ex48to8k05558_07272009.htm


    Exhibit
4.8

     

    This Investor Rights Agreement
(as it may be amended from time to time, this "Agreement"), dated as of July
27, 2009, is entered into by and among Empire Resorts, Inc., a Delaware
corporation (the "Company") and the persons who
execute this Agreement as Warrantholders (the "Warrantholders")

     

    Capitalized
terms used herein without definition are defined in Section 1.1.

     

    W
I T N E S S E T H

    


     

    Whereas:

     

    
      	
              (A)

            	
              On
      or prior to the date hereof, the Warrantholders received certain warrants
      (the “Warrants”)
      exercisable to purchase shares of the Company's common stock, par value
      $0.01 per share ("Company
      Common Stock"); and

            


    

     

    
      	
              (B)

            	
              The
      Company has agreed to provide the Warrantholders with the registration and
      other rights specified in this Agreement with respect to any shares of
      Company Common Stock held by a Warrantholder or any other Holder, on the
      terms and subject to the conditions set forth
  herein.

            


    

     

    Now, Therefore, in
consideration of the mutual promises and covenants set forth below and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the parties hereto agree as
follows:

     

    ARTICLE
1

     

    DEFINITIONS

     

    Section
1.1    Definitions

     

    Capitalized
terms used in this Agreement and not otherwise defined herein shall have the
meanings set forth below:

     

    "Adverse Effect" has the
meaning set forth in Section 2.1(e).

     

    "Advice" has the meaning set
forth in Section 2.6.

     

    "Affiliate" of a Person means a
Person that directly or indirectly through one or more intermediaries, controls,
is controlled by, or is under common control with, the first
Person.

     

    "Control" (including the terms
"controlled by" and "under common control with") means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of a person, whether through the ownership of voting securities, by
contract or credit arrangement, as trustee or executor, or
otherwise.

     

    "Agreement" has the meaning set
forth in the introductory paragraph of this Agreement.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    "Board" means the board of
directors, or similar governing body, of the Company.

     

    "Business Day" means a day
other than a Saturday, Sunday or other day on which commercial banks in New York
City are authorized or required to close.

     

    "Company" has the meaning set
forth in the introductory paragraph of this Agreement and will include any
successors pursuant to Section 2.12 or 6.2.

     

    "Company Common Stock" has the
meaning set forth in the recitals to this Agreement and shall include any
securities issued or issuable with respect to the shares of Company Common Stock
by way of a stock dividend or a stock split or in connection with a combination
of shares, recapitalization, merger, consolidation or other
reorganization.

     

    "Convertible Securities" means
any evidence of indebtedness, options, warrants, shares of stock or other
securities directly or indirectly convertible into or exchangeable (directly or
indirectly, with or without payment of additional consideration) for, or
exercisable to purchase, Company Common Stock.

     

    "Covered Persons" has the
meaning set forth in Section 2.8(a).

     

    "Demand Registration" has the
meaning set forth in Section 2.1(a)(i).

     

    "Demand Request" has the
meaning set forth in Section 2.1(a)(i).

     

    "Demanding Shareholders" has
the meaning set forth in Section 2.1(a)(i).

     

    "Exchange Act" means the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the SEC thereunder.

     

    "Excluded Registration" means a
registration under the Securities Act of (i) securities to be offered to
directors, members of management, employees, consultants, agents or
representatives of the Company or any of its subsidiaries, (ii) securities on
Form S-8 or any similar successor form or (iii) securities to effect the
acquisition of, or combination with, another Person registered on Form S-4 or
any similar successor form.

     

    "Governmental Authority" means
any international, supranational or national government, any state, provincial,
local or other political subdivision thereof, any entity, authority or body
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, including any government authority,
agency, department, board, commission or instrumentality of the United States or
a foreign nation or jurisdiction, any State of the United States or any
political subdivision of any thereof, any court, tribunal or arbitrator, or any
self-regulatory organization.

     

    "Holder" means (i) each of the
Warrantholders and (ii) any other Person (A) who is the transferee, directly or
indirectly, of Registrable Shares from an Warrantholder and (B) who shall have
become a party to this Agreement in accordance with Section 2.9.

     

    "Inspectors" has the meaning
set forth in Section 2.5(m).

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    "Material Disclosure Event"
means, as of any date of determination, any pending or imminent event relating
to the Company or any of its subsidiaries that the Board reasonably determines
in good faith, after consultation with outside counsel to the Company, (i) would
require disclosure of material, non-public information relating to such event in
any registration statement or related prospectus including Registrable Shares
(including documents incorporated by reference therein) so that such
registration statement would not be materially misleading, (ii) would not
otherwise be required to be publicly disclosed by the Company at that time in a
periodic report to be filed with or furnished to the SEC under the Exchange Act
but for the filing of such registration statement or related prospectus and
(iii) if publicly disclosed at the time of such event, could reasonably be
expected to have a material adverse effect on the business, financial condition,
prospects or results of operations of the Company and its subsidiaries or would
materially adversely affect a pending or proposed material acquisition, merger,
recapitalization, consolidation, reorganization, financing or similar
transaction, or negotiations with respect thereto.

     

    "NASD" has the meaning set
forth in Section 2.5(o).

     

    "Notice" has the meaning set
forth in Section 6.8(a).

     

    "Own" means beneficially own,
as defined under Rule 13d-3 of the SEC, as the same may be amended from time to
time, and any successor or similar rule or regulation hereafter adopted by the
SEC.

     

    "Party" means any party to this
Agreement.

     

    "Person" or "person" means any natural
person, firm, limited liability company, general or limited partnership,
association, corporation, company, joint venture, trust, Governmental Authority
or other entity.

     

    "Piggyback Registration" has
the meaning set forth in Section 2.2(a).

     

    "Records" has the meaning set
forth in Section 2.5(m).

     

    "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.

     

    "Registrable Shares" means (i)
any and all shares of Company Common Stock owned by the Holders, whether owned
on the date hereof or acquired hereafter, including shares of Company Common
Stock issued upon exercise of any warrants, options or other securities
convertible into or exchangeable for shares of Company Common Stock, and (ii)
any and all shares of Common Stock issued or issuable with respect to the
Registrable Shares by way of stock dividend or a stock split or in connection
with any combination of shares, recapitalization, merger, consolidation or other
reorganization; provided that Registrable
Shares shall cease to be Registrable Shares as set forth in Section
3.1.

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    "Requesting Holders" shall mean
any Holder or Holders requesting to have its or their Registrable Shares
included in any Demand Registration or Shelf Registration.

     

    "Required Filing Date" has the
meaning set forth in Section 2.1(a)(ii).

     

    "Requisite Percentage" means at
least (i) thirty percent (30%) of the Registrable Shares at the time outstanding
in the case of the initial request under Section 2.1(a) or (ii) twenty five
percent (25%) of the Registrable Shares at the time outstanding in the case of
any other request under Section 2.1(a).

     

    "Rule 144" means Rule 144
promulgated under the Securities Act, as the same may be amended from time to
time, and any successor or similar rule or regulation hereafter adopted by the
SEC.

     

    "SEC" means the Securities and
Exchange Commission or any other federal agency at the time administering the
Securities Act.

     

    "Securities Act" means the
Securities Act of 1933, as amended, and the rules and regulations promulgated by
the SEC thereunder.

     

    "Shelf Registration" has the
meaning set forth in Section 2.1(b).

     

    "Subsidiaries" means each
corporation or other Person in which a Person (i) owns or controls, directly or
indirectly, capital stock or other equity interests representing at least fifty
percent (50%) of the outstanding voting stock or other equity interests or (ii)
has the right to appoint or remove a majority of its board of directors or
equivalent managing body.

     

    "Suspension Notice" has the
meaning set forth in Section 2.6.

     

    "Suspension Period" has the
meaning set forth in Section 2.6.

     

    "Warrant Shares" means all
Company Common Stock issuable upon exercise of the Warrants.

     

    "Warrantholders" has the
meaning set forth in the introductory paragraph to this Agreement.

     

    Section
1.2    Headings

     

    Headings
shall be ignored in construing this Agreement.

     

    Section
1.3    Singular, plural,
gender

     

    References
to one gender include all genders and references to the singular include the
plural and vice versa.

     

    
      Section
1.4    References to persons
and companies

       

      References
to:

       

      
        	
                 
      

              	
                (a)

              	
                a
      person include any company, partnership or unincorporated association
      (whether or not having separate legal personality);
  and

              


      

       

    

    
      
        
        

      

      
        4

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              a
      company shall include any company, corporation, limited liability company
      or any body corporate, wherever
incorporated.

            


    

     

    Section
1.5    Schedules

     

    References
to this Agreement shall include any Schedules and Recitals to it and references
to Sections and Schedules are to Sections of, Exhibits to and Schedules to, this
Agreement.

     

    Section
1.6    Information

     

    References
to books, records or other information mean books, records or other information
in any form including paper, electronically stored data, magnetic media, film
and microfilm.

