Lee Neibart
Exhibit
10.5
Xxx
Xxxxxxx
[•],
2007
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Banc
of
America Securities LLC
0
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
XX 00000
Re:
NRDC Acquisition Corp. Initial Public Offering
Gentlemen:
This
letter agreement (this
“Letter Agreement”) is being delivered to you in
accordance with the Underwriting Agreement (the “Underwriting
Agreement”) entered into by and between NRDC Acquisition Corp., a
Delaware corporation (the “Company”), and Banc of
America Securities LLC, a Delaware limited liability company, as representative
of the several underwriters (the “Underwriters”),
relating to an underwritten initial public offering (the
“Offering”), of 30,000,000 of the Company’s units (the
“Units”), each comprised
of one share of the Company’s
common stock, par value $0.0001 per share (the “Common
Stock”), and one warrant exercisable for one share of Common Stock
(each, a “Warrant”). The Units sold in the Offering
will be listed and traded on the American Stock Exchange pursuant to a
Registration Statement on Form S-1 and prospectus (the
“Prospectus”) filed by the Company with the Securities
and Exchange Commission (the
“SEC”). Certain capitalized terms used
herein are defined in Section 14.
In
order to induce the Company and the
Underwriters to enter into the Underwriting Agreement and to proceed with
the
Offering and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agrees
with
the Company and the Underwriters as follows:
|
1.
|
The
undersigned hereby agrees that in the event that the Company fails
to
consummate a Business Combination within 24 months after the date
of the
final Prospectus relating to the Offering, the undersigned shall
take all
reasonable steps to (a) cause the Trust Account to be liquidated
and its
assets to be distributed to the Public Stockholders and (b) cause
the
Company to be liquidated as soon as reasonably practicable. The
undersigned agrees that in connection with any cessation of the
corporate
existence of the Company, the undersigned will take all reasonable
steps
to cause the Company to adopt a plan of distribution in accordance
with
Section 281(b) of the General Corporation Law of the State of Delaware
or
any successor provision thereto.
|
|
2.
|
With
respect to such undersigned’s Insiders Shares, the undersigned hereby
waives (a) any and all right, title, interest or claim of any kind
in or
to any distributions of the Trust Account as a result of any liquidation
of the Company (“Claim”), and to any and all
amounts distributed in connection with a liquidation of the Company,
and
hereby agrees to reimburse the Company for any distribution of
the Trust
Account received by the undersigned in respect of such undersigned’s
Insiders Shares; and (b) any and all right to exercise conversion
rights
in connection with a proposed Business Combination. The undersigned
acknowledges and agrees that, upon the Company’s liquidation, all warrants
relating to the Company that are owned by the undersigned will
terminate
worthless. The undersigned hereby waives any Claim the
undersigned may have in the future as a result of, or arising out
of, any
contracts or agreements with the Company and the undersigned will
not seek
recourse against the Trust Account for any reason
whatsoever.
|
|
3.
|
In
the event of the liquidation of the Trust Account, the undersigned
agrees
to indemnify and hold harmless the Company, on a joint and several
basis
with the other Founders, against any and all claims by any third
party for
services rendered, products sold or financing provided to the Company
or
by any entity that the Company has entered into a letter of intent
or an
acquisition agreement with, but only to the extent necessary to
ensure
that such claims do not reduce the amount of funds in the Trust
Account
and only if any such third party has not executed an agreement
in writing
waiving claims against the Trust Account. In the event the
Company’s assets held outside the Trust Account are insufficient to pay
the costs and expenses of liquidation of the Company, the undersigned
agrees to indemnify and hold harmless the Company, on a joint and
several
basis with the other Founders, against any costs and expenses of
such
liquidation.
|
|
4.
|
(a) With
respect to the undersigned’s Insiders Shares, the undersigned shall not,
until one (1) year after the consummation of an initial Business
Combination (the “Lock-Up Period”), (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 Insiders Shares, (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 Insiders Shares, whether any such
transaction
is to be settled by delivery of shares of Common Stock, in cash
or
otherwise, or (iii) publicly announce an intention to effect any
transaction specified in clause (i) or
(ii).
|
(b) Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Insiders Shares
during the applicable Lock-Up Period (as applicable) (i) to a member of the
undersigned’s immediate family or an affiliate of the undersigned, (ii) to a
trust, the beneficiary of which is a member of the undersigned’s immediate
family, (iii) by virtue of the laws of descent and distribution upon death
of
the undersigned, (iv) to other officers or directors of the Company, (v)
pursuant to a qualified domestic relations order, or (vi) in the event of
a
merger, capital stock exchange, stock purchase, asset acquisition or other
similar transaction which results in all the Company’s stockholders having the
right to exchange their shares of Common Stock or other securities for cash,
securities or other property subsequent to the Company’s consummating a Business
Combination with a target business; provided, however, that the
permissive transfers pursuant to clauses (i) — (v) may be implemented only upon
the respective transferee’s written agreement to be bound by the terms and
conditions of this Letter Agreement. During the applicable Lock-Up Period,
the
undersigned shall not grant a security interest in the undersigned’s Insiders
Shares.
