NRDC ACQUISITION CORP. CO-INVESTMENT AGREEMENT
Exhibit
10.17
THIS
CO-INVESTMENT AGREEMENT (this “Agreement”), dated as
of [●],
2007,
is entered into by and 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 a registration statement (the “Registration
Statement”) for the initial public offering of units (the
“Initial Public Offering”), each unit consisting of one share
of the common stock, par value $0.0001 per share, of the Company
(“Common Stock”), and one warrant to purchase one share of
Common Stock at an exercise price of $7.50 per share.
WHEREAS,
immediately prior to the completion of the Company’s initial merger, capital
stock exchange, stock purchase, asset acquisition or other similar business
combination with one or more operating businesses (a “Business
Combination”), the Purchaser desires to purchase and the Company
desires to issue and sell, upon the terms and conditions set forth in this
Agreement, for an aggregate purchase price of $20,000,000 (the
“Co-Investment Units Purchase Price”), 2,000,000 Co-Investment
Units (the “Co-Investment Units”) at $10.00 per unit, each unit
consisting of one share of Common Stock (“Co-Investment Common
Stock”) and one warrant to purchase one share of Common Stock at an
exercise price of $7.50 per share (“Co-Investment
Warrants”).
NOW
THEREFORE, in consideration of the mutual promises contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of
which
are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
Section
1. AUTHORIZATION,
PURCHASE AND SALE; TERMS OF THE CO-INVESTMENT UNITS, CO-INVESTMENT SHARES
AND
CO-INVESTMENT WARRANTS.
A. Authorization
of the Co-Investment Units, Co-Investment Common Stock, Co-Investment Warrants,
and the shares of Common Stock underlying the Co-Investment Warrants. The
Company has duly authorized the issuance and sale to the Purchaser of each
of
the Co-Investment Units, Co-Investment Common Stock, Co-Investment Warrants,
and
the shares of Common Stock underlying the Co-Investment Warrants (collectively,
the “Securities”).
B. Purchase
and Sale of the Co-Investment Units. Immediately prior to the completion
of the
Business Combination (the “Closing Date”), which will not occur
until after the approval of the Business Combination by the requisite vote
of
the Company’s stockholders, the Company shall issue and sell to the Purchaser
and the Purchaser shall purchase from the Company, the Co-Investment Units
for
the Co-Investment Units Purchase Price. On the Closing Date, the Company
shall
deliver certificates evidencing the Co-Investment Units, registered in the
Purchaser’s name, upon the payment by the Purchaser of the Co-Investment Units
Purchase Price, by wire transfer of immediately available funds to the Company
in accordance with the Company’s wiring instructions. In the event that the
Company fails to consummate the Business Combination within 24 months from
the
consummation of its Initial Public Offering, Purchaser’s obligation to purchase
the Co-Investment Units shall be null and void and of no further force and
effect.
C. Terms
of
the Co-Investment Units, Co-Investment Common Stock and Co-Investment
Warrants.
(i) Co-Investment
Units. Each Co-Investment Unit shall have the terms set forth in
the Co-Investment Unit Certificate attached as EXHIBIT A hereto.
(ii) Co-Investment
Common Stock. The Co-Investment Common Stock shall have the terms
set forth in the Second and Amended Certificate of Incorporation of the Company,
as may be amended and restated
from
time to time, (the “Certificate of Incorporation”) and the
Co-Investment Common Stock Certificate attached as EXHIBIT B
hereto.
(iii) Co-Investment
Warrants. The Co-Investment Warrants shall have the terms set
forth in the Warrant Agreement set forth as EXHIBIT C hereto (the
“Warrant Agreement”).
(iv) Transfer
Restrictions. The Purchaser shall not sell or transfer the
Co-Investment Units, Co-Investment Common Stock, Co-Investment Warrants or
the
shares of Common Stock underlying the Co-Investment Warrants for a period
of one
year from the date the Company completes its Business Combination; provided,
however, that Purchaser may sell or transfer the Co-Investment Units,
Co-Investment Common Stock, Co-Investment Warrants or the shares of Common
Stock
underlying the Co-Investment Warrants to a Permitted Transferee (as hereinafter
defined) who agrees in writing with the Company to be subject to such transfer
restrictions. The Purchaser acknowledges that the Co-Investment Warrants
and the
shares of Common Stock issuable upon exercise of the Co-Investment Warrants
are
subject to the restrictions on transfer set forth in the Warrant Agreement.
