As filed with the Securities and Exchange Commission on October 17, 2007

File No. 333 -                     

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM S-1

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

 

NRDC ACQUISITION CORP.

(Exact name of Registrant as specified in its charter)

Delaware		6770		26-0500600
(State or other jurisdiction of		(Primary Standard Industrial		(I.R.S. Employer
incorporation or organization)		Classification Code Number)		Identification Number)

3 Manhattanville Road
Purchase, New York 10577
(914) 272-8067
(Address, including zip code and telephone number, including area code, of registrant’s principal executive offices)

Richard A. Baker, Chief Executive Officer
3 Manhattanville Road
Purchase, New York 10577
(914) 272-8067
(Name, address, including zip code and telephone number, including area code, of agent for service)

Copies to:

Samir A. Gandhi, Esq.		Floyd I. Wittlin, Esq.
Sidley Austin llp		Bingham McCutchen LLP
787 Seventh Avenue		399 Park Avenue
New York, New York 10019		New York, New York 10022
(212) 839-5300		(212) 705-7000
(212) 839-5599—Facsimile		(212) 702-3625—Facsimile

     Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

     If any of the securities being registered on this Form are being offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the following box. o

     If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. þ 333-144871

     If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o  

     If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o  

CALCULATION OF REGISTRATION FEE

							Proposed			Proposed
	Title of Each Class of			Amount being			Maximum Offering			Maximum Aggregate			Amount of
	Security to be Registered			Registered			Price per Security(1)			Offering Price(1)			Registration Fee
	Units, each consisting of one share of Common Stock, $.0001 par value, and one Warrant(2)			6,900,000 Units			$10.00			$69,000,000			$2,119
	Shares of Common stock included as part of the Units			6,900,000 Shares			—			—			—(3)
	Warrants included as part of the Units			6,900,000 Warrants			—			—			—(3)
	Shares of Common Stock underlying the Warrants included in the Units(4)			6,900,000 Shares			$7.50			$51,750,000			$1,589
	Total									$120,750,000			$3,708

(1)		Estimated solely for the purpose of calculating the registration fee.
(2)		Includes 900,000 Units, and the 900,000 shares of Common Stock and 900,000 Warrants underlying such Units, which may be issued on exercise of a 30-day option granted to the Underwriters to cover over-allotments, if any.
(3)		No fee required pursuant to Rule 457(g).
(4)		Pursuant to Rule 416, there are also being registered such additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions as a result of the anti-dilution provisions contained in the Warrants.

     THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE UPON FILING WITH THE SECURITIES AND EXCHANGE COMMISSION IN ACCORDANCE WITH RULE 462(B) UNDER THE SECURITIES ACT OF 1933, AS AMENDED.

 

 

Explanatory Note

     This Registration Statement on Form S-1 is being filed with respect to the registration, pursuant to Rule 462(b) under the Securities Act of 1933, as amended, of 6,900,000 additional units, each unit consisting of one share of common stock, par value $0.0001 per share, and one warrant entitling the holder thereof to purchase one share of common stock, and the 6,900,000 shares of common stock and 6,900,000 warrants underlying such units, of NRDC Acquisition Corp. (the “Registrant”), a Delaware corporation, including 900,000 units that may be purchased by the underwriters to cover over-allotments, if any. This Registration Statement relates to the Registrant’s Registration Statement on Form S-1, as amended (File No. 333-144871) (the “Prior Registration Statement”), initially filed by the Registrant on July 27, 2007 and declared effective by the Securities and Exchange Commission (the “Commission”) on October 17, 2007. The required opinion of counsel and related consent and accountant’s consent are attached hereto and filed herewith. Pursuant to Rule 462(b), the contents of the Prior Registration Statement, including the exhibits thereto, are incorporated by reference into this Registration Statement.

PART II
INFORMATION NOT REQUIRED IN PROSPECTUS

Item 16.  Exhibits and Financial Statement Schedules.

