EXHIBIT 10.19
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT"), dated as of the
30th day of January, 2004, is by and among Empire Resorts, Inc., a Delaware
corporation (the "COMPANY"), and Xxxxxxxxx & Company, Inc. (together with its
registered assigns, the "WARRANTHOLDER").
WHEREAS, the Warrantholder owns warrants to purchase 250,000 shares of
the Common Stock, $.01 par value (the "COMMON STOCK"), of the Company (or such
other class of common stock of the Company into which the Common Stock may be
converted or reclassified, and all references herein to the Common Stock shall
mean such other class of common stock, if applicable) (the "WARRANTS"). The
Company and the Warrantholder deem it to be in their respective best interests
to set forth the rights of the Warrantholder in connection with public offerings
and sales of the capital stock of the Company.
ACCORDINGLY, in consideration of the premises and mutual covenants and
obligations hereinafter set forth, the Company and the Warrantholder hereby
agree as follows:
SECTION 1. DEFINITIONS. Capitalized terms used but not otherwise
defined herein shall have the meaning given to them in the Purchase Agreement
(as defined below). As used in this Agreement, the following terms shall have
the following meanings:
"AFFILIATE" shall have the meaning ascribed to it in the Purchase
Agreement.
"COMMISSION" shall mean the Securities and Exchange Commission or any
other Governmental Authority at the time administering the Securities Act.
"COMMON STOCK" shall have the meaning ascribed to it in the Preamble.
"DEFERRAL PERIOD" shall have the meaning set forth in Section 7.
"EFFECTIVENESS PERIOD" means, with respect to any Registration
Statement, the period from the date of effectiveness of such Registration
Statement until the earlier of (i) the date two years following such date of
effectiveness; provided, however, that such two-year period shall be extended by
the aggregate number of days, if any, during which the effectiveness of such
Registration Statement was suspended or withdrawn or such Registration Statement
was otherwise unavailable in respect of Registrable Shares and (ii) the date
that all Registrable Shares covered by such Registration Statement have been
sold thereunder.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"GOVERNMENTAL AUTHORITY" shall mean any domestic or foreign government
or political subdivision thereof, whether on a federal, state or local level and
whether executive, legislative or judicial in nature, including nay agency,
authority, board, bureau, commission, court, department or other instrumentality
thereof.
"OTHER SHARES" shall mean at any time those shares of Common Stock
which do not constitute Primary Shares or Registrable Shares.
"PERSON" shall be construed as broadly as possible and shall include
an individual person, a partnership (including a limited liability partnership),
a corporation, an association, a joint stock company, a limited liability
company, a trust, a joint venture, an unincorporated organization and a
Governmental Authority.
"PRIMARY SHARES" shall mean, at any time, the authorized but unissued
shares of Common Stock held by the Company in its treasury.
"PROSPECTUS" shall mean the prospectus included in a Registration
Statement, including any prospectus subject to completion, and any such
prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Shares and, in
each case, by all other amendments and supplements to such prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"PURCHASE AGREEMENT" means the Securities Purchase Agreement dated as
of January 26, 2004, between the Company and the Purchasers named therein, as
amended, restated or otherwise modified from time to time.
"REGISTRABLE SHARES" shall mean, at any time, and with respect to the
Warrantholder, the shares of Common Stock issued or issuable upon the exercise
of the Warrants. As to any particular Registrable Shares, once issued, such
Registrable Shares shall cease to be Registrable Shares (A) when such
Registrable Shares have been registered under the Securities Act, the
Registration Statement in connection therewith has been declared effective and
they have been disposed of pursuant to and in the manner described in such
effective Registration Statement, (B) when such Registrable Shares are sold or
distributed pursuant to Rule 144, (C) one year after the date on which the
Warrantholder may first sell such Registrable Shares without volume restrictions
under Rule 144(k) (provided that the Warrantholder is still able, at such time,
to sell such Registrable Shares under Rule 144(k)), as determined by outside
counsel to the Company pursuant to a written opinion letter to such effect,
addressed and acceptable to the Company's transfer agent and the Warrantholder,
or (D) when such Registrable Shares have ceased to be outstanding.
