NRDC ACQUISITION CORP. CO-INVESTMENT AGREEMENT
Exhibit
10.18
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 Certificate and the Warrant
Agreement set forth as EXHIBIT C hereto (the “Warrant
Agreement”).
(iv)
Transfer Restrictions.
(a)
During the period from the Closing Date until one (1) year after the
consummation of an initial Business Combination (the “Lock-Up
Period”), with respect to the Securities, the Purchaser shall not (i)
sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any
option to purchase or otherwise dispose of or agree to dispose of, directly
or
indirectly, or establish or increase a put equivalent position or liquidate
or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations
of
the SEC promulgated thereunder with respect to, any Securities, (ii) enter
into
any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such transaction is to be settled by delivery of securities, in cash or
otherwise, or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii). Notwithstanding the foregoing, the Purchaser
may sell or transfer the Securities 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.
(b)
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 Lock-Up period, the Company announces that material news
or a
material event relating to the Company will occur during the 16-day period
beginning on the last day of the Lock-Up Period, said Lock-Up Period will be
extended for up to 18 days beginning on the issuance of the material news or
the
occurrence of the material event.
(c)
The
Purchaser agrees that after the Lock-Up Period has elapsed, the Securities
shall
only be transferable or saleable pursuant to a sale registered under the
Securities Act of 1933, as amended (the “Securities Act”), or
pursuant to an available exemption from registration, other than Regulations
S
of the Securities Act.
(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-
2
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, as amended,
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 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
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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.
(v)
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.
(vi)
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.
(vii)
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 public stockholders at a duly held stockholders
meeting;
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C.
An amendment of the Company’s 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.
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
5
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 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:
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If
to the Company:
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Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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If
to the Purchaser:
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NRDC
Capital Management, LLC
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Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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In
each case, with a copy to:
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Sidley
Austin LLP
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Tel.
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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Fax
No.: (▇▇▇) ▇▇▇-▇▇▇▇
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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.
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]
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IN
WITNESS WHEREOF, the parties hereto have executed this Co-Investment Agreement
on the date first written above.
| NRDC ACQUISITION CORP. | ||||
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By:
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| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | ||||
| Title: Chief Executive Officer | ||||
| NRDC CAPITAL MANAGEMENT, LLC | |||
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By:
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| Name: | |||
| Title: | |||
8
Exhibit
A
SPECIMEN
OF CO-INVESTMENT UNIT CERTIFICATE
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No.
U-
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UNITS |
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CUSIP
No.:
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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 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 ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, 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
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By:
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Chief
Executive Officer
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President
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Countersigned
By:
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Transfer
Agent
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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:
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TEN COM
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as
tenants in common
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UNIF GIFT MIN ACT
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Custodian
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| TEN ENT | - | as tenants by the entireties |
(Cust)
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(Minor)
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JT
TEN
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as
joint tenants with right of
survivorship
and not as
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under
Uniform Gifts to Minors Act
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| tenants in common | (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.
|
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
|
under
Uniform Gifts to Minors Act
|
|||
| tenants in common | (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
CERTIFICATE AND
WARRANT
AGREEMENT