termination, all of the conditions to Parent’s and Merger Sub’s obligations to effect the Merger have been satisfied or waived (other than those conditions (A) that, by their nature, can only be satisfied or waived at the closing of the Merger, but which would be capable of being satisfied if the closing date were the date of such termination, or (B) that are not satisfied or waived as a result of a breach by Parent or Merger Sub of the Merger Agreement), (ii) by the Company pursuant to the Parent/Merger Sub Material Breach Termination Right, or (iii) by the Company pursuant to Parent/Merger Sub Failure Termination Right.

In the event that the Parent Termination Fee is payable by the Parent, (i) Parent will forfeit to the Company all of the Parent Shares in satisfaction of the Parent Termination Fee, and Parent and the Company will promptly (and in any event within two business days) following the date of the event giving rise to the obligation cause the Escrow Agent to release all the Parent Shares held in escrow under the Securities Escrow Agreement to the Company or its designee in accordance with the terms of the Securities Escrow Agreement, and (ii) upon receipt of the Parent Shares, the Company will pay to Buyer an amount equal to $153,658.77(the amount by which the Share Purchase Price paid by Parent to the Company for the Parent Shares pursuant to the Securities Purchase Agreement exceeded $2 million). See “Securities Purchase Agreement and Escrow Deposit”. In no event will the Company be entitled to both the payment of the Parent Termination Fee and specific performance of the Merger Agreement.

Limitation on Remedies

In the event of the termination of the Merger Agreement pursuant to the provisions described in the section entitled “— Termination”, the Merger Agreement will become void, and there will be no liability under the Merger Agreement on the part of the Company, Parent, or Merger Sub (or any their representatives) to any other party the Merger Agreement except that (1) certain sections of the Merger Agreement, including sections relating to termination, termination fees, and expenses, will survive termination, and (2) no such termination will relieve any party to the Merger Agreement from liability for any intentional breach of any of its representations, warranties, covenants, or agreements set forth in the Merger Agreement or fraud prior to such termination.

The Company, Parent, and Merger Sub have agreed that the payment of the Company Termination Fee or Parent Termination Fee will be in full and complete satisfaction of any and all monetary damages of Parent and Merger Sub or the Company, as applicable, arising out of or related to the Merger Agreement, the Merger, or the other Transactions, the termination of the Merger Agreement, the failure to consummate the Merger or the other Transactions, and any claims or actions, suits, or proceedings arising out of any such breach, termination, or failure. In no event will Parent or Merger Sub or the Company, as applicable, be entitled to seek or obtain any recovery or judgment in excess of the Company Termination Fee or the Parent Termination Fee, respectively, and Parent, Merger Sub, and the Company will not be entitled to seek or obtain any other damages of any kind for, or with respect to, the Merger Agreement or the Transactions, the termination of the Merger Agreement, the failure to consummate the Merger or the other Transactions, or any claims or actions, suits, or proceedings arising out of any such breach, termination, or failure;

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provided , however , that the foregoing will not limit the right of Parent, Merger Sub, or the Company to specific performance of the Merger Agreement pursuant to the terms of the Merger Agreement prior to the termination of the Merger Agreement in accordance with its terms. See “— Jurisdiction; Specific Performance”.

Fees and Expenses

Except as otherwise set forth Merger Agreement, all fees and expenses incurred in connection with the Transactions, including all legal, accounting, financial advisory, consulting, and all other fees and expenses of third parties incurred by the Company, Parent, or Merger Sub in connection with the negotiation and effectuation of the terms and conditions of the Merger Agreement and the Transactions, will be the obligation of the respective party incurring such fees and expenses, whether or not the Merger is consummated.

Amendment and Waiver

The Merger Agreement may be amended by the parties by action taken by their respective boards of directors (or similar governing bodies or entities) at any time prior to the Effective Time; provided , however , that, after approval of the Merger Agreement by the Company’s stockholders has been obtained, no amendment may be made without further stockholder approval which, by law or in accordance with the rules of the NYSE, requires further approval by such stockholders. The Merger Agreement may not be amended except by an instrument in writing signed by the parties. The Merger Agreement also provides that at any time prior to the Effective Time, the Company, on the one hand, and Parent and Merger Sub, on the other hand, may (a) extend the time for the performance of any obligation or other act of the other, (b) waive any inaccuracy in the representations and warranties of the other contained in the Merger Agreement or in any document delivered pursuant to the Merger Agreement, and (c) waive compliance with any agreement of the other or any condition to its own obligations contained in the Merger Agreement. Any such extension or waiver will be valid only if set forth in an instrument in writing signed by the Company or Parent (on behalf of Parent and Merger Sub).

Jurisdiction; Specific Performance

Under the Merger Agreement, each of the parties has agreed that any action, suit, or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with the Merger Agreement or the Transactions (whether brought by any party or any of its affiliates or against any party or any of its affiliates) will be brought, heard, and determined exclusively in the state courts located in the State of Nevada or, if such courts shall not have jurisdiction, any of the federal courts of the United States of America located in the State of Nevada, and has agreed not to bring any action, suit, or proceeding arising out of or relating to the Merger Agreement or the Transactions in any other court. However, each of the parties has agreed that neither it nor any of its affiliate will bring, or support, any action, cause of action, claim, cross-claim, counterclaim, or third-party claim against Lender in any way relating to the Merger Agreement or any of the Transactions, including any dispute arising out of or relating in any way to the Debt Financing or the performance thereof or the transactions contemplated thereby, anywhere other than in (i) any New York State court sitting in the Borough of Manhattan, or (ii) the United States District Court for the Southern District of New York.

The parties to the Merger Agreement are each entitled to specific performance of the terms of the Merger Agreement, without any requirement to post bond, in addition to any other remedy to which they are entitled at law or equity. However, the Company will be entitled to the granting of an order of specific performance or other equitable relief of Parent’s obligation to cause the full funding of the Financing and the consummation of the Transactions if and only if  (a) all of the conditions to Parent’s and Merger Sub’s obligations to effect the Merger contained in the Merger Agreement (other than those conditions that by their nature are to be satisfied at the closing, but each of which at such time is capable of being satisfied) have been satisfied or waived, (b) Parent and Merger Sub fail to consummate the closing when required pursuant to the Merger Agreement, and (c) the Company has irrevocably confirmed in a written notice to Parent that it is ready, willing, and able to consummate the closing, and that if an order of specific performance or other equitable relief is granted and the Financing is consummated, then the Company will

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take such actions required of it by the Merger Agreement to cause the closing to occur. Notwithstanding anything else to the contrary, while the Company may concurrently seek an order of specific performance or other equitable relief in order to effect the full funding of the Financing and the consummation of the Transactions and payment of the Parent Termination Fee as described above, under no circumstances will the Company be permitted or entitled to receive both (i) a grant of an order of specific performance or other equitable relief in order to effect the full funding of the Financing and the consummation of the Transactions, and (ii) payment of the Parent Termination Fee.

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On September 17, 2018, which was the last full trading day immediately preceding the public announcement of the proposed Merger, the closing price per Company Share was $2.31. On [•], the most recent practicable date before the filing of this proxy statement, the closing price per Company Share was $[•]. You are encouraged to obtain current market quotations for Company common stock in connection with voting your Company Shares.

As of  [record date], there were [•] Company Shares outstanding held by approximately [•] holders of record.

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(3)

Based solely on a Schedule 13G/A filed by Ocho Investments LLC on February 9, 2018, Ocho Investments and Andris Upitis beneficially own 1,504,389 Company Shares.

