EMPLOYMENT AGREEMENT
Exhibit 10.3
This
EMPLOYMENT AGREEMENT (the “Agreement”) is entered into as of June 29, 2009 (the
“Commencement Date”), by and between Empire Resorts, Inc., a Delaware
corporation (the “Company”), and Xxxxx Xxxxxxx (the “Executive”, and the Company
and the Executive collectively referred to herein as “the
Parties”).
W I T N E S S E T
H:
WHEREAS,
the Company desires to continue to employ the Executive as President and General
Manager of Monticello Raceway Management, Inc., a wholly-owned subsidiary of the
Company, and to enter into an agreement embodying the terms of such employment
(this “Agreement”), and the Executive desires to continue employment with the
Company, subject to the terms and conditions of this Agreement;
NOW,
THEREFORE, in consideration of the premises and the mutual covenants and
promises of the Parties contained herein, the Parties, intending to be legally
bound, hereby agree as follows:
1.
Term. The
term of employment under this Agreement shall be for the period beginning on the
Commencement Date and ending on the third (3rd)
anniversary of the Commencement Date (the “Term”), or such earlier date upon
which the Executive’s employment is terminated by either Party in accordance
with the provisions of this Agreement.
2.
Employment.
(a) Position. As
of the Commencement Date, the Executive shall continue to be employed as
President and General Manager of Monticello Raceway Management,
Inc. The Executive shall perform all of the duties normally accorded
to such position, as reasonably directed by the Company’s Chief Executive
Officer. The Executive shall report to the Company’s Chief Executive
Officer.
(b) Obligations. The
Executive agrees to perform his duties faithfully and devote substantially all
of his full business time and attention to the business and affairs of the
Company. Anything herein to the contrary notwithstanding, nothing shall preclude
the Executive from: (i) serving on the boards of directors of trade associations
and/or charitable organizations; (ii) engaging in charitable activities and
community affairs; and (iii) managing his personal investments and affairs,
provided that the activities described in the preceding clauses (i) through
(iii) do not materially interfere with the proper performance of his duties and
responsibilities hereunder and do not prevent him from devoting substantially
all of his full business time and attention to the affairs of the
Company.
3.
Base
Salary. The Company agrees to pay or cause to be paid to the
Executive during the Term a base salary at the rate of Two Hundred Twenty-Five
Thousand Dollars ($225,000) per year for the first year of the Term which shall
increase to Two Hundred Forty Three Thousand Five Hundred Dollars ($243,500) per
year on the first anniversary of the Commencement Date and then Two Hundred
Fifty Thousand Dollars ($250,000) per year on the second anniversary of the
Commencement Date which rate shall remain in effect through the third
anniversary of the Commencement Date (unless increased by the Company’s Board of
Directors (the “Board”) in its sole discretion) (the base salary in effect shall
be referred to herein as, the “Base Salary”). Such Base Salary shall
be payable, less applicable withholdings and deductions, in accordance with the
Company’s reasonable and customary payroll practices applicable to its executive
officers.
4.
Bonus. The
Executive shall be entitled to participate in any annual bonus plan maintained
by the Company for its senior executives on such terms and conditions as may be
determined from time to time by the Compensation Committee of the
Board. The payment of any such bonus shall be in the absolute
discretion of the Company.
5.
Additional
Incentive.
(a) The
Compensation Committee of the Board approved the grant to Executive of an option
to purchase 300,000 shares of the Company’s common stock (the “Options”) on
April 23, 2009 (the “Grant Date”) pursuant to the Company’s 2005 Equity
Incentive Plan (the “Plan”). The per share exercise price applicable
to the Options is $1.11 100% of the Fair Market Value (as defined in the Plan)
of a share of the Company’s common stock on the grant date. The
Options vest as follows: 100,000 Options on the grant date, 100,000 Options on
the first (1st)
anniversary of the Grant Date, and 100,000 Options on the second (2nd)
anniversary of the Grant Date, subject to earlier vesting as provided herein and
in the Plan. The Options shall expire on the fifth anniversary of the
Commencement Date. Upon the occurrence of a Change in Control (as
defined below), the Options shall be deemed fully vested and
exercisable. In the event of any conflict between the terms and
provisions of this Section 5 and the Plan, the Plan shall govern.
