EX-10.11



 





Exhibit 10.11




NRDC ACQUISITION CORP.




INVESTMENT MANAGEMENT TRUST AGREEMENT




     THIS INVESTMENT MANAGEMENT TRUST AGREEMENT (the “Agreement”) is made as of October 9, 2007, by
and between NRDC Acquisition Corp., a Delaware corporation (the “Company”) and Continental Stock
Transfer & Trust Company, a New York corporation (the “Trustee”).



     WHEREAS, the Company’s Registration Statement on Form S-1, as amended, No. 333-144871
(together with any registration statement filed pursuant to Rule 462(b), the “Registration Statement”), for its initial public offering (the “IPO”) of units (the “Units”), each
consisting of one share of the Company’s common stock, par value $0.0001 per share (the “Common
Stock”), and one warrant (collectively, the “Warrants”) to purchase one share of Common Stock, has
been declared effective as of the date hereof by the Securities and Exchange Commission (the
“Effective Date”); and



     WHEREAS, Banc of America Securities LLC is acting as the underwriter (the “Underwriter”) in
the IPO; and



     WHEREAS, the Company has agreed to sell certain of its securities to its existing stockholders
in a private placement to be effected concurrently with the IPO (“Private Placement”); and



     WHEREAS, as described in the Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, as amended, $296,450,589 of the gross proceeds of the IPO and the
sale of securities in the Private Placement ($339,875,589 if the Underwriter’s over-allotment
option is exercised in full) will be delivered to the Trustee to be deposited and held in a trust
account for the benefit of the Company and the public stockholders of the Common Stock issued in
the IPO (the amount to be delivered to the Trustee will be referred to herein as the “Property”;
the stockholders for whose benefit the Trustee shall hold the Property will be referred to as the
“Public Stockholders,” and the Public Stockholders and the Company will be referred to together as
the “Beneficiaries”); and



     WHEREAS, a portion of the Property consists of $10,500,000 (or $12,075,000 if the
Underwriter’s over-allotment option is exercised in full) attributable to the Underwriter’s
discount (“Deferred Discount”) which the Underwriter has agreed to deposit in the Trust Account
(defined below); and



     WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the
terms and conditions pursuant to which the Trustee shall hold the Property;



     IT IS AGREED:



1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:




     (a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this
Agreement, in segregated trust accounts (collectively, the “Trust Account”) established by the
Trustee at a branch of JP Morgan Chase Bank N.A., and at a brokerage institution selected by the
Trustee;



     (b) Manage, supervise and administer the Trust Account subject to the terms and conditions set
forth herein;



     (c) In a timely manner, upon the written instruction of the Company, to invest and reinvest
the Property in any “Government Security” within the meaning of Section 2(a)(16) of the Investment
Company Act of 1940, as amended, having a maturity of 180 days or less, or in money market funds
selected by the Company



 









 







meeting the conditions specified in Rule 2a-7 promulgated under the Investment Company Act of
1940, as amended, as determined by the Company;



     (d) Collect and receive, when due, all principal and income arising from the Property, which
income, net of taxes, shall become part of the “Property,” as such term is used herein; provided,
however, that, notwithstanding the foregoing or any contrary provision contained herein, the
Trustee shall release to the Company an aggregate amount of up to $2,250,000 from interest earned
and collected on the Trust Account, net of taxes, upon the Company’s demand, to fund working
capital requirements;



     (e) Notify the Company of all communications received by it with respect to any Property
requiring action by the Company;



     (f) Supply any necessary information or documents as may be requested by the Company in
connection with the Company’s preparation of the tax returns relating to income from the Property
in the Trust Account or otherwise;



     (g) Participate in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company in writing to do so;



     (h) Render to the Company, and to such other person as the Company may instruct, monthly
written statements of the activities of and amounts in the Trust Account reflecting all receipts
and disbursements of the Trust Account;



     (i) If there is any income or other tax obligation relating to the income from the Property in
the Trust Account as determined by the Company, then, from time to time, at the written instruction
of the Company, the Trustee shall promptly, to the extent there is not sufficient cash in the Trust
Account to pay such tax obligation, liquidate such assets held in the Trust Account as shall be
designated by the Company in writing, and disburse to the Company by wire transfer or by check, out
of the Property in the Trust Account, the amount indicated by the Company as owing in respect of
such income tax obligation; and



