NRDC ACQUISITION CORP. SUBSCRIPTION AGREEMENT
Exhibit
10.10
THIS
SUBSCRIPTION
AGREEMENT (the
“Agreement”) is made as of the 13th day of July 2007, by
and between NRDC Acquisition Corp., a Delaware corporation (the
“Company”), and NRDC Capital Management, LLC
(“Purchaser”).
WHEREAS,
the Company desires to
issue, and Purchaser desires to acquire, stock of the Company as herein
described, on the terms and conditions hereinafter set forth.
NOW,
THEREFORE, IT
IS AGREED
between the parties as
follows:
1.
Purchase and Sale of Stock. Purchaser hereby agrees to
purchase from the Company, and the Company hereby agrees to sell to Purchaser,
an aggregate of seven million one hundred eighty seven thousand five hundred
(7,187,500) shares of the Company’s Common Stock (the
“Stock”) at a price per share of $0.00348, for an aggregate
purchase price of twenty five thousand dollars ($25,000.00). The closing
hereunder, including payment for and delivery of the Stock, shall occur at
the
offices of the Company immediately following the execution of this Agreement,
or
at such other time and place as the parties may mutually agree.
2.
Limitations on Transfer. Purchaser shall not assign,
hypothecate, donate, encumber or otherwise dispose of any interest in the Stock
except in compliance with applicable securities laws.
3.
Restrictive Legends. All certificates representing the Stock
shall have endorsed thereon legends in substantially the following forms (in
addition to any other legend which may be required by other agreements between
the parties hereto):
(a) “THE
SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NO TRANSFER, SALE OR OTHER DISPOSITION
OF
THESE SHARES MAY BE MADE UNLESS A REGISTRATION STATEMENT WITH RESPECT TO THESE
SHARES HAS BECOME EFFECTIVE UNDER SAID ACT, OR THE COMPANY HAS BEEN FURNISHED
WITH AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION
IS
NOT REQUIRED.”
(b) Any
legend required by appropriate blue sky officials.
4.
Investment Representations. In connection with the purchase of
the Stock, Purchaser represents to the Company the following:
(a) Purchaser
is aware of the Company’s business affairs and financial condition and has
acquired sufficient information about the Company to reach an informed and
knowledgeable decision to acquire the Stock. Purchaser is purchasing the Stock
for investment for Purchaser’s own account only and not with a view to, or for
resale in connection with, any “distribution” thereof within the meaning of the
Securities Act of 1933, as amended (the “Act”).
(b) Purchaser
understands that the Stock has not been registered under the Act by reason
of a
specific exemption therefrom, which exemption depends upon, among other things,
the bona fide nature of Purchaser’s investment intent as expressed
herein.
(c) Purchaser
further acknowledges and understands that the Stock must be held indefinitely
unless the Stock is subsequently registered under the Act or an exemption from
such registration is available. Purchaser understands that the certificate
evidencing the Stock will be imprinted with a legend which prohibits the
transfer of the Stock unless the Stock is registered or such registration is
not
required in the opinion of counsel for the Company.
(d) Purchaser
is familiar with the provisions of Rule 144 under the Act (as in effect from
time to time, “Rule 144”), which, in substance, permits limited
public resale of “restricted securities” acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions. Unless the Company
registers the Stock under the Act, the Stock may be resold by Purchaser only
in
certain limited circumstances subject to the provisions of Rule 144, which
requires, among other things: (i) the availability of certain public
information about the Company and (ii) the resale occurring following the
required holding period under Rule 144 after the Purchaser has purchased, and
made full payment for (within the meaning of Rule 144), the securities to be
sold.
(e) Purchaser
further understands that, at the time Purchaser wishes to sell the Stock, there
may be no public market upon which to make such a sale, and that, even if such
a
public market then exists, the Company may not be satisfying the current public
information requirements of Rule 144, and that, in such event, Purchaser would
be precluded from selling the Stock under Rule 144 even if the minimum holding
period requirement had been satisfied. Notwithstanding Section 4(d) and
this Section 4(e) hereof, Purchaser understands that Purchaser may be
considered a promoter of the Company and understands that it is the position
of
the Securities and Exchange Commission (“SEC”) that promoters
or affiliates of a blank check company and their transferees, both before and
after a business combination, would act as an “underwriter” under the Act when
reselling the securities of a blank check company. Accordingly, the SEC believes
that those securities can be resold only through a registered offering and
that
Rule 144 would not be available for those resale transactions despite technical
compliance with the requirements of Rule 144.