(b) For
the purposes of this Agreement, “Change in Control” shall have the same meaning
as in the Plan.
(c) Employee
Benefits. The Executive shall be entitled to participate in
all employee benefit plans, practices and programs maintained by the Company and
made available to senior level executive officers generally and as may be in
effect from time to time, including any medical and health plans and any
equity-based incentive programs that may be put into place. The
Executive’s participation in such plans, practices and programs shall be on the
same basis and terms as are applicable to senior level executive officers of the
Company generally. Such level of benefits shall be at a level
commensurate with his position.
6.
Other
Benefits.
(a) Vacation. During
each calendar year of the Term, the Executive shall earn twenty (20) days of
paid vacation in accordance with the Company’s vacation policy for senior level
executive officers.
(b) Perquisites.
The Executive shall be entitled to perquisites on the same basis as provided to
other senior level executive officers at the Company.
7.
Expenses. The
Executive shall be entitled to receive prompt reimbursement on not less than a
monthly basis for all expenses reasonably incurred by him in connection with the
performance of his duties hereunder or for promoting, pursuing or otherwise
furthering the business or interests of the Company (including but not limited
to travel costs, dining and entertainment), in each case in accordance with
policies established by the Board from time to time and upon receipt of
appropriate documentation of such expenses (which policies comply with the
Section 409A Rules (defined below in Section 11).
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8.
Termination.
(a) Death. The
Executive’s employment hereunder shall terminate automatically upon the
Executive’s death.
(b) Disability. If
during the Term of this Agreement, Executive becomes physically or mentally
unable to perform his duties for the Company hereunder and such incapacity has
continued for a total of ninety (90) consecutive days or any one hundred twenty
(120) days in a period of three hundred sixty-five (365) consecutive days
(“Disability”), then the Company shall have the right to terminate Executive’s
employment with the Company upon written notice to Executive.
(c) Cause. The
Company shall be entitled to terminate the Executive’s employment for “Cause.”
For purposes of this Agreement, “Cause” shall mean that the Executive: (i)
pleads “guilty” or “no contest” to or is convicted of an act which is defined as
a felony under federal or state law or as a crime under federal or state law
which involves Executive’s fraud or dishonesty; (ii) in carrying out his duties,
engages in conduct that constitutes willful neglect or willful misconduct;
provided such plea, conviction, neglect or misconduct results in material
economic harm to the Company; (iii) fails to obtain or maintain required
licenses in the jurisdiction where the Company currently operates or has plans
to operate; (iv) willfully and intentionally fails to reasonably perform the
material responsibilities of the Executive’s position, (v) engages in any
conduct that is reasonably likely to cause harm to the reputation of the
Company; or (vi) materially breaches any term of this Agreement. In
the event any of the occurrences in (i) through (vi) above have occurred, the
Executive shall be given written notice by the Company of its intention to so
terminate his employment, such notice; (i) to state in detail the particular act
or acts or failure or failures to act that constitute the grounds on which the
proposed termination for Cause is based and (ii) to be given within sixty (60)
days after the Board knew of such acts or failures to act. In the
event such notice is timely given by the Company, the Executive shall have
thirty (30) days after the date that the notice is given in which to cure such
conduct, to the extent such cure is possible. For the avoidance of
doubt, any of the occurrences constituting Cause set forth in clause (i) above
cannot be cured. No act or failure to act on Executive’s part will be
considered “willful” unless done, or omitted to be done by Executive not in good
faith and without reasonable belief that his action or omission was in the best
interests of the Company.