     

    Section
1.7    Interpretation

     

    Whenever
the words "include,"
"includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation."  This Agreement shall be construed as if it is
drafted by all the parties hereto and no presumption or burden of proof will
arise favoring or disfavoring any party by virtue of authorship of any of the
provisions of this Agreement if an ambiguity or question of intent or
interpretation arises.

     

    ARTICLE
2


     

    REGISTRATION
RIGHTS

     

    Section
2.1    Demand
Registration

     

    
      	
               
      

            	
              (a)

            	
              Request
      for Registration

            


    

     

    
      	
               
      

            	
              (i)

            	
              The
      Warrantholders owning the Requisite Percentage of Registrable Shares shall
      have the right, at any time or from time to time, to require the Company
      to file a registration statement on Form S-1, S-2, S-3 or S-4 or any
      similar or successor to such forms under the Securities Act or any other
      appropriate form under the Securities Act or the Exchange Act for a public
      offering of all or part of its or their Registrable Shares (a "Demand Registration"),
      by delivering to the Company written notice stating that such right is
      being exercised, naming, if applicable, the Warrantholders whose
      Registrable Shares are to be included in such registration (collectively,
      the "Demanding
      Shareholders"), specifying the aggregate number of each such
      Demanding Shareholder's Registrable Shares to be included in such
      registration and, subject to Section 2.1(c) hereof, describing the
      intended method of distribution thereof (a "Demand
      Request").

            


    

     

    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (ii)

            	
              Subject
      to Section 2.1(f), the Company shall file the registration statement in
      respect of a Demand Registration as soon as practicable and, in any event,
      within 60 days after receiving a Demand Request (the "Required Filing Date")
      and shall use its best efforts to cause the same to be declared effective
      by the SEC as promptly as practicable after such filing; provided
      that:

            


    

     

    
      	
               
      

            	
              (A)

            	
              the
      Company shall not be obligated to effect a Demand Registration pursuant to
      this Section 2.1(a) within 180 days after the effective date of a previous
      Demand Registration, other than a Shelf Registration or an Excluded
      Registration;

            


    

     

    
      	
               
      

            	
              (B)

            	
              the
      Company shall not be obligated to effect a Demand Registration pursuant to
      this Section 2.1(a) unless the Demand Request is for a number of
      Registrable Shares with a market value that is equal to at least $100,000
      as of the date of such Demand Request;
and

            


    

     

    
      	
               
      

            	
              (C)

            	
              the
      Company shall not be obligated to effect more than two Demand
      Registrations pursuant to this Section
2.1(a).

            


    

     

    
      	
               
      

            	
              (b)

            	
              Shelf
      Registration

            


    

     

    With
respect to any Demand Registration, the Requesting Holders may request the
Company to effect a registration of the Company Common Stock (i) in a continuous
offering pursuant to Rule 415 under the Securities Act (or any successor rule)
(a "Shelf
Registration").

     

    
      	
               
      

            	
              (c)

            	
              Selection
      of Underwriters

            


    

     

    At the
request of the Holders of a majority of the Registrable Shares to be registered
in any Demand Registration, the offering of Registrable Shares pursuant to such
Demand Registration, including pursuant to a Shelf Registration, shall be in the
form of a "firm
commitment" underwritten offering.  The Holders of a majority
of the Registrable Shares to be so registered shall select (i) the investment
banking firm or firms to manage the underwritten offering and (ii) counsel to
the Requesting Holders, provided that, in the case of
clause (i), such selection shall be subject to the consent of the Company, which
consent shall not be unreasonably withheld or delayed.  No Holder may
participate in any registration pursuant to Section 2.1(a) unless such Holder
(x) agrees to sell such Holder's Registrable Shares on the basis provided in any
underwriting or other arrangements described above and (y) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting or other arrangements; provided that no such Holder
shall be required to make any representations or warranties in connection with
any such registration other than representations and warranties as to (i) such
Holder's ownership of his, her or its Registrable Shares to be transferred free
and clear of all liens, claims, and encumbrances created by such Holder, (ii)
such Holder's power and authority to effect such transfer, and (iii) such
matters pertaining to compliance with securities laws as may be reasonably
requested; provided,
further that any
obligation of such Holder to indemnify any Person pursuant to any such
underwriting or other arrangements shall be several, not joint and several,
among such Holders selling Registrable Shares, and such liability shall be
limited to the net amount received by such Holder from the sale of his, her or
its Registrable Shares pursuant to such registration (which amounts shall
include the amount of cash or the fair market value of any assets, including
shares of Company Common Stock, received in exchange for the sale or exchange of
such Registrable Shares or that are the subject of a distribution), and the
relative liability of each such Holder shall be in proportion to such net
amounts.

     

    
      
        
        

      

      
        6

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (d)

            	
              Rights
      of Nonrequesting Holders

            


    

     

    Upon
receipt of any Demand Request, the Company shall promptly (but in any event
within ten business days) give written notice of such proposed Demand
Registration to all other Holders, who shall have the right, exercisable by
written notice to the Company within 20 days of their receipt of the Company's
notice, to elect to include in such Demand Registration such portion of their
Registrable Shares as they may request, so long as such Registrable Shares are
proposed to be disposed of in accordance with the method or methods of
disposition requested pursuant to Section 2.1(a)(i).  All Holders
requesting to have their Registrable Shares included in a Demand Registration in
accordance with the preceding sentence shall be deemed to be "Requesting Holders" for
purposes of this Section 2.1.

     

    
      	
               
      

            	
              (e)

            	
              Priority
      on Demand Registrations

            


    

     

    No
securities to be sold for the account of any Person (including the Company)
other than a Requesting Holder shall be included in a Demand Registration unless
the managing underwriters (or, in an offering that is not underwritten, a
nationally recognized investment bank) shall advise the Company and the
Requesting Holders in writing that the aggregate amount of such securities
requested to be included in any offering pursuant to such Demand Registration is
sufficiently large to have a adverse effect on the success of any such offering,
based on market conditions or otherwise (an "Adverse
Effect").  Furthermore, if the managing underwriters (or such
investment bank) shall advise the Company and the Requesting Holders that, even
after exclusion of all securities of other Persons pursuant to the immediately
preceding sentence, the amount of Registrable Shares proposed to be included in
such Demand Registration by Requesting Holders is sufficiently large to cause an
Adverse Effect, the Registrable Shares of the Requesting Holders to be included
in such Demand Registration shall equal the number of shares which the
Requesting Holders are so advised can be sold in such offering without an
Adverse Effect and such shares shall be allocated pro rata among the Requesting
Holders on the basis of the number of Registrable Shares requested to be
included in such registration by each such Requesting Holder; provided that the Company
shall not include any Registrable Shares of any executive officer or employee of
the Company or any of its subsidiaries if the managing underwriters (or such
investment bank) shall advise the Company and the Requesting Holders that the
participation of any such Requesting Holder may have an Adverse
Effect.

     

    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (f)

            	
              Deferral
      of Filing

            


    

     

    The
Company may defer the filing (but not the preparation) of a registration
statement required by this Section 2.1 until after the Required Filing Date (i)
for a period not to exceed 90 days, if, at the time the Company receives the
Demand Request, there exists a Material Disclosure Event, or (ii) for a period
not to exceed 180 days, if, prior to receiving the Demand Request, the Company
had determined to effect a registered underwritten public offering of Company
Common Stock, or securities convertible into or exchangeable for Company Common
Stock, for the Company's account in connection with a material public financing
transaction and the Company had taken substantial steps (including selecting a
managing underwriter for such offering) and is proceeding with reasonable
diligence to effect such offering.  A deferral of the filing of a
registration statement pursuant to this Section 2.1(f) shall be lifted, and the
requested registration statement shall be filed forthwith, if, in the case of a
deferral pursuant to clause (i) of the preceding sentence, the Material
Disclosure Event is disclosed or terminated, or, in the case of a deferral
pursuant to clause (ii) of the preceding sentence, the proposed registration for
the Company's account is abandoned or the filing of a registration statement
with respect to any such proposed registration is delayed by more than 180 days
from the time of receipt of the applicable Demand Request.  In order
to defer the filing of a registration statement pursuant to this Section 2.1(f),
the Company shall promptly (but in any event within ten days), upon determining
to seek such deferral, deliver to each Requesting Holder a certificate signed by
an executive officer of the Company stating that the Company is deferring such
filing pursuant to this Section 2.1(f), a general statement of the reason for
such deferral and an approximation of the anticipated delay.  Within
20 days after receiving such certificate, the Holders of a majority of the
Registrable Shares for which registration was previously requested may withdraw
such Demand Request by giving notice to the Company; if withdrawn, the Demand
Request shall be deemed not to have been made for all purposes of this
Agreement.  The Company may defer the filing of a particular
registration statement pursuant to this Section 2.1(f) only twice in any
consecutive 12-month period; provided that any deferral
pursuant to clause (i) of the first sentence of this Section 2.1(f) shall be
deemed to be a "Suspension
Period" for purposes of Section 2.6 and shall be subject to the
limitations on Suspension Periods set forth in Section 2.6.