“Permitted Transferee” means (a) any officer, director or
employee of the Company; or (b) any member or other person or entity associated
or affiliated with NRDC Capital Management, LLC and its current or former
members.
(v) Registration
Rights. In connection with the closing of the Initial Public
Offering, the Company and the Purchaser shall enter into an agreement (the
“Registration Rights Agreement”) granting the Purchaser
registration rights with respect to the Securities;
provided however that such registration rights with respect to the Securities
shall not become effective prior to the end of the applicable Lock-Up
Period.
Section
2. REPRESENTATIONS
AND WARRANTIES OF THE COMPANY.
As
a
material inducement to the Purchaser to enter into this Agreement and purchase
the Co-Investment Units, the Company hereby represents and warrants to the
Purchaser that:
A. Organization
and Corporate Power. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Delaware. The Company possesses all requisite corporate power and
authority necessary to carry out the transactions contemplated by this Agreement
and the Warrant Agreement.
B. Authorization;
No Breach.
(i) Due
Authorization. The execution, delivery and performance of this
Agreement and the Warrant Agreement have been duly authorized by the Company.
This Agreement constitutes the valid and binding obligation of the Company,
enforceable in accordance with its terms. The Warrant Agreement, and upon
issuance in accordance with, and payment pursuant to, the terms of the Warrant
Agreement and this Agreement, the Co-Investment Warrants, constitute valid
and
binding obligations of the Company, enforceable in accordance with their
respective terms as of the Closing Date.
(ii) Conflicts. The
execution and delivery by the Company of this Agreement, the Warrant Agreement
and the sale and issuance of each of the Securities and the fulfillment of
and
compliance with the respective terms hereof and thereof by the Company, do
not
and will not as of the Closing Date (i) conflict with or result in a breach
of
the terms, conditions or provisions of, (ii) constitute a default under,
(iii)
result in the creation of any lien, security interest, charge or encumbrance
upon the Company’s capital stock or assets, (iv) result in a violation of, or
(v) require any authorization, consent, approval, exemption or other action
by
or notice or declaration to, or filing with, any court or administrative
or
governmental body or agency pursuant to the Certificate of Incorporation
or the
bylaws of the Company, or any material law, statute, rule or regulation to
which
the Company is subject, or any agreement, order, judgment or decree to which
the
Company is subject, except for any filings required after the date hereof
under
federal or state securities laws.
C. Title
to Securities. Upon issuance in accordance with, and payment
pursuant to, the terms hereof and the Warrant Agreement, as the case may
be,
each of the Securities will be duly and validly issued, fully paid and
nonassessable. Upon issuance in accordance with, and payment pursuant to,
the
terms hereof and the Warrant
2
Agreement,
as the case may be, the Purchaser will have or receive good title to the
Securities, free and clear of all liens, claims and encumbrances of any
kind, other than (a) transfer restrictions hereunder and under the other
agreements contemplated hereby, (b) transfer restrictions under federal and
state securities laws, and (c) liens, claims or encumbrances imposed due
to the
actions of the Purchaser.
D. Governmental
Consents. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in
connection with the execution, delivery and performance by the Company of
this
Agreement or the Warrant Agreement, or the consummation by the Company of
any
other transactions contemplated hereby.
Section
3. REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER.
As
a
material inducement to the Company to enter into this Agreement and issue
and
sell the Co-Investment Units, the Purchaser hereby represents and warrants
to
the Company that:
A. Capacity
and State Law Compliance. The Purchaser will engage in the
transactions contemplated by this Agreement within a state in which the offer
and sale of the Securities is permitted under applicable securities
laws.
B. Authorization;
No Breach.
(i) This
Agreement constitutes a valid and binding obligation of the Purchaser,
enforceable in accordance with its terms.
(ii) The
execution and delivery by the Purchaser of this Agreement and the fulfillment
of
and compliance with the respective terms hereof by the Purchaser does not
conflict with or result in a breach of the terms, conditions or provisions
of
the certificate of formation or limited liability company agreement of the
Purchaser or any other agreement, instrument, order, judgment or decree to
which
the Purchaser is subject.
C. Investment
Representations.
(i) The
Purchaser understands that no Co-Investment Warrants will be exercisable
unless
at the time of exercise (a) a registration statement relating to the shares
of
Common Stock issuable upon exercise of the Co-Investment Warrants is effective,
(b) a prospectus relating to the shares of Common Stock issuable upon exercise
of the Co-Investment Warrants is available for use, (c) the Common Stock
has
been registered or qualified or deemed to be exempt under the securities
laws of
the state of residence of the holder of the warrants, and (d) the last sales
price of the Common Stock listed on the American Stock Exchange, or other
national stock exchange in which the Common Stock may be traded, has equaled
or
exceeded $14.25 per share for any 20 trading days within any 30-trading-day
period beginning at least 90 calendar days after the consummation of the
Business Combination.
