Exhibit 10.21
AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
BY AND BETWEEN
EMPIRE RESORTS, INC.
AND
XXXXX X. XXXXXXXXX
This AMENDED AND RESTATED EMPLOYMENT AGREEMENT (the "AGREEMENT") is made as
of January 12, 2004, by and between EMPIRE RESORTS, INC. (the "COMPANY"), a
corporation duly organized and existing under the laws of the State of Delaware,
with offices at Monticello Raceway, Xxxxx 00X, Xxxxxxxxxx, Xxx Xxxx 00000, and
XXXXX X. XXXXXXXXX (the "EMPLOYEE"), an individual residing at 0000 Xxxxxxx Xxxx
Xxx. Xxxxxxxx, XX 00000-0000.
WHEREAS, pursuant to that certain Amended and Restated Contribution
Agreement (the "CONTRIBUTION AGREEMENT"), dated as of February 8 , 2002, by and
between the Company and Watertone Holdings, LP ("WATERTONE"), Watertone
transferred and contributed to the New York Gaming LLC (the "LLC") a portion of
Watertone's interest in Catskill Development, L.L.C. ("CATSKILL");
WHEREAS, pursuant to that certain Employment Agreement, dated February 12,
2002, between the Company and the Employee, the Employee has, and continues to
serve as the Company's principal financial officer (the "ORIGINAL AGREEMENT");
and
WHEREAS, the Company and the Employee now desire to amend and restate the
Original Agreement as provided herein.
NOW THEREFORE, in consideration of the respective representations,
warranties, agreements and covenants contained herein, and for such other good
and valuable consideration, the receipt and legal sufficiency of which are
hereby acknowledged, the parties hereto hereby agree that the Original Agreement
is hereby amended and restated in its entirety as follows:
1. EMPLOYMENT; TITLE; DUTIES AND RESPONSIBILITIES.
(a) The Company hereby agrees to employ the Employee, and the Employee
hereby agrees to serve the Company, on the terms and conditions set forth
herein, as the Chief Financial Officer of the Company, with such powers,
authorities, responsibilities and duties as may be assigned to him from time to
time by any Senior Officer (as hereinafter defined) or the Board of Directors of
the Company (the "BOARD").
(b) During the Term (as hereinafter defined), the Employee shall, during
business hours, devote all of his time, energy, skills, expertise, knowledge and
abilities on an exclusive basis to the performance of his duties and obligations
hereunder and shall, consistent with the Company's Policies (as hereinafter
defined) and as directed or requested from time to time by the Board or any
Senior Officer, diligently, conscientiously and in good faith render and perform
such services in such areas and places as are so directed or requested of him to
carry out his duties; PROVIDED, HOWEVER, that the foregoing shall not be deemed
to prohibit the Employee, outside of normal business hours, from engaging in any
other business activities that do not conflict or interfere with his obligations
to the Company or its Affiliates (as hereinafter defined) as set forth in this
Agreement. The Employee, at all times during the Term, shall adhere to and obey
all Company Policies that have been furnished or provided to him or of which he
has otherwise become or been made aware. For purposes of this Agreement,
"COMPANY POLICIES" means, collectively, the practices, rules, procedures and
polices of the Company as in effect from time to time, whether or not set forth
in writing in any Company manual or other directive or as may be imposed on the
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Company under applicable law, and "SENIOR OFFICER" means (if other than the
Employee) the Chairman of the Board of the Company. Without limiting the effect
or generality of the foregoing, the Employee shall at all times during the Term:
(1) faithfully, diligently and timely perform such duties, and exercise
such powers, as may from time to time be assigned to, or vested in, him by
the Board or any Senior Officer;
(2) obey all lawful and reasonable directions of the Board or any Senior
Officer;
(3) use his best efforts and endeavors to promote the interests of the
Company and its Affiliates;
(4) keep the Board (or such persons(s) as may have been designated from
time to time by the Board) promptly and fully informed (in writing if so
requested) of his conduct of the business and affairs of the Company and
provide such explanations as the Board may from time to time request;
(5) subject to the proviso in the first sentence of SECTION 1(b) above,
devote all of his professional and business time to the conduct of the
business of the Company (and, if so requested by the Board or any Senior
Officer, one or more of its Affiliates) and to the performance of his
duties hereunder;
(6) except with respect to the Consolidation (as hereinafter defined), not
at any time engage in any self dealing or conflict of interest that is
material to the Company or any of its Affiliates or to any client,
customer, supplier or vendor of the Company or of any of its Affiliates;
and
(7) not at any time make any materially untrue or misleading statement
relating to the Company or any of its Affiliates or to any client,
customer, supplier or vendor of the Company or of any of its Affiliates.
