|
UNITED STATES
|
|
SECURITIES
AND EXCHANGE COMMISSION
|
|
Washington,
D.C. 20549
|
|
FORM
10-K/A (Amendment No. 1)
|
| x |
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
|
|
For
the fiscal year ended December 31,
2008
|
or
| o |
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
|
|
|
For
the transition period from ____ to
____
|
Commission
file number:
(Exact
name of registrant as specified in its charter)
|
Delaware
|
26-0500600
|
|
(State
or other jurisdiction
|
(I.R.S.
Employer
|
|
of
incorporation or organization)
|
Identification
No.)
|
|
3
Manhattanville Road, Purchase, NY
|
10577
|
|
(Address
of principal executive offices)
|
(Zip
Code)
|
Registrant’s
telephone number, including area code: (914) 272-8067
Securities
registered pursuant to Section 12(b) of the Act:
|
Title
of each class
|
Name
of each exchange on which registered
|
|
Units,
each consisting of one share of Common Stock
|
NYSE
Alternext U.S.
|
|
and
one Warrant
|
|
|
Common
Stock, par value $0.0001 per share
|
NYSE
Alternext U.S.
|
|
Common
Stock Purchase Warrants
|
NYSE
Alternext U.S.
|
Securities
registered pursuant to Section 12(g) of the Act:
None
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes o No x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(a) of the Act. Yes o No x
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934
during the preceding 12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes x No o
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the
best of registrant’s knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. x
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer or a non-accelerated filer.
Large
Accelerated Filer o Accelerated
Filer x Non-Accelerated
Filer o
Indicate
by check mark whether the registrant is a shell company (as defined in
Rule 12b-2 of the Act). Yes x No
o
The
aggregate market value of the voting common and non-voting equity held by
non-affiliates of the registrant, based on the closing price of the registrant’s
Units, each consisting of one share of the registrant’s common stock and one
warrant exercisable for an additional share of common stock, on June 30, 2008
was approximately $386,262,000.00.
The
number of outstanding shares of the registrant’s common stock on March 13, 2009
was 51,750,000 shares.
DOCUMENTS
INCORPORATED BY REFERENCE: None
NRDC
Acquisition Corp. is filing this Amendment No. 1 to its Annual Report on
Form 10-K (“Amended Report”) to amend its Annual Report on Form 10-K
for the fiscal year ended December 31, 2008, filed with the Securities and
Exchange Commission on March 13, 2009 (“Original Report”). The Amended Report is
being filed both to include the signature of the principal accounting officer as
required by Instruction D(2)(a) to Form 10-K and to reflect the introductory
language of paragraph 4 as required by Item 601(b)(31) of Regulation S-K. No
other items or disclosures in the Original Report are being amended, and
accordingly this Amendment No.1 does not otherwise change or update any
information that was presented in the Original Report.
SIGNATURES
Pursuant
to the requirements of Section 13 or 15(d) of the Securities Exchange Act
of 1934, the Registrant has duly caused this Report to be signed on its behalf
by the undersigned, thereunto duly authorized
|
Date:
May 28, 2009
|
NRDC ACQUISITION CORP. | ||
|
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
| (Principal Financial Officer) | |||
|
(Principal
Accounting Officer)
|
|||
Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has been
signed by the following persons in the capacities and on the dates
indicated. This document may be executed by the signatories hereto on
any number of counterparts, all of which shall constitute one and the same
instrument.
