STOCKHOLDER VOTING AGREEMENT
Exhibit 10.3
THIS
STOCKHOLDER VOTING AGREEMENT (this “Agreement”)
is entered into as of August 19, 2009 by and among the stockholders listed on
the signature page(s) hereto (collectively, the “Stockholders”
and each individually, a “Stockholder”),
Empire Resorts, Inc., a Delaware corporation (the “Company”),
and Kien Huat Realty III Limited, an Isle of Man corporation (the
“Investor”). Capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the Investment
Agreement referred to below.
WHEREAS,
as of the date hereof, the Stockholders collectively own of record and
beneficially the shares of common stock, $0.01 par value per share, of the
Company (“Common
Stock”) set forth opposite their respective names on Schedule
I hereto (such shares being referred to herein collectively as
the “Shares”
and, for the avoidance of doubt, all references herein to a Stockholder’s Shares
shall include not only all the Shares opposite such Stockholder’s name on
Schedule I, but also all additional shares of Common Stock that are, or become
during the term of this Agreement, owned directly or indirectly by such
Stockholder or any Person controlled by or under common control with such
Stockholder, subject in all cases to Transfers (as defined below) of such Shares
that have been made to Permitted Transferees to the extent permitted by and in
accordance with Section 2(a));
WHEREAS,
concurrently with the execution of this Agreement, the Investor and the Company
are entering into an Investment Agreement, dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “Investment
Agreement”), pursuant to which, the Company has agreed, subject to the
terms thereof, to issue shares of Common Stock to the Investor in exchange for
the consideration set forth therein; and
WHEREAS,
as a condition to the willingness of the Investor to enter into the Investment
Agreement, the Investor has required that the Stockholders enter into, and in
order to induce the Investor to enter into the Investment Agreement, the
Stockholders are willing to enter into, this Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section
1. Voting
of Shares. Each Stockholder covenants and agrees that until
the termination of this Agreement in accordance with the terms hereof, at the
stockholders’ meeting called by the Company to approve the Company Voting
Proposals pursuant to Section 3.1 of the Investment Agreement (including any
adjournments or postponements thereof) or any other meeting of the stockholders
of the Company, however called, and in any action by written consent of the
stockholders of the Company, such Stockholder (a) will vote or consent to, or
cause to be voted or consented to, all of his, her or its Shares in favor of (i)
the Company Voting Proposals and (ii) any other matter relating to the
consummation of the transactions contemplated by the Investment Agreement with
respect to which such Stockholder may be entitled to vote and (b) will vote all
of his, her or its Shares against, and not provide consent to, (i) any and all
Alternative Investment Proposals and agreements providing for Alternative
Investment Proposals or any proposal or nomination made by a Person who is, or
whose Affiliate is, making or has communicated an intention to make, an
Alternative Investment Proposal, (ii) any action or agreement that would
reasonably expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the
Investment Agreement, or (iii) any other matter that would reasonably be
expected to prevent, interfere with or delay consummation of the transactions
contemplated in the Investment Agreement.
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Section
2. Transfer
of Shares.
(a) Each
Stockholder covenants and agrees that, without the prior written consent of the
Investor, such Stockholder will not directly or indirectly (i) sell, assign,
transfer (including by merger, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law), pledge, encumber, assign
or otherwise dispose of (“Transfer”)
any Shares or the Beneficial Ownership (as hereinafter defined) thereof,
(ii) deposit any Shares into a voting trust or enter into a voting
agreement or arrangement with respect to any Shares or the Beneficial Ownership
thereof or grant or agree to grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement or (iii) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect Transfer of any Shares or the Beneficial Ownership
thereof (except, in each case under clause (i) and this clause (iii),
to a Permitted Transferee). For purpose of this Agreement, “Beneficial
Ownership” shall have the meaning given to such term in Rule 13d-3 under
the Exchange Act (disregarding the reference to “within 60 days” in Rule
13d-3(d)(1)(i)). As used herein, a “Permitted
Transferee” shall mean a Person that (A) is a signatory to this Agreement
as of the date hereof, owns Shares continuously from the date hereof through the
time of the action proposed under Section 2(a)(i) or Section 2(a)(iii), and has
not violated this Agreement or (B) before such action proposed under Section
2(a)(i) or Section 2(a)(iii) occurs, agrees in writing, in form and substance to
the reasonable satisfaction of the Investor, to be bound as a Stockholder under
this Agreement and has not violated this Agreement. In connection
with any Transfer of Shares to a Permitted Transferee, the transferring
Stockholder may transfer its rights and obligations under this Agreement to the
Permitted Transferee, but the transferring Stockholder shall remain primarily
liable for all breaches of such obligations before such Transfer and shall
remain secondarily liable for all breaches of such transferred obligations from
and after such Transfer. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall permit any Transfer of Shares,
Beneficial Ownership, rights or obligations or any other action that would
otherwise be permitted by this Section 2(a) if such Transfer or other action
would create any material impediment or delay to the performance or consummation
of the Investment Agreement or this Agreement, including, without limitation,
triggering the applicability of any Takeover Statute to the Investment
Agreement, this Agreement or any of the transactions contemplated by the
Investment Agreement or this Agreement.
