NRDC ACQUISITION CORP. INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.11
THIS
INVESTMENT MANAGEMENT TRUST AGREEMENT (the
“Agreement”) is made as of [•], 2007, by and between
NRDC Acquisition Corp., a Delaware corporation (the
“Company”) and Continental Stock Transfer & Trust
Company, a New York corporation (the
“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, as amended, No. 333-144871
(together with any registration statement filed pursuant to Rule 462(b), the
“Registration Statement”), for its initial public offering (the
“IPO”) of units (the “Units”), each consisting of one share of
the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and one warrant (collectively, the
“Warrants”) to purchase one share of Common Stock, has been
declared effective as of the date hereof by the Securities and Exchange
Commission (the “Effective Date”); and
WHEREAS,
Banc of America Securities LLC is acting as the underwriter (the
“Underwriter”) in the IPO; and
WHEREAS,
the Company has agreed to sell certain of its securities to its existing
stockholders in a private placement to be effected concurrently with the IPO
(“Private Placement”); and
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, as amended, $296,450,589 of the gross proceeds
of
the IPO and the sale of securities in the Private Placement ($339,875,589 if
the
Underwriters’ over-allotment option is exercised in full) will be delivered to
the Trustee to be deposited and held in a trust account for the benefit of
the
Company and the public stockholders of the Common Stock issued in the IPO (the
amount to be delivered to the Trustee will be referred to herein as the
“Property”; the stockholders for whose benefit the Trustee
shall hold the Property will be referred to as the “Public
Stockholders,” and the Public Stockholders and the Company will be
referred to together as the “Beneficiaries”); and
WHEREAS,
a portion of the Property consists of $10,500,000 (or $12,075,000 if the
Underwriters’ over-allotment option is exercised in full) attributable to the
Underwriters’ discount (“Deferred Discount”) which the
Underwriters have agreed to deposit in the Trust Account (defined below);
and
WHEREAS,
the Company and the Trustee desire to enter into this Agreement to set forth
the
terms and conditions pursuant to which the Trustee shall hold the
Property;
IT
IS
AGREED:
1. Agreements
and Covenants of Trustee. The Trustee hereby agrees and covenants
to:
(a) Hold
the Property in trust for the Beneficiaries in accordance with the terms of
this
Agreement, in a segregated trust account (“Trust Account”)
established by the Trustee at a branch of [•], selected by the
Trustee;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In
a timely manner, upon the written instruction of the Company, to invest and
reinvest the Property in any “Government Security” within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended,
having a maturity of 180 days or less, or in money market funds selected by
the
Company meeting the conditions specified in Rule 2a-7 promulgated under the
Investment Company Act of 1940, as amended, as determined by the
Company;
(d) Collect
and receive, when due, all principal and income arising from the Property,
which
income, net of taxes, shall become part of the “Property,” as
such term is used herein; provided, however, that,
notwithstanding the foregoing or any contrary provision contained herein, the
Trustee shall release to the Company an aggregate amount of up to $2,250,000
from interest earned on the Trust Account, net of taxes, upon the Company’s
demand, to fund working capital requirements;
(e) Notify
the Company of all communications received by it with respect to any Property
requiring action by the Company;
(f) Supply
any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of the tax returns relating to income
from the Property in the Trust Account or otherwise;
(g)
Participate in any plan or proceeding for protecting or enforcing any right
or
interest arising from the Property if, as and when instructed by the Company
in
writing to do so;
(h) Render
to the Company and to the Underwriter, and to such other person as the Company
may instruct, monthly written statements of the activities of and amounts in
the
Trust Account reflecting all receipts and disbursements of the Trust
Account;
(i) If
there is any income or other tax obligation relating to the income from the
Property in the Trust Account as determined by the Company, then, from time
to
time, at the written instruction of the Company, the Trustee shall promptly,
to
the extent there is not sufficient cash in the Trust Account to pay such tax
obligation, liquidate such assets held in the Trust Account as shall be
designated by the Company in writing, and disburse to the Company by wire
transfer or by check, out of the Property in the Trust Account, the amount
indicated by the Company as owing in respect of such income tax obligation;
and
(j) Commence
liquidation of the Trust Account only upon receipt of and only in accordance
with the terms of a letter (the “Termination Letter”), in a
form substantially similar to that attached hereto as either
Exhibit A or Exhibit B, signed on behalf of the Company by
its President or Chairman of the Board, and complete the liquidation of the
Trust Account and distribute the Property in the Trust Account only as directed
in the Termination Letter and the other documents referred to therein. The
Trustee shall provide the Underwriter with a copy of any Termination Letter
and/or any other correspondence that it receives with respect to any proposed
withdrawal from the Trust Account promptly after it receives the
same.
