ex104to10q05558_06302009.htm


    Exhibit 10.4

     

    
      AMENDMENT NO.
1

       

      TO

       

      SEPARATION AND RELEASE
AGREEMENT

       

      THIS
AMENDMENT NO. 1 TO SEPARATION AND RELEASE AGREEMENT (the “Amendment”) is entered
into as of the 12th day of
August 2009, by and between EMPIRE RESORTS, INC. (the “Company”) and RONALD
RADCLIFFE, former Chief Financial Officer of the Company (“Mr.
Radcliffe”).

       

      WHEREAS, Mr. Radcliffe and the
Company entered into that certain Separation and Release Agreement, dated as of
April 14, 2009 (the “Agreement”).

       

      WHEREAS, Exhibit A to the
Agreement contained errors which misstated the amount of shares underlying
options held by Mr. Radcliffe.

       

      WHEREAS, Mr. Radcliffe and the
Company wish to amend the Agreement as provided herein to correct such
errors.

       

      NOW, THEREFORE, Mr. Radcliffe
and the Company hereby agree as follows:

       

      1.           Exhibit
A to the Agreement, entitled “Options Outstanding” is hereby deleted in its
entirety and replaced with the following:

       

      Exhibit
A

       

      Options
Outstanding

       

      1.           Options
to purchase 120,000 shares of common stock of Empire Resorts, Inc. at $3.99 per
share granted on August 17, 2005.  These shall remain exercisable
through June 30, 2012.

      


      2.           Options
to purchase 60,000 shares of common stock of Empire Resorts, Inc. at $5.53 per
share granted on August 10, 2006.  These shall remain exercisable
through June 30, 2012.

      


      3.           Options
to purchase 40,000 shares of common stock of Empire Resorts, Inc. at $7.40 per
share granted on May 24, 2007.  These shall remain exercisable through
June 30, 2012.

      


      4.           Options
to purchase 50,000 shares of common stock of Empire Resorts, Inc. at $2.98 per
share granted on July 21, 2008.  These shall remain exercisable
through June 30, 2012.

      


      To the
extent the Company (i) maintains a registration statement with respect to shares
of the Company or (ii) permits “net issuance”, broker assisted or other cashless
exercise with respect to options held by directors or officers of the Company,
Employee shall continue to be provided with those features with respect to the
foregoing options.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      2.           The
Agreement is amended hereby solely as provided herein and, as so amended,
continues in full force and effect.

       

      3.           This
Amendment shall be governed by and construed in accordance with the laws of the
State of New York, without regard to its conflicts of law
principles.  Any dispute regarding this Amendment or Mr. Radcliffe’s
employment shall be resolved in the federal or state courts located in the State
of New York, without a jury (which is hereby expressly waived).

       

      4.           This
Amendment may be executed in counterparts and each of such counterparts shall
for all purposes be deemed to be an original, all such counterparts shall
together constitute but one and the same instrument and facsimile, photostatic
and pdf copies of such executed counterparts shall be given the same effect as
the originals.

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      IN
WITNESS WHEREOF, the parties have executed this Amendment as of the first date
set forth above.

       

      


      
        
          
            	
                    EMPIRE
      RESORTS, INC.

                  
	 
      
	 
      
	 
      
	
                    By:

                  	
                    
                      /s/
      Joseph Bernstein

                    

                  
	 
      	 
      
	 
      
	 
      	
                    Signed
      on:

                  	
                    
                      August
      12, 2009

                    

                  
	 
      
	 
      
	 
      
	 
      
	
                    By:

                  	
                    
                      /s/
      Ronald Radcliffe

                    

                  
	 
      	
                    Ronald
      Radcliffe

                  
	 
      
	 
      	
                    Signed
      on:

                  	
                    
                      August
      12, 2009