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(b) Each
Stockholder undertakes that, while this Agreement is in effect, except as
contemplated by Section 8, such Stockholder shall not, directly or indirectly,
(i) solicit, initiate, propose or knowingly encourage or take any other action
to knowingly facilitate an Alternative Investment Proposal, (ii) enter into any
letter of intent, memorandum of understanding, agreement, option agreement,
voting agreement or other agreement or arrangement with respect to any
Alternative Investment Proposal or (iii) enter into, continue, participate,
engage or knowingly assist in any manner in negotiations or discussions with, or
provide any non-public information or data to, any person (other than the
Investor or any of its affiliates or representatives) relating to any
Alternative Investment Proposal.
Section
3. Proxy
With Respect to Shares. Each Stockholder hereby irrevocably
appoints the Investor as its attorney and proxy, with full power of
substitution, to vote or act by consent in such a manner as such attorney and
proxy or its substitute shall, in its sole discretion, deem proper, and
otherwise act with respect to all of the Shares which it is entitled to vote at
any meeting of the stockholders (whether annual or special and whether or not an
adjourned or postponed meeting) of the Company or to act by consent with respect
to any action (the “Proxy”);
provided,
however, that each Stockholder grants a proxy hereunder only with respect
to the following matters that may be presented to the stockholders of the
Company: (i) votes or consents with respect to the Company Voting Proposals
pursuant to Section 3.1 of the Investment Agreement; (ii) votes or consents with
respect to any other matter relating to the consummation of the transactions
contemplated by the Investment Agreement; (iii) votes or consents with respect
to any and all Alternative Investment Proposals and agreements providing for
Alternative Investment Proposals or any proposal or nomination made by a Person
who is, or whose Affiliate is, making or has communicated an intention to make,
an Alternative Investment Proposal; (iv) votes or consents with respect to any
action or agreement that would reasonably be expected to result in a breach of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Investment Agreement; and (v) votes or consents with
respect to any other matter that would reasonably be expected to prevent,
interfere with or delay consummation of the transactions contemplated in the
Investment Agreement. This proxy is irrevocable, is coupled with an
interest sufficient in law to support an irrevocable proxy and is granted in
consideration of and as an inducement to cause the Investor to enter into the
transactions contemplated by the Investment Agreement. This proxy
shall revoke any other proxy granted by any of the Stockholders at any time with
respect to the Shares and no subsequent proxies will given by any Stockholder
with respect to the Shares while the Proxy is in effect.
Section
4. Reasonable
Efforts to Cooperate.
(a) Except
as contemplated by Section 8, each Stockholder will, without further
consideration, promptly provide any information reasonably requested by the
Company or the Investor for any regulatory application or filing made or
approval sought in connection with the transactions contemplated by this
Agreement or the Investment Agreement (including filings with the SEC or any
other Governmental Entity).
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(b) Each
Stockholder hereby consents to the publication and disclosure in the proxy
statement, statements of beneficial ownership filed by the Investor and its
Affiliates and any other documents or communications provided by the Investor or
the Company to any Governmental Entity or to security holders of the Company of
such Stockholder’s identity and Beneficial Ownership of the Shares and the
nature of such Stockholder’s commitments, arrangements and understandings under
and relating to this Agreement, including disclosure of this
Agreement.
(c) Each
Stockholder agrees, while this Agreement is in effect, (i) to notify the
Investor promptly in writing of the number of additional Shares, any options to
purchase Shares or other securities of the Company acquired by such Stockholder,
if any, after the date hereof and (ii) to notify the Investor promptly in
writing if it receives, in its capacity as a Stockholder, any inquiries or
proposals relating to the matters contemplated by Section 2(b) and to include in
such notice the identity of the counterparty and the material provisions of the
inquiry or proposal.
Section
5. Representations
and Warranties of the Stockholders. Each Stockholder on such
Stockholder’s own behalf hereby severally, and not jointly, represents and
warrants to the Investor as follows:
(a) Ownership
of Shares. Except as set forth on Schedule
I hereto, the Stockholder (i) is the sole owner of record and Beneficial
Owner of all of the Shares as set forth opposite his, her or its name on Schedule
I hereto and (ii) has sole voting power with respect to all of such
Shares and has not entered into any voting agreement or voting trust with
respect to any such Shares and has not, except for the Proxy, as of the date
hereof granted a proxy, a consent or power of attorney with respect to such
Shares and, so long as this Agreement is in effect, will not grant any such
proxies, consents and powers of attorney with respect to such Shares that are
inconsistent with this Agreement (except for the Proxy).