2. Limited
Distributions Of Income From Trust Account.
Except
for an aggregate amount of up to $2,250,000 from the interest earned on the
Trust Account, net of taxes, that the Trustee shall release to the Company
upon
the Company’s demand to fund working capital requirements, no distributions from
the Trust Account shall be permitted except in accordance with Sections 1(i)
and
1(j) hereof. The Trustee shall have no responsibility or liability to verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to this Section 2.
3. Agreements
and Covenants of the Company. The Company hereby agrees and covenants
to:
(a) Give
all instructions to the Trustee hereunder in writing, signed by the Company’s
President or Chairman of the Board. In addition, except with respect to its
duties under Sections 1(i) and 1(j) above, the Trustee shall be entitled to
rely
on, and shall be protected in relying on, any verbal or telephonic advice or
instruction which it in good faith believes to be given by any one of the
persons authorized above to give written instructions, provided that the Company
shall promptly confirm such instructions in writing;
(b) Hold
the Trustee harmless and indemnify the Trustee from and against, any and all
expenses, including reasonable counsel fees and disbursements, or loss suffered
by the Trustee in connection with any action, suit or other proceeding brought
against the Trustee involving any claim, or in connection with any claim or
demand which in any way arises out of or relates to this Agreement, the services
of the Trustee hereunder, or the Property or
2
any
income earned from investment of the Property, except for expenses and losses
resulting from the Trustee’s gross negligence or willful misconduct. Promptly
after the receipt by the Trustee of notice of demand or claim or the
commencement of any action, suit or proceeding, pursuant to which the Trustee
intends to seek indemnification under this paragraph, it shall notify the
Company in writing of such claim (hereinafter referred to as the
“Indemnified Claim”). The Trustee shall have the right to
conduct and manage the defense against such Indemnified Claim, provided, that
the Trustee shall obtain the consent of the Company with respect to the
selection of counsel, which consent shall not be unreasonably withheld. The
Company may participate in such action with its own counsel;
(c) Pay
the Trustee an initial acceptance fee, an annual fee and a transaction
processing fee for each disbursement made pursuant to Section 1(i) as set forth
on Schedule A hereto, which fees shall be subject to modification by the
parties from time to time. It is expressly understood that the Property shall
not be used to pay such fees and further agreed that said transaction processing
fees shall be deducted by the Trustee from the disbursements made to the Company
pursuant to Section 1(i). The Company shall pay the Trustee the initial
acceptance fee and first year’s fee at the completion of the IPO and thereafter
on the anniversary of the Effective Date. The Trustee shall refund to the
Company the annual fee (on a pro rata basis) with respect to any period after
the liquidation of the Trust Fund. The Company shall not be responsible for
any
other fees or charges of the Trustee except as set forth in this Section 3(c)
and as may be provided in Section 3(b) hereof (it being expressly understood
that the Property shall not be used to make any payments to the Trustee under
such Sections);
(d) Provide
to the Trustee any letter of intent, agreement in principle or definitive
agreement that is executed prior to [•], 2009 in connection with a Business
Combination;
(e) In
connection with any vote of the Company’s stockholders regarding a Business
Combination, provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and tabulating
stockholder votes (which firm may be the Trustee) verifying the vote of the
Company’s stockholders regarding such Business Combination; and
(f) if
the Company does not effect a Business Combination within 24 months after
completion of the IPO, the Company’s existence shall cease except for the
purposes of the Company winding up its affairs and liquidating pursuant to
Section 278 of the Delaware General Corporation Law, in which case as promptly
as practicable thereafter the Company shall adopt a plan of distribution in
accordance with Section 281(b) of the Delaware General Corporation Law. Upon the
Company’s adoption of such plan of distribution, the Company shall promptly
provide the Trustee a Termination Letter substantially in the form of Exhibit
B hereto.