(d) Good
Reason. The Executive may terminate his employment hereunder
for “Good Reason”, which is defined to include the following events arising
without the consent of the Executive: (A) a diminution in the Executive’s Base
Salary; (B) a material diminution in the Executive’s authority, duties or
responsibilities under this Agreement; or (C) any other action or inaction that
constitutes a material breach of the terms of this Agreement, as permitted under
Section 409A of the Internal Revenue Code of 1986, as amended (the
“Code”). In the event any of the occurrences in (A) through (C) above
have occurred, the Company shall be given written notice by the Executive of his
intention to so terminate his employment, such notice; (i) to state in detail
the particular act or acts or failure or failures to act that constitute the
grounds on which the proposed termination for Good Reason is based and (ii) to
be given within thirty (30) days after the Executive knew of such acts or
failures to act. In the event such notice is timely given by the
Executive, the Company shall have thirty (30) days after the date that the
notice is given in which to cure such conduct, to the extent such cure is
possible. The Executive shall have sixty (60) days from the date
Executive knew of such acts or failures to act that constitute the grounds on
which the proposed termination for Good Reason is based to terminate his
employment for Good Reason.
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(e) Without
Cause. The Company may terminate the Executive’s employment
hereunder without Cause at any time and for any reason (or for no reason) by
giving the Executive a Notice of Termination (as defined below).
(f) Voluntary. Notwithstanding
anything contained elsewhere in this Agreement to the contrary, the Executive
may terminate his employment hereunder at any time and for any reason whatsoever
or for no reason at all in the Executive’s sole discretion by giving the Company
a Notice of Termination. Such termination shall not be deemed a
breach of this Agreement.
(g) Notice of
Termination. For purposes of this Agreement, a “Notice of
Termination” shall mean a notice which indicates the specific termination
provision of this Agreement relied upon and which sets forth in reasonable
detail, if applicable, the facts and circumstances claimed to provide a basis
for termination of the Executive’s employment under the provision so
indicated. For purposes of this Agreement, no purported termination
of employment which requires a Notice of Termination shall be effective without
such Notice of Termination. The Termination Date (as defined below)
specified in such Notice of Termination shall be no less than thirty (30) days
from the date the Notice of Termination is given.
(h) Termination
Date. “Termination Date” shall mean the date of the
termination of the Executive’s employment with the Company and specifically (i)
in the case of the Executive’s death, his date of death; (ii) in the case of a
termination of the Executive’s employment for Cause, the relevant date specified
in Section 8(c) of this Agreement; (iii) in the case of a termination of the
Executive’s employment for Good Reason, the relevant date specified in Section
8(d) of this Agreement; (iv) in the case of the expiration of the Term of this
Agreement in accordance with Section 1, the date of such expiration; and (v) in
all other cases, the date specified in the Notice of Termination.
9.
Compensation
Upon Termination of Employment.
(a) For
Cause; Without Good Reason. If during the Term of this
Agreement, the Executive’s employment under this Agreement is terminated by the
Company for Cause or by the Executive without Good Reason (and other than by
reason of the Executive’s death or Disability), the Company’s sole obligation
hereunder shall be to pay the Executive the following amounts earned hereunder
but not paid as of the Termination Date:
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(i) the
Executive’s Base Salary through the Termination Date;
(ii) reimbursement
of any and all reasonable expenses incurred in connection with the Executive’s
duties and responsibilities under this Agreement; and
(iii) other
or additional benefits and entitlements in accordance with applicable plans,
programs and arrangements of the Company (subsections (i) through (iii)
collectively, the “Accrued Compensation”).