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(4)

Based solely on a Form 13F-HR filed by The TCW Group, Inc. on behalf of itself and its direct and indirect subsidiaries, which collectively constitute the TCW business unit, on October 30, 2018.

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(5)

Based solely on a Schedule 13G/A filed by The Carl E. Giudici Trust dated October 31, 1997, as amended, and Carl E. Giudici on July 7, 2016, The Carl E. Giudici Trust dated October 31, 1997, as amended, and Carl E. Giudici beneficially own 1,194,256 Company Shares.

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(6)

Based solely on a Schedule 13G/A filed by Stephen Haberkorn on February 2, 2018.

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(7)

On November 29, 2018, Parent purchased 890,390 Company Shares pursuant to the terms of the Securities Purchase Agreement. All such Company Shares were deposited with the Escrow Agent pursuant to the terms of the Securities Escrow Agreement. Parent may not sell, assign, dispose of, exchange, pledge, encumber, or otherwise transfer such Company Shares, or any interest therein, except to the Company as provided in the Securities Purchase Agreement, and with respect to all matters presented to the Company’s stockholders, Parent has agreed to vote all such Company Shares in the same manner and in the same proportion (rounded to the nearest whole share) as Company Shares that are not held by Parent are voted. See “Securities Purchase Agreement and the Escrow Deposit”.

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(8)

Includes (a) options to purchase 40,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter, (b) 3,334 shares of common stock owned by Hunter Jayroe, and (c) 3,334 shares of common stock owned by Haley Jayroe.

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(9)

Mr. Kravetz personally owns 28,067 shares of common stock. An additional 840,229 shares are owned by Esplanade Capital Partners I LLC. Mr. Kravetz is the President and Chief Investment Officer of Esplanade Capital LLC, which is the manager of Esplanade Capital Partners I LLC.

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(10)

Includes options to purchase 20,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter.

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(11)

Includes options to purchase 6,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter.

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(12)

Includes options to purchase 300,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter, and 12,000 unvested restricted shares.

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(13)

Includes options to purchase 100,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter, and 10,000 unvested restricted shares.

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(14)

Includes options to purchase 95,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter, and 8,000 unvested restricted shares.

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(15)

Includes options to purchase 100,000 shares of common stock exercisable as of November 29, 2018 or within 60 days thereafter, and 8,000 unvested restricted shares.

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(16)

Includes options to purchase 661,000 shares of common stock and 38,000 unvested restricted shares.

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*

Less than one percent of our common stock.

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NO APPRAISAL RIGHTS

Pursuant to Section 92A.390 of the Nevada Revised Statutes, no appraisal rights shall be available to holders of Company Shares in connection with the Merger.

ADVISORY VOTE ON MERGER-RELATED COMPENSATION

As required by Section 14A of the Exchange Act and the applicable SEC rules issued thereunder, the Company is providing its stockholders with the opportunity to cast an advisory (non-binding) vote to approve certain compensation that will or may be paid or become payable to our “named executive officers” (as defined in SEC rules) in connection with the Merger. This compensation is described in the table in the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger — Golden Parachute Compensation,” including the footnotes to the table and related narrative discussion.

The Board of Directors unanimously recommends that the stockholders of the Company approve the following resolution:

“RESOLVED, that the stockholders of the Company, hereby approve, on an advisory basis (non-binding basis), the compensation that will or may be paid or become payable to the Company’s named executive officers in connection with the Merger, and the agreements or understandings pursuant to which such compensation may be paid or become payable, in each case as disclosed pursuant to Item 402(t) of Regulation S-K in the table in the section of this proxy statement entitled “The Merger — Interests of the Company’s Directors and Executive Officers in the Merger — Golden Parachute Compensation,” including the footnotes to the table and the related narrative discussion.”

The vote on the named executive officer Merger-related compensation proposal is a vote separate and apart from the vote on the proposal to approve the Merger Agreement. Accordingly, you may vote to approve the Merger Agreement and vote not to approve the named executive officer Merger-related compensation proposal and vice versa. Because the vote on the named executive officer Merger-related compensation proposal is advisory only, it will not be binding on either the Company or Parent. Accordingly, if the Merger Agreement is approved and the Merger is completed, the compensation will be payable, subject only to the conditions applicable thereto under the applicable compensation agreements and arrangements, regardless of the outcome of this advisory (non-binding) vote of the Company’s stockholders.

The above resolution approving the Merger-related compensation of the Company’s named executive officers on an advisory (non-binding) basis requires the affirmative vote of holders of a majority of the Company Shares entitled to vote on the matter and casting votes for or against the proposal.

The Board of Directors unanimously recommends that the stockholders of the Company vote “FOR” the named executive officer Merger-related compensation proposal.

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ADJOURNMENT OF THE SPECIAL MEETING

As discussed above, the Board of Directors recommends a vote for the proposal to approve the Merger Agreement. If we do not have sufficient votes to approve the Merger Agreement at the special meeting, we may ask our stockholders to vote on a proposal to adjourn the special meeting, if necessary and appropriate, to solicit additional proxies. We currently do not intend to propose adjournment at our special meeting if there are sufficient votes to approval the Merger Agreement.

If a quorum is present at the special meeting, then approval of the Adjournment Proposal will require the affirmative vote of the holders of a majority of the Company Shares entitled to vote on the proposal and casting votes for or against the proposal. If a quorum is not present at the special meeting, the Company’s stockholders entitled to vote at the special meeting, represented in person or by proxy at the special meeting, will have the power to adjourn the special meeting. Any signed proxies received by the Company in which no voting instructions are provided on such proposal will be voted “ FOR ” the Adjournment Proposal. Any adjournment or postponement of the special meeting for the purpose of soliciting additional proxies will allow stockholders who have already sent in their proxies to revoke them at any time prior to their use at the special meeting as adjourned or postponed.

The Board of Directors unanimously recommends that the stockholders of the Company vote “FOR” the approval of the Adjournment Proposal.

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WHERE YOU CAN FIND ADDITIONAL INFORMATION

The Company files annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any reports, statements, or other information that the Company files at the SEC’s public reference room at 100 F Street, NE, Washington, DC 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference room. The Company’s public filings are also available in electronic format to the public from commercial document retrieval services and at the website maintained by the SEC at http://www.sec.gov. Information contained on the SEC’s website is expressly not incorporated by reference into this proxy statement. You can also review the Company’s SEC filings on its website at www.nevadagold.com. Information included on, or otherwise accessible through, the Company’s website is not incorporated into, and does not form a part of, this proxy statement. Any person, including any beneficial owner, to whom this proxy statement is delivered may request copies of reports, proxy statements, or other information concerning us, without charge, by written or telephonic request directed to us to the Secretary of the Company at Nevada Gold & Casinos, Inc., 133 E. Warm Springs Road, Suite 102, Las Vegas, Nevada 89119, telephone: (702) 685-1000. If you would like to request documents, please do so as soon as possible, in order to receive them before the special meeting.

The SEC allows us to “incorporate by reference” into this proxy statement documents we file with the SEC. This means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this proxy statement, and later information that we file with the SEC will update and supersede that information. We incorporate by reference the documents listed below and any documents filed by us pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act after the date of this proxy statement and prior to the date of the special meeting:

This proxy statement does not constitute the solicitation of a proxy in any jurisdiction to or from any person to whom or from whom it is unlawful to make such proxy solicitation in that jurisdiction. No persons have been authorized to give any information or to make any representations other than those contained in this proxy statement and, if given or made, such information or representations must not be relied upon as having been authorized by us or any other person. This proxy statement is dated [•] . You should not assume that the information contained in this proxy statement is accurate as of any date other than that date, and the mailing of this proxy statement to stockholders shall not create any implication to the contrary

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Appendix A​

AGREEMENT AND PLAN OF MERGER
 
among
 
NEVADA GOLD & CASINOS, INC.,
 
MAVERICK CASINOS LLC
 
and
 
MAVERICK CASINOS MERGER SUB, INC.
 
