NRDC Capital Management, LLC Letterhead]
Exhibit
10.1
[NRDC
Capital Management, LLC Letterhead]
[•],
2007
▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
Purchase,
New York 10577
Banc
of
America Securities LLC
▇
▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
New
York,
NY 10019
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 12.
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 ▇▇▇▇▇▇ 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 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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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.
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4.
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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 “Insiders Shares 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) With
respect to the undersigned’s Placement Warrants or shares issuable upon exercise
of the Placement Warrants (the “Placement
Securities”), the undersigned shall not, until the consummation of
an initial Business Combination (the “Placement Securities 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, except as provided in that
certain Registration Rights Agreement dated as of the date hereof, file (or
participate in the filing of) a registration statement with the SEC in respect
of, 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 Placement Securities, (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 Placement Securities,
whether any such transaction is to be settled by delivery of shares of Common
Stock or other securities, in cash or otherwise, or (iii) publicly announce
an
intention to effect any transaction specified in clause (i) or
(ii).
(c) With
respect to any Units acquired in a private placement immediately prior to the
consummation of the Company’s initial Business Combination, the Common Stock and
Warrants comprising such Units, and/or the Common Stock issuable upon exercise
of the Warrants comprising such Units (the “Co-Investment
Securities”), the undersigned shall not, until one (1) year after
the consummation of an initial Business Combination (the
“Co-Investment Securities Lock-Up Period”, and
considered together with the Insiders Shares Lock-Up Period and the Placement
Securities Lock-Up Period, each a “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 the Co-Investment Securities
(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 the
Co-Investment Securities, whether any such transaction is to be settled by
delivery of Common Stock or such other securities, in cash or otherwise, or
(iii) publicly announce any intention to effect any transaction specified in
clause (i) or (ii).
(d) Notwithstanding
the foregoing, the undersigned may transfer the undersigned’s Insiders Shares,
Placement Securities and/or Co-Investment Securities during the applicable
Lock-Up Period
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(as
applicable) (i) to a member of the undersigned’s immediate family or to 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, Placement Securities
and/or Co-Investment Securities.
(e) 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.
(f) The
undersigned agrees that after the applicable Lock-Up Period has elapsed, the
undersigned’s Insiders Shares, Placement Warrants and/or Co-Investment
Securities 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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5.
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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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6.
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Except
as disclosed in the Prospectus, neither the undersigned nor any 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 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. 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
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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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 Founders, 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.
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12.
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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 shares); (e) “Placement
Warrants” means the Warrants the undersigned has agreed to
purchase in a private placement concurrently with the Offering; (f)
“Public Stockholders” shall mean the holders of
securities issued in the Offering; (g) “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 (h) “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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13.
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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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14.
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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
▇▇▇▇▇▇ agrees that any action, proceeding or claim against the undersigned
arising out of, or relating in any
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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 Co-Investment Securities, 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.
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[SIGNATURES
COMMENCE ON NEXT PAGE]
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Sincerely,
NRDC
CAPITAL MANAGEMENT LLC
By:_________________________________
Name:
Title:
Accepted
and agreed:
By:_________________________________
Name:
Title:
BANC
OF
AMERICA SECURITIES LLC
By:_________________________________
Name:
Title:
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