Empire Resorts, Inc. April 13, 2008
Exhibit 99.3
Empire
Resorts, Inc.
April 13,
2008
Xxxxx X.
Xxxxxx
0000
Xxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
Dear
Xxxx:
This
letter will act as the agreement (“Consulting Agreement”) between Xxxxx X.
Xxxxxx (“Consultant” or “you”) and Empire Resorts, Inc. regarding Consultant’s
performance of consulting projects for Empire Resorts, Inc. following
Consultant’s termination of employment with Empire Resorts,
Inc. (Hereafter, the terms “Empire Resorts” and the “Company” shall
be used to refer to Empire Resorts, Inc. and any and all divisions, subsidiaries
and affiliates of Empire Resorts, Inc.)
1. Job
Description. Consultant will provide general consulting
services for the Company as set forth in paragraph 3(b) hereof, including, but
not limited to, consultation with respect to historical company and predecessor
issues. He will report to the Chief Executive Officer of the Company
or such other person acting in that capacity, or such other person as may be
designated by the Board of Directors of the Company.
2. Independent
Contractor. (a) For all purposes Consultant will
operate as an independent contractor of the Company. Consequently,
Consultant retains full independence in exercising judgment as to the time,
place and manner of performing the services, and bears full responsibility for
any and all tax liability incurred by him by reason of his receipt of the monies
paid pursuant to this Consulting Agreement, and the Company shall bear full
responsibility for any and all tax liability incurred by it by reason of its
payment of such monies. The Company shall not withhold any funds for
tax or other governmental purposes, and Consultant shall be responsible for the
payment of same. Consultant shall not be entitled to receive any
employment benefits offered to employees of the Company. To this end,
you acknowledge that you are not an employee, agent, co-venturer, or
representative of the Company and that the Company will not incur any liability
as the result of your actions. You shall at all times disclose that
you are an independent contractor of the Company and shall not represent to any
third party that you are the employee, agent, co-venturer, or representative of
the Company other than as expressly authorized by the Company.
(b) Consultant
shall defend, indemnify and hold harmless the Company and its officers,
directors, employees, agents, parent, subsidiaries and other affiliates, from
and against any and all damage, cost, liability, and expense whatsoever
(including attorneys' fees and related disbursements) incurred by reason of (a)
any failure to perform any covenant or agreement set forth in this Consulting
Agreement; (b) injury to or death of any person or any damage to or loss of
property which is due to the negligence and/or willful acts of Consultant or its
agents; or (c) any breach by Consultant of any representation, warranty,
covenant or agreement under this Consultant Agreement. The Company
shall have the right to offset against any fees or commissions due to Consultant
under this Consulting Agreement by the amount of any indemnity to which the
Company is entitled under this paragraph 2(b) for any damage, cost, liability,
expense, fee or other disbursement, incurred by the Company pursuant to this
paragraph 2(b).
3. Term of Agreement
Duties. (a) This Consulting Agreement shall
commence as of April 13, 2009 and shall continue for nine months (the “term”)
unless terminated by either party upon thirty (30) days written notice;
provided, however, that this Consulting Agreement may only be terminated by the
Company in the event that Consultant engages in the material breach of
paragraphs 6, 7 or 8 of the Separation and Release Agreement of even date
herewith between the parties hereto or as a result of a material breach of this
Consulting Agreement by Consultant.
(b) During
the term, Consultant shall provide transition services relating to matters over
which Consultant had responsibility during his employment and other projects
reasonably related to such matters, as reasonably requested by Empire
Resorts. It is not expected that the services shall exceed 20 hours
per month. It is the intention of the parties that the services
provided by Consultant shall primarily be provided by video or teleconference
and shall not require Consultant to travel unless Empire Resorts determines that
such travel is reasonably necessary for the performance of the
services. Consultant shall be free to provide services to other
persons (including self-employment) during the term so long a such other
services do not significantly interfere with the services to be provided by
Empire Resorts.
4. Compensation. (a) Commencing
on April 13, 2009 and thereafter on the 13th day of each of the following eight
months, Empire Resorts shall pay Consultant $11,111.11 (except for the last
payment, which shall be $11,111.12) for services rendered by Consultant
hereunder in conformity with the terms of this Consulting
Agreement. The Consultant is expected to provide such time as is
reasonably necessary to assist in transitioning management of the Company
consistent with the provisions of Section 3(b) hereof. In the event of the death
of Consultant prior to January 13, 2010, the Company shall continue to pay to
the estate of Consultant any unpaid compensation that Consultant would have
earned had he continued to provide services to the Company pursuant to this
Consulting Agreement.
