OPTION PURCHASE AGREEMENT
Exhibit
10.4
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
|
***CONFIDENTIAL
TREATMENT REQUESTED***
Note: The portions hereof for which confidential treatment are being requested are denoted with highlighted, bold and underlined language |
OPTION
PURCHASE AGREEMENT (this “Agreement”) made as of this 30th day of
October, 2009 between The Malibu Companies, LLC, a California limited liability
company (“Buyer”), and the signatory on the execution page hereof
(“Seller”).
WHEREAS,
Prospect Acquisition Corp. (the “Company”), a Delaware corporation, was
organized for the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition or other similar business combination, an operating
business (“Business Combination”); and
WHEREAS,
the Company consummated an initial public offering in November, 2007 in
connection with which it raised gross proceeds of approximately $250 million, a
significant portion of which was placed in a trust account pending the
consummation of a Business Combination on or prior to November 20, 2009;
and
WHEREAS,
pursuant to certain provisions in the Company’s Certificate of Incorporation, as
amended (the “Certificate of Incorporation”), a holder of Common Stock issued in
the Company’s initial public offering may, if it votes against the Business
Combination, demand that the Company redeem such Common Stock into cash
(“Redemption Rights”); and
WHEREAS,
the Business Combination will not be consummated if the holders of more than 30%
of the Common Stock vote against the Business Combination and request Redemption
Rights; and
WHEREAS,
Buyer has requested Seller, and Seller has agreed, to enter into this Agreement
with respect to the number of shares of common stock, par value $.0001 per share
(the “Common Stock”), of the Company set forth on the signature page hereof that
Seller beneficially owns (the “Shares”); and
WHEREAS,
Buyer has agreed to purchase from Seller an option to purchase Seller’s Common
Stock at any time prior to the Termination (as defined hereinafter) of this
Agreement; and
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. Option. Seller hereby sells to
Buyer and Buyer hereby purchases from Seller, concurrently with the execution of
this Agreement, at a price
of *** per Share (the
“Option Price”), an option (the “Purchase Option”) to purchase all (but not less than all) of
the Shares from Seller at
any time prior to the
Termination of this Agreement. On execution of this
Agreement, Buyer shall pay to the order of Seller, by wire transfer of
immediately available funds pursuant to the instructions set forth on
Schedule
1 hereto, the aggregate
Option Price. Seller shall have confirmed none of the
Shares are being lent by Seller, an affiliate of Seller (as such term is defined
in Section 501(b) of the Securities Act of 1934, as amended) or Seller’s broker,
to any third party immediately prior to the execution of this Agreement.
2. Purchase. If the Buyer exercises the
Purchase Option in
accordance with Section 4
then at the Closing (as defined hereinafter), Seller shall sell to Buyer and
Buyer shall purchase from Seller, the Shares at a price per share (the “Purchase Price”)
equal to that certain pro rata portion of the Company’s trust account (the
“Trust Amount”) due its public stockholders as set forth in the Company’s final
definitive proxy statement filed with the U.S. Securities and Exchange
Commission (the
“SEC”) in connection with
the Business Combination.
3. Agreement to
Vote and
Redeem prior to Exercise of the Purchase Option.
(a) Vote
Against; Redemption. In further consideration of the Option
Price and unless withdrawn and revoked pursuant to the terms of this Agreement,
Seller hereby agrees that
within 1 business day after execution of this Agreement, Seller will send an electronic and written
instruction through its prime broker holding the Shares requesting the prime
broker to: (i) exercise its
Redemption Rights, (ii)
vote the Shares against the Business Combination, and (iii) vote the Shares
against any amendment to the Certificate of Incorporation, each in the manner set forth in the Company’s
respective proxy statement(s) filed with the SEC, as applicable and in a timely manner provided, further, that in all applicable cases, Seller
shall take such other actions as may be reasonably requested by
Buyer.