(c) In addition, the Employee shall perform such other functions for the
Company, including taking positions with Affiliates and performing duties on
their behalf, as may be assigned to him from time to time by the Board or any
Senior Officer. As used in this Agreement, "AFFILIATE" of any person means any
entity (1) that such person (directly or indirectly through one or more
subsidiaries or other entities, or by contract or otherwise) controls, (2) that
(directly or indirectly through one or more subsidiaries or other entities, or
by contract, overlapping directors or management or otherwise), controls such
person or is under common control with such person, (3) in which such person
(directly or indirectly through one or more subsidiaries or other entities, or
by contract or otherwise) owns (of record or beneficially) or holds, or
otherwise has the right to vote, at least a five per cent (5%) of the equity
interest thereof or therein, (4) that, individually or with others with which it
is acting as a group or with a common goal, (directly or indirectly through one
or more subsidiaries or other entities, or by contract or otherwise) owns (of
record or beneficially) or holds, or otherwise has the right to vote, at least a
ten per cent (10%) of the equity interest of or in such person, (5) for which
such person, if an individual, is serving or acting as an officer, employee,
sales agent or representative, consultant or adviser or in any similar capacity
or (6) for which such person, if an individual, is acting or serving as a member
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of its board of directors or other governing body. Notwithstanding anything
contained herein to the contrary, the Employee shall not be obligated hereunder
to devote more time to performing his duties hereunder to the Company and/or its
Affiliates than is generally expected of other executives of the Company.
(d) The Company shall reimburse the Employee for all reasonable expenses
expended by the Employee in connection with the investigation of the Employee
(as an officer or director of the Company) or any finding or determination of
suitability of the Employee (as an officer or director of the Company) by any
Gaming Authority (as defined in the Contribution Agreement).
2. TERM OF EMPLOYMENT.
This Agreement is terminable at will by either the Employee or the Company
upon 30 days prior written notice, and (b) the amounts then due thereunder from
the date of the closing shall be limited to the amounts due under Sections 4, 5
and 6 of this Agreement (including, without limitation, any and all of the
Employee's salary due hereunder or under the Original Agreement that the
Employee may have agreed to, or in the future agrees to, defer ($436.95 through
the date hereof)).
3. TRAVEL.
Travel during the Employee's employment shall be in accordance with Company
Policies as in effect from time to time. The Employee shall be entitled to
reimbursement for employment-related travel in accordance with SECTION 5 below.
4. COMPENSATION.
(a) As compensation for his services and in consideration for the
Employee's covenants contained in this Agreement, the Company shall pay to
Employee a salary that on an annualized basis will equal Two Hundred Thousand
Dollars ($200,000). Such annual salary shall be payable in equal installments on
a bi-weekly basis and in accordance with Company Policies and shall be subject
to applicable federal, state and local withholdings and deductions.
(b) The Company shall be entitled to withhold from any payments due
hereunder taxes, FICA, contributory insurance participations and other normal
deductions, all in accordance with Company Policies.
5. EXPENSE REIMBURSEMENT.
The Company shall, consistent with Company Policies, reimburse the Employee
for reasonable out-of-pocket business expenses incurred by him in his
performance of services hereunder to or for the Company or any Affiliate of the
Company, upon submission of reasonable documentation therefor.
6. OPTION AWARDS.
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All previously granted Company stock options and vesting schedules of the
Employee shall remain in effect. The Company may, from time to time, elect to
grant the Executive additional stock options.
