Michael J. Indiveri
Exhibit
10.6
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▇. ▇▇▇▇▇▇▇▇
[•],
2007
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▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Banc
of
America Securities LLC
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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 11.
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:
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1.
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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.
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2.
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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.
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3.
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(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).
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(b) Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Insiders Shares
during the Lock-Up Period (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 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 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.
(d) The
undersigned agrees that after the 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.
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4.
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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.
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5.
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The
undersigned agrees to serve 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:
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(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;
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(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; and
(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.
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6.
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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:
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(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.
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7.
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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.
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8.
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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 a director of the Company. The
undersigned hereby consents to being named in the
Prospectus.
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9.
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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.”
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10.
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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.
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11.
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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, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇▇;
(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 an Insider
prior to
the Offering (and shall include any shares of Common Stock issued
as
dividends with respect to such
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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.
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12.
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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.
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13.
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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
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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 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.
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[SIGNATURES
COMMENCE ON NEXT PAGE]
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| Sincerely, | |||
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| Accepted and agreed: |
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| NRDC ACQUISITION CORP. |
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| BANC OF AMERICA SECURITIES LLC |
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5
EXHIBIT
A
INFORMATION
FURNISHED TO THE COMPANY
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EXHIBIT
B
QUESTIONNAIRE
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