September 18, 2018

Table of Contents

A-i

Table of Contents
 (Continued)
 

A-ii

Table of Contents
 (Continued)
 

Exhibits

Exhibit A Form of Legal Opinion

A-iii

AGREEMENT AND PLAN OF MERGER

THIS AGREEMENT AND PLAN OF MERGER (this “ Agreement ”) is made and entered into as of September 18, 2018, by and among Nevada Gold & Casinos, Inc., a Nevada corporation (the “ Company ”), Maverick Casinos LLC, a Nevada limited liability company (“ Parent ”), and Maverick Casinos Merger Sub, Inc., a Nevada corporation and wholly owned Subsidiary of Parent (“ Merger Sub ” and collectively with the Company and Parent, the “ Parties ”).

RECITALS

WHEREAS, Parent, Merger Sub, and the Company intend to effect a merger (the “ Merger ”) of Merger Sub with and into the Company in accordance with this Agreement and the Nevada Revised Statutes (the “ NRS ”), with the Company to be the surviving corporation of the Merger (the “ Surviving Corporation ”), and each share of common stock, par value $0.12 per share, of the Company (each, a “ Company Share ” and collectively, the “ Company Shares ”) issued and outstanding at the Effective Time to be thereupon cancelled and converted into the right to receive an amount equal to the Merger Consideration, on the terms and subject to the conditions set forth herein;

WHEREAS, the board of directors of the Company (the “ Company Board ”) has unanimously (a) determined that the Merger is fair to and in the best interests of the Company, including the stockholders of the Company (the “ Company Stockholders ”), (b) adopted resolutions approving and declaring the advisability of this Agreement and the Merger and other Transactions upon the terms and subject to the conditions set forth in this Agreement pursuant to Chapters 78 and 92A of the NRS, and (c) on the terms and subject to the conditions set forth herein, resolved to recommend that the Company Stockholders approve this Agreement;

WHEREAS, the managers of Parent and the board of directors of Merger Sub have unanimously (a) determined that the Merger would be advisable and fair to, and in the best interests of, Merger Sub and Parent, Merger Sub’s sole stockholder, (b) adopted this Agreement and approved the Merger upon the terms and subject to the conditions set forth in this Agreement pursuant to Chapters 78 and 92A of the NRS, and (c) in the case of the board of directors of Merger Sub, resolved to recommend that Parent, as Merger Sub’s sole stockholder, approve this Agreement, in each case upon the terms and subject to the conditions set forth herein; and

WHEREAS, concurrently with the execution of this Agreement, Parent has deposited $2 million, in immediately available funds (the “ Deposit ”) with Fidelity National Title Group (Fidelity National Title), a Nevada corporation (the “ Escrow Agent ”), into a segregated escrow account (the “ Escrow Account ”) as specified in the Escrow Agreement, executed by Parent, Merger Sub, the Company, and the Escrow Agent contemporaneously with the execution of this Agreement (the “ Escrow Agreement ”), to be held, released, or disposed of by the Escrow Agent in accordance with the terms of this Agreement and the Escrow Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, Parent, Merger Sub, and the Company hereby agree as follows:

Article  I.
DEFINITIONS AND GENERAL INTERPRETATION

Section 1.01. Definitions . For purposes of this Agreement:

“ Acceptable Confidentiality Agreement ” means a confidentiality agreement that contains provisions that are no less favorable in the aggregate to the Company than those contained in the Confidentiality Agreement.

“ Acquisition Proposal ” means any inquiry, proposal, offer, or indication of interest for or relating to (in one transaction or a series of related transactions) any of the following: any direct or indirect acquisition or purchase (including by any license or lease) by any Person of  (a) assets (including voting equity securities of any of the Company’s Subsidiaries, but excluding sales of assets in the ordinary course of business) or

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businesses of the Company and its Subsidiaries that constitute 15% or more of the fair market value of the assets of the Company and its Subsidiaries on a consolidated basis or that generate 15% or more of the aggregate revenues or net income of the Company and its Subsidiaries on a consolidated basis, or (b) beneficial ownership of 15% or more of any class of voting equity securities of the Company or of any of its Subsidiaries, the assets or business of which constitutes 15% or more of the fair market value of the assets of the Company and its Subsidiaries on a consolidated basis or that generates 15% or more of the aggregate revenues or net income of the Company and the Company’s Subsidiaries on a consolidated basis; provided that the term “Acquisition Proposal” shall not include the Transactions or the CF Sale.

“ Action ” means any litigation, action, charge, suit, hearing, arbitration, mediation, or other proceeding (public or private) by or before, or otherwise involving, any Governmental Authority.

“ Affiliate ” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person. For this purpose, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of management policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise.

“ beneficial owner ” or “ beneficial ownership ”, or phrases of similar meaning, with respect to any Company Shares or other applicable securities, has the meaning ascribed to such term under Rule 13d-3(a) promulgated under the Exchange Act.

“ Bona Fide Proposal ” means a written bona fide Acquisition Proposal which the Company Board has considered consistent with Section 6.04(d) to determine whether such Acquisition Proposal constitutes a Superior Proposal.

“ Business Day ” means any day other than (a) a Saturday or a Sunday, or (b) a day on which banking and savings and loan institutions in New York, New York, the Secretary of State of the State of Nevada are authorized or required by Law or executive order to be closed.

“ CF Casino ” means the casino, restaurant, gift shop, parking, and all related facilities commonly known as Club Fortune Casino, located at 725 South Racetrack Road, Henderson, NV 89015.

“ CF Cash Closing Payment ” means the Cash Closing Payment under and as defined in the CF Sale Agreement.

“ CF Sale ” means the sale of substantially all of the assets used in or related to the CF Casino in accordance with the terms of the CF Sale Agreement.

“ CF Sale Agreement ” means the Asset Purchase Agreement dated as of June 26, 2018, by and among Truckee Gaming, LLC, Nevada Gold & Casinos LV, LLC, and the Company, as amended from time to time in accordance with the terms hereof.

“ CF Working Capital Adjustment ” means the Acquired Cash Adjustment (as defined in the CF Sale Agreement) and the Working Capital Adjustment (as defined in the CF Sale Agreement), in each as calculated for purposes of determining the CF Cash Closing Payment.

“ Code ” means the Internal Revenue Code of 1986.

“ Company Bylaws ” means the Amended and Restated Bylaws of the Company, as amended.

“ Company Certificate ” means the Articles of Incorporation of the Company, as amended.

“ Company Credit Agreement ” means the Amended and Restated Credit Agreement dated effective as of November 30, 2015, by and among the Company, the Subsidiaries of the Company party thereto, and Mutual of Omaha Bank, as amended.

“ Company Disclosure Letter ” means the confidential disclosure letter delivered by the Company to Parent and Merger Sub concurrently with the execution of this Agreement.

“ Company Equity Awards ” means the Company Stock Options and Company Restricted Shares.

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“ Company Equity Plans ” means the Nevada Gold & Casinos, Inc.’s 2009 Equity Incentive Plan.

“ Company Intellectual Property ” means, collectively, the Owned Intellectual Property and the Licensed Intellectual Property.