     

    
      
        
        

      

      
        8

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (g)

            	
              Withdrawal
      and Cancellation

            


    

     

    Any
Requesting Holder may withdraw its Registrable Shares from a Demand Registration
at any time and a majority in interest of the Requesting Holders shall have the
right to cancel a proposed Demand Registration of Registrable Shares pursuant to
this Section 2.1(g).  Upon such cancellation, the Company shall cease
all efforts to secure registration and such Demand Registration shall not be
counted as a Demand Registration under this Agreement for any
purpose.

     

    Section
2.2    Piggyback
Registrations

     

    
      	
               
      

            	
              (a)

            	
              Right
      to Piggyback

            


    

     

    Each time
the Company proposes to register any of its equity securities (other than
pursuant to Section 2.1 or pursuant to an Excluded Registration) under the
Securities Act for sale to the public (whether for the account of the Company or
the account of any security holder of the Company) (a "Piggyback Registration"), the
Company shall give prompt written notice to each Holder of Registrable Shares
not less than 20 days prior to the anticipated filing date of the Company's
registration statement.  Such notice shall offer each such Holder the
opportunity to include any or all of its Registrable Shares in such registration
statement, subject to the limitations contained in Section 2.2(b)
hereof.  Each Holder who desires to have its Registrable Shares
included in such registration statement shall so advise the Company in writing
(stating the number of shares desired to be registered) within ten days after
the receipt of such notice from the Company.  Any Holder shall have
the right to withdraw such Holder's request for inclusion of such Holder's
Registrable Shares in any registration statement pursuant to this Section 2.2(a)
by giving written notice to the Company of such withdrawal.  Subject
to Section 2.2(b) below, the Company shall include in such registration
statement all such Registrable Shares so requested to be included therein; provided that the Company may
at any time withdraw or cease proceeding with any such registration if it shall
at the same time withdraw or cease proceeding with the registration of all other
equity securities originally proposed to be registered.

     

    
      	
               
      

            	
              (b)

            	
              Priority
      on Piggyback Registrations

            


    

     

    
      	
               
      

            	
              (i)

            	
              If
      a Piggyback Registration is an underwritten offering and was initiated by
      the Company, and if the managing underwriters advise the Company that the
      inclusion of Registrable Shares requested to be included in the
      registration statement would cause an Adverse Effect, then the Company
      shall be required to include in such registration statement, to the extent
      of the amount of securities that the managing underwriters advise may be
      sold without causing such Adverse Effect, (i) first, the
      securities the Company proposes to sell; (ii) second, the
      Registrable Shares requested to be included in such registration by any
      Holder thereof, pro
      rata among such Holders on the basis of the number of Registrable
      Shares owned by each such Holder; and (iii) third, any
      other securities requested to be included in such registration; provided that the
      Company shall not include any Registrable Shares of any executive officer
      or employee of the Company or any of its subsidiaries if such managing
      underwriters advise the Company and the Requesting Holders that the
      participation of any such individual may have an Adverse
      Effect.  If, as a result of the provisions of this Section
      2.2(b)(i), any Holder shall not be entitled to include all Registrable
      Shares in a registration that such Holder has requested to be so included,
      such Holder may withdraw such Holder's request to include Registrable
      Shares in such registration
statement.

            


    

     

    
      
        
        

      

      
        9

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (ii)

            	
              If
      a Piggyback Registration is an underwritten offering and was initiated by
      a security holder of the Company, and if the managing underwriters advise
      the Company that the inclusion of Registrable Shares requested to be
      included in the registration statement would cause an Adverse Effect, the
      Company shall include in such registration statement, to the extent of the
      amount of securities that the managing underwriters advise may be sold
      without causing such Adverse Effect, (i) first, the
      securities requested to be included therein by the security holders
      requesting such registration, pro rata among such
      holders on the basis of the number of securities owned by each such
      holder, (ii) second, the
      Registrable Shares requested to be included in such registration by any
      Holder thereof, pro
      rata among the Holders on the basis of the number of Registrable
      Shares owned by each such Holder; and (iii) third, any
      other securities requested to be included in such registration (including
      securities to be sold for the account of the Company); provided that the
      Company shall not include any Registrable Shares of any executive officer
      or employee of the Company or any of its subsidiaries if such managing
      underwriters advise the Company and the Requesting Holders that the
      participation of any such individual may have an Adverse
      Effect.  If, as a result of the provisions of this Section
      2.2(b)(ii), any Holder shall not be entitled to include all Registrable
      Shares in a registration that such Holder has requested to be so included,
      such Holder may withdraw such Holder's request to include Registrable
      Shares in such registration
statement.

            


    

     

    
      	
               
      

            	
              (iii)

            	
              No
      Holder may participate in any registration statement in respect of a
      Piggyback Registration hereunder unless such Holder (x) agrees to sell
      such Holder's Registrable Shares on the basis provided in any underwriting
      arrangements approved by the Company and (y) completes and executes all
      questionnaires, powers of attorney, indemnities, underwriting agreements
      and other documents, each in customary form, reasonably required under the
      terms of such underwriting arrangements; provided that no such
      Holder shall be required to make any representations or warranties in
      connection with any such registration other than representations and
      warranties as to (i) such Holder's ownership of his, her or its
      Registrable Shares to be sold or transferred free and clear of all liens,
      claims, and encumbrances, (ii) such Holder's power and authority to effect
      such transfer, and (iii) such matters pertaining to compliance with
      securities laws as may be reasonably requested; provided, further that the
      obligation of such Holder to indemnify pursuant to any such underwriting
      arrangements shall be several, not joint and several, among such Holders
      selling Registrable Shares, and the liability of each such Holder shall be
      in proportion to, and provided, further that such
      liability shall be limited to the net amount received by such Holder from
      the sale of his, her or its Registrable Shares pursuant to such
      registration.

            


    

     

    
      
        
        

      

      
        10

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (c)

            	
              Selection
      of Underwriters and Counsel

            


    

     

    If any
Piggyback Registration is an underwritten offering initiated by the Company or a
security holder of the Company, such initiating Person shall select an
investment banking firm or firms to manage the offering, subject to the consent
of the Holders of a majority of the Registrable Shares, if any, included in such
Piggyback Registration, which consent shall not be unreasonably withheld or
delayed.  The Holders of a majority of the Registrable Shares included
in any Piggyback Registration shall have the right to select one counsel for the
Requesting Holders.

     

    
      	
               
      

            	
              (d)

            	
              Effect
      on Demand Registrations

            


    

     

    No
registration of the Registrable Shares effected under this Section 2.2 shall
relieve the Company of its obligation to effect a registration of Registrable
Shares pursuant to Section 2.1.

     

    Section
2.3    SEC
Registration Statements

     

    
      	
               
      

            	
              (a)

            	
              The
      Company shall use its best efforts to cause any Demand Registrations to be
      registered on Form S-3 (or any successor form), if applicable, once the
      Company becomes eligible to use Form S-3.  If the Company is not
      then eligible under the Securities Act to use Form S-3, such Demand
      Registrations shall be registered on the form for which the Company then
      qualifies.  The Company shall use its best efforts to become and
      remain eligible to use Form S-3.

            


    

     

    
      	
               
      

            	
              (b)

            	
              All
      such registration statements shall comply with applicable requirements of
      the Securities Act, and, together with each prospectus included, filed or
      otherwise furnished by the Company in connection therewith, shall not
      contain any untrue statement of material fact or omit to state a material
      fact required to be stated therein or necessary to make the statements
      therein not misleading.

            


    

     

    
      
        
        

      

      
        11

        
          

        

      

      
        
        

      

    

     

    Section
2.4    [Intentionally
omitted]

     

    Section
2.5    Registration
Procedures

     

    Whenever
any Holder has requested that any Registrable Shares be registered pursuant to
this Agreement, the Company shall use its best efforts to effect the
registration and the sale of such Registrable Shares in accordance with the
intended method of disposition thereof as promptly as is practicable, and
pursuant thereto the Company shall as expeditiously as possible:

     

    
      	
               
      

            	
              (a)

            	
              prepare
      and file with the SEC by the Required Filing Date a registration statement
      on the appropriate form under the Securities Act with respect to such
      Registrable Shares and use its best efforts to cause such registration
      statement to become effective as soon as practicable after the initial
      filing thereof, provided that as far in
      advance as practicable before filing such registration statement or any
      amendment thereto, the Company shall furnish to the selling Holders copies
      of reasonably complete drafts of all such documents prepared to be filed
      (including exhibits), and any such Holder shall have the opportunity to
      object to any information contained therein and the Company shall make any
      corrections or other amendments reasonably requested by such Holder with
      respect to such information prior to filing any such registration
      statement or amendment;

            


    

     

    
      	
               
      

            	
              (b)

            	
              except
      in the case of a Shelf Registration, prepare and file with the SEC such
      amendments, post-effective amendments, and supplements to such
      registration statement and the prospectus used in connection therewith as
      may be necessary to keep such registration statement effective for a
      period of not less than 180 days (or such lesser period as is necessary
      for the underwriters in an underwritten offering to sell unsold
      allotments) and comply with the provisions of the Securities Act with
      respect to the disposition of all securities covered by such registration
      statement during such period in accordance with the intended methods of
      disposition by the sellers thereof set forth in such registration
      statement;