(ii) The
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities which have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the executive officers and directors of the Company. The Purchaser
understands that its investment in the Securities involves a high degree
of
risk. The Purchaser has sought such accounting, legal and tax advice as the
Purchaser has considered necessary to make an informed investment decision
with
respect to the Purchaser’s acquisition of the Securities.
(iii) The
Purchaser understands that the Securities will be offered and will be sold
to it
in reliance on specific exemptions from the registration requirements of
the
United States federal and state securities laws and that the Company is relying
upon the truth and accuracy of, and the Purchaser's compliance with, the
representations and warranties of the Purchaser set forth herein in order
to
determine the availability of such exemptions and the eligibility of the
Purchaser to acquire such Securities.
(iv) The
Purchaser did not decide to enter into this Agreement as a result of any
general
solicitation or general advertising within the meaning of Rule 502(c) under
the
Securities Act.
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(v) The
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Securities which have been requested by the
Purchaser. The Purchaser has been afforded the opportunity to ask
questions of the executive officers and directors of the Company. The Purchaser
understands that its investment in the Securities involves a high degree
of
risk. The Purchaser has sought such accounting, legal and tax advice as the
Purchaser has considered necessary to make an informed investment decision
with
respect to the Purchaser's acquisition of the Securities.
(vi) The
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Securities or the fairness or suitability of the investment
in the Securities by the Purchaser nor have such authorities passed upon
or
endorsed the merits of the offering of the Securities.
(vii) The
Purchaser understands that: (a) the Securities have not been and are not
being
registered under the Securities Act or any state securities laws, and may
not be
offered for sale, sold, assigned or transferred unless (A) subsequently
registered thereunder or (B) sold in reliance on an exemption therefrom;
and (b)
except as specifically set forth in the Registration Rights Agreement, neither
the Company nor any other person is under any obligation to register the
Securities under the Securities Act or any state securities laws or to comply
with the terms and conditions of any exemption thereunder. In this regard,
the
Purchaser understands that the Securities and Exchange Commission has taken
the
position that promoters or affiliates of a blank check company and their
transferees, both before and after a Business Combination, are deemed to
be
“underwriters” under the Securities Act when reselling the securities of a blank
check company. Based on that position, Rule 144 adopted pursuant to the
Securities Act would not be available for resale transactions of the Securities
despite technical compliance with the requirements of such Rule, and the
Securities can be resold only through a registered offering or in reliance
upon
another exemption from the registration requirements of the Securities Act.
The
Purchaser is able to bear the economic risk of its investment in the Securities
for an indefinite period of time.
(viii) The
Purchaser has such knowledge and expertise in financial and business matters,
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of companies in the development
stage
such as the Company, is capable of evaluating the merits and risks of an
investment in the Securities and is able to bear the economic risk of an
investment in the Securities in the amount contemplated hereunder. The Purchaser
has adequate means of providing for its current financial needs and
contingencies and will have no current or anticipated future needs for liquidity
which would be jeopardized by the investment in the Securities. The Purchaser
can afford a complete loss of its investment in the Securities.
Section
4. CONDITIONS
OF THE OBLIGATIONS OF THE PURCHASER AND THE COMPANY.
Each
of
the Purchaser’s and the Company’s obligation to consummate the transactions
contemplated hereby is subject to:
A. The
Company having entered into a definitive agreement relating to a Business
Combination;
B. The
Business Combination having been approved by a majority of the votes cast
by the
Company’s stockholders at a duly held stockholders meeting;
C. An
amendment of the Company’s amended and restated certificate of incorporation to
provide for the Company’s perpetual existence having been approved by the
holders of a majority of the Company’s outstanding shares of Common Stock;
and
D. Public
Stockholders of the Company owning fewer than 30% of the Company’s initial
shares of common stock sold in the Initial Public Offering having both
voted
against the Company’s initial Business Combination and exercised their
conversion rights.
4
Section
5. MISCELLANEOUS.
A. Failure
to Purchase.