“ Company IP Agreements ” means any and all Contracts concerning Intellectual Property or IT Assets to which the Company or any of its Subsidiaries is a party or beneficiary or by which the Company or any of its Subsidiaries, or any of their respective properties or assets, may be bound, including all (a) licenses of Intellectual Property by the Company or any of its Subsidiaries to any Person, and (b) licenses of Intellectual Property by any Person to the Company or any of its Subsidiaries

“ Company IT Assets ” means all IT Assets owned or purported to be owned by the Company or any of its Subsidiaries and any and all other IT Assets used or held for use by the Company or any of its Subsidiaries.

“ Company Material Adverse Effect ” means (a) any occurrences, conditions, changes, events, developments, or effects that are (or could reasonably expected to be) materially adverse to the business, assets, financial condition, operations, results of operations, or business prospects of the Company and the Company’s Subsidiaries taken as a whole, or (b) an effect that prevents or materially impairs the ability of the Company to perform its obligations under this Agreement or consummate the Transactions; provided , however , that for purposes of clause (a) none of the following, either alone or in combination, shall be taken into account in determining whether there has been a Company Material Adverse Effect: (i) general economic or political conditions; (ii) any changes in conditions generally affecting the industries in which the Company and its Subsidiaries operate; (iii) any changes in financial, credit, or securities markets in general; (iv) any acts of war (whether or not declared), armed hostilities, or terrorism, or the escalation, de-escalation, worsening, or lessening thereof, or any natural disasters, acts of God, or comparable events; (v) changes or proposed changes in applicable Law (other than changes or proposed changes in applicable Law that are or could reasonably be expected to be materially adverse to the business and operations of the Company as constituted prior to the execution of this Agreement, including gaming operations in jurisdictions in which the Company operates) or GAAP or in any interpretation thereof; (vi) the announcement of this Agreement or the Transactions; or (vii) the ability or inability of Parent and/or Merger Sub to pay or obtain financing to consummate the Transactions; provided , however , in the case of clauses (i), (ii), (iii), (iv), and (v), except to the extent that the Company and its Subsidiaries, taken as a whole, are disproportionately affected relative to other participants in the industries in which the Company and its Subsidiaries operate.

“ Company Restricted Shares ” means Company Shares that are unvested or are subject to repurchase option, risk of forfeiture or other condition on title, transfer, or ownership granted under any applicable Company Equity Plan, restricted stock purchase agreement, or other Contract with the Company.

“ Company SEC Reports ” means all forms, reports, schedules, registration statements, definitive proxy statements and other documents (including all exhibits and all other information incorporated therein by reference) required to be filed or furnished by the Company with or to the SEC during the period since (and including) July 29, 2016.

“ Company Stock Option ” means an option to purchase Company Shares granted pursuant to any Company Equity Plan.

“ Company Termination Fee ” means $1.72 million.

“ Contract ” means any written contract, agreement, purchase order, commitment, instrument or guaranty to which the Company or any of its Subsidiaries is a party.

“ Environmental Law ” means all Laws relating to the protection of the environment, public health or safety, or employee health and safety.

“ Equity Financing Source ” means Eric Persson.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended.

“ Financing Sources ” means the Lender and the Equity Financing Source.

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“ Fully Diluted Share Number ” means (a) the aggregate number of Company Shares outstanding immediately prior to the Effective Time (other than Shares to be cancelled in accordance with Section 3.01(a) ), plus (b) the aggregate number of Company Shares issuable upon the exercise in full of all Company Stock Options outstanding immediately prior to the Effective Time (whether vested or unvested), other than Out-of-Money Options, which shall be excluded from the calculation of the Fully Diluted Share Number, plus (c) the aggregate number of Company Restricted Shares.

“ GAAP ” means generally accepted accounting principles in the United States as in effect from time to time.

“ Gaming Approvals ” means all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority or under Gaming Laws necessary for or relating to conduct of gaming and related activities or the manufacture, distribution, service, or sale of alcoholic beverages, and the ownership or the operation, management, and development of any gaming operations; provided that Gaming Approvals shall not include any such licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers, and exemptions required in connection with the sale of the CF Casino.

“ Gaming Authorities ” means any Governmental Authorities with regulatory control and authority or jurisdiction over casino or other gaming activities and operations, or the manufacture, distribution, service or sale of alcoholic beverages, including the Washington State Gambling Commission and Washington State Liquor & Cannabis Board.

“ Gaming Law ” means any Law governing or relating to gaming and related activities (including but not limited to gambling, casino, lottery and pari-mutuel activities) and operations.

“ Governmental Authority ” means any national, federal, state, provincial, county or municipal government, domestic or foreign, any agency, board, bureau, commission, court, department, or other instrumentality of any such government, or any arbitrator in any case that has jurisdiction over a party or any of its properties or assets.

“ Hazardous Materials ” means any substance, material, or waste that (a) is regulated under any Environmental Law, or (b) without limitation of the generality of clause (a), is deemed under or by any Environmental Law to be “hazardous,” “toxic,” a “contaminant,” “solid waste,” “waste,” a “nuisance,” a “pollutant,” or words with similar meaning, and includes petroleum and petroleum products, crude oil or any fraction or by-product thereof, polychlorinated biphenyls (PCBs), PCB wastes, asbestos, asbestos containing products and materials, and radioactive substances.

“ Indebtedness ” of any Person at any date means, without duplication, all obligations of such Person to pay principal, interest, penalties, fees, guarantees, reimbursements, damages, “make-whole” amounts, and costs of unwinding and other liabilities with respect to (a) indebtedness for borrowed money, whether current or funded, fixed, or contingent, secured or unsecured, (b) indebtedness evidenced by bonds, debentures, notes, mortgages, or similar instruments or debt securities, (c) obligations of such Person as a lessee under leases that are required to be capitalized in accordance with GAAP, and (d) direct or indirect guarantees of obligations described in clauses (a) through (c) above of any other Person; provided , however , that, with respect to the Company, “Indebtedness” shall not be deemed to include any intercompany Indebtedness owing by the Company to any of its wholly-owned Subsidiaries, by a wholly-owned Subsidiary of the Company to the Company or by one wholly-owned Subsidiary of the Company to another wholly-owned Subsidiary of the Company

“ Intellectual Property ” means all intellectual property and proprietary rights arising under the Laws of the United States or any foreign jurisdiction or under any international convention, including all of the following: (a) patents, patent applications, and any reissues, reexaminations, divisionals, provisionals, continuations, continuations-in-part, substitutions and extensions thereof  (collectively, “ Patents ”); (b) trademarks, service marks, trade names (whether registered or unregistered), service names, industrial designs, brand names, brand marks, trade dress rights, identifying symbols, logos, emblems, signs and insignia, and including all goodwill associated with the foregoing (collectively, “ Marks ”); (c) Internet domain names, Internet key words, and social media accounts and identifiers, (d) copyrights (whether registered or unregistered), works of authorship, moral rights, mask works, and mask sets (collectively,

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“ Copyrights ”); (e) computer software programs; (f) confidential and proprietary information, and non-public processes, designs (including circuit designs and layouts), specifications, technology, databases, know-how, techniques, formulas, inventions, concepts, trade secrets, discoveries, research and development, ideas, and technical data and information, in each case excluding any rights in respect of any of the foregoing that comprise or are protected by Patents (collectively, “ Trade Secrets ”); and (g) all applications, registrations, renewals, extensions, and permits related to any of the foregoing clauses (a) through (f).

“ IT Assets ” means all information technology systems, servers, computers, hardware, firmware, middleware, networks, data communications lines, routers, hubs, switches and all other information technology assets and equipment, and all associated documentation.