(b) Prior
Votes. If Seller has already voted in connection
with any such Business Combination or amendment to the Certificate of
Incorporation, Seller shall either (i) send an electronic and written
instruction through its prime broker holding the Shares requesting the prime
broker to withdraw and
revoke Seller’s vote in
favor of such Business Combination or amendment to the Certificate of
Incorporation with respect to the Shares or (ii) continue to vote the Shares,
against any Business Combination or amendment to the Certificate of
Incorporation; provided, further, that in all applicable cases, Seller
shall exercise, or continue to exercise, its Redemption Rights in accordance with the proxy
statement(s) and take such other actions in connection therewith as may be
reasonably requested by Buyer.
2
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
(c) Appointment
of Proxy.
(i) Subject to the limitations of Section
3(c)(ii), Seller hereby appoints Xxxxxxx X. Xxxxxxx as its true and lawful
proxy
and attorney-in-fact, with full power of substitution, to vote all of the Shares
in accordance with the terms of this Agreement. The proxy and power
of attorney granted herein shall be deemed to be coupled with an interest, shall
be irrevocable, and shall survive the
death, disability, incompetency, bankruptcy, insolvency or dissolution of
Seller. Furthermore, Seller will, from time to time as reasonably requested by
Buyer, execute and deliver such further instruments, ancillary agreements or
other documents or take such other actions as may be necessary or advisable to
give effect to, confirm, evidence or effectuate the purposes of the proxy granted by
this Section 3(c). Upon the termination of this Agreement in
accordance with Section 10, this Section 3(c) shall be of no further force and
effect.
(ii) This Section 3(c) shall become effective
only if: (i) Seller fails to vote the Shares in accordance with this Agreement,
and/or (ii) Buyer notifies Seller of its intent to exercise the Purchase Option
in accordance with Section 4 and payment of the Aggregate Purchase Price has
been made to the Escrow Agent (as defined in Section 5).
(d) Evidence of
Vote. Seller shall provide further evidence of both
(i) its vote against any such Business Combination or amendments to the
Certificate of Incorporation, and (ii) its exercise of Redemption
Rights, within one (1) business day of any reasonable request
by Buyer for such evidence.
4. Exercise of
Purchase Option. Buyer shall exercise the
Purchase Option by delivering to Seller written notice, by electronic mail,
facsimile or otherwise, at the address set forth in Section
20, such that it is received by Seller (i)
at least two business days prior to the Meeting or any stockholder vote taken by
written consent or (ii) at least one business day prior to the date set by
Seller’s prime broker as the date it must receive votes with respect to the
Meeting or any stockholder vote taken by written consent (the later of (i) or
(ii), the “Minimum Exercise Time”), containing (A) an acknowledgement of Buyer’s intent
to exercise the Purchase Option and (B) whether Seller should vote the
Shares in favor of, against
or abstain from voting upon, each proposal to be presented at the
Meeting or upon any such
action by written consent. The exercisability of the Purchase Option shall terminate in
accordance with Section
10
hereof.
5. Agreement to
Vote upon
Exercise of the Purchase Option. Upon the exercise of the Purchase Option
and receipt by the mutually agreed upon escrow agent (the “Escrow Agent”) of:
(i) the Aggregate Purchase Price and (ii) a letter in substantially the form of
Exhibit
B hereto: Seller shall send an electronic and written
instruction through its prime broker holding the Shares requesting the prime
broker to: (1) withdraw and revoke its exercise of
Redemption Rights and
(2) vote in favor
of, or abstain from voting
upon, the Business
Combination and the other proposals set forth in the Proxy Statement and/or any amendment to the Certificate
of Incorporation and take such other actions in
connection therewith as may be reasonably requested by Buyer. Until such time the Shares
have settled in the account specified by Buyer, Seller shall
promptly execute all
necessary documents and take all actions as, in each case, are reasonably
requested by Buyer in
furtherance of such required action and revocation, with respect to the proposals to be
submitted (i) by written
consent of the stockholders of Company, or (ii) at the special (or annual) meeting, or
adjournment thereof, each
as called for by the Company or the consenting
stockholders to vote upon
(A) the Business Combination or (B) any amendment to the Certificate
of Incorporation (the “Meeting”). If, (i) Buyer exercises the Purchase Option prior to the expiration of the Minimum
Exercise Time and Seller
does not comply with the
provisions of Section 5 as
a result of circumstances beyond the reasonable control of Seller then Buyer’s sole remedy shall be the return
of the Option Price and the
Aggregate Purchase Price received by the Seller from the Escrow Agent or Buyer
(if any) for such subject Shares within one (1) business day of the Meeting and
Seller shall not be obliged to deliver such subject Shares to Buyer pursuant to
Section 6, or (ii) if Buyer exercises the Purchase Option after the expiration
of the Minimum Exercise Time, then Seller shall use reasonable efforts to comply
with this Section 5; provided, however, Seller shall have no liability
whatsoever in connection therewith and should Seller be unable to comply with
this Section 5, Seller shall not be obliged to deliver any non-complying Shares
to Buyer pursuant to Section 6.