Each
of the Purchaser and the Company
understands and agrees that in the event that the Purchaser fails to purchase
the Co-Investment Units in accordance with, and subject to, the terms of
this
Agreement, without any further action required by any party, by its failure
to
purchase the Co-Investment Units the Purchaser shall have forfeited to
the
Company, and the Company shall have accepted from the Purchaser, at no
cost to
the Company, all shares of Common Stock, and all warrants (including any
warrants purchased in a private placement immediately prior to the completion
of
the Initial Public Offering), held by the Purchaser prior to the completion
of
the Initial Public Offering. For purposes of this Section 5(A), the
term Purchaser shall include the Purchaser’s permitted transferees (as
applicable).
B. Further
Assurances.
The
parties hereto shall execute and
deliver such additional documents and take such additional actions as any
party
reasonably may deem to be practical and necessary in order to consummate
the
transactions contemplated by this Agreement.
C. Legends.
(i) The
certificates evidencing the Co-Investment Units and the Co-Investment Shares
will include the legend set forth on EXHIBITS A AND B hereto, respectively,
which the Purchaser has read and understood. The Co-Investment Warrants and
Shares issued upon exercise of the Co-Investment Warrants will include the
legend set forth in EXHIBIT A to the Warrant Agreement in the case of the
Warrants and in the Warrant Agreement in the case of the Shares, which the
Purchaser has read and understood.
(ii) By
accepting the Securities, the Purchaser agrees, prior to any transfer of
the
Securities, to give written notice to the Company expressing its desire to
effect such transfer and describing briefly the proposed transfer. Upon
receiving such notice, the Company shall present copies thereof to its counsel
and the Purchaser agrees not to make any disposition of all or any portion
of
the Securities unless and until:
(a) there
is
then in effect a registration statement under the Securities Act covering
such
proposed disposition and such disposition is made in accordance with such
registration statement, in which case the legends set forth above with respect
to the Securities sold pursuant to such registration statement shall be removed;
or
(b) if
reasonably requested by the Company, (A) the Purchaser shall have furnished
the
Company with an opinion of counsel, reasonably satisfactory to the Company,
that
such disposition will not require registration of such Securities under the
Securities Act, (B) the Company shall have received customary representations
and warranties regarding the transferee that are reasonably satisfactory
to the
Company signed by the proposed transferee and (C) the Company shall have
received an agreement by such transferee to the restrictions contained in
the
legends referred to in (i) hereof.
Notwithstanding
the foregoing, the Purchaser also understands and acknowledges that the transfer
of the Co-Investment Units, Co-Investment Shares, Co-Investment Warrants
and
exercise of the Co-Investment Warrants are subject to the specific conditions
to
such transfer or exercise as outlined herein and in the Warrant Agreement
as to
which the Purchaser specifically assents by its execution hereof.
(iii) The
Company may, from time to time, make stop transfer notations in its records
and
deliver stop transfer instructions to its transfer agent to the extent its
counsel considers it necessary to ensure compliance with federal and state
securities laws and the transfer restrictions contained elsewhere in this
Agreement and the Warrant Agreement.
D. Successors
and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the
5
respective
successors of the parties hereto whether so expressed or not. Notwithstanding
the foregoing or anything to the contrary herein, the parties may not assign
this Agreement or their obligations hereunder.
E. Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
F. Counterparts. This
Agreement may be executed simultaneously in two or more counterparts, none
of
which need contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
agreement.
G. Descriptive
Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word “including” in this Agreement shall
be by way of example rather than by limitation.
H. Governing
Law. This Agreement shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed
in
accordance with the internal laws of said State. The parties agree that,
all
actions and proceedings arising out of this Agreement or any of the transactions
contemplated hereby, shall be brought in the United States District Court
for
the Southern District of New York or in a New York State Court in the County
of
New York and that, in connection with any such action or proceeding, submit
to
the jurisdiction of, and venue in, such court. Each of the parties hereto
also
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
I. Notices. All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall
be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by reputable overnight courier service (charges prepaid) or
mailed
to the recipient by certified or registered mail, return receipt requested
and
postage prepaid. Such notices, demands and other communications shall be
sent:
| If to the Company: | NRDC Acquisition Corp. |
| 0 Xxxxxxxxxxxxxx Xxxx | |
| Xxxxxxxx, XX 00000 | |
| Tel. No.: (000) 000-0000 | |
| If to the Purchaser: | NRDC Capital Management, LLC |
| 0 Xxxxxxxxxxxxxx Xxxx | |
| Xxxxxxxx, XX 00000 | |
| Tel. No.: (000) 000-0000 |
| In each case, with a copy to: | Sidley Austin LLP |
| 000 Xxxxxxx Xxxxxx | |
| Xxx Xxxx, XX 00000 | |
| Tel. No.: (000) 000-0000 | |
| Fax No.: (000) 000-0000 |
or
to
such other address or to the attention of such other person as the recipient
party has specified by prior written notice to the sending party.