“ Knowledge ” when used in reference to the Company means the actual knowledge of all of the directors of the Company Board and the individuals listed in Section 1.01(a) of the Company Disclosure Letter; provided , however that with respect to the representations warranties set forth in Sections 4.08 and 4.12 , Knowledge when used in reference to the Company shall mean the knowledge of the foregoing individuals after due inquiry, and when used in reference to Parent means the actual knowledge of the officers of the Parent.

“ Law ” means any judgment, decree, injunction, order, writ, ruling, law, ordinance, statute, rule, regulation, code, or other requirement of any Governmental Authority, or the common law.

“ Lease ” means the leases and subleases, including amendments thereto and guaranties thereof, under which the Company or any Subsidiary of the Company is the tenant or subtenant of, or otherwise occupies, any Leased Real Property.

“ Leased Real Property ” means the real property leased by the Company or any of its Subsidiaries as tenant or subtenant, together with, to the extent leased by the Company or any of its Subsidiaries, all buildings and other structures, facilities or improvements located thereon and all appurtenances of the Company or any applicable Subsidiary of the Company relating to such real property.

“ Liabilities ” means any and all Indebtedness, liabilities, commitments or obligations, whether accrued or fixed, known or unknown, absolute or contingent, matured or unmatured, liquidated or unliquidated, determined or determinable, on- or off-balance sheet, whether or not required to be recorded or reflected on a balance sheet under GAAP, and including those arising under any Contract, Action or Order.

“ Licensed Intellectual Property ” means any and all Intellectual Property that the Company or any of its Subsidiaries is licensed or otherwise permitted by other Persons to use.

“ Liens ” means any mortgage, charge, claim, lien, pledge, security interest, deed of trust, or other encumbrance.

“ Most Recent Company Balance Sheet ” means the audited balance sheet of the Company and its consolidated Subsidiaries as of April 30, 2018, as filed in the Company SEC Reports.

“ NYSE ” means the New York Stock Exchange.

“ Order ” means any decree, decision, injunction, judgment, order, ruling, or verdict entered, issued, made, or rendered by any court, administrative agency or other Governmental Authority, in each case, having applicable jurisdiction.

“ Out-of-Money Options ” means Company Stock Options having an exercise price in excess of the Merger Consideration, after giving effect to any adjustments to the Merger Consideration pursuant to Section 3.07 .

“ Owned Intellectual Property ” means all Intellectual Property owned or purported to be owned, in whole or in part, by the Company or any of its Subsidiaries.

“ Owned Real Property ” means the real property owned in fee simple by the Company or any of its Subsidiaries, together with all buildings and other structures, facilities or improvements located thereon and all appurtenances of the Company or any applicable Subsidiary of the Company relating to the such real property.

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“ Parent Termination Fee ” means $2 million.

“ Permitted Liens ” means (a) Liens for Taxes and other governmental charges and assessments that are not yet delinquent and Liens for Taxes and other governmental charges and assessments being contested in good faith by appropriate proceedings), (b) mechanics’, workmen’s, repairmen’s, warehousemen’s, carriers’, materialmen’s, and similar Liens arising or incurred in the ordinary course of business and securing payments not yet delinquent or payments that are being contested in good faith, (c) zoning restrictions, survey exceptions, easements, covenants, conditions, restrictions, rights of way, and similar Liens on real property, (d) covenants, conditions, restrictions, easements, rights of way, restrictive covenants, encroachments, and other similar matters affecting title, which do not materially impair the occupancy or use of any Owned Real Property or Leased Real Property for the purposes for which it is currently used in connection with the Company’s and its Subsidiaries’ businesses, (e) any state of facts an accurate survey of any of the Owned Real Property would disclose that do not materially impair the occupancy or use of the Owned Real Property for the purposes of which it is currently used in connection with the Company’s and its Subsidiaries’ business, (f) Liens arising under workers’ compensation, unemployment insurance, social security, retirement, and similar Laws, (g) the title and other interests of a lessor under a capital or operating lease or of a licensor under a license or royalty agreement, (h) Liens arising or resulting from any action taken by the Parent, Merger Sub, or any of their Affiliates, (i) Liens which do not in any material respect interfere with or restrict the present use of the properties or assets related thereto, (j) Liens disclosed in any title insurance policies or title commitments made available to Parent and Merger Sub on or prior to the date of this Agreement or that appear in title insurance policies with respect to any of the Owned Real Property obtained by Parent and Merger Sub, and (k) Liens set forth in Section 1.01(b) of the Company Disclosure Letter.

“ Person ” means an individual, corporation, partnership, limited partnership, limited liability company, syndicate, person, trust, association, entity, or Governmental Authority.

“ Personal Information ” means any information (including a person’s name, mailing address, telephone number, e-mail address, social security number, driver’s license number, credit or debit card number, or financial account information) which, whether alone or in combination with other information, identifies or is associated with an identified natural person.

“ Registered Intellectual Property ” means all Owned Intellectual Property issued by, registered, recorded or filed with, renewed by or the subject of a pending application before any Governmental Authority, Internet domain name registrar, or other authority.

“ Release ” means any release, spill, emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching, or migration into the environment (including ambient air, surface water, groundwater, land surface, or subsurface strata) or within any building, structure, facility, or fixture.

“ Representatives ” means, with respect to any Person, all directors, officers, employees, financial advisors, attorneys, accountants, or other advisors, agents, or representatives of such Person.

“ Sarbanes-Oxley Act ” means the Sarbanes-Oxley Act of 2002.

“ SEC ” means the United States Securities and Exchange Commission.

“ Securities Act ” means the Securities Act of 1933, as amended.

“ Subsidiary ” means, with respect to any Person, any corporation, limited liability company, partnership, or other organization of which at least a majority of the securities or other ownership interests having by their terms voting power to elect a majority of the board of directors, or others performing similar functions with respect to such corporation or other organization, is directly or indirectly owned or controlled by such Person and/or by one or more of its Subsidiaries.

“ Superior Proposal ” means any bona fide Acquisition Proposal made by any Person that (a) if consummated, would result in such Person owning, directly or indirectly, more than 50% of the voting equity securities of the Company, or consolidated assets (including voting equity securities of any of the Company’s Subsidiaries) or businesses that constitute more than 50% of the assets of the Company and its Subsidiaries on a consolidated basis, (b) is otherwise on terms that the Company Board has determined in

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good faith (after consultation with its financial advisors and outside counsel and after taking into account such legal, financial, regulatory, and other aspects of the proposal, including the financing terms thereof, as the Company Board deems appropriate in the exercise of its fiduciary duties, including the factors outlined in NRS 78.138(4)) is more favorable to the Company from a financial point of view than the Transactions (taking into account the terms of any proposal by the Parent to modify the terms of the Transactions), and (c) the Company Board has determined in good faith (after consultation with its financial advisors and outside counsel and after taking into account all legal, financial, regulatory, and other aspects of the proposal as the Company Board deems appropriate in the exercise of its fiduciary duties) is reasonably capable of being consummated.

“ Tax ” or “ Taxes ” means any federal, state, local, or foreign income, gross receipts, license, payroll, employment, excise, severance, stamp, occupation, premium, windfall profits, environmental, customs duties, capital stock, franchise, profits, withholding, social security, unemployment, disability, real property, personal property, sales, use, transfer, registration, value added, escheat, alternative or add-on minimum, estimated, or other tax of any kind whatsoever, including any interest, penalty, or addition thereto, whether disputed or not.

“ Tax Return ” means any return, declaration, report, claim for refund, or information return or statement relating to Taxes, including any schedule or attachment thereto, and including any amendment thereof.

“ Transactions ” means the Merger and the other transactions contemplated by this Agreement, the Escrow Agreement, and all other agreements contemplated hereby.