3
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
6. Closing
Matters.
(a) Closing. If Buyer exercises the
Purchase Option, the closing of the purchase and sale of the Shares (“Closing”)
will occur simultaneously
with the delivery of the Shares pursuant to Section 6(b).
(b) Closing
Procedures. As soon as reasonably
practicable and in any
event, within one (1) business day after the exercise of the Purchase
Option and the Escrow
Agent’s confirmation of receipt of the Aggregate Purchase Price and a letter
substantially in the form of Exhibit
B, Seller shall deliver the
Shares to Buyer electronically to an account specified by
Buyer. Upon the
settlement of the Shares, the Escrow Agent shall pay to the order of Seller the
aggregate Purchase Price by wire transfer of immediately available funds to an
account specified by Seller
in accordance with Exhibit
B. It shall be a
condition to the obligation of Buyer on the one hand and Seller on the other
hand, to consummate the transfer of the Shares contemplated hereunder that the
other party’s representations and warranties are true and correct as of the
Closing with the same effect as though made on such date, unless waived in
writing by the party to whom such representations and warranties are
made.
7. Representations
and Warranties of the Seller. Seller hereby represents
and warrants to Buyer on the date hereof and on the Closing
that:
(a) Sophisticated
Seller. Seller
is sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the sale of Shares to Buyer.
(b) Independent
Investigation. Seller, in making the
decision to sell the Shares to Buyer, has not relied upon any oral or written
representations or assurances from Buyer or any of its officers, directors or
employees or any other representatives or agents of Buyer. Seller has
had access to all of the filings made by the Company with the SEC, pursuant to
the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and the Securities
Act of 1933, as amended
(the “Securities Act”) in
each case to the extent available publicly via the SEC’s Electronic Data
Gathering, Analysis and Retrieval system.
4
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
(c) Authority. This Agreement has been
validly authorized, executed and delivered by Seller and, assuming the due
authorization, execution and delivery thereof by Buyer, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and
performance of this Agreement by Seller does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Seller is a
party which would prevent Seller from performing its obligations hereunder or
(ii) any law, statute, rule or regulation to which Seller is
subject.
(d) No Legal
Advice from Buyer. Seller acknowledges that it has had the opportunity to review this
Agreement and the transactions contemplated by this Agreement with Seller’s own
legal counsel and investment and tax advisors. Seller is not relying
on any statements or representations of Buyer or any of its representatives or
agents for legal, tax or investment advice with respect to this Agreement or the
transactions contemplated by the Agreement.
(e) Ownership of
Shares; No Proxy. Seller is the legal and
beneficial owner of the Shares, has held the Shares for at least sixty
(60) days and will transfer
to Buyer at the Closing good and marketable title to the Shares free and clear
of any liens, claims, security interests, options, charges or any other
encumbrance whatsoever. Seller beneficially owned all of the Shares
as of the date of this
Agreement and has the sole
right to exercise Redemption Rights and vote the Shares, whether at the
Meeting or upon action by written consent, with respect to all of the
Shares. Except as provided by this Agreement,
Seller has not, directly or indirectly, granted any proxies or entered into any
voting trust or other agreement or arrangement with respect to the
voting, regardless of
whether such vote would occur at the Meeting or upon action by written
consent, of any of
the
Shares.