|
Signature
|
Title
|
Date
|
||
|
/s/
Richard
A. Baker
|
Chief
Executive Officer
|
May 28,
2009
|
||
|
Richard
A. Baker
|
(Principal
Financial Officer)
|
|||
|
(Principal
Accounting Officer)
|
||||
|
/s/
William
L. Mack
|
Chairman
of the Board
|
May 28,
2009
|
||
|
William
L. Mack
|
||||
|
/s/
Robert
C. Baker
|
Vice–Chairman
of the Board
|
May 28,
2009
|
||
|
Robert
C. Baker
|
||||
|
/s/
Lee
S. Neibart
|
President
and Director
|
May 28,
2009
|
||
|
Lee
S. Neibart
|
||||
|
/s/
Michael
J. Indiveri
|
Director
|
May 28,
2009
|
||
|
Michael
J. Indiveri
|
||||
|
/s/
Edward
H. Meyer
|
Director
|
May 28,
2009
|
||
|
Edward
H. Meyer
|
||||
|
/s/
Laura
Pomerantz
|
Director
|
May 28,
2009
|
||
|
Laura
Pomerantz
|
||||
|
/s/
Vincent
Tese
|
Director
|
May 28,
2009
|
||
|
Vincent
Tese
|
||||
|
/s/
Ronald
W. Tysoe
|
Director
|
May 28,
2009
|
||
|
Ronald
W. Tysoe
|
Exhibit 31.1
CERTIFICATION
I,
Richard A. Baker, certify that:
1. I
have reviewed this annual report on Form 10-K of NRDC Acquisition
Corp.;
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
4. The
registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered
by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
5. The
registrant’s other certifying officer(s) and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of
directors (or persons performing the equivalent functions):
(a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
(b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
| (Principal Executive Officer) | |||
Exhibit 31.2
CERTIFICATION
I,
Richard A. Baker , certify that:
1. I
have reviewed this annual report on Form 10-K of NRDC Acquisition
Corp.;
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
4. The
registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered
by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
5. The
registrant’s other certifying officer(s) and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of
directors (or persons performing the equivalent functions):
(a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
(b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
| (Principal Financial Officer) | |||
Exhibit 31.3
CERTIFICATION
I,
Richard A. Baker , certify that:
1. I
have reviewed this annual report on Form 10-K of NRDC Acquisition
Corp.;
2. Based
on my knowledge, this report does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which such statements were made, not misleading
with respect to the period covered by this report;
3. Based
on my knowledge, the financial statements, and other financial information
included in this report, fairly present in all material respects the financial
condition, results of operations and cash flows of the registrant as of, and
for, the periods presented in this report;
4. The
registrant’s other certifying officer and I are responsible for establishing and
maintaining disclosure controls and procedures (as defined in Exchange Act
Rules 13a-15(e) and 15d-15(e)) and internal control over financial
reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f))
for the registrant and have:
(a)
Designed such disclosure controls and procedures, or caused such disclosure
controls and procedures to be designed under our supervision, to ensure that
material information relating to the registrant, including its consolidated
subsidiaries, is made known to us by others within those entities, particularly
during the period in which this report is being prepared;
(b)
Designed such internal control over financial reporting, or caused such internal
control over financial reporting to be designed under our supervision, to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles;
(c)
Evaluated the effectiveness of the registrant’s disclosure controls and
procedures and presented in this report our conclusions about the effectiveness
of the disclosure controls and procedures, as of the end of the period covered
by this report based on such evaluation; and
(d)
Disclosed in this report any change in the registrant’s internal control over
financial reporting that occurred during the registrant’s most recent fiscal
quarter (the registrant’s fourth fiscal quarter in the case of an annual report)
that has materially affected, or is reasonably likely to materially affect, the
registrant’s internal control over financial reporting; and
5. The
registrant’s other certifying officer(s) and I have disclosed, based on our most
recent evaluation of internal control over financial reporting, to the
registrant’s auditors and the audit committee of the registrant’s board of
directors (or persons performing the equivalent functions):
(a) All
significant deficiencies and material weaknesses in the design or operation of
internal control over financial reporting which are reasonably likely to
adversely affect the registrant’s ability to record, process, summarize and
report financial information; and
(b) Any
fraud, whether or not material, that involves management or other employees who
have a significant role in the registrant’s internal control over financial
reporting.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
|
(Principal
Accounting Officer)
|
|||
Exhibit 32.1
CERTIFICATION
PURSUANT TO
18 U.S.C.
SECTION 1350
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Annual Report of NRDC Acquisition Corp. (the “Company”) on
Form 10-K for the period ended December 31, 2008 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), I, Richard
A. Baker, Chief Executive Officer of the Company, certify pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
1. The
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
2. The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operation of the Company.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
| (Principal Executive Officer) | |||
The
foregoing certification is being furnished as an exhibit to the Report pursuant
to Item 601(b) of Regulation S-K and Section 906 of the Sarbanes-Oxley Act of
2002 (subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United
States Code) and, accordingly, is not being filed as part of the Report for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and
is not incorporated by reference into any filings of the Company, whether made
before or after the date hereof, regardless of any general incorporation
language in such filing.
Exhibit 32.2
CERTIFICATION
PURSUANT TO
18 U.S.C.
SECTION 1350
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Annual Report of NRDC Acquisition Corp. (the “Company”) on
Form 10-K for the period ended December 31, 2008 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), I, Richard
A. Baker, Chief Executive Officer of the Company, certify pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
1. The
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
2. The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operation of the Company.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
| (Principal Financial Officer) | |||
The
foregoing certification is being furnished as an exhibit to the Report pursuant
to Item 601(b) of Regulation S-K and Section 906 of the Sarbanes-Oxley Act of
2002 (subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United
States Code) and, accordingly, is not being filed as part of the Report for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and
is not incorporated by reference into any filings of the Company, whether made
before or after the date hereof, regardless of any general incorporation
language in such filing.