Section 1.02. Cross Reference Table .   The following terms defined elsewhere in this Agreement shall have the meaning set forth in the sections set forth below:

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Section 1.03. General Interpretation .   The Parties agree that they have been represented by counsel during the negotiation, drafting, preparation, and execution of this Agreement and, therefore, waive the application of any Law or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document. In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(a) when a reference is made in this Agreement to an Article, Section, or Schedule, such reference is to an Article or Section of, or a Schedule to, this Agreement unless otherwise indicated;

(b) the table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

(c) whenever the words “include,” “includes,” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation;”

(d) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement, unless the context otherwise requires;

(e) references to any statute, rule, or regulation are to the statute, rule, or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under said statutes) and to any section of any statute, rule, or regulation include any successor to said section;

(f) references to any Contract or Permit are references to such Contract or Permit as amended, modified, supplemented or replaced from time to time;

(g) references to “made available” means, (i) with respect to materials made available by the Company, the information or document (A) has been posted to the electronic data site maintained by the Company in connection with the Transactions prior to the date of this Agreement, (B) has been included in any Company SEC Report that has been filed on the SEC’s EDGAR system at least two

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Business Days prior to the date of this Agreement or incorporated by reference into a Company SEC Report that has been filed on the SEC’s EDGAR system prior to the date of this Agreement, or (C) has been sent via email to Parent, Merger Sub, or their Representatives prior to the date of this Agreement, and (ii) with respect to materials made available by Parent or Merger Sub, the information or document has been sent via email to the Company or its Representatives prior to the date of this Agreement;

(h) all terms defined in this Agreement have the defined meanings when used in any certificate or other document made or delivered pursuant hereto, unless otherwise defined therein;

(i) references to a Person are also to its successors and permitted assigns;

(j) the use of  “or” is not intended to be exclusive unless expressly indicated otherwise;

(k) references to monetary amounts are to the lawful currency of the United States; and

(l) words importing the singular include the plural and vice versa and words importing gender include all genders.

Section 1.04. Disclosure Schedules .   It is understood and agreed that (a) disclosure of any fact or item in any Section of the Company Disclosure Letter shall be deemed to be disclosed with respect to any other applicable Section only to the extent it is reasonably apparent that such disclosure is applicable to such other Section, (b) nothing in the Company Disclosure Letter is intended to broaden the scope of any representation or warranty made herein, (c) the fact that any information is disclosed in the Company Disclosure Letter shall not be construed to mean that such information is required to be disclosed by this Agreement, and (d) without limiting the foregoing, neither the specifications of any dollar amount in this Agreement nor the inclusion of any specific item in the Company Disclosure Letter is intended to imply that such amounts or higher or lower amounts, or the items so included or other items, are or are not material.

Article  II.
THE MERGER

Section 2.01. Merger .   Upon the terms and subject to the conditions set forth in this Agreement and in accordance with the NRS, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall thereupon cease, and the Company shall be the Surviving Corporation in the Merger.

Section 2.02. Closing .   Subject to the provisions of Article VII and unless this Agreement shall have been terminated in accordance with Section 8.01 , the closing of the Merger (the “ Closing ”) shall (a) take place at the offices of Lewis Roca Rothgerber Christie LLP,3993 Howard Hughes Parkway, Suite 600, Las Vegas, NV 89169 as soon as practicable (but in no event later than the tenth day (or if such date is not a Business Day, the next succeeding Business Day) following the day on which the last to be satisfied or waived of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions) shall have been satisfied or waived in accordance with this Agreement, or (b) occur at such other time and place agreed to by the Parties (the date upon which the Closing occurs, the “ Closing Date ”). In lieu of a physical closing, the Parties agree that all requisite closing documents may be exchanged electronically at the Closing, and that documents so exchanged shall be binding for all purposes.

Section 2.03. Effective Time of the Merger .   Subject to the provisions of this Agreement, at the Closing, the Company shall file articles of merger prepared and executed in accordance with the relevant provisions of the NRS (the “ Articles of Merger ”) with the Office of the Secretary of State of the State of Nevada, in such form as required by, and executed in accordance with, the relevant provisions of the NRS and shall make all other filings or recordings required under the NRS in connection with the Merger. The Merger shall become effective upon the filing of the Articles of Merger with the Office of the Secretary of State of the State of Nevada, or at such later time as shall be agreed upon by Parent and the Company and specified in the Articles of Merger (the date and the time at which the Merger becomes effective is referred to herein as the “ Effective Time ”).

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Section 2.04. Effects of the Merger .   At the Effective Time, the effect of the Merger shall be as provided in this Agreement, the Articles of Merger and the applicable provisions of the NRS. Without limiting the generality of the foregoing and subject thereto, at the Effective Time, all of the property, rights, privileges, immunities, powers and franchises of the Company and Merger Sub shall vest in the Surviving Corporation, and all Liabilities of the Company and Merger Sub shall become the Liabilities of the Surviving Corporation.

Section 2.05. Articles and Bylaws .

(a) At the Effective Time, the Company Certificate shall, by virtue of or in connection with the Merger, be amended and restated in its entirety to read as the articles of incorporation of Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Maverick Casinos Inc.” and, as so amended, shall be the articles of incorporation of the Surviving Corporation until thereafter further amended as provided therein or by applicable Law.

(b) At the Effective Time, and without any further action on the part of the Company and Merger Sub, the Company Bylaws shall be amended and restated in their entirety to read as the bylaws of Merger Sub as in effect immediately prior to the Effective Time, except that the name of the Surviving Corporation shall be “Maverick Casinos Inc.” and, as so amended, shall be the bylaws of the Surviving Corporation until thereafter amended as provided therein or by applicable Law.

Section 2.06. Directors and Officers of the Surviving Corporation .   From and after the Effective Time, the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Corporation, and the officers of Merger Sub immediately prior to the Effective Time shall be the officers of the Surviving Corporation, in each case, until their respective successors are duly elected or appointed and qualified, or until the earlier of their death, resignation, or removal.

Article  III.
EFFECTS OF THE MERGER

Section 3.01. Conversion of Securities .   At and as of the Effective Time, by virtue of the Merger and without any action on the part of Parent, Merger Sub, the Company, or the Company Stockholders (other than any requisite approval of the principal terms of the Merger by the Company Stockholders in accordance with the NRS):

(a) Each Company Share held in treasury and each Company Share that is owned, directly or indirectly, by a wholly owned Subsidiary of the Company, Parent or Merger Sub immediately prior to the Effective Time shall be cancelled and shall cease to exist, without any conversion thereof and no payment or distribution shall be made with respect thereto.

(b) Each Company Share issued and outstanding immediately prior to the Effective Time (other than Company Shares to be cancelled in accordance with Section 3.01(a) ), shall be converted into the right to receive $2.50 in cash, plus or minus the Per Share Adjustment Amount, without interest (the “ Merger Consideration ”); provided that if the Closing occurs after February 1, 2019, the Merger Consideration shall be automatically increased by $0.01 for each month following such date until (and including) the Closing Date (prorated by the number of days for partial months). All such Company Shares, when so converted, shall cease to be outstanding and shall be canceled and cease to exist. Each holder of a Company Share Certificate or evidence of Uncertificated Company Shares representing any such shares shall cease to have any rights with respect thereto, except the right to receive the Merger Consideration to be paid in consideration therefor in accordance with Section 3.02 . The Company Shares that are to be so converted into the right to receive the Merger Consideration are referred to herein as the “ Merger Shares .”

