Specific performance

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On December 2, 2021, in the Delaware Court of Chancery (the “Court”), C.A. No. 2021-0854-SG, the Court denied Republic Bank & Trust Company’s (the “Bank”) expedited motion for summary judgment seeking the remedy of specific performance from Green Dot Corporation (“Green Dot”) related to the sale to Green Dot of substantially all of the assets and operations of the Bank’s Tax Refund Solutions business (the “Sale Transaction”). As a result of this ruling, the Bank does not expect the Sale Transaction to be consummated. The ruling does not otherwise impact the Bank’s lawsuit against Green Dot alleging breach of contract with respect to the Sale Transaction.

As the basis for its ruling denying specific performance as a remedy in this case, the Court held that the risk of regulatory action, including criminal and civil penalties, against Green Dot, its officers, directors, employees, and agents in the event of specific performance outweighed the harm to the Bank resulting from Green Dot’s alleged breach of contract. As a result of the Court’s denial of specific performance as a remedy, the Bank will continue to pursue damages and other equitable relief against Green Dot for its existing breach of contract lawsuit in the Court.

3. Each Commitment Party’s several, and not joint, obligation to fund its respective Commitment will terminate and expire on the earliest to occur of (a) the valid termination of the Merger Agreement in accordance with the terms thereof, (b) the date as of which Vintage or its Affiliates assigns to Parent an amount of funds and equity interests of Buddy’s equal to the Vintage Commitment in accordance with and in full satisfaction of its obligations under the terms hereof, to the extent not revoked, rescinded or terminated, (c) with respect to B. Riley, the date on which B. Riley or its Affiliates assigns to Vintage an amount of funds equal to the BR Commitment, (d) the date on which any claim is brought by the Company under, or any legal action, suit or proceeding is brought by the Company with respect to the Limited Guarantee (as defined below), B. Riley (in its capacity as BR Guarantor (as defined in the Limited Guarantee)), Vintage RTO, L.P., a Delaware limited partnership (the “VRTO Guarantor”), or any Guarantor Affiliate (as defined in the Limited Guarantee) or (e) the date on which any other claim is brought under, or legal action, suit or proceeding is initiated against Vintage or any Affiliate thereof, the B. Riley or any Affiliate thereof, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder (as defined below)) or any Affiliate thereof in connection with this letter, the Limited Guarantee, the Merger Agreement, the Buddy’s Contribution Agreement (as defined below) or any transaction contemplated hereby or thereby or otherwise relating thereto, other than a claim for specific performance under and in accordance with the contribution agreement (the “Buddy’s Contribution Agreement”) to be entered into between the VRTO Guarantor as the Buddy’s Equityholder (the “Buddy’s Equityholder”), Parent and Vintage (a “Buddy’s Contribution Claim”) or a claim for specific performance under and in accordance with the terms of the Merger Agreement or this letter agreement) (such earliest date, the “Commitment Expiration Date”). From and after the Commitment Expiration Date, none of Vintage, B. Riley, VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), any former, current and future equityholders, controlling persons, directors, officers, employees, agents, advisors, Affiliates, members, managers, general or limited partners or assignees of Vintage, B. Riley, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), or any Non-Recourse Parent Party (as defined below) shall have any further liability or obligation to any Person hereunder.

