FORM OF RIGHT OF FIRST OFFER AGREEMENT
Exhibit
10.17
FORM
OF RIGHT OF FIRST OFFER AGREEMENT
THIS
RIGHT OF FIRST OFFER AGREEMENT (the “Agreement”) is
made as of [•], 2007 by and among NRDC Acquisition Corp. (the
“Company”), NRDC Capital Management, LLC, NRDC Real Estate
Advisors, LLC, NRDC Equity Partners LLC (the preceding three entities, the
“Associated Entities”), Xxxxxxx Xxxx, Xxxxxx Xxxxx, Xxxxxxx
Xxxxx and Xxx Xxxxxxx (the “Associated Persons”), and each of
the Independent Directors (as defined below) of the Company.
WHEREAS,
the Company has entered into an Underwriting Agreement (the
“Underwriting Agreement”) with Banc of America Securities LLC,
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”); and
WHEREAS,
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; and
WHEREAS,
each of the Associated Persons is an (i) officer of the Company and director
of
the Company and (ii) affiliated with the Associated Entities; and
WHEREAS,
each of Messrs. Xxxxxx Xxxxx, Xxxxxxx Xxxxxxxx, Xxxxxx Xxxxx, Xxxxxxx Xxxx
and
Xx. Xxxxx Xxxxxxxxx is an independent director of the Company (each, an
“Independent Director”);
WHEREAS,
the Company, the Associated Entities, the Associated Persons and the Independent
Directors desire to enter into this Agreement to minimize potential conflicts
of
interest which may arise from multiple corporate affiliations,
IT
IS
AGREED:
1. Until
the earlier of the Company’s completion of a Business Combination (as defined in
the Underwriting Agreement), the liquidation of the Company, or until, in the
case of each Independent Director, such time as when such Independent Director
ceases to be a director of the Company, the Associated Entities, the Associated
Persons and the Independent Directors each agree to:
(a) present
to the Company for its consideration, prior to presentation to any other company
or entity, any opportunity that each such Associated Entity, Associated Person
or Independent Director may have to enter into a business combination with
an
operating business, subject to, in the case of each such Associated Person
or
Independent Director, any pre-existing fiduciary obligations such Associated
Person or Independent Director might have, in which case such Associated Person
or Independent Director, as applicable, will not present any potential business
combination to the Company until after he or she has presented such potential
business combination to each company or entity to which he or she has a
pre-existing fiduciary obligation and each such company or entity has determined
not to pursue such potential business combination;
(b) cause
companies or entities under their management or control (including, without
limitation, the Associated Entities) to present all opportunities to enter
into
a business combination with an operating business to the Company before any
other company or entity; and
(c) not,
and shall cause each other company or entity under their management or control
(including, without limitation, the Associated Entities) not to, pursue a
business combination with an operating business unless and until the Board
of
Directors of the Company, including a majority of the disinterested Independent
Directors, has determined that the Company will not pursue such business
combination.
2. 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 conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. It may be executed in several original or facsimile
counterparts, each one of which shall constitute an original, and together
shall
constitute but one instrument.
3. The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York, Borough of Manhattan, for purposes of
resolving any disputes hereunder.
4. Any
notice or request to be given in connection with 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
Associated Entities, the Associated Persons or the Independent Directors, as
applicable, to:
NRDC
Capital Management, LLC
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
NRDC
Real
Estate Advisors, LLC
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
NRDC
Equity Partners
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxxx
X. Xxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxx
X.
Xxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxxx
X. Xxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxx
X.
Xxxxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxx
X.
Xxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxx
Xxxxxxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
2
Xxxxxxx
X. Xxxxxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxx
X.
Xxxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Xxxxxxx
Xxxx
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
if
to the
Company, to:
NRDC
Acquisition Corp.
0
Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attn: Xxxxxxx
Xxxxxx
Fax
No.: (000) 000-0000
with
a
copy to:
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: Xxxxx
X. Xxxxxx, Esq.
Fax
No.:
( 000) 000-0000
5. Each
of the Associated Entities 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.
6. This
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 Agreement may not be amended, modified
or
waived as to any particular provision, except by a written instrument executed
by all parties hereto.
IN
WITNESS WHEREOF, the parties have duly executed this Right of First Offer
Agreement as of the date first written above.
| NRDC CAPITAL MANAGEMENT, LLC | |||
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By:
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| Title: | |||
3
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NRDC
REAL ESTATE ADVISORS, LLC
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By:
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| Title: | |||
| NRDC EQUITY PARTNERS LLC | |||
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By:
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| Title: | |||
| XXXXXXX X. XXXX | |||
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| XXXXXX X. XXXXX | |||
| XXXXXXX X. XXXXX | |||
| XXX X. XXXXXXX | |||
| XXXXXX X. XXXXX | |||
| XXXXX XXXXXXXXX | |||
| XXXXXXX X. XXXXXXXX | |||
| XXXXXX X. XXXXX | |||
| XXXXXXX XXXX | |||
| NRDC ACQUISITION CORP. | |||
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By:
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| Title: | |||
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