"REGISTRATION STATEMENT" shall mean any registration statement of the
Company which covers any of the Registrable Shares, and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"REPRESENTATIVE" of a Person shall be construed broadly and shall
include such Person's partners, officers, directors, employees, agents, counsel,
accountants and other representatives.
"RESTRICTED SECURITIES" shall mean, at any time and with respect to
the Warrantholder, the shares of Common Stock issued or issuable upon the
exercise of Warrants, which are held by the Warrantholder and which theretofore
have not been sold to the public pursuant to a Registration Statement or
pursuant to Rule 144.
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"RULE 144" shall mean Rule 144 promulgated under the Securities Act
or any successor rule thereto.
"SECURITIES ACT" shall mean the Securities Act of 1933 or any
successor Federal statute, and the rules and regulations of the Commission
promulgated thereunder, all as the same shall be in effect from time to time.
"TRADING DAY" means (i) a day on which the Company's common stock is
traded on a Trading Market, or (ii) if the common stock is not listed on a
Trading Market, a day on which the common stock is traded on the
over-the-counter market, as reported by the OTC Bulletin Board, or (iii) if the
common stock is not quoted on the OTC Bulletin Board, a day on which the Common
Stock is quoted in the over-the-counter market as reported by the National
Quotation Bureau Incorporated (or any similar organization or agency succeeding
its functions of reporting prices); provided, that in the event that the common
stock is not listed or quoted as set forth in (i), (ii) and (iii) hereof, then
Trading Day shall mean a Business Day (as defined in the Purchase Agreement).
"WARRANTS" shall have the meaning ascribed to it in the Preamble.
SECTION 2. PIGGYBACK REGISTRATION. If the Company at any time proposes
for any reason to register Primary Shares or Other Shares under the Securities
Act (other than on Form S-4 or Form S-8 promulgated under the Securities Act or
any successor forms thereto), it shall promptly give written notice to the
Warrantholder of its intention to so register the Primary Shares or Other Shares
and, upon the written request, given within three (3) Trading Days after
delivery of any such notice by the Company, of the Warrantholder to include in
such registration Registrable Shares (which request shall specify the number of
Registrable Shares proposed to be included in such registration), the Company
shall use its best efforts to cause all such Registrable Shares to be included
in such registration on the same terms and conditions as the securities
otherwise being sold in such registration; provided, however, that if the
managing underwriter advises the Company that the inclusion of all Registrable
Shares or Other Shares proposed to be included in such registration would
interfere with the successful marketing (including pricing) of Primary Shares
proposed to be registered by the Company, then the number of Registrable Shares
proposed to be included in such registration shall be subject to customary
cutbacks applicable to all holders of registration rights.
SECTION 3. PREPARATION AND FILING. If and whenever the Company is
under an obligation pursuant to the provisions of this Agreement to use its best
efforts to effect the registration of any Registrable Shares, the Company shall,
as expeditiously as practicable:
(i) Not less than two (2) Trading Days prior to the filing of a
Registration Statement or any related Prospectus or any amendment or
supplement thereto, the Company shall furnish to the Warrantholder
copies of all such documents proposed to be filed which documents
(other than those incorporated or deemed to be incorporated by
reference) will be subject to the reasonable review of the
Warrantholder. The Company shall not file a Registration Statement or
any such Prospectus or any amendments or supplements (other than
periodic reports required under the Exchange Act) thereto to which the
Warrantholder of a majority of the Registrable Shares shall reasonably
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object in writing within one (1) Trading Day of receipt.
(ii) Subject to SECTION 7, prepare and file with the Commission
such amendments, including post-effective amendments, to each
Registration Statement and the Prospectus used in connection therewith
as may be necessary to keep such Registration Statement continuously
effective as to the applicable Registrable Shares for its
Effectiveness Period and prepare and file with the Commission such
additional Registration Statements in order to register for resale
under the Securities Act all of the Registrable Shares; (ii) cause the
related Prospectus to be amended or supplemented by any required
Prospectus supplement, and as so supplemented or amended to be filed
pursuant to Rule 424; (iii) respond as promptly as reasonably possible
to any comments received from the Commission with respect to each
Registration Statement or any amendment thereto and, as promptly as
reasonably possible, upon request, provide the Warrantholder true and
complete copies of all correspondence from and to the Commission
relating to such Registration Statement that would not result in the
disclosure to the Warrantholder of material and non-public information
concerning the Company; and (iv) comply in all material respects with
the provisions of the Securities Act and the Exchange Act with respect
to the Registration Statements and the disposition of all Registrable
Shares covered by each Registration Statement during the applicable
period in accordance with the intended methods of disposition by the
Purchasers thereof set forth in the Registration Statement as so
amended or in such Prospectus as so supplemented.