     (j) Commence liquidation of the Trust Account only upon receipt of and only in accordance with
the terms of a letter (the “Termination Letter”), in a form substantially similar to that attached
hereto as either Exhibit A or Exhibit B, signed on behalf of the Company by its
President or Chairman of the Board, and complete the liquidation of the Trust Account and
distribute the Property in the Trust Account only as directed in the Termination Letter and the
other documents referred to therein. The Company agrees that it shall direct the Trustee to
distribute the Property in the Trust Account only as provided for in the Agreement.



2. Limited Distributions Of Income From Trust Account.




     Except for an aggregate amount of up to $2,250,000 from the interest earned and collected on
the Trust Account, net of taxes, that the Trustee shall release to the Company upon the Company’s
demand to fund working capital requirements, no distributions from the Trust Account shall be
permitted except in accordance with Sections 1(i) and 1(j) hereof. The Trustee shall have no
responsibility or liability to verify calculations, qualify or otherwise approve Company requests
for distributions pursuant to this Section 2.



3. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:




     (a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s
President or Chairman of the Board. In addition, except with respect to its duties under Sections
1(i) and 1(j) above, the Trustee shall be entitled to rely on, and shall be protected in relying
on, any verbal or telephonic advice or instruction which it in good faith believes to be given by
any one of the persons authorized above to give written instructions, provided that the Company
shall promptly confirm such instructions in writing. The Company shall provide the Underwriter with
a copy of any Termination Letter and/or any other correspondence that it transmits with respect to
any proposed withdrawal from the Trust Account promptly after it transmits the same;



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     (b) Hold the Trustee harmless and indemnify the Trustee from and against, any and all
expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in
connection with any action, suit or other proceeding brought against the Trustee involving any
claim, or in connection with any claim or demand which in any way arises out of or relates to this
Agreement, the services of the Trustee hereunder, or the Property or any income earned from
investment of the Property, except for expenses and losses resulting from the Trustee’s gross
negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or
claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends
to seek indemnification under this paragraph, it shall notify the Company in writing of such claim
(hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct
and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the
consent of the Company with respect to the selection of counsel, which consent shall not be
unreasonably withheld. The Company may participate in such action with its own counsel;



     (c) Pay the Trustee an initial acceptance fee, an annual fee and a transaction processing fee
for each disbursement made pursuant to Section 1(i) as set forth on Schedule A hereto,
which fees shall be subject to modification by the parties from time to time. It is expressly
understood that the Property shall not be used to pay such fees and further agreed that said
transaction processing fees shall be deducted by the Trustee from the disbursements made to the
Company pursuant to Section 1(i). The Company shall pay the Trustee the initial acceptance fee and
first year’s fee at the completion of the IPO and thereafter on the anniversary of the Effective
Date. The Trustee shall refund to the Company the annual fee (on a pro rata basis) with respect to
any period after the liquidation of the Trust Fund. The Company shall not be responsible for any
other fees or charges of the Trustee except as set forth in this Section 3(c) and as may be
provided in Section 3(b) hereof (it being expressly understood that the Property shall not be used
to make any payments to the Trustee under such Sections);



     (d) Provide to the Trustee any letter of intent, agreement in principle or definitive
agreement that is executed prior to [•], 2009 in connection with a Business Combination;



     (e) In connection with any vote of the Company’s stockholders regarding a Business
Combination, provide to the Trustee an affidavit or certificate of a firm regularly engaged in the
business of soliciting proxies and tabulating stockholder votes verifying the vote of the Company’s
stockholders regarding such Business Combination; and



     (f) if the Company does not effect a Business Combination within 24 months after completion of
the IPO, the Company’s existence shall cease except for the purposes of the Company winding up its
affairs and liquidating pursuant to Section 278 of the Delaware General Corporation Law, in which
case as promptly as practicable thereafter the Company shall adopt a plan of distribution in
accordance with Section 281(b) of the Delaware General Corporation Law. Upon the Company’s adoption
of such plan of distribution, the Company shall promptly provide the Trustee a Termination Letter
substantially in the form of Exhibit B hereto.



