CONSULTING AGREEMENT
Exhibit 10.4
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THIS
CONSULTING AGREEMENT (this "Agreement") is made and entered into this 19th day
of August, 2009, by and between Empire Resorts, Inc. ("Empire") and Au Fook
Yew
(the
"Consultant").
W I T N E
S S E T H:
WHEREAS,
the Consultant has specialized and unique skills, knowledge and contacts with
respect to the gaming industry and casino development; and
WHEREAS,
Empire desires to retain the Consultant as a consultant in order to assist
Empire in expanding Empire’s presence in the gaming industry and casino
development.
NOW,
THEREFORE, in consideration of the terms and mutual undertakings herein
contained, Empire and the Consultant hereby agree as follows:
1. Consulting
Services; Term. Commencing on the Initial Closing (as such
term is defined in the Investment Agreement dated as of the date hereof, by and
between Empire and Kien Huat Realty III Limited (the “Investment Agreement”))
and ending on the third anniversary of the Initial Closing (such period, the
“Term”), the Consultant agrees to provide to Empire the consulting services (the
“Consulting Services”) described on Exhibit A hereto, provided that, with
respect to the Consulting Services, the Consultant will not spend more than
thirty (30) percent of his time in the United States. The Term may be
extended by mutual agreement of the parties hereto in accordance with Section
7(c). Upon the expiration of the Term, (i) Empire will pay (or cause
to be paid) all accrued but unpaid Consulting Compensation and expense
reimbursements as of the date of such expiration; and (ii) this Agreement will
terminate except that Sections 3, 5, 6 and 7 will continue in full force and
effect.
2. Compensation
and Expenses. As compensation for performing the Consulting
Services, Empire will pay (or cause to be paid) to the Consultant the Consulting
Compensation set forth on Exhibit A hereto (the "Consulting
Compensation"). Empire will reimburse the Consultant for all
reasonable, documented out-of-pocket expenses incurred by the Consultant in
performing the Consulting Services.
3. Confidentiality. In
connection with performing the Consulting Services, the Consultant may come into
possession of information regarding Empire and its partners, manager, affiliates
and their respective employees, officers and directors (collectively,
"Confidential Information"). During and after the Term, the
Consultant agrees to refrain from disclosing any Confidential Information to any
person or entity, except to the extent (i) required by subpoena or other legal
proceeding (and only after prior notice to Empire); (ii) required in connection
with performing the Consulting Services; (iii) Confidential Information is or
becomes generally available to the public through no action or omission of the
Consultant; or (iv) Empire has consented in writing to such
disclosure. Upon the expiration of the Term and upon the request of
Empire, the Consultant will return to Empire all Confidential Information that
has been provided to the Consultant.
4. Independent
Contractor Status. The relationship of the Consultant to
Empire in performing the Consulting Services shall be that of an independent
contractor, and nothing contained in this Agreement shall create or imply a
partnership, joint venture, agency or employment relationship between the
Consultant and Empire. Without Empire 's written consent, the
Consultant, when acting as a consultant under the terms of this Agreement, is
not authorized to bind Empire or to otherwise make any
representation, agreement or commitment on behalf of Empire. Empire
will not withhold any federal, state or local payroll taxes or any state
unemployment or similar taxes in respect of the Consulting
Services. The Consultant will be responsible for the payment of all
federal, state or local taxes relating to the Consulting
Compensation.
5. Notices. All
notices, requests, demands and other communications under this Agreement shall
be in writing, shall be addressed as follows, and shall be deemed to have been
duly given on the date of delivery:
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If
to Empire:
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Empire
Resorts, Inc.
Monticello
Casino and Raceway
Xxxxx
00X, X.X. Xxx 0000
Xxxxxxxxxx,
XX 00000
Attn: Xxxxxx
Xxxxxxxxx
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| If to the Consultant: |
Au
Fook Yew
00/0 Xxxxxxxxx Xxxxxx,
Xxxxxx, XXX 0000,
Xxxxxxxxx
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Either party hereto may change its address for purposes of this Section 5 by giving the other party hereto written notice of the new address in the manner set forth above.
6. Indemnity. Except
to the extent caused by the gross negligence, fraud or intentional misconduct of
the Consultant, Empire will indemnify and hold the Consultant harmless against
all claims by third parties arising from the Consultant's provision of the
Consulting Services and against all costs, including reasonable attorneys' fees,
to defend such claims. The Consultant shall not settle any matter
that would give rise to indemnification obligations of Empire hereunder without
Empire 's prior written approval.
7. Miscellaneous.
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(a)
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Governing
Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York, without giving
effect to the choice of law principles thereof. The parties
hereto agree that all actions or proceedings relating to this Agreement
shall be brought only in the federal or state courts of New
York.
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(b)
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Severability. The
provisions of this Agreement shall be deemed severable and the invalidity
or unenforceability of any provision shall not affect the validity or
enforceability of the other provisions
hereof.
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(c)
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Waivers
and Amendments. This Agreement may be amended, modified,
superseded, canceled, renewed or extended, and the terms and conditions
hereof may be waived, only by a written instrument executed by all of the
parties hereto or, in the case of a waiver, by the party waiving
compliance. The failure of any party hereto at any time or
times to require performance of any provision hereof shall in no manner
affect the right at a later time to enforce such provision. No
waiver by any party of the breach of any term or covenant contained in
this Agreement, whether by conduct or otherwise, in any one or more
instances, shall be deemed to be, or construed as, a further or continuing
waiver of any such breach, or a waiver of the breach of any other term or
covenant contained
herein.
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(d)
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Entire
Agreement. This Agreement constitutes the entire
agreement between the parties hereto with respect to the subject matter
hereof and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter
hereof.
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(e)
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Assignment. The
Consultant may not assign this Agreement, or any right or obligation
hereunder, without the prior written consent of Empire. Any
such attempted assignment shall be null and
void.
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* * * *
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
on the date first above written.
| Empire Resorts, Inc. | ||
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By:
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/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: | Xxxxxx X. Xxxxxxxxx | |
| Title: | Chief Executive Officer | |
| CONSULTANT: | |
| /s/ Au Fook Yew | |
| Name: Au Fook Yew |
EXHIBIT
A
CONSULTING
SERVICES. The Consulting Services shall include the following
services that Empire may request from time to time during the
Term:
Assisting Empire in
expanding Empire’s presence in the gaming industry,
including advising Empire on matters related to casino
development.
CONSULTING
COMPENSATION. In consideration of performing the Consulting
Services, Empire will pay (or cause to be paid) to the Consultant the following
Consulting Compensation: $300,000 annually, paid in equal monthly
installments.