7. OTHER BENEFITS.
(a) Subject to his qualifying therefor and complying with all relevant
Company Policies, the Employee shall be entitled to participate in all benefit
plans, retirement plans, programs and arrangements of the Company, if any, made
available to its officers or generally to its employees, on a basis at least
equal to that extended to other senior management employees of the Company.
(b) The Employee shall be entitled to twenty (20) days per year paid
vacation and five (5) paid personal days in accordance with the Company Policies
in effect from time to time. Unused vacation and personal days may not be
carried over to a subsequent year, and the Company shall have no obligation to
compensate Employee for any unused vacation or personal days upon the expiration
or earlier termination of this Agreement or Employee's employment hereunder.
8. REPRESENTATIONS AND WARRANTIES OF EMPLOYEE. The Employee hereby
represents and warrants to the Company, in order to induce the Company to enter
into this Agreement and employ him hereunder, as follows:
(a) The Employee has not been convicted of any felony or any other criminal
offense that is punishable with or by six (6) months or more imprisonment
(regardless of whether Employee has actually been imprisoned or sentenced to
imprisonment).
(b) The Employee is under no contractual or other impediment to undertake
the offices and/or employment provided or contemplated hereunder or otherwise to
perform hereunder and that, by so doing, he will not be in violation of any
commitment, agreement or obligation to any other person or entity.
9. CONFIDENTIAL/PROPRIETARY INFORMATION; NON-SOLICITATION; NON-COMPETITION.
(a) During the Term and thereafter, Employee shall, and shall cause each
and all of his agents, representatives and Affiliates:
(1) to treat all Confidential Information (as hereinafter defined) in the
strictest confidence;
(2) not to disclose, publish, distribute, disseminate, reproduce, utilize
or make accessible in any manner or in any form any Confidential
Information other than in connection with performing the services required
of the Employee under this Agreement; and
(3) not to reproduce, retain, copy, publish, plagiarize, appropriate or
otherwise utilize (as a model, precedent, form, template or otherwise), or
refer to in way, any of the Company's marketing materials, forms of letters
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or agreements or other business documents or any part or portion of, or
excerpt from, any of the foregoing.
(b) As used herein, "CONFIDENTIAL INFORMATION" means any proprietary,
confidential and/or other non-public information of, relating to or regarding
the business or interests of the Company or any of its Affiliates, including,
without limitation, (1) any trade secrets, know-how, databases, company
policies, procedures and techniques, correspondence, agreements, negotiations,
offering packages, business descriptions and profiles, business plans, financial
information, product literature and technical projects of, regarding or relating
to the Company or any of its Affiliates or the business, operations, products
and/or services of the Company or any of its Affiliates, (2) any research datum,
result or report regarding the Company or any of its Affiliates or any aspects
of the business, operations, business dealings, prospects or financial condition
or financial results of the Company or any of its Affiliates, (3) any report,
analysis, study, invention, process or other work product developed by, for or
on behalf of the Company or any of its Affiliates, including, without
limitation, that developed by the Employee, whether on the premises of the
Company or elsewhere and whether or not developed during normal business hours
or on normal business days, and (4) any list of customers, clients, vendors,
suppliers or prospects of the Company or any of its Affiliates. Notwithstanding
the foregoing, the provisions of this Agreement shall not apply to any
Confidential Information to the extent, but only to the extent, that the same
is, or has become, publicly known under circumstances involving no breach of
this Agreement or any other agreement of confidentiality or has been disclosed
pursuant to an order or requirement of a court, administrative agency or other
governmental body of competent authority, PROVIDED HOWEVER, that the Company has
been given appropriate and reasonable notice of such proceeding and a reasonable
opportunity to contest such disclosure. Without limiting the generality of the
foregoing, except as consented to in writing by the Board or a Senior Officer,
the Employee shall not in any way or at any time disclose or publish the name(s)
or description(s) of any transaction by the Company or any of its Affiliates,
whether contemplated, pending or completed, or the identity of any party to any
such transaction.
