PLACEMENT WARRANT PURCHASE AGREEMENT
Exhibit
10.16
THIS
PLACEMENT WARRANT PURCHASE AGREEMENT (the
“Agreement”) made as of this [●] day of [●], 2007, among
NRDC Acquisition Corp., a Delaware corporation (the
“Company”), and NRDC Capital Management, LLC,
a Delaware limited liability company (the
“Purchaser”).
WHEREAS,
the Company intends to file with the Securities and Exchange Commission
(“SEC”) a registration statement on Form S-1 (the
“Registration Statement”), in connection with the Company’s
initial public offering (the “IPO”) of up to 34,500,000 units
(including 4,500,000 additional units subject to the underwriters’
over-allotment option), each unit consisting of (i) one share of the Company’s
common stock, $.0001 par value (the “Common Stock”), and
(ii) one warrant, each warrant to purchase one share of Common Stock at an
exercise price of $7.50 per share;
WHEREAS,
the Company desires to sell to the Purchaser, in a private placement, 8,000,000
warrants (the “Warrants”) substantially identical to the
warrants being issued in the IPO pursuant to the terms and conditions hereof
and
as set forth in the Registration Statement, except that the Warrants
(i) may be exercised on a cashless basis so long as they are held by the
Purchaser, its members, members of its members’ immediate families or their
controlled affiliates, and (ii) may not be sold or transferred, except in
limited circumstances, until after the consummation of the Company’s Business
Combination (as defined below);
WHEREAS,
the Warrants shall be governed by the Warrant Agreement filed as an exhibit
to
the Registration Statement; and
WHEREAS,
the Purchaser is entitled to registration rights with respect to the Warrants
and the Common Stock underlying the Warrants on the terms set forth in this
Agreement.
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Purchase
of Warrants. The Purchaser agrees to purchase from the Company, and the
Company agrees to sell to the Purchaser, the Warrants at a purchase price of
$1.00 per Warrant (the “Purchase Price”). The Company and the
Purchaser agree and acknowledge that the sale by the Company, and the purchase
and receipt by the Purchaser, of the Warrants pursuant to this Agreement will
equal (a) an aggregate issuance of 8,000,000 Warrants, and (b) an
aggregate Purchase Price of $8,000,000.
2. Closing.
The closing of the purchase and sale of the Warrants (the
“Closing”) will take place at such time and place as the
parties may agree, but in any event prior to the completion of the IPO (the
“Closing Date”). On the Closing Date, the Purchaser shall pay
the Purchase Price by wire transfer of funds to an account maintained by the
Company. Immediately prior to the closing of the IPO, the Company shall deposit
the Purchase Price into the trust account described in the Registration
Statement. The certificates for the Warrants shall be delivered to the Purchaser
promptly after the closing of the IPO.
3. Lock-Up
Agreement.
3.1 At
or prior to the Closing, the Purchaser shall enter into a lock-up agreement
with
the representative of the underwriters of the Company’s IPO, Banc of America
Securities LLC, pursuant to which the Purchaser shall agree to not to sell
the
Purchaser’s Warrants until after the consummation of the Company’s Business
Combination (the “Lock-Up Period”). Such Lock-Up Period will be
extended for up to 18 days if (i) during the last 17 days of the Lock-Up Period
the Company issues material news or a material event relating to the Company
occurs or (ii) before the expiration of the applicable Lock-Up Period the
Company announces that material news or a material event will occur during
the
16-day period beginning on the last day of the applicable Lock-Up
Period. For purposes of this Agreement, “Business
Combination” shall mean the Company’s initial acquisition of one or
more operating businesses through a merger, capital stock exchange, stock
purchase, asset
acquisition
or other similar business combination which will require that (i) a majority
of
the Company’s shares of common stock voted by the Company’s public stockholders
(as described in the Registration Statement) are voted in favor of the
acquisition, (ii) less than 30% of the Company’s public stockholders both vote
against the proposed acquisition and exercise their conversion rights (as
described in the Registration Statement), and (iii) a majority of the Company’s
outstanding shares of Common Stock are voted in favor of an amendment to the
Company’s Second Amended and Restated Certificate of Incorporation, as the same
may be amended from time to time, to provide for the Company’s perpetual
existence.