(c) If
(i) during the last 17 days of the applicable Lock-Up Period, the Company
issues
material news or a material event relating to the Company occurs or (ii)
before
the expiration of the applicable Lock-Up Period, the Company announces that
material news or a material event 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.
(d) The
undersigned agrees that after the applicable Lock-Up Period has elapsed,
the
undersigned’s Insiders Shares 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.
|
5.
|
The
undersigned hereby agrees that until after the consummation of
a Business
Combination, the undersigned (a) shall not 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,
any
securities or other interests owned by the undersigned in NRDC
Real Estate
Advisors, LLC; and (b) shall cause NRDC Real Estate Advisors, LLC
to not
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, any securities or other interests owned
by NRDC
Real Estate Advisors, LLC in NRDC Capital Management,
LLC.
|
2
|
6.
|
The
undersigned agrees that in connection with any proposed Business
Combination, the undersigned will vote (a) all Insiders Shares
owned by
the undersigned in accordance with the majority of the votes cast
by the
Public Stockholders in connection with the vote required to approve
the
Business Combination; (b) all shares of Common Stock acquired by
the
undersigned in the Offering or in the secondary market in favor
of the
Business Combination; and (c) all Insiders Shares and all shares
of Common
Stock acquired by the undersigned in the Offering or in the secondary
market in favor of an amendment to the Second Restated Certificate
providing for the Company’s perpetual
existence.
|
|
7.
|
The
undersigned agrees to serve as President and as a member of the
Board of
Directors of the Company until the earlier of the consummation
by the
Company of a Business Combination or the liquidation of the Company;
provided, however, that nothing herein shall be construed as
providing a right of the undersigned to maintain any position if
removed
by proper corporate action. The undersigned’s biographical information
furnished to the Company and the Underwriters and attached hereto
as
Exhibit A is true and accurate in all material respects, does not
omit any material information with respect to the undersigned’s background
and contains all of the information required to be disclosed pursuant
to
Section 401 of Regulation S-K, promulgated under the Securities
Act. The
undersigned’s completed questionnaires furnished to the Company and the
Underwriters and attached hereto as Exhibit B are true and accurate
in all material respects. The undersigned represents and warrants
that:
|
(a) the
undersigned is not subject to or a respondent in any legal action for, any
injunction, cease-and desist order or order or stipulation to desist or refrain
from any act or practice relating to the offering of securities in any
jurisdiction;
(b) the
undersigned has never been convicted of or pleaded guilty to any crime (i)
involving any fraud or (ii) relating to any financial transaction or handling
of
funds of another person, or (iii) pertaining to any dealings in any securities
and the undersigned is not currently a defendant in any such criminal
proceeding;
(c) the
undersigned has never been suspended or expelled from membership in any
securities or commodities exchange or association or had a securities or
commodities license or registration denied, suspended or revoked;
and
(d) the
undersigned believes that, together as a group, the Founders are capable
of
funding a shortfall in the Trust Account to satisfy their foreseeable
indemnification obligations under Section 3 above.
|
8.
|
Except
as disclosed in the Prospectus, neither the undersigned nor any
family
member or affiliate of the undersigned will be entitled to receive,
and no
such person will accept:
|
(a) any
compensation, finder’s fee, reimbursement or cash payment from the Company for
services rendered to the Company prior to or in connection with the consummation
of a Business Combination, other than reimbursement from the Company for
the
undersigned’s reasonable out-of-pocket expenses related to the Offering and
identifying, investigating and consummating a Business Combination;
and
(b) any
finder’s fee, consulting fee or any other compensation or fees from the Company
or any other person or entity in the event the undersigned or any family
member
or affiliate of the undersigned originates a Business Combination.
|
9.
|
The
undersigned acknowledges and agrees that the Company will not consummate
any Business Combination with any entity that is affiliated with
any
Insiders or any of their respective affiliates unless the Company
obtains
an opinion from an independent investment banking firm that the
Business
Combination is fair to the Company’s stockholders from a financial
perspective.
|
3
|
10.
|
The
undersigned has full right and power, without violating any agreement
by
which the undersigned is bound (including, without limitation,
any
non-competition or non-solicitation agreement), to enter into this
Letter
Agreement and to serve as an officer and a director of the
Company. The undersigned hereby consents to being named in the
Prospectus.
|
|
11.
|
The
undersigned agrees that until the consummation of a Business Combination
or the cessation of the corporate existence of the Company, whichever
is
earlier, the undersigned will not participate in the formation
of, or
accept any position as a director or officer with, any blank check
company
or any entity commonly regarded as a “special purpose acquisition
company.”
|
|
12.
|
The
undersigned agrees that until the consummation of a Business Combination,
the undersigned will not recommend or take any action to amend
or waive
any provisions of Article Fifth or Article Sixth of the Second
Restated
Certificate.
|
|
13.