(c) All business, financial, product and technical records, information and
literature relating to the business or operations, or any product or service, of
the Company or any of its Affiliates (all such business, financial, product and
technical records, information and literature being hereinafter referred to
collectively as "BUSINESS RECORDS"), including, without limitation, Confidential
Information, fee agreements, confidentiality agreements, papers, databases,
contact records, documents and correspondence and studies containing information
relating to the Company or any of its Affiliates or any transaction (whether
contemplated, pending or completed) by the Company or any of its Affiliates, in
all cases irrespective of the manner in which such information was obtained or
is kept or stored, made or kept by the Employee or under the Employee's
possession, custody or control or in the possession, custody or control of any
agent and representative of the Employee, shall be and remain the sole and
exclusive property of the Company and shall be surrendered to the Company at the
time of the expiration or earlier termination of this Agreement or Employee's
employment hereunder for any reason whatsoever or, if earlier, upon the request
of the Company. Upon such expiration or termination or earlier request, the
Employee shall not, and shall cause his or her agents, representatives and
Affiliates not to, retain, publish or disclose, or otherwise use, without the
prior written consent of a Senior Officer, any Business Records.
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(d) Employee hereby assigns, transfers and conveys to the Company all of
his respective right, title and interest in and to any and all Company Property
(as hereinafter defined). If any Company Property is deemed in any way to fall
within the definition of "work for hire" as such term is defined in 17 U.S.C.
ss.101, such Company Property shall be considered "work for hire" and the
Company shall be deemed the author and sole and exclusive owner of any
copyrights and other rights and interests therein. If any of the Company
Property is considered to be work not included in the categories of work covered
by the "work for hire" definition contained in 17 U.S.C. ss.101, such Company
Property shall be owned by the Company or assigned or transferred completely and
exclusively to the Company. The Employee agrees promptly to execute any
instruments, and to do all things, reasonably requested by the Company in order
more fully to vest in the Company all ownership rights in all Company Property.
As used herein, "COMPANY PROPERTY" means each and all of every idea, invention,
writing, composition and/or computer program (whether or not patentable or
protected by copyright and including, without limitation, any Confidential
Information) that relates to the business or affairs of the Company or any of
its Affiliates and either (i) that has been conceived, created, invented or
otherwise developed in whole or in part by the Employee or (ii) with respect to
the conception, creation, invention or development of which Employee may have
aided during the term of his employment by the Company.
(e) In furtherance of the covenants contained herein and as a condition to
the continuation of the Employee's employment hereunder, the Employee shall
execute and deliver to the Company such further agreements and commitments as
the Company may from time to time reasonably request in order more fully to
protect the Company's rights and interests in and to the Confidential
Information, the Business Records and proprietary and other rights and interests
in and with respect to its business prospects.
10. INJUNCTIVE RELIEF; INDEPENDENCE AND SEVERABILITY OF COVENANTS.
(a) The Employee acknowledges and agrees that, in the event of any breach
or likely breach of any of the covenants of SECTION 9 above, the Company and any
relevant Affiliate(s) would be irreparably harmed and could not be made whole
solely by monetary damages. It is accordingly agreed that such Persons, in
addition to any other remedies to which they may be entitled at law or in
equity, shall be entitled to equitable relief (in the form of an injunction or
otherwise) in respect of such breach or likely breach (or any threatened
breach). In the event the Company seeks any equitable relief or remedy with
respect to any such threatened or actual breach, violation or default (1) the
Employee will not seek to oppose or defend against such equitable relief or
remedy on the ground that the Company has an adequate remedy at law or on any
other similar or related ground and (2) no bond or other security shall be
required for, or as a condition to, the seeking or granting of any injunction or
other equitable relief. It is intended to grant full third-party rights under
this provision.
(b) The Employee acknowledges and agrees that the covenants and other
provisions set forth in SECTION 9 above and in this SECTION 10 be enforceable to
the fullest extent possible under applicable law.
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(c) For the purposes of this SECTION 10, the state and federal courts of
the State of New York will be the proper and exclusive forums for any legal
controversy arising in connection with this Agreement.
11. MISCELLANEOUS.
(a) INDEMNIFICATION.