J. No
Strict Construction. The parties hereto have participated jointly
in the negotiation and drafting of this Agreement. In the event an ambiguity
or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden
of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
6
K. Costs
and Expenses. Each party shall bear its own costs and expenses in
connection with the preparation of this Agreement and the transaction
contemplated hereby, and neither party shall be obligated to reimburse the
other
party for any expenses incurred in connection with the performance of
this Agreement.
[SIGNATURE
PAGE FOLLOWS]
7
IN
WITNESS WHEREOF, the parties hereto have executed
this Co-Investment Agreement on the date first written above.
| NRDC ACQUISITION CORP. | |||
| By: | |||
| Name: Xxxxxxx X. Xxxxx | |||
| Title: Chief Executive Officer | |||
| NRDC CAPITAL MANAGEMENT, LLC | |||
| By: |
| Name: | |||
| Title: | |||
8
Exhibit
A
SPECIMEN
OF CO-INVESTMENT UNIT CERTIFICATE
No.
U- UNITS
CUSIP
No.:
UNITS
CONSISTING OF ONE SHARE OF COMMON STOCK AND
ONE
WARRANT TO PURCHASE ONE SHARE OF COMMON STOCK
SEE
REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFIES THAT
is the owner of
Units.
Each
Unit
(“Unit”) consists of one (1) share of common stock, par value $.0001
per share (“Common Stock”), of NRDC Acquisition Corp., a Delaware
corporation (the “Corporation”), and one (1) warrant (the
“Warrant”) of the Corporation. The Warrant entitles the holder to
purchase one (1) share of Common Stock for $7.50 per share (subject to
adjustment). The Warrant will become exercisable only after the date on
which
the last sales price of the Corporation’s common stock on the American Stock
Exchange, or other national securities exchange on which the Corporation’s
common stock may be traded, equals or exceeds $14.25 per share for any
20
trading days within any 30-trading-day period beginning at least 90 calendar
days after the consummation of the Corporation’s initial business combination.
The Common Stock and Warrants comprising the Units represented by this
certificate are not transferable separately until five (5) trading days
after the earlier to occur of the termination of the underwriters’
over-allotment option in connection with the Corporation’s initial public
offering (the “IPO”) or the exercise in full by the underwriters of that
option. In no event will the separate trading of the Common Stock and the
Warrants comprising the Units represented by this certificate begin until
the
Corporation has filed a Current Report on Form 8-K with the Securities
and
Exchange Commission containing an audited balance sheet reflecting the
Corporation’s receipt of the proceeds of its IPO and the Corporation has issued
a press release announcing when such separate trading will begin. The terms
of
the Warrants are governed by a Warrant Agreement, dated as of
,
2007, between the Corporation and Continental Stock Transfer & Trust
Company, as Warrant Agent, and are subject to the terms and provisions
contained
therein, all of which terms and provisions the holder of this certificate
consents to by acceptance hereof. Copies of the Warrant Agreement are on
file at
the office of the Warrant Agent at 00 Xxxxxxx Xxxxx, Xxx Xxxx, XX 00000,
and are
available to any Warrant holder on written request and without
cost.
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
RESTRICTIONS ON TRANSFER OR SALE PURSUANT TO A CO-INVESTMENT AGREEMENT DATED
[●],
2007,
A COPY OF WHICH CAN BE OBTAINED FROM THE CORPORATION AT ITS EXECUTIVE
OFFICES.
This
certificate is not valid unless countersigned by the Transfer Agent and
Registrar of the Corporation.
Witness
the facsimile seal of the Corporation and the facsimile signature of its
duly
authorized officers.
|
CORPORATE
|
||
|
DELAWARE
|
||
|
SEAL
|
||
|
2007
|
||
| By: | |||
|
Chief
Executive Officer
|
President
|
||
|
Countersigned
By:
|
||
|
Transfer
Agent
|
10
The
Corporation will furnish without charge to each stockholder who so requests,
a
statement of the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof
of the
Corporation and the qualifications, limitations, or restrictions of such
preferences and/or rights.