            


    

     

    
      	
               
      

            	
              (c)

            	
              in
      the case of a Shelf Registration, prepare and file with the SEC such
      amendments and supplements to such registration statement and the
      prospectus used in connection therewith as may be necessary to keep such
      registration statement effective and to comply with the provisions of the
      Securities Act with respect to the disposition of all Registrable Shares
      subject thereto for a period ending on the earlier of (i) 24 months after
      the effective date of such registration statement and (ii) the date on
      which all the Registrable Shares subject thereto have been sold pursuant
      to such registration statement;

            


    

     

    
      	
               
      

            	
              (d)

            	
              furnish
      to each seller of Registrable Shares and the underwriters of the
      securities being registered such number of copies of such registration
      statement, each amendment and supplement thereto, the prospectus included
      in such registration statement (including each preliminary prospectus and
      any summary prospectus), any documents incorporated by reference therein
      and such other documents as such seller, underwriters may reasonably
      request in order to facilitate the disposition of the Registrable Shares
      owned by such seller or the sale of such securities by such underwriters
      (it being understood that, subject to Section 2.5 and the requirements of
      the Securities Act and applicable state securities laws, the Company
      consents to the use of the prospectus and any amendment or supplement
      thereto by each seller and the underwriters in connection with the
      offering and sale of the Registrable Shares covered by the registration
      statement of which such prospectus, amendment or supplement is a
      part);

            


    

     

    
      
        
        

      

      
        12

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (e)

            	
              use
      its best efforts to register or qualify such Registrable Shares under such
      other securities or "blue
      sky" laws of such jurisdictions as the managing underwriters
      reasonably request (or, in the event the registration statement does not
      relate to an underwritten offering, as the holders of a majority of such
      Registrable Shares may reasonably request); use its reasonable best
      efforts to keep each such registration or qualification (or exemption
      therefrom) effective during the period in which such registration
      statement is required to be kept effective; and do any and all other acts
      and things which may be reasonably necessary or advisable to enable each
      seller to consummate the disposition of the Registrable Shares owned by
      such seller in such jurisdictions; provided that the
      Company shall not be required to (i) qualify generally to do business in
      any jurisdiction where it would not otherwise be required to qualify but
      for this subparagraph or (ii) consent to general service of process in any
      such jurisdiction;

            


    

     

    
      	
               
      

            	
              (f)

            	
              promptly
      notify each selling Holder and each underwriter in writing (i) when a
      prospectus or any prospectus supplement or post-effective amendment has
      been filed and, with respect to a registration statement or any
      post-effective amendment, when the same has become effective, (ii) of the
      issuance by any state securities or other regulatory authority of any
      order suspending the qualification or exemption from qualification of any
      of the Registrable Shares under state securities or "blue sky" laws or the
      initiation of any proceedings for that purpose, and (iii) if such
      registration statement or related prospectus, at the time it or any
      amendment thereto became effective or at any time such prospectus is
      required to be delivered under the Securities Act, contained an untrue
      statement of a material fact or omitted to state a material fact required
      to be stated therein or necessary to make the statements therein not
      misleading, upon the discovery by the Company of such material
      misstatement or omission or of the happening of any event as a result of
      which the Company believes there would be such a material misstatement or
      omission; provided
      that, in the case of clause (iii), promptly after delivery of such
      notice, the Company shall, as the case may be, (x) prepare and file with
      the SEC a post-effective amendment to such registration statement and use
      its best efforts to cause such amendment to become effective so that such
      registration statement, as so amended, shall not contain any untrue
      statement of a material fact or omit a material fact necessary to make the
      statements therein, in light of the circumstances under which they were
      made, not misleading, or (y) prepare and furnish a supplement or amendment
      to such prospectus so that, as thereafter deliverable to the purchasers of
      such Registrable Shares, such prospectus shall not contain any untrue
      statement of a material fact or omit a material fact necessary to make the
      statements therein, in light of the circumstances under which they were
      made, not misleading;

            


    

     

    
      
        
        

      

      
        13

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (g)

            	
              permit
      (i) any selling Holder that, in such Holder's sole and exclusive judgment,
      might reasonably be deemed to be an underwriter or a controlling person of
      the Company (in each case, within the meaning of the Securities Act) and
      (ii) any selling Holder holding, or representing Holders of, a majority of
      the Registrable Shares included in such registration statement, to
      participate in the preparation of such registration statement or related
      prospectus and promptly incorporate any information furnished to the
      Company by such Holder that, in the reasonable judgment of such Holder and
      its counsel, should be included;

            


    

     

    
      	
               
      

            	
              (h)

            	
              make
      reasonably available senior management of the Company, as selected by the
      Holders of a majority of the Registrable Shares included in such
      registration, for assistance in the marketing of the Registrable Shares
      covered by such registration, including the participation of such members
      of the Company's senior management in road show presentations, provided that such
      assistance does not unduly interfere with the normal operations of the
      Company in the ordinary course of business, consistent with past
      practice;

            


    

     

    
      	
               
      

            	
              (i)

            	
              otherwise
      use its best efforts to comply with all applicable rules and regulations
      of the SEC, including the Securities Act and the Exchange Act, and make
      generally available to the Company's security holders an earnings
      statement satisfying the provisions of Section 11(a) of the Securities Act
      no later than 30 days after the end of the 12-month period beginning with
      the first day of the Company's first fiscal quarter commencing after the
      effective date of a registration statement, which earnings statement shall
      cover said 12-month period, provided that such
      requirement shall be deemed satisfied if the Company timely files complete
      and accurate information on Forms 10-Q, 10-K and 8-K under the Exchange
      Act as required thereby and otherwise complies with Rule 158 under the
      Securities Act;

            


    

     

    
      	
               
      

            	
              (j)

            	
              if
      requested by the managing underwriters or any selling Holder, promptly
      incorporate in a prospectus supplement or post-effective amendment such
      information as the managing underwriters or such selling Holder reasonably
      requests to be included therein, including with respect to the Registrable
      Shares being sold by such selling Holder, the purchase price being paid
      therefor by the underwriters and with respect to any other terms of the
      underwritten offering of the Registrable Shares to be sold in such
      offering, and promptly make all required filings of such prospectus
      supplement or post-effective
amendment;

            


    

     

    
      
        
        

      

      
        14

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (k)

            	
              as
      promptly as practicable after filing with the SEC of any document that is
      incorporated by reference into a registration statement (in the form in
      which it was incorporated), deliver a copy of each such document to each
      selling Holder, if requested by such
Holder;

            


    

     

    
      	
               
      

            	
              (l)

            	
              cooperate
      with the selling Holders and the managing underwriters to facilitate the
      timely preparation and delivery of certificates representing securities
      sold under any registration statement, which certificates shall not bear
      any restrictive legends unless required under applicable law, and enable
      such securities to be in such denominations and registered in such names
      as the managing underwriters or such selling Holders may request and keep
      available and make available to the Company's transfer agent prior to the
      effectiveness of such registration statement a supply of such
      certificates;

            


    

     

    
      	
               
      

            	
              (m)

            	
              promptly
      make available for inspection by any selling Holder and any underwriter
      participating in any disposition pursuant to any registration statement,
      and any attorney, accountant or other agent or representative retained by
      any such selling Holder or underwriter (collectively, the "Inspectors"), all
      financial and other records, pertinent corporate documents and properties
      of the Company (collectively, the "Records"), as shall be
      reasonably necessary to enable them to exercise their due diligence
      responsibility, and cause the Company's officers, directors and employees
      to supply all information requested by any such Inspector in connection
      with such registration statement; provided that, unless
      the disclosure of such Records is necessary to avoid or correct a
      misstatement or omission in the registration statement or the release of
      such Records is ordered pursuant to a subpoena or other order from a court
      of competent jurisdiction, the Company shall not be required to provide
      any information under this subparagraph (n) if (i) the Company reasonably
      determines in good faith, after consultation with outside counsel, that to
      do so would cause the Company to forfeit an attorney-client privilege that
      was applicable to such information or (ii) if either (A) the Company has
      requested and been granted from the SEC confidential treatment of such
      information contained in any filing with the SEC or documents provided
      supplementally or otherwise or (B) the Company reasonably determines in
      good faith that such Records are confidential and so notifies the
      Inspectors in writing, unless prior to furnishing any such information
      with respect to clause (ii) such Holder of Registrable Shares requesting
      such information agrees to enter into a confidentiality agreement in
      customary form and subject to customary exceptions; and provided, further that each
      Holder of Registrable Shares agrees that it shall, upon learning that
      disclosure of such Records is sought in a court of competent jurisdiction,
      give notice to the Company and allow the Company, at its expense, to
      undertake appropriate action and to prevent disclosure of the Records
      deemed confidential;

            


    

     

    
      	
               
      

            	
              (n)