(b) Power,
Binding Agreement. The Stockholder has the requisite power and
authority to enter into and perform all of its obligations under this Agreement
and no further proceedings or actions on the part of such Stockholder are
necessary to authorize the execution, delivery or performance by such
Stockholder of this Agreement or the consummation by such Stockholder of the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
(c) No
Conflicts. The execution and delivery of this Agreement by the
Stockholder do not, and the consummation of the transactions contemplated hereby
by the Stockholder will not, result in any breach or violation of, require any
consent under, be in conflict with or constitute a default (whether with notice
of lapse of time or both) under any mortgage, bond, indenture, agreement,
instrument, obligation, judgment, order, decree, law or regulation to which the
Stockholder is a party or by which the Stockholder (or his, her or its Shares)
are bound, except for any such breach, violation, conflict or default which,
individually or in the aggregate, would not in any material respect impair or
adversely affect the Stockholder’s ability to perform his, her or its
obligations under this Agreement. Except as expressly contemplated
hereby or as set forth on Schedule
I hereto, the Stockholder is not a party to any voting agreement or
voting trust relating to the Shares.
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Section
6. Termination. This
Agreement shall terminate upon the first to occur of (a) any termination of the
Investment Agreement in accordance with the terms thereof and (b) the approval
of the Share Issuance at a duly called and held special meeting of the Company’s
stockholders, at which a quorum is present, by the Required Share Issuance
Vote. Any such termination shall be without prejudice to liabilities
arising hereunder before such termination.
Section
7. Specific
Performance. The parties hereto agree that irreparable damage
would occur in the event any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to
specific performance of the terms hereof, in addition to any other remedy at law
or in equity.
Section
8. Fiduciary
Duties. Each Stockholder is signing this Agreement solely in
such Stockholder’s capacity as an owner of his, her or its respective Shares,
and nothing herein shall prohibit, prevent or preclude such Stockholder from
taking or not taking any action in his or her capacity as an officer or director
of the Company.
Section
9. Miscellaneous.
(a) Entire
Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior understandings, agreements or representations by or among
the parties hereto, written or oral, with respect to the subject matter hereof,
and the parties hereto specifically disclaim reliance on any such prior
understandings, agreements or representations to the extent not embodied in this
Agreement. This Agreement may not be amended, modified or rescinded except by an
instrument in writing signed by each of the parties hereto; provided, that the
Investor may waive compliance by any other party with any representation,
agreement or condition otherwise required to be complied with by any such party
under this Agreement or release any other party from its obligations under this
Agreement, but any such waiver or release shall be effective only if in writing
and executed by the Investor.
(b) Severability. Any
term or provision of this Agreement that is invalid or unenforceable in any
situation in any jurisdiction shall not affect the validity or enforceability of
the remaining terms and provisions hereof or the validity or enforceability of
the offending term or provision in any other situation or in any other
jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the fullest
extent possible, the economic, business and other purposes of such invalid or
unenforceable term.
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(c) Governing
Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed entirely within such State. The parties hereby irrevocably
and unconditionally consent to submit to the exclusive jurisdiction of the state
and federal courts located in the Borough of Manhattan, State of New York for
any actions, suits or proceedings arising out of or relating to this Agreement
and the transactions contemplated hereby.
(d) WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(e) Counterparts
and Signature. For the convenience of the parties hereto, this
Agreement may be executed in any number of separate counterparts, each such
counterpart being deemed to be an original instrument, and all such counterparts
will together constitute the same agreement. Executed signature pages to this
Agreement may be delivered by facsimile and such facsimiles will be deemed as
sufficient as if actual signature pages had been delivered.
(f) Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the other will be in writing and will be deemed to have been duly given
(a) on the date of delivery if delivered personally or by telecopy or facsimile,
upon confirmation of receipt, (b) on the first business day following the date
of dispatch if delivered by a recognized next-day courier service, or (c) on the
third business day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All notices hereunder
shall be delivered as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice.
(i) if
to a Stockholder, to the address set forth below such Stockholder’s name on
Schedule I to this Agreement;
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(ii) if
to the Investor, to:
Kien Huat
Realty III Limited
c/o Kien
Huat Realty Sdn Bhd.
