STOCKHOLDER VOTING
AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this
“Agreement” ) is entered into as of August 19,
2009 by and among the stockholders listed on the signature page(s)
hereto (collectively, the “Stockholders” and
each individually, a “Stockholder” ), Empire
Resorts, Inc., a Delaware corporation (the
“Company” ), and Kien Huat Realty III Limited,
an Isle of Man corporation (the “Investor”
). Capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the
Investment Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholders
collectively own of record and beneficially the shares of common
stock, $0.01 par value per share, of the Company (“ Common
Stock” ) set forth opposite their respective names on
Schedule I hereto (such shares being referred to
herein collectively as the “Shares” and, for the
avoidance of doubt, all references herein to a Stockholder’s
Shares shall include not only all the Shares opposite such
Stockholder’s name on Schedule I, but also all additional
shares of Common Stock that are, or become during the term of this
Agreement, owned directly or indirectly by such Stockholder or any
Person controlled by or under common control with such Stockholder,
subject in all cases to Transfers (as defined below) of such Shares
that have been made to Permitted Transferees to the extent
permitted by and in accordance with Section 2(a));
WHEREAS, concurrently with the execution of this
Agreement, the Investor and the Company are entering into an
Investment Agreement, dated as of the date hereof (as amended,
restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the “Investment
Agreement” ), pursuant to which, the Company has agreed,
subject to the terms thereof, to issue shares of Common Stock to
the Investor in exchange for the consideration set forth therein;
and
WHEREAS, as a condition to the willingness of
the Investor to enter into the Investment Agreement, the Investor
has required that the Stockholders enter into, and in order to
induce the Investor to enter into the Investment Agreement, the
Stockholders are willing to enter into, this Agreement.
NOW, THEREFORE, in consideration of the
foregoing and the mutual covenants and agreements contained herein,
and intending to be legally bound hereby, the parties hereby agree,
severally and not jointly, as follows:
Section
1.
Voting of Shares . Each Stockholder covenants and
agrees that until the termination of this Agreement in accordance
with the terms hereof, at the stockholders’ meeting called by
the Company to approve the Company Voting Proposals pursuant to
Section 3.1 of the Investment Agreement (including any adjournments
or postponements thereof) or any other meeting of the stockholders
of the Company, however called, and in any action by written
consent of the stockholders of the Company, such Stockholder (a)
will vote or consent to, or cause to be voted or consented to, all
of his, her or its Shares in favor of (i) the Company Voting
Proposals and (ii) any other matter relating to the consummation of
the transactions contemplated by the Investment Agreement with
respect to which such Stockholder may be entitled to vote and (b)
will vote all of his, her or its Shares against, and not provide
consent to, (i) any and all Alternative Investment Proposals and
agreements providing for Alternative Investment Proposals or any
proposal or nomination made by a Person who is, or whose Affiliate
is, making or has communicated an intention to make, an Alternative
Investment Proposal, (ii) any action or agreement that would
reasonably expected to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
the Company under the Investment Agreement, or (iii) any other
matter that would reasonably be expected to prevent, interfere with
or delay consummation of the transactions contemplated in the
Investment Agreement.
Section
2.
Transfer of Shares .