(b) To
the extent that Consultant is required to travel on the Company’s behalf in
performing services hereunder, Empire Resorts shall cover travel, lodging and
other expenses related to these services as required by the
Company. Except for such travel expenses, Empire Resorts will not pay
for any of Consultant’s expenses incurred in connection with such services such
as meals, lodging and ordinary commuting expenses.
5. Confidentiality
Agreement.
(a) Consultant
understands that during the term of this Consulting Agreement, Consultant may
have access to unpublished and otherwise confidential information (“Confidential
Information”) both of a technical and non-technical nature, relating to the
business of the Company, its actual or anticipated business, research or
development, its technology or the implementation or exploitation thereof,
including without limitation information pertaining to customers, accounts,
vendors, prices, costs, materials, processes, material results, technology,
device results, system designs, system specifications, materials of
construction, trade secrets and equipment designs, including information
disclosed to the Company by others under agreements to hold such information
confidential. Consultant agrees to observe all Company policies and
procedures concerning such Confidential Information. Consultant agrees that,
except as may be permitted by written Company policies, Consultant will not
remove from the Company’s premises any of such Confidential Information without
the written authorization of an executive officer of the Company. Consultant
agrees not to disclose or use, either during the term of this Consulting
Agreement or at any time thereafter, any Confidential Information unless
authorized to do so by the Company in writing, except that Consultant may
disclose and use such information to the extent necessary in the performance of
Consultant’s duties for the Company or to the extent required to disclose such
Confidential Information pursuant to the legally binding order of a court of
competent jurisdiction or regulatory body. Consultant’s obligations
under this Consulting Agreement will continue with respect to Confidential
Information until such information becomes generally available from public
sources through no act of Consultant.
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(b) On
termination of this Consulting Agreement for any reason or upon the Company’s
request, Consultant will promptly deliver to the Company all documents, records,
files, notebooks, manuals, letters, notes, reports, customer and supplier lists,
cost and profit data, apparatus, drawings, blueprints, and any other material of
the Company, including all materials pertaining to Confidential Information
developed by Consultant or others, and all copies of such materials, whether of
a technical, business or fiscal nature, which are in Consultant’s possession,
custody or control.
6. Additional
Terms.
(a) Empire
Resorts may at any time assign all of its right, title and interest hereunder to
a corporation or other entity that shall assume Empire Resorts’ obligations
under this Consulting Agreement, and, following such assignment, Empire Resorts
shall be released of and from any and all liability to Consultant with respect
to any payment made by such assignee. In the event that Empire
Resorts assigns its right, title or interest hereunder, Empire Resorts shall pay
all outstanding balances due to Consultant on or before the date of
assignment. Because Consultant’s duties and services in this
Consulting Agreement are special, personal and unique in nature, Consultant may
not transfer, sell or otherwise assign Consultant’s rights, obligations or
benefits under this Consulting Agreement. This Consulting Agreement
is for the benefit of the Company, its successors and assigns and shall be
binding upon Consultant’s successors, executors, administrators and other legal
representatives.
(b) This
Consulting Agreement constitutes the entire agreement between the
parties. There are no other agreements, promises, or understandings
expressed or implied between Empire Resorts and Consultant with respect to the
subject matter of this Consulting Agreement.
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(c) If
a court of competent jurisdiction declares any provision of this Consulting
Agreement void or unenforceable, all other provisions shall nonetheless remain
in full force and effect.
(d) Consultant
represents and warrants that Consultant’s services with the Company do not and
will not breach any agreement or duty Consultant has to anyone else, including
any agreement or duty to keep in confidence trade secret information belonging
to others.
7. Enforcement. In
the event of a material breach of a provision of this Consulting Agreement by
Consultant, in addition to any other available remedies to which Empire Resorts
may be entitled, Empire Resorts may obtain such equitable relief as may be
appropriate, including injunctive remedies.
8. Applicable
Law. This Consulting Agreement shall be governed by and
construed and interpreted in accordance with the internal law of the State of
New York without reference to the principles of conflicts of laws.
9. Survival
Clause. The obligations contained in Sections “5,” “6,” “8,”
and “9” of this Consulting Agreement shall survive the termination of
this Consulting Agreement and any extensions hereto.
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It is
with great hopes for our future that we look forward to the commencement of our
work together. If the foregoing agreement is acceptable to
Consultant, please sign and return the enclosed copy of this letter in the space
marked “Agreed to and Accepted,” and it will serve as our agreement as of the
date first above written.
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Very
truly yours,
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Empire
Resorts
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By:
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/s/
Xxxxxxx Xxxxxxxxxx
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Name:
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Xxxxxxx
Xxxxxxxxxx
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Title:
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Senior
Vice President
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Agreed
to and Accepted:
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/s/
Xxxxx X. Xxxxxx
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Xxxxx
X. Xxxxxx
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