(iii) Notify the Warrantholder as promptly as reasonably possible
(and, in the case of (i)(A) below, not less than two (2) Trading Days
prior to such filing) and (if requested by any such Person) confirm
such notice in writing promptly following the day (i)(A) when a
Prospectus or any Prospectus supplement or post-effective amendment to
a Registration Statement is proposed to be filed; (B) when the
Commission notifies the Company whether there will be a "review" of
such Registration Statement and whenever the Commission comments in
writing on such Registration Statement (the Company shall provide true
and complete copies thereof and all written responses thereto to each
of the Warrantholder that pertain to the Warrantholder as a selling
stockholder or to the plan of distribution, but not information which
the Company believes would constitute material and non-public
information); and (C) with respect to each Registration Statement or
any post-effective amendment, when the same has become effective; (ii)
of any request by the Commission or any other Federal or state
governmental authority for amendments or supplements to a Registration
Statement or Prospectus or for additional information; (iii) of the
issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement covering any or all of the
Registrable Shares or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Shares for sale in any
jurisdiction, or the initiation or threatening of any proceeding for
such purpose; and (v) of the occurrence of any event or passage of
time that makes the financial statements included in a Registration
Statement ineligible for inclusion therein or any statement made in
such Registration Statement or Prospectus or any document incorporated
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or deemed to be incorporated therein by reference untrue in any
material respect or that requires any revisions to such Registration
Statement, Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading.
(iv) Use its best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of (i) any order suspending the
effectiveness of a Registration Statement, or (ii) any suspension of
the qualification (or exemption from qualification) of any of the
Registrable Shares for sale in any jurisdiction, at the earliest
practicable moment.
(v) Furnish to the Warrantholder by email, hand delivery or
overnight courier, without charge, at least one conformed copy of each
Registration Statement and each amendment thereto, and all exhibits to
the extent requested by such Person (other than those previously
furnished or incorporated by reference) promptly after the filing of
such documents with the Commission.
(vi) Promptly deliver to the Warrantholder, without charge, as
many copies of each Prospectus or Prospectuses (including each form of
prospectus) and each amendment or supplement thereto as such Persons
may reasonably request. The Company hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Warrantholder in connection with the offering and sale of the
Registrable Shares covered by such Prospectus and any amendment or
supplement thereto to the extent permitted by federal and state
securities laws and regulations.
(vii) Prior to any public offering of Registrable Shares, use its
reasonable best efforts to register or qualify or cooperate with the
selling Warrantholder in connection with the registration or
qualification (or exemption from such registration or qualification)
of such Registrable Shares for offer and sale under the securities or
blue sky laws of such jurisdictions within the United States as the
Warrantholder requests in writing, to keep each such registration or
qualification (or exemption therefrom) effective during the
Effectiveness Period and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions
of the Registrable Shares covered by the Registration Statements;
provided, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to material taxation in respect of
doing business in any jurisdiction in which it is not otherwise so
subject.
(viii) Cooperate with the Warrantholder to facilitate the timely
preparation and delivery of certificates representing Registrable
Shares to be delivered to a transferee pursuant to the Registration
Statements, which certificates shall be free, to the extent permitted
by the Purchase Agreement, of all restrictive legends, and to enable
such Registrable Shares to be in such denominations and registered in
such names as any the Warrantholder may request.
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(ix) Upon the occurrence of any event or passage of time that
makes the financial statements included in a Registration Statement
ineligible for inclusion therein or any statement made in such
Registration Statement or Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to such Registration Statement,
Prospectus or other documents so that, in the case of such
Registration Statement or the Prospectus, as the case may be, it will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading, as promptly as reasonably possible, prepare
a supplement or amendment, including a post-effective amendment, to
the affected Registration Statements or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, and file any other required document so that, as
thereafter delivered, no Registration Statement nor any Prospectus
will contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(x) Comply with all applicable rules and regulations of the
Commission.
