Exhibit
10.6.2


 


iSTAR ACQUISITION CORP.


 


PRIVATE PLACEMENT WARRANT SUBSCRIPTION
AGREEMENT


 


THIS PRIVATE PLACEMENT
WARRANT SUBSCRIPTION AGREEMENT (this “Agreement”) is made as of the 19th
day of December, 2007, by and between iStar Acquisition Corp., a Delaware
corporation (the “Company”), and Jay Nydick (“Purchaser”).


 


WHEREAS, the Company desires
to commit to issue and sell, and Purchaser desires to commit to purchase and
acquire, Private Placement Warrants (as defined herein) on the terms and
conditions hereinafter set forth;


 


NOW, THEREFORE, for and in
consideration of the promises and mutual covenants set forth herein, it is
agreed between the parties as follows:


 


1.             Commitment To Purchase Private
Placement Warrants.  Subject to
and immediately prior to the completion of the Company’s initial public
offering (the “IPO”), Purchaser hereby agrees to subscribe for and
purchase from the Company, and the Company hereby agrees to issue and sell to
Purchaser, 1,000,000 warrants (each an “Private Placement Warrant”) at a
purchase price of $1.00 per Private Placement Warrant for an aggregate purchase
price of $1,000,000 (the “Purchase Price”).  Each Private Placement Warrant shall entitle
the holder thereof to purchase one share of the common stock of the Company, par
value $0.0001 per share (the “Common Stock”) at an exercise price of
$7.50, in accordance with the terms set forth in the certificate evidencing the
Private Placement Warrants, substantially in the form attached hereto as Exhibit A,
and shall be subject to the terms of the Warrant Agreement to be entered into
by and between the Company and Continental Stock Transfer & Trust
Company, as warrant agent, upon execution thereof.  The closing of the purchase and sale of the Private
Placement Warrants hereunder, including payment for and delivery of the Private
Placement Warrants, shall occur at the offices of the Company or the Company’s
legal counsel immediately prior to, and shall be subject to, the completion of
the IPO.


 


2.             Payment of Purchase Price.  The purchase price for the Private Placement
Warrants shall be tendered in full at the closing by one or more combination of
the following means: (a) wiring of immediately available United States
funds to an account for the benefit of the Company, pursuant to wire
instructions provided by the Company in advance or (b) by delivery of a
cashiers check to the Company of immediately available United States funds.


 


3.             Acceptance or Rejection of
Agreement.  The Company
has the right to reject this Agreement and any subscription for the Private
Placement Warrants represented hereby in whole or in part, for any reason and
at any time prior to a closing, notwithstanding receipt by Purchaser or prior
notice of acceptance of such subscription. 
The Private Placement Warrants subscribed for herein will not be deemed
issued to or owned by Purchaser until a copy of this Agreement has been
executed by the Company and Purchaser and a closing with respect to such Private
Placement Warrants has occurred.  In the
event that a closing does not take place for any reason with respect to some or
all of the Private Placement Warrants, all cash proceeds delivered by Purchaser
in accordance herewith with respect to such Private Placement Warrants shall be
returned to Purchaser as soon as practicable, without interest, offset or
deduction.


 


4.             Limitations on Transfer.  Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Private Placement
Warrants (and the shares of Common issued upon exercise thereof) during the
respective “Escrow Period” (as such term is defined in a securities escrow
agreement, substantially in the form attached hereto as Exhibit B, the “Securities
Escrow 


 

















 


Agreement”), except (i) as
otherwise permitted by the Securities Escrow Agreement, (ii) in compliance
with applicable securities laws and (iii) in compliance with the Warrant
Agreement.


 


5.             Investment Representations.  In connection with the purchase of the Private
Placement Warrants, Purchaser represents to the Company as follows:


 


(a)           Purchaser has been furnished
with all materials relating to the Company’s business affairs and financial
condition and materials related to the offer and sale of the Private Placement
Warrants that have been requested by Purchaser and has acquired sufficient
information about the Company to reach an informed and knowledgeable decision
to acquire the Private Placement Warrants. 
Purchaser has been afforded the opportunity to ask questions of the
executive officers and directors of the Company.  Purchaser understands that his investment in
the Private Placement Warrants involves a high degree of risk.  Purchaser has sought such accounting, legal
and tax advice as Purchaser has considered necessary to make an informed
investment decision with respect to Purchaser’s acquisition of the Private
Placement Warrants.  Purchaser has such
knowledge and expertise in financial and business matters, knows of the high
degree of risk associated with investments generally and particularly
investments in the securities of companies in the development stage such as the
Company, is capable of evaluating the merits and risks of an investment in the Private
Placement Warrants, and is able to bear the economic risk of an investment in
the Private Placement Warrants in the amount contemplated hereunder.  Purchaser has adequate means of providing for
his current financial needs and contingencies and will have no current or
anticipated future needs for liquidity which would be jeopardized by the
investment in the Private Placement Warrants. 
Purchaser can afford a complete loss of his investment in the Private
Placement Warrants.  Purchaser is
purchasing the Private Placement Warrants for investment for Purchaser’s own
account only and not with a view to, or for resale in connection with, any “distribution”
thereof within the meaning of the Securities Act of 1933, as amended (the “Securities
Act”).  Purchaser understands that
the Company is a blank check development stage company recently formed for the
purpose of consummating an initial Business Combination (as such term is
defined in the Amended and Restated Certificate of Incorporation of the
Company, as the same may be amended from time to time) and understands that
there is no assurance as to the future performance of the Company and that the
Company may never effectuate a Business Combination.