4. Limitations of Liability. The Trustee shall have no responsibility or liability to:




     (a) Take any action with respect to the Property, other than as directed in Section 1 hereof,
and the Trustee shall have no liability to any party except for liability arising out of its own
gross negligence or willful misconduct;



     (b) Institute any proceeding for the collection of any principal and income arising from, or
institute, appear in or defend any proceeding of any kind with respect to, any of the Property
unless and until it shall have received written instructions from the Company given as provided
herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any
expenses incident thereto;



     (c) Change the investment of any Property, other than in compliance with Section 1(c);



     (d) Refund any depreciation in principal of any Property;



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     (e) Assume that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation, or unless the
Company shall have delivered a written revocation of such authority to the Trustee;



     (f) The other parties hereto or to anyone else for any action taken or omitted by it, or any
action suffered by it to be taken or omitted, in good faith and in the exercise of its own best
judgment, except for its gross negligence or willful misconduct. The Trustee may rely conclusively
and shall be protected in acting upon any order, judgment, instruction, notice, demand,
certificate, opinion or advice of counsel (including counsel chosen by the Trustee), statement,
instrument, report or other paper or document (not only as to its due execution and the validity
and effectiveness of its provisions, but also as to the truth and acceptability of any information
therein contained) which is believed by the Trustee, in good faith, to be genuine and to be signed
or presented by the proper person or persons. The Trustee shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this agreement or any of the
terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the
proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall
give its prior written consent thereto;



     (g) Verify the correctness of the information set forth in the Registration Statement (other
than information provided by the Trustee) or to confirm or assure that any acquisition made by the
Company or any other action taken by it is as contemplated by the Registration Statement;



     (h) Prepare, execute and file tax reports, income or other tax returns and pay any taxes with
respect to income and activities relating to the Trust Account, regardless of whether such tax is
payable by the Trust Account or the Company (including but not limited to income tax obligations),
it being expressly understood that as set forth in Section 1(i), if there is any income or other
tax obligation relating to the Trust Account or the Property in the Trust Account, as determined
from time to time by the Company and regardless of whether such tax is payable by the Company or
the Trust, at the written instruction of the Company, the Trustee shall make funds available in
cash from the Property in the Trust Account an amount specified by the Company as owing to the
applicable taxing authority, which amount shall be paid directly to the Company by electronic funds
transfer and the Company shall forward such payment to the taxing authority; or



     (i) Verify calculations, qualify or otherwise approve Company requests for distributions
pursuant to Sections 1(i) and 2 above.



5. Termination. This Agreement shall terminate as follows:




     (a) If the Trustee gives written notice to the Company that it desires to resign under this
Agreement, the Company shall use its reasonable efforts to locate a successor trustee. At such time
that the Company notifies the Trustee that a successor trustee has been appointed by the Company
and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not limited to the transfer
of copies of the reports and statements relating to the Trust Account, whereupon this Agreement
shall terminate; provided, however, that, in the event that the Company does not locate a successor
trustee within ninety days of receipt of the resignation notice from the Trustee, the Trustee may
submit an application to have the Property deposited with the United States District Court for the
Southern District of New York and upon such deposit, the Trustee shall be immune from any liability
whatsoever that arises due to any actions or omissions to act by any party after such deposit;



     (b) At such time that the Trustee has completed the liquidation of the Trust Account in
accordance with the provisions of Section 1(j) hereof, and distributed the Property in accordance
with the provisions of the Termination Letter, this Agreement shall terminate except with respect
to Section 3(b).



6. Miscellaneous.




     (a) The Company and the Trustee each acknowledge that the Trustee will follow the security
procedures set forth below with respect to funds transferred from the Trust Account. The Company
and the Trustee will each restrict access to confidential information relating to such security
procedures to authorized persons. Each



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party must notify the other party immediately if it has reason to believe unauthorized persons
may have obtained access to such information, or of any change in its authorized personnel. In
executing funds transfers, the Trustee will rely upon account numbers or other identifying numbers
of a beneficiary, beneficiary’s bank or intermediary bank, rather than names. The Trustee shall not
be liable for any loss, liability or expense resulting from any error in an account number or other
identifying number, provided it has accurately transmitted the numbers provided.