(f) Cash
Account. If the Shares are not
currently held in an account which prohibits rehypothecation by the Seller’s
prime broker, Seller will transfer the Shares into such an account as soon as
practicable following the execution of this Agreement; provided, however, in no event shall such transfer occur
more than two (2) business days from the execution of this
Agreement.
(g) Non-Transfer
of Shares; Number of Shares. Except for a transfer of the Shares pursuant to
Section 7(g)(i) – (iii), the Shares which are subject to the
Purchase Option shall not be transferred, sold, assigned or borrowed in any
manner, whether by merger,
consolidation or otherwise by the operation of law, following the execution of this
Agreement. Seller may
transfer the Shares under the following circumstances: (i) in accordance with
Section 7(f), (ii) to the Buyer or its assigns in connection with the exercise
of the Purchase Option or (iii) to the Company (via its transfer agent or
otherwise) in connection with Seller’s perfection of its demand for Redemption
Rights.
(h) Seller
Taxes. Seller
understands that Seller (and not the Buyer) shall be responsible for any and all
tax liabilities of Seller that may arise as a result of the transactions
contemplated by this Agreement.
5
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
8. Representations
and Warranties of Buyer. Buyer hereby represents to
the Seller that:
(a) Sophisticated
Buyer. Buyer is
sophisticated in financial matters and is able to evaluate the risks and
benefits attendant to the purchase of Shares from Seller.
(b) Independent
Investigation. Buyer, in making the
decision to (i) pay the Option Price, (ii) exercise the Purchase Option and
(iii) purchase the Shares from Seller, has not relied upon any oral or written
representations or assurances from Seller or any of its officers, directors,
partners or employees or any other representatives or agents of Seller, other
than the representations and warranties set forth in this Agreement. Buyer has had access to all of the filings
made by the Company with the SEC, pursuant to the Exchange Act and the
Securities Act in each case to the extent available publicly via the SEC’s
Electronic Data Gathering, Analysis and Retrieval system.
(c) Authority. This Agreement has been
validly authorized, executed and delivered by Buyer and assuming the due
authorization, execution and delivery thereof by Seller, is a valid and binding
agreement enforceable in accordance with its terms, subject to the general
principles of equity and to bankruptcy or other laws affecting the enforcement
of creditors’ rights generally. The execution, delivery and
performance of this Agreement by Buyer does not and will not conflict with,
violate or cause a breach of, constitute a default under, or result in a
violation of (i) any agreement, contract or instrument to which Buyer is a party
which would prevent Buyer from performing its obligations hereunder or (ii) any
law, statute, rule or regulation to which Buyer is subject.
(d) No Legal
Advice from Seller. Buyer acknowledges that is
has had the opportunity to review this Agreement and the transactions
contemplated by this Agreement with Buyer’s own legal counsel and investment and
tax advisors. Buyer is relying solely on such counsel and advisors
and not on any statements or representations of Seller or any of its
representatives or agents for legal, tax or investment advice with respect to
this Agreement or the transactions contemplated by this
Agreement.