(b) Without
Cause or for Good Reason. If the Executive’s employment
hereunder is terminated by the Executive for Good Reason or by the Company
without Cause, the Company’s sole obligation hereunder shall be to pay the
Executive the following amounts:
(i) the
Accrued Compensation;
(ii) a
pro-rata portion (based on the days worked by the Executive during the
applicable year) of any bonus awarded pursuant to any annual bonus plan
maintained by the Company for its senior executives to which the Executive would
have been entitled had he not been terminated, which shall be paid at such time
as other participants in the bonus plan are paid their respective bonuses in
respect of that fiscal year, but no later than March 15 of the calendar year
following the Termination Date;
(iii) The
Executive’s Base Salary for the following period (the “Salary Continuation
Period”): (A) in the event that Executive’s employment hereunder is terminated
prior to the occurrence of a Change in Control, the lesser of (x) eighteen (18)
months following such termination or (y) the remaining duration of the Term; or
(B) in the event that Executive’s employment hereunder is terminated on or
following the occurrence of a Change in Control, the greater of (x) twenty-four
(24) months following such termination or (y) the remaining duration of the
Term; in each instance such amount payable in equal installments in accordance
with the Company’s payroll practices applicable to its executive officers which
payments shall commence on the earlier of the first payroll date following the
75th
day after the Termination Date, or thirty (30) days after the effective date of
the Release referenced below in Section 9(g). The first payment
pursuant to this Section 9(b)(iii) shall include those payments that would have
previously been paid if the payments described in this Section had begun on the
first payroll date following the Termination Date. This timing of the
commencement of payments pursuant to this Section 9(b)(iii) is subject to
Section 11 below. For the avoidance of doubt, if such termination
occurs at a time when the Base Salary is less than $250,000, the Base Salary for
purposes of this Section shall increase to $243,500 and $250,000, as applicable,
at such time(s) as it would have increased if he had remained in the
employ of the Company; and
(iv) that
portion of the Options that is unvested on the Termination Date shall be deemed
vested on the Termination Date and such Options shall remain outstanding through
the remainder of the original 5 year term.
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(c) Disability. If
the Executive’s employment hereunder is terminated by the Company by reason of
the Executive’s Disability, the Company’s sole obligation hereunder shall be to
pay the Executive the following amounts:
(i) the
Accrued Compensation; and
(ii) any
accrued benefits under the Company’s regular and any supplemental long-term
disability plan or plans; and
(iii) that
portion of the Options that is unvested on the Termination Date shall be deemed
vested on the Termination Date and such Options shall remain outstanding through
the remainder of the original 5 year term.
(d) Death. If
the Executive’s employment hereunder is terminated due to his death, the
Company’s sole obligation hereunder shall be to pay the Accrued Compensation to
the person or persons designated in writing by the Executive to receive such
payment, or if no such designation was made, the Executive’s
estate. In addition, that portion of the Options that is unvested on
the Termination Date shall be deemed vested on the Termination Date and such
Options shall remain outstanding through the remainder of the original 5 year
term.
(e) Continuation
of Employee Benefits. Notwithstanding anything to the
contrary, in addition to any amounts payable above, the Company shall, during
the Salary Continuation Period, provide to the Executive and his beneficiaries
continued participation in all medical, dental, vision, prescription drug,
hospitalization by fully subsidizing the cost of all COBRA premiums, and life
insurance coverages (to the extent such coverage may be continued under all
policies), and in all other employee welfare and pension benefit plans, programs
and arrangements in which the Executive was participating immediately prior to
the Termination Date (exclusive of participation in any Section 401(k) Plan for
severance benefits). The Executive may continue COBRA coverage at the
Executive’s cost for the remaining COBRA period after the Salary Continuation
Period. Notwithstanding the foregoing, the Company’s obligation to provide
welfare benefits under this Section shall be reduced to the extent that
equivalent coverages and benefits are made available under the plans, programs
or arrangements of a subsequent employer.
(f) No
Mitigation; No Offset. In the event of any termination of his
employment hereunder, the Executive shall not be required to mitigate the amount
of any payment provided for in this Agreement by seeking other employment or
otherwise and no such payment shall be offset or reduced by the amount of any
compensation provided to the Executive in any subsequent employment, except as
provided in Section 9(e) of this Agreement.
(g) Release. In
exchange for the payment by the Company of the amounts contemplated by Section
9(b)(ii) and (iii) of this Agreement and before such amounts shall be deemed
payable to the Executive hereunder, the Executive and the Company each agree to
execute and deliver a release with respect to claims for such payment in such
form as is reasonably requested by the Company.
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(h) Timing of
Payments. Other than the benefits provided for in Section 9(e)
above, unless otherwise specifically indicated herein, the payments provided for
in this Section 9 shall be made to the Executive within sixty (60) days of the
termination of the Executive’s employment with the Company.