(1) Each of the parties hereto (an "INDEMNIFYING PARTY") shall indemnify
and hold harmless the other party hereto (and, with respect to any breach
of SECTION 9 above, the Company's Affiliates) (the "INDEMNIFIED PARTY")
from and against, and shall reimburse the Indemnified Party for, any and
all liabilities, losses, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and other legal costs, including
those related to any appeal, and costs of any investigation) (all of the
foregoing, collectively, "LOSSES") that have been suffered or incurred by
the Indemnified Party and that have resulted from, or been occasioned by,
(a) any breach or violation by the Indemnifying Party of any of its or his
representations, warranties, covenants and other agreements set forth
herein or (b) any claim asserted by any third party that, if true, would
constitute a breach or violation by the Indemnifying Party of any of its or
his representations, warranties, covenants and other agreements set forth
herein (any such claim, a "THIRD-PARTY CLAIM").
(2) If the Indemnified Party shall receive notice of, or otherwise become
aware of the assertion of, any Third-Party Claim with respect to which the
Indemnified Party intends to seek indemnification under this SUBSECTION
(a), then the Indemnified Party shall give prompt written notice thereof to
the Indemnifying Party, which notice shall include or be accompanied with a
copy of any summons, complaint or other written evidence of such
Third-Party Claim to the extent that such summons, complaint or other
written evidence has been received by such Indemnified Party or by any
attorney or other agent thereof. The failure of the Indemnified Party to
give such notice or to give such notice promptly shall not relieve the
Indemnifying Party of its obligation to indemnify the Indemnified Party
under this SUBSECTION (a) except to the extent that the failure to give
such notice or the delay in giving such notice has materially prejudiced
the Indemnifying Party in its or his ability to defend against such
Third-Party Claim. The Indemnifying Party shall, with counsel selected by
it (which selection shall be subject to the approval of the Indemnified
Party, such approval not to be unreasonably withheld or delayed), be
entitled to defend against and settle any Third Party Claim; PROVIDED,
HOWEVER, that the Indemnifying Party's right to do so shall be conditioned
upon its or his having confirmed in writing to the Indemnified Party its or
his obligation to indemnify the Indemnified Party with respect to such
Claim (any such confirmation, a "NOTICE TO INDEMNIFY") and, PROVIDED,
further, HOWEVER, that the Indemnifying Party shall not be entitled to
enter into any settlement of any such Claim without the prior written
consent of the Indemnified Party, which consent shall not be unreasonably
withheld or delayed. Notwithstanding anything contained herein to the
contrary, the Indemnifying Party's obligation to indemnify the Indemnifying
Parties against any Third-Party Claim shall be conditioned upon the
Indemnifying Party providing full and timely cooperation in the defense of
such Claim.
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(3) Notwithstanding anything contained herein to the contrary, except as
provided in the next following sentence, the Indemnifying Party shall not
be obligated to indemnify the Indemnified Party for, or otherwise pay, any
attorneys' fees or other legal or related costs (or any costs of any
investigation) suffered or incurred by the Indemnified Party in connection
with any Third-Party Claim after the Indemnified Party receive any Notice
to Indemnify with respect to such Claim; PROVIDED, HOWEVER, that, if, after
giving any Notice to Indemnify, the Indemnifying Party reverses its or his
position and claims that it or he is not required to Indemnify the
Indemnified Party against the Third-Party Claim, then, in the event the
Indemnifying Party is obligated hereunder to indemnify the Indemnified
Party with respect to such Claim, the Indemnifying Party shall bear and pay
the reasonable attorneys' fees and other legal costs, including those
related to any appeal, and costs of any investigation, incurred by the
Indemnified Party after the Indemnifying Party has reversed its or his
position and claimed that it or he is not required to Indemnify the
Indemnified Party against such Claim. Notwithstanding the foregoing, if
there is a legitimate and good faith conflict of interest between the
Indemnifying Party and the Indemnified Party in connection with the defense
of any Third-Party Claim so that one counsel or law firm could not properly
represent both parties in connection with such defense, then the
Indemnified Party, in the event it or he is obligated hereunder to
indemnify the Indemnified Party with respect to such Claim, shall bear and
pay the reasonable attorneys' fees and other legal costs, including those
related to any appeal, and costs of any investigation, incurred by the
Indemnified Party in connection with such defense, regardless of whether
the Indemnifying Party has given a Notice to Indemnify. Under no
circumstances, however, shall the Indemnifying Party be obligated to pay
for the attorneys' fees or related legal fees of more than one attorney or
law firm.