     (b) This Agreement shall be governed by and construed and enforced in accordance with the laws
of the State of New York, without giving effect to conflict of laws. It may be executed in several
counterparts, each one of which shall constitute an original, and together shall constitute one
instrument. This Agreement or any counterpart may be executed via facsimile or other electronic
transmission, and any such executed facsimile or other electronic copy shall be treated as an
original.



     (c) This Agreement contains the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof. The parties hereto may change, waive, amend or modify any
provision contained herein that may be defective or inconsistent with any other provision contained
herein only upon the written consent of each of the parties hereto; provided that such action shall
not materially adversely affect the interests of the Public Stockholders. Any other change, waiver,
amendment or modification to this Agreement shall be subject to approval by a majority of the
Public Stockholders. As to any claim, cross-claim or counterclaim in any way relating to this
Agreement, each party waives the right to trial by jury.



     (d) The parties hereto consent to the non-exclusive jurisdiction and venue of any state or
federal court located in the City of New York for purposes of resolving any disputes hereunder.



     (e) Any notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and shall be sent by express mail or similar
private courier service, by certified mail (return receipt requested), by hand delivery or by
facsimile transmission:



if to the Trustee, to:



Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, NY 10004

Attn: Steven Nelson and Frank Di Paolo

Fax: (212) 616-7620



if to the Company, to:



NRDC Acquisition Corp.

3 Manhattanville Road

Purchase, NY 10577

Attn: Richard A. Baker, Chief Executive Officer

Fax: (914) 272-8067



with a copy to:



Sidley Austin LLP

787 Seventh Avenue

New York, NY 10019

Attn: Samir A. Gandhi, Esq.

Fax: (212) 839-8654



in either case with a copy on behalf of the Underwriter to:



Banc of America Securities LLC

9 West 57th Street



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New York, NY 10019

Attn: Managing Director (NRDC Acquisition Corp.)

Fax: (646) 313-4784



with a copy to:



Bingham McCutchen LLP

399 Park Avenue

New York, NY 10022

Attn: Floyd I. Wittlin, Esq.

Fax: (212) 752-5378



     (f) This Agreement may not be assigned by the Trustee without the prior consent of the
Company.



     (g) Each of the Trustee and the Company hereby represents that it has the full right and power
and has been duly authorized to enter into this Agreement and to perform its respective obligations
as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or
proceed against the Trust Account, including by way of set-off, and shall not be entitled to any
part of the Property under any circumstance.



     (h) The Trustee hereby waives any and all right, title, interest or claim of any kind
(“Claim”) in or to any distribution of any property held in trust for the Company in the Trust
Account, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any
Claim against the Trust Account for any reason whatsoever.



     (i) The Trustee hereby consents to the inclusion of Continental Stock Transfer & Trust Company
in the Registration Statement and other materials relating to the IPO.



     (j) Each of the Company and Trustee agrees and acknowledges that the Underwriter is a third
party beneficiary of this Agreement.



[Remainder of page intentionally left blank]




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     IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement
as of the date first written above.



	 	 	 	 	 	 	 
	 	 	CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, as Trustee	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Frank A. Di Paolo
 

Frank A. Di Paolo
	 	 
	 

	 	Title:
	 	Trust Officer & CFO	 	 
	 
	 	 	 	 	 	 
	 	 	NRDC ACQUISITION CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Richard A. Baker
 

Richard A. Baker
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






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EXHIBIT A




[LETTERHEAD OF COMPANY]




[INSERT DATE]




Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, NY 10004

Attn: Steven Nelson and Frank Di Paolo




Re: Trust Account No. [•] Termination Letter




Gentlemen:




     Pursuant to Section 1(j) of the Investment Management Trust Agreement between NRDC Acquisition
Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of
[•], 2007 (the “Trust Agreement”), this is to advise you that the Company has entered into an
agreement (“Business Agreement”) with [•] (the “Target Business”) to consummate a business
combination with Target Business (a “Business Combination”) on or about [INSERT DATE]. The Company
shall notify you at least 48 hours in advance of the actual date of the consummation of the
Business Combination (the “Consummation Date”). Defined terms used but not otherwise defined herein
shall have the meaning ascribed to such terms in the Trust Agreement.