(i) Limitation
on Benefits. Notwithstanding anything to the contrary
contained in this Agreement, to the extent that any of the payments and benefits
provided for under this Agreement or any other agreement or arrangement between
the Company and the Executive (collectively, the “Payments”) (i) constitute a
“parachute payment” within the meaning of Section 280G of the Code and (ii) but
for this Section 9(i), would be subject to the excise tax imposed by Section
4999 of the Code, then the Payments shall be payable either (i) in full or (ii)
as to such lesser amount which would result in no portion of such Payments being
subject to excise tax under Section 4999 of the Code; whichever of the foregoing
amounts, taking into account the applicable federal, state and local income
taxes and the excise tax imposed by Section 4999, results in the Executive’s
receipt on an after-tax basis, of the greatest amount of benefits under this
Agreement, notwithstanding that all or some portion of such benefits may be
taxable under Section 4999 of the Code. Unless the Executive and the
Company otherwise agree in writing, any determination required under this
Section shall be made in writing by the Company’s independent public accountants
(the “Accountants”), whose determination shall be conclusive and binding upon
the Executive and the Company for all purposes. For purposes of
making the calculations required by this Section, the Accountants may make
reasonable assumptions and approximations concerning applicable taxes and may
rely in reasonable, good faith interpretations concerning the application of
Sections 280G and 4999 of the Code. The Company and the Executive
shall furnish to the Accountants such information and documents as the
Accountants may reasonably request in order to make a determination under this
Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section. If the limitation set forth in this Section 9(i) is applied
to reduce an amount payable to the Executive, and the Internal Revenue Service
successfully asserts that, despite the reduction, the Executive has nonetheless
received payments which are in excess of the maximum amount that could have been
paid to the Executive without being subjected to any excise tax, then, unless it
would be unlawful for the Company to make such a loan or similar extension of
credit to the Executive, the Executive may repay such excess amount to the
Company as though such amount constitutes a loan to the Executive made at the
date of payment of such excess amount, bearing interest at 120% of the
applicable federal rate (as determined under section 1274(d) of the Code in
respect of such loan).
(j) Valuation
of Non-Competition Obligations. The Company shall make
reasonable efforts to cooperate with the Executive with regard to the value for
tax purposes of the Executive’s non-competition obligations under this
Agreement.
10. Employee
Covenants.
(a) Unauthorized
Disclosure. The Executive shall not, during the Term of this
Agreement and thereafter, make any Unauthorized Disclosure (as defined
below). For purposes of this Agreement, “Unauthorized Disclosure”
shall mean disclosure by the Executive without the prior written consent of the
Board to any person, other than an employee of the Company or a person to whom
disclosure is reasonably necessary or appropriate in connection with the
performance by the Executive of his duties hereunder, of any confidential
information relating to the business or prospects of the Company, including, but
not limited to, any information with respect to any of the Company’s customers,
products, methods of distribution, strategies, business and marketing plans and
business policies and practices, including information disclosed to the Company
by others under agreements to hold such information confidential (the
“Confidential Information”). Notwithstanding the foregoing, the
Executive may disclose Confidential Information (i) to the extent such
disclosure is or may be required by law, but only after providing (A) notice to
the Company of any third party’s request for such information, which notice
shall include the Executive’s intent with respect to such request, and (B) to
the extent possible under the circumstances, sufficient opportunity for the
Company to challenge or limit the scope of the disclosure, or (ii) in confidence
to an attorney, accountant or other advisor for the purpose of securing
professional advice concerning the Executive’s personal matters, provided that
such attorney or other advisor agrees to observe these confidentiality
provisions. Confidential Information shall not include the use or
disclosure by the Executive of any information known generally to the public or
known within the Company’s trade or industry (other than as a result of
disclosure by the Executive in violation of this Section 10(a)). This
confidentiality covenant has no temporal, geographical or territorial
restriction.