9. Covenants.
(a) Seller. Seller hereby covenants and
agrees (i) Seller has owned
the Shares for at least sixty (60) days, (ii) Seller will, within 1 business day
of execution of this Agreement, provide instructions to its prime broker
substantially in the form of Exhibit
A, which shall not allow
the Shares to be borrowed by, or lent to, any other person or entity whatsoever,
(iii) that except pursuant
to the terms of this Agreement, Seller shall not, directly or indirectly,
(A) grant any proxies or
enter into any voting trust or other agreement or arrangement with respect to
the voting of any of the
Shares, regardless of whether such vote would occur at the Meeting or upon
action by written consent,(B) sell, assign, transfer, encumber or
otherwise dispose of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect assignment, transfer,
encumbrance or other disposition of, any of the Shares during the term of this Agreement (C)
seek or solicit any such
assignment, transfer, encumbrance or other disposition or any such contract,
option or other arrangement or understanding with respect to the Shares, (iv) Seller
will use reasonable efforts to notify Buyer, and to provide all details
reasonably requested by Buyer, if Seller is approached or solicited, directly or
indirectly, by any reasonably well-known alternative investment or institutional
investor offering to purchase all (or part) of the Shares, (v)
Seller shall comply with
all of its filing obligations, if any,
under the Securities Act,
and the Exchange Act with
respect to the Purchase Option, exercise of the Purchase Option, or any other transactions contemplated by this Agreement;
provided, however, Seller shall file for confidential
treatment of this Agreement, which at a minimum shall include the
Option Price and Section 11, and provided, further, Seller shall, where legally permitted and
practicably possible, allow
counsel to Buyer one (1) day to review any submissions to the SEC (if such Filing contains information with
respect to the Buyer other than what is disclosed in this Agreement) and shall
incorporate reasonable comments that pertain to information regarding
Buyer, (vi) Seller shall not share this
Agreement or disclose any provisions of this Agreement with any other person;
provided, however, Seller may disclose this Agreement to
(A) its group companies and its and their respective employees and (B) its
counsel and other advisors, each of whom Seller shall direct to keep this
Agreement confidential and (C) where required by any law, rule or regulation
(including the rules of a professional body) binding on the Seller and (vii)
upon being contacted by the Company or any of its affiliates, including, but not
limited to the Company’s investment bankers, attorneys or other representatives,
Seller may disclose to the Company that Seller no longer controls the vote with
respect to the Shares as a result of Seller entering into an option agreement
with respect to the Shares.
6
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
(b) Buyer. Buyer
hereby covenants and agrees that (i) Buyer shall comply with all filing
obligations, if any, under the Securities Act and the Exchange Act, with respect
to the Purchase Option, exercise of the Purchase Option, any subsequent
ownership of the Shares, or any other transactions contemplated by this
Agreement and (ii) Buyer shall be responsible for all costs and expenses of the
Escrow Agent.
10. Termination. Notwithstanding any
provision in this Agreement to the contrary, this Agreement shall become null
and void and of no further
force and effect upon the
earlier to occur: (i) termination by the written agreement of
the parties to this Agreement or (ii) the day on which the Company liquidates
its trust account.
11. Liquidated
Damages. If
Seller breaches Sections 3, 7(e), 7(g) or 9(a)(iii)(A) or 9(a)(iii)(B) of this
Agreement, Buyer will be
entitled to a payment of
***, with such payment to be paid to the Buyer by Seller within one
(1) business day after
such termination or
breach. Such payment shall be liquidated
damages to compensate the
Buyer for the damages it
shall have sustained as a
result of such breach,
which the parties acknowledge are not capable of being definitively determined
and not as a penalty. Nothing contained in this Section
11 shall serve to limit Buyer’s right to seek specific performance
and other relief under
Section 15 of this
Agreement.
12. 13D
Filing. Each of Buyer and Seller acknowledge and understand that
by virtue of this Purchase Option, or the exercise of such Purchase Option,
Buyer and/or
Seller may be required to
file a Schedule 13D or Schedule 13D/A with the U.S. Securities and Exchange
Commission (each,
the “Filing”) and hereby
consents to any such Filing reasonably required in the opinion of
Buyer, Seller and/or their respective counsels. Each of Buyer and Seller further acknowledge and
understand that Buyer
and/or Seller may be
required, pursuant to the Exchange Act, to divulge certain information of
Buyer and/or Seller, including, but not limited to,
its name, principals, Share position, Option Price, Purchase Price and may be
required to file this Agreement as an exhibit to any such Filing. Each of Buyer and Seller
further covenant and agree that it shall allow the other party or its counsel
one (1) business day to review the Filing (if such Filing contains information
with respect to the Buyer or Seller (as applicable) other than what is disclosed
in this Agreement) and shall incorporate reasonable comments that pertain to
information regarding such party.