     (a) All exhibits filed with or incorporated by reference in Registrant’s Registration Statement on Form S-1, as amended (File No. 333-144871), are incorporated by reference into, and shall be deemed to be part of, this Registration Statement, except for the following, which are filed herewith:

Exhibit
No.		Description
5.1		Opinion of Sidley Austin llp
23.1		Consent of Goldstein Golub Kessler llp
23.2		Consent of Sidley Austin llp (included in Exhibit 5.1)

SIGNATURES

     Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-1 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in The City of New York, NY, on the 17th day of October, 2007.

POWER OF ATTORNEY

     KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Richard A. Baker his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him and in his name, place and stead, in any and all capacities to sign any and all amendments (including post-effective amendments) to this registration statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent or his substitute, each acting alone, may lawfully do or cause to be done by virtue hereof.

     Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the date indicated.

Name		Position		Date
*   William L. Mack		Chairman of the Board		October 17, 2007
*   Robert C. Baker		Vice Chairman of the Board		October 17, 2007
/s/ Richard A. Baker   Richard A. Baker		Chief Executive Officer and Director (principal executive officer, principal accounting officer and principal financial officer)		October 17, 2007
*   Lee S. Neibart		President and Director		October 17, 2007

Name		Position		Date
*   Michael J. Indiveri		Director		October 17, 2007
*   Edward H. Meyer		Director		October 17, 2007
*   Laura Pomerantz		Director		October 17, 2007
*   Vincent Tese		Director		October 17, 2007
*   Ronald W. Tysoe		Director		October 17, 2007

EXHIBIT INDEX

Exhibit
No.		Description
5.1		Opinion of Sidley Austin llp
23.1		Consent of Goldstein Golub Kessler llp
23.2		Consent of Sidley Austin llp (included in Exhibit 5.1)

Exhibit 5.1

		SIDLEY AUSTIN llp 787 SEVENTH AVENUE NEW YORK, NY 10019 (212) 839 5300 (212) 839 5599 FAX		BEIJING BRUSSELS CHICAGO DALLAS FRANKFURT GENEVA HONG KONG LONDON		LOS ANGELES NEW YORK SAN FRANCISCO SHANGHAI SINGAPORE SYDNEY TOKYO WASHINGTON, D.C.
				FOUNDED 1866

October 17, 2007

NRDC Acquisition Corp.
3 Manhattanville Road
Purchase, New York 10577

          Re: Initial Public Offering of Units

Ladies and Gentlemen:

          We have acted as counsel to NRDC Acquisition Corp., a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-1, as amended (the “Registration Statement”), filed by the Company with the Securities and Exchange Commission under the Securities Act of 1933, as amended.

          The Registration Statement covers the registration of (i)  6,900,000 units (the “Units”) issuable to the public, each Unit consisting of (a) one share of the Company’s common stock, $0.0001 par value per share (the “Common Stock”), and (b) one warrant to purchase one share of Common Stock at an exercise price of $7.50 per share (the “Warrants”), and (ii) all shares of Common Stock issuable upon exercise of the Warrants included in the Units.

          In connection with this opinion, we have examined originals or copies of the following documents (the “Transaction Documents”):

	(a)		the Registration Statement;
	(b)		the Warrant Agreement between the Company and Continental Stock Transfer & Trust Company, as warrant agent (the “Warrant Agent”);
	(c)		the Warrants;
	(d)		the Co-Investment Agreement between the Company and NRDC Capital Management, LLC; and
	(e)		such other documents as we have deemed necessary or appropriate to enable us to render the opinion expressed below.

          This opinion is based entirely upon our examination of the documents listed in the preceding paragraph, and we have made no other documentary review or investigation of any kind whatsoever for purposes of this opinion. In making such examination, we have assumed (i)

Sidley Austin llp is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships

NRDC Acquisition Corp.
October 17, 2007
Page 2

the genuineness of signatures of all persons signing any documents, the legal capacity of natural persons, the authority of persons signing any document on behalf of parties thereto, the authority of all governmental authorities, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies or by facsimile or other means of electronic transmission; and (ii) that the Warrant Agreement is a legal and binding obligation of the Warrant Agent. As to all facts relevant to the opinions or statements expressed herein, we have relied, without independent investigation or verification, upon certificates, oral or written representations and other statements of officers, directors and other representatives of the Company, public officials and others.