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(b) Non-Competition. During
the Non-Competition Period (as defined below), the Executive shall not, directly
or indirectly, without the prior written consent of the Company, own, manage,
operate, join, control, be employed by, consult with or participate in the
ownership, management, operation or control of, or be connected with (as a
stockholder, partner, or otherwise) any business competing with, or
substantially similar to, the businesses of Company and its present and future
subsidiaries, joint ventures, partners or other affiliates (except that
affiliates that are in a business unrelated to the Company’s business shall not
be included)(the “Empire Companies”), as such businesses exist within 60 miles
of the location in which any such entity conducts, or is actively investigating
the possibility of conducting, its businesses as of the beginning of the
Non-Competition Period. Notwithstanding the foregoing, the provisions
of this Section 10(b) shall not be deemed to prohibit the Executive’s ownership
of up to 2% of the total shares of all classes of stock outstanding of any
publicly held company.
(c) Non-Solicitation. During
the period from the termination of the Executive’s employment with the Company
through the one year anniversary of the date of termination,, the Executive
shall not, directly or indirectly, alone or in conjunction with another person,
(i) hire, solicit, retain, compensate or otherwise induce or attempt to induce
any individual who is an employee of any of the Empire Companies, to leave the
employ of the Empire Companies or in any way interfere with the relationship
between any of the Empire Companies and any employee thereof, (ii) hire, engage,
send any work to, place orders with, or in any manner be associated with any
supplier, contractor, subcontractor or other business relation of any of the
Empire Companies if such action by the Executive would have a material adverse
effect on the business, assets or financial condition of any of the Empire
Companies, or materially interfere with the relationship between any such person
or entity and any of the Empire Companies, or (iii) solicit or accept business
from any customer of any of the Empire Companies. In connection with
the foregoing provisions of this Section 10, the Executive represents that his
experience, capabilities and circumstances are such that such provisions will
not prevent him from earning a livelihood. The Executive further
agrees that the limitations set forth in this Section 10 (including, without
limitation, time and territorial limitations) are reasonable and properly
required for the adequate protection of the current and future businesses of the
Empire Companies.
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(d) Non-Competition
Period. For purposes of this Agreement, the “Non-Competition
Period” means the period from the termination of the Executive’s employment with
the Company through (i) in the case of a termination without Cause by the
Company, the end of the Salary Continuation Period, (ii) in the case of a
voluntary termination by the Executive without Good Reason, one (1) year
following the date of such termination (for the avoidance of doubt, if Executive
terminates his employment for Good Reason there shall be no Non-Competition
Period) and (iii) in the case of a termination by the Company with Cause, for
one (1) year following such termination.
(e) Remedies. The
Executive agrees that any breach of the terms of this Section 10 would result in
irreparable injury and damage to the Company for which the Company would have no
adequate remedy at law. The Executive therefore also agrees that in
the event of said breach or any threat of such a breach, the Company shall be
entitled to seek an immediate injunction and restraining order to prevent such
breach or continued breach by the Executive, in addition to any other remedies
to which the Company may be entitled at law or in equity. The
Executive and the Company further agree that the provisions of the covenants not
to compete and solicit in this Section 10 are reasonable and that the Company
would not have entered into this Agreement but for the inclusion of such
covenants herein. Should a court determine, however, that any
provision of the covenants is unreasonable, either in period of time,
geographical area, or otherwise, the Parties agree that such covenants should be
interpreted and enforced to the maximum extent which such court deems reasonable
and such determination shall have no effect upon, and shall not impair the
enforceability of, any other provision of this Agreement.
11. Section
409A. It is the intention of the Parties that this Agreement
be exempt from or comply strictly with the provisions of Section 409A of the
Code, and Treasury Regulations and other Internal Revenue Service guidance
promulgated thereunder (the “Section 409A Rules”). Consistent with
that intention, all references hereunder to termination of the Executive’s
employment with the Company shall mean separation from the service of the
service recipient under the 409A Rules. Further, to the extent the
Executive is a specified employee under the 409A Rules, any payments of deferred
compensation within the meaning of the 409A Rules will be deferred and
accumulated for a period of six (6) months and one (1) day and will be paid in a
lump sum on such date, unless the Executive dies within such period, in which
event payment will be made upon his death. Thereafter, the normal
schedule for the remaining payments will commence. In addition,
Executive’s entitlement to the payments of the severance benefits described in
Section 9(b)(iii) shall be treated as the entitlement to a series of
separate payments for purposes of the Section 409A
Rules. Accordingly, this Agreement, including, but not limited to,
any provisions relating to severance payments, may be amended from time to time
as may be necessary or appropriate to comply with the Section 409A
Rules.
