EXHIBIT 10.5
FORM OF
SUPPLEMENT & AMENDMENT TO WARRANT AGREEMENT
This Supplement and Amendment to the
Warrant Agreement dated as of __________, 2009 (the “
Amendment ”), is executed by NRDC Acquisition Corp., a
Delaware corporation (the “ Company ”), and
Continental Stock Transfer & Trust Company, a New York
corporation (the “ Warrant Agent ”).
WHEREAS, the Company and the Warrant
Agent are parties to that certain Warrant Agreement dated as of
October 17, 2007 (the “ Warrant Agreement ”);
and
WHEREAS, the parties desire to
supplement and amend the Warrant Agreement upon the terms and
conditions herein provided.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements herein contained and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions . Capitalized
terms use herein and not otherwise defined herein shall have the
meanings ascribed to them in the Warrant Agreement.
2. Amendment to Warrant
Agreement .
(a) Section 3.1 of the Warrant
Agreement is hereby amended and restated in its entirety as
follows:
“3.1. Warrant Price .
Each Warrant shall, when countersigned by the Warrant Agent,
entitle the Registered Holder thereof, subject to the provisions of
(a) such Public Warrant, Private Warrant or Co-Investment Warrant,
as the case may be, and (b) this Warrant Agreement, to purchase
from the Company the number of shares of Common Stock stated
therein, at the price of $12.00, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this
Section 3.1. The term “ Warrant Price” as used
in this Warrant Agreement refers to the price per whole share at
which Common Stock may be purchased at the time a Warrant is
exercised. The Company in its sole discretion may lower the Warrant
Price at any time prior to the Expiration Date; provided, however,
that any change in the Warrant Price must apply equally to all of
the Warrants, and provided, further, that any reduction in Warrant
Price must remain in effect for at least (20) business
days.”
(b) Section 3.2.1 of the Warrant
Agreement is hereby amended and restated in its entirety as
follows:
“3.2.1 Public Warrants and
Private Warrants. Public Warrants and Private Warrants may be
exercised only during the period (“ Exercise Period
”) commencing on the consummation of (i) an acquisition by
the Company of one or more operating businesses through a merger,
capital stock exchange, stock purchase, asset acquisition or other
similar business combination having, collectively, a fair market
value (as calculated in accordance with the requirements set forth
in the Company’s Certificate of Incorporation, as amended) of
at least 80% of the balance of the Trust Account (as defined in
Section 8.6 below), excluding the Underwriter’s deferred
discount, at the time of such acquisition or (ii) consummation of
substantially all of the transactions contemplated by the Framework
Agreement, dated as of August 7, 2009, by and between the Company
and NRDC Capital Management, LLC (a “ Business
Combination ”), and terminating at 5:00 p.m., New York
City time on the earlier to occur of (i) October 23, 2014 or (ii)
the date fixed for redemption of the Public Warrants and Private
Warrants as provided in Section 6 of this Agreement (subject to
extension in limited circumstances) (the date on which the exercise
period terminates, the “ Expiration Date ”).
Except with respect to the right to receive the Redemption Price
(as set forth in Section 6 hereunder), each Public Warrant and
Private Warrant not exercised on or before the Expiration Date
shall become void, and all rights thereunder and all rights in
respect thereof under this Agreement shall cease at the close of
business on the Expiration Date. The Company in its sole discretion
may extend the duration of the Public Warrants and Private Warrants
by delaying the Expiration Date; provided, however, that any
extension of the d