Exhibit 32.3
CERTIFICATION
PURSUANT TO
18 U.S.C.
SECTION 1350
AS
ADOPTED PURSUANT TO
SECTION
906 OF THE SARBANES-OXLEY ACT OF 2002
In
connection with the Annual Report of NRDC Acquisition Corp. (the “Company”) on
Form 10-K for the period ended December 31, 2008 as filed with the
Securities and Exchange Commission on the date hereof (the “Report”), I, Richard
A. Baker, Chief Executive Officer of the Company, certify pursuant to
18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002, that:
1. The
Report fully complies with the requirements of Section 13(a) or 15(d) of
the Securities Exchange Act of 1934; and
2. The
information contained in the Report fairly presents, in all material respects,
the financial condition and results of operation of the Company.
|
Date: May 28, 2009
|
By:
|
/s/ RICHARD A. BAKER | |
|
Richard
A. Baker
|
|||
| Chief Executive Officer | |||
|
(Principal
Accounting Officer)
|
|||
The
foregoing certification is being furnished as an exhibit to the Report pursuant
to Item 601(b) of Regulation S-K and Section 906 of the Sarbanes-Oxley Act of
2002 (subsections (a) and (b) of Section 1350, Chapter 63 of Title 18, United
States Code) and, accordingly, is not being filed as part of the Report for
purposes of Section 18 of the Securities Exchange Act of 1934, as amended, and
is not incorporated by reference into any filings of the Company, whether made
before or after the date hereof, regardless of any general incorporation
language in such filing.
| May 28, 2009 |
Mr. John
Reynolds
Assistant
Director
Securities
and Exchange Commission
Division
of Corporation Finance
100 F
Street, NE - Mail Stop 3561
Washington,
D.C. 20549
|
Re:
|
NRDC
Acquisition Corp.
|
Form 10-K for fiscal year ended
December 31, 2008
Filed March 13, 2009
File No.
001-33749
Dear Mr.
Reynolds:
Enclosed
for review by the Securities and Exchange Commission (the “Commission”)
is a copy of the Form 10-K/A (the “Form
10-K/A”) of NRDC Acquisition Corp., a Delaware corporation (the “Company”). The
Form 10-K/A has been revised to respond to the comments of the Staff of the
Commission (the “Staff”)
that were contained in your letter dated May 19, 2009 (the “Comment
Letter”).
Set forth
below are the responses of the Company to the comments in the Comment
Letter. For ease of reference, each comment contained in the Comment
Letter is printed below in bold and is followed by the response of the
Company.
Signatures
|
|
1.
|
Please
include the signature of your controller or principal accounting officer
as required by Form 10-K. See Instruction D(2)(a) to Form
10-K. If your Controller or Principal Accounting Officer has
signed the Form 10-K, but the signature pages does not indicate that the
person signing occupies that position, then please confirm in a
supplemental letter that your Controller or Principal Accounting Officer
has signed the form and that in future filings you will indicate each
capacity in which the officers are signing the report. See
Instruction D(2)(b) to Form 10-K. If you file an amendment for
comment two below, please include your Controller or Principal Accounting
Officer’s signature.
|
|
|
The
Company has complied with the Staff’s comment. Richard A. Baker,
as Principal Accounting Officer has signed the revised Form 10-K/A and the
Company confirms to the Staff that in future filings, the Principal
Accounting Officer of the Company will execute all such filings and that
the Company will indicate in each filing the capacity of all officers
signing such filing.
|
Exhibits 31.1. and
31.2
|
|
2.
|
We
note your certifications at Exhibits 31.1 and 31.2 do not reflect the
introductory language of paragraph 4 as required by Item 601(b)(31) of
Regulation S-K. Please amend your Form 10-K to conform your
certifications to that in Item 601(b)(31) of Regulation
S-K. Rather than file a full amendment, you may file an
abbreviated amendment to your Form 10-K consisting of a cover page,
explanatory note, signature page, and paragraphs 1, 2, 4 and 5 of these
certifications.
|
The Company has complied with the
Staff’s comment.
Closing
Comments
As requested by the Staff, the Company
acknowledges that:
|
|
·
|
it
is responsible for the adequacy and accuracy of the disclosure in its
filings required to be made under the Securities Exchange Act of 1934, as
amended;
|
|
|
·
|
Staff
comments or changes to disclosure in response to Staff comments do not
foreclose the Commission from taking any action with respect to such
filings; and
|
|
|
·
|
the
Company may not assert Staff comments as a defense in any proceeding
initiated by the Commission or any person under the federal securities
laws of the United States
|
******
Should
you wish to discuss the enclosed materials at any time, please do not hesitate
to contact our counsel, Sam Gandhi at Sidley Austin LLP.
| Very truly yours, | ||
| /s/ Richard A. Baker | ||
| Richard A. Baker | ||
cc: Samir
A. Gandhi (Sidley Austin LLP)