            	
              furnish
      to each selling Holder and underwriter a signed counterpart of (i) an
      opinion or opinions of counsel to the Company addressed to them, and (ii)
      a comfort letter or comfort letters from the Company's independent public
      accountants addressed to them, each in customary form and covering such
      matters of the type customarily covered by opinions or comfort letters, as
      the case may be, as the sellers or managing underwriters reasonably
      request;

            


    

     

    
      
        
        

      

      
        15

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (o)

            	
              cause
      the Registrable Shares included in any registration statement to be (i)
      listed on each securities exchange, if any, on which similar securities
      issued by the Company are then listed, or (ii) quoted on the National
      Association of Securities Dealers, Inc. ("NASD") Automated
      Quotation System or the Nasdaq National Market if similar securities
      issued by the Company are quoted
thereon;

            


    

     

    
      	
               
      

            	
              (p)

            	
              provide
      a transfer agent and registrar for all Registrable Shares registered
      hereunder;

            


    

     

    
      	
               
      

            	
              (q)

            	
              use
      its best efforts to cause Registrable Shares covered by such registration
      statement to be registered with or approved by such other government
      agencies or authorities as may be necessary to enable the sellers thereof
      to consummate the disposition of such Registrable
  Shares;

            


    

     

    
      	
               
      

            	
              (r)

            	
              cooperate
      with each selling Holder and each underwriter participating in the
      disposition of such Registrable Shares and their respective counsel in
      connection with any filings required to be made with the
    NASD;

            


    

     

    
      	
               
      

            	
              (s)

            	
              as
      may be required in connection with the initial filing of any registration
      statement, and during the period when the prospectus is required to be
      delivered under the Securities Act, promptly file all documents required
      to be filed with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of
      the Exchange Act;

            


    

     

    
      	
               
      

            	
              (t)

            	
              notify
      each seller of Registrable Shares promptly of any request by the SEC for
      the amending or supplementing of such registration statement or prospectus
      or for additional information;

            


    

     

    
      	
               
      

            	
              (u)

            	
              if
      applicable, enter into an underwriting agreement for such offering, such
      agreement to contain such representations and warranties by the Company
      and such other terms and provisions as are customarily contained in
      underwriting agreements with respect to that offering, including
      indemnities and contribution to the effect and to the extent provided in
      Section 2.8 and the provision of opinion of counsel and accountants'
      letters to the effect and to the extent provided in Section
      2.5(n).  The selling Holders shall be parties to any such
      underwriting agreement, and the representations and warranties by, and the
      other agreements on the part of, the Company to and for the benefit of
      such underwriters shall also be made to and for the benefit of such
      selling Holders; and

            


    

     

    
      
        
        

      

      
        16

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (v)

            	
              advise
      each seller of such Registrable Shares, promptly after it shall receive
      notice or obtain knowledge thereof, of the issuance of any stop order by
      the SEC suspending the effectiveness of such registration statement or the
      initiation or threatening of any proceeding for such purpose and promptly
      use its best efforts to prevent the issuance of any stop order or to
      obtain its withdrawal at the earliest possible moment if such stop order
      should be issued.

            


    

     

    Section
2.6    Suspension of
Dispositions

     

    Each
Holder agrees by acquisition of any Registrable Shares that, upon receipt of any
notice (a "Suspension
Notice") from the Company of the happening of any Material Disclosure
Event, such Holder shall promptly discontinue such Holder's disposition of
Registrable Shares until such Holder's receipt of the copies of the supplemented
or amended prospectus, or until it is advised in writing by the Company (the
"Advice")  that the
use of the prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the prospectus,
and, if so directed by the Company, such Holder shall deliver to the Company all
copies, other than permanent file copies then in such Holder's possession, of
the prospectus covering such Registrable Shares current at the time of receipt
of such notice.  In the event the Company shall give any such notice,
the time period regarding the effectiveness of registration statements set forth
in Sections 2.5(b), 2.5(c) and 2.5(d) hereof shall be extended by the number of
days during the period from and including the date of the giving of the
Suspension Notice to and including the date when each seller of Registrable
Shares covered by such registration statement shall have received the copies of
the supplemented or amended prospectus or the Advice (such period, a "Suspension
Period").  The Company shall use its best efforts and take such
actions as are reasonably necessary to render the Advice as promptly as
practicable.  Notwithstanding anything herein to the contrary, the
Company shall not be entitled to more than two Suspension Periods during any
consecutive 12-month period, which Suspension Periods shall have durations of
not more than 90 days each; provided that, in the event
of any occurrence described in clause (i) of the definition of Material
Disclosure Event, the limitations on Suspension Periods in this sentence shall
not apply.  The fact that a Suspension Period is in effect under this
Section 2.6 shall not relieve the contractual obligations of the Company as set
forth in Section 2.5 or in any SEC rules to file timely reports and otherwise
file material required to be filed under the Exchange Act.

     

    Section
2.7    Registration
Expenses

     

    The
Company shall pay all reasonable, out-of-pocket fees and expenses incident to
any Demand Registration or Piggyback Registration, including the Company's
performance of or compliance with this Article II, all registration and filing
fees, all internal fees and expenses of the Company (including any allocation of
salaries of employees of the Company or any of its subsidiaries or other general
overhead expenses of the Company and its subsidiaries or other expenses related
to the preparation of financial statements or other data normally prepared by
the Company and its subsidiaries in the ordinary course of business), all fees
and expenses associated with filings required to be made with the NASD
(including, if applicable, the reasonable fees and expenses of any "qualified independent
underwriter" as such term is defined in Schedule E of the By-Laws of the
NASD, and of its counsel) or with any other applicable Governmental Authority,
as may be required by the rules and regulations of the NASD or such other
Governmental Authority, fees and expenses of compliance with securities or
"blue sky" laws
(including reasonable fees and disbursements of counsel in connection with
"blue sky"
qualifications of the Registrable Shares), rating agency fees, printing expenses
(including expenses of printing certificates for the Registrable Shares in a
form eligible for deposit with Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by a Holder of
Registrable Shares), messenger, duplicating, distribution and delivery expenses,
the fees and expenses incurred in connection with any listing or quotation of
the Registrable Shares, fees and expenses of counsel for the Company and its
independent certified public accountants (including the expenses of any special
audit or "cold comfort"
letters required by or incident to such performance), the fees and expenses of
any special experts retained by the Company in connection with such registration
and the reasonable fees and expenses of any one counsel for all Holders
participating in such registration shall be paid for by the Company, which
counsel shall be selected by the Holders of a majority of the Registrable Shares
to be registered in such offering.  Any underwriting discounts,
commissions, or fees attributable to the sale of the Registrable Shares shall be
borne by the Holders pro
rata on the basis of the number of shares so registered whether or not
any registration statement becomes effective, and the fees and expenses of any
counsel, accountants, or other persons retained or employed by any Holder (other
than as set forth in the preceding sentence) shall be borne by such
Holder.

     

    
      
        
        

      

      
        17

        
          

        

      

      
        
        

      

    

     

    Section
2.8    Indemnification

     

    
      	
               
      

            	
              (a)

            	
              The
      Company agrees to indemnify and hold harmless, to the fullest extent
      permitted by applicable law, each seller of Registrable Shares, and each
      of its employees, advisors, agents, representatives, partners, members,
      officers, and directors, each other Person who participates as an
      underwriter, broker or dealer in any offering or sale of securities and
      each other Person who controls such seller or any such participating
      Person (within the meaning of the Securities Act or the Exchange Act) and
      any agent or investment advisor thereof (collectively, the "Covered Persons")
      against, and reimburse, (i) any and all losses, claims, damages,
      liabilities and expenses, joint or several (including attorneys' fees and
      disbursements, other than to the extent limited by Section 2.8(c)), based
      upon, arising out of, related to or resulting from any untrue or alleged
      untrue statement of a material fact contained in any registration
      statement, any prospectus, or preliminary prospectus included therein or
      any amendment or supplement thereto, or any document incorporated by
      reference therein, or any omission or alleged omission of a material fact
      required to be stated therein or necessary to make the statements therein
      not misleading, (ii) any and all losses, claims, damages, liabilities and
      expenses whatsoever, as incurred, to the extent of the aggregate amount
      paid in settlement of any litigation or investigation or proceeding by any
      governmental agency or body, commenced or threatened, or of any claim
      whatsoever based upon, arising out of, related to or resulting from any
      such untrue statement or omission or alleged untrue statement or omission,
      and (iii) any and all costs and expenses (including reasonable fees and
      disbursements of counsel) as may be reasonably incurred in investigating,
      preparing, or defending against any litigation, or investigation or
      proceeding by any governmental agency or body, commenced or threatened, or
      any claim whatsoever based upon, arising out of, related to or resulting
      from any such untrue statement or omission or alleged untrue statement or
      omission, or such violation of the Securities Act or Exchange Act, to the
      extent that any such expense or cost is not paid under clauses (i) or (ii)
      above; except insofar as any such statements or omissions are made in
      reliance upon and in strict conformity with written information furnished
      to the Company by such seller or any Covered Person specifically for
      inclusion in such registration statement, prospectus, preliminary
      prospectus, amendment or supplement thereto, or document incorporated by
      reference therein; provided that the
      Company shall not be liable in any such case to the extent that any such
      untrue statement or omission is completely corrected in an amendment or
      supplement to such prospectus and the applicable seller of Registrable
      Shares thereafter fails to deliver such amendment or supplement to the
      Person asserting such loss, liability, claim, damage or expense after the
      Company had furnished such seller with a sufficient number of copies of
      the same, or if such seller received written notice from the Company of
      the existence of such untrue statement or omission and such seller
      continue to dispose of Registrable Shares prior to the receipt by such
      seller of an amendment or supplement that completely corrected such untrue
      statement or omission or a notice from the Company that the use of the
      existing prospectus may be resumed.