22nd
Floor Wisma Genting
Xxxxx
Xxxxxx Xxxxxx
00000
Xxxxx Xxxxxx
Malaysia
Attn: Xxxxxx
Xxx
Fax: x000
0000 0000
with a
copy to:
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx
Xxxxxxx Xxxxx
Xxx Xxxx,
XX 00000
Attn: Xxxxxx
X. Xxxxxx, Esq.
Fax:
(000) 000-0000
(iii) if
to the Company, to:
Empire
Reports, Inc.
Monticello
Casino and Raceway
Xxxxx
00X, X.X. Xxx 0000
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxxxxxx
Fax: (000)
000-0000
with a
copy to:
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
Xxxxxx X. Xxxxxxxx
Fax:
(000) 000-0000
(g) No
Third Party Beneficiaries. This Agreement is not intended, and
shall not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns or to
otherwise create any third-party beneficiary hereto.
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(h) Assignment. Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement may be assigned or delegated, in whole or in part, by operation of law
or otherwise by any of the parties hereto without the prior written consent of
the other parties, and any such assignment or delegation without such prior
written consent shall be null and void, except that the Investor may assign this
Agreement to any direct or indirect wholly owned subsidiary of the Investor
without the consent of the Company or the Stockholders (provided that the
Investor shall remain liable for all of its obligations under this Agreement)
and any Stockholder may assign this Agreement to a Permitted Transferee to the
extent permitted by, and in accordance with, Section 2(a). Subject to
the preceding sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, the parties hereto and their respective
successors and permitted assigns.
(i) Interpretation. When
reference is made in this Agreement to a Section, such reference shall be to a
Section of this Agreement, unless otherwise indicated. The headings
contained in this Agreement are for convenience of reference only and shall not
affect in any way the meaning or interpretation of this
Agreement. The language used in this Agreement shall be deemed to be
the language chosen by the parties hereto to express their mutual intent, and no
rule of strict construction shall be applied against any
party. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa. Any reference to any federal, state, local or foreign statute
or law shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words
“include,” “includes” or “including” are used in this Agreement, they shall be
deemed to be followed by the words “without limitation.” No summary
of this Agreement prepared by the parties shall affect in any way the meaning or
interpretation of this Agreement.
[Remainder
of Page Intentionally Left Blank.]
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the date
first written above.
| EMPIRE RESORTS, INC. | |||
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | ||
|
Name:
|
Xxxxxx X. Xxxxxxxxx | ||
|
Title:
|
Chief Executive Officer | ||
| KIEN HUAT REALTY III LIMITED | |||
|
By:
|
/s/ Xxxxxx Xxx | ||
|
Name:
|
Xxxxxx Xxx | ||
|
Title:
|
Authorized Signatory | ||
| STOCKHOLDERS: | |
|
/s/ Xxxxxx
Xxxxxx
|
|
|
Signature
|
|
|
Xxxxxx
Xxxxxx
|
|
|
Name
|
|
/s/
Xxxxx Xxxxxxx
|
|
|
Signature
|
|
|
Xxxxx
Xxxxxxx
|
|
|
Name
|
|
/s/
Xxxxx X. Xxxxxxxx
|
|
|
Signature
|
|
|
Xxxxx X.
Xxxxxxxx
|
|
|
Name
|
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| STOCKHOLDERS (ctd): | |
|
/s/
Xxxxxx
X. Xxxxxxxxx
|
|
|
Signature
|
|
|
Xxxxxx
X. Xxxxxxxxx
|
|
|
Name
|
|
/s/
Xxxxx X. Xxxxxxxxx
|
|
|
Signature
|
|
|
Xxxxx
X. Xxxxxxxxx
|
|
|
Name
|
|
Signature
|
|
|
Name
|
|
Signature
|
|
|
Name
|
|
Signature
|
|
|
Name
|
10
Schedule
I
|
Stockholder
Name and Address
|
Number
of Shares
|
Notes
|
|
Bernstarz
LLC
|
1,500
|
Xxxxxx
X. Xxxxxxxxx has voting and dispositive power
|
|
Xxxxxx
X. Xxxxxxxxx
|
1,332,229
|
|
|
Xxxxx
X. Xxxxxxxxx
|
2,221,243
|
|
|
LRC
Acquisition LLC
|
5,374,512
|
Xxxxx
Xxxxxxxx has voting and dispositive power
|
|
Emerita,
S.A., a Panamanian corporation
|
954,994
|
Xxxxxx
Xxxxxx has voting and dispositive power
|
|
BVS
Acquisition LLC
|
1,189,935
|
Xxxxx
Xxxxxxx has voting and dispositive power
|
|
Xxxxx
Xxxxxxx
|
105,407
|
|
|
Garland
Business Corporation
|
1,826,550
|
Xxxxxx
Xxxxxx has voting and dispositive
power
|
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