 


(b)           Purchaser understands that
the Private Placement Warrants (and the shares of Common Stock issuable upon
exercise thereof) have not been registered under the Securities Act or any
state securities law by reason of a specific exemption therefrom, and that the
Company is relying on the truth and accuracy of, and Purchaser’s compliance
with, the representations and warranties and agreements of Purchaser set forth
herein to determine the availability of such exemptions and the eligibility of
Purchaser to acquire such Private Placement Warrants, including, but not
limited to, the bona fide nature of Purchaser’s investment intent as expressed
herein.


 


(c)           Purchaser further acknowledges
and understands that the Private Placement Warrants (and the shares of Common
Stock issuable upon exercise thereof) must be held indefinitely, subject to any
expiration, unless the Private Placement Warrants (and the shares of Common
Stock issuable upon exercise thereof) are subsequently registered under the Securities
Act or an exemption from such registration is available.  Purchaser understands that the certificates
evidencing the Private Placement Warrants (and the shares of Common Stock
issuable upon exercise thereof) will be imprinted with a legend which prohibits
the transfer of the Private Placement Warrants (and the shares of Common Stock
issuable upon exercise thereof) unless the 


 


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Private Placement Warrants (and the shares of
Common Stock issuable upon exercise thereof) are registered or such
registration is not required in the opinion of counsel for the Company.


 


(d)           Purchaser is familiar with
the provisions of Rule 144 under the Securities Act, as in effect from
time to time (“Rule 144”), which, in substance, permit limited
public resale of “restricted securities” acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions.  Unless the Company registers the Private
Placement Warrants (and the shares of Common Stock issuable upon exercisable
thereof) under the Securities Act, the Private Placement Warrants (and the
shares of Common Stock issuable upon exercise thereof) may be resold by
Purchaser only in certain limited circumstances subject to the provisions of Rule 144,
which requires, among other things: (i) the availability of certain public
information about the Company and (ii) the resale occurring following the
required holding period under Rule 144 after Purchaser has purchased, and
made full payment of (within the meaning of Rule 144), the securities to
be sold.


 


(e)           Purchaser further
understands that at the time Purchaser wishes to sell the Private Placement
Warrants there may be no public market upon which to make such a sale, and
that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and
that, in such event, Purchaser would be precluded from selling the Private
Placement Warrants (and the shares of Common Stock issuable upon exercise
thereof) under Rule 144 even if the minimum holding period requirement had
been satisfied.  Notwithstanding Sections
6(d) and (e) hereof, Purchaser understands that it may be considered
a promoter of the Company and understands that it is the position of the
Securities and Exchange Commission (the “SEC”) that promoters or
affiliates of a blank check company and their transferees, both before and
after a Business Combination, would act as an “underwriter” under the Securities
Act when reselling the securities of a blank check company.  Accordingly, the SEC believes that those
securities can be resold only through a registered offering and that Rule 144
would not be available for those resale transactions despite technical
compliance with the requirements of Rule 144.


 


(f)            Purchaser represents that
Purchaser is an “accredited investor” as that term is defined in Rule 501
of Regulation D promulgated by the SEC under the Securities Act.


 


(g)           Purchaser has all necessary
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby.  This
Agreement has been duly executed and delivered by Purchaser.  Subject to the terms and conditions of this
Agreement, this Agreement constitutes the valid, binding and enforceable
obligation of Purchaser, enforceable in accordance with its terms, except as
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
application now or hereafter in effect affecting the rights and remedies of
creditors and by general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity); and (ii) the applicability
of the federal and state securities laws and public policy as to the
enforceability of the indemnification provisions of this Agreement.  The purchase by Purchaser of the Private
Placement Warrants does not conflict with any material contract by which
Purchaser or his property is bound, or any laws or regulations or decree,
ruling or judgment of any court applicable to Purchaser or his property.  The principal place of business of Purchaser
is as set forth on the signature page hereto.


 


(h)           Purchaser did not decide to
enter into this Agreement as a result of any general solicitation or general
advertising within the meaning of Rule 502(c) of the Securities Act.


 


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(i)            Purchaser understands that
no United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of
the Private Placement Warrants or the fairness or suitability of the investment
in the Private Placement Warrants, nor have such authorities passed upon or
endorsed the merits of the offering of the Private Placement Warrants.