     Pursuant to Section 3(e) of the Trust Agreement, we are providing you with [an affidavit] [a
certificate] of ___, which verifies the vote of the Company’s stockholders in connection with
the Business Combination. In accordance with the terms of the Trust Agreement, we hereby authorize
you to commence liquidation of the Trust Account to the effect that, on the Consummation Date, all
of the funds held in the Trust Account will be immediately available for transfer to the account or
accounts that the Company shall direct in writing on the Consummation Date.



     On the Consummation Date (i) counsel for the Company shall deliver to you written notification
that the Business Combination has been consummated and (ii) the Company shall deliver to you
written instructions with respect to the transfer of the funds held in the Trust Account (the
“Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the
Trust Account immediately upon your receipt of the counsel’s letter and the Instruction Letter, in
accordance with the terms of the Instruction Letter. In the event that certain deposits held in the
Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the
Company of the same and the Company shall direct you as to whether such funds should remain in the
Trust Account and be distributed after the Consummation Date to the Company or, with respect to the
Deferred Discount, to the Underwriter. Upon the distribution of all the funds in the Trust Account
pursuant to the terms hereof, the Trust Agreement shall be terminated.



     In the event that the Business Combination is not consummated on the Consummation Date
described in the notice thereof and we have not notified you on or before the original Consummation
Date of a new Consummation Date, then, upon receipt of written instructions from the Company, the
funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the
business day immediately following the Consummation Date as set forth in the notice.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	NRDC ACQUISITION CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	  

Richard
A. Baker
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






 









 






EXHIBIT B




[LETTERHEAD OF COMPANY]




[INSERT DATE]




Continental Stock Transfer & Trust Company

17 Battery Place, 8th Floor

New York, NY 10004

Attn: Steven Nelson and Frank Di Paolo




Re: Trust Account No. [•] Termination Letter




Gentlemen:




     Pursuant to paragraph 1(j) of the Investment Management Trust Agreement between NRDC
Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”),
dated as of [•], 2007 (the “Trust Agreement”), this is to advise you that the Company’s existence
has ceased due to the Company’s inability to effect a Business Combination within the time frame
specified in the Company’s prospectus relating to its IPO. Defined terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in the Trust Agreement.



     In accordance with the terms of the Trust Agreement, we hereby authorize you to commence
liquidation of the Trust Account. You will notify the Company in writing as to when all of the
funds in the Trust Account will be available for immediate transfer (the “Transfer Date”) in
accordance with the Company’s plan of distribution attached hereto. You shall commence distribution
of such funds in accordance with the terms of such plan of distribution and you shall oversee the
distribution of the funds. Upon the distribution of all the funds in the Trust Account, your
obligations under the Trust Agreement shall be terminated and the Trust Account shall be closed.



	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	NRDC ACQUISITION CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	  

Richard
A. Baker
	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 






 









 






SCHEDULE A




Schedule of fees pursuant to Section 3(c) of Investment Management Trust Agreement

between NRDC Acquisition Corp. and

Continental Stock Transfer & Trust Company




	 	 	 	 	 	 	 
	Fee Item	 	Time and method of payment	 	Amount
	Initial acceptance fee

	 	Initial closing of IPO by
wire transfer
	 	$	1,000	 
	 
	 	 	 	 	 	 
	Annual fee

	 	First year, initial
closing of IPO by wire
transfer; thereafter on
the anniversary of the
effective date of the IPO
by wire transfer or check
	 	$	3,000	 
	 
	 	 	 	 	 	 
	Transaction
processing fee for
disbursements to
Company under
Sections 1(i) and 2

	 	Deduction by Trustee from
disbursement made to
Company under Section 2
	 	$	250	 






Dated: October 9, 2007




	 	 	 	 	 	 	 
	 	 	Agreed:	 	 
	 
	 	 	 	 	 	 
	 	 	NRDC Acquisition Corp.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Richard A. Baker
 

	 	 
	 

	 	Title:
	 	Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	Continental Stock Transfer & Trust Company	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Frank A. Di Paolo
 

	 	 
	 

	 	Title:
	 	Trust Officer & CFO