(c) Each issued and outstanding share of common stock, par value $0.01 per share, of Merger Sub shall be converted into and become one validly issued, fully paid, and nonassessable share of common stock, par value $0.01 per share, of the Surviving Corporation, so that, from and after the Effective Time, Parent shall be the holder directly or indirectly of all of the issued and outstanding shares of the Surviving Corporation’s common stock.

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Section 3.02. Payment of Merger Consideration; Surrender of Company Shares; Stock Transfer Books .

(a) Prior to the Effective Time, Parent or Merger Sub shall appoint as paying agent a bank or trust company reasonably satisfactory to the Company (the “ Paying Agent ”) for the purpose of paying the Merger Consideration to holders of Company Shares (other than Company Restricted Shares). In connection therewith, Parent shall enter into an agreement with the Paying Agent in a form reasonably acceptable to the Company. On the Closing Date and prior to the filing of the Articles of Merger, (i) Parent and the Company shall deliver a joint written instruction to the Escrow Agent to deposit all funds held in the Escrow Account with the Paying Agent, and (ii) Parent shall deposit, or cause to be deposited, with the Paying Agent cash in an amount sufficient to permit payment of the aggregate Merger Consideration payable pursuant to Section 3.01 , after giving effect to the payment described in clause (i), in each case for the benefit of the holders of Company Shares (other than Company Restricted Shares), for payment in accordance with this Article III through the Paying Agent (the “ Payment Fund ”). The Paying Agent shall, pursuant to irrevocable instructions, deliver the Merger Consideration payable with respect to the Company Shares (other than Company Restricted Shares) pursuant to Section 3.01 out of the Payment Fund. The Payment Fund shall be invested by the Paying Agent as directed by Merger Sub; provided , however , that such investments shall be in short-term obligations of the United States of America with maturities of no more than 30 days or guaranteed by the United States of America or of any agency thereof and backed by the full faith and credit of the United States of America, in commercial paper obligations rated A-1 or P-1 or better by Moody’s Investors Services, Inc. or Standard & Poor’s Corporation, respectively. No losses with respect to any investments of the Payment Fund will affect the amounts payable to the holders of the Merger Shares. If for any reason (including losses) the Payment Fund is inadequate to pay the amounts to which holders of Company Shares under Section 3.01 , Parent shall promptly deposit in trust or cause the Surviving Corporation promptly to deposit additional cash with the Paying Agent sufficient to make all payments required under this Agreement, and Parent and the Surviving Corporation shall in any event be liable for payment thereof. The Payment Fund shall not be used for any other purpose. The Surviving Corporation shall pay all charges and expenses, including those of the Paying Agent, in connection with the exchange of shares for the Merger Consideration. Any interest or other income resulting from investment of the Payment Fund shall become part of the Payment Fund.

(b) Promptly after the Effective Time (but in any event not later than two Business Days after the Effective Time), Parent and the Surviving Corporation shall cause the Paying Agent to mail to each holder of record of Merger Shares (other than The Depository Trust Company or its nominee (“ DTC ”)) as of the Effective Time (and, to the extent commercially practicable, Parent will, or will cause the Paying Agent to, make available for collection by hand, during customary business hours commencing immediately after the Effective Time, if so elected by any such holder) (i) a letter of transmittal (each such letter, a “ Letter of Transmittal ”) (which shall specify that the delivery shall be effected, and risk of loss and title shall pass, only upon proper delivery of the certificates representing Merger Shares (the “ Company Share Certificates ”) or transfer of the uncertificated Merger Shares held of record in book entry form (“ Uncertificated Company Shares ”) to the Paying Agent, and which letter of transmittal will be in customary form and have such other provisions as Parent and the Company may reasonably agree), and (ii) instructions thereto for use in effecting the surrender of Company Share Certificates and Uncertificated Company Shares in exchange for the Merger Consideration.

(c) Upon surrender to the Paying Agent of  (i) Company Share Certificates or (ii) Uncertificated Company Shares in compliance with the procedures set forth in the Letter of Transmittal and instructions thereto, together with a Letter of Transmittal duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Company Share Certificates or Uncertificated Company Shares shall be entitled to receive in exchange therefor, the Merger Consideration such holder has the right to receive pursuant to this Article III . DTC, upon surrender of the Merger Shares held of record by it in accordance with the customary surrender procedures of DTC and the Paying Agent, shall be entitled to receive as promptly as practicable in exchange for each surrendered Merger Share, the amount of cash DTC has the right to receive pursuant to this Article III . Each Merger Share surrendered pursuant to this Section 3.02(c) will be cancelled. No interest shall be paid or will accrue on any unpaid

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dividends and distributions payable to holders of Company Share Certificates or Uncertificated Company Shares. No Person beneficially owning Company Shares through DTC will be required to deliver a Letter of Transmittal to receive the Merger Consideration. Any such Person will receive its Merger Consideration in accordance with the customary payment procedures of DTC following the Effective Time.

(d) In the event of a transfer of ownership of Merger Shares that is not registered in the transfer records of the Company, payment of the Merger Consideration in respect of the applicable Merger Shares may be made to a Person other than the Person in whose name the Company Share Certificates or the Uncertificated Company Shares so surrendered are registered if such Company Share Certificates shall be properly endorsed or otherwise be in proper form for transfer or such Uncertificated Company Shares shall be properly documented for transfer and the Person requesting such payment shall pay any transfer Tax or other Taxes required by reason of the payment of the Merger Consideration in respect thereof or establish to the reasonable satisfaction of the Surviving Corporation that such Tax has been paid or is not applicable. Until surrendered as contemplated by this Section 3.02 , each Company Share Certificate or Uncertificated Company Share shall be deemed at all times after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration.

(e) If any Company Share Certificate shall have been lost, stolen, or destroyed, upon the making of an affidavit of that fact by the Person claiming such Company Share Certificate to be lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such Person of a bond, in such reasonable amount as the Surviving Corporation may reasonably direct, as indemnity against any claim that may be made against it with respect to such Company Share Certificate, the Paying Agent shall pay in respect of Merger Shares to which such lost, stolen, or destroyed Company Share Certificate relates the Merger Consideration to which the holder thereof is entitled.

(f) At the Effective Time, the stock transfer books of the Company shall be closed and there shall be no further registration of transfers of Merger Shares thereafter on the records of the Company. From and after the Effective Time, the holders of Company Share Certificates or Uncertificated Company Shares shall cease to have any rights with respect to such shares, except as otherwise provided in this Agreement, the articles of incorporation of the Surviving Corporation or by applicable Law.

(g) Any portion of the Exchange Fund that remains undistributed to the holders of Merger Shares for 12 months after the Effective Time shall be delivered to the Surviving Corporation, upon demand, and any holders of Merger Shares who have not theretofore complied with this Article III shall thereafter look only to the Surviving Corporation for, and the Surviving Corporation shall remain liable for, payment of their claim for the Merger Consideration (and Parent shall take all actions necessary to ensure that the Surviving Corporation has or has access to sufficient funds and shares of Parent Common Stock to make such payments). Any portion of the Exchange Fund remaining unclaimed by holders of Merger Shares as of a date which is immediately prior to such time as such amounts would otherwise escheat to or become property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto. None of Parent, the Paying Agent, or the Surviving Corporation shall be liable to any holder of Merger Shares (or dividends or distributions with respect thereto), Company Stock Options or Company Restricted Shares or cash delivered to a public official pursuant to any abandoned property, escheat or similar Law.