(b) NOTICES. All notices, demands, requests, consents, approvals or other
communications (each of the foregoing, a "NOTICE") required to be given
hereunder or pursuant hereto to either party hereto shall be in writing and
shall be (a) personally delivered, (b) sent by both registered to certified
mail, postage prepaid and return receipt requested, and regular first class
mail, (b) sent both by facsimile transmission with receipt of transmission
confirmed electronically or by telephone and by regular first class mail or (c)
sent by reputable overnight courier service with charges prepaid and delivery
confirmed, to the intended recipient at its or his respective address as set
forth below; PROVIDED, HOWEVER, that, if a party sending any Notice has received
written notice in accordance with this SUBSECTION (b) of a more recent address
for any intended recipient referred to below, any Notice to such intended
recipient shall be delivered or sent to it or him at the most recent address of
which such party has received such a notice:
if to the Company:
Empire Resorts, Inc.
Xxxxx 00X
Xxxxxxxxxx, Xxx Xxxx 00000
Attn: Chairman of the Board
Facsimile number: (000) 000-0000
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if to Employee:
Xxxxx X. Xxxxxxxxx
0000 Xxxxxxx Xxxx Xxx.
Xxxxxxxx, XX 00000-0000
Facsimile number: _________
Any Notice delivered or sent as provided above shall be deemed given when so
delivered or sent and shall be deemed received (i) when personally delivered,
(ii) three (3) business days after being mailed as above provided, (iii) when
sent by facsimile transmission as above provided or (iv) one (1) business day
after being sent by courier as above provided; PROVIDED, HOWEVER, that any
Notice specifying a new address to which any Notice shall be sent shall be
deemed received only when actually received.
(c) ENTIRE AGREEMENT. This Agreement is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein, constitutes the entire agreement of the
parties with respect to such subject matter and supersedes, and merges herein,
all prior and contemporaneous negotiations, discussions, representations,
understandings and agreements between the parties, whether oral or written, with
respect such subject matter. No representation, warranty, restriction, promise,
undertaking or other agreement with respect to such subject matter has been made
or given by either party hereto other than those set forth in this Agreement.
(d) AMENDMENT AND WAIVER. This Agreement may be amended, modified or
supplemented only to the extent expressly set forth in writing that is signed by
the party to be charged therewith and that sets forth therein that its purpose
is to amend, modify or supplement this Agreement or some term, condition or
provision hereof. No waiver of any term, condition or provision of this
Agreement or of any breach or violation of this Agreement or any provision
hereof shall be effective except to the extent expressly set forth in writing
that is signed by the party to be charged therewith. Without limiting the
generality of the foregoing, no conduct (including, without limitation, any
failure or delay in enforcing this Agreement or any provision hereof or any
acceptance or retention of payment) or course of conduct by either party hereto
shall be deemed to constitute a waiver by such party of the breach or violation
of this Agreement or of any provision hereof by the other party hereto. Any
waiver may be made in advance or after the right waived has arisen or the breach
or default waived has occurred, and any waiver may be conditional. No waiver of
any breach or violation of any agreement or provision herein contained shall be
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deemed a waiver of any preceding or succeeding breach or violation thereof nor
of any other agreement or provision herein contained. No waiver or extension of
time for performance of any obligations or acts shall be deemed a waiver or
extension of the time for performance of any other obligations or acts.
