EXHIBIT 10.1
AMENDMENT NO. 1 TO OPTION AGREEMENT
AMENDMENT NO. 1 TO OPTION AGREEMENT (this "AGREEMENT"), dated as of
March 3, 2005, by between EMPIRE RESORTS, INC., a Delaware corporation, having
an address at Monticello Raceway, Xxxxx 00X, Xxxxxxxxxx, Xxx Xxxx 00000
("ISSUER"), and CONCORD ASSOCIATES LIMITED PARTNERSHIP, a New York limited
partnership having an address at 000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxx Xxxx 00000
("GRANTEE").
WHEREAS, Issuer and Grantee have entered into that certain Option
Agreement, dated as of November 12, 2004 (the "ORIGINAL AGREEMENT");
WHEREAS, capitalized terms used herein without definition shall have
the meanings set forth in the Original Agreement;
WHEREAS, an Agreement and Plan of Merger and Contribution, dated as
of March 3, 2005, has been entered into by and among Issuer, Empire Resorts
Holdings, Inc., Empire Resorts Sub, Inc., Grantee and Xxxxxxxx Resorts LLC (the
"MERGER AGREEMENT");
WHEREAS, in connection with the Merger Agreement, the parties hereto
desire to amend the Original Agreement as provided herein;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the receipt and adequacy of which is
hereby acknowledged, the parties hereto agree as follows:
1. The following definition of "MERGER AGREEMENT" shall be added in
ANNEX A of the Original Agreement:
"`MERGER AGREEMENT' shall mean the Agreement and Plan
of Merger and Contribution, dated as of March 3,
2005, entered into by and among Issuer, Empire
Resorts Holdings, Inc., Empire Resorts Sub, Inc.,
Grantee and Xxxxxxxx Resorts LLC."
2. The following shall be added as the new definition of "EXERCISE
EVENT" in ANNEX A of the Original Agreement, and the definition of "EXERCISE
EVENT" in the Original Agreement shall be deemed to be deleted:
"`EXERCISE EVENT' shall mean the termination of the
Merger Agreement for any reason in accordance with
its terms, except for any termination described in
the second sentence of Section 9.1(b) of the Merger
Agreement or in Section 5.8(c) or 9.1(h) of the
Merger Agreement."
3. The references to "the Letter Agreement" in Sections 9(a), 9(g)
and in the definition of "EXCLUDED SHARES" in ANNEX A of the Original Agreement
shall be deemed to refer instead to "the Merger Agreement".
4. GOVERNING LAW. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware.
5. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
6. ORIGINAL AGREEMENT RATIFIED. Except as modified herein, the
Original Agreement is hereby ratified by the parties and shall remain in all
respects in full force and effect.
[Signature Page Follows]
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IN WITNESS WHEREOF, Issuer and Grantee have caused this Amendment
Agreement to be signed by their respective officers thereunto duly authorized,
all as of the day and year first written above.
CONCORD ASSOCIATES LIMITED
PARTNERSHIP
By: Convention Hotels, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: President
EMPIRE RESORTS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
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Name: Xxxxx X. Xxxxxxxxx
Title: CFO