            


    

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              In
      connection with any registration statement in which a seller of
      Registrable Shares is participating, each such seller shall furnish to the
      Company such written information and affidavits as the Company reasonably
      requests for use in connection with any such registration statement or
      prospectus and, to the fullest extent permitted by applicable law, each
      such seller shall indemnify and hold harmless the Company and each of its
      employees, advisors, agents, representatives, partners, members, officers
      and directors and each other Person who controls the Company (within the
      meaning of the Securities Act or the Exchange Act) against, and reimburse,
      (i) any and all losses, claims, damages, liabilities and expenses
      (including reasonable attorneys' fees and disbursements, other than to the
      extent limited by Section 2.8(c)) based upon, arising out of, related to
      or resulting from any untrue statement or alleged untrue statement of a
      material fact contained in the registration statement, prospectus, or any
      preliminary prospectus or any amendment thereof or supplement thereto or
      any omission or alleged omission of a material fact required to be stated
      therein or necessary to make the statements therein not misleading, but
      only to the extent that such untrue statement or alleged untrue statement
      or omission or alleged omission is contained in any written information or
      affidavit so furnished by such seller or any Covered Person specifically
      for inclusion in such registration statement, prospectus, preliminary
      prospectus, or amendment or supplement thereto; and (ii) any and all costs
      and expenses (including reasonable fees and disbursements of counsel) as
      may be reasonably incurred in investigating, preparing, or defending
      against any litigation, or investigation or proceeding by any governmental
      agency or body, commenced or threatened, or any claim whatsoever based
      upon, arising out of, related to or resulting from any such untrue
      statement or omission or alleged untrue statement or omission, or such
      violation of the Securities Act or Exchange Act, to the extent that any
      such expense or cost is not paid under clause (i) above; provided that the
      obligation to indemnify shall be several (and not joint) among such
      sellers of Registrable Shares, and the liability of each such seller of
      Registrable Shares shall be in proportion to, and shall be limited to, the
      net amount received by such seller from the sale of Registrable Shares
      pursuant to such registration statement; and provided, further that
      such seller of Registrable Shares shall not be liable in any such case to
      the extent that prior to the filing of any such registration statement or
      prospectus or amendment thereof or supplement thereto, such seller has
      furnished in writing to the Company information expressly for use in such
      registration statement or prospectus or any amendment thereof or
      supplement thereto which corrected or made not misleading information
      previously furnished to the Company.  The reimbursements
      required by this Section 2.8(b) shall be made by periodic payments during
      the course of the investigation or defense, as and when bills are received
      or expenses incurred.

            


    

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (c)

            	
              Any
      Person entitled to indemnification hereunder shall (i) give prompt written
      notice to the indemnifying party of any claim with respect to which it
      seeks indemnification (provided that the
      failure to give such notice shall not limit the rights of such Person or
      relieve the indemnifying party of its obligations hereunder) and (ii)
      unless in such indemnified party's reasonable judgment a conflict of
      interest between such indemnified and any indemnifying parties may exist
      with respect to such claim, permit such indemnifying party to assume the
      defense of such claim with counsel reasonably satisfactory to the
      indemnified party; provided that any
      person entitled to indemnification hereunder shall have the right to
      employ separate counsel and to participate in the defense of such claim at
      the expense of such indemnified person, unless (x) the indemnifying party
      has agreed to pay such fees or expenses or (y) the indemnifying party
      shall have failed to assume the defense of such claim and employ counsel
      reasonably satisfactory to such person.  If such defense is not
      assumed by the indemnifying party as permitted hereunder, the indemnified
      party shall be entitled to assume and control such defense and to settle
      and agree to pay in full such claim without the consent of the
      indemnifying party without prejudice to the ability of the indemnified
      party to enforce its claim for indemnification against the indemnifying
      party hereunder.

            


    

     

    
      	
               
      

            	
              (d)

            	
              Except
      as otherwise provided in the preceding paragraph, the indemnifying party
      shall not be subject to any liability for any settlement made by the
      indemnified party without its consent, which consent shall not be
      unreasonably withheld or delayed.  If such defense is assumed by
      the indemnifying party pursuant to the provisions hereof, such
      indemnifying party shall not settle or otherwise compromise the applicable
      claim (i) unless such settlement or compromise contains a full and
      unconditional release of the indemnified party or (ii) if such settlement
      or compromise provides for injunctive or other non-monetary relief, in
      each case, unless the indemnified party otherwise consents in
      writing.  An indemnifying party who is not entitled to, or
      elects not to, assume the defense of a claim shall not be obligated to pay
      the fees and expenses of more than one counsel for all parties indemnified
      by such indemnifying party with respect to such claim, unless in the
      reasonable judgment of any indemnified party, a conflict of interest may
      exist between such indemnified party and any other of such indemnified
      parties with respect to such claim, in which event the indemnifying party
      shall be obligated to pay the reasonable fees and disbursements of such
      additional counsel or counsels.

            


    

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (e)

            	
              Each
      party hereto agrees that, if for any reason the indemnification provisions
      contemplated by Section 2.8(a) or Section 2.8(b) are unavailable or
      insufficient to hold harmless an indemnified party in respect of any
      losses, claims, damages, liabilities or expenses (or actions in respect
      thereof) referred to therein, then each indemnifying party shall
      contribute to the amount paid or payable by such indemnified party as a
      result of such losses, claims, damages, liabilities or expenses (or
      actions in respect thereof) (i) in such proportion as is appropriate to
      reflect the relative fault of the indemnifying party and the indemnified
      party, respectively, in connection with the actions that resulted in the
      losses, claims, damages, liabilities or expenses as well as any other
      relevant equitable considerations or (ii) if the allocation provided by
      clause (i) is not permitted by applicable law, or provides a lesser sum to
      the indemnified party than the amount hereinafter calculated in this
      clause (ii), in such proportion as is appropriate not only to reflect the
      relative fault of the indemnifying party and the indemnified party,
      respectively, but also the relative benefits received by the indemnifying
      party and the indemnified party from the offering of Registrable Shares
      (taking into account the portion of the proceeds of the offering realized
      by each such party) as well as any other relevant equitable
      considerations.  The relative fault of such indemnifying party
      and indemnified party shall be determined by reference to, among other
      things, whether the untrue or alleged untrue statement of a material fact
      or omission or alleged omission to state a material fact relates to
      information supplied by such indemnifying party or indemnified party, and
      the parties' relative intent, knowledge, access to information and
      opportunity to correct or prevent such statement or
      omission.  The parties hereto agree that it would not be just
      and equitable if contribution pursuant to this Section 2.8(e) were
      determined by pro
      rata allocation (even if the Holders or any underwriters or all of
      them were treated as one entity for such purpose) or by any other method
      of allocation that does not take account of the equitable considerations
      referred to in this Section 2.8(e). The amount paid or payable by an
      indemnified party as a result of the losses, claims, damages, liabilities
      or expenses (or actions in respect thereof) referred to above shall be
      deemed to include any legal or other fees or expenses reasonably incurred
      by such indemnified party in connection with investigating or, except as
      provided in Section 2.8(c), defending any such action or
      claim.  Notwithstanding the provisions of this Section 2.8(e),
      no Holder shall be required to contribute an amount greater than the
      dollar amount by which the net proceeds received by such Holder with
      respect to the sale of any Registrable Shares exceeds the amount of
      damages that such Holder has otherwise been required to pay by reason of
      any and all untrue or alleged untrue statements of material fact or
      omissions or alleged omissions of material fact made in any registration
      statement, prospectus or preliminary prospectus or any amendment thereof
      or supplement thereto related to such sale of Registrable
      Shares.  No person guilty of fraudulent misrepresentation
      (within the meaning of Section 11(f) of the Securities Act) shall be
      entitled to contribution from any person who was not guilty of such
      fraudulent misrepresentation.  The Holders' obligations in this
      Section 2.8(e) to contribute shall be several in proportion to the amount
      of Registrable Shares registered by them and not
  joint.

            


    

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

    If
indemnification is available under this Section 2.8, the indemnifying parties
shall indemnify each indemnified party to the fullest extent provided in Section
2.8(a) and Section 2.8(b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 2.8(e) subject, in the case of the Holders, to the
limits set forth in Section 2.8(b).