6. Concurrently with the execution and delivery of this letter agreement, (a) B. Riley and the VRTO Guarantor, are executing and delivering to the Company a Limited Guarantee, dated as of the date hereof (the “Limited Guarantee”), in favor of the Company in respect of certain of Parent’s and Merger Sub’s obligations under the Merger Agreement, in each case pursuant to the terms and conditions of, and subject to the limitations of, the Merger Agreement and the Limited Guarantee and (b) the Buddy’s Equityholder, Parent and Vintage are entering into the Buddy’s Contribution Agreement, of which the Company is an express third party beneficiary. The Company’s remedies against B. Riley and the VRTO Guarantor under the Limited Guarantee, the Company’s remedies against the Buddy’s Equityholder under the Buddy’s Contribution Agreement, the Company’s rights to specific performance under this letter agreement and the Company’s remedies against Parent and Merger Sub under the Merger Agreement shall be, and are intended to be, the sole and exclusive remedies available to the Company or any of its Affiliates against (i) Vintage, B. Riley (including in its capacity as the BR Guarantor), Parent or Merger Sub, (ii) the VTRO Guarantor (including in its capacity as the Buddy’s Equityholder) and (iii) any former, current or future equityholders, controlling persons, directors, officers, employees, agents, advisors, Affiliates, members, managers, general or limited partners, or assignees of Vintage, B. Riley (including in its capacity as BR Guarantor), Parent, Merger Sub, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder) or any former, current or future equityholder, controlling person, director, officer, employee, agent, advisor, Affiliate, member, manager, general or limited partner or assignee (other than a permitted assignee of a Commitment hereunder) of any of the foregoing (other than the Buddy’s Equityholder under the Buddy’s Contribution Agreement, the BR Guarantor and the VRTO Guarantor pursuant and subject to the terms of the Limited Guarantee, Vintage and B. Riley pursuant to and subject to the terms of this letter agreement, and Parent and Merger Sub pursuant to and subject to the terms of the Merger Agreement) (those persons and entities described in clause (iii), excluding Vintage, B. Riley (including its capacity as BR Guarantor) Parent, Merger Sub, the VRTO Guarantor (including in its capacity as the Buddy’s Equityholder), each being referred to as a “Non-Recourse Parent Party”) in respect of any liabilities or obligations arising under, or in connection with, this letter agreement or the Merger Agreement or any of the transactions contemplated hereby or thereby, including in the event Parent or Merger Sub breaches its obligations under the Merger Agreement, whether or not Parent’s or Merger Sub’s breach is caused by a Commitment Party’s breach of its obligations under this letter agreement. Under no circumstance shall Vintage be deemed to be a Non-Recourse Parent Party. Notwithstanding anything to the contrary set forth in this paragraph or in the Limited Guarantee, the Company, as the express third party beneficiary hereunder on the terms, and subject to the conditions, set forth in paragraph 4 of this letter agreement, may cause Parent and Merger Sub to, or to directly, cause the Commitments to be funded as, and only to the extent, permitted by the exercise of the Company’s rights under Section 9.08 of the Merger Agreement or on the terms, and subject to the conditions of paragraphs 1 and 3 of this letter agreement. Notwithstanding anything to the contrary contained herein or in the Limited Guarantee, under no circumstance shall the Company be permitted or entitled to receive both (x) a grant of specific performance and (y) the Parent Termination Fee and/or any money damages.

4. This letter agreement shall inure to the benefit of and be binding upon Parent, Vintage, B. Riley and their respective successors and permitted assigns. Each Commitment Party severally, and not jointly, acknowledges that the Company is an express third party beneficiary hereof, entitled to specifically enforce the several, and not joint, obligations of each Commitment Party, against such Commitment Party, to the full extent hereof in connection with the Company’s exercise of its specific performance rights under Section 9.08 of the Merger Agreement and, in connection therewith, the Company has the right to seek specific performance or equitable relief to cause Parent and Merger Sub to cause, or to directly cause, each Commitment Party to severally, and not jointly, fund, directly or indirectly, its respective Commitment, as, and only to the extent permitted by, this letter agreement, in each case, when all of the conditions to funding such Commitment set forth herein have been satisfied and as otherwise contemplated by the exercise of the Company’s rights under Section 9.08 of the Merger Agreement, and the Company shall have no other rights or remedies hereunder. Each Commitment Party accordingly, subject to Section 9.08 of the Merger Agreement, severally, and not jointly, agrees not to oppose the granting of an injunction, specific performance or other equitable relief on the basis that the Company has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law or equity. Each Commitment Party further severally, and not jointly, agrees that the Company shall not be required to post a bond or undertaking in connection with such order or injunction sought in accordance with the Company’s specific performance rights under Section 9.08 of the Merger Agreement or this letter agreement. Each Commitment Party severally, and not jointly, acknowledges and agrees that (a) Parent is delivering a copy of this letter agreement to the Company and that the Company is relying on the several, and not joint, obligations and commitments of the Commitment Parties hereunder in connection with the Company’s decision to enter into and consummate the transactions contemplated by the Merger Agreement, (b) the provisions set forth in Section 8.03(c) of the Merger Agreement and the Limited Guarantee (as defined below) (i) are not intended to and do not adequately compensate for the harm that would result from a breach of the Merger Agreement or a breach of such Commitment Party’s several, and not joint, obligations to fund its respective Commitment in accordance with the terms of this letter agreement and (ii) shall not be construed to diminish or otherwise impair in any respect the Company’s right to specific enforcement, to cause Parent and Merger Sub to cause, or to directly cause, such Commitment Party to severally, and not jointly, fund, directly or indirectly, its respective Commitment under this letter agreement, and to cause Parent and Merger Sub to consummate the transactions contemplated by the Merger Agreement under Section 9.08 of the Merger Agreement and (c) the right of specific performance under this letter agreement and Section 9.08 of the Merger Agreement are an integral part of the transactions contemplated by the Merger Agreement and without those rights, the Company would not have entered into the Merger Agreement. For the avoidance of doubt, the remedies available to the Company under Section 9.08 of the Merger Agreement and this letter agreement shall be in addition to any other remedy to which the Company is entitled, and the election to pursue any injunction or specific performance under the Merger Agreement and/or this letter agreement shall not restrict, impair or otherwise limit the Company from, in the alternative, terminating the Merger Agreement and collecting any amounts owed under the Guaranteed Obligations, as applicable; provided, that under no circumstances shall the Company be permitted or entitled to receive both (x) a grant of specific performance under Section 9.08 of the Merger Agreement and/or this letter agreement and (y) payment of the Parent Termination Fee and/or money damages. Except for the rights of the Company set forth in this paragraph, nothing in this letter agreement, express or implied, is intended to confer upon any Person other than Parent, Merger Sub, Vintage, B. Riley and the Company any rights or remedies under, or by reason of, or any rights to enforce or cause Parent to enforce, the Commitments or any provisions of this letter agreement or to confer upon any Person any rights or remedies against any Person other than Vintage or B. Riley under or by reason of this letter agreement. Without limiting the foregoing, no Person other than Parent or the Company, but in the case of the Company, only on the terms, and subject to the limitations, set forth in this paragraph and Section 9.08 of the Merger Agreement) shall have any right to specifically enforce this letter agreement or to cause Parent to specifically enforce this letter agreement.

