Exhibit 10.1
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF
MERGER
THIS AMENDMENT NO. 1 (this “
Amendment ”) dated as of October 22, 2009, to
that certain AGREEMENT AND PLAN OF MERGER dated as of
September 8, 2009 (the “ Original Agreement
”), by and among PROSPECT ACQUISTION CORP., a company
incorporated under the laws of Delaware (“ Prospect
”), KW MERGER SUB CORP., a company incorporated under the
laws of Delaware and a wholly owned subsidiary of Prospect (“
Merger Sub ”) and KENNEDY-WILSON, INC., a company
incorporated under the laws of Delaware (“ KW
”).
RECITALS
WHEREAS, the Parties are parties to
the Original Agreement; and
WHEREAS, the Parties wish to amend
the Original Agreement pursuant to and in accordance with
Section 11.2 thereof as further set forth herein.
NOW, THEREFORE, in consideration of
the mutual promises contained herein and in the Original Agreement,
pursuant to and in accordance with Section 11.2 of the
Original Agreement, the Parties agree to amend the Original
Agreement as follows:
1. Definitions.
All capitalized terms used herein without definition shall have the
meanings assigned to such terms in the Original
Agreement.
2. Amendment to Background
Section. The fourth full paragraph of the Background
section of the Original Agreement shall be deleted in its entirety
and replaced with the following:
“Concurrently with the
execution of this Agreement, Prospect, the Prospect Founders, De
Guardiola Advisors, Inc. (“ DGA ”),
De Guardiola Holdings, Inc. (“ DGH
”) and KW are entering into a letter agreement, of even date
herewith, as may be amended and/or restated from time to time
hereafter (as so amended and/or restated, the “
Forfeiture Agreement ”), in the form attached
hereto as Exhibit A , pursuant to which, subject
to the terms and conditions set forth therein (i) the Prospect
Founders have agreed to the forfeiture and cancellation of
4,750,000 shares of Prospect Common Stock and (ii) Prospect
has agreed to issue to DGH an aggregate of 250,000 shares of
Prospect Common Stock upon the closing of the transaction
contemplated by this Agreement in satisfaction of an obligation of
Prospect under its engagement letter with DGA.”
3. Replacement of
Section 6.8. Section 6.8 of the Original
Agreement shall be deleted in its entirety and replaced with the
following:
“Section 6.8
Managemen
