UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934
Date of Report (Date of earliest event reported): November 22, 2017
(November 20, 2017)
BIG ROCK PARTNERS ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
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Delaware
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001-38302
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82-2844431
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(State or other jurisdiction of incorporation or
organization)
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(Commission File Number)
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(I.R.S. Employer Identification Number)
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2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida
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33483
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(Address of principal executive offices)
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(Zip Code)
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Registrant’s telephone number, including area
code: (310) 734-2300
Not Applicable
(Former name or former address, if changed since last
report)
Check the appropriate box below if the Form 8-K filing is
intended to simultaneously satisfy the filing obligation to the
registrant under any of the following provisions:
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☐
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Written communications pursuant to Rule 425 under the
Securities Act (17 CFR 230.425)
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Soliciting material pursuant to Rule 14a-12 under the Exchange
Act (17 CFR 240.14a-12)
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Pre-commencement communications pursuant to Rule 14d-2(b)
under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c)
under the Exchange Act (17 CFR 240.13e-4(c))
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging growth company
☒
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 13(a) of the Exchange
Act. ☐
Item 1.01.
Entry into a Material Definitive Agreement.
The information set forth in Items 3.02, 5.03 and 8.01 below are
hereby incorporated by reference herein.
Item 3.02
.
Unregistered Sales of Equity Securities.
Simultaneously with the consummation of the initial public offering
(“IPO”) and the sale of the Public Units (defined
below), Big Rock Partners Acquisition Corp, a Delaware corporation
(the “Company”), consummated the private placement
(“Private Placement”) of 250,000 units
(“Placement Units”) at a price of $10.00 per Placement
Unit, generating total proceeds of $2,500,000. The Placement
Units, all of which were purchased by Big Rock Partners Sponsor,
LLC (the “Sponsor”) are substantially similar to the
Public Units, except that the warrants contained in the Placement
Units: (i) will not be redeemable by the Company and (ii) may be
exercised for cash or on a cashless basis, so long as they are held
by the Sponsor or any of its permitted transferees. The material
terms of the Placement Units are set forth in the Registration
Statement (as defined below) and incorporated by reference
herein.
The securities issued in the Private Placement were issued in
reliance on the exemption from registration provided by Section
4(a)(2) under the Securities Act of 1933, as amended, or Regulation
D thereunder, as a sale not involving any public
offering.
Item 3.03.
Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 below is hereby incorporated
by reference herein.
Item
5.01.
Changes in Control of Registrant.
In connection with the closing of the IPO, a change of control of
the Company occurred. Before the IPO, the Sponsor held 100% of the
Company’s common stock, $0.001 par value per share
(“Common Stock”), and following the IPO and Private
Placement, the Sponsor owns approximately 22.2% of the
Company’s Common Stock. The information set forth in Item
8.01 below is hereby incorporated by reference herein.
Item 5.02.
Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of
Certain Officers.
Effective upon the trading of the Company’s units on the
Nasdaq Capital Market, on November 20, 2017, the following
individuals were appointed to the board of directors of the
Company: Richard J. Birdoff, Michael Fong, Stuart F. Koenig, Albert
G. Rex and Troy T. Taylor. Richard Ackerman and Lori Wittman
continue to serve as directors of the Company. Additional
information regarding, among other things, each individual’s
background and board committee memberships, as well as director
compensatory arrangements is contained in the Registration
Statement (as defined below) and incorporated by reference
herein.
Item
5.03.
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
On November 20, 2017, in connection with its IPO, the Company filed
its Amended and Restated Certificate of Incorporation with the
Secretary of State of the State of Delaware and adopted Amended and
Restated Bylaws, both effective the same day. The terms of the
Amended and Restated Certificate of Incorporation and Amended and
Restated Bylaws are set forth in the prospectus that forms a part
of the Company’s registration statements on Form S-1 (File
Nos. 333-220947 and 333-221659) (the “Registration
Statements”) for its IPO and incorporated by reference
herein. A copy of the Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws are attached to this
report as Exhibit 3.1 and Exhibit 3.2, respectively, and
incorporated by reference herein.
On November 20, 2017, the Registration Statements were declared
effective by the Securities and Exchange Commission. In
connection therewith and the closing of the IPO, the Company
entered into the agreements listed below. The material terms of the
agreements are set forth in the Registration Statements and
incorporated by reference herein.
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An Underwriting Agreement, dated November 20, 2017, between the
Company and EarlyBirdCapital, Inc. as representative of the several
underwriters;
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Letter Agreement, dated November 20, 2017, between the Company and
EarlyBirdCapital, Inc.;
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A Right Agreement, dated November 20, 2017, between the Company and
Continental Stock Transfer & Trust Company;
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A Warrant Agreement, dated November 20, 2017, between the Company
and Continental Stock Transfer & Trust Company;
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Unit Purchase Options, dated November 20, 2017, issued to
EarlyBirdCapital, Inc. and its designees;
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An Investment Management Trust Agreement, dated November 20, 2017,
between the Company and Continental Stock Transfer & Trust
Company;
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A Stock Escrow Agreement, dated November 20, 2017, between the
Company, Big Rock Partners Sponsor, LLC and Continental Stock
Transfer & Trust Company;
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A Registration Rights Agreement, dated November 20, 2017, between
the Company and Big Rock Partners Sponsor, LLC;
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Letter Agreement, dated November 20, 2017, by and between the
Company and Big Rock Partners Sponsor, LLC;
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Letter Agreement
,
dated November 20, 2017,
by and between the Company and A/Z
Property Partners, LLC;
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Letter Agreements
,
dated November 20, 2017,
by and between the Company and its
officers and directors;
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An Administrative Services Agreement, dated November 20, 2017,
between the Company and Big Rock Partners Sponsor,
LLC;
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Indemnification Agreements, dated November 20, 2017, with the
officers and directors of the Company; and
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Securities Subscription Agreement, dated November 20, 2017, between
the Company and Big Rock Partners Sponsor, LLC.
On November 22, 2017, the Company consummated its IPO of 6,000,000
units (“Public Units”). Each Public Unit consists of
one share of Common Stock, one right (“Public Right”)
entitling the holder thereof to receive one-tenth (1/10) of one
share of Common Stock upon the consummation of an initial business
combination, and one-half of one warrant (“Public
Warrant”), each whole warrant exercisable for one share of
Common Stock at an exercise price of $11.50 per share. The
Public Units were sold at an offering price of $10.00 per Public
Unit, generating gross proceeds of $60,000,000. The Company has
granted EarlyBirdCapital, Inc., the representative of the several
underwriters in the IPO, a 45-day option to purchase up to 900,000
additional Public Units to cover over-allotments, if
any.
A total of $60,000,000 of the net proceeds from the IPO and the
Private Placement were placed in a trust account established for
the benefit of the Company’s public stockholders at JP Morgan
Chase Bank, N.A., with Continental Stock Transfer & Trust
Company acting as trustee. Except for the withdrawal of interest to
pay taxes, none of the funds held in the trust account will be
released until the earlier of the completion of the Company’s
initial business combination or the redemption of 100% of the
Common Stock issued by the Company in the IPO if the Company is
unable to consummate an initial business combination within 12
months from the closing of the IPO (or up to 18 months if the
Company extends the period of time to consummate a business
combination by the full amount of time).
In
connection with the consummation of the IPO, and pursuant to the
terms of the promissory notes in favor of Big Rock Partners
Sponsor, LLC and Richard Ackerman, the Company repaid an aggregate
of approximately $170,000 due on the promissory
notes.
Copies of the press releases issued by the Company announcing the
pricing of the IPO and the consummation of the IPO are attached as
Exhibit 99.1 and Exhibit 99.2, respectively, and incorporated
herein by reference.
Item 9.01. Financial Statements and Exhibits.
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Underwriting Agreement, dated November 20, 2017, between the
Company and EarlyBirdCapital, Inc.
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Letter Agreement, dated November 20, 2017, between the Company and
EarlyBirdCapital, Inc.
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Amended and Restated Certificate of Incorporation.
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Amended and Restated Bylaws.
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Right Agreement, dated November 20, 2017, between the Company and
Continental Stock Transfer & Trust Company.
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Warrant Agreement, dated November 20, 2017, between Continental
Stock Transfer & Trust Company and the Company.
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Form of Unit Purchase Option, dated November 20, 2017, with
EarlyBirdCapital, Inc. and its designees.
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Investment Management Trust Account Agreement, dated November 20,
2017, between Continental Stock Transfer & Trust Company and
the Company.
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Stock Escrow Agreement, dated November 20, 2017, between the
Company, Big Rock Partners Sponsor, LLC and Continental Stock
Transfer & Trust Company.
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Registration Rights Agreement among the Company and Big Rock
Partners Sponsor, LLC.
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Letter Agreement, dated November 20, 2017, by and between the
Company and Big Rock Partners Sponsor, LLC.
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Letter Agreement
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dated November 20, 2017,
by and between the Company and A/Z
Property Partners, LLC.
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Form of Letter
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dated November 20, 2017,
Agreement by and between the
Company and its officers and directors.
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Administrative Services Agreement, dated November 20, 2017, between
the Company and Big Rock Partners Sponsor, LLC.
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Form of
Indemnification Agreement
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dated November 20, 2017,
with the Company’s officers
and directors.
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Securities
Subscription Agreement, dated November 20, 2017, between the
Company and Big Rock Partners Sponsor, LLC..
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Press Release
,
dated November 20, 2017,
Announcing Pricing of
IPO.
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Press Release
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dated November 22, 2017,
Announcing Closing of
IPO.
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Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned hereunto duly
authorized.
Dated: November 22, 2017
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BIG ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/
Richard
Ackerman
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Name: Richard Ackerman
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Title:
Chairman,
President and
Chief
Executive Officer
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Exhibit
1.1
6,000,000
Units
BIG ROCK PARTNERS ACQUISITION CORP.
UNDERWRITING AGREEMENT
New
York, New York
November
20, 2017
EarlyBirdCapital, Inc.
366 Madison Avenue
New York, New York 10017
As Representative of the Underwriters
named on
Schedule A
hereto
Ladies
and Gentlemen:
Big
Rock Partners Acquisition Corp., a Delaware corporation (the
“
Company
”),
hereby confirms its agreement with
EarlyBirdCapital, Inc.
(the
“
Representative
”) and with the
other underwriters named on
Schedule A
hereto (if any), for which the Representative is acting as
representative (the Representative and such other underwriters
being collectively referred to herein as the “
Underwriters
” or, each underwriter
individually, an “
Underwriter
”) as
follows:
1.
Purchase
and Sale of Securities
.
Purchase of Units
. On the
basis of the representations and warranties herein contained, but
subject to the terms and conditions herein set forth, the Company
agrees to issue and sell to the several Underwriters, severally and
not jointly, an aggregate of 6,000,000 units of the
Company (the “
Firm
Units
”) at a purchase
price (net of discounts and commissions) of $9.75 per Firm Unit.
Each Unit consists of one share of common stock of the Company, par
value
$0.001 per share
(the “
Common
Stock
”), one right (the “
Right(s)
”) to receive one-tenth of
one share of Common Stock on consummation of a Business Combination
(defined below) and one-half of one warrant (the
“
Warrant(s)
”)
each
whole Warrant to purchase one share of Common Stock for $11.50 per
share. The Common Stock, Rights and Warrants included in the Firm
Units will not be separately tradable until 90 days after the date
hereof unless the Representative informs the Company of its
decision to allow earlier separate trading, subject to the Company
filing a Current Report on Form 8-K with the Commission (defined
below) containing an audited balance sheet reflecting the
Company’s receipt of the gross proceeds of the Offering
(defined below) and the sale of the Private Units (defined below)
and issuing a press release announcing when such separate trading
will begin. The Underwriters, severally and not jointly, agree to
purchase from the Company the number of Firm Units set forth
opposite their respective names on
Schedule A
. The Firm Units are to
be offered initially to the public (the “
Offering
”) at the offering price
of $10.00 per Firm Unit.
1.1.1.
Payment
and Delivery
. Delivery and payment for the Firm Units
shall be made at 10:00 A.M., New York time, on the second
(2
nd
)
Business Day following the
commencement of trading of the Firm Units,
or at such earlier time as shall be agreed upon by the
Representative and the Company at the offices of the Representative
or at such other place as shall be agreed upon by the
Representative and the Company. The closing of the Offering
is referred to herein as the “
Closing
” and the hour and date of
delivery and payment for the Firm Units is referred to herein as
the “
Closing
Date
.” Payment for the Firm Units shall be made
on the Closing Date through the facilities of Depository Trust
Company (“
DTC
”)
by wire transfer in Federal (same day) funds. The Company shall
receive an aggregate of $61,000,000 net proceeds from
the sale of the Firm Units and the Private Units,
of which
$60,000,000
shall be deposited on the Closing
Date into the trust account (the “
Trust Account
”) established by the
Company for the benefit of the Public Stockholders, as described in
the Registration Statement
(as defined
in Section 2.1.1 below)
and pursuant to the terms of an
Investment Management Trust Agreement (the “
Trust Agreement
”) between the
Company and Continental Stock Transfer & Trust
Company (“
CST&T
”) substantially in the
form annexed as an exhibit to the Registration Statement. The
remaining proceeds (less actual expense payments or other fees
payable pursuant to this Agreement) shall be paid to the order of
the Company upon delivery of certificates (in form and substance
reasonably satisfactory to the Representative) representing the
Firm Units (or through the facilities of the DTC for the account of
the Representative). The Firm Units shall be registered in
such name or names and in such authorized denominations as the
Representative may request in writing at least two (2) Business
Days (defined below) prior to the Closing Date. The Company
will permit the Representative to examine and package the Firm
Units for delivery at least one (1) full Business Day prior to the
Closing Date. The Company shall not be obligated to sell or
deliver the Firm Units except upon tender of payment by the
Representative for all the Firm Units. As used herein, the term
“
Business Day
”
shall mean any day other than a Saturday, Sunday or any day on
which national banks in New York, New York are not open for
business, and the term “
Public Stockholders
” means the
holders of Common Stock sold in the Offering or acquired in the
aftermarket, including any of the Respondents (as defined in
Section 2.14 below) to the extent they acquire such Common Stock in
the Offering or in the aftermarket (and solely with respect to such
shares).
EarlyBirdCapital,
Inc.
November
20, 2017
Page
2
of
36
1.2.
Over-Allotment
Option
1.2.1. The
Representative shall have the option (the “
Over-Allotment Option”
) to
purchase all or less than all of an additional
900,000
Units (the “
Option Units
”) solely for the
purposes of covering any over-allotments in connection with the
distribution and sale of the Firm Units. Such Option Units shall,
at the Representative’s election, be purchased for each
account of the several Underwriters in the same proportion as the
number of Firm Units set forth opposite such Underwriter’s
name on Schedule A hereto (subject to adjustment by the
Representative to eliminate fractions). Such Option Units shall be
identical in all respects to the Firm Units. The Firm Units and the
Option Units are hereinafter collectively referred to as the
“
Public
Securities
.” No Option Units shall be sold or
delivered unless the Firm Units previously have been, or
simultaneously are, sold and delivered. The right to purchase the
Option Units, or any portion thereof, may be exercised from time to
time and to the extent not previously exercised may be surrendered
and terminated at any time upon notice by the Representative to the
Company. The purchase price to be paid for each Option Unit (net of
discounts and commissions) will be $9.75 per Option
Unit.
1.2.2.
Exercise
of Option
. The Over-Allotment Option granted pursuant to
Section 1.2.1 hereof may be exercised by the Representative as to
all (at any time) or any part (from time to time) of the Option
Units within forty-five (45) days after the Effective Date. The
Representative will not be under any obligation to purchase any
Option Units prior to the exercise of the Over-Allotment Option.
The Over-allotment Option granted hereby may be exercised by the
giving of oral notice to the Company by the Representative, which
must be confirmed in accordance with Section 10.1 herein setting
forth the number of Option Units to be purchased and the date and
time for delivery of and payment for the Option Units, if other
than the Closing Date (the “
Option Closing Date
”), which shall
not be earlier than the Closing Date or be later than ten (10) full
Business Days after the date of the notice or such other time as
shall be agreed upon by the Company and the Representative, at the
offices of the Representative or at such other place as shall be
agreed upon by the Company and the Representative. Upon exercise of
the Over-Allotment Option, the Company will become obligated to
convey to the Representative, and, subject to the terms and
conditions set forth herein, the Representative will become
obligated to purchase, the number of Option Units specified in such
notice.
1.2.3.
Payment
and Delivery
. Payment for the Option Units shall be made on
the Option Closing Date at the Representative’s election by
wire transfer in Federal (same day) funds or by certified or bank
cashier’s check(s) in New York Clearing House funds, payable
as follows: $9.75 per Option Unit shall be deposited in the Trust
Fund pursuant to the Trust Agreement upon delivery of certificates
(in form and substance satisfactory to the Representative)
representing the Option Units (or through the facilities of DTC)
for the account of the Representative). The certificates
representing the Option Units to be delivered will be in such
denominations and registered in such names as the Representative
requests not less than two full business days prior to the Closing
Date or the Option Closing Date, as the case may be, and will be
made available to the Representative for inspection, checking and
packaging at the aforesaid office of the Company’s transfer
agent or correspondent not less than one full business day prior to
such Closing Date.
EarlyBirdCapital,
Inc.
November
20, 2017
Page 3
of 36
1.3.
Representative’s
Securities
.
1.3.1.
The
Company hereby agrees to issue and sell to the Representative
(and/or its designees) on the Closing Date, for an aggregate
purchase price of $100, an option (“
Representative’s Purchase
Option
”) to purchase up
to an aggregate of 600,000 Units (the
“
Representative’s
Units
”). Each of the
Representative's Units is identical to the Firm Units. The
Representative’s Purchase Option shall be exercisable for
cash or on a cashless basis, in whole or in part, commencing on the
later of the consummation of a Business Combination or one year
from the Effective Date and expiring on the five-year anniversary
of the Effective Date at an initial exercise price per
Representative’s Unit of $
10
.00, which is equal to
one
hundred
percent (
100
%)
of the initial public offering price per Unit. On the Closing Date,
the Company shall deliver to the Representative, upon payment
therefor, certificates for the Representative’s Purchase
Option in the name or names and in such denominations as the
Representative may request.
1.3.2.
The
Company hereby agrees to issue to the Representative (and/or its
designees), for no additional consideration, 120,000
shares of Common Stock (or up to 138,000 shares if the
underwriters’ over-allotment option is exercised in full)
(the “
Representative’s
Shares
”). The
Representative’s Shares shall be issued on the Closing Date
and on any Option Closing Date, as applicable. On such date or
dates, the Company shall deliver to the Representative (and/or its
designees), upon execution of customary and mutually agreed upon
investor representation letters, certificates for the
Representative’s Shares in the name or names and in such
denominations as the Representative may request. The Representative
hereby agrees not to transfer, assign or sell any
Representative’s Shares without the Company’s prior
consent until the completion of the Business Combination. The
Representative’s Shares will be identical to the shares of
Common Stock included in the Firm Units except the holders (i)
shall not be entitled to exercise any conversion or redemption
rights with respect to such Representative’s Shares and shall
not be entitled to sell any such shares to the Company in any
tender offer in connection with a proposed Business Combination and
(ii) will have no right to any liquidation distributions with
respect to any portion of the Representative’s Shares in the
event the Company fails to consummate
a Business Combination
within the required time period.
Additionally, the Representative (and/or its designees) will have
the same registration rights with respect to the
Representative’s Shares that it has with respect to the
Representative’s Purchase Option and underlying securities.
The registered holder of the Representative’s Shares will not
sell, transfer, assign, pledge or hypothecate any of the
Representative’s Shares for a period of 180 days pursuant to
FINRA Conduct Rule 5110(g)(1) following the effective date of the
Registration Statement to anyone other than (i) the Representative
or an Underwriter or selected dealer in connection with the
Offering, or (ii) a bona fide officer or partner of the
Representative or of any such Underwriter or selected dealer.
Additionally, pursuant to FINRA Conduct Rule 5110(g), the
Representative’s Shares will not be the subject of any
hedging, short sale, derivative, put or call transaction that would
result in the economic disposition of the securities by any person
for a period of 180 days immediately following the effective date
of the Registration Statement. The certificates for the
Representative’s Shares shall contain legends to reflect the
above FINRA and contractual transfer
restrictions.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
4
of
36
1.3.3.
The
Representative’s Shares and the Representative’s
Purchase Option, the Representative’s Units, the Common Stock
included in the Representative’s Units, the Rights included
in the Representative’s Units (the “
Representative’s Rights
”),
the Warrants included in the Representative’s Units (the
“
Representative’s
Warrants
”) and the Common Stock issuable pursuant to
the terms of the Representative’s Rights and
Representative’s Warrants are hereinafter referred to
collectively as the “
Representative’s
Securities
.”
Delivery
(and payment with respect to the Representative’s Purchase
Option) of the Representative’s Securities shall be made on
the Closing Date or Option Closing Date, as applicable. The
issuance of the Representative’s Securities will be
registered on the Registration Statement.
1.4.
Private
Placements
.
1.4.1.
The
Company issued to Big Rock Partners Sponsor, LLC (the
“
Sponsor
”) for aggregate consideration of
$25,000
1,437,500 shares of the Company’s Common Stock
(the “
Founder’s
Shares
”) in a private
placement intended to be exempt from registration under Section
4(a)(2) of the Securities Act of 1933, as amended (the
“
Act
”). No underwriting discounts, commissions
or placement fees have been or will be payable in connection with
the sale of the Founder’s Shares.
In
November 2017, the Company effectuated a stock dividend of 0.2
shares of Common Stock for each outstanding share of Common Stock,
resulting in the Sponsor holding an aggregate of 1,725,000
Founder’s Shares.
The Founder’s Shares
shall be held in escrow and subject to restrictions on transfer as
set forth in the Escrow Agreement (as defined in Section 2.24.3
below). The Sponsor shall have no right to any liquidation
distributions with respect to any portion of the Founder’s
Shares in the event the Company fails to consummate
any
proposed initial merger, share exchange, asset acquisition, share
purchase, recapitalization, reorganization or other similar
business combination, or entering into contractual arrangements,
with one or more businesses or entities (“
Business Combination
”)
within the required time period. The Sponsor shall
not have conversion rights with respect to the Founder’s
Shares nor shall they be entitled to sell such Founder’s
Shares to the Company in any tender offer in connection with a
proposed Business Combination. To the extent that the
Over-allotment Option is not exercised by the Underwriters in full
or in part, up to
225,000
of the
Founder’s Shares shall be subject to forfeiture by the
Sponsor. The Sponsor will be required to forfeit only a number of
Founder’s Shares necessary to maintain the Sponsor’s
20% beneficial ownership interest in the Common Stock after giving
effect to the Offering and exercise, if any, of the
Underwriters’ Over-allotment Option (and excluding the
issuance of the Representative’s Shares and the purchase by
the Sponsor of the Private Units (defined below) and any shares
purchased in the Offering).
1.4.2.
Simultaneously
with the Closing Date,
the Sponsor
will purchase from the
Company pursuant to a Subscription Agreement (as defined in Section
2.24.2 below), an aggregate of
250,000
Units
(the “
Private
Units
”) at a purchase
price of $
10.00
per Private Unit in a
private placement (the “
Private
Placement
”) intended to be
exempt from registration under the Act. The terms of the
Private Units are as described in the Prospectus (as defined in
Section 2.1.1 below). No underwriting discounts, commissions or
placement fees have been or will be payable in connection with the
Private Placement. The Sponsor has also agreed that, in
the event the Representative has exercised the Over-allotment
Option, it will purchase up to an additional
22,500
Private Units and
the
Company shall cause to be
deposited an amount of additional proceeds from the sale of such
additional Private
Units
into
the Trust Account such that the amount of funds in the Trust
Account shall be $
10.00
per
Public Share sold in the Offering. The purchase price for the
Private Units shall have been delivered to CST&T or counsel for
the Company to hold in a separate escrow account at least 48 hours
prior to the date hereof so that such funds are readily available
to be delivered to the Trust Account on the Closing Date or the
Option Closing Date, as the case may be.
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1.5.
Working
Capital; Trust Account Proceeds
.
1.5.1.
Working
Capital
. Upon consummation of the Offering, it is intended
that approximately $500,000 of the net proceeds from the sale of
the Firm Units and Private
Units
will
be released to the Company to fund the working capital requirements
of the Company.
1.5.2.
Trust
Account Proceeds
. Interest income on the funds held in the
Trust Account may be released to the Company from the Trust Account
in accordance with the terms of the Trust Agreement to pay any
taxes incurred by the Company, all as more fully described in the
Prospectus.
2.
Representations
and Warranties of the Company
. The Company represents
and warrants to the Underwriters as follows:
2.1.
Filing of Registration
Statement
.
2.1.1.
Pursuant
to the Act
. The Company has filed with the Securities
and Exchange Commission (the “
Commission
”) a registration
statement and an amendment or amendments thereto, on Form S-1 (File
No. 333-220947), including any related preliminary prospectus (the
“
Preliminary
Prospectus
”, including any prospectus that is included
in the registration statement immediately prior to the
effectiveness of the registration statement), for the registration
of the Public Securities under the Act, which registration
statement and amendment or amendments have been prepared by the
Company in conformity with the requirements of the Act, and the
rules and regulations (the “
Regulations
”) of the Commission
under the Act. Except as the context may otherwise require,
such registration statement, as amended, on file with the
Commission at the time the registration statement became effective
(“
Effective
Date
”), including the prospectus, financial
statements, schedules, exhibits and all other documents filed as a
part thereof or incorporated therein and all information deemed to
be a part thereof as of such time pursuant to Rule 430A of the
Regulations, together with the registration statement filed by the
Company pursuant to Rule 462(b) under the Act registering
additional Public Securities (the “
Rule 462(b) Registration
Statement
”), is hereinafter called the
“
Registration
Statement
,” and the form of the final prospectus dated
the Effective Date included in the Registration Statement (or, if
applicable, the form of final prospectus containing information
permitted to be omitted at the time of effectiveness by Rule 430A
of the Regulations filed with the Commission pursuant to Rule 424
of the Regulations), is hereinafter called the “
Prospectus
.”
For purposes of this Agreement,
“
Time
of Sale
”, as used in the
Act, means 5:00 p.m., New York City time, on the date of this
Agreement. Prior to the Time of Sale, the Company prepared a
preliminary prospectus, dated November 14,
2017
, for distribution by the
Underwriters (the “
Statutory
Prospectus
”).