          Subject to the limitations set forth below, we have made such examination of law as we have deemed necessary for the purpose of this opinion. This opinion is limited solely to the federal laws of the United States, the Delaware General Corporation Law, including all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws, and, as to the Warrants constituting valid and binding agreements of the Company, solely to the laws of the State of New York. Our opinion is based on these laws as in effect on the effective date of the Registration Statement.

          We note that certain of the Transaction Documents contain provisions stating that they are to be governed by the laws of the State of New York (each contractual choice of law clause being referred to as a “Chosen-Law Provision”). Except to the extent addressed in paragraph 5 below, no opinion is given herein as to any Chosen-Law Provision or otherwise as to the determination of which jurisdiction’s law a court or other tribunal may apply to the transactions contemplated by the Transaction Documents.

          We express no opinion as to the enforceability of any particular provision of any of the Transaction Documents relating to or constituting waivers of rights to object to jurisdiction or venue, consents to jurisdiction or venue, or waivers of rights to (or methods of) service of process, except to the extent that such waivers or consents are made enforceable by New York General Obligations Law Section 5-1402, as applied by a New York State court.

     Based upon and subject to the foregoing, we are of the opinion that  

	1.		The Common Stock included in the Units, when issued and sold in accordance with and in the manner described in the Registration Statement and the related Prospectus, will be duly authorized, validly issued, fully paid and non-assessable.
	2.		Each Warrant included in the Units, when issued and sold in accordance with and in the manner described in the Registration Statement and the related Prospectus, will constitute a valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as enforcement may be limited by

NRDC Acquisition Corp.
October 17, 2007
Page 3

			applicable bankruptcy, insolvency, reorganization, arrangement, moratorium, or other similar laws affecting creditors’ rights, and subject to general equity principles and to limitations on availability of equitable relief, including specific performance.
	3.		The Common Stock, when issued and paid for upon exercise of the Warrants as contemplated by the Warrant Agreement, the Registration Statement and the related Prospectus, will be duly authorized, validly issued, fully paid and nonassessable.
	4.		The Units, when issued and paid for as contemplated by the Registration Statement and the related Prospectus, will be duly authorized, validly issued, fully paid and non-assessable.
	5.		Each Chosen-Law Provision is enforceable in accordance with New York General Obligations Law Section 5-1401, as applied by a New York State court or a federal court sitting in New York and applying New York choice of law principles, except to the extent provided in Section 8-110 of the New York Uniform Commercial Code.

          We hereby consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement and the reference to us under the heading “Legal Matters” in the related Prospectus.

          The opinions and other statements expressed herein are given as of the date hereof, and we undertake no obligation to supplement this letter if any applicable law changes after the date hereof or if we become aware of any facts that might change the opinions or other statements expressed herein after the date hereof or for any other reason.

          Unless otherwise noted, whenever our opinion or other statement is indicated to be “to our knowledge” or addresses any matter that has “come to our attention,” or similar references, it should be understood that during the course of our representation of you we have not undertaken any independent investigation or verification to determine the existence or absence of facts. The phrases “to our knowledge,” “come to our attention” or similar language used herein are limited to the knowledge of the lawyers within our firm who have had primary responsibility for our work on the transactions contemplated by the Registration Statement.

          This opinion letter is rendered solely to, and is for the benefit of, the Company in connection with the matter described above; accordingly, it may not be quoted or otherwise delivered to or relied upon by any other person or entity (including, without limitation, any person or entity who purchases the Units from the underwriters) or used for any other purpose, in any case without our prior written consent.

	Very truly yours,
	/s/ Sidley Austin LLP
	SIDLEY AUSTIN LLP