|
The
undersigned hereby agrees that, on a date that is within the five-day
period following the date that is 30 days after the date of the
Underwriting Agreement or, if earlier, the date the Underwriters
terminate
their option to purchase Optional Units (as defined in the Underwriting
Agreement) pursuant to the terms of the Underwriting Agreement,
the
undersigned will forfeit to the Company, and the Company shall
accept from
the undersigned, at no cost, the number of shares of Common Stock
determined by multiplying (a) the product of (i) 1,125,000, multiplied
by
(ii) a fraction, (x) the numerator of which is the number of Insiders
Shares held by the undersigned, and (y) the denominator of which
is the
number of Insiders Shares held by all Insiders, by (b) a fraction,
(i) the
numerator of which is 4,500,000 minus the number of shares of Common
Stock
purchased by the Underwriters upon the exercise of their option
to
purchase Optional Units, and (ii) the denominator of which is
4,500,000.
|
|
14.
|
As
used herein, (a) a “Business Combination” shall
mean the Company’s initial acquisition of one or more operating
businesses, through a merger, capital stock exchange, stock purchase,
asset acquisition, or other similar business combination, having
an
aggregate fair market value of at least eighty percent (80%) of
the
balance held in the Trust Account (excluding the amount held in
the Trust
Account representing the deferred underwriting discounts and commissions
and taxes payable) at the time of such acquisition; (b)
“Founders” shall mean NRDC Capital Management
LLC, Xxxxxxx X. Xxxx, Xxxxxx X. Xxxxx, Xxxxxxx X. Xxxxx and Xxx
Xxxxxxx;
(c) “Insiders” shall mean the Founders and all
other officers, directors and stockholders of the Company immediately
prior to the Offering; (d) “Insiders Shares”
shall mean all of the shares of Common Stock owned by a Founder
prior to
the Offering (and shall include any shares of Common Stock issued
as
dividends with respect to such shares); (e) “Public
Stockholders” shall mean the holders of securities issued in
the Offering; (f) “Second Restated Certificate”
shall mean the Company’s Second Amended and Restated Certificate of
Incorporation, as the same may be amended from time to time; and
(g)
“Trust Account” shall mean the trust account
established for the benefit of the Public Stockholders into which
a
portion of the net proceeds of the Offering will be
deposited.
|
|
15.
|
The
undersigned acknowledges and understands that the Company will
rely upon
the agreements, representations and warranties set forth herein
in
proceeding with the Offering. Nothing contained herein shall be
deemed to
render the Underwriters a representative of, or a fiduciary with
respect
to, the Company, its stockholders, or any creditor or vendor of
the
Company with respect to the subject matter
hereof.
|
|
16.
|
This
Letter Agreement constitutes the entire agreement and understanding
of the
parties hereto in respect of its subject matter and supersedes
all prior
understandings, agreements, or representations by or among the
parties
hereto, written or oral, to the extent they relate in any way to
the
subject matter hereof or the transactions contemplated
hereby. This Letter Agreement may not be amended, modified or
waived as to any particular provision, except by a written instrument
executed by all parties hereto. No party hereto may assign
either this Letter Agreement or any of its rights, interests, or
obligations hereunder without the prior written approval of the
other
parties hereto. Any purported assignment in violation of this Section
16
shall be void and ineffectual and shall not operate to transfer
or assign
any interest or title to the purported assignee. This Letter
Agreement, the entire relationship of the parties
|
4
|
|
hereto,
and any litigation between the parties (whether grounded in contract,
tort, statute, law or equity) shall be governed by, construed
in
accordance with, and interpreted pursuant to the laws of the
State of New
York, without giving effect to its choice of laws principles.
The
undersigned hereby agrees that any action, proceeding or claim
against the
undersigned arising out of, or relating in any way to this Letter
Agreement shall be brought and enforced in the courts of the
State of New
York or the United States District Court for the Southern District
of New
York, and irrevocably submits to such jurisdiction. The
undersigned hereby irrevocably and unconditionally waives the
right to a
trial by jury in any action, suit, counterclaim or other proceeding
(whether based on contract, tort or otherwise) arising out of,
connected
with or relating to this Letter Agreement. This Letter
Agreement shall be binding on the undersigned and such person’s respective
heirs, personal representatives, successors and assigns. This
Letter
Agreement shall terminate on the earlier of (a) the expiration
of the
Lock-Up Period applicable to the undersigned’s Insiders Shares and (b) the
liquidation of the Company; provided that such termination shall
not
relieve the undersigned from liability for any breach of this
Letter
Agreement prior to its termination; and provided further that
Section 3 of
this Letter Agreement shall survive the termination of this Letter
Agreement.
|
[SIGNATURES
COMMENCE ON NEXT PAGE]
5
Sincerely,
XXX
XXXXXXX
_________________________________
Accepted
and agreed:
By:_________________________________
Name:
Title:
BANC
OF
AMERICA SECURITIES LLC
By:_________________________________
Name:
Title:
6
EXHIBIT
A
INFORMATION
FURNISHED TO THE COMPANY
7
EXHIBIT
B
QUESTIONNAIRE
8