(xi) The Company may require each selling Warrantholder to
furnish to the Company a certified statement as to the number of
shares of Common Stock beneficially owned by such Warrantholder and
any controlling person thereof.
SECTION 4. EXPENSES. All expenses incurred by the Company in complying
with SECTION 3 with respect to any Registration pursuant to SECTION 2,
including, without limitation, all registration and filing fees (including all
expenses incident to filing with the NASD), fees and expenses of complying with
securities and blue sky laws, printing expenses and fees and expenses of the
Company's counsel and accountants (the "REGISTRATION EXPENSES"), shall be paid
by the Company.
SECTION 5. INDEMNIFICATION. (a) In connection with any registration of
any Registrable Shares under the Securities Act pursuant to this Agreement, the
Company shall indemnify and hold harmless the seller of such Registrable Shares,
each underwriter, broker or any other Person acting on behalf of such seller,
each other Person, if any, who controls any of the foregoing Persons within the
meaning of the Securities Act and each Representative of any of the foregoing
Persons, against any losses, claims, damages or liabilities, joint or several,
to which any of the foregoing Persons may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement under which such Registrable Shares were registered, any preliminary
Prospectus or final Prospectus contained therein, any amendment or supplement
thereto or any document incident to registration or qualification of any
Registrable Shares, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or, with respect to any
Prospectus, necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or any violation by the
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Company of the Securities Act or state securities or blue sky laws applicable to
the Company and relating to action or inaction required of the Company in
connection with such registration or qualification under such state securities
or blue sky laws, and the Company shall promptly reimburse such seller, such
underwriter, such broker, such controlling Person or such Representatives for
any legal or other expenses incurred by any of them in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that the Company shall not be liable to any such Person to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in said Registration Statement, preliminary Prospectus,
amendment, supplement or document incident to registration or qualification of
any Registrable Shares in reliance upon and in conformity with written
information furnished to the Company through an instrument duly executed by such
Person, or a Person duly acting on their behalf, specifically for use in the
preparation thereof; provided further, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any untrue
statement, allegedly untrue statement, omission or alleged omission made in any
preliminary Prospectus but eliminated or remedied in the final Prospectus (filed
pursuant to Rule 424 of the Securities Act), such indemnity agreement shall not
inure to the benefit of any indemnified party from whom the Person asserting any
loss, claim, damage, liability or expense purchased the Registrable Shares which
are the subject thereof, if a copy of such final Prospectus had been timely made
available to such Indemnified Person and such final Prospectus was not delivered
to such Person with or prior to the written confirmation of the sale of such
Registrable Shares to such Person.
(b) In connection with any registration of Registrable Shares under
the Securities Act pursuant to this Agreement, each seller of Registrable Shares
shall indemnify and hold harmless (in the same manner and to the same extent as
set forth in the PARAGRAPH (a) of this SECTION 5) the Company, each underwriter
or broker involved in such offering, each other seller of Registrable Shares
under such Registration Statement, each Person who controls any of the foregoing
Persons within the meaning of the Securities Act and any Representative of the
foregoing Persons with respect to any statement or omission from such
Registration Statement, any preliminary Prospectus or final Prospectus contained
therein, any amendment or supplement thereto or any document incident to
registration or qualification of any Registrable Shares, if such statement or
omission was made in reliance upon and in conformity with written information
furnished to the Company or such underwriter through an instrument duly executed
by such seller or a Person duly acting on their behalf specifically for use in
connection with the preparation of such Registration Statement, preliminary
Prospectus, final Prospectus, amendment or supplement; provided, however, that
the maximum amount of liability in respect of such indemnification shall be
limited, in the case of each seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration.