Section 3.03. Treatment of Company Equity Plans and Company Equity Awards .   As soon as reasonably practicable following the date of this Agreement, and in any event prior to the Effective Time, the Company will use its reasonable best efforts to take all action as may reasonably be necessary or required in accordance with applicable Law and each Company Equity Plan (including, the award agreements in respect of awards granted thereunder) to give effect to this Section 3.03 to provide that:

(a) Each Company Stock Option that is outstanding immediately prior to the Effective Time (whether vested or unvested) shall, immediately prior to the Effective Time, automatically and without any action on the part of any holder of any Company Stock Option be cancelled and, in exchange

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therefor, converted into the right to receive an amount of cash, if any, equal to the product of  (i) the number of Company Shares issuable upon the exercise of the Company Stock Option, multiplied by (ii) the excess, if any, of the Merger Consideration over the exercise price of such Company Stock Option (subject to applicable withholdings). For the avoidance of doubt, any Out-of-Money Options shall automatically be cancelled without any action on the part of the holder thereof and without any payment to the holder thereof. As soon as practicable following the Effective Time, the Surviving Corporation shall (and Parent shall cause the Surviving Corporation to) pay to each holder of a Company Stock Option, the consideration (if any) required to be paid to such holder pursuant to this Section 3.03(a) , subject to Section 3.05 .

(b) Each Company Restricted Share that is outstanding and unvested immediately prior to the Effective Time shall automatically and without any required action on the part of the holder thereof, be fully vested and free of any restrictions, and, by virtue of the Merger, each Company Restricted Share shall be treated as a Company Share for all purposes of this Agreement, including the right to receive the Merger Consideration in accordance with Section 3.01 (subject to applicable withholdings). Parent shall cause the Surviving Corporation to pay through the Surviving Corporation’s payroll the Merger Consideration for the Company Restricted Shares, and the Company shall reasonably cooperate with Parent prior to the Effective Time to arrange for such payment at such time through payroll, subject to Section 3.05 .

Section 3.04. No Appraisal Rights .   Pursuant to NRS 92A.390, no appraisal rights shall be available to Company Stockholders or any other holder of Company Shares in connection with the Merger.

Section 3.05. Withholding Rights .   Notwithstanding anything in this Agreement to the contrary, the Company, the Surviving Corporation, Parent, Merger Sub, and the Paying Agent, as applicable, shall be entitled to deduct and withhold from the Merger Consideration and any other payment otherwise payable pursuant to this Agreement to any holder of Company Shares, Company Stock Options, or Company Restricted Shares, as applicable, such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code or any provision of state, local, or foreign Tax Law in accordance with such Tax Law. To the extent that amounts are so withheld or paid over to or deposited with the applicable Tax authority, such amounts shall be treated for all purposes of this Agreement as having been paid to the holder of the Company Shares, Company Stock Options, or Company Restricted Shares, as applicable, in respect of which such deduction and withholding was made by the Company, the Surviving Corporation, Parent, Merger Sub, or the Paying Agent, as applicable. If any withholding obligation may be avoided by such holder providing information or documentation to the Company, the Surviving Corporation, Parent, Merger Sub, and the Paying Agent, as applicable, such information shall be requested prior to any such withholding and the Parties shall reasonably cooperate to reduce or eliminate such withholding.

Section 3.06. Adjustments to Prevent Dilution .   Notwithstanding any provision of this Article III to the contrary, if between the date of this Agreement and the Effective Time the outstanding Company Shares shall have been changed into a different number of shares or a different class by reason of the occurrence or record date of any stock dividend, subdivision, reclassification, split, combination, exchange of shares, or similar transaction, the Merger Consideration shall be appropriately adjusted to reflect fully the effect of such stock dividend, subdivision, reclassification, split, combination, exchange of shares, or similar transaction and to provide the holders of Company Shares the same economic effect as contemplated by this Agreement prior to such event; provided , however , that nothing in this Section 3.06 shall be construed as permitting the Company to take any action or enter into any transaction otherwise prohibited by this Agreement.

Section 3.07. Adjustments Related to CF Sale .

(a) At least five Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver to Parent a statement (the “ Closing Statement ”) setting forth (i) the amount of the CF Cash Closing Payment and the CF Working Capital Adjustment, and (ii) the Company’s good faith calculation of the Per Share Adjustment Amount. The Closing Statement (and the statement to be delivered by Nevada Gold & Casinos LV, LLC under the CF Sale Agreement setting forth the

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Estimated Purchase Price (as defined in the CF Sale Agreement)) shall be subject to review and approval by Parent prior to the Closing. The Per Share Adjustment Amount for purposes of determining the Merger Consideration will be the Per Share Adjustment Amount as set forth in the Closing Statement as approved by Parent.

(b) If the CF Cash Closing Payment exceeds $14.6 million for any reason other than on account of the CF Working Capital Adjustment, the Merger Consideration shall be increased by any amount equal to the excess, divided by the Fully Diluted Share Number.

(c) If the CF Working Capital Adjustment is greater or less than $146,000, then the Merger Consideration shall be increased or decreased by the amount by which the CF Working Capital Adjustment is greater or less than $146,000, divided by the Fully Diluted Share Number.

(d) As used herein, the “ Per Share Adjustment Amount ” means the amount, if any, by which the Merger Consideration is increased or decreased pursuant to Sections 3.07(a) and 3.07(b) .

Article  IV.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (a) as set forth in the Company Disclosure Letter, or (b) as set forth in the Company SEC Reports filed prior to the date of this Agreement (excluding all disclosures in any “Risk Factors” section and any disclosures included in any such Company SEC Reports that are forward looking in nature), the Company hereby represents and warrants to Parent and Merger Sub as follows (it being understood and agreed that notwithstanding anything to the contrary set forth in this Agreement, except for the representations and warranties contained in Section 4.09 , the Company shall not be deemed to have made any representations or warranties with respect to any of the Purchased Assets (as defined in the CF Sale Agreement) or the Assumed Liabilities (as defined in the CF Sale Agreement) or any matter related thereto, and the Company Disclosure Letter has been prepared as if the Purchased Assets and the Assumed Liabilities were not and shall not be held by the Company and its Subsidiaries at any time on or after the date of this Agreement):

Section 4.01. Organization and Qualification .   The Company is a corporation duly incorporated, validly existing, and in good standing under the Laws of the State of Nevada and has the requisite corporate power and authority to own, operate or lease its properties and assets and carry on its business in all material respects as now conducted. The Company is in all material respects duly qualified or licensed to do business as a foreign corporation and, to the extent applicable, in good standing under the Laws of any other jurisdiction in which the character of the properties owned, leased, or operated by it therein or in which the conduct or nature of its business makes such qualification or licensing necessary.

Section 4.02. Articles of Incorporation and Bylaws .   The Company has made available to Parent copies of the Company Certificate and Company Bylaws, and the copies of such documents are true, complete, and correct and contain all amendments and supplements thereto as in effect on the date of this Agreement. The Company is not in any material respect in violation of any of their respective provisions of the Company Certificate or the Company Bylaws.

Section 4.03. Company Subsidiaries .

(a) Each of the Company’s Subsidiaries, together with the jurisdiction of organization or formation of each such Subsidiary, as of the date of this Agreement, is set forth in Section 4.03(a) of the Company Disclosure Letter. Other than the Company’s Subsidiaries, the Company does not own, directly or indirectly, any membership interest, partnership interest, joint venture interest, other equity interest, or any other capital stock of any Person. Each of the Company’s Subsidiaries is a corporation, limited liability company or other organization that is duly incorporated or organized, validly existing and, to the extent applicable, in good standing under the Laws of the jurisdiction of its incorporation or organization, except where the failure to be so incorporated or organized, existing, and in good standing or to have such power and authority as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the Company’s Subsidiaries has in all material respects the requisite corporate, limited partnership, limited liability company or similar power and authority to own, lease, and operate its properties and assets and to

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