4. Limitations
of Liability. The Trustee shall have no responsibility or liability
to:
(a) Take
any action with respect to the Property, other than as directed in Section
1
hereof, and the Trustee shall have no liability to any party except for
liability arising out of its own gross negligence or willful
misconduct;
(b) Institute
any proceeding for the collection of any principal and income arising from,
or
institute, appear in or defend any proceeding of any kind with respect to,
any
of the Property unless and until it shall have received written instructions
from the Company given as provided herein to do so and the Company shall have
advanced or guaranteed to it funds sufficient to pay any expenses incident
thereto;
(c) Change
the investment of any Property, other than in compliance with Section
1(c);
(d) Refund
any depreciation in principal of any Property;
(e) Assume
that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation,
or unless the Company shall have delivered a written revocation of such
authority to the Trustee;
3
(f) The
other parties hereto or to anyone else for any action taken or omitted by it,
or
any action suffered by it to be taken or omitted, in good faith and in the
exercise of its own best judgment, except for its gross negligence or willful
misconduct. The Trustee may rely conclusively and shall be protected in acting
upon any order, judgment, instruction, notice, demand, certificate, opinion
or
advice of counsel (including counsel chosen by the Trustee), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and acceptability of any information therein contained) which is believed by
the
Trustee, in good faith, to be genuine and to be signed or presented by the
proper person or persons. The Trustee shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this agreement
or any of the terms hereof, unless evidenced by a written instrument delivered
to the Trustee signed by the proper party or parties and, if the duties or
rights of the Trustee are affected, unless it shall give its prior written
consent thereto;
(g) Verify
the correctness of the information set forth in the Registration Statement
(other than information provided by the Trustee) or to confirm or assure that
any acquisition made by the Company or any other action taken by it is as
contemplated by the Registration Statement;
(h) As
and to the extent requested from time to time by the Company, prepare, execute
and file such tax reports, income or other tax returns and pay any taxes with
respect to income and activities relating to the Trust Account, regardless
of
whether such tax is payable by the Trust Account or the Company (including
but
not limited to income tax obligations), it being expressly understood that
as
set forth in Section 1(i), if there is any income or other tax obligation
relating to the Trust Account or the Property in the Trust Account, as
determined from time to time by the Company and regardless of whether such
tax
is payable by the Company or the Trust, at the written instruction of the
Company, the Trustee shall make funds available in cash from the Property in
the
Trust Account an amount specified by the Company as owing to the applicable
taxing authority, which amount shall be paid directly to the Company by
electronic funds transfer, account debit, check or other method of payment,
and
the Company shall forward such payment to the taxing authority; or
(i) Verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to Sections 1(i) and 2 above.
5. Termination.
This Agreement shall terminate as follows:
(a) If
the Trustee gives written notice to the Company that it desires to resign under
this Agreement, the Company shall use its reasonable efforts to locate a
successor trustee. At such time that the Company notifies the Trustee that
a
successor trustee has been appointed by the Company and has agreed to become
subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to
the
Trust Account, whereupon this Agreement shall terminate; provided, however,
that, in the event that the Company does not locate a successor trustee within
ninety days of receipt of the resignation notice from the Trustee, the Trustee
may submit an application to have the Property deposited with the United States
District Court for the Southern District of New York and upon such deposit,
the
Trustee shall be immune from any liability whatsoever that arises due to any
actions or omissions to act by any party after such deposit;
(b) At
such time that the Trustee has completed the liquidation of the Trust Account
in
accordance with the provisions of Section 1(j) hereof, and distributed the
Property in accordance with the provisions of the Termination Letter, this
Agreement shall terminate except with respect to Section 3(b).
6. Miscellaneous.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the
security procedures set forth below with respect to funds transferred from
the
Trust Account. Upon receipt of written instructions, the Trustee will confirm
such instructions with an Authorized Individual at an Authorized Telephone
Number listed on the attached Exhibit C. The Company and the Trustee will
each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have obtained
access to such information, or of any change in its authorized personnel. In
executing funds transfers, the Trustee will rely upon account numbers
or
4
other
identifying numbers of a beneficiary, beneficiary’s bank or intermediary bank,
rather than names. The Trustee shall not be liable for any loss, liability
or
expense resulting from any error in an account number or other identifying
number, provided it has accurately transmitted the numbers
provided.
