THIS SUBSCRIPTION AGREEMENT (this Agreement) is made and entered into as of February 20, 2019, by and among Empire Resorts, Inc., a Delaware corporation (the Company), and Kien Huat Realty III Limited, a corporation organized in the Isle of Man (the Purchaser).
WHEREAS, the Company and the Purchaser entered into that certain amended and restated commitment letter agreement, dated as of November 9, 2018 (the Commitment Letter), pursuant to which the Purchaser agreed to make an aggregate financing commitment to the Company that would be funded in installments and subject to reduction from time to time in accordance therewith; and
WHEREAS, pursuant to the Commitment Letter and consistent with the installment schedule included therein, the Company desires to issue shares of its Series F Convertible Preferred Stock, par value $0.01 per share as set forth in Section 1.1 (the Preferred Stock), and the Purchaser desires to acquire such Preferred Stock and contribute to the capital of the Company the amount set forth in Section 1.1 hereof.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of the mutual agreements, covenants, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
SUBSCRIPTION FOR PREFERRED STOCK
Section 1.1. Subscription for Preferred Stock. Subject to the terms and conditions hereinafter set forth, the Purchaser hereby subscribes for 200 shares of the Preferred Stock (the Shares) and agrees to pay to the Company cash on the date hereof, as the purchase price for the Preferred Stock, in the amount of $100,000 per share of Preferred Stock, in the aggregate amount of $20,000,000, and the Company agrees to sell such Shares to the Purchaser.
Section 1.2. Issuance of Shares. The Company shall issue to and register in the name of the Purchaser one (1) certificate evidencing the Shares.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Purchaser as of the date hereof as follows:
Section 2.1. Organization. The Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.
Section 2.2. Authority.
(a) The execution, delivery, and performance by the Company of this Agreement have been duly authorized by all necessary action.