3.2 Notwithstanding
Section 3.1 above, during the Lock-Up Period, the Purchaser shall
nevertheless have the right to transfer the Purchaser’s Warrants and the shares
issuable upon the exercise of the Purchaser’s Warrants (a) to members or
former members, members of their immediate families or their controlled
affiliates (each, a “Permitted Transferee”), (b) to a
trust, the beneficiary of which is a member of the immediate family of a
Permitted Transferee, (c) by virtue of the laws of descent and distribution
upon death of a Permitted Transferee, (d) to other officers and/or
directors of the Company, (e) pursuant to a qualified domestic relations
order, or (f) in the event of the Company’s dissolution prior to the
Business Combination or the consummation of a liquidation, merger, capital
stock
exchange, stock purchase, asset acquisition or other similar transaction which
results in all of the Company’s stockholders having the right to exchange their
shares of Common Stock for cash, securities or other property subsequent to
the
Company consummating a Business Combination; provided,
however, that, in connection with each proposed transfer, no such
transfer shall be effective unless and until the transferee has agreed in
writing: (i) to be subject to the transfer restrictions set forth in this
Section 3, (ii) to waive such transferee’s right to participate in any
liquidation distribution with respect to all shares owned by the transferring
Purchaser prior to the IPO (but not shares acquired in the IPO or in the
secondary market) if the Company fails to consummate a Business Combination,
(iii) to waive such transferee’s right to conversion in connection with the
Company’s Business Combination, (iv) to vote with respect to all shares
owned by the transferring Purchaser prior to the IPO (but not shares acquired
in
the IPO or in the secondary market) with the majority of public stockholders
who
vote in connection with the Company’s Business Combination, and (v) to vote in
favor of an amendment to the Company’s Second Amended and Restated Certificate
of Incorporation to provide for the Company’s perpetual existence.
4. Representations
and Warranties of the Purchaser. The Purchaser hereby represents and
warrants to the Company that:
4.1 The
Purchaser is an “accredited investor” as that term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933, as amended (the
“Securities Act”).
4.2 The
Warrants (and the shares issuable upon exercise thereof) are being acquired
for
the Purchaser’s own account, only for investment purposes and not with a view
to, or for resale in connection with, any distribution or public offering
thereof within the meaning of the Securities Act.
4.3 The
Purchaser has the full right, power and authority to enter into this Agreement
and this Agreement is a valid and legally binding obligation of the Purchaser
enforceable against the Purchaser in accordance with its terms.
4.4 The
Purchaser acknowledges that the Warrants (and the shares issuable upon exercise
thereof) will bear a legend in substantially the following form:
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE PROVISIONS OF ANY APPLICABLE
STATE SECURITIES LAWS. THEY MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR
HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER SAID ACT AND LAWS OR AN OPINION OF COUNSEL SATISFACTORY TO
THE
COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.”
5. Registration
Rights Agreement. At or prior to the Closing, the Company and the Purchaser
shall enter into a mutually satisfactory registration rights agreement having
the terms described in the Registration Statement.
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6. Waiver
of Claims; Indemnification. The Purchaser hereby waives any and all rights
to assert any present or future claims, including any right of rescission,
against the Company or Banc of America Securities LLC with respect to the
Purchaser’s purchase of the Warrants, and the Purchaser agrees to indemnify and
hold the Company and Banc of America Securities LLC harmless from all losses,
damages or expenses that relate to claims or proceedings brought against the
Company or Banc of America Securities LLC by any of the Purchaser’s transferees,
heirs, successors, assigns or any subsequent holders of the Warrants or
underlying securities.
7. Counterparts;
Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same instrument. This
Agreement or any counterpart may be executed via facsimile transmission, and
any
such executed facsimile copy shall be treated as an original.
8. Governing
Law. This Agreement shall for all purposes be deemed to be made under and
shall be construed in accordance with the laws of the State of New York. Each
of
the parties hereby agrees that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be brought and
enforced in the courts of the State of New York or the United States District
Court for the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each of the parties hereby
waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum.
9. Successors
and Assigns. This Agreement shall be binding upon and inure to the benefit
of the parties and their successors and assigns, provided,
however, that the Purchaser shall not have the right to assign any
of its
rights hereunder to purchase Warrants to any other person.
10. Third
Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is
not
for the benefit of, nor may any provision hereof be enforced by, any other
person; provided that Banc of America Securities LLC, on its own behalf
and on behalf of the several underwriters in the IPO, shall be a third party
beneficiary of this Agreement.
[Remainder
of Page Intentionally Left Blank]
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IN
WITNESS WHEREOF, the Purchaser has executed this Placement Warrant Purchase
Agreement as of the date first written above.
| COMPANY: | |||
| NRDC ACQUISITION CORP., | |||
| a Delaware Corporation | |||
|
|
By:
|
||
| Name: | Xxxxxxx X. Xxxxx | ||
| Title: | Chief Executive Officer | ||
| PURCHASER: | |||
| NRDC CAPITAL MANAGEMENT, LLC, | |||
| a Delaware Limited Liability Company | |||
|
|
By:
|
||
| Name: | |||
| Title: | |||
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