(f) Purchaser
represents that Purchaser is an “accredited investor” as that term is defined in
Rule 501 of Regulation D promulgated by the SEC under the Act.
5.
No
Employment Rights. This Agreement is not an employment contract
and, to the extent applicable, nothing in this Agreement shall affect in any
manner whatsoever the right or power of the Company (or a parent or subsidiary
of the Company) to terminate Purchaser’s employment or other relationship with
the Company for any reason at any time, with or without cause and with or
without notice.
6.
Miscellaneous.
(a)
Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified; (ii) when sent by confirmed facsimile
if sent during normal business hours of the recipient, and if not sent during
normal business hours of the recipient, then on the next business day;
(iii) five (5) calendar days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (iv) one
(1) business day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt.
All
communications shall be sent to the other party hereto at such party’s address
hereinafter set forth on the signature page hereof, or at such other address
as
such party may designate by ten (10) days advance written notice to the
other party hereto.
(b)
Successors and Assigns. This Agreement shall inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer herein set forth, be binding upon Purchaser and
Purchaser’s successors and assigns.
(c)
Attorneys’ Fees; Specific Performance. Purchaser shall
reimburse the Company for all costs incurred by the Company in enforcing the
performance by Purchaser of, or protecting the Company’s rights under, any part
of this Agreement, including reasonable costs of investigation and attorneys’
fees.
(d)
Governing Law; Venue. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York without regard
to
conflicts of law thereof. The parties agree that any action brought by either
party to interpret or enforce any provision of this Agreement shall be brought
in, and each party agrees to and does hereby submit to the jurisdiction and
venue of, the appropriate state or federal court for the district encompassing
the Company’s principal place of business.
(e)
Further Execution. The parties agree to take all such further
action(s) as may be reasonably necessary to carry out and consummate this
Agreement as soon as practicable, and to take whatever steps may be necessary
to
obtain any governmental approval in connection with, or otherwise qualify the
issuance of the securities that are the subject of, this Agreement.
(f)
Independent Counsel. Purchaser acknowledges that this Agreement has been
prepared on behalf of the Company by Sidley Austin LLP, counsel to the Company,
and
that Sidley Austin LLP does not represent, and is not acting on behalf of,
Purchaser. Purchaser has been provided with an opportunity to consult with
Purchaser’s own counsel with respect to this Agreement.
(g)
Entire Agreement; Amendment. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes and merges all prior agreements or understandings, whether
written or oral. This Agreement may not be amended, modified or revoked, in
whole or in part, except by an agreement in writing signed by each of the
parties hereto.
2
(h)
Severability. If one or more provisions of this Agreement are
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith. In the event that the parties cannot reach a
mutually agreeable and enforceable replacement for such provision, then
(i) such provision shall be excluded from this Agreement, (ii) the
balance of the Agreement shall be interpreted as if such provision were so
excluded and (iii) the balance of the Agreement shall be enforceable in
accordance with its terms.
(i)
Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
[Remainder
of This Page Intentionally Left Blank]
3
IN
WITNESS WHEREOF, the parties hereto have executed this Subscription Agreement
as
of the day and year first above written.
| NRDC ACQUISITION CORP. | |||
|
|
By:
|
/s/ XXXXXXX XXXXX | |
| Name: | Xxxxxxx Xxxxx | ||
| Title: | Chief Executive Officer | ||
| Address: | 0 Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 | ||
| NRDC CAPITAL MANAGEMENT, LLC | |||
|
|
By:
|
/s/ XXXXXXX XXXXXX | |
| Name: | Xxxxxxx Xxxxxx | ||
| Title: | Secretary | ||
| Address: | 0 Xxxxxxxxxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx 00000 | ||
4
