Attached files
file | filename |
---|---|
8-K - FORM 8-K - PROSPECT GLOBAL RESOURCES INC. | c25325e8vk.htm |
EX-4.2 - EXHIBIT 4.2 - PROSPECT GLOBAL RESOURCES INC. | c25325exv4w2.htm |
EX-4.1 - EXHIBIT 4.1 - PROSPECT GLOBAL RESOURCES INC. | c25325exv4w1.htm |
EX-10.1 - EXHIBIT 10.1 - PROSPECT GLOBAL RESOURCES INC. | c25325exv10w1.htm |
EX-10.4 - EXHIBIT 10.4 - PROSPECT GLOBAL RESOURCES INC. | c25325exv10w4.htm |
EX-10.3 - EXHIBIT 10.3 - PROSPECT GLOBAL RESOURCES INC. | c25325exv10w3.htm |
EX-10.2 - EXHIBIT 10.2 - PROSPECT GLOBAL RESOURCES INC. | c25325exv10w2.htm |
Exhibit 4.3
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT dated as of November 22, 2011, by and among (i)
Prospect Global Resources Inc., a Delaware corporation (the Company), (ii) Richard Merkin
(Merkin), and (iii) the other holders of Common Stock of the Company signatory hereto
(together with Merkin, the Stockholders).
WHEREAS the Company, Merkin and the Stockholders have entered into a Stockholders Agreement
dated as of January 24, 2011 (the Original Agreement);
WHEREAS, the Company has been presented with an opportunity to raise $10,000,000 of additional
capital through the issuance of a common stock, warrants and a royalty interest (the New
Financing), which would be beneficial to the Company and its existing investors, including
Merkin and the Stockholders; and
WHEREAS, the investors in the New Financing require an amendment to the Original Agreement as
a condition to their investment in the New Financing.
NOW, THEREFORE, the Original Agreement is amended and restated as follows:
Section 1. Definitions. For purposes of this Agreement, the following terms have the
indicated meanings:
Affiliate of a person means any other person controlling, controlled by or under
common control with such person, whether by ownership of voting securities, by contract or
otherwise.
Board means the Companys Board of Directors.
Common Stock means the Companys common stock, par value $.001 per share.
Securities Act means the Securities Act of 1933, as amended.
Section 2. Automatic Termination. This Agreement shall immediately terminate and be
of no further force or effect upon the issuance of Common Stock in a registered public offering
under the Securities Act of 1933, as amended, with gross proceeds to the Company of at least
$10,000,000.
Section 3. Tag Along Right. Except in the case of any transfer to an Affiliate, not
less than 15 days prior to any proposed transfer of Common Stock, other than the sale in one or a
series of related transactions of Common Stock by any Stockholder or its Affiliates, the
transferring Stockholder (the Initiating Holder) shall deliver to Merkin a written notice
(the Sale Notice) specifying in reasonable detail the identity of the proposed
transferee(s), the number of shares proposed to be sold, and the terms and conditions of the
proposed transfer. Merkin may elect to participate in the transfer by delivering to the Initiating
Stockholder a written notice of such election within the 15-day period following delivery of the
Sale Notice. If Merkin elects to participate in such transfer, the Initiating Stockholder and
Merkin will be entitled to sell in such proposed transfer, at the same price and on the same terms
(including form of consideration), a number of shares equal to the product of (i) the quotient determined by
dividing the number of shares proposed to be sold by the Initiating Stockholder or Merkin, as the
case may be, by the number of shares proposed to be sold by the Initiating Stockholder and Merkin,
multiplied by (ii) the total number of shares to be sold in such proposed transfer.
Section 4. Amendment and Waiver. Except as otherwise provided herein, no amendment of
any provision of this Agreement shall be effective unless such amendment or waiver is approved in
writing by the Company, Merkin and the holders of at least a majority of the shares of Common Stock
then held by the other Stockholders. 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.
Section 5. Severability. If any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained herein.
Section 6. Entire Agreement. Except as otherwise expressly set forth herein, this
document embodies the complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and supersedes and preempts any prior understandings, agreements or
representations by or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
Section 7. Successors and Assigns. This Agreement shall bind and inure to the benefit
of and be enforceable by the Company and the Stockholders and their respective successors and
assigns; provided, that Merkin may not assign its right to designate a director to any transferee
of Common Stock from Merkin other than an Affiliate of Merkin without the Companys written
consent.
Section 8. Counterparts. This Agreement may be executed in separate counterparts each
of which shall be an original but all of which taken together shall constitute but one instrument.
Section 9. Notices. Any notice, payment, demand or communication required or
permitted to be given pursuant to this Agreement shall be in writing and shall be (i) delivered
personally, (ii) transmitted by telecopy, or (iii) delivered by nationally recognized overnight
courier service for next business day delivery, addressed as follows, or to such other address as
such person may from time to time specify by notice to the parties hereto:
The Company:
Prospect Global Resources Inc.
600 17th Street, Suite 2800-South
Denver CO 80202
Attention: Pat Avery
Fax: 720-294-0402
600 17th Street, Suite 2800-South
Denver CO 80202
Attention: Pat Avery
Fax: 720-294-0402
Stockholders: To the address specified on the signature page(s)
hereto.
2
Section 10. Governing Law. This Agreement shall be construed in accordance with and
governed by the laws of the State of Delaware without giving effect to principles of conflicts of
laws thereof.
Section 11. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
[SIGNATURE PAGE FOLLOWS]
* * * * *
3
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above
written.
COMPANY: | ||||||
PROSPECT GLOBAL RESOURCES INC. | ||||||
By: | /s/ Patrick Avery |
|||||
Patrick Avery | ||||||
Chief Executive Officer | ||||||
Address: | 600 17th Street, #2800 South | |||||
Denver, CO 80202 | ||||||
MERKIN: | ||||||
/s/ Richard Merkin | ||||||
Richard Merkin | ||||||
Address: | 3115 Ocean Front Walk, #301 | |||||
Marina del Rey, CA 90292 | ||||||
STOCKHOLDERS: | ||||||
/s/ Patrick Avery | ||||||
Patrick Avery | ||||||
Address: | c/o Prospect Global Resources Inc. | |||||
600 17th Street, #2800 South | ||||||
Denver, CO 80202 | ||||||
/s/ Jonathan Bloomfield | ||||||
Jonathan Bloomfield | ||||||
Address: | c/o Prospect Global Resources Inc. | |||||
600 17th Street, #2800 South | ||||||
Denver, CO 80202 |
4
/s/ Barry Munitz | ||||||
Barry Munitz | ||||||
Address: | 507 Euclid Street | |||||
Santa Monica, CA 90402 | ||||||
J. Ari Swiller | ||||||
Address: | c/o Renewable Resource Group, Inc. | |||||
5700 Wilshire Boulevard, #330 |
||||||
Los Angeles, CA 90036 | ||||||
Bevin Cooney | ||||||
Address: | 26286 Chapelgate Court | |||||
Perrysburg, OH 43551 | ||||||
QUINCY PRELUDE LLC | ||||||
By: | /s/ Chad Brownstein |
|||||
Name: | Chad Brownstein | |||||
Title: | Manager | |||||
Address: | c/o Trust Company of the West | |||||
11100 Santa Monica Blvd., #2000 | ||||||
Los Angeles, CA 90025 | ||||||
BALKAN HELLENIC PARTNERSHIP, L.P. | ||||||
By: |
|
|||||
Name: |
|
|||||
Title: |
|
|||||
Address: |
|
|||||
5