(c) Promptly after receipt by an indemnified party of notice of the
commencement of any action involving a claim referred to in the preceding
paragraphs of this SECTION 5, such indemnified party will, if a claim in respect
thereof is made against an indemnifying party, give written notice to the latter
of the commencement of such action (provided, however, that an indemnified
party's failure to give such notice in a timely manner shall only relieve the
indemnification obligations of an indemnifying party to the extent such
indemnifying party is prejudiced by such failure). In case any such action is
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brought against an indemnified party, the indemnifying party will be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified to the extent that it may wish, with
counsel reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to assume
the defense thereof, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that if any indemnified
party shall have reasonably concluded that there may be one or more legal or
equitable defenses available to such indemnified party which are in addition to
or conflict with those available to the indemnifying party, or that such claim
or litigation involves or could have an effect upon matters beyond the scope of
the indemnity agreement provided in this SECTION 5, the indemnifying party shall
not have the right to assume the defense of such action on behalf of such
indemnified party and such indemnifying party shall reimburse such indemnified
party and any Person controlling such indemnified party for that portion of the
fees and expenses of any one lead counsel (plus appropriate special and local
counsel) retained by the indemnified party which are reasonably related to the
matters covered by the indemnity agreement provided in this SECTION 5.
(d) If the indemnification provided for in this SECTION 5 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, claim, damage or liability referred to herein, then the
indemnifying party, in lieu of indemnifying such indemnified party hereunder,
shall contribute to the amounts paid or payable by such indemnified party as a
result of such loss, claim, damage or liability in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified party on the other hand in connection with the
statements or omissions which resulted in such loss, claim, damage or liability
as well as any other relevant equitable considerations; provided, however, that
the maximum amount of liability in respect of such contribution shall be
limited, in the case of each seller of Registrable Shares, to an amount equal to
the net proceeds actually received by such seller from the sale of Registrable
Shares effected pursuant to such registration. The relative fault of the
indemnifying party and of the indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission to state a material fact relates to information
supplied by the indemnifying party or by the indemnified party and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The indemnification and contribution provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party and will survive the transfer of
securities.
SECTION 6. UNDERWRITING AGREEMENT. (a) Notwithstanding the provisions
of SECTIONS 3 and 5, to the extent that the Warrantholder selling Registrable
Shares in a proposed registration shall enter into an underwriting or similar
agreement, which agreement contains provisions covering one or more issues
addressed in such Sections of this Agreement, the provisions contained in such
Sections of this Agreement addressing such issue or issues shall be of no force
or effect with respect to such registration, but this provision shall not apply
to the Company if the Company is not a party to the underwriting or similar
agreement.
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(b) The Warrantholder may not participate in any registration
hereunder that is underwritten unless the Warrantholder agrees to sell the
Warrantholder's Registrable Shares proposed to be included therein on the basis
provided in any underwriting arrangements reasonably acceptable to the Company.
SECTION 7. SUSPENSION. Anything contained in this Agreement to the
contrary notwithstanding, the Company may, by notice in writing to each holder
of Registrable Shares to which a Prospectus relates, suspend the effectiveness
of a Registration Statement after the Effective Date thereof and/or require that
such holder immediately cease the sale of shares of Common Stock pursuant
thereto and/or defer the filing of any subsequent Registration Statement for up
to 45 consecutive days (the "DEFERRAL PERIOD") in any 90-day period, if the
Company determines in good faith, by appropriate resolutions or action by its
board of directors, that (A) it would be materially detrimental to the Company
(other than as relating solely to the price of the Common Stock) to file a
Registration Statement at such time and (B) it is in the best interests of the
Company to defer proceeding with such registration at such time; PROVIDED,
HOWEVER, that in the event the disclosure relates to a previously undisclosed
proposed or pending material business transaction, the disclosure of which the
Company determines in good faith would be reasonably likely to impede the
Company's ability to consummate such transaction, the Company may extend a
Deferral Period from 45 days to 60 days; PROVIDED FURTHER, however, that
Deferral Periods (including but not limited to any extended Deferral Periods
under clause (B)) may not total more than 60 days in the aggregate in any
twelve-month period.. The Company may (but shall not be obligated to) withdraw
the effectiveness of any Registration Statement subject to this provision.
SECTION 8. INFORMATION BY WARRANTHOLDER. Each holder of Registrable
Shares to be included in any registration shall furnish to the Company and the
managing underwriter such written information regarding such holder and the
distribution proposed by such holder as the Company or the managing underwriter
may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement.
SECTION 9. EXCHANGE ACT COMPLIANCE. From and after the Registration
Date or such earlier date as a registration statement filed by the Company
pursuant to the Exchange Act relating to any class of the Company's securities
shall have become effective, the Company shall comply with all of the reporting
requirements of the Exchange Act (whether or not it shall be required to do so)
and shall comply with all other public information reporting requirements of the
Commission which are conditions to the availability of Rule 144 for the sale of
the Common Stock. The Company shall cooperate with the Warrantholder in
supplying such information as may be necessary for the Warrantholder to complete
and file any information reporting forms presently or hereafter required by the
Commission as a condition to the availability of Rule 144.