     

    
      	
               
      

            	
              (f)

            	
              The
      indemnification and contribution provided for under this Agreement shall
      remain in full force and effect regardless of any investigation made by or
      on behalf of the indemnified party or any officer, director, or
      controlling Person of such indemnified party and shall survive the
      transfer of securities.

            


    

     

    
      	
               
      

            	
              (g)

            	
              As
      used in this Section 2.8, the terms "officers" and "directors" shall include
      the direct or indirect partners or members of Holders of Registrable
      Shares that are partnerships or limited liability companies, as the case
      may be.

            


    

     

    
      	
               
      

            	
              (h)

            	
              The
      reimbursements required by this Section 2.8 shall be made by periodic
      payments during the course of the investigation or defense, as and when
      bills are received or expenses incurred; provided that in the
      event it is ultimately determined that any amounts so paid were not
      subject to indemnification or contribution hereunder, the recipient
      thereof shall promptly return such amounts to the payer
      thereof.

            


    

     

    Section
2.9    Transfer of
Registration Rights

     

    The
rights of each Holder under this Agreement may be assigned to any direct or
indirect transferee of a Holder who agrees in writing to be subject to and bound
by all the terms and conditions of this Agreement and provides the information
required for notices pursuant to Section 6.8, a copy of which writing shall be
promptly delivered to the Company by the transferor.

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

    Section
2.10    Rule 144

     

    The
Company shall file the reports required to be filed by it under the Securities
Act and the Exchange Act (or, if the Company is not required to file such
reports, shall, upon the request of the Holders, make publicly available other
information) and shall take such further action as the Holders may reasonably
request, in each case to the extent required from time to time to enable the
Holders to sell Company Common Stock without registration under the Securities
Act within the limitation of the exemptions provided by Rule
144.  Upon the reasonable request of any Holder, the Company shall
deliver to such parties a written statement as to whether it has complied with
such requirements and shall, at its expense, forthwith upon the request of any
such Holder, deliver to such Holder a certificate, signed by the Company's
principal financial officer, stating (a) the Company's name, address and
telephone number (including area code), (b) the Company's Internal Revenue
Service identification number, (c) the Company's SEC file number, (d) the number
of shares of each class of capital stock outstanding as shown by the most recent
report or statement published by the Company, and (e) whether the Company has
filed the reports required to be filed under the Exchange Act for a period of at
least 90 days prior to the date of such certificate and in addition has filed
the most recent annual report required to be filed thereunder.

     

    Section
2.11    Preservation of
Rights

     

    The
Company shall not (a) grant any registration rights to third parties that are
more favorable than or inconsistent with the rights granted hereunder or (b)
enter into any agreement or arrangement, take any action, or permit any change
to occur, with respect to its securities that violates or subordinates the
rights expressly granted to the Holders in this Agreement.

     

    Section
2.12    Applicability of
Rights to Holders in the Event of an Acquisition

     

    In the
event the Company merges into, consolidates with, sells substantially all of its
assets to or otherwise becomes an Affiliate of a Person (other than MP or one of
its Affiliates), pursuant to a transaction or series of related transactions in
which members of the Holders receive equity securities of such Person (or of any
Affiliate of such Person) in exchange for Company Common Stock held by such
Holders, all of the rights of the Holders set forth in this Agreement shall
continue in full force and effect and shall apply to the Person the equity
securities of which are received by such Holders pursuant to such transaction or
series of related transactions. The Company agrees that, for so long as MP or
any of its Affiliates beneficially owns any Registrable Shares, without the
consent of MP, the Company shall not enter into any agreement that has the
effect set forth in the first clause of the preceding sentence unless such
Person agrees to be bound by the foregoing provision.

     

    Section
2.13    Further
Assurances

     

    The
Company shall, and shall cause its accountants, counsel, financial advisors and
other representatives to, cooperate fully with the Requesting Holders to the
extent reasonably requested by such Requesting Holders, including (a) subject to
Section 2.5(n), providing to such Requesting Holders or their Inspectors any
information concerning the Company and its Subsidiaries reasonably requested by
such Requesting Holders or Inspectors in connection with the sale, exchange or
distribution of Registrable Shares (including any filing by such Requesting
Holders with the SEC on Schedule 14A, 14C or TO under the Exchange Act or other
applicable schedule or form under the Exchange Act or Securities Act) and (b)
providing any consents, executing any other documents or instruments and making
any filings reasonably requested by such Requesting Holders.

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

    ARTICLE
3


     

    TERMINATION

     

    Section
3.1    Termination

     

    The
registration rights hereunder shall cease to apply to any particular Registrable
Share when:  (a) a registration statement covering such Registrable
Shares has been declared effective under the Securities Act by the SEC and such
Registrable Shares have been disposed of pursuant to such effective registration
statement, (b) (i) the entire amount of the Registrable Shares owned by a Holder
may be sold in a single sale pursuant to Rule 144 and (ii) such Holder, together
with its Affiliates, is the beneficial owner of less than one percent (1%) of
the then outstanding class of Registrable Shares, (c) the Registrable Shares are
proposed to be sold or distributed by a Person not entitled to the registration
rights granted by this Agreement or (d) such Holder elects in writing to no
longer be a Party to this Agreement.  In the event a Holder makes an
election under clause (d) of the preceding sentence, without limiting the effect
of such election, such Holder shall not have any obligations under Section
2.4(c).  For purposes of determining compliance with this Section 3.1,
the Company shall, promptly upon the request of any Holder, furnish to such
Holder evidence of the number of Registrable Shares then
outstanding.

     

    ARTICLE
4


     

    [INTENTIONALLY
OMITTED]

     

    ARTICLE
5


     

    ISSUANCE
OF CERTAIN SECURITIES

     

    Section
5.1    Issuance of Certain
Securities

     

    Until the
date that is the earlier of (a) the date than no Warrants remain outstanding and
no Registrable Shares remain unsold under any effective registration statement
filed hereunder and (b) five (5) years after the Closing Date, the Company shall
not issue any (a) Convertible Securities or similar securities that contain a
provision that provides for any change or determination of the applicable
conversion price, conversion rate, or exercise price (or a similar provision
which might have a similar effect) based on any determination of the market
price or other value of the Company’s securities or any other market based or
contingent standard, such as so-called “toxic” or “death spiral” convertible
securities; provided, however, that this prohibition shall not include
Convertible Securities or similar securities the conversion or exercise price or
conversion rate of which is (i) fixed on the date of issuance, (ii) subject to
adjustment as a result of or in connection with a business combination or
similar transaction or (iii) subject to adjustment based upon the issuance by
the Company of additional securities, including without limitation, standard
anti-dilution adjustment provisions which are not based on calculations of
market price or other variable valuations; and provided, further, that in no
event shall this provision be deemed to prohibit the transactions contemplated
in the Warrants; (b) any preferred stock, debt instruments or similar securities
or investment instruments providing for (i) preferences or other payments
substantially in excess of the original investment by purchasers thereof or (ii)
dividends, interest or similar payments other than dividends, interest or
similar payments computed on an annual basis and not in excess, directly or
indirectly, of the lesser of a rate equal to (A) twice the interest rate on 10
year US Treasury Notes and (B) 20%.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    ARTICLE
6


     

    MISCELLANEOUS

     

    Section
6.1    Whole
Agreement

     

    This
Agreement, together with the Warrants, constitutes the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and
thereof.

     

    Section
6.2    Successors and
Assigns

     

    This
Agreement shall be binding upon and inure to the benefit of and be enforceable
by the parties hereto and their respective successors and assigns.  In
addition, without limitation on Section 2.9 and whether or not any express
assignment shall have been made, the provisions of this Agreement which are for
the benefit of the Holders shall also be for the benefit of and enforceable by
any subsequent holder of any Registrable Shares who has executed a copy of this
Agreement or otherwise indicated its agreement to be bound
hereby.  Without limitation on the Holders' rights to transfer
Registrable Shares, the Company acknowledges that any Holder may, at any time,
transfer any of the Registrable Shares which such Holder may own, beneficially
or of record, to (a) their affiliates or (b) their partner(s), investor(s),
security holder(s) or beneficial holder(s) pursuant to their organization
documents or other agreements, and that, upon the consummation of any such
transfer, the provisions of this Agreement shall be binding upon and inure to
the benefit of each transferee of such Registrable Shares.

     

    Section
6.3                                Amendment
and Waiver

     

    Except as
otherwise provided herein, no amendment, alteration or modification of this
Agreement or waiver of any provision of this Agreement shall be effective
against the Company or the Holders unless such amendment, alteration,
modification or waiver is approved in writing by the Company and the Holders of
a majority of the Registrable Shares.  The failure of any party to
enforce any provision of this Agreement shall not be construed as a waiver of
such provision and shall not affect the right of such party thereafter to
enforce each provision of this Agreement in accordance with its
terms.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

     

    Section
6.4    Severability

     

    If any
provision of this Agreement, including any phrase, sentence, clause, Section or
subsection, is inoperative or unenforceable for any reason, such circumstances
shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever. If any provision of this Agreement shall be adjudged
to be excessively broad as to duration, geographical scope, activity or subject,
the parties hereto intend that such provision shall be deemed modified to the
minimum degree necessary to make such provision valid and enforceable under
applicable law and that such modified provision shall thereafter be enforced to
the fullest extent possible.