3. Public Rights. When the Registration Statement becomes effective under the Act, when the offering is completed as contemplated by the Registration Statement, and assuming the due authorization, execution and delivery of the Public Rights by the Company, the Public Rights included in the Units will constitute the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution provision may be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding therefor may be brought.

designed to be challenging, require a high level of performance and motivate its executives to drive stockholder value. The disclosure of these specific performance target goals would inform competitors of the Company’s expectations, both historically and prospectively, with respect to its business, as well as its financial and operational strategies. Thus, disclosing the details of the Company’s performance target goals would provide competitors with significant insight into the Company’s plans and enable competitors to identify weaknesses in those plans and exploit them to their advantage by reallocating resources and shifting tactics to potentially increase R&D spending or sales and marketing expenses, attempt to accelerate new products to market or advertise in a manner to attempt to take advantage of the Company’s weaknesses. In addition, by considering such information over a period of years and comparing it to the Company’s actual results, competitors could ascertain how the Company reacts to performance that was better or worse than its own expectations, including how and when the Company decides to allocate and distribute its resources, vary its pricing strategies and interact with suppliers. Such information could be used to predict the Company’s behavior in the future to the Company’s substantial competitive disadvantage.

The Company acknowledges the Staff’s comment and recognizes the importance of providing appropriate disclosure regarding its variable compensation program. In determining what disclosures should be made, the Company carefully considers the materiality and benefit of the information to investors versus the competitive harm that might come to the Company (and ultimately to the Company’s stockholders) as a result of such disclosures. In this case, for reasons of materiality to investors and competitive harm to the Company, the Company does not consider it appropriate to disclose the specific performance targets set by the Company’s Compensation Committee for purposes of determining the payouts under the Company’s executive bonus program for fiscal 2013 and fiscal 2014. The Company believes its position is supported both by Instruction 4 to Item 402(b) of Regulation S-K and Question 118.04 of the Regulation S-K Compliance and Disclosure Interpretations (“CD&I 118.04”).

In view of these considerations, the Company has concluded that disclosure of the quantitative details of the Company’s specific performance target goals for fiscal 2013 or fiscal 2014 would cause substantial competitive harm to the Company by revealing confidential and commercially sensitive information regarding the Company’s expectations, objectives and patterns of decision making for financial, operational, product and business performance, and that disclosure of the specific performance target goals is not material to an understanding of the Company’s compensation policies and decisions and would place it at a significant competitive disadvantage. As a result, the Company has determined under Instruction 4 of Item 402(b) of Regulation S-K not to disclose the specific quantitative performance target goals under the Company’s annual bonus plan. In lieu of disclosing such targets, the Company has, in the last paragraph on page 30 of the proxy statement, as required by Instruction 4 of Item 402(b) of Regulation S-K, provided a discussion of how difficult it will be to achieve the undisclosed performance target goals.