SECTION 10. NO CONFLICT OF RIGHTS. The Company represents and warrants
to the Warrantholder that the registration rights granted to the Warrantholder
hereby do not conflict with any other registration rights granted by the
Company. The Company shall not, after the date hereof, grant any registration
rights which conflict with or impair, or have any priority over, the
registration rights granted hereby.
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SECTION 11. TERMINATION. This Agreement shall terminate and be of no
further force or effect when there shall not be any Restricted Securities;
provided, however, that SECTIONS 4 and 5 shall survive the termination of this
Agreement.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement shall bind and
inure to the benefit of the Company and the Warrantholder and, subject to
Section 13, their respective successors and assigns.
SECTION 13. ASSIGNMENT. The Warrantholder may assign its rights
hereunder to any Person to whom it transfers any Registrable Shares; provided,
however, that such transferee shall, as a condition to the effectiveness of such
assignment, be required to execute a counterpart to this Agreement agreeing to
be treated as a Warrantholder hereunder whereupon such transferee shall have the
benefits of, and shall be subject to the restrictions contained in, this
Agreement as a Warrantholder.
SECTION 14. ENTIRE AGREEMENT. This Agreement contains the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior arrangements or understandings with respect hereto.
SECTION 15. NOTICES. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument and shall be deemed to have been duly given
when delivered in Person, by telex, telegram or telecopy, by overnight courier,
or by first class registered or certified mail, postage prepaid, addressed to
such party at the address set forth below or such other address as may hereafter
be designated in writing by the addressee to the sender:
(i) if to the Company, to:
Empire Resorts, Inc.
c/o Monticello Raceway
Xxxxx 00X
X.X. Xxx 0000
Xxxxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx LLP
Park Avenue Tower
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
(ii) if to the Warrantholder, to its address set forth in the
books of the Company;
with a copy to:
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Mayer, Brown, Xxxx & Maw LLP
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx
All such notices, requests, consents and other communications shall be deemed to
have been delivered (a) in the case of personal delivery, telex, telegram or
telecopy, on the date of such delivery, (b) in the case of overnight courier, on
the next business day, and (c) in the case of mailing, on the fifth business day
following such mailing.
SECTION 16. MODIFICATIONS; AMENDMENTS; WAIVERS. The terms and
provisions of this Agreement may not be modified or amended, nor may any
provision applicable to the Warrantholder be waived, except pursuant to a
writing signed by the Company and the Warrantholder.
SECTION 17. HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not be
deemed to be a part of this Agreement.
SECTION 18. SEVERABILITY. It is the desire and intent of the parties
that the provisions of this Agreement be enforced to the fullest extent
permissible under the law and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any provision of this Agreement
would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, as to such jurisdiction, be so narrowly drawn, without invalidating the
remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 19. GOVERNING LAW; ETC. All questions concerning the
construction, interpretation and validity of this Agreement shall be governed by
and construed and enforced in accordance with the domestic laws of the State of
New York, without giving effect to any choice or conflict of law provision or
rule (whether in the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
New York. In furtherance of the foregoing, the internal law of the State of New
York will control the interpretation and construction of this Agreement, even if
under such jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
SECTION 20. COUNTERPARTS; VALIDITY. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
taken together shall constitute one and the same agreement, and telecopied
signatures shall be effective. The failure of any Person holding Registrable
Shares to execute this Agreement shall not render this Agreement invalid as
between the Company and any other Person holding Registrable Shares.
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SECTION 21. ENTIRE AGREEMENT. This Agreement and the other documents,
certificates, instruments, writings and agreements referred to herein or
delivered pursuant hereto contain the entire understanding of the parties with
respect to the subject matter hereof and supersede in their entirety any and all
prior agreements and understandings between any of the parties hereto, all of
which are hereby terminated in their entirety and of no further force or effect.
* * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above-written.
EMPIRE RESORTS, INC.
By:
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Name:
Title:
XXXXXXXXX & COMPANY, INC.
By:
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Name:
Title:
