As filed with
the Securities and Exchange Commission on September 22, 2017
Registration No. 333-220516
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO.
1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BLACK
RIDGE ACQUISITION CORP.
(Exact name of registrant as specified in
its charter)
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Delaware
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6770
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82-1659427
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(State or other jurisdiction of incorporation
or organization)
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(Primary Standard Industrial Classification
Code Number)
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(I.R.S. Employer
Identification Number)
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c/o Black Ridge Oil & Gas, Inc.
110 North 5
th
Street, Suite
410
Minneapolis, Minnesota 55403
(952) 426-1241
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
Ken DeCubellis, Chief Executive Officer
Black Ridge Acquisition Corp.
c/o Black Ridge Oil & Gas, Inc.
110 North 5
th
Street, Suite
410
Minneapolis, Minnesota 55403
(952) 426-1241
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
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Copies to:
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David Alan Miller, Esq.
Jeffrey M. Gallant, Esq.
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 818-8800
Facsimile: (212) 818-8881
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Alan I. Annex, Esq.
Jason T. Simon, Esq.
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, NY 10166
Telephone: (212) 801-9200
Facsimile: (212) 801-6400
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the effective date of this registration statement.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933 check the following box.
¨
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.
¨
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.
¨
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.
¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act.
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Large accelerated filer
¨
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Accelerated filer
¨
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Non-accelerated filer
x
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Smaller reporting company
¨
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(Do not check if a smaller reporting company)
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Emerging growth company
x
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If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.
¨
CALCULATION OF REGISTRATION FEE
Title of each Class of Security being
registered
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Amount being
Registered
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Proposed
Maximum
Offering Price
Per Security
(1)
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Proposed
Maximum
Aggregate
Offering Price
(1)
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Amount of
Registration Fee
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Units, each consisting of one share of
Common Stock, $.0001 par value, one Right and one Warrant
(2)
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11,500,000 Units
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$
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10.00
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$
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115,000,000
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$
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13,328.50
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Shares of Common Stock included as part of the Units
(2)
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11,500,000 Shares
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—
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—
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—
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(3)
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Rights included as part of the Units
(2)
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11,500,000 Rights
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—
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—
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—
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(3)
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Warrants included as part of the Units
(2)
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11,500,000 Warrants
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—
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—
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—
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(3)
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Shares of common stock underlying rights included
as part of the Units
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1,150,000
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—
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—
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—
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(3)
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Units underlying Representative’s Unit Purchase
Option (“Representative’s Units”)
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500,000 Units
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$
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11.50
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$
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5,750,000
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$
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666.43
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Shares of Common Stock included as part of the Representative’s
Units
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500,000 Shares
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—
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—
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—
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(3)
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Rights included as part of the Representative’s
Units
(2)
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500,000 Rights
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—
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—
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—
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(3)
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Warrants included as part of the Representative’s
Units
(2)
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500,000 Warrants
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—
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—
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—
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(3)
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Shares of common stock underlying
rights included as part of the Representative’s Units
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50,000
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—
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—
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—
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(3)
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Total
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$
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120,750,000
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$
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13,994.93
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(4)
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(1)
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Estimated solely for the purpose of calculating the registration
fee.
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(2)
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Includes 1,500,000 Units, 1,500,000 shares of Common Stock, 1,500,000
Rights and 1,500,000 Warrants underlying such Units which may be issued on exercise of
a 45-day option granted to the Underwriters to cover over-allotments, if any.
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(3)
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No fee pursuant to Rule 457(g).
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The registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities
Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
EXPLANATORY
NOTE
This
amendment is being filed solely to include certain exhibits with the Registration Statement.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The estimated expenses payable by us in connection with the
offering described in this registration statement (other than the underwriting discount and commissions) will be as follows:
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Initial Trustees’ fee
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$
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1,000
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(1)
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SEC Registration Fee
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14,000
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FINRA filing fee
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18,625
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Accounting fees and expenses
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40,000
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Nasdaq listing fees
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75,000
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Printing and engraving expenses
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40,000
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Directors & Officers liability insurance premiums
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90,000
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(2)
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Legal fees and expenses
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250,000
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Miscellaneous
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61,375
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(3)
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Total
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$
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590,000
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(1)
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In addition to the initial acceptance fee that is charged by Continental Stock Transfer & Trust Company, as trustee, the
registrant will be required to pay to Continental Stock Transfer & Trust Company $16,100 for acting as trustee, as transfer
agent of the registrant’s common stock, as warrant agent for the registrant’s warrants and as escrow agent.
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(2)
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This amount represents the approximate amount of director and officer liability insurance premiums the registrant anticipates
paying following the consummation of its initial public offering and until it consummates a business combination.
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(3)
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This amount represents additional expenses that may be incurred by the Company in connection with the offering over and above
those specifically listed above, including distribution and mailing costs.
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Item 14. Indemnification of Directors and Officers.
Our certificate of incorporation provides that all directors,
officers, employees and agents of the registrant shall be entitled to be indemnified by us to the fullest extent permitted by Section
145 of the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law concerning
indemnification of officers, directors, employees and agents is set forth below.
“Section 145. Indemnification of officers, directors,
employees and agents; insurance.
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(a)
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A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if
the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of
the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea
of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and
in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
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(b)
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A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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(c)
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To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise
in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith.
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(d)
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Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation
only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee
or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections
(a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time
of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though
less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than
a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion,
or (4) by the stockholders.
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(e)
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Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative
or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action,
suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall
ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such
expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid
upon such terms and conditions, if any, as the corporation deems appropriate.
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(f)
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The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section
shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled
under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s
official capacity and as to action in another capacity while holding such office.
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(g)
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A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the
corporation would have the power to indemnify such person against such liability under this section.
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(h)
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For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation,
any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request
of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation
as such person would have with respect to such constituent corporation if its separate existence had continued.
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(i)
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For purposes of this section, references to “other enterprises” shall include employee benefit plans; references
to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references
to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent
of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to
an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably
believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted
in a manner “not opposed to the best interests of the corporation” as referred to in this section.
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(j)
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The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
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(k)
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The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses
or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’
fees).”
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Insofar as indemnification for liabilities arising
under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions,
or otherwise, we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being
registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
Paragraph B of Article Eighth of our certificate of incorporation
provides:
“The Corporation, to the full extent permitted by Section
145 of the GCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including
attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action,
suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation
in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director
or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation
as authorized hereby.”
Pursuant to the Underwriting Agreement filed as Exhibit 1.1
to this Registration Statement, we have agreed to indemnify the Underwriters and the Underwriters have agreed to indemnify us against
certain civil liabilities that may be incurred in connection with this offering, including certain liabilities under the Securities
Act.
Item 15. Recent Sales of Unregistered Securities.
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(a)
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During the past three years, we sold the following shares of common stock without registration under the Securities Act:
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Stockholder
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Number of
Shares
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Black Ridge Oil & Gas, Inc.
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2,875,000
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Such shares were issued on May 9, 2017 in connection with our
organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act as the shares were
sold to an accredited investor. The shares issued were sold for an aggregate offering price of $25,000 at an average purchase price
of approximately $0.01 per share.
Black Ridge Oil & Gas, Inc. has also committed to purchase
from us 350,000 units at $10.00 per private unit (for an aggregate purchase price of $3,500,000). This purchase will take place
on a private placement basis simultaneously with the consummation of our initial public offering. It has also committed to purchase
up to a maximum of 37,500 units in proportion to the amount of the underwriters’ over-allotment option that is exercised.
These issuances will be made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.
No underwriting discounts or commissions were paid with respect
to such sales.
Item 16. Exhibits and Financial Statement Schedules.
(a)
The following exhibits are filed as part of this Registration Statement:
* To be filed by amendment.
** Previously filed.
Item 17. Undertakings.
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(a)
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The undersigned registrant hereby undertakes:
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(1)
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To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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i.
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To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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ii.
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To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information
set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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iii.
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To include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
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(2)
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That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
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(4)
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That for the purpose of determining any liability under the Securities Act of 1933 in a primary offering of securities of the
undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities
to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the
undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant
to Rule 424;
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(ii)
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Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
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(iii)
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The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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The undersigned hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates
in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
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(c)
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Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that
in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed
in the Act and will be governed by the final adjudication of such issue.
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(d)
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The undersigned registrant hereby undertakes that:
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(1)
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For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
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(2)
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For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains
a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Minneapolis, Minnesota, on the 22
nd
day of September, 2017.
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BLACK RIDGE ACQUISITION
CORP.
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By:
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/s/ Ken DeCubellis
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Name: Ken DeCubellis
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Title: Chairman of the Board and Chief
Executive Officer
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Ken DeCubellis, Michael Eisele and James Moe his true and lawful attorney-in-fact, 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 pre- and post-effective amendments to this registration statement, any subsequent registration statement
for the same offering which may be filed pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and pre- or post-effective
amendments thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities
and Exchange Commission, hereby ratifying and confirming all that said attorney-in-fact or his substitute, each acting alone, may
lawfully do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Name
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Position
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Date
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/s/ Ken DeCubellis
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Chairman of
the Board and Chief Executive Officer
(Principal Executive Officer)
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September
22, 2017
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Ken DeCubellis
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*
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Chief Financial
Officer (Principal Financial and
Accounting Officer)
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September
22, 2017
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James Moe
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*
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Director
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September
22, 2017
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Bradley Berman
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*
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Director
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September
22, 2017
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Benjamin Oehler
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*
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Director
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September
22, 2017
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Joseph Lahti
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Director
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September
22, 2017
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Lyle Berman
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* By Ken DeCubellis
Power of Attorney
Exhibit 3.1
CERTIFICATE OF INCORPORATION
OF
BLACK RIDGE ACQUISITION CORP.
Pursuant to Section 102 of the
Delaware General Corporation Law
I, the undersigned,
in order to form a corporation for the purposes hereinafter stated, under and pursuant to the provisions of the General Corporation
Law of the State of Delaware (the “GCL”), do hereby certify as follows:
FIRST: The name of
the corporation is Black Ridge Acquisition Corp. (hereinafter sometimes referred to as the “Corporation”).
SECOND: The registered
office of the Corporation is to be located at c/o Vcorp Services, LLC, 1013 Centre Road, Suite 403-B, Wilmington, Delaware 19805.
The name of its registered agent at that address is Vcorp Services, LLC.
THIRD: The purpose
of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized under the GCL.
FOURTH: The total number
of shares of all classes of capital stock which the Corporation shall have authority to issue is 31,000,000 of which 30,000,000
shares shall be Common Stock of the par value of $.0001 per share and 1,000,000 shares shall be Preferred Stock of the par value
of $.0001 per share.
A.
Preferred
Stock
. The Board of Directors is expressly granted authority to issue shares of the Preferred Stock, in one or more series,
and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed
in the resolution or resolutions adopted by the Board of Directors providing for the issue of such series (a “Preferred Stock
Designation”) and as may be permitted by the GCL. The number of authorized shares of Preferred Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of
the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any
series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
B.
Common
Stock
. Except as otherwise required by law or as otherwise provided in any Preferred Stock Designation, the holders of the
Common Stock shall exclusively possess all voting power and each share of Common Stock shall have one vote.
FIFTH: The name and
mailing address of the sole incorporator of the Corporation are as follows:
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Name
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Address
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Jeffrey M. Gallant
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Graubard Miller
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The Chrysler Building
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405 Lexington Avenue
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New York, New York 10174
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SIXTH: The Board of Directors shall be divided
into three classes: Class A, Class B and Class C. The number of directors in each class shall be as nearly equal as possible. At
the first election of directors by the incorporator, the incorporator shall elect a Class C director for a term expiring at the
Corporation’s third Annual Meeting of Stockholders. The Class C director shall then appoint additional Class A, Class B and
Class C directors, as necessary. The directors in Class A shall be elected for a term expiring at the first Annual Meeting of Stockholders,
the directors in Class B shall be elected for a term expiring at the second Annual Meeting of Stockholders and the directors in
Class C shall be elected for a term expiring at the third Annual Meeting of Stockholders. Commencing at the first Annual Meeting
of Stockholders, and at each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be
elected for a term of office to expire at the third succeeding annual meeting of stockholders after their election. Except as the
GCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for
the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly
created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors
for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined
in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of
their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a
vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director
whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.
SEVENTH: The following provisions are inserted
for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation
and regulation of the powers of the Corporation and of its directors and stockholders:
A. Election
of directors need not be by ballot unless the bylaws of the Corporation so provide.
B. The
Board of Directors shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to
or repeal the bylaws of the Corporation as provided in the bylaws of the Corporation.
C. The
directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders
or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that
shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented
in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved
or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack
because of directors’ interests, or for any other reason.
D. In
addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless,
to the provisions of the statutes of Delaware, of this Certificate of Incorporation, and to any bylaws from time to time made by
the stockholders; provided, however, that no by-law so made shall invalidate any prior act of the directors which would have been
valid if such by-law had not been made.
EIGHTH: A. A director of the Corporation shall not
be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except
for liability (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of
the GCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the GCL is amended to authorize
corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so amended. Any repeal or modification of this paragraph
A by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with
respect to events occurring prior to the time of such repeal or modification.
B. The
Corporation, to the full extent permitted by Section 145 of the GCL, as amended from time to time, shall indemnify all persons
whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled
to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized hereby.
NINTH: Whenever a compromise or arrangement
is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders
or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way
of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for
this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver
or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors
or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned
in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class
of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise
or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise
or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding
on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the
case may be, and also on this Corporation.
TENTH: A. Unless
the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall
be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding
brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director,
officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action
asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the GCL or
this Certificate or the Corporation’s bylaws, or (iv) any action asserting a claim against the Corporation, its directors,
officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any
claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the
Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten
days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery,
or for which the Court of Chancery does not have subject matter jurisdiction.
B. If
any action the subject matter of which is within the scope of Section A immediately above is filed in a court other than a court
located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be
deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware
in connection with any action brought in any such court to enforce Section A immediately above (an “Foreign Enforcement Action”)
and (ii) having service of process made upon such stockholder in any such Foreign Enforcement Action by service upon such stockholder’s
counsel in the Foreign Action as agent for such stockholder.
C. If
any provision or provisions of this Article TENTH shall be held to be invalid, illegal or unenforceable as applied to any person
or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability
of such provisions in any other circumstance and of the remaining provisions of this Article TENTH (including, without limitation,
each portion of any sentence of this Article TENTH containing any such provision held to be invalid, illegal or unenforceable that
is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities
and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring
any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of
this Article TENTH.
IN WITNESS WHEREOF, I have signed this Certificate
of Incorporation this 9
th
day of May, 2017.
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/s/ Jeffrey M. Gallant
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Jeffrey M. Gallant, Sole Incorporator
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Exhibit
3.2
AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BLACK
RIDGE ACQUISITION CORP.
Pursuant
to Section 245 of the
General
Corporation Law of the State of Delaware
BLACK
RIDGE ACQUISITION CORP., a corporation existing under the laws of the State of Delaware (the “Corporation”), by its
Chief Executive Officer, hereby certifies as follows:
1.
The name of the Corporation is “Black Ridge Acquisition Corp.”
2. The
Corporation’s Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on
May 9, 2017.
3. This
Amended Restated Certificate of Incorporation restates, integrates and amends the Certificate of Incorporation of the Corporation.
4. This
Amended and Restated Certificate of Incorporation was duly adopted by joint written consent of the directors and stockholders
of the Corporation in accordance with the applicable provisions of Sections 141(f), 228, 242 and 245 of the General Corporation
Law of the State of Delaware (“GCL”).
5.
The text of the Certificate of Incorporation of the Corporation is hereby amended and restated to read in full as follows:
FIRST:
The name of the corporation is Black Ridge Acquisition Corp. (hereinafter sometimes referred to as the “Corporation”).
SECOND:
The registered office of the Corporation is to be located at 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. The name of its registered agent at that address is The Corporation Trust Company.
THIRD:
The purpose of the Corporation shall be to engage in any lawful act or activity for which corporations may be organized
under the GCL.
FOURTH:
The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 31,000,000 of
which 30,000,000 shares shall be Common Stock of the par value of $0.0001 per share and 1,000,000 shares shall be Preferred Stock
of the par value of $0.0001 per share.
A.
Preferred
Stock
. The Board of Directors is expressly granted authority to issue shares of the Preferred Stock, in one or more series,
and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating,
optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed
in the resolution or resolutions adopted by the Board of Directors providing for the issue of such series (a “Preferred
Stock Designation”) and as may be permitted by the GCL. The number of authorized shares of Preferred Stock may be increased
or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority
of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or
any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.
B.
Common
Stock
. Except as otherwise required by law or as otherwise provided in any Preferred Stock Designation, the holders of the
Common Stock shall exclusively possess all voting power and each share of Common Stock shall have one vote.
FIFTH:
The name and mailing address of the sole incorporator of the Corporation are as follows:
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Name
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Address
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Jeffrey M. Gallant
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Graubard Miller
The Chrysler Building
405
Lexington Avenue
New York, New York 10174
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SIXTH:
The introduction and the following provisions (A) through (J) of this Article Sixth shall apply during the period commencing upon
the filing of this Certificate of Incorporation and terminating upon the consummation of any “Business Combination”
and may not be amended during such period unless the Corporation provides dissenting holders of IPO Shares (as defined below)
with the opportunity to convert their IPO Shares to cash in accordance with provision (C) of this Article Sixth. A “Business
Combination” shall mean any merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization
or other similar business combination involving the Corporation and one or more businesses or entities (“Target Business”
or “Target Businesses”). The Target Business or Target Businesses acquired in the Business Combination must together
have a fair market value of at least 80% of the assets held in the Trust Account (defined below), excluding taxes payable on the
income earned on the Trust Account, at the time of the signing of the definitive agreement governing the terms of the initial
Business Combination. If the Corporation acquires less than 100% of the equity interests or assets of a Target Business, the portion
of such Target Business that the Corporation acquires is what will be valued for purposes of the 80% fair market value test.
The
“fair market value” for purposes of this Article Sixth will be determined by
the Board of Directors of the
Corporation based upon one or more standards generally accepted by the financial community (such as actual and potential
sales, earnings, cash flow and/or book value). If the Board of Directors is unable to independently determine the fair market
value of the Target Business, the Corporation will obtain an opinion from an independent investment banking firm, or another
independent entity that commonly renders valuation opinions on the type of target business the Company is seeking to acquire,
with respect to the satisfaction of such criteria.
A. Prior
to the consummation of any Business Combination, the Corporation shall either (i) submit such Business Combination to its stockholders
for approval (“Proxy Solicitation”) pursuant to the proxy rules promulgated under the Securities Exchange Act of 1934,
as amended (“Exchange Act”) or (ii) provide all holders of its Common Stock with the opportunity to sell their shares
to the Corporation, effective upon consummation of such Business Combination, for cash through a tender offer (“Tender Offer”)
pursuant to the tender offer rules promulgated under the Exchange Act.
B. If
the Corporation engages in a Proxy Solicitation in connection with any proposed Business Combination, the Corporation will consummate
such Business Combination only if a majority of the then outstanding shares of Common Stock present and entitled to vote at the
meeting to approve the Business Combination are voted for the approval of such Business Combination.
C. In
the event that a Business Combination is approved in accordance with the above paragraph (B) and is consummated by the Corporation,
any holder of shares of Common Stock sold in the Company’s initial public offering (“IPO” and the shares sold
in such IPO, the “IPO Shares”) who voted on the proposal to approve such Business Combination, whether such holder
voted in favor or against such Business Combination, may demand that the Corporation convert his IPO Shares into cash. If so demanded,
the Corporation shall, promptly after consummation of the Business Combination, convert such shares into cash at a per share price
equal to the quotient determined by dividing (i) the amount then held in the Trust Account, including any interest earned on the
funds held in the Trust Account not previously released to the Corporation, net of taxes payable, calculated as of two business
days prior to the consummation of the Business Combination, by (ii) the total number of IPO Shares then outstanding (such price
being referred to as the “Conversion Price”). “Trust Account” shall mean the trust account established
by the Corporation at the consummation of its IPO and into which a certain amount of the net proceeds of the IPO and simultaneous
private placement is deposited, all as described in the Registration Statement on Form S-1 filed with the Securities and Exchange
Commission (“Commission”) in connection with the IPO. The Corporation may require any holder of IPO Shares who demands
that the Corporation convert such IPO Shares into cash to either tender such holder’s certificates to the Corporation’s
transfer agent at any time prior to the vote taken at the stockholder meeting relating to such Business Combination or to deliver
their shares to the transfer agent electronically using the Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian)
System at any time prior to the vote taken at the stockholder meeting relating to such Business Combination, with the exact timing
of the delivery of the IPO Shares to be set forth in the proxy materials relating to such Business Combination.
D.
If the Corporation engages in a Tender Offer, the Corporation shall file tender offer documents with the Commission which will
contain substantially the same financial and other information about the Business Combination as is required under the proxy rules
promulgated under the Exchange Act and that would have been included in any proxy statement filed with the Commission in connection
with a Proxy Solicitation, even if such information is not required under the tender offer rules promulgated under the Exchange
Act. The per-share price at which the Corporation will repurchase the IPO Shares in any such Tender Offer shall be equal to the
Conversion Price. The Corporation shall not purchase any shares of Common Stock other than IPO Shares in any such Tender Offer.
E. The
Corporation will not consummate any Business Combination unless it has net tangible assets of at least $5,000,001 upon consummation
of such Business Combination.
F. In
the event that the Corporation does not consummate a Business Combination by 21 months from the consummation of the IPO (such
date being referred to as the “Termination Date”), the Corporation shall (i) cease all operations except for the purposes
of winding up, (ii) as promptly as reasonably possible but not more than ten (10) business days thereafter, redeem 100% of the
IPO Shares for cash for a redemption price per share equal to the amount then held in the Trust Account, including the interest
earned thereon and not previously released to the Corporation, net of taxes payable, divided by the total number of IPO Shares
then outstanding (which redemption will completely extinguish such holders’ rights as stockholders, including the right
to receive further liquidation distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible
following such redemption, subject to approval of the Corporation’s then stockholders and subject to the requirements of
the GCL, including the adoption of a resolution by the Board pursuant to Section 275(a) of the GCL finding the dissolution of
the Corporation advisable and the provision of such notices as are required by said Section 275(a) of the GCL, dissolve and liquidate
the balance of the Corporation’s net assets to its remaining stockholders, as part of the Corporation’s plan of dissolution
and liquidation, subject (in the case of clauses (ii) and (iii) above) to the Corporation’s obligations under the GCL to
provide for claims of creditors and other requirements of applicable law.
G. A
holder of IPO Shares shall be entitled to receive distributions from the Trust Fund only in the event (i) he demands conversion
of his shares in accordance with paragraph C above in connection with any Proxy Solicitation, (ii) he sells his shares to the
Corporation in accordance with paragraph D above in connection with any Tender Offer, (iii) that the Corporation has not consummated
a Business Combination by the Termination Date or (iv) the Corporation seeks to amend the provisions of this Article Sixth prior
to the consummation of a Business Combination. In no other circumstances shall a holder of IPO Shares have any right or interest
of any kind in or to the Trust Fund.
H. Unless
and until the Corporation has consummated its initial Business Combination as permitted under this Article Sixth, the Corporation
may not consummate any other business combination transaction, whether by merger, capital stock exchange, asset acquisition, stock
purchase, reorganization or other similar business combination, transaction or otherwise. The Corporation shall not consummate
a Business Combination with an entity that is affiliated with any of the Corporation’s officers, directors or sponsors unless
the Corporation has obtained an opinion from an independent investment banking firm or another independent entity that commonly
renders valuation opinions on the type of Target Business the Company is seeking to acquire that such a Business Combination is
fair to the Company from a financial point of view and a majority of the Corporation’s disinterested independent directors
approve such Business Combination.
I. Prior
to a Business Combination, the Board of Directors may not issue (i) any shares of Common Stock or any securities convertible into
Common Stock; or (ii) any securities which participate in or are otherwise entitled in any manner to any of the proceeds in the
Trust Account or which vote as a class with the Common Stock on any matter.
J. The
Board of Directors shall be divided into three classes: Class A, Class B and Class C. The number of directors in each class shall
be fixed exclusively by the Board of Directors and shall be as nearly equal as possible. At the first election of directors by
the incorporator, the incorporator shall elect a Class C director for a term expiring at the Corporation’s third Annual
Meeting of Stockholders. The Class C director shall then appoint additional Class A, Class B and Class C directors, as necessary.
The directors in Class A shall be elected for a term expiring at the first Annual Meeting of Stockholders, the directors in Class
B shall be elected for a term expiring at the second Annual Meeting of Stockholders and the directors in Class C shall be elected
for a term expiring at the third Annual Meeting of Stockholders. Commencing at the first Annual Meeting of Stockholders, and at
each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of
office to expire at the third succeeding annual meeting of stockholders after their election. Except as the GCL may otherwise
require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of
directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships
and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may
be filled only by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in
the Corporation’s Bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their
respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy
resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director
whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.
SEVENTH:
The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:
A. Election
of directors need not be by ballot unless the by-laws of the Corporation so provide.
B. The
Board of Directors shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to
or repeal the by-laws of the Corporation as provided in the by-laws of the Corporation.
C. The
directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders
or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act
that shall be approved or be ratified by the vote of the holders of a majority of the stock of the Corporation which is represented
in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented
in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal
attack because of directors’ interests, or for any other reason.
D. In
addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered
to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation; subject, nevertheless,
to the provisions of the statutes of Delaware, of this Certificate of Incorporation, and to any by-laws from time to time made
by the stockholders; provided, however, that no by-law so made shall invalidate any prior act of the directors which would have
been valid if such by-law had not been made.
EIGHTH:
A. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director, except for liability (i) for any breach of the director’s duty of loyalty to the
Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 174 of the GCL, or (iv) for any transaction from which the director derived an improper
personal benefit. If the GCL is amended to authorize corporate action further eliminating or limiting the personal liability of
directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted
by the GCL, as so amended. Any repeal or modification of this paragraph A by the stockholders of the Corporation shall not adversely
affect any right or protection of a director of the Corporation with respect to events occurring prior to the time of such repeal
or modification.
B. The
Corporation, to the full extent permitted by Section 145 of the GCL, as amended from time to time, shall indemnify all persons
whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending
any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled
to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized hereby.
NINTH:
Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or
between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware
may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the Delaware Code or on the application
of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation,
as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such
compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to
which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders
or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.
TENTH:
A. Unless the Corporation consents in writing to the selection of an alternative forum, the sole and exclusive
forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of
the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee
of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim arising pursuant
to any provision of the GCL or this Certificate of Incorporation or the Corporation’s Bylaws, or (iv) any action asserting
a claim governed by the internal affairs doctrine shall be the Court of Chancery of the State of Delaware (or if the Court of
Chancery does not have jurisdiction, another state court located within the State of Delaware, or if no state court located within
the State of Delaware has jurisdiction, the federal district court for the District of Delaware) in all cases subject to the court’s
having personal jurisdiction over the indispensable parties named as defendants.
B.
If any action the subject matter of which is within the scope of Section A immediately above is filed in a court other than
a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of
Delaware in connection with any action brought in any such court to enforce Section A immediately above (an “FSC Enforcement
Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon
such stockholder’s counsel in the Foreign Action as agent for such stockholder.
C.
If any provision or provisions of this Article TENTH shall be held to be invalid, illegal or unenforceable as applied
to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity,
legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article TENTH
(including, without limitation, each portion of any sentence of this Article TENTH containing any such provision held to be invalid,
illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision
to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing
or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented
to the provisions of this Article TENTH.
ELEVENTH:
The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any
of its officers or directors in circumstances where the application of any such doctrine would conflict with any fiduciary duties
or contractual obligations they may have as of the date of this Certificate of Incorporation or in the future. In addition to
the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of
the directors or officers of the Corporation unless such corporate opportunity is offered to such person solely in his or her
capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually
permitted to undertake and would otherwise be reasonable for the Corporation to pursue.
IN
WITNESS WHEREOF, the Corporation has caused this Amended and Restated Certificate of Incorporation to be signed by Ken DeCubellis,
its Chief Executive Officer, as of the __ day of __________, 2017.
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Ken DeCubellis
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Chief Executive Officer
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Exhibit 3.3
Adopted as of May __, 2017
BY LAWS
OF
BLACK RIDGE ACQUISITION
CORP.
ARTICLE I
OFFICES
1.1
Registered
Office
. The registered office of Black Ridge Acquisition Corp. (the “Corporation”) in the State of Delaware shall
be established and maintained at 1013 Centre Road, Suite 403-B, Wilmington, Delaware 19805, County of New Castle and Vcorp Services,
LLC shall be the registered agent of the corporation in charge thereof.
1.2
Other
Offices
. The Corporation may also have offices at such other places both within and without the State of Delaware as the board
of directors of the Corporation (the “Board of Directors”) may from time to time determine or the business of the Corporation
may require.
ARTICLE II
MEETINGS OF STOCKHOLDERS
2.1
Place
of Meetings
. All meetings of the stockholders shall be held at such time and place, either within or without the State of Delaware,
as shall be designated from time to time by the Board of Directors and stated in the notice of the meeting or in a duly executed
waiver of notice thereof.
2.2
Annual
Meetings
. The annual meeting of stockholders shall be held on such date and at such time as may be fixed by the Board of Directors
and stated in the notice of the meeting, for the purpose of electing directors and for the transaction of only such other business
as is properly brought before the meeting in accordance with these Bylaws (the “Bylaws”).
Written notice of an
annual meeting stating the place, date and hour of the meeting, shall be given to each stockholder entitled to vote at such meeting
not less than ten (10) nor more than sixty (60) days before the date of the annual meeting.
To be properly brought
before the annual meeting, business must be either (i) specified in the notice of annual meeting (or any supplement or amendment
thereto) given by or at the direction of the Board of Directors, (ii) otherwise brought before the annual meeting by or at the
direction of the Board of Directors, or (iii) otherwise properly brought before the annual meeting by a stockholder. In addition
to any other applicable requirements, for business to be properly brought before an annual meeting by a stockholder, the stockholder
must have given timely notice thereof in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice
must be delivered to or mailed and received at the principal executive offices of the Corporation not less than sixty (60) days
nor more than ninety (90) days prior to the meeting; provided, however, that in the event that less than seventy (70) days notice
or prior public disclosure of the date of the annual meeting is given or made to stockholders, notice by a stockholder, to be timely,
must be received no later than the close of business on the tenth (10th) day following the day on which such notice of the date
of the annual meeting was mailed or such public disclosure was made, whichever first occurs. A stockholder’s notice to the
Secretary shall set forth (a) as to each matter the stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons for conducting such business at the annual meeting,
and (ii) any material interest of the stockholder in such business, and (b) as to the stockholder giving the notice (i) the name
and record address of the stockholder and (ii) the class, series and number of shares of capital stock of the Corporation which
are beneficially owned by the stockholder. Notwithstanding anything in these Bylaws to the contrary, no business shall be conducted
at the annual meeting except in accordance with the procedures set forth in this Article II, Section 2. The officer of the Corporation
presiding at an annual meeting shall, if the facts warrant, determine and declare to the annual meeting that business was not properly
brought before the annual meeting in accordance with the provisions of this Article II, Section 2, and if such officer should so
determine, such officer shall so declare to the annual meeting and any such business not properly brought before the meeting shall
not be transacted.
2.3
Special
Meetings
. Special meetings of the stockholders, for any purpose or purposes, unless otherwise prescribed by statute or by the
Certificate of Incorporation of the Corporation (the “Certificate of Incorporation”), may only be called by a majority
of the entire Board of Directors, or the President or the Chairman, and shall be called by the Secretary at the request in writing
of stockholders owning a majority in amount of the entire capital stock of the corporation issued and outstanding and entitled
to vote. Such request shall state the purpose or purposes of the proposed meeting.
Unless otherwise provided
by law, written notice of a special meeting of stockholders, stating the time, place and purpose or purposes thereof, shall be
given to each stockholder entitled to vote at such meeting, not less than ten (10) or more than sixty (60) days before the date
fixed for the meeting. Business transacted at any special meeting of stockholders shall be limited to the purposes stated in the
notice.
2.4
Quorum
.
The holders of a majority of the capital stock issued and outstanding and entitled to vote thereat, present in person or represented
by proxy, shall constitute a quorum at all meetings of the stockholders for the transaction of business except as otherwise provided
by statute or by the Certificate of Incorporation. If, however, such quorum shall not be present or represented at any meeting
of the stockholders, the holders of a majority of the votes entitled to be cast by the stockholders entitled to vote thereat, present
in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement
at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment
is for more than thirty (30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder entitled to vote at the meeting.
2.5
Organization
.
The Chairman of the Board of Directors shall act as chairman of meetings of the stockholders. The Board of Directors may designate
any other officer or director of the Corporation to act as chairman of any meeting in the absence of the Chairman of the Board
of Directors, and the Board of Directors may further provide for determining who shall act as chairman of any stockholders meeting
in the absence of the Chairman of the Board of Directors and such designee.
The Secretary of the
Corporation shall act as secretary of all meetings of the stockholders, but in the absence of the Secretary the presiding officer
may appoint any other person to act as secretary of any meeting.
2.6
Voting
.
Unless otherwise required by law, the Certificate of Incorporation or these Bylaws, any question (other than the election of directors)
brought before any meeting of stockholders shall be decided by the vote of the holders of a majority of the stock represented and
entitled to vote thereat. At all meetings of stockholders for the election of directors, a plurality of the votes cast shall be
sufficient to elect. Each stockholder represented at a meeting of stockholders shall be entitled to cast one vote for each share
of the capital stock entitled to vote thereat held by such stockholder, unless otherwise provided by the Certificate of Incorporation.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize any person or persons to act for him by proxy. All proxies shall be executed in writing and shall
be filed with the Secretary of the Corporation not later than the day on which exercised. No proxy shall be voted or acted upon
after three (3) years from its date, unless the proxy provides for a longer period. The Board of Directors, in its discretion,
or the officer of the Corporation presiding at a meeting of stockholders, in his discretion, may require that any votes cast at
such meeting shall be cast by written ballot.
2.7
Action
of Shareholders Without Meeting
. Unless otherwise provided by the Certificate of Incorporation, any action required to be taken
at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders,
may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken,
shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to
authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be delivered
to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer
or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to
those stockholders who have not consented in writing.
2.8
Voting
List
. The officer who has charge of the stock ledger of the corporation shall prepare and make, at least ten (10) days before
every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order,
showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be
open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period
of at least ten (10) days prior to the election, either at a place within the city, town or village where the election is to be
held, which place shall be specified in the notice of the meeting, or, if not specified, at the place where said meeting is to
be held. The list shall be produced and kept at the time and place of election during the whole time thereof, and may be inspected
by any stockholder of the Corporation who is present.
2.9
Stock
Ledger
. The stock ledger of the Corporation shall be the only evidence as to who are the stockholders entitled to examine the
stock ledger, the list required by Section 8 of this Article II or the books of the Corporation, or to vote in person or by proxy
at any meeting of stockholders.
2.10
Adjournment
.
Any meeting of the stockholders, including one at which directors are to be elected, may be adjourned for such periods as the presiding
officer of the meeting or the stockholders present in person or by proxy and entitled to vote shall direct.
2.11
Ratification
.
Any transaction questioned in any stockholders’ derivative suit, or any other suit to enforce alleged rights of the Corporation
or any of its stockholders, on the ground of lack of authority, defective or irregular execution, adverse interest of any director,
officer or stockholder, nondisclosure, miscomputation or the application of improper principles or practices of accounting may
be approved, ratified and confirmed before or after judgment by the Board of Directors or by the holders of Common Stock and, if
so approved, ratified or confirmed, shall have the same force and effect as if the questioned transaction had been originally duly
authorized, and said approval, ratification or confirmation shall be binding upon the Corporation and all of its stockholders and
shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.
2.12
Inspectors
.
The election of directors and any other vote by ballot at any meeting of the stockholders shall be supervised by at least one inspector.
Such inspectors shall be appointed by the Board of Directors in advance of the meeting. If the inspector so appointed shall refuse
to serve or shall not be present, such appointment shall be made by the officer presiding at the meeting.
ARTICLE III
DIRECTORS
3.1
Powers;
Number; Qualifications
. The business and affairs of the Corporation shall be managed by or under the direction of the Board
of Directors, except as may be otherwise provided by law or in the Certificate of Incorporation. The number of directors which
shall constitute the Board of Directors shall be not less than one (1) nor more than nine (9). The exact number of directors shall
be fixed from time to time, within the limits specified in this Article III Section 1 or in the Certificate of Incorporation,
by the Board of Directors. Directors need not be stockholders of the Corporation. The Board may be divided into Classes as more
fully described in the Certificate of Incorporation.
3.2
Election;
Term of Office; Resignation; Removal; Vacancies
. Each director shall hold office until the next annual meeting of stockholders
at which his Class stands for election or until such director’s earlier resignation, removal from office, death or incapacity.
Unless otherwise provided in the Certificate of Incorporation, vacancies and newly created directorships resulting from any increase
in the authorized number of directors or from any other cause may be filled by a majority of the directors then in office, although
less than a quorum, or by a sole remaining director and each director so chosen shall hold office until the next election of the
class for which such director shall have been chosen, and until his successor shall be elected and qualified, or until such director’s
earlier resignation, removal from office, death or incapacity.
3.3
Nominations
.
Nominations of persons for election to the Board of Directors of the Corporation at a meeting of stockholders of the Corporation
may be made at such meeting by or at the direction of the Board of Directors, by any committee or persons appointed by the Board
of Directors or by any stockholder of the Corporation entitled to vote for the election of directors at the meeting who complies
with the notice procedures set forth in this Article III, Section 3. Such nominations by any stockholder shall be made pursuant
to timely notice in writing to the Secretary of the Corporation. To be timely, a stockholder’s notice shall be delivered
to or mailed and received at the principal executive offices of the Corporation not less than sixty (60) days nor more than ninety
(90) days prior to the meeting; provided however, that in the event that less than seventy (70) days notice or prior public disclosure
of the date of the meeting is given or made to stockholders, notice by the stockholder, to be timely, must be received no later
than the close of business on the tenth (10th) day following the day on which such notice of the date of the meeting was mailed
or such public disclosure was made, whichever first occurs. Such stockholder’s notice to the Secretary shall set forth (i)
as to each person whom the stockholder proposes to nominate for election or reelection as a director, (a) the name, age, business
address and residence address of the person, (b) the principal occupation or employment of the person, (c) the class and number
of shares of capital stock of the Corporation which are beneficially owned by the person, and (d) any other information relating
to the person that is required to be disclosed in solicitations for proxies for election of directors pursuant to the Rules and
Regulations of the Securities and Exchange Commission under Section 14 of the Securities Exchange Act of 1934, as amended, and
(ii) as to the stockholder giving the notice (a) the name and record address of the stockholder and (b) the class and number of
shares of capital stock of the Corporation which are beneficially owned by the stockholder. The Corporation may require any proposed
nominee to furnish such other information as may reasonably be required by the Corporation to determine the eligibility of such
proposed nominee to serve as a director of the Corporation. No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth herein. The officer of the Corporation presiding at an annual meeting
shall, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing
procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded.
3.4
Meetings
.
The Board of Directors of the Corporation may hold meetings, both regular and special, either within or without the State of Delaware.
The first meeting of each newly elected Board of Directors shall be held immediately after and at the same place as the meeting
of the stockholders at which it is elected and no notice of such meeting shall be necessary to the newly elected directors in order
to legally constitute the meeting, provided a quorum shall be present. Regular meetings of the Board of Directors may be held without
notice at such time and place as shall from time to time be determined by the Board of Directors. Special meetings of the Board
of Directors may be called by the President or a majority of the entire Board of Directors. Notice thereof stating the place, date
and hour of the meeting shall be given to each director either by mail not less than forty-eight (48) hours before the date of
the meeting, by telephone, facsimile, telegram or e-mail on twenty-four (24) hours notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the circumstances.
3.5
Quorum
.
Except as may be otherwise specifically provided by law, the Certificate of Incorporation or these Bylaws, at all meetings of the
Board of Directors or any committee thereof, a majority of the entire Board of Directors or such committee, as the case may be,
shall constitute a quorum for the transaction of business and the act of a majority of the directors present at any meeting at
which there is a quorum shall be the act of the Board of Directors. If a quorum shall not be present at any meeting of the Board
of Directors or of any committee thereof, a majority of the directors present thereat may adjourn the meeting from time to time,
without notice other than announcement at the meeting, until a quorum shall be present.
3.6
Organization
of Meetings
. The Board of Directors shall elect one of its members to be Chairman of the Board of Directors. The Chairman of
the Board of Directors shall lead the Board of Directors in fulfilling its responsibilities as set forth in these By-Laws, including
its responsibility to oversee the performance of the Corporation, and shall determine the agenda and perform all other duties and
exercise all other powers which are or from time to time may be delegated to him or her by the Board of Directors.
Meetings of the Board
of Directors shall be presided over by the Chairman of the Board of Directors, or in his or her absence, by the President, or in
the absence of the Chairman of the Board of Directors and the President by such other person as the Board of Directors may designate
or the members present may select.
3.7
Actions
of Board of Directors Without Meeting
. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any
action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof may be taken without
a meeting, if all members of the Board of Directors or of such committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic transmission or transmissions are filled with the minutes of
proceedings of the Board of Directors or committee.
3.8
Removal
of Directors by Stockholders
. The entire Board of Directors or any individual Director may be removed from office with or without
cause by a majority vote of the holders of the outstanding shares then entitled to vote at an election of directors. Notwithstanding
the foregoing, if the Corporation’s board is classified, stockholders may effect such removal only for cause. In case the
Board of Directors or any one or more Directors be so removed, new Directors may be elected at the same time for the unexpired
portion of the full term of the Director or Directors so removed.
3.9
Resignations
.
Any Director may resign at any time by submitting his written resignation to the Board of Directors or Secretary of the Corporation.
Such resignation shall take effect at the time of its receipt by the Corporation unless another time be fixed in the resignation,
in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it
effective.
3.10
Committees
.
The Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified
from voting, whether or not he or they constitute a quorum, may unanimously appoint another member of the Board of Directors to
act at the meeting in the place of any such absent or disqualified member. Any such committee, to the extent provided by law and
in the resolution of the Board of Directors establishing such committee, shall have and may exercise all the powers and authority
of the Board of Directors in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation
to be affixed to all papers which may require it; but no such committee shall have the power or authority in reference to amending
the Certificate of Incorporation, adopting an agreement of merger or consolidation, recommending to the stockholders the sale,
lease or exchange of all or substantially all of the Corporation’s property and assets, recommending to the stockholders
a dissolution of the Corporation or a revocation of a dissolution or amending the Bylaws of the Corporation; and, unless the resolution
expressly so provides, no such committee shall have the power or authority to declare a dividend or to authorize the issuance of
stock or to adopt a certificate of ownership and merger. Each committee shall keep regular minutes of its meetings and report the
same to the Board of Directors when required.
3.11
Compensation
.
The directors may be paid their expenses, if any, of attendance at each meeting of the Board of Directors and may be paid a fixed
amount (in cash or other form of consideration) for attendance at each meeting of the Board of Directors or a stated salary as
director. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like compensation for attending committee meetings.
3.12
Interested
Directors
. No contract or transaction between the Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other organization in which one or more of its directors or
officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the Board of Directors or committee thereof which authorizes
the contract or transaction, or solely because his or their votes are counted for such purpose, if (i) the material facts as to
his or their relationship or interest and as to the contract or transaction are disclosed or are known to the Board of Directors
or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction by the affirmative
votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum; or (ii) the
material facts as to his or their relationship or interest and as to the contract or transaction are disclosed or are known to
the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized, approved or ratified,
by the Board of Directors, a committee thereof or the stockholders. Common or interested directors may be counted in determining
the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract or transaction.
3.13
Meetings
by Means of Conference Telephone
. Members of the Board of Directors or any committee designed by the Board of Directors may
participate in a meeting of the Board of Directors or of a committee of the Board of Directors by means of conference telephone
or similar communications equipment by means of which all persons participating in the meeting can hear each other, and participation
in a meeting pursuant to this subsection shall constitute presence in person at such meeting.
ARTICLE IV
OFFICERS
4.1
General
.
The officers of the Corporation shall be elected by the Board of Directors and may consist of: a Chairman of the Board, Vice Chairman
of the Board, Chief Executive Officer, President, Chief Financial Officer, Secretary and Treasurer. The Board of Directors, in
its discretion, may also elect one or more Vice Presidents (including Executive Vice Presidents and Senior Vice Presidents), Assistant
Secretaries, Assistant Treasurers, a Controller and such other officers as in the judgment of the Board of Directors may be necessary
or desirable. Any number of offices may be held by the same person and more than one person may hold the same office, unless otherwise
prohibited by law, the Certificate of Incorporation or these Bylaws. The officers of the Corporation need not be stockholders of
the Corporation, nor need such officers be directors of the Corporation.
4.2
Election
.
The Board of Directors at its first meeting held after each annual meeting of stockholders shall elect the officers of the Corporation
who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from
time to time by the Board of Directors; and all officers of the Corporation shall hold office until their successors are chosen
and qualified, or until their earlier resignation or removal. Except as otherwise provided in this Article IV, any officer elected
by the Board of Directors may be removed at any time by the affirmative vote of a majority of the Board of Directors. Any vacancy
occurring in any office of the Corporation shall be filled by the Board of Directors. The salaries of all officers who are directors
of the Corporation shall be fixed by the Board of Directors.
4.3
Voting
Securities Owned by the Corporation
. Powers of attorney, proxies, waivers of notice of meeting, consents and other instruments
relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the President
or any Vice President, and any such officer may, in the name and on behalf of the Corporation, take all such action as any such
officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any and all rights and powers incident to the ownership
of such securities and which, as the owner thereof, the Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any other person or persons.
4.4
Chief
Executive Officer
. Subject to the provisions of these Bylaws and to the direction of the Board of Directors, the Chief Executive
Officer shall have ultimate authority for decisions relating to the general management and control of the affairs and business
of the Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated
to him or her by the Board of Directors or these Bylaws, all in accordance with basic policies as established by and subject to
the oversight of the Board of Directors.
4.5
President
.
At the request of the Chief Executive Officer, or in the absence of the Chief Executive Officer, or in the event of his or her
inability or refusal to act, the President shall perform the duties of the Chief Executive Officer, and when so acting, shall have
all the powers of and be subject to all the restrictions upon such office. The President shall perform such other duties and have
such other powers as the Board of Directors from time to time may prescribe.
4.6
Chief
Financial Officer
. The Chief Financial Officer shall have general supervision, direction and control of the financial affairs
of the Corporation and shall perform such other duties and exercise such other powers which are or from time to time may be delegated
to him or her by the Board of Directors or these Bylaws, all in accordance with basic policies as established by and subject to
the oversight of the Board of Directors. In the absence of a named Treasurer, the Chief Financial Officer shall also have the powers
and duties of the Treasurer as hereinafter set forth and shall be authorized and empowered to sign as Treasurer in any case where
such officer’s signature is required.
4.7
Vice
Presidents
. At the request of the President or in the absence of the President, or in the event of his or her inability or
refusal to act, the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors)
shall perform the duties of the President, and when so acting, shall have all the powers of and be subject to all the restrictions
upon such office. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from
time to time may prescribe. If there be no Vice President, the Board of Directors shall designate the officer of the Corporation
who, in the absence of the President or in the event of the inability or refusal of such officer to act, shall perform the duties
of such office, and when so acting, shall have all the powers of and be subject to all the restrictions upon such office.
4.8
Secretary
.
The Secretary shall attend all meetings of the Board of Directors and all meetings of stockholders and record all the proceedings
thereat in a book or books to be kept for that purpose; the Secretary shall also perform like duties for the standing committees
when required. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings
of the Board of Directors, and shall perform such other duties as may be prescribed by the Board of Directors or the President,
under whose supervision the Secretary shall be. If the Secretary shall be unable or shall refuse to cause to be given notice of
all meetings of the stockholders and special meetings of the Board of Directors, then any Assistant Secretary shall perform such
actions. If there be no Assistant Secretary, then the Board of Directors or the President may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the Corporation and the Secretary or any Assistant Secretary,
if there be one, shall have authority to affix the same to any instrument requiring it and when so affixed, it may be attested
by the signature of the Secretary or by the signature of any such Assistant Secretary. The Board of Directors may give general
authority to any other officer to affix the seal of the Corporation and to attest the affixing by his signature. The Secretary
shall see that all books, reports, statements, certificates and other documents and records required by law to be kept or filed
are properly kept or filed, as the case may be.
4.9
Treasurer
.
The Treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts
and disbursements in books belonging to the Corporation and shall deposit all moneys and other valuable effects in the name and
to the credit of the Corporation in such depositories as may be designated by the Board of Directors. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors, taking proper vouchers for such disbursements, and shall
render to the President and the Board of Directors, at its regular meetings, or when the Board of Directors so requires, an account
of all his transactions as Treasurer and of the financial condition of the Corporation. If required by the Board of Directors,
the Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the Board
of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind
in his possession or under his control belonging to the Corporation.
4.10
Assistant
Secretaries
. Except as may be otherwise provided in these Bylaws, Assistant Secretaries, if there be any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Board of Directors, the President, any Vice President,
if there be one, or the Secretary, and in the absence of the Secretary or in the event of his disability or refusal to act, shall
perform the duties of the Secretary, and when so acting, shall have all the powers of and be subject to all the restrictions upon
the Secretary.
4.11
Assistant
Treasurers
. Assistant Treasurers, if there be any, shall perform such duties and have such powers as from time to time may
be assigned to them by the Board of Directors, the President, any Vice President, if there be one, or the Treasurer, and in the
absence of the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the Treasurer, and when
so acting, shall have all the powers of and be subject to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum and with such surety or sureties as shall be satisfactory
to the Board of Directors for the faithful performance of the duties of his office and for the restoration to the Corporation,
in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property
of whatever kind in his possession or under his control belonging to the Corporation.
4.12
Controller
.
The Controller shall establish and maintain the accounting records of the Corporation in accordance with generally accepted accounting
principles applied on a consistent basis, maintain proper internal control of the assets of the Corporation and shall perform such
other duties as the Board of Directors, the President or any Vice President of the Corporation may prescribe.
4.13
Other
Officers
. Such other officers as the Board of Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of Directors may delegate to any other officer of the Corporation
the power to choose such other officers and to prescribe their respective duties and powers.
4.14
Vacancies
.
The Board of Directors shall have the power to fill any vacancies in any office occurring from whatever reason.
4.15
Resignations
.
Any officer may resign at any time by submitting his written resignation to the Corporation. Such resignation shall take effect
at the time of its receipt by the Corporation, unless another time be fixed in the resignation, in which case it shall become effective
at the time so fixed. The acceptance of a resignation shall not be required to make it effective.
4.16
Removal
.
Subject to the provisions of any employment agreement approved by the Board of Directors, any officer of the Corporation may be
removed at any time, with or without cause, by the Board of Directors.
ARTICLE V
CAPITAL STOCK
5.1
Form
of Certificates
. The shares of stock in the Corporation shall be represented by certificates, provided that the Board of Directors
may provide by resolution or resolutions that some or all of any or all classes or series of the Corporation’s stock shall
be in uncertificated form. Stock certificates shall be in such forms as the Board of Directors may prescribe and signed by the
Chairman of the Board, President or a Vice President and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation.
5.2
Signatures
.
Any or all of the signatures on a stock certificate may be a facsimile, including, but not limited to, signatures of officers of
the Corporation and countersignatures of a transfer agent or registrar. In case an officer, transfer agent or registrar who has
signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such
officer, transfer agent or registrar at the date of issue.
5.3
Lost
Certificates
. The Board of Directors may direct a new stock certificate or certificates to be issued in place of any stock
certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to be lost, stolen or destroyed. When authorizing
such issue of a new stock certificate, the Board of Directors may, in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or his legal representative, to advertise the same in
such manner as the Board of Directors shall require and/or to give the Corporation a bond in such sum as it may direct as indemnity
against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
5.4
Transfers
.
Stock of the Corporation shall be transferable in the manner prescribed by law and in these Bylaws. Transfers of certificated stock
shall be made on the books of the Corporation only by the person named in the certificate or by such person’s attorney lawfully
constituted in writing and upon the surrender of the certificate therefor, which shall be canceled before a new certificate shall
be issued. Transfers of uncertificated stock shall be made on the books of the Corporation only by the person then registered on
the books of the Corporation as the owner of such shares or by such person's attorney lawfully constituted in writing and written
instruction to the Corporation containing such information as the Corporation or its agents may prescribe. No transfer of uncertificated
stock shall be valid as against the Corporation for any purpose until it shall have been entered in the stock records of the Corporation
by an entry showing from and to whom transferred. The Corporation shall have no duty to inquire into adverse claims with respect
to any stock transfer unless (a) the Corporation has received a written notification of an adverse claim at a time and in a manner
which affords the Corporation a reasonable opportunity to act on it prior to the issuance of a new, reissued or re-registered share
certificate, in the case of certificated stock, or entry in the stock record books of the Corporation, in the case of uncertificated
stock, and the notification identifies the claimant, the registered owner and the issue of which the share or shares is a part
and provides an address for communications directed to the claimant; or (b) the Corporation has required and obtained, with respect
to a fiduciary, a copy of a will, trust, indenture, articles of co-partnership, Bylaws or other controlling instruments, for a
purpose other than to obtain appropriate evidence of the appointment or incumbency of the fiduciary, and such documents indicate,
upon reasonable inspection, the existence of an adverse claim. The Corporation may discharge any duty of inquiry by any reasonable
means, including notifying an adverse claimant by registered or certified mail at the address furnished by him or, if there be
no such address, at his residence or regular place of business that the security has been presented for registration of transfer
by a named person, and that the transfer will be registered unless within thirty days from the date of mailing the notification,
either (a) an appropriate restraining order, injunction or other process issues from a court of competent jurisdiction; or (b)
an indemnity bond, sufficient in the Corporation’s judgment to protect the Corporation and any transfer agent, registrar
or other agent of the Corporation involved from any loss which it or they may suffer by complying with the adverse claim, is filed
with the Corporation.
5.5
Fixing
Record Date
. In order that the Corporation may determine the stockholders entitled to notice or to vote at any meeting of stockholders
or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix a record date, which
record date shall not precede the date upon which the resolution fixing the record is adopted by the Board of Directors, and which
record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than ten (10)
days after the date upon which the resolution fixing the record date of action with a meeting is adopted by the Board of Directors,
nor more than sixty (60) days prior to any other action. If no record date is fixed:
(a) The
record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day
next preceding the day on which the meeting is held.
(b) The
record date for determining stockholders entitled to express consent to corporate action in writing without a meeting, when no
prior action by the Board of Directors is necessary, shall be the first date on which a signed written consent is delivered to
the Corporation.
(c) The
record date for determining stockholders for any other purpose shall be at the close of business on the day on which the Board
of Directors adopts the resolution relating thereto.
A determination of
stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
5.6
Registered
Stockholders
. Prior to due presentment for transfer of any share or shares, the Corporation shall treat the registered owner
thereof as the person exclusively entitled to vote, to receive notifications and to all other benefits of ownership with respect
to such share or shares, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares
on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by
the laws of the State Delaware.
ARTICLE VI
NOTICES
6.1
Form
of Notice
. Notices to directors and stockholders other than notices to directors of special meetings of the board of Directors
which may be given by any means stated in Article III, Section 4, shall be in writing and delivered personally or mailed to the
directors or stockholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given
at the time when the same shall be mailed. Notice to directors may also be given by telegram.
6.2
Waiver
of Notice
. Whenever any notice is required to be given under the provisions of law or the Certificate of Incorporation or by
these Bylaws of the Corporation, a written waiver, signed by the person or persons entitled to notice, whether before or after
the time stated therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of
notice of such meeting, except when the person attends a meeting for the express purpose of objecting, at the beginning of the
meeting, to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of, any regular, or special meeting of the stockholders, Directors, or members of a committee of
Directors need be specified in any written waiver of notice unless so required by the Certificate of Incorporation.
ARTICLE VII
INDEMNIFICATION
OF DIRECTORS AND OFFICERS
7.1 The
Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the
right of the Corporation) by reason of the fact that he is or was a director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding if he acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit
or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself,
create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in or not opposed
to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
7.2 The
Corporation shall indemnify any person who was or is a party, or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as
a director, officer, employee or agent of another Corporation, partnership, joint venture, trust or other enterprise against expenses
(including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such
action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of
the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
7.3 To
the extent that a director, officer, employee or agent of the Corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 1 or 2 of this Article, or in defense of any claim, issue or matter therein,
he shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection
therewith.
7.4 Any
indemnification under sections 1 or 2 of this Article (unless ordered by a court) shall be made by the Corporation only as authorized
in the specific case upon a determination that indemnification of the director, officer, employee or agent is proper in the circumstances
because he has met the applicable standard of conduct set forth in such section. Such determination shall be made:
(a) By
the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding,
or
(b) If
such a quorum is not obtainable, or, even if obtainable a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion, or
(c) By
the stockholders.
7.5 Expenses
(including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative
action, suit or proceeding may be paid by the Corporation in advance of the final disposition of such action, suit or proceeding
upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined
that he is not entitled to be indemnified by the Corporation as authorized in this Section. Such expenses (including attorneys’
fees) incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Board of Directors deems
appropriate.
7.6 The
indemnification and advancement of expenses provided by, or granted pursuant to the other sections of this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any
bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and
as to action in another capacity while holding such office.
7.7 The
Corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee
or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of
another Corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred
by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify
him against such liability under the provisions of this Article.
7.8 For
purposes of this Article, references to “the Corporation” shall include, in addition to the resulting Corporation,
any constituent Corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer employee or agent of such constituent Corporation, or is or was serving at the request
of such constituent Corporation as a director, officer, employee or agent of another Corporation, partnership, joint venture, trust
or other enterprise, shall stand in the same position under this Article with respect to the resulting or surviving Corporation
as he would have with respect to such constituent Corporation of its separate existence had continued.
7.9 For
purposes of this Article, references to “other enterprises” shall include employee benefit plans; references to “fines”
shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving
at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation
which imposes duties on, or involves services by, such director, officer, employee, or agent with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not
opposed to the best interests of the Corporation” as referred to in this Article.
7.10 The
indemnification and advancement of expenses provided by, or granted pursuant to, this Article shall, unless otherwise provided
when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure
to the benefit of the heirs, executors and administrators of such a person.
7.11 No
director or officer of the Corporation shall be personally liable to the Corporation or to any stockholder of the Corporation for
monetary damages for breach of fiduciary duty as a director or officer, provided that this provision shall not limit the liability
of a director or officer (i) for any breach of the director’s or the officer’s duty of loyalty to the Corporation or
its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the General Corporation Law of Delaware, or (iv) for any transaction from which the director or
officer derived an improper personal benefit.
ARTICLE VIII
GENERAL PROVISIONS
8.1
Reliance
on Books and Records
. Each Director, each member of any committee designated by the Board of Directors, and each officer of
the Corporation, shall, in the performance of his duties, be fully protected in relying in good faith upon the books of account
or other records of the Corporation, including reports made to the Corporation by any of its officers, by an independent certified
public accountant, or by an appraiser selected with reasonable care.
8.2
Maintenance
and Inspection of Records
. The Corporation shall, either at its principal executive office or at such place or places as designated
by the Board of Directors, keep a record of its stockholders listing their names and addresses and the number and class of shares
held by each stockholder, a copy of these by-laws, as may be amended to date, minute books, accounting books and other records.
Any such records maintained
by the Corporation may be kept on, or by means of, or be in the form of, any information storage device or method, provided that
the records so kept can be converted into clearly legible paper form within a reasonable time. The Corporation shall so convert
any records so kept upon the request of any person entitled to inspect such records pursuant to the provisions of the Delaware
General Corporation Law. When records are kept in such manner, a clearly legible paper form produced from or by means of the information
storage device or method shall be admissible in evidence, and accepted for all other purposes, to the same extent as an original
paper form accurately portrays the record.
Any stockholder of record, in person or
by attorney or other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual
hours for business to inspect for any proper purpose the Corporation’s stock ledger, a list of its stockholders, and its
other books and records and to make copies or extracts therefrom. A proper purpose shall mean a purpose reasonably related to such
person’s interest as a stockholder. In every instance where an attorney or other agent is the person who seeks the right
to inspection, the demand under oath shall be accompanied by a power of attorney or such other writing that authorizes the attorney
or other agent to so act on behalf of the stockholder. The demand under oath shall be directed to the Corporation at its registered
office in Delaware or at its principal executive office.
8.3
Inspection
by Directors
. Any director shall have the right to examine the Corporation’s stock ledger, a list of its stockholders,
and its other books and records for a purpose reasonably related to his or her position as a director.
8.4
Dividends
.
Subject to the provisions of the Certificate of Incorporation, if any, dividends upon the capital stock of the Corporation may
be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property,
or in shares of the capital stock, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend,
there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Directors from time
to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends,
or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive
to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created.
8.5
Checks
.
All checks or demands for money and notes of the Corporation shall be signed by such officer or officers or such other persons
as the Board of Directors may from time to time designate.
8.6
Fiscal
Year
. The fiscal year of the Corporation shall be as determined by the Board of Directors. If the Board of Directors shall
fail to do so, the President shall fix the fiscal year.
8.7
Seal
.
The corporate seal shall have inscribed thereon the name of the Corporation, the year of its organization and the words “Corporate
Seal, Delaware”. The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any manner reproduced.
8.8
Amendments
.
The original or other Bylaws may be adopted, amended or repealed by the stockholders entitled to vote thereon at any regular or
special meeting or, if the Certificate of Incorporation so provides, by the Board of Directors. The fact that such power has been
so conferred upon the Board of Directors shall not divest the stockholders of the power nor limit their power to adopt, amend or
repeal Bylaws.
8.9
Interpretation
of Bylaws
. All words, terms and provisions of these Bylaws shall be interpreted and defined by and in accordance with the General
Corporation Law of the State of Delaware, as amended, and as amended from time to time hereafter.
Exhibit 4.1
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NUMBER
U-__________
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UNITS
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SEE
REVERSE FOR
CERTAIN DEFINITIONS
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BLACK
RIDGE ACQUISITION CORP.
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CUSIP
09216T 206
UNITS
CONSISTING OF ONE SHARE OF COMMON STOCK, ONE RIGHT AND ONE WARRANT
THIS
CERTIFIES THAT ______________________________________________________________________________________________
is
the owner of _______________________________________________________________________________________________________ Units.
Each
Unit (“Unit”) consists of one (1) share of common stock, par value $0.0001 per share (“Common Stock”),
of Black Ridge Acquisition Corp., a Delaware corporation (the “Company”), one right (the “Right(s)”) and
one warrant (the “Warrant(s)”). Each Right entitles the holder to receive one-tenth (1/10) of a share of Common Stock
upon consummation of the Company’s initial merger, share exchange, asset acquisition, stock purchase, recapitalization,
reorganization or other similar business combination (“Business Combination”). Each whole Warrant entitles the holder
to purchase one (1) share of Common Stock for $11.50 per share (subject to adjustment). Each Warrant will become exercisable on
the later of (i) 30 days after the Company’s completion of a Business Combination and (ii) 12 months from the closing of
the Company’s initial public offering (“IPO”), and will expire unless exercised before 5:00 p.m., New York City
Time, on the fifth anniversary of the completion of an initial Business Combination, or earlier upon redemption (the “Expiration
Date”). The Common Stock, Rights and Warrants comprising the Units represented by this certificate are not transferable
separately prior to the 90
th
day after the date of the prospectus relating to the Company’s IPO, subject to earlier
separation in the discretion of EarlyBirdCapital, Inc. provided that the Company has filed with the Securities and Exchange Commission
a Current Report on Form 8-K which includes an audited balance sheet reflecting the Company’s receipt of the gross proceeds
of the IPO and issued a press release announcing when separate trading will begin. The terms of the Rights are governed by a Rights
Agreement, dated as of _______, 2017, between the Company and Continental Stock Transfer & Trust Company, as Rights Agent,
and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate
consents to by acceptance hereof. The terms of the Warrants are governed by a Warrant Agreement, dated as of _______, 2017, between
the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions
contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of
the Rights Agreement and Warrant Agreement are on file at the office of Continental Stock Transfer & Trust Company at 1 State
Street Plaza, New York, New York 10004, and are available to any Rights holder or Warrant holder, as the case may be, on written
request and without cost.
This
certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.
Witness
the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
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By
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Chairman of the Board
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Secretary
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Black
Ridge Acquisition Corp.
The
Company will furnish without charge to each stockholder who so requests, a statement of the powers, designations, preferences
and relative, participating, optional or other special rights of each class of stock or series thereof of the Company and the
qualifications, limitations, or restrictions of such preferences and/or rights.
The
following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
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TEN
COM –
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as
tenants in common
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UNIF
GIFT MIN ACT - _____ Custodian ______
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TEN
ENT –
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as
tenants by the entireties
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(Cust)
(Minor)
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JT
TEN –
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as
joint tenants with right of survivorship
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under
Uniform Gifts to Minors
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and
not as tenants in common
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Act
______________
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(State)
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Additional
abbreviations may also be used though not in the above list.
For
value received, ___________________________ hereby sell, assign and transfer unto
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PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING
NUMBER OF ASSIGNEE
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(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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Units
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represented
by the within Certificate, and do hereby irrevocably constitute and appoint
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Attorney
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to
transfer the said Units on the books of the within named Company will full power of substitution in the premises.
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Dated
___________________
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Notice:
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The
signature to this assignment must correspond with the name as written upon the face of
the certificate in every particular, without alteration or enlargement or any change
whatever.
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Signature(s)
Guaranteed:
THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT
TO S.E.C. RULE 17Ad-15).
The
holder(s) of this certificate shall be entitled to receive a pro-rata portion of the funds from the trust account with respect
to the common stock underlying this certificate only in the event that (i) the Corporation is forced to liquidate because it does
not consummate an initial business combination within the period of time set forth in the Corporation’s Amended and Restated
Certificate of Incorporation, as the same may be amended from time to time (the “Charter”) or (ii) if the holder seeks
to convert his shares upon consummation of, or sell his shares in a tender offer in connection with, an initial business combination
or in connection with certain amendments to the Charter. In no other circumstances shall the holder(s) have any right or interest
of any kind in or to the trust account.
Exhibit 4.2
______C
BLACK
RIDGE ACQUISITION CORP.
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON
STOCK
SEE
REVERSE FOR
CERTAIN DEFINITIONS
|
This
Certifies that
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CUSIP
09216T 107
|
is
the owner of
FULLY
PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF THE COMMON STOCK OF
BLACK
RIDGE ACQUISITION CORP.
transferable
on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed.
The
Corporation will be forced to liquidate if it is unable to complete an initial business combination within the period of time
as set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended from time
to time, all as more fully described in the Corporation’s final prospectus dated _____, 2017
This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers.
Dated:
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CHAIRMAN
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SECRETARY
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The
following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
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TEN
COM –
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as
tenants in common
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UNIF
GIFT MIN ACT - _____ Custodian ______
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TEN
ENT –
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as
tenants by the entireties
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(Cust)
(Minor)
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JT
TEN –
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as
joint tenants with right of survivorship
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under
Uniform Gifts to Minors
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and
not as tenants in common
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Act
______________
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(State)
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Additional
abbreviations may also be used though not in the above list.
Black
Ridge Acquisition Corp.
The
Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series thereof of the Corporation and the qualifications,
limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued
and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions
of the Board of Directors providing for the issue of shares of Preferred Stock (copies of which may be obtained from the secretary
of the Corporation), to all of which the holder of this certificate by acceptance hereof assents.
For
value received, ___________________________ hereby sell, assign and transfer unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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shares
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of the capital stock represented by the within
Certificate, and do hereby irrevocably constitute and appoint
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Attorney
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to transfer the said stock on the books of
the within named Corporation will full power of substitution in the premises.
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Dated
______________________
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Notice:
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The
signature to this assignment must correspond with the name as written upon the face of
the certificate in every particular, without alteration or enlargement or any change
whatever.
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Signature(s)
Guaranteed:
THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP
IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT
TO S.E.C. RULE 17Ad-15).
The
holder(s) of this certificate shall be entitled to receive a pro-rata portion of the funds from the trust account only in the
event that (i) the Corporation is forced to liquidate because it does not consummate an initial business combination within the
period of time set forth in the Corporation’s Amended and Restated Certificate of Incorporation, as the same may be amended
from time to time (the “Charter”) or (ii) if the holder seeks to convert his shares upon consummation of, or sell
his shares in a tender offer in connection with, an initial business combination or in connection with certain amendments to the
Charter. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.
Exhibit 4.3
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NUMBER
________-
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(SEE
REVERSE SIDE FOR LEGEND)
THIS
WARRANT WILL BE VOID IF NOT EXERCISED PRIOR TO THE EXPIRATION DATE (DEFINED BELOW)
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WARRANTS
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BLACK
RIDGE ACQUISITION CORP.
CUSIP
09216T 115
WARRANT
THIS
CERTIFIES THAT, for value received
is
the registered holder of a warrant or warrants (the “Warrant(s)”) to purchase one fully paid and non-assessable share
of Common Stock, par value $0.0001 per share (“Shares”), of Black Ridge Acquisition Corp., a Delaware corporation
(the “Company”), expiring at 5:00 p.m., New York City time, on the five year anniversary (the “Expiration Date”)
of the completion by the Company of a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization
or other similar business combination with one or more businesses or entities (a “Business Combination”). The Warrant
entitles the holder thereof to purchase from the Company, commencing on the later of (i) 30 days after the Company’s completion
of a Business Combination and (ii) ______________, 2017, such number of Shares of the Company as set forth above, at the price
of $11.50 per Share, upon surrender of this Warrant Certificate and payment of the Warrant Price at the office or agency of the
Warrant Agent, Continental Stock Transfer & Trust Company, but only subject to the conditions set forth herein and in the
Warrant Agreement between the Company and Continental Stock Transfer & Trust Company. In no event will the Company be required
to net cash settle the warrant exercise. The Warrant Agreement provides that upon the occurrence of certain events the Warrant
Price and the number of Warrant Shares purchasable hereunder, set forth on the face hereof, may, subject to certain conditions,
be adjusted. The term Warrant Price as used in this Warrant Certificate refers to the price per Share at which Shares may be purchased
at the time the Warrant is exercised.
No
fraction of a Share will be issued upon any exercise of a Warrant. If the holder of a Warrant would be entitled to receive a fraction
of a Share upon any exercise of a Warrant, the Company shall, upon such exercise, round up to the nearest whole number the number
of Shares to be issued to such holder.
Upon
any exercise of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered
holder hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the
Warrant has not been exercised.
Warrant
Certificates, when surrendered at the office or agency of the Warrant Agent by the registered holder hereof in person or by attorney
duly authorized in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but
without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in
the aggregate a like number of Warrants.
Upon
due presentment for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant
Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to
the transferee in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without
charge except for any applicable tax or other governmental charge.
The
Company and the Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution
to the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice
to the contrary.
This
Warrant does not entitle the registered holder to any of the rights of a stockholder of the Company.
The
Company reserves the right to call the Warrant at any time prior to its exercise, with a notice of call in writing to the holders
of record of the Warrant, giving 30 days’ notice of such call at any time after the Warrant becomes exercisable if the last
sale price of the Shares has been at least $18.00 per share on each of 20 trading days within any 30 trading day period ending
on the third business day prior to the date on which notice of such call is given, if, and only if, there is a current registration
statement in effect with respect to the Shares underlying the Warrant. The call price of the Warrants is to be $0.01 per Warrant.
Any Warrant either not exercised or tendered back to the Company by the end of the date specified in the notice of call shall
be canceled on the books of the Company and have no further value except for the $0.01 call price.
By
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Secretary
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Chairman of the Board
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SUBSCRIPTION
FORM
To
Be Executed by the Registered Holder in Order to Exercise Warrants
The
undersigned Registered Holder irrevocably elects to exercise ______________ Warrants represented by this Warrant Certificate,
and to purchase the shares of Common Stock issuable upon the exercise of such Warrants, and requests that Certificates for such
shares shall be issued in the name of
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
and,
if such number of Warrants shall not be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate
for the balance of such Warrants be registered in the name of, and delivered to, the Registered Holder at the address stated below:
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Dated:
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(SIGNATURE)
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(ADDRESS)
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(TAX IDENTIFICATION NUMBER)
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ASSIGNMENT
To
Be Executed by the Registered Holder in Order to Assign Warrants
For
Value Received, _______________________ hereby sell, assign, and transfer unto
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(PLEASE
TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL
SECURITY OR TAX IDENTIFICATION NUMBER)
(PLEASE
PRINT OR TYPE NAME AND ADDRESS)
______________________
of the Warrants represented by this Warrant Certificate, and hereby irrevocably constitute and appoint _________________________________
Attorney to transfer this Warrant Certificate on the books of the Company, with full power of substitution in the premises.
The
signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate
in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or
trust company or a member firm of the American Stock Exchange, New York Stock Exchange, Pacific Stock Exchange or Chicago
Stock Exchange.
Exhibit
4.4
______R
BLACK
RIDGE ACQUISITION CORP.
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
RIGHT
SEE
REVERSE FOR
CERTAIN DEFINITIONS
CUSIP
09216T 123
THIS
CERTIFIES THAT, for value received
is
the registered holder of a right or rights (the “Right”) to receive one-tenth of one share of common stock,
par value $.0001 per share (“Common Stock”), of Black Ridge Acquisition Corp. (the “Company”) for each Right
evidenced by this Right Certificate on the Company’s completion of an initial business combination (as defined in the
prospectus relating to the Company’s initial public offering (“Prospectus”) upon surrender of this Right
Certificate pursuant to the Rights Agreement between the Company and Continental Stock Transfer & Trust Company. In no
event will the Company be required to net cash settle any Right or issue a fractional shares of Common
Stock.
Upon
liquidation of the Company in the event an initial business combination is not consummated during the required period
as identified in the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended from time
to time, the Right(s) shall expire and be worthless. The holder of a Right shall have no right or interest of any kind in
the Company’s trust account (as defined in the Prospectus).
Upon
due presentment for registration of transfer of the Right Certificate at the office or agency of Continental Stock Transfer &
Trust Company, the Right Agent, a new Right Certificate or Right Certificates of like tenor and evidencing in the aggregate a
like number of Rights shall be issued to the transferee in exchange for this Right Certificate, without charge except for any
applicable tax or other governmental charge.
The
Company and the Right Agent may deem and treat the registered holder as the absolute owner of this Right Certificate (notwithstanding
any notation of ownership or other writing hereon made by anyone), for the purpose of any conversion hereof, of any distribution
to the registered holder, and for all other purposes, and neither the Company nor the Right Agent shall be affected by any notice
to the contrary.
Holders
of Rights are not entitled to any of the rights of a stockholder of the Company.
Dated:
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CHAIRMAN
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SECRETARY
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The
following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were
written out in full according to applicable laws or regulations:
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TEN COM –
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as tenants in common
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UNIF GIFT MIN ACT -
_______ Custodian _______
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TEN ENT –
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as tenants by the entireties
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(Cust)
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(Minor)
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JT TEN –
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as joint tenants with right of survivorship
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under Uniform Gifts to Minors
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and not as tenants in common
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Act __________________
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(State)
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Additional
Abbreviations may also be used though not in the above list.
Black
Ridge Acquisition Corp.
The
Company will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations,
or restrictions of such preferences and/or rights. This certificate and the rights represented thereby are issued and shall be
held subject to all the provisions of the Rights Agreement, and all amendments thereto, to all of which the holder of this certificate
by acceptance hereof assents.
For
value received, ___________________________ hereby sell, assign and transfer unto
PLEASE
INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Rights
represented by the within Certificate, and do hereby irrevocably constitute and appoint
_________________________________________________________________________________
Attorney
to transfer the said Rights on the books of the within named Company will full power of substitution in the
premises.
Dated
__________________
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Notice:
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The
signature to this assignment must correspond with the name as written upon the face of
the certificate in every particular, without alteration or enlargement or any change
whatever.
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Signature(s)
Guaranteed:
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THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND
CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT
TO S.E.C. RULE 17Ad-15).
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The
holder of this certificate shall have no right or interest of any kind in or to the funds held in the Company’s trust account
(as defined in the Prospectus).
Exhibit 4.5
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (“Agreement”)
dated as of [______], 2017 is between Black Ridge Acquisition Corp., a Delaware corporation, (“Company”), and Continental
Stock Transfer & Trust Company, a New York corporation (“Warrant Agent”).
WHEREAS, the Company has received a binding
commitment from Black Ridge Oil & Gas, Inc., the Company’s sponsor (“Sponsor”), to purchase up to an aggregate
of 387,500 units (each a “Unit”), each Unit comprised of one share of common stock of the Company, par value $0.0001
per share (“Common Stock”), one right to receive one-tenth of one share of Common Stock and one warrant,
each warrant to purchase one share of Common Stock for $11.50 per share, subject to adjustment as described herein, and in
connection therewith, will issue and deliver up to an aggregate of 387,500 warrants (“Sponsor’s Warrants”) upon
consummation of such private placement; and
WHEREAS, the Company is engaged in a public
offering (“Public Offering”) of Units and, in connection therewith, has determined to issue and deliver (i) up to 11,500,000
warrants (the “Public Warrants”), to the public investors and (ii) 500,000 warrants (underlying unit purchase options)
to EarlyBirdCapital, Inc. (“EBC”) and/or its designees (the “EBC Warrants”); and
WHEREAS, following consummation of the Public
Offering, the Company may issue additional warrants (“Post IPO Warrants” and together with the Sponsor’s Warrants,
Public Warrants and EBC Warrants, the “Warrants”) in connection with, or following the consummation by the Company
of, a Business Combination (defined below); and
WHEREAS, the Company has filed with the
Securities and Exchange Commission a Registration Statement on Form S-1, No. 333-________ (“Registration Statement”)
for the registration, under the Securities Act of 1933, as amended (“Act”), of, among other securities, the Public
Warrants and the EBC Warrants; and
WHEREAS, the Company desires the Warrant
Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration,
transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide
for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done
and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf
of the Warrant Agent, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution
and delivery of this Agreement.
NOW, THEREFORE, in consideration of the
mutual agreements herein contained, the parties hereto agree as follows:
1.
Appointment of
Warrant Agent
. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this
Agreement.
2.
Warrants
.
2.1.
Form
of Warrant
. Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board
of Directors or Chief Executive Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile
of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased
to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same
effect as if he or she had not ceased to be such at the date of issuance.
2.2.
Uncertificated
Warrants
. Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be
represented by, a Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the
facilities of The Depository Trust Company (the “Depositary”) or other book-entry depositary system, in each case as
determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall
have the same terms, force and effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance
with the terms of this Agreement.
2.3.
Effect
of Countersignature
. Except with respect to uncertificated Warrants as described above, unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.4.
Registration
.
2.4.1.
Warrant
Register
. The Warrant Agent shall maintain books (“Warrant Register”) for the registration of original issuance
and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and
register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.4.2.
Registered
Holder
. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and
treat the person in whose name such Warrant is then registered in the Warrant Register (“registered holder”) as the
absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other writing
on the Warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof,
and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.5.
Detachability
of Warrants
. The securities comprising the Units will not be separately transferable until the 90
th
day following
the date of the prospectus or, if such 90
th
day is not on a day, other than Saturday, Sunday or federal holiday, on
which banks in New York City are generally open for normal business (a “Business Day”), then on the immediately succeeding
Business Day following such date, or earlier with the consent of EBC, but in no event will EBC allow separate trading of the securities
comprising the Units until (i) the Company has filed a Current Report on Form 8-K which includes an audited balance sheet reflecting
the receipt by the Company of the gross proceeds of the Public Offering including the proceeds received by the Company from the
exercise of the underwriters’ over-allotment option in the Public Offering, if the over-allotment option is exercised prior
to the filing of the Form 8-K, and
(ii) the Company has issued a press release and has filed a Current Report on Form 8-K announcing when such separate trading shall
begin (the “Detachment Date”).
2.6.
Sponsor’s
Warrant Attributes
. The Sponsor’s Warrants will be issued in the same form as the Public Warrants but they (i) will not
be redeemable by the Company and (ii) may be exercised for cash or on a cashless basis at the holder’s option, in either
case as long as the Sponsor’s Warrants are held by the Sponsor or its affiliates and permitted transferees (as prescribed
in Section 5.6 hereof). Once a Sponsor’s Warrant is transferred to a holder other than an affiliate or permitted transferee,
it shall be treated as a Public Warrant hereunder for all purposes.
2.7.
EBC
Warrants
. The EBC Warrants, when issued, shall have the same terms and be in the same form as the Public Warrants. The provisions
of this Section 2.7 may not be modified, amended or deleted without the prior consent of EBC.
2.8
Post
IPO Warrants
. The Post IPO Warrants, when and if issued, shall have the same terms and be in the same form as the Public Warrants.
3.
Terms and Exercise
of Warrants
3.1.
Warrant
Price
. Each whole Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to
the provisions of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $11.50 per share, 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 Agreement refers to the price per share at which the shares
of 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 (as defined below) for a period of not less than twenty (20) Business Days; provided,
that the Company shall provide at least twenty (20) days prior written notice of such reduction to registered holders of the Warrants
and, provided further that any such reduction shall be applied consistently to all of the Warrants.
3.2.
Duration
of Warrants
. A Warrant may be exercised only during the period commencing on the later of 30 days after the consummation
by the Company of a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other
similar business combination with one or more businesses or entities (“Business Combination”) (as described more
fully in the Registration Statement) or 12 months from the closing of the Public Offering, and terminating at 5:00 p.m., New
York City time on the earlier to occur of (i) five years from the consummation of a Business Combination and (ii) the
Redemption Date as provided in Section 6.2 of this Agreement (“Expiration Date”). The period of time from the
date the Warrants will first become exercisable until the expiration of the Warrants shall hereafter be referred to as the
“Exercise Period.” Except with respect to the right to receive the Redemption Price (as set forth in Section 6
hereunder), each 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 Warrants by delaying the Expiration Date; provided, however, that the
Company will provide at least twenty (20) days prior written notice of any such extension to registered holders and, provided
further that any such extension shall be applied consistently to all of the Warrants.
3.3.
Exercise
of Warrants
.
3.3.1.
Payment
.
Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised
by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed,
and by paying in full the Warrant Price for each share of Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, as follows:
(a) by
good certified check or good bank draft payable to the order of the Company (or as otherwise agreed to by the Company); or
(b) in
the event of redemption pursuant to Section 6 hereof in which the Company’s management has elected to force all
holders of Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number
of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock
underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value”
(defined below) by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market
Value” shall mean the average reported last sale price of the Common Stock for the five (5) trading days ending on the
third trading day prior to the date on which the notice of redemption is sent to holders of the Warrants pursuant to Section
6 hereof; or
(c) with
respect to any Sponsor’s Warrants, so long as such Sponsor’s Warrants are held by the Sponsor or its permitted transferees,
by surrendering such Sponsor’s Warrants for that number of shares of Common Stock equal to the quotient obtained by dividing
(x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the exercise
price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however, that no cashless
exercise shall be permitted unless the Fair Market Value is equal to or higher than the exercise price. Solely for purposes of
this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the Common Stock
for the five (5) trading days ending on the third trading day prior to the date of exercise; or
(d) in
the event the registration statement required by Section 7.4 hereof is not effective and current within ninety (90) days after
the closing of a Business Combination, by surrendering such Warrants for that number of shares of Common Stock equal to the quotient
obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference
between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however,
that no cashless exercise shall be permitted unless the Fair Market Value is equal to or higher than the exercise price. Solely
for purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the average reported last sale price of the
Common Stock for the five (5) trading days ending on the day prior to the date of exercise.
3.3.2.
Issuance
of Certificates
. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of
the Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a certificate or certificates
for the number of shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be
directed by him, her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the
number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, in no event will the
Company be required to net cash settle the Warrant exercise. No Warrant shall be exercisable and the Company shall not be
obligated to issue shares of Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant
exercise has been registered, qualified or deemed to be exempt under the securities laws of the state of residence of the
registered holder of the Warrants. In the event that the condition in the immediately preceding sentence is not satisfied
with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may
have no value and expire worthless, in which case the purchaser of a Unit containing such Public Warrants shall have paid the
full purchase price for the Unit solely for the shares of Common Stock underlying such Unit. Warrants may not be exercised
by, or securities issued to, any registered holder in any state in which such exercise would be unlawful.
3.3.3.
Valid
Issuance
. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.4.
Date
of Issuance
. Each person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant
Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment
is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such
shares at the close of business on the next succeeding date on which the share transfer books are open.
3.3.5
Maximum Percentage
. A
holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in
this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes
such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s
Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such
exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would
beneficially own in excess of 9.8% (the “Maximum Percentage”) of the shares of Common Stock outstanding
immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of
Common Stock beneficially owned by such person and its affiliates shall include the number of shares of Common Stock issuable
upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares
of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially
owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other
securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any
convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or exercise analogous to
the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial
ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock,
the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most
recent annual report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the
Securities and Exchange Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other
notice by the Company or Continental Stock Transfer & Trust Company setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two
(2) Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any
case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise
of equity securities of the Company by the holder and its affiliates since the date as of which such number of outstanding
shares of Common Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase
or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided,
however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the
Company.
4.
Adjustments
.
4.1.
Stock
Dividends; Split Ups
. If after the date hereof, the number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split up of shares of Common Stock, or other similar event, then, on the effective date
of such stock dividend, split up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall
be increased in proportion to such increase in outstanding shares of Common Stock.
4.2.
Aggregation
of Shares
. If after the date hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination,
reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise
of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3
Extraordinary
Dividends
. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution
in cash, securities or other assets to the holders of the shares of Common Stock or other shares of the Company’s capital
stock into which the Warrants are convertible (an “Extraordinary Dividend”), then the Warrant Price shall be decreased,
effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market value
(as determined by the Company’s Board of Directors, in good faith) of any securities or other assets paid on each share of
Common Stock in respect of such Extraordinary Dividend; provided, however, that none of the following shall be deemed an Extraordinary
Dividend for purposes of this provision: (a) any adjustment described in subsection 4.1 above, (b) any cash dividends or cash distributions
which, when combined on a per share basis with all other cash dividends and cash distributions paid on the Common Stock during
the 365-day period ending on the date of declaration of such dividend or distribution does not exceed $0.50 (as adjusted to appropriately
reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions
that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant)
but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50, (c) any
payment to satisfy the conversion rights of the holders of the shares of Common Stock in connection with a proposed initial Business
Combination or (d) any payment in connection with the Company’s liquidation and the distribution of its assets upon its failure
to consummate a Business Combination. Solely for purposes of illustration, if the Company, at a time while the Warrants are outstanding
and unexpired, pays a cash dividend of $0.35 and previously paid an aggregate of $0.40 of cash dividends and cash distributions
on the Common Stock during the 365-day period ending on the date of declaration of such $0.35 dividend, then the Warrant Price
will be decreased, effectively immediately after the effective date of such $0.35 dividend, by $0.25 (the absolute value of the
difference between $0.75 (the aggregate amount of all cash dividends and cash distributions paid or made in such 365-day period,
including such $0.35 dividend) and $0.50 (the greater of (x) $0.50 and (y) the aggregate
amount of all cash dividends and cash distributions paid or made in such 365-day period prior to such $0.35 dividend)).
4.4
Adjustments
in Exercise Price
. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted,
as provided in Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant
Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the
number of shares of Common Stock so purchasable immediately thereafter.
4.5.
Replacement
of Securities upon Reorganization, etc
. In case of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1, 4.2 or 4.3 hereof or that solely affects the par value of the Common Stock),
or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger
in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding
Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the
Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and
in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the
rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable
upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer,
that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in the Common Stock covered by Section 4.1, 4.2 or 4.3, then such
adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall
similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
4.6.
Notices
of Changes in Warrant
. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a
Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price
resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon
the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such
calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such
event, the Company shall give written notice to each Warrant holder, at the last address set forth for such holder in the
Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein,
shall not affect the legality or validity of such event.
4.7.
No
Fractional Warrants or Shares
. No fractional Warrants will be issued hereunder. Additionally, notwithstanding any provision
contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason
of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number of shares
of Common Stock to be issued to the Warrant holder.
4.8.
Form
of Warrant
. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued
after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued
pursuant to this Agreement. However, the Company may at any time in its sole discretion make any change in the form of Warrant
that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.9
Other
Events
. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of
this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid
an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company
shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing,
which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate
the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment.
The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5.
Transfer and
Exchange of Warrants
.
5.1.
Registration
of Transfer
. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants
shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the
Warrant Agent to the Company from time to time upon request.
5.2.
Procedure
for Surrender of Warrants
. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or
transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered
holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event
that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new
Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer
may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3.
Fractional
Warrants
. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4.
Service
Charges
. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5.
Warrant
Execution and Countersignature
. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the
terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6.
Sponsor’s
Warrants
. The Warrant Agent shall not register any transfer of Sponsor’s Warrants until after the consummation by
the Company of an initial Business Combination, except for transfers (i) to the Sponsor’s or the Company’s
officers, directors, employees, consultants or their affiliates, (ii) to a holder’s officers, directors, employees or
members upon the holder’s liquidation, in each case if the holder is an entity, (iii) by bona fide gift to a member of
the holder’s immediate family or to a trust, the beneficiary of which is the holder or a member of the holder’s
immediate family for estate planning purposes, (iv) by virtue of the laws of descent and distribution upon death, (v)
pursuant to a qualified domestic relations order, (vi) to the Company for no value for cancellation in connection with the
consummation of a Business Combination or (vii) in connection with the consummation of a Business Combination, by private
sales at prices no greater than the price at which the Sponsor’s Warrants were originally purchased, in each case
(except for clause (vi)) on the condition that prior to such registration for transfer, the Warrant Agent shall be presented
with written documentation pursuant to which each transferee or the trustee or legal guardian for such transferee agrees to
be bound by the terms of the Founder Warrants Purchase Agreement and any other applicable agreement the transferor is bound
by.
5.7.
Transfers
prior to Detachment
. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the
Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of
such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants
included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.7 shall have no effect on any transfer of
Warrants on or after the Detachment Date.
6.
Redemption
.
6.1.
Redemption
.
Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at
any time during the Exercise Period (so long as there is a current registration statement in effect with respect to the shares
of Common Stock underlying the Warrants), at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the
price of $0.01 per Warrant (“Redemption Price”), provided that the last sales price of the Common Stock equals or exceeds
$18.00 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within any thirty
(30) trading day period ending on the third business day prior to the date on which notice of redemption is given.
6.2.
Date
Fixed for, and Notice of, Redemption
. In the event the Company shall elect to redeem all of the Public Warrants, the Company
shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail,
postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date to the registered holders of the Warrants
to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided
shall be conclusively presumed to have been duly given whether or not the registered holder received such notice.
6.3.
Exercise
After Notice of Redemption
. The Public Warrants may be exercised, for cash (or on a “cashless basis” in accordance
with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Public Warrants to exercise
their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information
necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the “Fair
Market Value” in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
6.4
Exclusion
of Certain Warrants
. The Company understands that the redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the Warrants issued upon such exercise provided that the
criteria for redemption is met. Additionally, the Company agrees that the redemption rights provided in this Section 6 shall not
apply to the Sponsor’s Warrants if at the time of the redemption such Sponsor’s Warrants continue to be held by the
Sponsor or its permitted transferees. However, once such Sponsor’s Warrants are transferred (other than to permitted transferees
under Section 5.6), the Company may redeem the Sponsor’s Warrants in the same manner as the Public Warrants. The provisions
of this Section 6.4 may not be modified, amended or deleted without the prior written consent of EBC.
7.
Other Provisions
Relating to Rights of Holders of Warrants
.
7.1.
No
Rights as Stockholder
. A Warrant does not entitle the registered holder thereof to any of the rights of a stockholder of
the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive
rights to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election
of directors of the Company or any other matter.
7.2.
Lost,
Stolen, Mutilated, or Destroyed Warrants
. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated
Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3.
Reservation
of Shares of Common Stock
. The Company shall at all times reserve and keep available a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7.4.
Registration
of Shares of Common Stock
. The Company agrees that as soon as practicable after the closing of its initial Business
Combination, it shall use its best efforts to file with the Securities and Exchange Commission a registration statement for
the registration, under the Act, of the shares of Common Stock issuable upon exercise of the Warrants, and it shall use its
best efforts to take such action as is necessary to register or qualify for sale, in those states in which the Warrants were
initially offered by the Company and in those states where holders of Warrants then reside, the shares of Common Stock
issuable upon exercise of the Warrants, to the extent an exemption is not available. The Company will use its best efforts to
cause the same to become effective and to maintain the effectiveness of such registration statement until the expiration of
the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared
effective by the 90th day following the closing of the Business Combination, holders of the Warrants shall have the right,
during the period beginning on the 91st day after the closing of the Business Combination and ending upon such registration
statement being declared effective by the Securities and Exchange Commission, and during any other period when the Company
shall fail to have maintained an effective registration statement covering the shares of Common Stock issuable upon exercise
of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance with Section
3.3.1(d). The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside
law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with
this Section 7.4 is not required to be registered under the Act and (ii) the shares of Common Stock issued upon such exercise
will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule
144 under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of
any doubt, unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be
obligated to comply with its registration obligations under the first three sentences of this Section 7.4. The provisions of
this Section 7.4 may not be modified, amended or deleted without the prior written consent of EBC.
8.
Concerning the
Warrant Agent and Other Matters
.
8.1.
Payment
of Taxes
. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the
Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2.
Resignation,
Consolidation, or Merger of Warrant Agent
.
8.2.1.
Appointment
of Successor Warrant Agent
. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be
discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the
Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company
shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by
the Warrant Agent or by the holder of the Warrant (who shall, with such notice, submit his Warrant for inspection by the
Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York
for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed
by the Company or by such court, shall be a corporation organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under
such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After
appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and
obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any
further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute
and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority,
powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company
shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in
and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2.
Notice
of Successor Warrant Agent
. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof
to the predecessor Warrant Agent and the transfer agent for the shares of Common Stock not later than the effective date of any
such appointment.
8.2.3.
Merger
or Consolidation of Warrant Agent
. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated
or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor
Warrant Agent under this Agreement without any further act.
8.3.
Fees
and Expenses of Warrant Agent
.
8.3.1.
Remuneration
.
The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2.
Further
Assurances
. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged,
and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for
the carrying out or performing of the provisions of this Agreement.
8.4.
Liability
of Warrant Agent
.
8.4.1.
Reliance
on Company Statement
. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary
or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company
and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith
by it pursuant to the provisions of this Agreement.
8.4.2.
Indemnity
.
The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees
to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable
counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant
Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3.
Exclusions
.
The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or
execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required
under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any
Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully paid and nonassessable.
8.5.
Acceptance
of Agency
. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised
and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common
Stock through the exercise of Warrants.
9.
Miscellaneous
Provisions
.
9.1.
Successors
.
All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2.
Notices
.
Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant
to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail
or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address
is filed in writing by the Company with the Warrant Agent), as follows:
Black Ridge Acquisition Corp.
c/o Black Ridge Oil & Gas, Inc.
110 North 5
th
Street, Suite 410
Minneapolis, Minnesota 55403
Attn:
Any notice, statement or demand authorized by this Agreement
to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when
so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as
follows:
Continental Stock Transfer & Trust Company
1 State Street Plaza
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and
Stinson Leonard Street LLP
150 South Fifth Street, Suite 2300
Minneapolis, MN 55402
Attn: Jill R. Radloff
and
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, New York 10166
Attn: Alan I. Annex, Esq.
and
EarlyBirdCapital, Inc.
366 Madison Avenue, 8th Floor
New York, New York 10017
Attn: David M. Nussbaum, Chairman
9.3.
Applicable
Law
. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects
by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application
of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this 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, which jurisdiction shall
be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4.
Persons
Having Rights under this Agreement
. Nothing in this Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the
parties hereto and the registered holders of the Warrants and, for the purposes of Sections 2.7, 6.4, 7.4, 9.4 and 9.8
hereof, EBC, any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant, condition,
stipulation, promise, or agreement hereof. EBC shall be deemed to be a third-party beneficiary of this Agreement with respect
to Sections 2.7, 6.4, 7.4, 9.4 and 9.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in
this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto (and EBC with respect to the
Sections 2.7, 6.4, 7.4, 9.4 and 9.8 hereof) and their successors and assigns and of the registered holders of the
Warrants.
9.5.
Examination
of the Warrant Agreement
. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant
Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant
Agent may require any such holder to submit his Warrant for inspection by it.
9.6.
Counterparts
.
This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7.
Effect
of Headings
. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
9.8
Amendments
.
This Agreement may be amended by the parties hereto (and EBC, if required) without the consent of any registered holder
for the purpose of curing any ambiguity, or of curing, correcting or supplementing any defective provision contained herein
or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties
may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise
Period, shall require the written consent or vote of the registered holders of (i) a majority of the then outstanding Public
Warrants, Sponsor’s Warrants and EBC Warrants if such modification or amendment is being undertaken prior to, or in
connection with, the consummation of a Business Combination or (ii) a majority of the then outstanding Warrants if such
modification or amendment is being undertaken after the consummation of a Business Combination. Notwithstanding the
foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and
3.2, respectively, without the consent of the registered holders.
9.9
Trust
Account Waiver
. The Warrant Agent acknowledges and agrees that it shall not make any claims or proceed against the trust account
established by the Company in connection with the Public Offering (as more fully described in the Registration Statement) (“Trust
Account”), including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
In the event that the Warrant Agent has a claim against the Company under this Agreement, the Warrant Agent will pursue such claim
solely against the Company and not against the property held in the Trust Account.
9.10
Severability
.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[signature page follows]
IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties hereto as of the day and year first above written.
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BLACK RIDGE ACQUISITION CORP.
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Title:
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CONTINENTAL STOCK TRANSFER
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& TRUST COMPANY
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By:
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Name:
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Title:
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Exhibit
4.6
RIGHTS
AGREEMENT
Agreement
made as of _____, 2017 between Black Ridge Acquisition Corp., a Delaware corporation, with offices at 110 North 5th Street, Suite
410, Minneapolis, Minnesota 55403 (“Company”), and Continental Stock Transfer & Trust Company, a New York corporation,
with offices at 1 State Street, New York, New York 10004 (“Right Agent”).
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) and has filed with the Securities and Exchange Commission
(the “SEC”) a Registration Statement on Form S-1, No. 333-[_____] (“Registration Statement”), for the
registration, under the Securities Act of 1933, as amended (“Act”) of its units, with each unit (“Unit”)
containing one right to receive one-tenth of one share of common stock, par value $0.0001 per share, of the Company (“Common
Stock”) upon the happening of the triggering event described herein and, in connection therewith, will issue and deliver
up to 11,500,000 rights (“Public Rights”) to the investors in the Public Offering; and
WHEREAS,
the Company has received a binding commitment from its initial stockholder (the “Initial Stockholder”) to purchase
in a private placement (“Private Offering”) up to an aggregate of 387,500 Units, and in connection therewith, will
issue and deliver up to an aggregate of 387,500 rights (“Private Rights”) upon consummation of such Private Offering;
and
WHEREAS,
the Company has entered into that certain Unit Purchase Option, dated as of ______, 2017, pursuant to which the Company will issue
and deliver to EarlyBirdCapital, Inc. (the “Representative”), as representative of the underwriters of the Public
Offering (and/or its designees), an aggregate of 500,000 Units, including 500,000 rights underlying such Units (the “Purchase
Option Rights” and, together with the Public Rights and the Private Rights, the “Rights”); and
WHEREAS,
the Company may issue up to an additional 150,000 Rights in consideration of certain working capital loans that may be made by
the Company’s Initial Stockholder, officers, directors or their affiliates; and
WHEREAS,
the Company desires the Right Agent to act on behalf of the Company, and the Right Agent is willing to so act, in connection with
the issuance, registration, transfer and exchange of the Rights; and
WHEREAS,
the Company desires to provide for the form and provisions of the Rights, the terms upon which they shall be issued, and the respective
rights, limitation of rights, and immunities of the Company, the Right Agent, and the holders of the Rights; and
WHEREAS,
all acts and things have been done and performed which are necessary to make the Rights, when executed on behalf of the Company
and countersigned by or on behalf of the Right Agent, as provided herein, the valid, binding and legal obligations of the Company,
and to authorize the execution and delivery of this Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1.
Appointment
of Right Agent
. The Company hereby appoints the Right Agent to act as agent for the Company for the Rights, and the Right
Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in
this Agreement.
2.
Rights
.
2.1.
Form
of Right
. Each Right shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board,
President or Chief Executive Officer and Treasurer, Secretary or Assistant Secretary of the Company and shall bear a facsimile
of the Company’s seal. In the event the person whose facsimile signature has been placed upon any Right shall have ceased
to serve in the capacity in which such person signed the Right before such Right is issued, it may be issued with the same effect
as if he or she had not ceased to be such at the date of issuance.
2.2. Effect
of Countersignature. Unless and until countersigned by the Right Agent pursuant to this Agreement, a Right shall be invalid and
of no effect and may not be exchanged for Common Stock.
2.3.
Registration.
2.3.1.
Right
Register
. The Right Agent shall maintain books (“Right Register”) for the registration of original issuance and
the registration of transfer of the Rights. Upon the initial issuance of the Rights, the Right Agent shall issue and register
the Rights in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions
delivered to the Right Agent by the Company.
2.3.2.
Registered
Holder
. Prior to due presentment for registration of transfer of any Right, the Company and the Right Agent may deem and treat
the person in whose name such Right shall be registered upon the Right Register (“registered holder”) as the absolute
owner of such Right and of each Right represented thereby (notwithstanding any notation of ownership or other writing on the Right
Certificate made by anyone other than the Company or the Right Agent), for the purpose of the exchange thereof, and for all other
purposes, and neither the Company nor the Right Agent shall be affected by any notice to the contrary.
2.4.
Detachability
of Rights
. The securities comprising the Units, including the Rights, will not be separately transferable until the ninetieth
(90
th
) day after the date hereof unless EarlyBirdCapital, Inc. informs the Company of its decision to allow earlier
separate trading, but in no event will separate trading of the securities comprising the Units begin until (i) the Company files
a Current Report on Form 8-K which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds
of the Public Offering including the proceeds received by the Company from the exercise of the over-allotment option, if the over-allotment
option is exercised on the date hereof, and (ii) the Company issues a press release and files a Current Report on Form 8-K announcing
when such separate trading shall begin.
3.
Terms
and Exchange of Rights
3.1.
Rights
.
Each Right shall entitle the holder thereof to receive one-tenth of one share of Common Stock upon the happening of an Exchange
Event (described below). No additional consideration shall be paid by a holder of Rights in order to receive his, her or its shares
of Common Stock upon an Exchange Event as the purchase price for such Common Stock has been included in the purchase price for
the Units. In no event will the Company be required to net cash settle the Rights. The provisions of this Section 3.1 may not
be modified, amended or deleted without the prior written consent of the Representative.
3.2.
Exchange
Event
. An Exchange Event shall occur upon the Company’s consummation of an initial Business Combination (as defined
in the Company’s Amended and Restated Certificate of Incorporation).
3.3.
Exchange
of Rights
.
3.3.1.
Issuance
of Certificates
. As soon as practicable upon the occurrence of an Exchange Event, the Company shall direct holders of the
Rights to return their Rights certificates to the Right Agent. Upon receipt of a valid Rights certificate, the Company shall issue
to the registered holder of such Right(s) a certificate or certificates for the full number of shares of Common Stock to which
he, she or it is entitled, registered in such name or names as may be directed by him, her or it. Notwithstanding the foregoing,
or any provision contained in this Rights Agreement to the contrary, in no event will the Company be required to net cash settle
the Rights. The Company shall not issue fractional shares upon exchange of Rights. At the time of an Exchange Event, the Company
will either instruct the Rights Agent to round up to the nearest whole share of Common Stock or otherwise inform it how fractional
shares will be addressed, in accordance with Section 155 of the Delaware General Corporation Law. Each holder of a Right will
be required to affirmatively convert his, her or its Rights in order to receive the one-tenth of a share underlying each Right
(without paying any additional consideration) upon consummation of the Exchange Event. Each holder of a Right will be required
to indicate his, her or its election to convert the Rights into the underlying shares as well as to return the original certificates
evidencing the Rights to the Company.
3.3.2.
Valid
Issuance
. All shares of Common Stock issued upon an Exchange Event in conformity with this Agreement, and registered on the
Company’s register of members, shall be validly issued, fully paid and nonassessable.
3.3.3.
Date
of Issuance
. Each person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date that he is registered on the Company’s register of
members.
3.3.4
Company
Not Surviving Following Exchange Event
. Upon an Exchange Event in which the Company does not continue as the publicly held
reporting entity, the definitive agreement with the target business for a Business Combination will provide for the holders of
Rights to receive the same per share consideration the holders of the shares of Common Stock will receive in such transaction,
for the number of shares such holder is entitled to pursuant to Section 3.3.1 above.
3.5
Duration
of Rights
. If an Exchange Event does not occur within the time period set forth in the Company’s Amended and Restated
Certificate of Incorporation, as the same may be amended from time to time, the Rights shall expire and shall be worthless.
4.
Transfer
and Exchange of Rights
.
4.1.
Registration
of Transfer
. The Right Agent shall register the transfer, from time to time, of any outstanding Right upon the Right Register,
upon surrender of such Right for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate
instructions for transfer. Upon any such transfer, a new Right certificate representing an equal aggregate number of Rights shall
be issued and the old Right certificate shall be cancelled by the Right Agent. The Right certificate(s) so cancelled shall be
delivered by the Right Agent to the Company from time to time upon request.
4.2.
Procedure
for Surrender of Rights
. Rights may be surrendered to the Right Agent, together with a written request for exchange or transfer,
and thereupon the Right Agent shall issue in exchange therefor one or more new Right certificate(s) as requested by the registered
holder of the Rights so surrendered, representing an equal aggregate number of Rights; provided, however, that in the event that
a Right surrendered for transfer bears a restrictive legend, the Right Agent shall not cancel such Right certificate and issue
new Right certificate(s) in exchange therefor until the Right Agent has received an opinion of counsel for the Company stating
that such transfer may be made and indicating whether the new Right certificate(s) must also bear a restrictive legend.
4.3.
Fractional
Rights
. The Right Agent shall not be required to effect any registration of transfer or exchange which will result in the
issuance of a Right certificate for a fraction of a Right.
4.4.
Service
Charges
. No service charge shall be made for any exchange or registration of transfer of Rights.
4.5.
Adjustments
to Conversion Ratios
. The number of shares of Common Stock that the holders of Rights are entitled to receive as a result
of the occurrence of an Exchange Event shall be equitably adjusted to reflect appropriately the effect of any share split, reverse
share split, share dividend, reorganization, recapitalization, reclassification, combination, exchange of shares or other like
change with respect to the shares of Common Stock occurring on or after the date hereof and prior to the Exchange Event.
4.6
Right
Execution and Countersignature
. The Right Agent is hereby authorized to countersign and to deliver, in accordance with the
terms of this Agreement, the Rights required to be issued pursuant to the provisions of this Section 4, and the Company, whenever
required by the Right Agent, will supply the Right Agent with Rights duly executed on behalf of the Company for such purpose.
5.
Other
Provisions Relating to Rights of Holders of Rights
.
5.1.
No
Rights as Shareholder
. Until exchange of a Right for shares of Common Stock as provided for herein, a Right does not entitle
the registered holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to
receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders
in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
5.2.
Lost,
Stolen, Mutilated, or Destroyed
Right Certificate(s). If any Right certificate(s) is lost, stolen, mutilated, or destroyed,
the Company and the Right Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall,
in the case of a mutilated Right certificate, include the surrender thereof), issue a new Right certificate of like denomination,
tenor, and date as the Right certificate so lost, stolen, mutilated, or destroyed. Any such new Right certificate shall constitute
a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Right certificate
shall be at any time enforceable by anyone.
5.3.
Reservation
of Shares
. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common
Stock that will be sufficient to permit the exchange of all outstanding Rights issued pursuant to this Agreement.
6.
Concerning
the Right Agent and Other Matters
.
6.1.
Payment
of Taxes
. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the
Right Agent in respect of the issuance or delivery of shares of Common Stock upon the exchange of Rights, but the Company shall
not be obligated to pay any transfer taxes in respect of the Rights or such shares.
6.2.
Resignation,
Consolidation, or Merger of Right Agent
.
6.2.1.
Appointment
of Successor Right Agent
. The Right Agent, or any successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the
office of the Right Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing
a successor Right Agent in place of the Right Agent. If the Company shall fail to make such appointment within a period of 30
days after it has been notified in writing of such resignation or incapacity by the Right Agent or by the holder of the Right
(who shall, with such notice, submit his, her or its Right for inspection by the Company), then the holder of any Right may apply
to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Right Agent at the
Company’s cost. Any successor Right Agent, whether appointed by the Company or by such court, shall be a corporation organized
and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan,
City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination
by federal or state authority. After appointment, any successor Right Agent shall be vested with all the authority, powers, rights,
immunities, duties, and obligations of its predecessor Right Agent with like effect as if originally named as Right Agent hereunder,
without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Right Agent shall
execute and deliver, at the expense of the Company, an instrument transferring to such successor Right Agent all the authority,
powers, and rights of such predecessor Right Agent hereunder; and upon request of any successor Right Agent the Company shall
make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming
to such successor Right Agent all such authority, powers, rights, immunities, duties, and obligations.
6.2.2.
Notice
of Successor Right Agent
. In the event a successor Right Agent shall be appointed, the Company shall give notice thereof to
the predecessor Right Agent and the transfer agent for the shares of Common Stock not later than the effective date of any such
appointment.
6.2.3.
Merger
or Consolidation of Right Agent
. Any corporation into which the Right Agent may be merged or with which it may be consolidated
or any corporation resulting from any merger or consolidation to which the Right Agent shall be a party shall be the successor
Right Agent under this Agreement without any further act.
6.3.
Fees
and Expenses of Right Agent
.
6.3.1.
Remuneration
.
The Company agrees to pay the Right Agent reasonable remuneration for its services as such Right Agent hereunder and will reimburse
the Right Agent upon demand for all expenditures that the Right Agent may reasonably incur in the execution of its duties hereunder.
6.3.2.
Further
Assurances
. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged,
and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Right Agent for
the carrying out or performing of the provisions of this Agreement.
6.4.
Liability
of Right Agent
.
6.4.1.
Reliance
on Company Statement
. Whenever in the performance of its duties under this Right Agreement, the Right Agent shall deem it
necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action
hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be
conclusively proved and established by a statement signed by the President, Chief Executive Officer or Chief Financial Officer
and delivered to the Right Agent. The Right Agent may rely upon such statement for any action taken or suffered in good faith
by it pursuant to the provisions of this Agreement.
6.4.2.
Indemnity
.
The Right Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees
to indemnify the Right Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Right Agent in the execution of this Agreement except as a result of the Right Agent’s
gross negligence, willful misconduct, or bad faith.
6.4.3.
Exclusions
.
The Right Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or
execution of any Right (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Right; nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any
Right or as to whether any shares of Common Stock will when issued be valid and fully paid and nonassessable.
6.5.
Acceptance
of Agency
. The Right Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth.
6.6
Waiver
.
The Right Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”)
in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of
the date hereof, by and between the Company and the Right Agent as trustee thereunder) and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
7.
Miscellaneous
Provisions
.
7.1.
Successors
.
All the covenants and provisions of this Agreement by or for the benefit of the Company or the Right Agent shall bind and inure
to the benefit of their respective successors and assigns.
7.2.
Notices
.
Any notice, statement or demand authorized by this Right Agreement to be given or made by the Right Agent or by the holder of
any Right to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified
mail or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address
is filed in writing by the Company with the Right Agent), as follows:
Black
Ridge Acquisition Corp.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
Attn:
Chief Executive Officer
Any
notice, statement or demand authorized by this Agreement to be given or made by the holder of any Right or by the Company to or
on the Right Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail
or private courier service within five days after deposit of such notice, postage prepaid, addressed (until another address is
filed in writing by the Right Agent with the Company), as follows:
Continental
Stock Transfer & Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Steve Nelson
with
a copy (which shall not constitute notice) in each case to:
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue
New
York, New York 10174
Attn:
David Alan Miller, Esq.
and
Greenberg
Traurig, LLP
Met
Life Building
200
Park Avenue
New
York, NY 10166
Attn:
Alan I. Annex, Esq.
and
EarlyBirdCapital,
Inc.
366
Madison Avenue
8
th
Floor
New
York, New York 10017
Attn:
General Counsel and Investment Banking Department
Facsimile:
212-661-0200
7.3.
Applicable
Law
. The validity, interpretation, and performance of this Agreement and of the Rights shall be governed in all respects by
the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of
the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this 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, which jurisdiction
shall be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
7.4.
Persons
Having Rights under this Agreement
. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto
and the registered holders of the Rights and, for the purposes of Sections 3, 7.4 and 7.8 hereof, the Representative, any right,
remedy, or claim under or by reason of this Right Agreement or of any covenant, condition, stipulation, promise, or agreement
hereof. The Representative shall be deemed to be a third-party beneficiary of this Agreement with respect to Sections 3, 7.4 and
7.8 hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Right Agreement shall be for the
sole and exclusive benefit of the parties hereto (and the Representative with respect to the Sections 3, 7.4 and 7.8 hereof) and
their successors and assigns and of the registered holders of the Rights. The provisions of this Section 7.4 may not be modified,
amended or deleted without the prior written consent of the Representative.
7.5.
Examination
of the Right Agreement
. A copy of this Agreement shall be available at all reasonable times at the office of the Right Agent
in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Right. The Right Agent
may require any such holder to submit his, her or its Right for inspection by it.
7.6.
Counterparts
.
This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
7.7.
Effect
of Headings
. The Section headings herein are for convenience only and are not part of this Right Agreement and shall not affect
the interpretation thereof.
7.8
Amendments
.
This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other
provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and
that the parties deem shall not adversely affect the interest of the registered holders. All other modifications or amendments
shall require the written consent or vote of the registered holders of a majority of the then outstanding Rights. The provisions
of this Section 7.8 may not be modified, amended or deleted without the prior written consent of the Representative.
7.9
Severability
.
This Right Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not
affect the validity or enforceability of this Right Agreement or of any other term or provision hereof. Furthermore, in lieu of
any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Right
Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Agreement has been duly executed by the parties hereto as of the day and year first above written.
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BLACK RIDGE ACQUISITION CORP.
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Title:
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CONTINENTAL STOCK TRANSFER
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& TRUST COMPANY
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Title:
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Exhibit
5.1
GRAUBARD
MILLER
THE
CHRYSLER BUILDING
405
LEXINGTON AVENUE
NEW
YORK, NEW YORK 10174
Black
Ridge Acquisition Corp.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5th Street, Suite 410
Minneapolis,
Minnesota 55403
Dear
Sirs:
Reference
is made to the Registration Statement on Form S-1 (“Registration Statement”) filed by Black Ridge Acquisition Corp.
(“Company”), a Delaware corporation, under the Securities Act of 1933, as amended (“Act”), covering (i)
up to 11,500,000 units of the Company, including the underwriters’ over-allotment option (collectively the “Public
Units”), with each Unit consisting of one share of common stock, par value $0.0001 per share (the “Common Stock”),
of the Company, one right (“Public Right”) entitling the holder to receive one-tenth of one share of Common Stock
(“Public Right Share”) and one half of one warrant of the Company to purchase one share of Common Stock (“Public
Warrant”) and (ii) an option (the “Purchase Option”) to purchase up to 500,000 units (“Purchase Option
Units”), which the Company will grant to EarlyBirdCapital, Inc., as representative of the underwriters, and its designees,
with each Purchase Option Unit consisting of one share of Common Stock (“Purchase Option Share”), one right (“Purchase
Option Right”) entitling the holder to receive one-tenth of one share of Common Stock (“Purchase Option Right Share”)
and one-half of one warrant of the Company to purchase one share of Common Stock (“Purchase Option Warrant”).
We
have examined such documents and considered such legal matters as we have deemed necessary and relevant as the basis for the opinion
set forth below. With respect to such examination, we have assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as reproduced or
certified copies, and the authenticity of the originals of those latter documents. As to questions of fact material to this opinion,
we have, to the extent deemed appropriate, relied upon certain representations of certain officers and employees of the Company.
Based
upon the foregoing, we are of the opinion that:
1.
Public
Units
. When the Registration Statement becomes effective under the Act and when the offering is completed as contemplated
by the Registration Statement, such Public Units will be validly issued, fully paid and non-assessable.
2.
Common
Stock
. When the Registration Statement becomes effective under the Act and when the offering is completed as contemplated
by the Registration Statement, the shares of Common Stock underlying the Public Units will be validly issued, fully paid and non-assessable.
3.
Public
Rights
. When the Registration Statement becomes effective under the Act, and when the Public Rights underlying the Public
Units are issued, delivered and paid for as part of the Public Units, as contemplated by the Registration Statement, such Public
Rights will be validly issued, fully paid and non-assessable and will be legally binding obligations of the Company enforceable
in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability
is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution provision may
be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.
4.
Public
Rights Shares
. When the Registration Statement becomes effective under the Act and when the Public Rights Shares have
been issued and delivered upon the consummation of an initial business combination in accordance with the terms of the Public
Rights and the Rights Agreement, as contemplated by the Registration Statement, the Public Rights Shares will be validly issued,
fully paid and non-assessable.
5.
Public
Warrants
. When the Registration Statement becomes effective under the Act, and when the Public Warrants underlying the
Public Units are issued, delivered and paid for as part of the Public Units, as contemplated by the Registration Statement, such
Public Warrants will be validly issued, fully paid and non-assessable and will be legally binding obligations of the Company enforceable
in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors’ rights generally and by general equitable principles (regardless of whether enforceability
is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution provision may
be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any proceeding
therefor may be brought.
6.
Purchase
Option
. When the Registration Statement becomes effective under the Act, when the Purchase Option is delivered to and
paid for by the Representative in accordance with the terms of the Purchase Option, and assuming the due authorization, execution
and delivery of the Purchase Option by the Company, the Purchase Option will constitute the legal, valid and binding obligations
of the Company, enforceable against the Company in accordance with their terms except: (a) as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general equitable
principles (regardless of whether enforceability is considered in a proceeding in equity or at law); (b) as enforceability of
any indemnification or contribution provision may be limited under the Federal and state securities laws, and (c) that the remedy
of specific performance and injunctive and other forms of equitable relief may be subject to the equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought.
7.
Purchase
Option Units
. When the Registration Statement becomes effective under the Act, when the Purchase Option Units are delivered
to and paid for by the Representative in accordance with the terms of the Purchase Option, the Purchase Option Units will be validly
issued, fully paid and non-assessable.
8.
Purchase
Option Shares
. When the Registration Statement becomes effective under the Act and when the Purchase Option Units are
delivered to and paid for by the Representative in accordance with the terms of the Purchase Option, the Purchase Option Shares
will be validly issued, fully paid and non-assessable.
9.
Purchase
Option Rights
. When the Registration Statement becomes effective under the Act, when the Purchase Option Units are delivered
to and paid for by the Representative in accordance with the terms of the Purchase Option, the Purchase Option Rights underlying
the Purchase Option Units will be validly issued, fully paid and non-assessable and will be legally binding obligations of the
Company enforceable in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution
provision may be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
10.
Purchase
Option Rights Shares
. When the Registration Statement becomes effective under the Act and when the Purchase Option Rights
Shares have been issued and delivered upon the consummation of an initial business combination in accordance with the Purchase
Option Rights, the Rights Agreement and the Purchase Option, as contemplated by the Registration Statement, the Purchase Option
Rights Shares will be validly issued, fully paid and non-assessable.
11.
Purchase
Option Warrants
. When the Registration Statement becomes effective under the Act, when the Purchase Option Units are delivered
to and paid for by the Representative in accordance with the terms of the Purchase Option, the Purchase Option Warrants underlying
the Purchase Option Units will be validly issued, fully paid and non-assessable and will be legally binding obligations of the
Company enforceable in accordance with their terms except: (a) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights generally and by general equitable principles (regardless of
whether enforceability is considered in a proceeding in equity or at law); (b) as enforceability of any indemnification or contribution
provision may be limited under the Federal and state securities laws, and (c) that the remedy of specific performance and injunctive
and other forms of equitable relief may be subject to the equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
We
are opining solely on all applicable statutory provisions of Delaware corporate law, including the rules and regulations underlying
those provisions, all applicable provisions of the Delaware Constitution, all applicable judicial and regulatory determinations
in connection therewith and, as to the Public Units, the Public Rights, the Public Warrants, the Purchase Option, the Purchase
Option Units, the Purchase Option Rights and the Purchase Option Warrants constituting legally binding obligations of the Company,
solely with respect to the laws of the State of New York. Our opinion is based on these laws as in effect on the date hereof and
as of the effective date of the Registration Statement, and we assume no obligation to revise or supplement this opinion after
the effective date of the Registration Statement should the law be changed by legislative action, judicial decision, or otherwise.
We express no opinion as to whether the laws of any other jurisdiction are applicable to the subject matter hereof. We are not
rendering any opinion as to compliance with any other Federal or state law, rule or regulation relating to securities, or to the
sale or issuance thereof.
We
hereby consent to the use of this opinion as an exhibit to the Registration Statement, to the use of our name as your counsel
and to all references made to us in the Registration Statement and in the Prospectus forming a part thereof. In giving this consent,
we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Act, or the
rules and regulations promulgated thereunder.
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Very truly yours,
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/s/ Graubard Miller
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Exhibit 10.1
____________ __, 2017
Black Ridge Acquisition Corp.
c/o Black Ridge Oil & Gas, Inc.
110 North 5
th
Street, Suite 410
Minneapolis, Minnesota 55403
EarlyBirdCapital,
Inc.
366
Madison Avenue, 8
th
Floor
New
York, New York 10017
Re:
Initial
Public Offering
Gentlemen:
This letter is being delivered to
you in accordance with the Underwriting Agreement (the “
Underwriting Agreement
”) entered into by and
between Black Ridge Acquisition Corp., a Delaware corporation (the “
Company
”), and EarlyBirdCapital,
Inc. as representative (the “
Representative
”) of the several Underwriters named in Schedule I thereto
(the “
Underwriters
”), relating to an underwritten initial public offering (the “
IPO
”)
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
”), one right to receive one-tenth of one share
of Common Stock (each, a “Right”) and one warrant, each whole warrant exercisable for one share of Common Stock (each,
a “
Warrant
”). Certain capitalized terms used herein are defined in paragraph 13 hereof.
In order to induce the
Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the benefit
that such IPO will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. If
the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of Common Stock
beneficially owned by him, whether acquired before, in or after the IPO, in favor of such Business Combination.
2. In
the event that the Company fails to consummate a Business Combination within the time period set forth in the Company’s
Certificate of Incorporation, as the same may be amended from time to time, the undersigned will, as promptly as possible, cause
the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but not
more than 10 business days thereafter, redeem 100% of the Common Stock sold as part of the Units in the IPO (the “Offering
Shares”), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including
interest earned on the Trust Account not previously released to the Company to pay its income and other taxes, divided by the
number of then outstanding public shares, which redemption will completely extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions, if any), and (iii) as promptly as reasonably possible following
such redemption, subject to the approval of the Company’s remaining stockholders and the Company’s board of directors,
dissolve and liquidate, subject in the cases of clauses (ii) and (iii) to the Company’s obligations under Delaware law to
provide for claims of creditors and other requirements of applicable law. The undersigned hereby waives any and all right, title,
interest or claim of any kind in or to any distribution of the Trust Account and any remaining net assets of the Company as a
result of such liquidation with respect to his shares of Founders’ Common Stock (“Claim”) and 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 will not seek recourse against the Trust Account for any reason whatsoever. The undersigned acknowledges and agrees that there
will be no distribution from the Trust Account with respect to any Warrants or Rights, all rights of which will terminate on the
Company’s liquidation.
3. The
undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated
with any Insiders of the Company or their affiliates, such transaction must be approved by a majority of the Company’s disinterested
independent directors and the Company must obtain an opinion from an independent investment banking firm, or another independent
entity that commonly renders valuation opinions on the type of target business the Company is seeking to acquire, that such Business
Combination is fair to the Company’s unaffiliated stockholders from a financial point of view.
4. Neither
the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive
and will not accept any compensation or other cash payment prior to, or for services rendered in order to effectuate, the consummation
of the Business Combination; provided that the Company shall be allowed to make the payments set forth in the Registration Statement
under the caption “Prospectus Summary – The Offering – Limited payments to insiders.” Notwithstanding
the foregoing, the undersigned and any affiliate of the undersigned shall be entitled to reimbursement from the Company for their
out-of-pocket expenses incurred in connection with identifying, investigating and consummating a Business Combination.
5. Neither
the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive
or accept a finder’s fee or any other compensation in the event the undersigned, any member of the family of the undersigned
or any affiliate of the undersigned originates a Business Combination.
6. The
undersigned will place into escrow all of his shares of Founders’ Common Stock, if any, pursuant to the terms of a Stock
Escrow Agreement which the Company will enter into with the undersigned and an escrow agent.
7. (a) In
order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby
agrees that until the earliest of the Company’s initial Business Combination or liquidation, the undersigned shall present
to the Company for its consideration, prior to presentation to any other entity, any target business that has a fair market value
of at least 80% of the assets held in the Trust Account (excluding deferred underwriting commissions and taxes payable on the
income accrued on the Trust Account), subject to any pre-existing fiduciary or contractual obligations the undersigned might have.
(b) The
undersigned hereby agrees and acknowledges that (i) each of the Underwriters and the Company may be irreparably injured in the
event of a breach of any of the obligations contained in this letter, (ii) monetary damages may not be an adequate remedy for
such breach and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy that such
party may have in law or in equity, in the event of such breach.
8. The
undersigned agrees to be an Officer and/or Director of the Company until the earlier of the consummation by the Company of a Business
Combination or the liquidation of the Company. The undersigned’s biographical information previously furnished to the Company
and the Representative is true and accurate in all 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 Item 401 of Regulation S-K, promulgated under
the Securities Act of 1933. The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative
is true and accurate in all respects. The undersigned represents and warrants that:
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(a)
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he 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)
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he 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
he is not currently a defendant in any such criminal proceeding; and
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(c)
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he 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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9. The
undersigned has full right and power, without violating any agreement by which he is bound, to enter into this letter agreement
and to serve as an Officer and/or Director of the Company.
10. The
undersigned hereby waives his right to exercise conversion rights with respect to any shares of the Company’s common stock
owned or to be owned by the undersigned, directly or indirectly (or to sell such shares to the Company in a tender offer), whether
such shares be part of the Founders’ Common Stock or shares purchased by the undersigned in the IPO or in the aftermarket,
and agrees that he will not seek conversion with respect to such shares in connection with any vote to approve a Business Combination
(or sell such shares to the Company in a tender offer in connection with such a Business Combination).
11. The
undersigned hereby agrees to not propose, or vote in favor of, an amendment to the Company’s Amended and Restated Certificate
of Incorporation that would affect the ability of holders of IPO Shares to convert or sell their shares to the Company in connection
with a Business Combination or affect the substance or timing of the Company’s obligation to redeem 100% of the IPO Shares
if the Company does not complete a Business Combination within the time period set forth in the Company’s Amended and Restated
Certificate of Incorporation unless the Company provides public stockholders with the opportunity to convert their IPO Shares
upon such approval in accordance with the charter.
12. This
letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York,
without
giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction
.
The undersigned hereby (i) agrees that any action, proceeding or claim against him arising out of or relating in any way to this
letter agreement (a “Proceeding”) shall be brought and enforced in the courts of the State of New York of the United
States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be exclusive, (ii) waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum and
(iii) irrevocably agrees to appoint Graubard Miller as agent for the service of process in the State of New York to receive, for
the undersigned and on his behalf, service of process in any Proceeding. If for any reason such agent is unable to act as such,
the undersigned will promptly notify the Company and the Representative and appoint a substitute agent acceptable to each of the
Company and the Representative within 30 days and nothing in this letter will affect the right of either party to serve process
in any other manner permitted by law.
13. As
used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, stock purchase,
recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders”
shall mean all officers, directors and sponsors of the Company immediately prior to the IPO; (iii) “Founders’ Common
Stock” shall mean all of the shares of Common Stock of the Company acquired by an Insider prior to the IPO; (iv) “IPO
Shares” shall mean the shares of Common Stock issued in the Company’s IPO; (v) “Private Units” shall mean
the units that are being sold privately by the Company simultaneously with the consummation of the IPO; (vi) “Trust Account”
shall mean the trust account into which a portion of the net proceeds of the Company’s IPO will be deposited; and (vii)
“Registration Statement” means the Company’s registration statement on Form S-1 (SEC File No. 333-220516) filed
with the Securities and Exchange Commission.
14. This
Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof
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 changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except
by a written instrument executed by all parties hereto.
15. The
undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations
and warranties set forth herein in proceeding with the IPO. 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 shall be binding on the undersigned and such person’s respective successors, heirs, personal representatives
and assigns. This letter agreement shall terminate on the earlier of (i) the consummation of a Business Combination and (ii) the
liquidation of the Company;
provided
, that such termination shall not relieve the undersigned from liability for any breach
of this agreement prior to its termination.
[Signature Page Follows]
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Print Name of Insider
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Signature
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Acknowledged and Agreed:
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Black Ridge Acquisition Corp.
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By:
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Name:
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Title:
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____________
__, 2017
Black
Ridge Acquisition Corp.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
EarlyBirdCapital,
Inc.
366
Madison Avenue, 8
th
Floor
New
York, New York 10017
Re:
Initial
Public Offering
Gentlemen:
This
letter is being delivered to you in accordance with the Underwriting Agreement (the “
Underwriting Agreement
”)
entered into by and between Black Ridge Acquisition Corp., a Delaware corporation (the “
Company
”), and
EarlyBirdCapital, Inc. as representative (the “
Representative
”) of the several Underwriters named in
Schedule I thereto (the “
Underwriters
”), relating to an underwritten initial public offering (the “
IPO
”)
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
”), one right to receive one-tenth of one share
of Common Stock (each, a “
Right
”) and one warrant, each whole warrant exercisable for one share of Common
Stock (each, a “
Warrant
”). Certain capitalized terms used herein are defined in paragraph 14 hereof.
In
order to induce the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in
recognition of the benefit that such IPO will confer upon the undersigned, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of the undersigned hereby agrees with the Company as follows:
1. If
the Company solicits approval of its stockholders of a Business Combination, each of the undersigned will vote all shares of Common
Stock beneficially owned by it, whether acquired before, in or after the IPO, in favor of such Business Combination.
2. In
the event that the Company fails to consummate a Business Combination within the time period set forth in the Company’s
Certificate of Incorporation, as the same may be amended from time to time, each of the undersigned will, as promptly as possible,
cause the Company to (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but
not more than 10 business days thereafter, redeem 100% of the Common Stock sold as part of the Units in the IPO (the “Offering
Shares”), at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including
interest earned on the Trust Account not previously released to the Company to pay its income and other taxes, divided by the
number of then outstanding public shares, which redemption will completely extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions, if any), and (iii) as promptly as reasonably possible following
such redemption, subject to the approval of the Company’s remaining stockholders and the Company’s board of directors,
dissolve and liquidate, subject in the cases of clauses (ii) and (iii) to the Company’s obligations under Delaware law to
provide for claims of creditors and other requirements of applicable law. Each of the undersigned hereby waives any and all right,
title, interest or claim of any kind in or to any distribution of the Trust Account and any remaining net assets of the Company
as a result of such liquidation with respect to the shares of Founders’ Common Stock owned by the undersigned (“Claim”)
and 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 will not seek recourse against the Trust Account for any reason whatsoever. In the event of the liquidation
of the Trust Account, Black Ridge Oil & Gas, Inc. agrees to indemnify and hold harmless the Company for any debts and obligations
to target businesses or vendors or other entities that are owed money by the Company for services rendered or contracted for or
products sold to the Company, but only to the extent necessary to ensure that such debt or obligation does not reduce the amount
of funds in the Trust Account below $10.05 per share; provided that such indemnity shall not apply (i) if such vendor or prospective
target business executed an agreement waiving any right, title, interest or claim of any kind they may have in or to any monies
held in the Trust Account, or (ii) as to any claims under the Company’s obligation to indemnify the Underwriters against
certain liabilities, including liabilities under the Securities Act of 1933, as amended (the “Securities Act”). Each
of the undersigned acknowledges and agrees that there will be no distribution from the Trust Account with respect to any Warrants
or Rights, all rights of which will terminate on the Company’s liquidation.
3. Each
of the undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated
with any Insiders of the Company or their affiliates, such transaction must be approved by a majority of the Company’s disinterested
independent directors and the Company must obtain an opinion from an independent investment banking firm, or another independent
entity that commonly renders valuation opinions on the type of target business the Company is seeking to acquire, that such Business
Combination is fair to the Company’s unaffiliated stockholders from a financial point of view.
4. Neither
of the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive
and will not accept any compensation or other cash payment prior to, or for services rendered in order to effectuate, the consummation
of the Business Combination; provided that the Company shall be allowed to make the payments set forth in the Registration Statement
under the caption “Prospectus Summary – The Offering – Limited payments to insiders.”
5. Neither
of the undersigned, any member of the family of the undersigned, nor any affiliate of the undersigned will be entitled to receive
or accept a finder’s fee or any other compensation in the event either of the undersigned, any member of the family of the
undersigned or any affiliate of the undersigned originates a Business Combination.
6. (a) Black
Ridge Oil & Gas, Inc. will place into escrow all shares of Founders’ Common Stock, portions of which shall be subject
to forfeiture in the event the Underwriters do not exercise their over-allotment option in full, pursuant to the terms of a Stock
Escrow Agreement which the Company will enter into with Black Ridge Oil & Gas, Inc. and an escrow agent.
(b) Black
Ridge Oil & Gas, Inc. agrees that until after the Company consummates a Business Combination, the undersigned’s Private
Units (and underlying securities) will be subject to the transfer restrictions described in the subscription agreement relating
to the undersigned’s Private Unit purchase.
7. (a) In
order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, each of the undersigned
hereby agrees that until the earliest of the Company’s initial Business Combination or liquidation, the undersigned shall
present to the Company for its consideration, prior to presentation to any other entity, any suitable target business, subject
to any pre-existing fiduciary or contractual obligations the undersigned might have.
(b) Each
of the undersigned agrees not to participate in the formation of, or become an officer or director of, any blank check company
until the Company has entered into a definitive agreement regarding its initial Business Combination or the Company has failed
to complete an initial Business Combination within the time period set forth in the Company’s Certificate of Incorporation
as the same may be amended from time to time.
8. Ken
DeCubellis agrees to be the Chairman of the Board and Chief Executive Officer of the Company until the earlier of the consummation
by the Company of a Business Combination or the liquidation of the Company. Mr. DeCubellis’ biographical information previously
furnished to the Company and the Representative is true and accurate in all 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 Item 401
of Regulation S-K, promulgated under the Securities Act. Mr. DeCubellis’ FINRA Questionnaire previously furnished to the
Company and the Representative is true and accurate in all respects. Mr. DeCubellis represents and warrants that:
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(a)
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he
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)
|
he
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 he is not currently a defendant
in any such criminal proceeding; and
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(c)
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he
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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9. Each
of the undersigned has full right and power, without violating any agreement by which he or it is bound, to enter into this letter
agreement and with respect to Mr. DeCubellis, to serve as an officer of the Company.
10. Each
of the undersigned hereby waives any right to exercise conversion rights with respect to any shares of the Company’s common
stock owned or to be owned by the undersigned, directly or indirectly (or to sell such shares to the Company in a tender offer),
whether such shares be part of the Founders’ Common Stock or shares purchased by the undersigned in the IPO or in the aftermarket,
and each agrees not to seek conversion with respect to such shares in connection with any vote to approve a Business Combination
(or sell such shares to the Company in a tender offer in connection with such a Business Combination).
11. Each
of the undersigned hereby agrees to not propose, or vote in favor of, an amendment to the Company’s Amended and
Restated Certificate of Incorporation that would affect the ability of holders of IPO Shares to convert or sell their shares
to the Company in connection with a Business Combination or affect the substance or timing of the Company’s obligation
to redeem 100% of the IPO Shares if the Company does not complete a Business Combination within the time period set forth in
the Company’s Amended and Restated Certificate of Incorporation unless the Company provides public stockholders with
the opportunity to convert their IPO Shares upon such approval in accordance with the charter.
12. In
the event that the Company does not consummate a Business Combination and must liquidate and its remaining net assets are insufficient
to complete such liquidation, Black Ridge Oil & Gas, Inc. agrees to advance such funds necessary to complete such liquidation
and agrees not to seek repayment for such expenses.
13. This
letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
Each of the undersigned hereby (i) agrees that any action, proceeding or claim against him arising out of or relating in any way
to this letter agreement (a “Proceeding”) shall be brought and enforced in the courts of the State of New York of
the United States of America for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction
shall be exclusive, (ii) waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum
and (iii) irrevocably agrees to appoint Graubard Miller as agent for the service of process in the State of New York to receive,
for the undersigned and on his behalf, service of process in any Proceeding. If for any reason such agent is unable to act as
such, the undersigned will promptly notify the Company and the Representative and appoint a substitute agent acceptable to each
of the Company and the Representative within 30 days and nothing in this letter will affect the right of either party to serve
process in any other manner permitted by law.
14. As
used herein, (i) a “Business Combination” shall mean a merger, share exchange, asset acquisition, stock purchase,
recapitalization, reorganization or other similar business combination with one or more businesses or entities; (ii) “Insiders”
shall mean all officers, directors and sponsor of the Company immediately prior to the IPO; (iii) “Founders’ Common
Stock” shall mean all of the shares of Common Stock of the Company acquired by an Insider prior to the IPO; (iv) “IPO
Shares” shall mean the shares of Common Stock issued in the Company’s IPO; (v) “Private Units” shall mean
the units that are being sold privately by the Company simultaneously with the consummation of the IPO; (vi) “Trust Account”
shall mean the trust account into which a portion of the net proceeds of the IPO will be deposited; and (vii) “Registration
Statement” means the Company’s registration statement on Form S-1 (SEC File No. 333-220516) filed with the Securities
and Exchange Commission.
15. This
Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof
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 changed, amended, modified or waived (other than to correct a typographical error) as to any particular provision, except
by a written instrument executed by all parties hereto.
16. Each
of the undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations
and warranties set forth herein in proceeding with the IPO. 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.
17. Each
of the undersigned acknowledges and agrees that (a) each of the Underwriters and the Company would be irreparably injured in the
event of a breach by the undersigned of its obligations in this letter agreement, (b) monetary damages may not be an adequate
remedy for such breach and (c) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy
that such party may have in law or in equity, in the event of such breach.
17. This
letter agreement shall be binding on the undersigned and such person’s respective successors, heirs, personal representatives
and assigns. This letter agreement shall terminate on the earlier of (i) the consummation of a Business Combination and (ii) the
liquidation of the Company;
provided
, that such termination shall not relieve the undersigned from liability for any breach
of this agreement prior to its termination.
[Signature
Page Follows]
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Ken DeCubellis
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Print Name of Insider
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Signature
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Black Ridge Oil & Gas, Inc.
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Print Name of Insider
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By:
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Signature
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Acknowledged and Agreed:
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Black Ridge Acquisition Corp.
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By:
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Name:
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Title:
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EarlyBirdCapital, Inc.
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By:
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Name:
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Title:
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Exhibit 10.2
INVESTMENT
MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of __________, 2017 by and between Black Ridge Acquisition Corp. (the “Company”) and Continental
Stock Transfer & Trust Company (“Trustee”).
WHEREAS,
the Company’s registration statement on Form S-1, No. 333-_______ (“Registration Statement”) for its initial
public offering of securities (“IPO”) has been declared effective as of the date hereof (“Effective Date”)
by the Securities and Exchange Commission (capitalized terms used herein and not otherwise defined shall have the meanings set
forth in the Registration Statement); and
WHEREAS,
EarlyBirdCapital, Inc. (“EarlyBirdCapital”) is acting as the representative of the underwriters in the IPO; and
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s Amended and Restated Certificate of Incorporation,
$100,500,000 ($115,575,000 if the over-allotment option is exercised in full) of the proceeds from the IPO and a simultaneous
private placement of units will be delivered to the Trustee to be deposited and held in a trust account for the benefit of the
Company and the holders of the Company’s common stock, par value $.0001 per share (“Common Stock”), issued in
the IPO as hereinafter provided (the proceeds to be delivered to the Trustee will be referred to herein as the “Property”;
the stockholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Stockholders,”
and the Public Stockholders and the Company will be referred to together as the “Beneficiaries”); and
WHEREAS,
the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee
shall hold the Property;
IT
IS AGREED:
1.
Agreements
and Covenants of Trustee
. The Trustee hereby agrees and covenants to:
(a) Hold
the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in a segregated trust account (“Trust
Account”) established by the Trustee at JP Morgan Chase Bank, NA in the United States, maintained by Trustee, and at a brokerage
institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In
a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States “government
securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended (the “Investment
Company Act”), having a maturity of 180 days or less, and/or in any open ended investment company registered under the Investment
Company Act that holds itself out as a money market fund selected by the Company meeting the conditions of paragraph (d) of Rule
2a-7 promulgated under the Investment Company Act, which invest only in direct U.S. government treasury obligations; it being
understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions
hereunder;
(d) Collect
and receive, when due, all principal and income arising from the Property, which shall become part of the “Property,”
as such term is used herein;
(e) Notify
the Company and EarlyBirdCapital of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply
any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of
its tax returns;
(g) Participate
in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed
by the Company to do so;
(h) Render
to the Company monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements
of the Trust Account;
(i) Commence
liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter
(“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B,
signed on behalf of the Company by its President, Chief Executive Officer or Vice President and Secretary or Assistant Secretary,
affirmed by counsel for the Company and, in the case of a Termination Letter in a form substantially similar to that attached
hereto as Exhibit A, acknowledged and agreed to by EarlyBirdCapital, and complete the liquidation of the Trust Account and distribute
the Property in the Trust Account only as directed in the Termination Letter and the other documents referred to therein; provided,
however, that in the event that a Termination Letter has not been received by the Trustee within the period of time provided in
the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended from time to time (“Last
Date”), the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached
as Exhibit B hereto and distributed to the Public Stockholders as of the Last Date. The provisions of this Section 1(i) may not
be modified, amended or deleted under any circumstances; and
(j) Distribute
upon receipt of an Amendment Notification Letter (defined below), to Public Stockholders who exercised their conversion rights
in connection with an Amendment (defined below) an amount equal to the pro rata share of the Property relating to the Common Stock
for which such Public Stockholders have exercised conversion rights in connection with such Amendment.
2.
Limited
Distributions of Income from Trust Account
.
(a) Upon
written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto
as Exhibit C, the Trustee shall distribute to the Company the amount of interest income earned on the Trust Account requested
by the Company to cover any income or other tax obligation owed by the Company as a result of such interest income.
(b) Upon
written request from the Company, which may be given in connection with the Company’s liquidation and dissolution in a form
substantially similar to that attached hereto as Exhibit D, the Trustee shall distribute to the Company the amount of interest
income earned on the Trust Account requested by the Company to cover such liquidation and dissolution expenses up to $50,000;
provided, however, that the Company will not be allowed to withdraw interest income earned on the Trust
A
ccount
unless there is an amount of interest income available in the Trust Account sufficient to pay the Company’s tax obligations
on such interest income.
(c) The
limited distributions referred to in Sections 2(a) and 2(b) above shall be made only from income collected on the Property. Except
as provided in Section 2(a), and 2(b) above, no other distributions from the Trust Account shall be permitted except in accordance
with Sections 1(i) or 1(j) hereof.
(d) The
Company shall provide EarlyBirdCapital with a copy of any Termination Letters and/or any other correspondence that it issues to
the Trustee with respect to any proposed withdrawal from the Trust Account promptly after such issuance.
3.
Agreements
and Covenants of the Company
. The Company hereby agrees and covenants to:
(a) Give
all instructions to the Trustee hereunder in writing, signed by the Company’s Chairman of the Board, Vice Chairman of the
Board, Chief Executive Officer, President or Chief Financial Officer. In addition, except with respect to its duties under Sections
1(i), 1(j), 2(a) and 2(b) above, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or
telephonic advice or instruction which it in good faith believes to be given by any one of the persons authorized above to give
written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject
to the provisions of Sections 5 and 7(g) of this Agreement, hold the Trustee harmless and indemnify the Trustee from and against,
any and all expenses, including reasonable counsel fees and disbursements, or loss suffered by the Trustee in connection with
any claim, potential claim, action, suit or other proceeding brought against the Trustee involving any claim, or in connection
with any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or
the Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustee’s
gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement
of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this paragraph, it shall
notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall
have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain the consent
of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not
agree to settle any Indemnified Claim without the prior written consent of the Company, which consent shall not be unreasonably
withheld. The Company may participate in such action with its own counsel;
(c) Pay
the Trustee an initial acceptance fee, an annual fee and a transaction processing fee for each disbursement made pursuant to Sections
2(a) and 2(b) as set forth on Schedule A hereto, which fees shall be subject to modification by the parties from time to time.
It is expressly understood that the Property shall not be used to pay such fees and further agreed that any fees owed to the Trustee
shall be deducted by the Trustee from the disbursements made to the Company pursuant to Sections 1(i) solely in connection with
the consummation of a Business Combination, or pursuant to Section 2(b). The Company shall pay the Trustee the initial acceptance
fee and first year’s fee at the consummation of the IPO and thereafter on the anniversary of the Effective Date;
(d) In
connection with any vote of the Company’s stockholders regarding a Business Combination, provide to the Trustee an affidavit
or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating stockholder votes verifying
the vote of the Company’s stockholders regarding such Business Combination;
(e) In
the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to Section 1(i), the Company
agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement; and
(f) If
the Company seeks to amend any provisions of Article Sixth of its amended and restated certificate of incorporation (in each case,
an “Amendment”), provide the Trustee with a letter (an “Amendment Notification Letter”) in the form of
Exhibit E providing instructions for the distribution of funds to Public Stockholders who exercise their conversion option in
connection with such Amendment.
4.
Limitations
of Liability
. The Trustee shall have no responsibility or liability to:
(a) Take
any action with respect to the Property, other than as directed in Sections 1 and 2 hereof and the Trustee shall have no liability
to any party except for liability arising out of its own gross negligence or willful misconduct;
(b) Institute
any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of
any kind with respect to, any of the Property unless and until it shall have received instructions from the Company given as provided
herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(c) Change
the investment of any Property, other than in compliance with Section 1(c);
(d) Refund
any depreciation in principal of any Property;
(e) Assume
that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided
otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(f) The
other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted,
in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee
may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel
(including counsel chosen by the Trustee), statement, instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained)
which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons.
The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement
or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties
and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(g) Verify
the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by
the Company or any other action taken by it is as contemplated by the Registration Statement;
(h) File
local, state and/or federal tax returns or information returns with any taxing authority on behalf of the Trust Account and payee
statements with the Company documenting the taxes, if any, payable by the Company or the Trust Account, relating to the income
earned on the Property;
(i) Pay
any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes
and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account or released to it under Section
2(a) hereof);
(j) Imply
obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this agreement
and that which is expressly set forth herein; or
(k) Verify
calculations, qualify or otherwise approve Company requests for distributions pursuant to Section 1(i), 2(a) or 2(b) above.
5.
Trust
Account Waiver
. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”)
to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account
that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including,
without limitation, under Section 3(b) or Section 3(c) hereof, the Trustee shall pursue such Claim solely against the Company
and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.
6.
Termination
.
This Agreement shall terminate as follows:
(a) If
the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable
efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time
that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject
to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including
but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement
shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety days
of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with
any court in the State of New York or with the United States District Court for the Southern District of New York and upon such
deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At
such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of Section 1(i)
hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate
except with respect to Section 3(b).
7.
Miscellaneous
.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to
funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating
to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe
unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing
funds transfers, the Trustee will rely upon all information supplied to it by the Company, including account names, account numbers
and all other identifying information relating to a beneficiary, beneficiary’s bank or intermediary bank. The Trustee shall
not be liable for any loss, liability or expense resulting from any error in the information or transmission of the wire.
(b) This
Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving
effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. This
Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together
shall constitute but one instrument.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except
for Sections 1(i) and 1(j) (which may not be amended under any circumstances), this Agreement or any provision hereof may only
be changed, amended or modified by a writing signed by each of the parties hereto; provided, however, that no such change, amendment
or modification may be made without the prior written consent of EarlyBirdCapital. As to any claim, cross-claim or counterclaim
in any way relating to this Agreement, each party waives the right to trial by jury. The Trustee may require from Company counsel
an opinion as to the propriety of any proposed amendment.
(d) The
parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough of
Manhattan, for purposes of resolving any disputes hereunder.
(e) Any
notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing
and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery
or by facsimile transmission:
if
to the Trustee, to:
Continental
Stock Transfer & Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Fax
No.: (212) 509-5150
if
to the Company, to:
Black
Ridge Acquisition Corp.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
Attn:
Ken DeCubellis, Chief Executive Officer
Fax
No.: (___) ___-____
in
either case with a copy (which copy shall not constitute notice) to:
EarlyBirdCapital,
Inc.
366
Madison Avenue
New
York, New York 10017
Attn:
General Counsel and Investment Banking Department
Facsimile:
(___) ___-____
and
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue
New
York, New York 10174
Attn:
David Alan Miller, Esq.
Fax
No.: (212) 818-8881
and
Stinson
Leonard Street LLP
150
South Fifth Street, Suite 2300
Minneapolis,
MN 55402
Attn:
Jill R. Radloff
Fax
No.: (612) 335-1657
and
Greenberg
Traurig, LLP
MetLife
Building
200
Park Avenue
New
York, New York 10166
Attn:
Alan I. Annex, Esq.
Fax
No.: (212) 801-9200
(f) This
Agreement may not be assigned by the Trustee without the prior consent of the Company.
(g) Each
of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into
this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it
shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any
funds in the Trust Account under any circumstance. In the event that the Trustee has a claim against the Company under this Agreement,
the Trustee will pursue such claim solely against the Company and not against the Property held in the Trust Account
(h) Each
of the Company and the Trustee hereby acknowledge that EarlyBirdCapital is a third party beneficiary of this Agreement.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
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By:
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Name:
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Title:
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BLACK RIDGE ACQUISITION CORP.
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By:
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Name:
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Title:
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SCHEDULE
A
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Fee
Item
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Time
and method of payment
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Amount
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Initial
acceptance fee
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Initial
closing of IPO by wire transfer
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[$2,000]
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Annual
fee
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First
year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer
or check
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[$10,000]
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Transaction
processing fee for disbursements to Company under Section 2
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Deduction
by Trustee from accumulated income following disbursement made to Company under Section 2
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[$250]
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Paying
Agent services as required pursuant to section 1(i)
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Billed
to Company upon delivery of service pursuant to section 1(i)
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Prevailing
rates
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EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Re:
Trust
Account No. - Termination Letter
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Black Ridge Acquisition Corp. (“Company”) and
Continental Stock Transfer & Trust Company (“Trustee”), dated as of __________, 2017 (“Trust Agreement”),
this is to advise you that the Company has entered into an agreement with [__________________] (“Target Business”)
to consummate a business combination with Target Business (“Business Combination”) on or about
[insert date]
.
The Company shall notify you at least 48 hours in advance of the actual date of the consummation of the Business Combination (“Consummation
Date”). Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments on [__________]
and to transfer the proceeds to the above-referenced account at [____________] to the effect that, on the Consummation Date, all of
funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct
on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in the trust account awaiting distribution,
the Company will not earn any interest or dividends.
On
the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has
been consummated and (ii) the Company shall deliver to you (a) [an affidavit] [a certificate] of [__________________], which verifies
the vote of the Company’s stockholders in connection with the Business Combination if a vote is held and (b) joint written
instructions from the Company and EarlyBirdCapital, Inc. with respect to the transfer of the funds held in the Trust Account (“Instruction
Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt
of the counsel’s letter and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that
certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the
Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and distributed
after the Consummation Date to the Company. Upon the distribution of all the funds in the Trust Account pursuant to the terms
hereof, the Trust Agreement shall be terminated.
In
the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have
not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written
instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the
business day immediately following the Consummation Date as set forth in the notice.
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Very
truly yours,
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BLACK
RIDGE ACQUISITION CORP.
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By:
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Ken DeCubellis, Chief Executive Officer
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By:
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James Moe, Chief Financial Officer
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AGREED
TO AND
ACKNOWLEDGED
BY
EARLYBIRDCAPITAL,
INC.
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Re:
Trust
Account No. - Termination Letter
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Black Ridge Acquisition Corp. (“Company”) and
Continental Stock Transfer & Trust Company (“Trustee”), dated as of _______, 2017 (“Trust Agreement”),
this is to advise you that the Company has been unable to effect a Business Combination with a Target Company within the time
frame specified in the Company’s Amended and Restated Certificate of Incorporation, as described in the Company’s
prospectus relating to its IPO. Capitalized terms used herein and not otherwise defined shall have the meanings set forth in the
Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all the Trust Account investments on [______________]
and to transfer the total proceeds to the Trust Checking Account at [_______]_to await distribution to the Public Stockholders.
The Company has selected [____________, 20__] as the record date for the purpose of determining the Public Stockholders entitled
to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation
proceeds while on deposit in the Trust Checking Account. You agree to be the Paying Agent of record and in your separate capacity
as Paying Agent, to distribute said funds directly to the Public Stockholders in accordance with the terms of the Trust Agreement
and the Amended and Restated Certificate of Incorporation of the Company. Upon the distribution of all the funds in the Trust
Account, your obligations under the Trust Agreement shall be terminated.
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Very
truly yours,
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BLACK
RIDGE ACQUISITION CORP.
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By:
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Ken DeCubellis, Chief Executive Officer
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By:
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James Moe, Chief Financial Officer
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cc:
EarlyBirdCapital, Inc.
EXHIBIT
C
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Re:
Trust
Account No.
Gentlemen:
Pursuant
to Section 2(a) of the Investment Management Trust Agreement between Black Ridge Acquisition Corp. (“Company”) and
Continental Stock Transfer & Trust Company (“Trustee”), dated as of _________, 2017 (“Trust Agreement”),
the Company hereby requests that you deliver to the Company [$_______] of the interest income earned on the Property as of the
date hereof. The Company needs such funds to pay for its tax obligations as a result of such interest income. In accordance with
the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon
your receipt of this letter to the Company’s operating account at:
[WIRE
INSTRUCTION INFORMATION]
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BLACK
RIDGE ACQUISITION CORP.
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By:
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Ken DeCubellis, Chief Executive Officer
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By:
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James Moe, Chief Financial Officer
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cc:
EarlyBirdCapital, Inc.
EXHIBIT
D
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Re:
Trust
Account No.
Gentlemen:
Pursuant
to Section 2(b) of the Investment Management Trust Agreement between Black Ridge Acquisition Corp. (“Company”) and
Continental Stock Transfer & Trust Company (“Trustee”), dated as of __________, 2017 (“Trust Agreement”),
the Company hereby requests that you deliver to the Company [$_______] of the interest income earned on the Property as of the
date hereof. The Company needs such funds to cover its liquidation and dissolution expenses. In accordance with the terms of the
Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt
of this letter to the Company’s operating account at:
[WIRE
INSTRUCTION INFORMATION]
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Very
truly yours,
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BLACK
RIDGE ACQUISITION CORP.
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By:
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Ken DeCubellis, Chief Executive Officer
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By:
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James Moe, Chief Financial Officer
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cc:
EarlyBirdCapital, Inc.
EXHIBIT
E
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
1
State Street Plaza
New
York, New York 10004
Attn:
Fran Wolf and Sharmin Carter
Re:
Trust
Account No. - Termination Letter
Gentlemen:
Reference
is made to the Investment Management Trust Agreement between Black Ridge Acquisition Corp. (“Company”) and Continental
Stock Transfer & Trust Company, dated as of __________, 2017 (“Trust Agreement”). Capitalized words used herein
and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
Pursuant
to Section 1(j) of the Trust Agreement, this is to advise you that the Company has sought an Amendment. Accordingly, in accordance
with the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account on [ ] and to transfer $_____ of
the proceeds of the Trust to the checking account at [ ] for distribution to the stockholders that have requested conversion of
their shares in connection with such Amendment. The remaining funds shall be reinvested by you as previously instructed.
Very
truly yours,
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BLACK
RIDGE ACQUISITION CORP.
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By:
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Ken DeCubellis, Chief Executive Officer
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By:
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James Moe, Chief Financial Officer
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cc:
EarlyBirdCapital, Inc.
Exhibit
10.3
STOCK
ESCROW AGREEMENT
STOCK
ESCROW AGREEMENT, dated as of [_____], 2017 (“Agreement”), by and among BLACK RIDGE ACQUISITION CORP., a Delaware
corporation (“Company”), BLACK RIDGE OIL & GAS, INC., a Nevada corporation (the “Sponsor” and any
permitted transferee of the Sponsor after the date hereof in accordance with the terms hereof being referred to as an “Initial
Stockholder”) and CONTINENTAL STOCK TRANSFER & TRUST COMPANY, a New York corporation (“Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated [_____], 2017 (“Underwriting Agreement”), with EarlyBirdCapital,
Inc. (the “Representative”) acting as representative of the several underwriters (collectively, the “Underwriters”),
pursuant to which, among other matters, the Underwriters have agreed to purchase 10,000,000 units (“Units”) of the
Company, plus an additional 1,500,000 Units if the Representative exercises the over-allotment option in full. Each Unit consists
of one share of the Company’s common stock, par value $.0001 per share (“Common Stock”), one right to receive
one-tenth of one share of Common Stock upon the consummation by the Company of a merger, share exchange, asset acquisition, stock
purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities (“Business
Combination”), and one half of one Warrant, each whole Warrant to purchase one share of Common Stock, in the Company’s
initial public offering (the “IPO”), all as more fully described in the Company’s final Prospectus, dated [_____],
2017 (“Prospectus”) comprising part of the Company’s Registration Statement on Form S-1 (File No. 333-_________)
under the Securities Act of 1933, as amended (“Registration Statement”), declared effective on [_____], 2017 (“Effective
Date”).
WHEREAS,
the Sponsor has agreed as a condition of the sale of the Units to deposit its 2,875,000 shares of Common Stock of the Company
in escrow as hereinafter provided.
WHEREAS,
the Company and the Sponsor desire that the Escrow Agent accept the shares, in escrow, to be held and disbursed as hereinafter
provided.
IT
IS AGREED:
1.
Appointment
of Escrow Agent
. The Company and the Sponsor hereby appoint the Escrow Agent to act in accordance with and subject to the
terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.
2.
Deposit
of Shares
. On or before the Effective Date, the Sponsor shall have delivered to the Escrow Agent a certificate representing
such Sponsor’s shares, to be held and disbursed subject to the terms and conditions of this Agreement. The Sponsor acknowledges
that the certificate representing such Sponsor’s shares is legended to reflect the deposit of such shares under this Agreement.
3.
Disbursement
of the Escrow Shares
.
3.1 If
the Underwriters do not exercise in full their over-allotment option to purchase up to an additional 1,500,000 Units of the Company
within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Sponsor agrees that the Escrow
Agent shall return to the Company for cancellation, at no cost, a number of shares determined by multiplying 375,000 by a fraction,
(i) the numerator of which is 1,500,000 minus the number of shares of Common Stock, if any, purchased by the Underwriters upon
the exercise of their over-allotment option, and (ii) the denominator of which is 1,500,000. The Company shall promptly provide
notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment option and the number of
Units, if any, purchased by the Underwriters in connection with their exercise thereof.
3.2 Except
as otherwise set forth herein, the Escrow Agent shall hold the shares remaining after any cancellation required pursuant to Section
3.1 above (such remaining shares to be referred to herein as the “Escrow Shares”) until (i) with respect to 50% of
the Escrow Shares, on the earlier of (x) one year after the date of the consummation of the Company’s initial Business Combination
and (y) the date on which the closing price of the Company’s Common Stock equals or exceeds $12.50 per share (as adjusted
for stock splits, stock dividends, reorganizations and recapitalizations) for any 20 trading days within any 30-trading day period
commencing after the Company’s initial Business Combination and (ii) with respect to the remaining 50% of the Escrow Shares,
one year after the date of the consummation of an initial Business Combination (the “Escrow Period”). The Company
shall promptly provide notice of the consummation of a Business Combination to the Escrow Agent. Upon completion of the Escrow
Period, the Escrow Agent shall disburse such amount of each Initial Stockholder’s Escrow Shares (and any applicable share
power) to such Initial Stockholder; provided, however, that if the Escrow Agent is notified by the Company pursuant to Section
6.7 hereof that the Company is being liquidated because it failed to consummate a Business Combination within the time period
specified in the Prospectus, then the Escrow Agent shall promptly destroy the certificates representing the Escrow Shares; provided
further, however, that if, within one year after the Company consummates a Business Combination, the Company (or the surviving
entity) subsequently consummates a liquidation, merger, stock exchange or other similar transaction which results in all of the
stockholders of such entity having the right to exchange their shares of Common Stock for cash, securities or other property,
then the Escrow Agent will, upon receipt of a notice executed by the Chairman of the Board, Chief Executive Officer or other authorized
officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction is then being consummated
or such conditions have been achieved, as applicable, release the Escrow Shares to the Initial Stockholders. The Escrow Agent
shall have no further duties hereunder after the disbursement or destruction of the Escrow Shares in accordance with this Section
3.
4.
Rights
of Initial Stockholder in Escrow Shares
.
4.1
Voting
Rights as a Stockholder
. Subject to the terms of the Insider Letters described in Section 4.4 hereof and except as herein
provided, the Initial Stockholders shall retain all of their rights as stockholders of the Company as long as any shares are held
in escrow pursuant to this Agreement, including, without limitation, the right to vote such shares.
4.2
Dividends
and Other Distributions in Respect of the Escrow Shares
. For as long as any shares are held in escrow pursuant to this Agreement,
all dividends payable in cash with respect to the Escrow Shares shall be paid to the Initial Stockholders, but all dividends payable
in stock or other non-cash property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance
with the terms hereof. As used herein, the term “Escrow Shares” shall be deemed to include the Non-Cash Dividends
distributed thereon, if any.
4.3
Restrictions
on Transfer
. During the Escrow Period, the only permitted transfers of the Escrow Shares will be (i) to the Initial Stockholders’
or the Company’s officers, directors, employees, consultants or their affiliates, (ii) to an Initial Stockholders’
officers, directors, employees or members upon the Initial Stockholders’ liquidation, in each case if the Initial Stockholder
is an entity, (iii) by bona fide gift to a member of the Initial Stockholders’ immediate family or to a trust, the beneficiary
of which is the Initial Stockholder or a member of the Initial Stockholders’ immediate family for estate planning purposes,
(iv) by virtue of the laws of descent and distribution upon death, (v) pursuant to a qualified domestic relations order, (vi)
to the Company for no value for cancellation in connection with the consummation of a Business Combination or (vii) in connection
with the consummation of an initial Business Combination, by private sales of the Escrow Shares at prices no greater than the
price at which the Escrow Shares were originally purchased; provided, however, that except for clause (vi) or with the Company’s
prior written consent, such permissive transfers may be implemented only upon the respective transferee’s written agreement
to be bound by the terms and conditions of this Agreement and of the Insider Letter signed by the Sponsor transferring the shares.
4.4
Insider
Letter
. The Sponsor has executed a letter agreement with the Company and the Representative, dated as indicated on Exhibit
A hereto, the form of which is filed as an exhibit to the Registration Statement (“Insider Letter”), respecting the
rights and obligations of the Sponsor in certain events, including, but not limited to, the liquidation of the Company.
5.
Concerning
the Escrow Agent
.
5.1
Good
Faith Reliance
. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise
of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other paper or document
(not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability
of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the
proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination
or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties
and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
5.2
Indemnification
.
The Escrow Agent shall be indemnified and held harmless by the Company from and against any expenses, including reasonable counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with any action, suit or other proceeding involving
any claim which in any way, directly or indirectly, arises out of or relates to this Agreement, the services of the Escrow Agent
hereunder, or the Escrow Shares held by it hereunder, other than expenses or losses arising from the gross negligence or willful
misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any demand or claim or the commencement
of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In the event of the receipt
of such notice, the Escrow Agent, in its sole discretion, may commence an action in the nature of interpleader in an appropriate
court to determine ownership or disposition of the Escrow Shares or it may deposit the Escrow Shares with the clerk of any appropriate
court or it may retain the Escrow Shares pending receipt of a final, non-appealable order of a court having jurisdiction over
all of the parties hereto directing to whom and under what circumstances the Escrow Shares are to be disbursed and delivered.
The provisions of this Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to Sections 5.5
or 5.6 below.
5.3
Compensation
.
The Escrow Agent shall be entitled to reasonable compensation from the Company for all services rendered by it hereunder. The
Escrow Agent shall also be entitled to reimbursement from the Company for all reasonable expenses paid or incurred by it in the
administration of its duties hereunder including, but not limited to, all counsel, advisors’ and agents’ fees and
disbursements and all taxes or other governmental charges.
5.4
Further
Assurances
. From time to time on and after the date hereof, the Company and the Sponsor shall deliver or cause to be delivered
to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as the Escrow Agent
shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence compliance herewith
or to assure itself that it is protected in acting hereunder.
5.5
Resignation
.
The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties
hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective
at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company and approved by the Representative,
which approval will not be unreasonably withheld, conditioned or delayed, the Escrow Shares held hereunder. If no new escrow agent
is so appointed within the 60-day period following the giving of such notice of resignation, the Escrow Agent may deposit the
Escrow Shares with any court it reasonably deems appropriate in the State of New York.
5.6
Discharge
of Escrow Agent
. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested
in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only
upon acceptance of appointment by a successor escrow agent as provided in Section 5.5.
5.7
Liability
.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence, fraud or willful misconduct.
5.8
Waiver
.
The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“Claim”)
in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of
the date hereof, by and between the Company and the Escrow Agent as trustee thereunder) and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
6.
Miscellaneous
.
6.1
Governing
Law
. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of
the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive
laws of another jurisdiction. Each of the parties hereby agrees that any action, proceeding or claim against it arising out of
or relating in any way to this 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 personal jurisdiction, which jurisdiction
shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent
an inconvenient forum.
6.2
Third
Party Beneficiaries
. The Sponsor hereby acknowledges that the Underwriters are third party beneficiaries of this Agreement.
6.3
Entire
Agreement
. This Agreement and each Insider Letter contain the entire agreement of the parties hereto with respect to the subject
matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed
by the party to be charged.
6.4
Headings
.
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.5
Binding
Effect
. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives,
successors and assigns.
6.6
Notices
.
Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally
or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, four business days after the date of mailing, as follows:
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If to the Company, to:
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Black Ridge Acquisition Corp.
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c/o Black Ridge Oil & Gas, Inc.
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110 North 5th Street, Suite 410,
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Minneapolis, Minnesota 55403
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Attn: Ken DeCubellis
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If to the Sponsor, to its address
set forth in Exhibit A.
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and if to the Escrow Agent, to:
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Continental Stock Transfer & Trust Company
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1 State Street Plaza
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New York, New York 10004
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Attn: Chairman
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A copy of any notice sent hereunder
shall be sent to:
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EarlyBirdCapital, Inc.
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366 Madison Avenue
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5
th
Floor
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New York, New York 10017
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Attn: General Counsel and Investment Banking
Department
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Facsimile: (212) 661-0200
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with a copy to:
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Graubard Miller
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The Chrysler Building
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405 Lexington Avenue
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New York, New York 10174
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Attn: David Alan Miller, Esq.
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and:
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Greenberg Traurig, LLP
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Met Life Building
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200 Park Avenue
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New York, New York 10166
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Attn: Alan I. Annex, Esq.
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and:
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Stinson Leonard Street LLP
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150 South Fifth Street, Suite 2300
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Minneapolis, MN 55402
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Attn: Jill R. Radloff
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The
parties may change the persons and addresses to which the notices or other communications are to be sent by giving written notice
to any such change in the manner provided herein for giving notice.
6.7
Liquidation
of the Company
. The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company
in the event that the Company fails to consummate a Business Combination within the time period specified in the Prospectus.
6.8
Counterparts
.
This Agreement may be executed in several counterparts, each one of which shall constitute an original and may be delivered by
facsimile transmission and together shall constitute one instrument.
[Signature
Page Follows]
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WITNESS the execution of
this Agreement as of the date first above written.
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BLACK RIDGE ACQUISITION CORP.
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By:
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SPONSOR:
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BLACK RIDGE OIL & GAS, INC.
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By:
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Name: Ken DeCubellis
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Title: Chief Executive Officer
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CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
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By:
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Name:
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Title:
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EXHIBIT
A
|
Name
and Address
|
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Number
of
Shares
|
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Stock
Certificate
Number
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Date
of
Insider
Letter
|
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Black
Ridge Oil & Gas, Inc.
110
North 5th Street, Suite 410,
Minneapolis,
Minnesota 55403
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2,875,000
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1
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[_____]
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Exhibit 10.4
PROMISSORY NOTE
|
$125,000.00
|
As of May 31, 2017
|
Black Ridge Acquisition
Corp. (“Maker”) promises to pay to the order of Black Ridge Oil & Gas, Inc. (“Payee”) the principal
sum of One Hundred Twenty Five Thousand Dollars and No Cents ($125,000.00) in lawful money of the United States of America, on
the terms and conditions described below.
1.
Principal
.
The principal balance of this Note shall be repayable on the earlier of (i) June 1, 2018, (ii) the date on which Maker consummates
an initial public offering of its securities (“IPO”) or (iii) the date on which Maker determines to not proceed with
such IPO.
2.
Interest
.
No interest shall accrue on the unpaid principal balance of this Note.
3.
Application
of Payments
. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due
under this Note, including (without limitation) reasonable attorneys’ fees, then to the payment in full of any late charges
and finally to the reduction of the unpaid principal balance of this Note.
4.
Events
of Default
. The following shall constitute Events of Default:
(a)
Failure
to Make Required Payments
. Failure by Maker to pay the principal of this Note within five (5) business days following the date
when due.
(b)
Voluntary
Bankruptcy, Etc.
The commencement by Maker of a voluntary case under the Federal Bankruptcy Code, as now constituted or hereafter
amended, or any other applicable federal or state bankruptcy, insolvency, reorganization, rehabilitation or other similar law,
or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator
(or other similar official) of Maker or for any substantial part of its property, or the making by it of any assignment for the
benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action
by Maker in furtherance of any of the foregoing.
(c)
Involuntary
Bankruptcy, Etc.
The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of maker
in an involuntary case under the Federal Bankruptcy Code, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or
similar official) of Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs,
and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.
5.
Remedies
.
(a) Upon
the occurrence of an Event of Default specified in Section 4(a), Payee may, by written notice to Maker, declare this Note to be
due and payable, whereupon the principal amount of this Note, and all other amounts payable thereunder, shall become immediately
due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything
contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon
the occurrence of an Event of Default specified in Sections 4(b) and 4(c), the unpaid principal balance of, and all other sums
payable with regard to, this Note shall automatically and immediately become due and payable, in all cases without any action on
the part of Payee.
6.
Waivers
.
Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor,
protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by
Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting
any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or
sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and
Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution
issued hereon, may be sold upon any such writ in whole or in part in any order desired by Payee.
7.
Unconditional
Liability
. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement
of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other
party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or
consented to by Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted
by Payee with respect to the payment or other provisions of this Note, and agree that additional makers, endorsers, guarantors,
or sureties may become parties hereto without notice to them or affecting their liability hereunder.
8.
Notices
.
Any notice called for hereunder shall be deemed properly given if (i) sent by certified mail, return receipt requested, (ii) personally
delivered, (iii) dispatched by any form of private or governmental express mail or delivery service providing receipted delivery,
(iv) sent by telefacsimile or (v) sent by e-mail, to the following addresses or to such other address as either party may designate
by notice in accordance with this Section:
If to Maker:
Black Ridge Acquisition Corp.
c/o Black Ridge Oil &
Gas, Inc.
110 North 5
th
Street, Suite 410
Minneapolis, MN 55403
If to Payee:
Black Ridge Oil & Gas,
Inc.
110 North 5
th
Street, Suite 410
Minneapolis, MN 55403
Notice shall be deemed given
on the earlier of (i) actual receipt by the receiving party, (ii) the date shown on a telefacsimile transmission confirmation,
(iii) the date on which an e-mail transmission was received by the receiving party’s on-line access provider (iv) the date
reflected on a signed delivery receipt, or (vi) two (2) Business Days following tender of delivery or dispatch by express mail
or delivery service.
9.
Construction
.
This Note shall be construed and enforced in accordance with the domestic, internal law, but not the law of conflict of laws, of
the State of New York.
10.
Severability
.
Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other
jurisdiction.
IN WITNESS WHEREOF, Maker,
intending to be legally bound hereby, has caused this Note to be duly executed by its Chief Executive Officer the day and year
first above written.
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BLACK RIDGE ACQUISITION CORP.
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By:
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/s/ Ken DeCubellis
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Name: Ken DeCubellis
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Title: CEO
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Exhibit
10.5
REGISTRATION
RIGHTS AGREEMENT
THIS
REGISTRATION RIGHTS AGREEMENT (this “
Agreement
”) is entered into as of the [__] day of [_____], 2017,
by and among Black Ridge Acquisition Corp., a Delaware corporation (the “
Company
”), and the undersigned
parties listed under Investors on the signature page hereto (each, an “
Investor
” and collectively, the
“
Investors
”).
WHEREAS,
the Investors and the Company desire to enter into this Agreement to provide the Investors with certain rights relating to the
registration of the securities held by them as of the date hereof;
NOW,
THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.
DEFINITIONS
.
The following capitalized terms used herein have the following meanings:
“
Agreement
”
means this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“
Business
Combination
” means the acquisition of direct or indirect ownership through a merger, share exchange, asset acquisition,
stock purchase, recapitalization, reorganization or other similar type of transaction, of one or more businesses or entities having
a collective fair market value of at least 80% of the balance in the Company’s trust account at the time of the execution
of a definitive agreement for such transaction.
“
Commission
”
means the Securities and Exchange Commission, or any other federal agency then administering the Securities Act or the Exchange
Act.
“
Common
Stock
” means the common stock, par value $0.0001 per share, of the Company.
“
Company
”
is defined in the preamble to this Agreement.
“
Demand
Registration
” is defined in Section 2.1.1.
“
Demanding
Holder
” is defined in Section 2.1.1.
“
Exchange
Act
” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated
thereunder, all as the same shall be in effect at the time.
“
Form
S-3
” is defined in Section 2.3.
“
Indemnified
Party
” is defined in Section 4.3.
“
Indemnifying
Party
” is defined in Section 4.3.
“
Investor
”
is defined in the preamble to this Agreement.
“
Investor
Indemnified Party
” is defined in Section 4.1.
“
Maximum
Number of Shares
” is defined in Section 2.1.4.
“
Notices
”
is defined in Section 6.3.
“
Piggy-Back
Registration
” is defined in Section 2.2.1.
“
Private
Units
” means the up to 387,500 Units the Investors may be purchasing privately simultaneously with the consummation
of the Company’s initial public offering.
“
Register
,”
“
Registered”
and “
Registration
” mean a registration effected by preparing
and filing a registration statement or similar document in compliance with the requirements of the Securities Act, and the applicable
rules and regulations promulgated thereunder, and such registration statement becoming effective.
“
Registrable
Securities
” means (i) all of the shares of Common Stock beneficially owned or held by Investors prior to the consummation
of the Company’s initial public offering, (ii) all of the Private Units (and underlying securities), and (iii) all of the
Working Capital Units (and underlying securities). Registrable Securities include any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of such
shares of Common Stock, Private Units (and underlying securities) and Working Capital Units (and underlying securities). As to
any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration Statement
with respect to the sale of such securities shall have become effective under the Securities Act and such securities shall have
been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities shall have
been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been delivered
by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such securities
shall have ceased to be outstanding; or (d) such securities are freely saleable under Rule 144 without volume limitations.
“
Registration
Statement
” means a registration statement filed by the Company with the Commission in compliance with the Securities
Act and the rules and regulations promulgated thereunder for a public offering and sale of Common Stock (other than a registration
statement on Form S-4 or Form S-8, or their successors, or any registration statement covering only securities proposed to be
issued in exchange for securities or assets of another entity).
“
Release
Date
” means the date on which shares of Common Stock are disbursed from escrow pursuant to Section 3 of that certain
Stock Escrow Agreement dated as of _________, 2017 by and among the parties hereto and Continental Stock Transfer & Trust
Company.
“
Rule
144
” means Rule 144 promulgated under the Securities Act.
“
Securities
Act
” means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect at the time.
“
Underwriter
”
means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of
such dealer’s market-making activities.
“
Working
Capital Units
” means any Units held by Investors, officers or directors of the Company or their affiliates which
may be issued in payment of working capital loans made to the Company.
2.
REGISTRATION
RIGHTS
.
2.1
Demand
Registration
.
2.1.1.
Request
for Registration
. At any time and from time to time on or after (i) the date that the Company consummates a Business Combination
with respect to the Private Units (or underlying securities) and Working Capital Units (or underlying securities) or (ii) three
months prior to the Release Date with respect to all other Registrable Securities, the holders of a majority-in-interest of such
Private Units (or underlying securities), Working Capital Units (or underlying securities) or other Registrable Securities, as
the case may be, held by the Investors, officers or directors of the Company or their affiliates, or the transferees of the Investors,
may make a written demand for registration under the Securities Act of all or part of their Private Units (or underlying securities),
Working Capital Units (or underlying securities) or other Registrable Securities, as the case may be (a “
Demand Registration
”).
Any demand for a Demand Registration shall specify the number of Registrable Securities proposed to be sold and the intended method(s)
of distribution thereof. The Company will within 10 days of the Company’s receipt of the Demand Registration notify all
holders of Registrable Securities of the demand, and each holder of Registrable Securities who wishes to include all or a portion
of such holder’s Registrable Securities in the Demand Registration (each such holder including shares of Registrable Securities
in such registration, a “
Demanding Holder
”) shall so notify the Company within ten (10) days after the
receipt by the holder of the notice from the Company. Upon any such request, the Demanding Holders shall be entitled to have their
Registrable Securities included in the Demand Registration, subject to Section 2.1.4 and the provisos set forth in Section 3.1.1.
The Company shall not be obligated to effect more than an aggregate of two (2) Demand Registrations under this Section 2.1.1 in
respect of all Registrable Securities.
2.1.2.
Effective
Registration
. A registration will not count as a Demand Registration until the Registration Statement filed with the Commission
with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective,
the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of
the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, unless and until, (i) such stop order or injunction is removed, rescinded
or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders thereafter affirmatively elect to continue the
offering and notify the Company in writing, but in no event later than five (5) days of such election; provided, further, that
the Company shall not be obligated to file a second Registration Statement until a Registration Statement that has been filed
is counted as a Demand Registration or is terminated.
2.1.3.
Underwritten
Offering
. If a majority-in-interest of the Demanding Holders so elect and such holders so advise the Company as part of their
written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration shall
be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities in such
registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such holder’s
Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute their
securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter or Underwriters
selected for such underwriting by a majority-in-interest of the holders initiating the Demand Registration.
2.1.4.
Reduction
of Offering
. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities
which the Demanding Holders desire to sell, taken together with all other shares of Common Stock or other securities which the
Company desires to sell and the shares of Common Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other stockholders of the Company who desire to sell, exceeds the maximum dollar
amount or maximum number of shares that can be sold in such offering without adversely affecting the proposed offering price,
the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number
of shares, as applicable, the “
Maximum Number of Shares
”), then the Company shall include in such registration:
(i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata in
accordance with the number of shares that each such Person has requested be included in such registration, regardless of the number
of shares held by each such Person (such proportion is referred to herein as “
Pro Rata
”)) that can be
sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clause (i), the shares of Common Stock or other securities that the Company desires to sell that can
be sold without exceeding the Maximum Number of Shares; (iii) third, to the extent that the Maximum Number of Shares has not been
reached under the foregoing clauses (i) and (ii), the shares of Common Stock or other securities registrable pursuant to the terms
of the Unit Purchase Option issued to EarlyBirdCapital, Inc. or its designees in connection with the Company’s initial public
offering (the “
Unit Purchase Option
” and such registrable securities, the “
Option Securities
”)
as to which “piggy-back” registration has been requested by the holders thereof, Pro Rata, that can be sold without
exceeding the Maximum Number of Shares; and (iv) fourth, to the extent that the Maximum Number of Shares have not been reached
under the foregoing clauses (i), (ii), and (iii), the shares of Common Stock or other securities for the account of other persons
that the Company is obligated to register pursuant to written contractual arrangements with such persons and that can be sold
without exceeding the Maximum Number of Shares.
2.1.5.
Withdrawal
.
If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include
all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw
from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior
to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the
majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in this Section 2.1.
2.2
Piggy-Back
Registration
.
2.2.1.
Piggy-Back
Rights
. If at any time on or after the date the Company consummates a Business Combination the Company proposes to file a
Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations
exercisable or exchangeable for, or convertible into, equity securities, by the Company for its own account or for stockholders
of the Company for their account (or by the Company and by stockholders of the Company including, without limitation, pursuant
to Section 2.1), other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan,
(ii) for an exchange offer or offering of securities solely to the Company’s existing stockholders, (iii) for an offering
of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall
(x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event
less than ten (10) days before the anticipated filing date, which notice shall describe the amount and type of securities to be
included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters,
if any, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the
sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following
receipt of such notice (a “
Piggy-Back Registration
”). The Company shall, in good faith, cause such Registrable
Securities to be included in such registration and shall use its best efforts to cause the managing Underwriter or Underwriters
of a proposed underwritten offering to permit the Registrable Securities requested to be included in a Piggy-Back Registration
on the same terms and conditions as any similar securities of the Company and to permit the sale or other disposition of such
Registrable Securities in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities
proposing to distribute their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall
enter into an underwriting agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2.
Reduction
of Offering
. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten offering
advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of shares of Common
Stock which the Company desires to sell, taken together with shares of Common Stock, if any, as to which registration has been
demanded pursuant to separate written contractual arrangements with persons or entities other than the holders of Registrable
Securities hereunder, the Registrable Securities as to which registration has been requested under this Section 2.2, and the shares
of Common Stock, if any, as to which registration has been requested pursuant to the written contractual piggy-back registration
rights of other stockholders of the Company, exceeds the Maximum Number of Shares, then the Company shall include in any such
registration:
a) If
the registration is undertaken for the Company’s account: (A) the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares; (B) to the extent that the Maximum Number of
Shares has not been reached under the foregoing clause (A), the shares of Common Stock or other securities, if any, comprised
of Registrable Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back
registration rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C)
to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Common
Stock or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual
piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares; and
b) If
the registration is a “demand” registration undertaken at the demand of holders of Option Securities, (A) first, the
shares of Common Stock or other securities for the account of the demanding persons, Pro Rata, that can be sold without exceeding
the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached under the foregoing
clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold without exceeding
the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached under the foregoing
clauses (A) and (B), the shares of Registrable Securities, Pro Rata, as to which registration has been requested pursuant to the
terms hereof, that can be sold without exceeding the Maximum Number of Shares; and (D) fourth, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (A), (B) and (C), the shares of Common Stock or other securities
for the account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such
persons, that can be sold without exceeding the Maximum Number of Shares; and
c)
If the registration is a “demand” registration undertaken at the demand of persons other than either the holders of
Registrable Securities or of Option Securities, (A) first, the shares of Common Stock or other securities for the account of the
demanding persons that can be sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clause (A), the shares of Common Stock or other securities that the
Company desires to sell that can be sold without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum
Number of Shares has not been reached under the foregoing clauses (A) and (B), collectively the shares of Common Stock or other
securities comprised of Registrable Securities and Option Securities, Pro Rata, as to which registration has been requested pursuant
to the terms hereof and of the Unit Purchase Option, as applicable, that can be sold without exceeding the Maximum Number of Shares;
and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A), (B) and
(C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated to register
pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number of Shares
2.2.3.
Withdrawal
.
Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities
in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness
of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making
a demand pursuant to written contractual obligations) may withdraw a registration statement at any time prior to the effectiveness
of the Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders
of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.2.4.
Unlimited
Piggy-Back Registration Rights
. For purposes of clarity, any registration effected pursuant to Section 2.2 hereof shall not
be counted as a registration pursuant to a Demand Registration effected under Section 2.1 hereof.
2.3
Registrations
on Form S-3
. The holders of Registrable Securities may at any time and from time to time, request in writing that the Company
register the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which may
be available at such time (“
Form S-3
”); provided, however, that the Company shall not be obligated to
effect such request through an underwritten offering. Upon receipt of such written request, the Company will promptly give written
notice of the proposed registration to all other holders of Registrable Securities, and each holder of Registrable Securities
who thereafter wishes to include all or a portion of such holder’s Registrable Securities in such registration shall so
notify the Company, in writing, within ten (10) days after the receipt by the holder of the notice from the Company, and, as soon
as practicable thereafter but not more than twelve (12) days after the Company’s initial receipt of such written request
for a registration, effect the registration of all or such portion of such holder’s or holders’ Registrable Securities
as are specified in such request, together with all or such portion of the Registrable Securities or other securities of the Company,
if any, of any other holder or holders joining in such request; provided, however, that the Company shall not be obligated to
effect any such registration pursuant to this Section 2.3 if: (i) Form S-3 is not available for such offering; or (ii) the holders
of the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such
registration, propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of
less than $500,000. Registrations effected pursuant to this Section 2.3 shall not be counted as Demand Registrations effected
pursuant to Section 2.1.
3.
REGISTRATION
PROCEDURES
.
3.1
Filings;
Information
. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section
2, the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with
the intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1.
Filing
Registration Statement
. The Company shall, as expeditiously as possible and in any event within sixty (60) days after receipt
of a request for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement
on any form for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall
be available for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s)
of distribution thereof, and shall use its best efforts to cause such Registration Statement to become and remain effective for
the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer any Demand Registration
for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment of any demand registration
to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders a certificate signed by
the Chairman of the Board of Directors or President of the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement to be effected
at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in the immediately
preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2.
Copies
.
The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to the holders of Registrable Securities included in such registration, and such holders’ legal counsel, copies of
such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case
including all exhibits thereto and documents incorporated by reference therein), the prospectus included in such Registration
Statement (including each preliminary prospectus), and such other documents as the holders of Registrable Securities included
in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable
Securities owned by such holders.
3.1.3.
Amendments
and Supplements
. The Company shall prepare and file with the Commission such amendments, including post-effective amendments,
and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities
and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement (which period shall not exceed the sum of one hundred eighty (180) days
plus any period during which any such disposition is interfered with by any stop order or injunction of the Commission or any
governmental agency or court) or such securities have been withdrawn.
3.1.4.
Notification
.
After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) business days after
such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of
any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration
Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information
or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement
any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable
Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents
proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment
or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall reasonably
object.
3.1.5.
Securities
Laws Compliance
. The Company shall use its best efforts to (i) register or qualify the Registrable Securities covered by the
Registration Statement under such securities or “blue sky” laws of such jurisdictions in the United States as the
holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may
request and (ii) take such action necessary to cause such Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental authorities or securities exchanges, including the Nasdaq Capital Market, as may be
necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be necessary
or advisable to enable the holders of Registrable Securities included in such Registration Statement to consummate the disposition
of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not be required to qualify generally
to do business in any jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject itself
to taxation in any such jurisdiction.
3.1.6.
Agreements
for Disposition
. The Company shall enter into customary agreements (including, if applicable, an underwriting agreement in
customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of such
Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which are made
to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the holders
of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such registration
statement shall be required to make any representations or warranties in the underwriting agreement except as reasonably requested
by the Underwriters and, if applicable, with respect to such holder’s organization, good standing, authority, title to Registrable
Securities, lack of conflict of such sale with such holder’s material agreements and organizational documents, and with
respect to written information relating to such holder that such holder has furnished in writing expressly for inclusion in such
Registration Statement.
3.1.7.
Cooperation
.
The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer
of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters,
attorneys, accountants and potential investors.
3.1.8.
Records
.
The Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement,
any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them
to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all
information requested by any of them in connection with such Registration Statement.
3.1.9.
Opinions
and Comfort Letters
. The Company shall furnish to each holder of Registrable Securities included in any Registration Statement
a signed counterpart, addressed to such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter and
(ii) any comfort letter from the Company’s independent public accountants delivered to any Underwriter. In the event no
legal opinion is delivered to any Underwriter, the Company shall furnish to each holder of Registrable Securities included in
such Registration Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to the Company to
the effect that the Registration Statement containing such prospectus has been declared effective and that no stop order is in
effect.
3.1.10.
Earnings
Statement
. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act, and
make available to its stockholders, as soon as reasonably practicable, an earnings statement covering a period of twelve (12)
months, beginning within three (3) months after the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11.
Listing
.
The Company shall use its best efforts to cause all Registrable Securities included in any registration to be listed on such exchanges
or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated
or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority of the
Registrable Securities included in such registration.
3.1.12.
Transfer Agent
. The Company shall provide a transfer agent or warrant agent, as applicable, and registrar for all such
Registrable Securities no later than the effective date of the registration statement.
3.1.13.
Misstatements
. The Company shall notify the holders at any time when a prospectus relating to such registration statement
is required to be delivered under the Securities Act, of the happening of any event as a result of which the prospectus included
in such registration statement, as then in effect, includes an untrue statement of a material fact or an omission to state a material
fact required to be stated in a registration statement or prospectus, or necessary to make the statements therein in the light
of the circumstances under which they were made not misleading (a “Misstatement”), and then to correct such Misstatement.
3.2
Obligation
to Suspend Distribution
. Upon receipt of any notice from the Company of the happening of any event of the kind described in
Section 3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to Section 2.3 hereof, upon any suspension by
the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors, of the
ability of all “insiders” covered by such program to transact in the Company’s securities because of the existence
of material non-public information, each holder of Registrable Securities included in any registration shall immediately discontinue
disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities until such
holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on the ability of
“insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed by the Company,
each such holder will deliver to the Company all copies, other than permanent file copies then in such holder’s possession,
of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3
Registration
Expenses
. The Company shall bear all costs and expenses incurred in connection with any Demand Registration pursuant to Section
2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on Form S-3 effected pursuant to Section 2.3, and
all expenses incurred in performing or complying with its other obligations under this Agreement, whether or not the Registration
Statement becomes effective, including, without limitation: (i) all registration and filing fees and fees of any securities exchange
on which the Common Stock is then listed; (ii) fees and expenses of compliance with securities or “blue sky” laws
(including fees and disbursements of counsel for the Underwriters in connection with blue sky qualifications of the Registrable
Securities); (iii) printing, messenger, telephone and delivery expenses; (iv) the Company’s internal expenses (including,
without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred in connection
with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory Authority fees;
(vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public accountants retained
by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters requested pursuant
to Section 3.1.9); (viii) the fees and expenses of any special experts retained by the Company in connection with such registration;
and (ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest of the Registrable Securities
included in such registration. The Company shall have no obligation to pay any underwriting discounts or selling commissions attributable
to the Registrable Securities being sold by the holders thereof, which underwriting discounts or selling commissions shall be
borne by such holders. Additionally, in an underwritten offering, all selling stockholders and the Company shall bear the expenses
of the underwriter pro rata in proportion to the respective amount of shares each is selling in such offering.
3.4
Information
.
The holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection
with the Company’s obligation to comply with federal and applicable state securities laws.
3.5
Requirements
for Participation in Underwritten Offerings
. No person may participate in any underwritten offering for equity securities
of the Company pursuant to a registration initiated by the Company hereunder unless such person (i) agrees to sell such person’s
securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all
customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements and other customary documents
as may be reasonably required under the terms of such underwriting arrangements.
3.6
Suspension of Sales; Adverse Disclosure
. Upon receipt of written notice from the Company that a registration statement
or prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until
it has received copies of a supplemented or amended prospectus correcting the Misstatement (it being understood that the Company
hereby covenants to prepare and file such supplement or amendment as soon as practicable after the time of such notice), or until
it is advised in writing by the Company that the use of the prospectus may be resumed. If the filing, initial effectiveness or
continued use of a registration statement in respect of any registration at any time would require the Company to make an Adverse
Disclosure (as defined below) or would require the inclusion in such registration statement of financial statements that are unavailable
to the Company for reasons beyond the Company’s control, the Company may, upon giving prompt written notice of such action
to the holders, delay the filing or initial effectiveness of, or suspend use of, such registration statement for the shortest
period of time, but in no event more than thirty (30) days, determined in good faith by the Company to be necessary for such purpose.
In the event the Company exercises its rights under the preceding sentence, the holders agree to suspend, immediately upon their
receipt of the notice referred to above, their use of the prospectus relating to any registration in connection with any sale
or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period during
which it exercised its rights under this Section 3.6. “Adverse Disclosure” shall mean any public disclosure of material
non-public information, which disclosure, in the good faith judgment of the principal executive officer or principal financial
officer of the Company, after consultation with counsel to the Company, (i) would be required to be made in any registration statement
or prospectus in order for the applicable registration statement or prospectus not to contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements contained therein (in the case of any prospectus and any
preliminary prospectus, in the light of the circumstances under which they were made) not misleading, (ii) would not be required
to be made at such time if the registration statement were not being filed, and (iii) the Company has a bona fide business purpose
for not making such information public.
3.7
Reporting Obligations
. As long as any holder shall own Registrable Securities, the Company, at all times while it shall
be reporting under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the applicable
grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the
Exchange Act and to promptly furnish the holders with true and complete copies of all such filings. The Company further covenants
that it shall take such further action as any holder may reasonably request, all to the extent required from time to time to enable
such holder to sell shares of the Common Stock held by such holder without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144 promulgated under the Securities Act, including providing any legal opinions. Upon the
request of any holder, the Company shall deliver to such holder a written certification of a duly authorized officer as to whether
it has complied with such requirements.
4.
INDEMNIFICATION
AND CONTRIBUTION
.
4.1
Indemnification
by the Company
. The Company agrees to indemnify and hold harmless each Investor and each other holder of Registrable Securities,
and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents, and each person,
if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) (each, an “
Investor Indemnified Party
”), from and against any
expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or based upon any untrue
statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under which the sale of such
Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus
contained in the Registration Statement, or any amendment or supplement to such Registration Statement, or arising out of or based
upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation promulgated thereunder
applicable to the Company and relating to action or inaction required of the Company in connection with any such registration;
and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses reasonably incurred
by such Investor Indemnified Party in connection with investigating and defending any such expense, loss, judgment, claim, damage,
liability or action; provided, however, that the Company will not be liable in any such case to the extent that any such expense,
loss, claim, damage or liability arises out of or is based upon any untrue statement or allegedly untrue statement or omission
or alleged omission made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any
such amendment or supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such
selling holder expressly for use therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their
officers, affiliates, directors, partners, members and agents and each person who controls such Underwriter on substantially the
same basis as that of the indemnification provided above in this Section 4.1.
4.2
Indemnification
by Holders of Registrable Securities
. Each selling holder of Registrable Securities will, in the event that any registration
is being effected under the Securities Act pursuant to this Agreement of any Registrable Securities held by such selling holder,
indemnify and hold harmless the Company, each of its directors and officers and each underwriter (if any), and each other selling
holder and each other person, if any, who controls another selling holder or such underwriter within the meaning of the Securities
Act, against any losses, claims, judgments, damages or liabilities, whether joint or several, insofar as such losses, claims,
judgments, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or allegedly
untrue statement of a material fact contained in any Registration Statement under which the sale of such Registrable Securities
was registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or arise out of or are based upon any omission or the
alleged omission to state a material fact required to be stated therein or necessary to make the statement therein not misleading,
if the statement or omission was made in reliance upon and in conformity with information furnished in writing to the Company
by such selling holder expressly for use therein, and shall reimburse the Company, its directors and officers, and each other
selling holder or controlling person for any legal or other expenses reasonably incurred by any of them in connection with investigation
or defending any such loss, claim, damage, liability or action. Each selling holder’s indemnification obligations hereunder
shall be several and not joint and shall be limited to the amount of any net proceeds actually received by such selling holder.
Each selling holder of Registrable Securities shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates,
directors, partners, members and agents and each person who controls such Underwriter to the same extent as provided in the foregoing
with respect to indemnification of the Company.
4.3
Conduct
of Indemnification Proceedings
. Promptly after receipt by any person of any notice of any loss, claim, damage or liability
or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “
Indemnified
Party
”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder,
notify such other person (the “
Indemnifying Party
”) in writing of the loss, claim, judgment, damage,
liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification
with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate
in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of
the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party
and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but
no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party,
with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written opinion of counsel
of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent
to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment
or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
4.4
Contribution
.
4.4.1. If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect
of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim,
damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and
the Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or
action, as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying
Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such
Indemnifying Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
4.4.2. The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 were determined by pro
rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in
the immediately preceding Section 4.4.1. The amount paid or payable by an Indemnified Party as a result of any loss, claim, damage,
liability or action referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 4.4, no holder of Registrable Securities shall be required
to contribute any amount in excess of the dollar amount of the net proceeds (after payment of any underwriting fees, discounts,
commissions or taxes) actually received by such holder from the sale of Registrable Securities which gave rise to such contribution
obligation. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall
be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
4.5
Survival
.
The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made
by or on behalf of the Indemnified Party or any officer, director or controlling person of such Indemnified Party and shall survive
the transfer of securities.
5.
UNDERWRITING
AND DISTRIBUTION
.
5.1
Rule
144
. The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the Exchange
Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent required
from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Securities Act, as such rules may be amended from time to time, or
any similar rule or regulation hereafter adopted by the Commission.
6.
MISCELLANEOUS
.
6.1
Other
Registration Rights
. The Company represents and warrants that no person, other than a holder of the Registrable Securities,
has any right to require the Company to register any shares of the Company’s capital stock for sale or to include shares
of the Company’s capital stock in any registration filed by the Company for the sale of shares of capital stock for its
own account or for the account of any other person. Further, the Company represents and warrants that this Agreement supersedes
any other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between
any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
6.2
Assignment;
No Third Party Beneficiaries
. This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned
or delegated by the Company in whole or in part. This Agreement and the rights, duties and obligations of the holders of Registrable
Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction with and to the
extent of any transfer of Registrable Securities by any such holder. This Agreement and the provisions hereof shall be binding
upon and shall inure to the benefit of each of the parties and the permitted assigns of the Investor or holder of Registrable
Securities or of any assignee of the Investor or holder of Registrable Securities. This Agreement is not intended to confer any
rights or benefits on any persons that are not party hereto other than as expressly set forth in Article 4 and this Section 6.2.
No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate
the Company unless and until the Company shall have received (i) written notice of such assignment and (ii) the written agreement
of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which
may be accomplished by an addendum or certificate of joinder to this Agreement).
6.3
Notices
.
All notices, demands, requests, consents, approvals or other communications (collectively, “
Notices
”)
required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by
written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram,
telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours,
then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given
on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day
delivery.
To
the Company:
Black
Ridge Acquisition Corp.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
Attn:
Ken DeCubellis
with
a copy to:
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue
New
York NY 10174
Attn:
David Alan Miller, Esq.
To
an Investor, to such Investor c/o:
Black
Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
Attn:
Ken DeCubellis
6.4
Severability
.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
6.5
Counterparts
.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together
shall constitute one and the same instrument.
6.6
Entire
Agreement
. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments delivered
pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof and supersede
all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties, whether
oral or written.
6.7
Modifications
and Amendments
. Upon the written consent of the Company and the holders of at least sixty-six and two-thirds percent (66-2/3%)
of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set forth
in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however,
that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one holder of Registrable Securities,
solely in its capacity as a holder of the shares of Common Stock of the Company, in a manner that is materially different from
the other holders of Registrable Securities (in such capacity) shall require the consent of the holder so affected. No course
of dealing between any holders of Registrable Securities or the Company and any other party hereto or any failure or delay on
the part of a holder of Registrable Securities or the Company in exercising any rights or remedies under this Agreement shall
operate as a waiver of any rights or remedies of any holder of Registrable Securities or the Company. No single or partial exercise
of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights
or remedies hereunder or thereunder by such party.
6.8
Titles
and Headings
. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
6.9
Waivers
and Extensions
. Any party to this Agreement may waive any right, breach or default which such party has the right to waive,
provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party, and
specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or default
waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall
be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No
waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance
of any other obligations or acts.
6.10
Remedies
Cumulative
. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable Securities may proceed to protect and enforce its rights
by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction
against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal
or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative
and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law,
in equity, by statute or otherwise.
6.11
Governing Law
. This Agreement shall be governed by, interpreted under, and construed in
accordance with the internal laws of the State of New York applicable to agreements made and to be performed within the State
of New York, without giving effect to any choice-of-law provisions thereof that would compel the application of the
substantive laws of any other jurisdiction.
6.12
Waiver of Trial by Jury
. Each party 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 Agreement, the transactions contemplated hereby, or the actions of the Investor in
the negotiation, administration, performance or enforcement hereof.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, the parties have caused this Registration Rights Agreement to be executed and delivered by their duly authorized
representatives as of the date first written above.
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BLACK RIDGE ACQUISITION CORP.
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By:
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Name:
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Title:
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INVESTORS:
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BLACK RIDGE OIL & GAS, INC.
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By:
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Ken DeCubellis, CEO
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Exhibit 10.6
_______
__, 2017
Gentlemen:
Black
Ridge Acquisition Corp. (“Corporation”), a blank check company formed for the purpose of acquiring one or more businesses
or entities (a “Business Combination”), intends to register its securities under the Securities Act of 1933, as amended
(“Securities Act”), in connection with its initial public offering (“IPO”).
The
undersigned hereby commits to purchase an aggregate of 350,000 units of the Corporation (“Initial Units”), each Initial
Unit consisting of one share of common stock, par value $0.0001 per share, of the Corporation (“Common Stock”), one
right (“Right”) to receive one-tenth of one share of Common Stock upon the consummation of a Business Combination
and one warrant (“Warrant”), each whole Warrant to purchase one share of Common Stock, at $10.00 per Private Unit,
for an aggregate purchase price of $3,500,000 (the “Initial Purchase Price”). Additionally, if the underwriters in
the IPO exercise their over-allotment option in full or part, the undersigned further commits to purchase up to an additional
37,500 Units (“Additional Units” and together with the Initial Units, the “Private Units”) at $10.00 per
Additional Unit for an aggregate purchase price of up to $375,000 (the “Over-Allotment Purchase Price” and together
with the Initial Purchase Price, the “Purchase Price”). At least 24 hours prior to the effective date (“Effective
Date”) of the Corporation’s registration statement filed in connection with the IPO (“Registration Statement”),
the undersigned will cause the Purchase Price to be delivered to Graubard Miller, counsel for the Corporation (“Counsel”),
by wire transfer as set forth in the instructions attached as Exhibit A to hold in escrow in a non-interest bearing account until
the Corporation consummates the IPO.
The
consummation of the purchase and issuance of the Initial Units and Additional Units (if any) shall occur simultaneously with the
consummation of the IPO and over-allotment option, respectively. Simultaneously with the consummation of the IPO, Counsel shall
deposit the Initial Purchase Price, without interest or deduction, into the trust fund (“Trust Fund”) established
by the Corporation for the benefit of the Corporation’s public stockholders as described in the Registration Statement.
Simultaneously with the consummation of all or any part of the over-allotment option, Counsel shall deposit the pro-rata portion
of the Over-Allotment Purchase Price, based upon the amount of the over-allotment option that has been exercised, without interest
or deduction, into the Trust Fund. Upon expiration of the over-allotment option, Counsel shall return any unused portion of the
Over-Allotment Purchase Price to the undersigned. If the Corporation does not complete the IPO within fourteen (14) days from
the Effective Date, the Purchase Price (without interest or deduction) will be returned to the undersigned.
Each
of the Corporation and the undersigned acknowledges and agrees that Counsel is serving hereunder solely as a convenience to the
parties to facilitate the purchase of the Private Units and Counsel’s sole obligation under this letter agreement is to
act with respect to holding and disbursing the Purchase Price for the Private Units as described above. Counsel shall not be liable
to the Corporation or the undersigned or any other person or entity in respect of any act or failure to act hereunder or otherwise
in connection with performing its services hereunder unless Counsel has acted in a manner constituting gross negligence or willful
misconduct. The undersigned shall indemnify Counsel against any claim made against it (including reasonable attorney’s fees)
by reason of it acting or failing to act in connection with this letter agreement except as a result of its gross negligence or
willful misconduct. Counsel may rely and shall be protected in acting or refraining from acting upon any written notice, instruction
or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party
or parties.
The
Private Units will be identical to the units to be sold by the Corporation in the IPO, except that:
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the
undersigned agrees to vote the shares of Common Stock included in the Private Units in
favor of any proposed Business Combination;
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the
undersigned agrees not to seek conversion rights, or seek to sell such shares in any
tender offer, with respect to any shares of Common Stock included in the Private Units;
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the
Private Units and underlying securities will not be transferable by the undersigned until
after the completion of a Business Combination (except (i) to the undersigned’s
or the Corporation’s officers, directors and employees, to a holder’s affiliates,
or to its members upon its liquidation, (ii) by private sales made in connection with
the consummation of a Business Combination at prices no greater than the price at which
the Private Units were originally purchased or (iii) to the Corporation for cancellation
in connection with the consummation of a Business Combination, in each case (except for
clause iii) where the transferee agrees to the terms of the transfer restrictions);
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the
Private Units will be subject to customary registration rights, which shall be described
in the Registration Statement;
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the
undersigned will not participate in any liquidation distribution with respect to the
Private Units or the underlying securities (but will participate in liquidation distributions
with respect to any units or shares of Common Stock purchased by the undersigned in the
IPO or in the open market after the IPO) if the Corporation fails to consummate a Business
Combination; and
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the
Private Units and the underlying securities will include any additional terms or restrictions
as is customary in other similarly structured blank check company offerings or as may
be reasonably required by the underwriters in the IPO in order to consummate the IPO,
each of which will be set forth in the Registration Statement.
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The
undersigned acknowledges and agrees that it will execute agreements in form and substance typical for transactions of this nature
necessary to effectuate the foregoing agreements and obligations prior to the consummation of the IPO as are reasonably acceptable
to the undersigned, including but not limited to (i) an insider letter, (ii) an escrow agreement and (iii) a registration rights
agreement.
The
undersigned further acknowledges and agrees that the Private Units, and the shares of Common Stock, Rights and Warrants underlying
the Private Units, will bear restrictive legends in substantially the following form and appropriate “stop transfer”
instructions:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR
OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR SUCH LAWS OR AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL FOR THIS CORPORATION, IS AVAILABLE.”
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO LOCKUP PURSUANT TO AN INSIDER LETTER BETWEEN, AMONG OTHERS, BLACK RIDGE
ACQUISITION CORP. AND BLACK RIDGE OIL & GAS, INC. AND MAY ONLY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED
DURING THE TERM OF THE LOCKUP PURSUANT TO THE TERMS SET FORTH IN THE INSIDER LETTER.”
The
undersigned hereby represents and warrants that, as applicable:
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(a)
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it has
been advised that the Private Units and the underlying securities have not been registered
under the Securities Act;
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(b)
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it is
acquiring the Private Units and the underlying securities for its account for investment
purposes only;
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(c)
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it has
no present intention of selling or otherwise disposing of the Private Units or the underlying
securities;
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(d)
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it is
an “accredited investor” as defined by Rule 501 of Regulation D promulgated
under the Securities Act of 1933, as amended;
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(e)
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it has
had both the opportunity to ask questions and receive answers from the officers and directors
of the Corporation and all persons acting on its behalf concerning the terms and conditions
of the offer made hereunder;
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(f)
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it is
familiar with the proposed business, management, financial condition and affairs of the
Corporation;
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(g)
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it has
full power, authority and legal capacity to execute and deliver this letter and any documents
contemplated herein or needed to consummate the transactions contemplated in this letter;
and
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(h)
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this
letter constitutes a legal, valid and binding obligation, and is enforceable against
it.
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The
undersigned understands and acknowledges an exemption from the registration requirements of the Securities Act requires there
be no general solicitation of purchasers of the Private Units. In this regard, if the IPO were deemed to be a general solicitation
with respect to the Private Units, the offer and sale of such Private Units may not be exempt from registration and, if not, the
undersigned may have a right to rescind its purchase of the Units. In order to facilitate the completion of the IPO and in order
to protect the Corporation, its stockholders and the amounts in the Trust Fund from claims that may adversely affect the Corporation
or the interests of its stockholders, the undersigned hereby agrees to waive, to the maximum extent permitted by applicable law,
any claims, right to sue or rights in law or arbitration, as the case may be, to seek rescission of its purchase of the Private
Units. The undersigned acknowledges and agrees this waiver is being made in order to induce the Corporation to sell the Private
Units to the undersigned. The undersigned agrees the foregoing waiver of rescission rights shall apply to any and all known or
unknown actions, causes of action, suits, claims or proceedings (collectively, “Claims”) and related losses, costs,
penalties, fees, liabilities and damages, whether compensatory, consequential or exemplary, and expenses in connection therewith,
including reasonable attorneys’ and expert witness fees and disbursements and all other expenses reasonably incurred in
investigating, preparing or defending against any Claims, whether pending or threatened, in connection with any present or future
actual or asserted right to rescind the purchase of the Private Units hereunder or relating to the purchase of the Private Units
and the transactions contemplated hereby. The undersigned agrees (a) not to seek recourse against the Trust Fund for any reason
whatsoever in connection with its purchase of the Purchase Units or any Claim that may arise now or in the future and (b) that
to the extent any waiver of rights under this paragraph is ineffective as a matter of law, the undersigned has offered such waiver
for the benefit of the Corporation as an equitable right that shall survive any statutory disqualification or bar that applies
to a legal right. The undersigned acknowledges the receipt and sufficiency of consideration received from the Corporation hereunder
in this regard. The undersigned further acknowledges and agrees that the stockholders of the Corporation are and shall be third-party
beneficiaries of this paragraph.
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Very truly yours,
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BLACK RIDGE OIL & GAS, INC.
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By
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Name:
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Title:
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Accepted and Agreed:
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BLACK RIDGE ACQUISITION CORP.
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By:
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Name:
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Title:
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GRAUBARD MILLER
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(solely with respect to its obligations to hold
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and disburse monies for the Private Units)
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By:
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Name:
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Title:
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Exhibit
A
Exhibit 10.7
BLACK
RIDGE ACQUISITION CORP.
c/o
Black Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
_______________,
2017
Black
Ridge Oil & Gas, Inc.
110
North 5
th
Street, Suite 410
Minneapolis,
Minnesota 55403
Ladies
and Gentlemen:
This
letter will confirm our agreement that, commencing on the effective date (the “
Effective Date
”) of the
registration statement (the “
Registration Statement
”) for the initial public offering (the “
IPO
”)
of the securities of Black Ridge Acquisition Corp. (the “
Company
”) and continuing until the earlier
of (i) the consummation by the Company of an initial business combination or (ii) the Company’s liquidation (in each case
as described in the Registration Statement) (such earlier date hereinafter referred to as the “
Termination Date
”),
Black Ridge Oil & Gas, Inc. shall make available to the Company certain office space and administrative and support services
as may be required by the Company from time to time, situated at 110 North 5
th
Street, Suite 410, Minneapolis, Minnesota
55403 (or any successor location). In exchange therefor, the Company shall pay Black Ridge Oil & Gas, Inc. the sum of $10,000
per month on the Effective Date and continuing monthly thereafter until the Termination Date. Black Ridge Oil & Gas, Inc.
hereby agrees that it does not have any right, title, interest or claim of any kind in or to any monies that may be set aside
in a trust account (the “
Trust Account
”) that may be established upon the consummation of the IPO as
a result of this letter agreement (the “
Claim
”) and hereby waives any Claim it may have in the future
as a result of, or arising out of, this letter agreement and will not seek recourse against the Trust Account for any reason whatsoever.
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Very truly yours,
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BLACK RIDGE ACQUISITION CORP.
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By:
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Name:
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Title:
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AGREED TO AND ACCEPTED BY:
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BLACK RIDGE OIL & GAS, INC.
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By:
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Name:
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Title:
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Exhibit 14
CODE
OF ETHICS
1.
Introduction
The
Board of Directors of Black Ridge Acquisition Corp. has adopted this code of ethics (the “Code”), which is applicable
to all directors, officers and employees, to:
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promote
honest and ethical conduct, including the ethical handling of actual or apparent conflicts
of interest between personal and professional relationships;
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promote
the full, fair, accurate, timely and understandable disclosure in reports and documents
that the Company files with, or submits to, the Securities and Exchange Commission (the
“SEC”), as well as in other public communications made by or on behalf of
the Company;
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promote
compliance with applicable governmental laws, rules and regulations;
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require
prompt internal reporting of breaches of, and accountability for adherence to, this Code.
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This
Code may be amended only by resolution of the Company’s Board of Directors. In this Code, references to the “Company”
mean Black Ridge Acquisition Corp. (the “Parent”) and, in appropriate context, its subsidiaries.
2. Honest,
Ethical and Fair Conduct
Each
person owes a duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair and candid.
Deceit, dishonesty and subordinating one’s principles are inconsistent with integrity. Service to the Company never should
be subordinated to personal gain and advantage.
Each
person must:
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act
with integrity, including being honest and candid while still maintaining the confidentiality
of the Company’s information where required or in the Company’s interests.
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observe
all applicable governmental laws, rules and regulations.
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comply
with the requirements of applicable accounting and auditing standards, as well as Company
policies, in order to maintain a high standard of accuracy and completeness in the Company’s
financial records and other business-related information and data.
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adhere
to a high standard of business ethics and not seek a competitive advantage through unlawful
or unethical business practices.
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deal
fairly with the Company’s customers, suppliers, competitors and employees.
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refrain
from taking advantage of anyone through manipulation, concealment, abuse of privileged
information, misrepresentation of material facts or any other unfair-dealing practice.
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protect
the assets of the Company and ensure their proper use.
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refrain
from taking for themselves personally opportunities that are discovered through the use
of corporate assets or by using corporate assets, information or position for general
personal gain outside the scope of employment with the Company.
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disclose
conflicts of interest and only enter into “related-party transactions” under
guidelines or resolutions approved by the Board of Directors (or the appropriate committee
of the Board). For purposes of this Code, “related-party transactions” are
defined as transactions in which (1) the aggregate amount involved will or may be expected
to exceed $120,000 in any calendar year, (2) the Company or any of its subsidiaries is
a participant, and (3) any (a) executive officer, director or nominee for election as
a director, (b) greater than 5% beneficial owner of the Company’s shares of common
stock, or (c) immediate family member, of the persons referred to in clauses (a) and
(b), has or will have a direct or indirect material interest (other than solely as a
result of being a director or a less than 10% beneficial owner of another entity). A
conflict of interest situation can arise when a person takes actions or has interests
that may make it difficult to perform his or her work objectively and effectively. Conflicts
of interest may also arise if a person, or a member of his or her family, receives improper
personal benefits as a result of his or her position. Anything that would be a conflict
for a person subject to this Code also will be a conflict if it is related to a member
of his or her family or a close relative. Examples of conflict of interest situations
include, but are not limited to, the following:
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any
significant ownership interest in any supplier or customer;
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any
consulting or employment relationship with any customer, supplier or competitor;
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any
outside business activity that detracts from an individual’s ability to devote
appropriate time and attention to his or her responsibilities with the Company;
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the
receipt of any money, non-nominal gifts or excessive entertainment from any company with
which the Company has current or prospective business dealings;
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being
in the position of supervising, reviewing or having any influence on the job evaluation,
pay or benefit of any close relative;
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selling
anything to the Company or buying anything from the Company, except on the same terms
and conditions as comparable officers or directors are permitted to so purchase or sell;
and
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any
other circumstance, event, relationship or situation in which the personal interest of
a person subject to this Code interferes – or even appears to interfere –
with the interests of the Company as a whole.
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3. Disclosure
The
Company strives to ensure that the contents of and the disclosures in the reports and documents that the Company files with the
SEC and other public communications shall be full, fair, accurate, timely and understandable in accordance with applicable disclosure
standards, including standards of materiality, where appropriate. Each person must:
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not
knowingly misrepresent, or cause others to misrepresent, facts about the Company to others,
whether within or outside the Company, including to the Company’s independent auditors,
governmental regulators, self-regulating organizations and other governmental officials,
as appropriate; and
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in
relation to his or her area of responsibility, properly review and critically analyze
proposed disclosure for accuracy and completeness.
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In
addition to the foregoing, the Chief Executive Officer and Chief Financial Officer of the Company and each subsidiary of the Company
(or persons performing similar functions), and each other person that typically is involved in the financial reporting of the
Company must familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business
and financial operations of the Company.
Each
person must promptly bring to the attention of the Chairman of the Audit Committee of the Parent’s Board of Directors (or
the Chairman of the Parent’s Board of Directors if no Audit Committee exists) any information he or she may have concerning
(a) significant deficiencies in the design or operation of internal and/or disclosure controls which could adversely affect the
Company’s ability to record, process, summarize and report financial data or (b) any fraud, whether or not material, that
involves management or other employees who have a significant role in the Company’s financial reporting, disclosures or
internal controls.
4. Compliance
It
is the Company’s obligation and policy to comply with all applicable governmental laws, rules and regulations. It is the
personal responsibility of each person to adhere to the standards and restrictions imposed by those laws, rules and regulations,
including those relating to accounting and auditing matters.
5. Reporting
and Accountability
The
Board of Directors or Audit Committee, if one exists, of the Company is responsible for applying this Code to specific situations
in which questions are presented to it and has the authority to interpret this Code in any particular situation. Any person who
becomes aware of any existing or potential breach of this Code is required to notify the Chairman of the Board of Directors or
Audit Committee promptly. Failure to do so is itself a breach of this Code.
Specifically,
each person must:
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notify
the Chairman promptly of any existing or potential violation of this Code; and
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not
retaliate against any other person for reports of potential violations that are made
in good faith.
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The
Company will follow the following procedures in investigating and enforcing this Code and in reporting on the Code:
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The
Board of Directors or Audit Committee, if one exists, will take all appropriate action
to investigate any breaches reported to it.
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If
the Audit Committee, if one exists, determines (by majority decision) that a breach has
occurred, it will inform the Board of Directors.
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Upon
being notified that a breach has occurred, the Board (by majority decision) will take
or authorize such disciplinary or preventive action as it deems appropriate, after consultation
with the Audit Committee (if one exists) and/or General Counsel, up to and including
dismissal or, in the event of criminal or other serious violations of law, notification
of the SEC or other appropriate law enforcement authorities.
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No
person following the above procedure shall, as a result of following such procedure, be subject by the Company or any officer
or employee thereof to discharge, demotion suspension, threat, harassment or, in any manner, discrimination against such person
in terms and conditions of employment.
6. Waivers
and Amendments
Any
waiver (as defined below) or an implicit waiver (as defined below) from a provision of this Code for the
principal
executive officer, principal financial officer, principal accounting officer or controller, and persons performing similar functions
or any amendment (as defined below) to this Code is required to be disclosed in the Company’s Annual Report on Form
10-K or in a Current Report on Form 8-K filed with the SEC.
A
“waiver” means the approval by the Company’s Board of Directors of a material departure from a provision of
the Code. An “implicit waiver” means the Company’s failure to take action within a reasonable period of time
regarding a material departure from a provision of the Code that has been made known to an executive officer of the Company. An
“amendment” means any amendment to this Code other than minor technical, administrative or other non-substantive amendments
hereto.
All
persons should note that it is
not
the Company’s intention to grant or to permit waivers from the requirements of
this Code. The Company expects full compliance with this Code.
7. Other
Policies and Procedures
Any
other policy or procedure set out by the Company in writing or made generally known to employees, officers or directors of the
Company prior to the date hereof or hereafter are separate requirements and remain in full force and effect.
8. Inquiries
All
inquiries and questions in relation to this Code or its applicability to particular people or situations should be addressed to
the Company’s Secretary.