(b) This
Agreement shall be governed by and construed and enforced in accordance with
the
laws of the State of New York, without giving effect to conflict of laws. It
may
be executed in several counterparts, each one of which shall constitute an
original, and together shall constitute one instrument. This Agreement or any
counterpart may be executed via facsimile or other electronic transmission,
and
any such executed facsimile or other electronic copy shall be treated as an
original.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. The parties hereto may change, waive,
amend or modify any provision contained herein that may be defective or
inconsistent with any other provision contained herein only upon the written
consent of each of the parties hereto; provided that such action shall not
materially adversely affect the interests of the Public Stockholders. Any other
change, waiver, amendment or modification to this Agreement shall be subject
to
approval by a majority of the Public Stockholders. As to any claim, cross-claim
or counterclaim in any way relating to this Agreement, each party waives the
right to trial by jury.
(d) The
parties hereto consent to the non-exclusive jurisdiction and venue of any state
or federal court located in the City of New York for purposes of resolving
any
disputes hereunder.
(e) Any
notice, consent or request to be given in connection with any of the terms
or
provisions of this Agreement shall be in writing and shall be sent by express
mail or similar private courier service, by certified mail (return receipt
requested), by hand delivery or by facsimile transmission:
if
to the
Trustee, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Mr.
Xxxxxx Xxxxxx, President
Fax:
(000) 000-0000
if
to the
Company, to:
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
XX 00000
Attn:
Xxxxxxx X. Xxxxx, Chief Executive Officer
Fax:
(000) 000-0000
with
a
copy to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxx, Esq.
Fax:
(000) 000-0000
in
either
case with a copy on behalf of the Underwriter to:
Banc
of
America Securities LLC
0
Xxxx
00xx
Xxxxxx
Xxx
Xxxx,
XX 00000
5
Attn:
Managing Director (NRDC Acquisition Corp.)
Fax:
(000) 000-0000
with
a
copy to:
Xxxxxxx
XxXxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxxxx X. Xxxxxxx, Esq.
Fax:
(000) 000-0000
(f) This
Agreement may not be assigned by the Trustee without the prior consent of the
Company.
(g) Each
of the Trustee and the Company hereby represents that it has the full right
and
power and has been duly authorized to enter into this Agreement and to perform
its respective obligations as contemplated hereunder. The Trustee acknowledges
and agrees that it shall not make any claims or proceed against the Trust
Account, including by way of set-off, and shall not be entitled to any part
of
the Property under any circumstance.
(h) The
Trustee hereby waives any and all right, title, interest or claim of any kind
(“Claim”) in or to any distribution of any property held in
trust for the Company in the Trust Account, and hereby agrees not to seek
recourse, reimbursement, payment or satisfaction for any Claim against the
Trust
Account for any reason whatsoever.
(i) The
Trustee hereby consents to the inclusion of Continental Stock Transfer &
Trust Company in the Registration Statement and other materials relating to
the
IPO.
(j) Each
of the Company and Trustee agrees and acknowledges that the Underwriter is
a
third party beneficiary of this Agreement.
[Remainder
of page intentionally left blank]
6
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
| CONTINENTAL STOCK TRANSFER | |||
| & TRUST COMPANY, as Trustee | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
| NRDC ACQUISITION CORP. | |||
|
|
By:
|
||
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: | Chief Executive Officer | ||
7
EXHIBIT
A
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxxx
Xxxxxx, President
Re: Trust
Account No. [•] Termination Letter
Gentlemen:
Pursuant
to Section 1(j) of the Investment Management Trust Agreement between NRDC
Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of [•], 2007 (the “Trust Agreement”), this is
to advise you that the Company has entered into an agreement (“Business
Agreement”) with [•] (the “Target Business”) to consummate a business
combination with Target Business (a “Business Combination”) on or about [INSERT
DATE]. The Company shall notify you at least 48 hours in advance of the actual
date of the consummation of the Business Combination (the “Consummation Date”).
Defined terms used but not otherwise defined herein shall have the meaning
ascribed to such terms in the Trust Agreement.