The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
|
TEN COM
|
-
|
as
tenants in common
|
UNIF GIFT MIN ACT
-
|
Custodian
|
|
TEN
ENT
|
-
|
as
tenants by the entireties
|
(Cust) (Minor)
|
|
|
JT
TEN
|
-
|
as
joint tenants with right of survivorship and not as tenants in
common
|
under
Uniform Gifts to Minors Act
___________________________
|
|
| (State) | ||||
Additional
abbreviations may also be used though not in the above list.
FOR
VALUE
RECEIVED,
HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________
_________________________________________
(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
____________________________ UNITS
REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY IRREVOCABLY CONSTITUTE
AND
APPOINT _____________ ATTORNEY TO TRANSFER THE SAID UNITS ON THE BOOKS OF
THE
WITHIN NAMED CORPORATION WITH FULL POWER OF SUBSTITUTION IN THE
PREMISES.
11
| DATED: | __________ | ___________________________________________________________________ | |
| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatsoever. | |||
| Signature(s) Guaranteed: | |
|
____________________________________________________________
|
|
| THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). |
12
Exhibit
B
SPECIMEN
CO-INVESTMENT COMMON STOCK CERTIFICATE
No. SHARES
CUSIP
No.:
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON
STOCK
SEE
REVERSE FOR CERTAIN DEFINITIONS
THIS
CERTIFIES THAT
IS
THE
OWNER OF
FULLY
PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF
THE
COMMON
STOCK OF
TRANSFERABLE
ON THE BOOKS OF THE CORPORATION IN PERSON OR BY DULY AUTHORIZED ATTORNEY
UPON
SURRENDER OF THIS CERTIFICATE PROPERLY ENDORSED. THIS CERTIFICATE IS NOT
VALID
UNLESS COUNTERSIGNED BY THE TRANSFER AGENT AND REGISTERED BY THE REGISTRAR.
WITNESS THE SEAL OF THE CORPORATION AND THE FACSIMILE SIGNATURES OF ITS DULY
AUTHORIZED OFFICERS.
DATED:
|
NRDC
ACQUISITION CORP.
|
||
|
CORPORATE
|
||
|
DELAWARE
|
||
|
SEAL
|
||
|
2007
|
||
| By: | |||
|
Chief
Executive Officer
|
President
|
||
|
By:
|
||
|
Transfer
Agent
|
The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
|
TEN COM
|
-
|
as
tenants in common
|
UNIF GIFT MIN ACT
-
|
Custodian
|
|
TEN
ENT
|
-
|
as
tenants by the entireties
|
(Cust) (Minor)
|
|
|
JT
TEN
|
-
|
as
joint tenants with right of survivorship and not as tenants in
common
|
under
Uniform Gifts to Minors Act
_________________________
|
|
| (State) | ||||
Additional
abbreviations may also be used though not in the above list.
14
NRDC
ACQUISITION CORP.
NRDC
Acquisition Corp. (the “Corporation”) will furnish without charge to each
stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or
series
thereof of the Corporation and the qualifications, limitations, or restrictions
of such preferences and/or rights. This certificate and the shares represented
thereby are issued and shall be held subject to all the provisions of the
Corporation’s Second Amended and Restated Certificate of Incorporation and all
amendments thereto and resolutions of the Board of Directors providing for
the
issue of shares of the Corporation’s Common Stock (copies of which may be
obtained from the Corporation), to all of which the holder of this certificate
by acceptance hereof assents.
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED,
SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT
OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION
FROM SUCH REGISTRATION IS AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO
RESTRICTIONS ON TRANSFER OR SALE PURSUANT TO A CO-INVESTMENT AGREEMENT DATED
[●],
2007,
A COPY OF WHICH CAN BE OBTAINED FROM THE CORPORATION AT ITS EXECUTIVE
OFFICES.
FOR
VALUE
RECEIVED,
HEREBY SELL, ASSIGN AND TRANSFER UNTO
PLEASE
INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
_________________________________________
_________________________________________
(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF
ASSIGNEE)
_____________________________________________ SHARES
OF THE CAPITAL STOCK REPRESENTED BY THE WITHIN CERTIFICATE, AND DO HEREBY
IRREVOCABLY CONSTITUTE AND APPOINT _____________ ATTORNEY TO TRANSFER THE
SAID
STOCK ON THE BOOKS OF THE WITHIN NAMED CORPORATION WITH FULL POWER OF
SUBSTITUTION IN THE PREMISES.
15
| DATED: | __________ | ___________________________________________________________________ | |
| NOTICE: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatsoever. | |||
| Signature(s) Guaranteed: | |
|
____________________________________________________________
|
|
| THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15). |
16
Exhibit
C
WARRANT
AGREEMENT