12. Withholding
of Taxes. The Company may take such actions as are reasonably
appropriate or consistent with applicable law and the Plan in connection with
any compensation paid pursuant to this Agreement with respect to the withholding
of any taxes (including income or employment taxes) or any other tax matters,
including, but not limited to, requiring the Executive to furnish to the Company
any applicable withholding taxes prior to the issuance of stock pursuant to an
option grant or the vesting of restricted stock.
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13. Indemnification;
Insurance; Limitation of Liability.
(a) The
Company agrees that if the Executive is made a party, or is threatened to be
made a party, to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of the fact that he
is or was a director, officer or employee of the Company or is or was serving at
the request of the Company as a director, officer, member, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, the Executive shall be
indemnified and held harmless by the Company to the fullest extent legally
permitted or authorized by the Company’s certificate of incorporation, by-laws
or resolutions of the Board against all cost, expense, liability and loss
(including, without limitation, attorneys’ fees, judgments, fines, ERISA excise
taxes or other liabilities or penalties and amounts paid or to be paid in
settlement) reasonably incurred or suffered by the Executive in connection
therewith, and such indemnification shall continue as to the Executive even if
he has ceased to be a director, member, employee or agent of the Company or
other entity and shall inure to the benefit of the Executive’s heirs, executors
and administrators. The Company shall advance to the Executive all
costs and expenses incurred by him in connection with a Proceeding within a
reasonable time after submission of reasonable documentation of such costs and
expenses. Such request shall include an undertaking by the Executive
to repay the amount of such advance if it shall ultimately be determined that he
is not entitled by law to be indemnified against such costs and expenses;
provided that the amount of such obligation to repay shall be limited to the
after-tax amount of any such advance except to the extent the Executive is able
to offset such taxes incurred on the advance by the tax benefit, if any,
attributable to a deduction realized by him for the repayment.
(b) Neither
the failure of the Company (including its Board, independent legal counsel or
stockholders) to have made a determination prior to the commencement of any
Proceeding concerning payment of amounts claimed by the Executive under Section
13(a) above that indemnification of the Executive is proper because he has met
the applicable standard of conduct, nor a determination by the Company
(including its Board, independent legal counsel or stockholders) that the
Executive has not met such applicable standard of conduct, shall create a
presumption in any judicial proceeding that the Executive has not met the
applicable standard of conduct.
(c) The
Company agrees to continue and maintain director’s and officer’s liability
insurance policy covering the Executive, until such time as actions against the
Executive are no longer permitted by law, with terms and conditions no less
favorable than the most favorable coverage then applying to any other senior
level executive officer or director of the Company.
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14. Representations. The
Executive represents and warrants that he has the free and unfettered right to
enter into this Agreement and to perform his obligations under it and that he
knows of no agreement between him and any other person, firm or organization, or
any law or regulation, that would be violated by the performance of his
obligations under this Agreement. The Company represents and warrants
that it is duly formed or organized, validly existing and in good standing under
the laws of the State of Delaware and is registered or qualified to conduct
business in all other jurisdictions in which the failure to be so registered or
qualified would adversely affect the ability of the Company to perform its
obligations under this Agreement. The Company has taken all company
action required to execute, deliver and perform this Agreement and to make all
of the provisions of this Agreement the valid and enforceable obligations they
purport to be and has caused this Agreement to be executed by a duly authorized
officer of the Company. All consents and approvals by any third party
required to be obtained by the Company in order for it to be authorized to enter
into and consummate this Agreement have been obtained and no further third party
approvals or consents are required to consummate this Agreement.Execution and
delivery of this Agreement and all related documents, and performance of the
obligations hereunder by the Company do not conflict with any provision of any
law or regulation to which the Company or any of its affiliates are subject,
conflict with or result in a breach of or constitute a default under any of the
terms, conditions or provisions of any agreement or instrument to which the
Company or any of its affiliates are a party or by which the Company is bound or
any order or decree applicable to the Company, or result in the creation or
imposition of any lien on any assets or property of the Company, and/or which
would materially and adversely affect the ability of the Company to perform its
obligations under this Agreement. The Company has obtained all consents,
approvals, authorizations or orders of any court or governmental agency or body,
if any, required for the execution, delivery and performance by the Company of
this Agreement.
