efc7-2356_6326139ex105.htm


    Exhibit
      10.5

     

    Lee
      S.
      Neibart

    


     [•],
      2007

     

    


    


    NRDC
      Acquisition Corp.

    3
      Manhattanville Road

    Purchase,
      New York 10577

    


    Banc
      of
      America Securities LLC

    9
      West
      57th Street

    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 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)                           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
      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

     


    
      
        
        

      

      
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    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.

     

    (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 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.

            


    

     

    
      	
               

            	
              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 Chairman of the Board 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;

     


    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    


    (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)                           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.

            


    

     

    
      	
               

            	
              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 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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              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, William L. Mack, Robert C. Baker, Richard A. Baker and Lee Neibart;
                (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) “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 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 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.

            


    

     

    [SIGNATURES
      COMMENCE ON NEXT PAGE]

     


    
      
        
        

      

      
        5

        
          

        

      

      
        
        

      

    


    

       

      
        	 	Sincerely,	 
	 	 	 	 
	
                 

              	
                 

              	 
	 	LEE
                S. NEIBART	 
	 	 	 
	 	  	 


      

       

       

       

      
        	Accepted
                and agreed:	 	
                 

              	 	
                 

              
	 	 	 	 	 	 
	 NRDC
                ACQUISITION CORP.	 	
                 

              	 	
                 

              
	 	
                 

              	 	 	 	 
	 	 	 	 	 	 
	By:	
                 

              	 	
                 

              	 	
                 

              
	Name:	 	 	 	 
	Title: 	 	 	 	 
	 	
                 

              	 	
                 

              	 	
                 

              
	 	
                 

              	 	 	 	 


      

      
        	BANC
                OF AMERICA SECURITIES
                LLC	 	
                 

              	 	
                 

              
	 	
                 

              	 	 	 	 
	 	 	 	 	 	 
	By:	
                 

              	 	
                 

              	 	
                 

              
	Name:	 	 	 	 
	Title: 	 	 	 	 
	 	
                 

              	 	
                 

              	 	
                 

              
	 	
                 

              	 	 	 	 


      

      


    

     


    
      
        
        

      

      
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    EXHIBIT
      A

    INFORMATION
      FURNISHED TO THE COMPANY

     


    
      
        
        

      

      
        7

        
          

        

      

      
        
        

      

    


    EXHIBIT
      B

    QUESTIONNAIRE

     

     

    
      8