Exhibit 10.5

 

AMENDMENT NO. 2 TO

ADDITIONAL CONSIDERATION AGREEMENT

 

This AMENDMENT NO. 2 TO ADDITIONAL CONSIDERATION AGREEMENT (this “Amendment”) is made as of                       , 2014, by and among American West Potash LLC, a Delaware limited liability company (the “Company”), Apache County Land & Ranch, LLC, a Nevada limited liability company (“Apache”), and The Karlsson Group, Inc., an Arizona corporation (“Karlsson”), with respect to the following facts:

 

RECITALS

 

WHEREAS, the Company and Karlsson entered into that certain Additional Consideration Agreement dated as of August 1, 2012 (the “Original Agreement”);

 

WHEREAS, the Company, Apache, and Karlsson entered into that certain Amendment to Additional Consideration Agreement dated as of April 15, 2013, amending the Original Agreement (as so amended, the “Additional Consideration Agreement”);

 

WHEREAS, Prospect Global Resources, Inc., a Delaware corporation, Prospect Global Resources, Inc., a Nevada corporation, the Company and Karlsson entered into that certain Sixth Extension Agreement dated as of April 3, 2014 (the “Sixth Extension Agreement”); and

 

WHEREAS, it is a requirement of the Sixth Extension Agreement that the Company, Apache and Karlsson amend the Additional Consideration Agreement.

 

NOW THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto do hereby agree as follows:

 

AGREEMENT

 

1.             Amendments.

 

(a)           Section 3(a) of the Additional Consideration Agreement is hereby deleted and replaced in its entirety with the following:

 

“In accordance with the terms and conditions of this Agreement, the Company hereby grants to Karlsson as additional consideration an amount equal to three percent (3%) of one hundred percent (100%) of the Gross Sales of all Authorized Minerals extracted and sold by the Company from the AWP Area (the “Additional Consideration”). An example of the calculation of the Additional Consideration is attached hereto as Exhibit “B.”

 

(b)           Exhibit B t the Additional Consideration Agreement is hereby deleted and replaced in its entirety by Exhibit B to this Agreement.

 











 

2.             Miscellaneous.

 

(a)           No Other Amendment.  Except as expressly amended by this Amendment (and as the Additional Consideration Agreement may hereafter be amended, including, but not limited to, by those certain Royalty Agreements executed in favor of Karlsson by the Company and Apache, respectively, dated as of                       , 2014), all provisions of the Additional Consideration Agreement shall remain in full force and effect, and the parties thereto and hereto shall continue to have all their rights and remedies under the Additional Consideration Agreement. In the event of a conflict between the terms and provisions of this Amendment and the terms and provisions of the Additional Consideration Agreement, the provisions of this Amendment shall govern.

 

(b)           Relation to Original Agreement.  This Amendment constitutes an integral part of the Additional Consideration Agreement. Upon the effectiveness of this Amendment, each reference in the Additional Consideration Agreement to “this Agreement,” “hereunder,” “hereof,” or words of like import referring to the Additional Consideration Agreement, shall mean and be a reference to the Additional Consideration Agreement as amended hereby.

 

(c)           Successors and Assigns.  This Amendment shall be binding on and shall inure to the benefit of the parties hereto and their respective successors and assigns except as otherwise provided herein.

 

(d)           Counterparts.  This Amendment may be executed by the parties hereto on any number of separate counterparts, any of which may be executed and transmitted by facsimile, and each of which shall be deemed an original and all of which, taken together, shall be deemed to constitute one and the same instrument.

 

(e)           Governing Law.  This Amendment shall be governed by, and construed in accordance with, the laws of the State of Arizona, without regard to its principles of conflicts of law.

 

[Signature Page Follows]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed and delivered as of the date first above written.

 

 

	
 
    	
THE   COMPANY:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
AMERICAN   WEST POTASH LLC,
    
	
 
    	
a   Delaware limited liability company
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:   Damon Barber
    
	
 
    	
Title:   President, CEO and Secretary
    


 

STATE OF                            

 

COUNTY OF                                  } SS.

 

On                                            before me,                                                                                     , personally appeared                                                                                     , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

WITNESS my hand and official seal.

 

 

	
Signature:
    	
 
    	
 
    


 

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APACHE:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
APACHE   COUNTY LAND & RANCH, LLC
    
	
 
    	
a   Nevada limited liability company
    
	
 
    	
 
    
	
 
    	
By:   American West Potash LLC
    
	
 
    	
Its:   Sole Member
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:   Damon Barber
    
	
 
    	
Title:   President, CEO and Secretary
    


 

STATE OF                            

 

COUNTY OF                                  } SS.

 

On                                            before me,                                                                                     , personally appeared                                                                                     , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

WITNESS my hand and official seal.

 

 

	
Signature:
    	
 
    	
 
    


 

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KARLSSON:
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
THE   KARLSSON GROUP, INC.,
    
	
 
    	
an   Arizona corporation
    
	
 
    	
 
    
	
 
    	
 
    
	
 
    	
By:
    	
 
    
	
 
    	
Name:
    
	
 
    	
Title:
    


 

STATE OF                            

 

COUNTY OF                                  } SS.

 

On                                            before me,                                                                                     , a notary public, personally appeared                                                                                     , personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

 

Certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

 

WITNESS my hand and official seal.

 

 

	
Signature:
    	
 
    	
 
    	
(Seal)
    


 

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Amendment No. 2 to Additional Consideration Agreement
 Exhibit B

 

Exhibit “B”

 

Apache and American West Potash/Karlsson Group Royalty Calculation Example

 

	
Quarter Ending
   (Mo./Yr.)
    	
 
    	
Quarterly Weighted
   Averages Sales price
   per Ton of Potash
    	
 
    	
Potash Sold (tons)*
    	
 
    	
Gross Sales ($)*
    	
 
    	
Total Royalty Due
   (2%)*
    	
 
    	
Cumulative Royalty
   Paid ($)*
    	
 
    
	
Mar-14
    	
 
    	
$
    	
494.33
    	
 
    	
1500.00
    	
 
    	
$
    	
741,495.00
    	
 
    	
$
    	
22,244.85
    	
 
    	
$
    	
22,244.85
    	
 
    
	
June-14
    	
 
    	
$
    	
536.03
    	
 
    	
2290.00
    	
 
    	
$
    	
1,227,508.70
    	
 
    	
$
    	
36,825.26
    	
 
    	
$
    	
59,070.11
    	
 
    
	
Sep-14
    	
 
    	
$
    	
506.04
    	
 
    	
2335.00
    	
 
    	
$
    	
1,181,603.40
    	
 
    	
$
    	
35,448.10
    	
 
    	
$
    	
94,518.21
    	
 
    
	
Dec-14
    	
 
    	
$
    	
500.39
    	
 
    	
2250.00
    	
 
    	
$
    	
1,125,877.50
    	
 
    	
$
    	
33,776.33
    	
 
    	
$
    	
128,294.54