Exhibit 10.6.1


 


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 Sugarman (“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, 4,000,000 warrants (each an “Private Placement
Warrant”) at a purchase price of $1.00 per Private Placement Warrant for an
aggregate purchase price of $4,000,000 (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 Sugarman

  	
   

  
	
   

  	
   

  	
  Jay Sugarman

  
						



 


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