(a) Each
Stockholder covenants and agrees that, without the prior written
consent of the Investor, such Stockholder will not directly or
indirectly (i) sell, assign, transfer (including by merger,
interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law), pledge, encumber,
assign or otherwise dispose of ( “Transfer” )
any Shares or the Beneficial Ownership (as hereinafter defined)
thereof, (ii) deposit any Shares into a voting trust or enter
into a voting agreement or arrangement with respect to any Shares
or the Beneficial Ownership thereof or grant or agree to grant any
proxy or power of attorney with respect thereto which is
inconsistent with this Agreement or (iii) enter into any contract,
option or other arrangement or undertaking with respect to the
direct or indirect Transfer of any Shares or the Beneficial
Ownership thereof (except, in each case under clause (i)
and this clause (iii), to a Permitted Transferee). For
purpose of this Agreement, “Beneficial
Ownership” shall have the meaning given to such term in
Rule 13d-3 under the Exchange Act (disregarding the reference to
“within 60 days” in Rule 13d-3(d)(1)(i)). As
used herein, a “Permitted Transferee” shall mean
a Person that (A) is a signatory to this Agreement as of the date
hereof, owns Shares continuously from the date hereof through the
time of the action proposed under Section 2(a)(i) or Section
2(a)(iii), and has not violated this Agreement or (B) before such
action proposed under Section 2(a)(i) or Section 2(a)(iii) occurs,
agrees in writing, in form and substance to the reasonable
satisfaction of the Investor, to be bound as a Stockholder under
this Agreement and has not violated this Agreement. In
connection with any Transfer of Shares to a Permitted Transferee,
the transferring Stockholder may transfer its rights and
obligations under this Agreement to the Permitted Transferee, but
the transferring Stockholder shall remain primarily liable for all
breaches of such obligations before such Transfer and shall remain
secondarily liable for all breaches of such transferred obligations
from and after such Transfer. Notwithstanding anything
herein to the contrary, nothing in this Agreement shall permit any
Transfer of Shares, Beneficial Ownership, rights or obligations or
any other action that would otherwise be permitted by this Section
2(a) if such Transfer or other action would create any material
impediment or delay to the performance or consummation of the
Investment Agreement or this Agreement, including, without
limitation, triggering the applicability of any Takeover Statute to
the Investment Agreement, this Agreement or any of the transactions
contemplated by the Investment Agreement or this
Agreement.
(b) Each
Stockholder undertakes that, while this Agreement is in effect,
except as contemplated by Section 8, such Stockholder shall not,
directly or indirectly, (i) solicit, initiate, propose or knowingly
encourage or take any other action to knowingly facilitate an
Alternative Investment Proposal, (ii) enter into any letter of
intent, memorandum of understanding, agreement, option agreement,
voting agreement or other agreement or arrangement with respect to
any Alternative Investment Proposal or (iii) enter into, continue,
participate, engage or knowingly assist in any manner in
negotiations or discussions with, or provide any non-public
information or data to, any person (other than the Investor or any
of its affiliates or representatives) relating to any Alternative
Investment Proposal.
Section
3.
Proxy With Respect to Shares . Each Stockholder
hereby irrevocably appoints the Investor as its attorney and proxy,
with full power of substitution, to vote or act by consent in such
a manner as such attorney and proxy or its substitute shall, in its
sole discretion, deem proper, and otherwise act with respect to all
of the Shares which it is entitled to vote at any meeting of the
stockholders (whether annual or special and whether or not an
adjourned or postponed meeting) of the Company or to act by consent
with respect to any action (the “Proxy”) ;
provided, however , that each Stockholder grants a proxy
hereunder only with respect to the following matters that may be
presented to the stockholders of the Company: (i) votes or consents
with respect to the Company Voting Proposals pursuant to Section
3.1 of the Investment Agreement; (ii) votes or consents with
respect to any other matter relating to the consummation of the
transactions contemplated by the Investment Agreement; (iii) votes
or consents with respect to any and all Alternative Investment
Proposals and agreements providing for Alternative Investment
Proposals or any proposal or nomination made by a Person who is, or
whose Affiliate is, making or has communicated an intention to
make, an Alternative Investment Proposal; (iv) votes or consents
with respect to any action or agreement that would reasonably be
expected to result in a breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under
the Investment Agreement; and (v) votes or consents with respect to
any other matter that would reasonably be expected to prevent,
interfere with or delay consummation of the transactions
contemplated in the Investment Agreement. This proxy is
irrevocable, is coupled with an interest sufficient in law to
support an irrevocable proxy and is granted in consideration of and
as an inducement to cause the Investor to enter into the
transactions contemplated by the Investment
Agreement.&n