15. Successors
and Assigns.
(a) This
Agreement shall be binding upon and shall inure to the benefit of the Company,
its successors and assigns and the Company shall require any successor or assign
to expressly assume and agree to perform this Agreement in the same manner and
to the same extent that the Company would be required to perform it if no such
succession or assignment had taken place. The term “the Company” as
used herein shall include any such successors and assigns. The term
“successors” and “assigns” as used herein shall mean a corporation or other
entity acquiring or otherwise succeeding to, directly or indirectly, all or
substantially all the assets and business of the Company (including this
Agreement) whether by operation of law or otherwise.
(b) Neither
this Agreement nor any right or interest hereunder shall be assignable or
transferable by the Executive, his beneficiaries or legal representatives,
except by will or by the laws of descent and distribution. This
Agreement shall inure to the benefit of and be enforceable by the Executive’s
legal personal representative.
16. Notice. For
the purposes of this Agreement, notices and all other communications provided
for in this Agreement (including the Notice of Termination) shall be in writing
and shall be deemed to have been duly given when personally delivered or sent by
registered or certified mail, return receipt requested, postage prepaid, or upon
receipt if overnight delivery service or facsimile is used, and addressed as
follows:
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To the
Executive:
Xxxxxxxx
Xxxxxxx
at the
address in the payroll records of the Company
With a
copy to:
Xxxxxx
Xxxxxxx
Becker,
Glynn, Xxxxxxx & Xxxxxx LLP
000 Xxxx
Xxxxxx
Xxx Xxxx,
XX 00000
To the
Company:
Empire
Resorts, Inc.
c/o
Monticello Casino and Raceway, Xxxxx 00X
X.X. Xxx
0000
Xxxxxxxxxx,
Xxx Xxxx 00000
with a copy to:
Xxxxxx X.
Xxxxxxxx
Xxxxxx
Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park
Avenue Tower
00 Xxxx
00xx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
17. Survivorship. Except
as otherwise set forth in this Agreement, the respective rights and obligations
of the Executive and the Company hereunder shall survive any termination of the
Executive’s employment.
18. Waiver. The
waiver by either Party of a breach of any provision of this Agreement shall not
be construed as a waiver of any subsequent breach. The failure of a
Party to insist upon strict adherence to any provision of this Agreement on one
or more occasions shall not be considered a waiver or deprive that Party of the
right thereafter to insist upon strict adherence to that provision or any other
provision of this Agreement. Any waiver must be in writing and signed
by the Executive and the Company.
19. Governing
Law. Subject to Section 12, this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of the State of New
York without giving effect to the conflict of law principles
thereof. Any action, suit or other legal proceeding that is commenced
to resolve any matter arising under or relating to any provision of this
Agreement shall be submitted to the exclusive jurisdiction of any state or
federal court in New York County.
20. 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.
12
21. Entire
Agreement. This Agreement
constitutes the entire agreement between the Parties and supersedes all prior
agreements, understandings and arrangements, oral or written, between the
Parties with respect to the subject matter hereof. This Agreement may
be executed in one or more counterparts.
[Signature Page to
Follow]
13
[Signature Page to Xxxxxxx Employment
Agreement]
IN
WITNESS WHEREOF, the Company has caused this Agreement to be executed by its
duly authorized officer and the Executive has executed this Agreement as of the
day and year first above written.
|
EMPIRE
RESORTS, INC.
|
|||
|
By:
|
/s/
Xxxxx Xxxx
|
||
|
Name:
|
Xxxxx
Xxxx
|
||
|
Title:
|
Director
|
||
|
EXECUTIVE:
|
|||
|
/s/
Xxxxxxxx Xxxxxxx
|
|||
|
XXXXXXXX
XXXXXXX
|
|||
14
