Exhibit
4.4
SUPPLEMENT
AND AMENDMENT TO WARRANT AGREEMENT
This
Supplement and Amendment to the Warrant Agreement dated as of October 28, 2009
(the “Amendment”), is
executed by Capitol Acquisition Corp., a Delaware corporation (the “Company”), Two
Harbors Investment Corp. (“Two Harbors”) and
Continental Stock Transfer & Trust Company, a New York corporation (the
“Warrant
Agent”).
WHEREAS,
the Company and Warrant Agent are parties to that certain Warrant Agreement
dated as of November 8, 2007 (the “Warrant Agreement”);
and
WHEREAS, the parties desire to
supplement and amend the Warrant Agreement upon the terms and conditions
herein provided.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree
as follows:
1. Definitions.
Capitalized terms use herein and not otherwise defined herein shall have
the meanings ascribed to them in the Warrant Agreement.
2. Amendment to Warrant
Agreement.
(a) Section 3.1 of the Warrant
Agreement is hereby amended and restated in its entirety as
follows:
“3.1.
Warrant Price.
Each Warrant shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such Warrant and of this
Warrant Agreement, to purchase from the Company the number of shares of Common
Stock stated therein, at a Warrant Price of $11.00, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this Section
3.1. The term “Warrant Price” as used in this Warrant Agreement
refers to the price per share at which Common Stock may be purchased at the time
a Warrant is exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date for a period of not less than 10
business days; provided, however, that any such reduction shall be identical in
percentage terms among all of the Warrants.”
(b) Section 3.2 of the
Warrant Agreement is hereby amended and restated in its entirety as
follows:
“3.2 Duration of Warrants.
A Warrant may be exercised only during the period (“Exercise Period”) commencing
on the consummation by the Company of a merger, capital stock exchange,
asset acquisition, stock purchase, reorganization or other similar business
combination (“Business Combination”) and terminating at 5:00 p.m., New York City
time on the earlier to occur of (i) November 7, 2013 or (ii) the date fixed for
redemption of the Warrants as provided in Section 6 of this Agreement
(“Expiration Date”). Except with respect to the right to receive the Redemption
Price (as set forth in Section 6 hereunder), each Warrant not exercised on or
before the Expiration Date shall become void, and all rights thereunder and all
rights in respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company in its sole discretion may extend
the duration of the Warrants by delaying the Expiration Date; provided, however,
that the Company will provide notice to registered holders of the Warrants of
such extension of not less than 20 days.”
(c) Section 3.3.5 of the Warrant
Agreement is hereby amended and restated in its entirety as
follows:
“3.3.5 Limitations on
Exercise. Notwithstanding anything to the contrary contained herein, no
Warrant may be exercised if it would cause the holder to Beneficially Own or
Constructively Own, within the meaning of Two Harbor’s Articles of Amendment and
Restatement, outstanding Common Stock in excess of the Common Stock Ownership
Limit or Excepted Holder Limit, as defined in Two Harbor’s Articles of Amendment
and Restatement, as applicable.”
(d) Section 4.12 of the Warrant
Agreement is hereby amended and restated in its entirety as
follows:
“4.12 Reorganization of
Company. If the Company consolidates or merges with or into, or transfers
or leases all or substantially all its assets to, any person, upon consummation
of such transaction the Warrants shall automatically become exercisable for the
kind and amount of securities, cash or other assets which the holder of a
Warrant would have owned immediately after the consolidation, merger, transfer
or lease if such holder had exercised the Warrant immediately before the
effective date of the transaction; provided that (i) if the
holders of Common Stock were entitled to exercise a right of election as to the
kind or amount of securities, cash or other assets receivable upon such
consolidation or merger, then the kind and amount of securities, cash or other
assets for which each Warrant shall become exercisable shall be deemed to be the
weighted average of the kind and amount received per share by the holders of
Common Stock in such consolidation or merger that affirmatively make such
election or (ii) if a tender or exchange offer shall have been made to and
accepted by the holders of Common Stock under circumstances in which, upon
completion of such tender or exchange offer, the maker thereof, together with
members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange
Act) of which such maker is a part, and together with any affiliate or associate
of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any
members of any such group of which any such affiliate or associate is a part,
own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more
than 50% of the outstanding shares of Common Stock, the holder of a Warrant
shall be entitled to receive the highest amount of cash, securities or other
property to which such holder would actually have been entitled as a shareholder
if such Warrant holder had exercised the Warrant prior to the expiration of such
tender or exchange offer, accepted such offer and all of the Common Stock held
by such holder had been purchased pursuant to such tender or exchange offer,
subject to adjustments (from and after the consummation of such tender or
exchange offer) as nearly equivalent as possible to the adjustments provided for
in this Section 4. Immediately upon the consummation of a business combination
between the Company and Two Harbors Investment Corp. (“Two Harbors”), (i)
each holder of a Warrant shall be entitled to receive a new Warrant representing
the right to purchase one share of Two Harbors common stock, (ii) all references
to the “Company” in this Agreement shall mean Two Harbors and (iii) Two Harbors
shall assume all of the rights and all of the obligations of the Company under
this Agreement. If Two Harbors subsequently consolidates or merges with or into,
or transfers or leases all or substantially all its assets to, any person, upon
consummation of such transaction, concurrently with the consummation of such
transaction, the corporation or other entity formed by or surviving any such
consolidation or merger if other than the Company, or the person to which such
sale or conveyance shall have been made, shall enter into a supplemental Warrant
Agreement so providing and further providing for adjustments which shall be as
nearly equivalent as may be practical to the adjustments provided for in this
Section 4. The successor Company shall mail to Warrant holders a notice
describing the supplemental Warrant Agreement.
If the issuer of securities deliverable
upon exercise of Warrants under the supplemental Warrant Agreement is an
affiliate of the formed, surviving, transferee or lessee corporation, that
issuer shall join in the supplemental Warrant Agreement.
If this
Section 4.12 applies, Sections 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6 do not
apply.”
3. Amendment. All
references in the Warrant Agreement (and in the other agreements, documents
and instruments entered into in connection therewith) to the “Warrant Agreement”
shall be deemed for all purposes to refer to the Warrant Agreement, as
amended by this Amendment.
4. Remaining Provisions of
Warrant Agreement. Except as expressly provided herein, the
provisions of the Warrant Agreement shall remain in full force and effect
in accordance with their terms and shall be unaffected by this
Amendment.
5. Counterparts. This
Amendment may be executed in counterparts, each of which when executed
shall be deemed an original and both of which when executed shall be deemed
one and the same instrument.
6. Headings. The
headings to this Amendment are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
7. Governing Law. This
Amendment 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 of any jurisdiction.
8. Effective
Time. This Amendment shall be effective immediately prior to
the consummation of a business combination between the Company and Two
Harbors.
IN WITNESS WHEREOF, this Amendment
has been duly executed and delivered by the authorized officers of each of
the undersigned as of the date first above written.
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CAPITOL
ACQUISITION CORP.
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By:
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/s/
Mark Ein
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Name:
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Title:
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TWO
HARBORS INVESTMENT CORP.
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By:
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/s/
Jeff
Stolt
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Name:
Jeff Stolt |
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Title:
Chief Financial Officer |
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CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
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By:
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/s/
Alexander Albrecht
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Name:
Alexander Albrecht |
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Title:
Vice
President |