7
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
13. Counterparts;
Facsimile. This
Agreement may be executed in any number of counterparts, each of which when so
executed shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument. This Agreement or any
counterpart may be executed via facsimile transmission, and any such executed
facsimile copy shall be treated as an original.
14. Governing
Law. This
Agreement shall for all purposes be deemed to be made under and shall be
construed in accordance with the laws of the State of
Delaware. Each
of the parties hereby agrees that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall, to the fullest extent
applicable, be brought and enforced first in the
Delaware Chancery
Court, then to such other
court in the State of Delaware as appropriate and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each of the
parties hereby waives any objection to such exclusive jurisdiction and that such
courts represent an inconvenient forum.
15. Remedies. Each of the parties hereto
acknowledges and agrees that, in the event of any breach of any covenant or
agreement contained in this Agreement by the other party, money damages may be
inadequate with respect to any such breach and the non-breaching party may have
no adequate remedy at law. It is accordingly agreed that each of the
parties hereto shall be entitled, in addition to any other remedy to which they
may be entitled at law or in equity, to seek injunctive relief and/or to compel
specific performance to prevent breaches by the other party hereto of any
covenant or agreement of such other party contained in this
Agreement. Accordingly, Seller hereby agrees Buyer
is entitled to an injunction prohibiting any conduct by the Seller in violation of this Agreement and shall not seek
the posting of any bond in connection with such request for an injunction.
Furthermore, in any action to enforce this Agreement, The parties each waive
their right to assert set-off as a defense. The non-prevailing
party agrees to pay all
costs and expenses, including reasonable attorneys' and experts' fees incurred by
the prevailing party in
connection with the
enforcement of this Agreement in such amount as may be determined by the court
of competent jurisdiction hearing such dispute.
16. Severability. If any term, provision or
covenant of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions and covenants of this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
8
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
17. Binding
Effect; Assignment and
Transfer. This
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective legal representatives, successors and permitted
assigns. This Agreement shall not be assigned or transferred by
Seller. Buyer may assign, transfer or sell any of its rights under
this Agreement at any time prior to the exercise of the Purchase Option
(collectively, a “Transfer”). All rights and obligations of the Buyer
shall terminate upon any such Transfer and all such rights and obligations shall
be assumed by the transferee.
18. Headings. The descriptive headings of
the Sections hereof are inserted for convenience only and do not constitute a
part of this Agreement.
19. Entire
Agreement; Changes in Writing. This Agreement constitutes
the entire agreement among the parties hereto and supersedes and cancels any
prior agreements, representations and warranties, whether oral or written, among
the parties hereto relating to the transaction contemplated
hereby. Neither this Agreement not any provision hereof may be
changed or amended orally, but only by an agreement in writing signed by the
other party hereto.
20. Notice. All notices, statements or
other documents which are required or contemplated by this Agreement shall be in
writing and delivered personally or sent by first class registered or certified
mail, electronic mail, overnight courier service or facsimile transmission to
the address or fax number most recently provided to such Person or such other
address or fax number as may be designated in writing by such
Person. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered personally or if
sent by electronic mail or facsimile transmission, one (1) business day after
delivery to an overnight courier service or five (5) days after mailing if sent
by mail.
Address for Notice:
|
The Malibu Companies,
LLC
|
Arrowgrass Master Fund
Ltd. [SELLER]
|
|
00000 Xxxxxxx Xxxxxx #000
Xxxxxxx Xxxxxxxxx, XX 00000
With a copy
to:
Ellenoff Xxxxxxxx & Schole
LLP
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX
00000
Attn: Xxxxxxx X.