     

    Section
6.5    Remedies

     

    The
Parties agree that money damages or other remedy at law would not be a
sufficient or adequate remedy for any breach or violation of, or a default
under, this Agreement by them and that, in addition to all other remedies
available to them, each of them shall be entitled to an injunction restraining
such breach, violation or default or threatened breach, violation or default and
to any other equitable relief, including without limitation specific
performance, without bond or other security being required.

     

    Section
6.6    No
Third Party Beneficiaries

     

    Other
than with respect to the indemnification provisions of Section 2.8(a), nothing
in this Agreement, express or implied, is intended or shall be construed to give
any person other than the Parties to this Agreement, including any permitted
transferees that hereafter become Parties in accordance with Section 2.9, or any
of their respective successors and permitted assigns any legal or equitable
right, remedy or claim under or in respect of any agreement or provision
contained herein.

     

    Section
6.7    Counterparts

     

    This
Agreement may be executed in several counterparts (including by facsimile, .pdf
or other electronic transmission), each of which shall be deemed an original and
all of which shall together constitute one and the same instrument.

     

    Section
6.8    Notices

     

    
      	
               
      

            	
              (a)

            	
              Any
      notice or other communication in connection with this Agreement (each, a
      "Notice") shall
      be:

            


    

     

    
      	
               
      

            	
              (i)

            	
              in
      writing in English;

            


    

     

    
      	
               
      

            	
              (ii)

            	
              delivered
      by hand, fax, registered post or by courier using an internationally
      recognized courier company.

            


    

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (b)

            	
              Notices to the Company shall be
      sent to at the following address, or such other person or address as the
      Company may notify to the Holders from time to
  time:

            


    

     

    Empire
Resorts, Inc.

    c/o
Monticello Casino and Raceway

    Route
17B, P.O. Box 5013

    Monticello,
New York 12701

    Tel:              845-807-0001

    Fax:              845-807-0000

    Attention: 
Chief Financial Officer

    


    with a
copy to:

     

    Olshan
Grundman Frome Rosenzweig & Wolosky LLP

    Park
Avenue Tower

    65 East
55th
Street

    New York,
New York 10022

    Tel:              212-451-2220

    Fax:              212-451-2222

    Attention: 
Robert H. Friedman, Esq.

    


    
      	
               
      

            	
              (c)

            	
              Notices to each Warrantholder
      shall be sent to the respective address of such Warrantholder set forth on
      the signature page of this Agreement, or such other person or address as
      such Warrantholder may notify to the Company from time to
      time.

            


    

     

    
      	
               
      

            	
              (d)

            	
              Notices
      to Holders shall be sent to such Holders at the addresses as the
      applicable Holder may notify to the Company from time to time.

            


    

     

    
      	
               
      

            	
              (e)

            	
              A
      Notice shall be effective upon receipt and shall be deemed to have been
      received:

            


    

     

    
      	
               
      

            	
              (i)

            	
              at
      the time of delivery, if delivered by hand, registered post or courier;
      and

            


    

     

    
      	
               
      

            	
              (ii)

            	
              at
      the expiration of two hours after completion of the transmission, if sent
      by facsimile,

            


    

     

    provided that if a Notice
would become effective under the above provisions after 5.30 p.m. on any
Business Day, then it shall be deemed instead to become effective at 9.30 a.m.
on the next Business Day. References in this Agreement to time are to local time
at the location of the addressee as set out in the Notice.

     

    
      	
               
      

            	
              (f)

            	
              Subject
      to the foregoing provisions of this Section 6.8, in proving service of a
      Notice, it shall be sufficient to prove that the envelope containing such
      Notice was properly addressed and delivered by hand, registered post or
      courier to the relevant address pursuant to the above provisions or that
      the facsimile transmission report (call back verification) states that the
      communication was properly sent.

            


    

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

     

    Section
6.9    Governing Law and
Venue; Waiver of Jury Trial

     

    
      	
               
      

            	
              (a)

            	
              This
      Agreement and the rights and obligations of the parties hereunder and the
      persons subject hereto shall be governed by and construed and interpreted
      in accordance with the laws of the State of New York, without giving
      effect to conflicts of laws rules that would require or permit the
      application of the laws of another
jurisdiction.

            


    

     

    
      	
               
      

            	
              (b)

            	
              EACH
      PARTY TO THIS AGREEMENT HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
      JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND THE FEDERAL COURTS
      OF THE UNITED STATES OF AMERICA LOCATED IN THE CITY OF NEW YORK IN THE
      STATE OF NEW YORK SOLELY IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT
      OF THE PROVISIONS OF THIS AGREEMENT AND IN RESPECT OF THE TRANSACTIONS
      CONTEMPLATED HEREBY.  EACH PARTY IRREVOCABLY AGREES THAT ALL
      CLAIMS IN RESPECT OF THE INTERPRETATION AND ENFORCEMENT OF THE PROVISIONS
      OF THIS AGREEMENT AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY,
      OR WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING, SHALL BE HEARD AND
      DETERMINED IN SUCH A NEW YORK STATE OR FEDERAL COURT, AND THAT SUCH
      JURISDICTION OF SUCH COURTS WITH RESPECT THERETO SHALL BE EXCLUSIVE,
      EXCEPT SOLELY TO THE EXTENT THAT ALL SUCH COURTS SHALL LAWFULLY DECLINE TO
      EXERCISE SUCH JURISDICTION.  EACH PARTY HEREBY WAIVES, AND AGREE
      NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR PROCEEDING FOR THE
      INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT OR IN RESPECT
      OF ANY SUCH TRANSACTION, THAT IT IS NOT SUBJECT TO SUCH
      JURISDICTION.  EACH PARTY HEREBY WAIVES, AND AGREES NOT TO
      ASSERT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AS A DEFENSE IN ANY
      ACTION, SUIT OR PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR
      OF ANY SUCH DOCUMENT OR IN RESPECT OF ANY SUCH TRANSACTION, THAT SUCH
      ACTION, SUIT OR PROCEEDING MAY NOT BE BROUGHT OR IS NOT MAINTAINABLE IN
      SUCH COURTS OR THAT THE VENUE THEREOF MAY NOT BE APPROPRIATE OR THAT THIS
      AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE ENFORCED IN OR BY SUCH
      COURTS.  EACH PARTY CONSENTS TO AND GRANTS ANY SUCH COURT
      JURISDICTION OVER THE PERSON OF SUCH PARTIES IN CONNECTION WITH, AND OVER
      THE SUBJECT MATTER OF, ANY SUCH DISPUTE AND AGREES, TO THE MAXIMUM EXTENT
      PERMITTED BY LAW, THAT MAILING OF PROCESS OR OTHER PAPERS IN CONNECTION
      WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN SECTION 6.8
      OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY LAW, SHALL BE VALID AND
      SUFFICIENT SERVICE THEREOF.

            


    

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    
      	
               
      

            	
              (c)

            	
              EACH
      PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
      THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND
      THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
      ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
      LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
      AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY
      CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY
      OF THE OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
      OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
      FOREGOING WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE
      IMPLICATIONS OF THIS WAIVER, (iii) EACH PARTY MAKES THIS WAIVER
      VOLUNTARILY, AND (iv) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS
      AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
      THIS SECTION 6.9.

            


    

     

    (This
space intentionally left blank)

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    In Witness Whereof, the
parties hereto have caused this Agreement to be duly executed as of the date
first written above.

    
 

     

    
      


      
        	
                THE
    COMPANY:

              	 
      
	 
      	 
      
	
                EMPIRE
      RESORTS, INC.

              	 
      
	 
      	 
      
	 
      	 
      
	
                By:

              	
                
                  /s/
      Joseph E. Bernstein

                

              	 
      
	 
      	
                Name:

              	
                Joseph
      E. Bernstein

              	 
      
	 
      	
                Title:

              	
                Chief
      Executive Officer

              	 
      


      

      


      


      
        	
                THE
      WARRANTHOLDERS:

              	 
      
	 
      	 
      
	 
      	 
      
	
                
                  /s/
      Alan Lee

                

              	 
      
	 
      	
                Alan
      Lee

              	 
      	 
      
	 
      	
                Address:

              	 
      	 
      
	 
      	
                Fax
      Number:

              	 
      	 
      


      

      


      


      
        	
                THE
      PARK AVENUE BANK

              	 
      
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                By:

              	
                
                  /s/
      Donald G. Glascoff, Jr.

                

              	 
      
	 
      	
                Name:

              	
                Donald
      G. Glascoff, Jr.

              	 
      
	 
      	
                Title:

              	
                Chairman

              	 
      
	 
      	
                Address:

              	
                460
      Park Avenue, 13th
      Floor

                NY,
      NY  10022

              	 
      
	 
      	
                Fax
      Number:

              	
                (212)
      223-8086