(e) ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement and the
rights, duties and obligations hereunder may not be assigned or delegated by
either party hereto, without the prior written consent of the other party
hereto; PROVIDED that, consistent with the terms hereof, the Company may from
time to time direct that the Employee serve as a director and/or officer of, or
otherwise provide services to or work for, any Affiliate of the Company. Except
as provided in the preceding sentence, any purported assignment or delegation of
rights, duties or obligations hereunder made without the prior written consent
of the other party hereto shall be null and void and of no effect. This
Agreement and the provisions hereof shall be binding upon and enforceable
against each of the parties and their respective executors, heirs, legal
representatives, administrators, successors and assigns and shall inure to the
benefit of and be enforceable by each of the parties and their respective
executors, heirs, legal representatives, administrators, successors and
permitted assigns. Except as contemplated under SECTION 11 above and SUBSECTION
(a) of this SECTION 11, this Agreement is not intended to confer any rights or
benefits on any Persons other than as set forth above.
(f) SEVERABILITY. This Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or
provision hereof. The parties intend that this Agreement and each of the
provisions hereof be enforced to the fullest extent permitted by law.
Accordingly, in lieu of any such invalid or unenforceable term or provision, the
parties hereto intend that there shall be added as a part of this Agreement a
provision as similar in terms to such invalid or unenforceable provision as may
be possible and be valid and enforceable.
(g) FURTHER ASSURANCES. Each party hereto, upon the request of any other
party hereto, shall do all such further acts and execute, acknowledge and
deliver all such further instruments and documents as may be necessary or
desirable to carry out the transactions contemplated by, and the purpose and
intent of, this Agreement.
(h) TITLES AND HEADINGS; RULES OF INTERPRETATION. Titles, captions and
headings of the sections, articles and other subdivisions of this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of any provision of this Agreement. References to Sections and
Articles refer to sections and articles of this Agreement unless otherwise
stated. Words such as "herein," "hereinafter," "hereof," "hereto," "hereby" and
"hereunder," and words of like import, unless the context requires otherwise,
refer to this Agreement taken as a whole and not to any particular Section,
Article or other provision hereof. As used in this Agreement, the masculine,
feminine and neuter genders shall be deemed to include the others if the context
requires, and if the context requires, the use of the singular shall include the
plural and VISA VERSA. This Agreement is the product of mutual negotiations
between the parties and their respective counsels, and no party shall be deemed
the draftsperson hereof or of any portion or provision hereof. Accordingly, in
the event of any ambiguity or inconsistency in any provision of this Agreement,
the same shall not be interpreted against either party hereto as the party
responsible for drafting such provision.
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(i) WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION. EACH OF THE PARTIES
HERETO EXPRESSLY WAIVES ITS OR HIS RIGHT TO A JURY TRIAL WITH RESPECT TO ANY
SUIT, LITIGATION OR OTHER JUDICIAL PROCEEDING RELATING TO THIS AGREEMENT OR ANY
DISPUTE HEREUNDER OR RELATING HERETO.
(j) GOVERNING LAW; JURISDICTION OF COURTS. This Agreement shall be governed
by, interpreted under and construed in accordance with the internal laws of the
State of New York applicable to contracts executed and to be performed in that
State without giving effect to the choice of conflict of laws principles or
provisions thereof. Each of the parties hereto agrees that any dispute under or
with respect to this Agreement shall be determined before the state or federal
courts situated in the City, County and State of New York, which courts shall
have exclusive jurisdiction over and with respect to any such dispute, and each
of the parties hereto hereby irrevocably submits to the jurisdiction of such
courts. Each party hereby agrees not to raise any defense or objection, under
the theory of forum non conviens or otherwise, with respect to the jurisdiction
of any such court. In addition to such other method as may available under
applicable law, each party agrees that any summons, complaint or other papers or
process in connection with any such dispute may be served on it or him in the
same manner in which a Notice may be given to it or him pursuant to SUBSECTION
(b) of this SECTION 11.
(k) COUNTERPARTS. This Agreement may be executed in counterparts and by one
or more of the parties hereto in separate counterparts, each of which when so
executed shall be deemed an original and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
EMPIRE RESORTS, INC.
/s/ XXXXX X. XXXXXXXXX By: /s/ Xxxxxx X. Xxx
------------------------ --------------------------------
Xxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxx
Title: Executive Vice President
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