The term “commercial or financial information” should be given its ordinary meaning, such that Company records are commercial so long as one has a “commercial interest” in them. Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1290 (D.C. Cir. 1983) (additional citations omitted). The term “commercial” need not be confined to records that “reveal basic commercial operations.” Id. Rather, information is commercial if it pertains or relates to or deals with commerce. See American Airlines, Inc. v. National Mediation Board, 588 F.2d 863, 870 (2d Cir. 1978). Moreover, in Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 644 F. Supp. 344, 346 (D.D.C. 1986), vacated on other grounds, 830 F.2d 278, 281 (D.C. Cir. 1987), the court held that “information is commercial if it relates to commerce, or it has been compiled in pursuit of profit.” The Company respectfully submits that the quantitative details of the specific performance target goals in question are indeed commercial information, thereby satisfying the first prong of Exemption 4.

Viewed in the context of other information concerning the Company’s compensation policies that has been disclosed in the Company’s proxy statement, the Company respectfully submits that the performance targets do not meet the threshold of materiality, and that the Company has complied with its disclosure obligations under Item 402. Specifically, reference is made to disclosure of the following information in the Company’s proxy statement: (a) the Company’s strategic objectives relating to executive compensation (please see Compensation and Discussion Analysis p. 27), (b) the various specific performance target goal categories for annual bonuses under the Company’s variable compensation plan (please see Compensation and Discussion Analysis pp. 29-30), (c) the specific weight given to each performance target goal (please see Compensation and Discussion Analysis p. 30), (d) whether the specific performance target goals for annual bonuses were achieved (please see Compensation and Discussion Analysis p. 30), (e) the total potential payout for attainment of the performance target goals, (f) the basis on which the Compensation Committee determines the performance target goals and the difficulty of achieving such goals (please see Compensation and Discussion Analysis p. 30) and (g) total payouts based on actual performance against performance target goals (please see Compensation and Discussion Analysis p. 30).

In addition, knowledge by the Company’s competitors of the Company’s specific performance target goals could also be used when recruiting and/or seeking to attract the Company’s executives. If the Company were required to disclose the specific performance target goals, its competitors would know precisely how the various performance metrics would affect the Company’s executives’ overall compensation and could design more attractive compensation packages designed to lure away or distract the Company’s executives or other top talent.

In consideration of the facts and circumstances discussed above, including the need for investors to be provided with adequate information about the Company’s variable compensation program, the lack of materiality of information regarding the Company’s specific performance target goals and the need for the Company to protect its confidential competitive information from disclosure, the Company respectfully submits that the substantial negative impact on the Company that would be likely to result from a disclosure of competitive, confidential information regarding the Company’s

THIS SPECIFIC PERFORMANCE REAL ESTATE SALES CONTRACT (hereinafter referred to as the “Contract”) is entered into by and between Dakota Blackhawk, LLC, a Colorado limited liability company, (“Dakota”), Miner’s Mesa Development, LLC, a Colorado limited liability company (“Miner’s”) (hereinafter “Dakota” and “Miner’s” shall collectively be referred to as “Seller”) and Jacobs Entertainment, Inc. and/or Assigns (hereinafter referred to as “Purchaser”) as of the Effective Date (defined in Section 13.9 below) (sometimes herein “Seller” and “Purchaser” are singularly referred to as a “Party” and collectively as the “Parties”).

In the event that Seller shall default in the performance of Seller’s obligations hereunder (for any reason whatsoever other than Purchaser’s default or termination as permitted hereunder), as Purchaser’s only remedies hereunder, Purchaser may, at Purchaser’s option: (i) purchase the Property notwithstanding such default pursuant to the remaining terms and provisions of this Contract, in which event such default shall be deemed waived; or (ii) terminate this Contract, in which event Purchaser shall be entitled to return of Purchaser’s Earnest Money Deposit, and neither Seller nor Purchaser shall have any further obligation hereunder except as otherwise provided herein; or (iii) seek specific performance of this Contract

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