Pursuant
to Section 3(e) of the Trust Agreement, we are providing you with [an affidavit]
[a certificate] of _______, which verifies the vote of the Company’s
stockholders in connection with the Business Combination. In accordance with
the
terms of the Trust Agreement, we hereby authorize you to commence liquidation
of
the Trust Account to the effect that, on the Consummation Date, all of the
funds
held in the Trust Account will be immediately available for transfer to the
account or accounts that the Company shall direct in writing on the Consummation
Date.
On
the
Consummation Date (i) counsel for the Company shall deliver to you written
notification that the Business Combination has been consummated and (ii) the
Company shall deliver to you written instructions with respect to the transfer
of the funds held in the Trust Account (the “Instruction Letter”). You are
hereby directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the counsel’s letter and the Instruction
Letter, in accordance with the terms of the Instruction Letter. In the event
that certain deposits held in the Trust Account may not be liquidated by the
Consummation Date without penalty, you will notify the Company of the same
and
the Company shall direct you as to whether such funds should remain in the
Trust
Account and be distributed after the Consummation Date to the Company or, with
respect to the Deferred Discount, to the Underwriter. Upon the distribution
of
all the funds in the Trust Account pursuant to the terms hereof, the Trust
Agreement shall be terminated.
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then the funds held
in
the Trust Account shall be reinvested as provided in the Trust Agreement on
the
business day immediately following the Consummation Date as set forth in the
notice.
| Very truly yours, | |||
| NRDC ACQUISITION CORP. | |||
|
|
By:
|
||
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: | Chief Executive Officer | ||
EXHIBIT
B
[LETTERHEAD
OF COMPANY]
[INSERT
DATE]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx, 0xx Xxxxx
Xxx
Xxxx,
XX 00000
Attn: Xxxxx
Di Paolo, CFO
Re: Trust
Account No. [•] Termination Letter
Gentlemen:
Pursuant
to paragraph 1(j) of the Investment Management Trust Agreement between NRDC
Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of [•], 2007 (the “Trust Agreement”), this is
to advise you that the Company’s existence has ceased due to the Company’s
inability to effect a Business Combination within the time frame specified
in
the Company’s prospectus relating to its IPO. Defined terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account. You will notify the Company in
writing as to when all of the funds in the Trust Account will be available
for
immediate transfer (the “Transfer Date”) in accordance with the Company’s plan
of distribution attached hereto. You shall commence distribution of such funds
in accordance with the terms of such plan of distribution and you shall oversee
the distribution of the funds. Upon the distribution of all the funds in the
Trust Account, your obligations under the Trust Agreement shall be terminated
and the Trust Account shall be closed.
| Very truly yours, | |||
| NRDC ACQUISITION CORP. | |||
|
|
By:
|
||
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: | Chief Executive Officer | ||
EXHIBIT
C
AUTHORIZED
INDIVIDUAL(S) AND TELEPHONE NUMBERS
AUTHORIZED
FOR TELEPHONE CALL BACK
|
COMPANY:
|
| 0 Xxxxxxxxxxxxxx Xxxx |
| Xxxxxxxx, XX 00000 |
| Attn: Xxxxxxx X. Xxxxx, Chief Executive Officer |
| Telephone: (000) 000-0000 |
| TRUSTEE: | Continental Stock Transfer & Trust Company |
| 00 Xxxxxxx Xxxxx, 0xx Xxxxx |
| Xxx Xxxx, Xxx Xxxx 00000 |
| Attn: Xxxxxx Xxxxxx, President |
| Telephone: (000) 000-0000 |
SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
NRDC Acquisition Corp. and
Continental
Stock Transfer & Trust Company
|
Fee
Item
|
Time
and method of payment
|
Amount
|
||
|
Initial
acceptance fee
|
Initial
closing of IPO by wire transfer
|
$ 1,000
|
||
|
Annual
fee
|
First
year, initial closing of IPO by wire transfer; thereafter on the
anniversary of the effective date of the IPO by wire transfer or
check
|
$ [•]
|
||
|
Transaction
processing fee for disbursements to Company under Sections 1(i) and
2
|
Deduction
by Trustee from disbursement made to Company under Section
2
|
$ [•]
|
Dated: [•],
2007
| Agreed: | |||
| NRDC Acquisition Corp. | |||
|
|
By:
|
||
| Title: | |||
| Continental Stock Transfer & Trust Company | |||
|
|
By:
|
||
| Title: | |||
