PLACEMENT WARRANT PURCHASE AGREEMENT
Exhibit 10.16
THIS PLACEMENT WARRANT PURCHASE AGREEMENT (the “Agreement”) made as of this 2nd day of
October, 2007, between 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 |
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| By: Name: |
/s/ Xxxxxxx X. Xxxxx
|
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| Title: | Chief Executive Officer | |||||
| PURCHASER: | ||||||
| NRDC CAPITAL MANAGEMENT, LLC, a Delaware Limited Liability Company |
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| By: Name: |
/s/ Xxxxxxx Xxxxxx
|
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| Title: | Secretary | |||||
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