 


6.             Company Representations and
Warranties.  The Company
hereby represents and warrants to Purchaser that the Company has all necessary
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. 
All corporate action necessary to be taken by the Company to authorize
the execution, delivery and performance of this Agreement and all other
agreements and instruments delivered by the Company in connection with the
transactions contemplated hereby has been duly and validly taken and this
Agreement has been duly executed and delivered by the Company.  Subject to the terms and conditions of this
Agreement, this Agreement constitutes the valid, binding and enforceable
obligation of the Company, enforceable in accordance with its terms, except as
enforceability may be limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or similar laws of general
application now or hereafter in effect affecting the rights and remedies of
creditors and by general principles of equity (regardless of whether enforcement
is sought in a proceeding at law or in equity); and (ii) the applicability
of the federal and state securities laws and public policy as to the
enforceability of the indemnification provisions of this Agreement.  The sale by the Company of the Private
Placement Warrants does not conflict with the Amended and Restated Certificate
of Incorporation or by-laws of the Company or any material contract by which
the Company or its property is bound, or any federal or state laws or
regulations or decree, ruling or judgment of any United States or state court
applicable to the Company or its property.


 


7.             Indemnification.  Purchaser hereby agrees to indemnify and hold
harmless the Company and the Company’s officers, directors, stockholders,
employees, agents, and attorneys against any and all losses, claims, demands,
liabilities and expenses (including reasonable legal or other expenses incurred
by each such person in connection with defending or investigating any such
claims or liabilities, whether or not resulting in any liability to such person
or whether incurred by the indemnified party in any action or proceeding
between the indemnitor and indemnified party or between the indemnified party
and any third party) to which any such indemnified party may become subject,
insofar as such losses, claims, demands, liabilities and expenses (a) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact made by Purchaser and contained herein, or (b) arise out of
or are based upon any breach by Purchaser of any representation, warranty or
agreement made by Purchaser contained herein.


 


8.             Miscellaneous.


 


(a)           Notices.  All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when sent by confirmed
facsimile if sent during normal business hours of the recipient, and if not
during normal business hours of the recipient, then on the next business day, (iii) five
calendar days after having been sent by registered or certified mail, return
receipt requested, postage prepaid, or (iv) one business day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. 
All communications shall be sent to the other party hereto at such party’s
address hereinafter set forth on the signature page hereof, or at such
other address as such party may designate by ten days advance written notice to
the other party hereto.


 


(b)           Successors and Assigns.  This Agreement shall inure to the benefit of
the successors and assigns of the Company and, subject to the restrictions on
transfer herein set forth, shall be binding upon Purchaser and Purchaser’s
successors and assigns.


 


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(c)           Attorneys’ Fees; Specific
Performance.  Purchaser
shall reimburse the Company for all costs incurred by the Company in enforcing
the performance of, or protecting its rights under, any part of this Agreement,
including reasonable costs of investigation and attorneys’ fees.


 


(d)           Governing Law; Venue.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard
to the principles of conflicts of law thereof. 
The parties agree that any action brought by either party to interpret
or enforce any provision of this Agreement shall be brought in, and each party
agrees to, and does hereby, submit to the jurisdiction and venue of, the
appropriate state or federal court for the district encompassing the Company’s
principal place of business.


 


(e)           Further Execution.  The parties agree to take all such further
action(s) as may reasonably be necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary
to obtain any governmental approval in connection with or otherwise qualify the
issuance of the securities that are the subject of this Agreement.


 


(f)            Independent Counsel.  Purchaser acknowledges that this Agreement has
been prepared on behalf of the Company by Clifford Chance US LLP, counsel to
the Company and that Clifford Chance US LLP does not represent, and is not
acting on behalf of, Purchaser. 
Purchaser has been provided with an opportunity to consult with Purchaser’s
own counsel with respect to this Agreement.


 


(g)           Entire Agreement; Amendment.  This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes and merges all prior agreements or understandings, whether written
or oral.  This Agreement may not be
amended, modified or revoked, in whole or in part, except by an agreement in
writing signed by each of the parties hereto.


 


(h)           Severability.  If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. 
In the event that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (i) such provision shall
be excluded from this Agreement, (ii) the balance of the Agreement shall
be interpreted as if such provision were so excluded and (iii) the balance
of the Agreement shall be enforceable in accordance with its terms.


 


(i)            Counterparts.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument. 
This Agreement or any counterpart may be executed via facsimile or
electronic mail transmission, and any such executed facsimile or electronic
mail copy shall be treated as an original.


 


(j)            Survival.  The representations and warranties contained
herein will survive the delivery of, and the payment for, the Private Placement
Warrants.


 


(k)           Waiver of Jury Trial.  Each party hereto hereby irrevocably and
unconditionally waives the right to a trial by jury in any action, suit,
counterclaim or other proceeding (whether based on contract, tort or otherwise)
arising out of, connected with or relating to this Agreement, the transactions
contemplated hereby, or the actions of Purchaser in the negotiation,
administration, performance or enforcement hereof.


 


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IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day and year first above
written.


 


	
   

  	
  COMPANY:

  
	
   

  	
   

  
	
   

  	
  iSTAR ACQUISITION CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay S. Nydick

  
	
   

  	
   

  	
  Name:

  	
  Jay S. Nydick

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer and President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PURCHASER:

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jay Nydick

  
	
   

  	
   

  	
  Jay Nydick

  



 


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