Xxxxxxxx, Esq.
|
XX Xxx 000, Xxxxxx
Xxxxx
Xxxxx Xxxxxx
Xxxxxx
Grand Cayman
KY1-1104
Cayman Islands
With a copy
to:
Arrowgrass Capital Partners
LLP
Level 39, Tower
42
00 Xxx Xxxxx
Xxxxxx
Xxxxxx XX0X
0XX
Xxxxxx Xxxxxxx
Attn:
Legal
|
[Signature
Page Follows]
9
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date set
forth on the first page of this Agreement.
| THE MALIBU COMPANIES, LLC | |||
|
|
By:
|
||
| Name: | Xxxxxxx X. Xxxxxxx | ||
| Title: | Managing Member | ||
| ARROWGRASS MASTER FUND LTD. | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
|
Option
Price (per Share):
|
$***
|
|
Purchase
Price (per Share)*:
|
|
|
Number
of Shares:
|
1,386,338
|
|
Aggregate
Option Price:
|
$***
|
|
Aggregate
Purchase Price*:
|
* Only to
be completed in accordance with Section 2 in the event the Purchase Option is
exercised
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
Schedule 1
WIRING
INSTRUCTIONS OF SELLER
***
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
[LETTERHEAD
OF SELLER]
[INSERT
BROKER NAME]
[INSERT
BROKER ADDRESS]
[INSERT
ATTN: DETAILS]
RE:
Account No. [INSERT ACCOUNT NUMBER]
Gentlemen:
[NAME OF SELLER] (“we” or the
“Company”) are writing in regards to the above referenced account number (the
“Account”) held by [INSERT NAME OF BROKER] (“you”). With respect to
[NUMBER] of shares of the common stock of Prospect Acquisition Corp. (the
“Shares”) held in our Account, we hereby request that you do not, in any manner
whatsoever, lend, or allow to be borrowed, for any period of time whatsoever,
such Shares.
| Very truly yours, | |||
| [SELLER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Agreed to
and accepted:
[BROKER]
| By: |
|
|
|||
| Name: |
|
||||
| Title: |
|
|
1
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
[LETTERHEAD
OF BUYER]
[INSERT
ESCROW AGENT NAME]
[INSERT
ESCROW AGENT ADDRESS]
[INSERT
ATTN: DETAILS]
RE:
Account No. [INSERT ACCOUNT NUMBER]
Gentlemen:
[NAME OF BUYER] (“we” or the “Company”)
are writing in regards to the above referenced account number held by [INSERT
NAME OF ESCROW AGENT] (“you”). Pursuant to the terms of an Option
Purchase Agreement between the Company and [INSERT SELLER], the Company has
exercised its option to purchase [INSERT NUMBER] of shares (the “Shares”) of the
common stock of Prospect Acquisition Corp. In consideration for the
electronic transfer of the Shares, [using the Depository Trust Company’s DWAC
(Deposit/Withdrawal at Custodian) System], to the Company’s specified account,
you are hereby irrevocably instructed to wire [AMOUNT] to [SELLER], in
accordance with the wiring instructions provided below.
[INSERT
WIRE INSTRUCTIONS]
1
CONFIDENTIAL TREATMENT
REQUESTED
WITH RESPECT TO CERTAIN
PORTIONS HEREOF
DENOTED WITH
“***”
The
address for [SELLER] is [ADDRESS]. The contact person for [SELLER] is
[PERSON]. He can be reached at [NUMBER].
Kindly acknowledge where indicated
below, your receipt and understanding of these instructions and return a copy to
Ellenoff Xxxxxxxx & Schole LLP, attn: Xxxxx X. Xxxxxxx, Esq., facsimile
number (000)-000-0000 and Arrowgrass Capital Partners LLP facsimile x00 000 000
0000.
A facsimile signed and electronically
delivered copy of this letter shall be deemed an original.
| Very truly yours, | |||
| [BUYER] | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
Acknowledged
and Agreed:
[ESCROW
AGENT]
| By: |
|
|
|||
| Name: |
|
||||
| Title: |
|
|
[SELLER]
| By: |
|
|
|||
| Name: |
|
||||
| Title: |
|
|
2