Other than the Registration Statement, together with any
correspondence letters between the Company and/or counsel for the
Company and the Commission, no other document with respect to the
Registration Statement has heretofore been filed under the Act with
the Commission. All of the Public Securities have been or will be
registered under the Act pursuant to the Registration Statement.
The Registration Statement has been
declared effective by the Commission on the date hereof.
If, subsequent to the date of this
Agreement, the Company or the Representative has determined that at
the Time of Sale the Statutory Prospectus included an untrue
statement of a material fact or omitted a statement of material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and have
agreed to provide an opportunity to purchasers of the Firm Units to
terminate their old purchase contracts and enter into new purchase
contracts, then the Statutory Prospectus will be deemed to include
any additional information available to purchasers at the time of
entry into the first such new purchase
contract.
2.1.2.
Pursuant
to the Exchange Act
. The Company has filed with the
Commission a Registration Statement on Form 8-A (File Number
001-38302) providing for the registration under the
Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”),
of the Units, Common Stock, Rights and Warrants. The
registration of the Units, Common Stock, Rights and Warrants under
the Exchange Act has been declared effective by the Commission on
the date hereof.
2.2.
No
Stop Orders, etc.
Neither the Commission nor, to the
Company’s knowledge, any foreign or state regulatory
authority has issued any order or threatened to issue any order
preventing or suspending the use of any Statutory Prospectus or
Prospectus or has instituted or, to the best of the Company’s
knowledge, threatened to institute any proceedings with respect to
such an order.
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2.3.
Disclosures
in Registration Statement
.
2.3.1.
10b-5
Representation
. At the time of effectiveness of the
Registration Statement (or at the effective time of any
post-effective amendment to the Registration Statement) and at all
times subsequent thereto up to the Closing Date, the Registration
Statement, the Statutory Prospectus and the Prospectus contained or
will contain all material statements that are required to be stated
therein in accordance with the Act and the Regulations, and did or
will, in all material respects, conform to the requirements of the
Act and the Regulations. On the Effective Date and at the Time of
Sale, the Registration Statement did not, and on the Closing Date
it will not, contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading;
on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Prospectus (together with any supplement thereto)
will not include any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; and at the Time of Sale, the Statutory
Prospectus does not include any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they
were made, not misleading; provided, however, that the
representation and warranty made in this Section 2.3.1 does
not apply to statements made or statements omitted in reliance upon
and in conformity with written information furnished to the Company
with respect to the Underwriters by the Underwriters expressly for
use in the Registration Statement, the Statutory Prospectus or
Prospectus or any amendment thereof or supplement
thereto
, which information, it is
agreed, shall consist solely of the names of the Underwriters and
the subsections entitled “Price Stabilization, Short
Positions,” “Determination of Offering Price,”
“Electronic Distribution” and “Selling
Restrictions” included in the section captioned
“Underwriting.”
2.3.2.
Disclosure
of Agreements
. The agreements and documents described
in the Registration Statement, the Statutory Prospectus and the
Prospectus conform to the descriptions thereof contained therein
and there are no agreements or other documents required to be
described in the Registration Statement, the Statutory Prospectus
or the Prospectus or to be filed with the Commission as exhibits to
the Registration Statement, that have not been so described or
filed. Each agreement or other instrument (however
characterized or described) to which the Company is a party or by
which its property or business is or may be bound or affected and
(i) that is referred to in the Registration Statement or attached
as an exhibit thereto, or (ii) is material to the Company’s
business, has been duly and validly executed by the Company, is in
full force and effect in all material respects and is enforceable
against the Company and, to the Company’s knowledge, the
other parties thereto, in all material respects in accordance with
its terms, except (x) as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors’ rights generally, (y) as enforceability of any
indemnification or contribution provision may be limited under the
foreign, federal and state securities laws, and (z) 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, and none of such agreements or instruments has been
assigned by the Company, and neither the Company nor, to the
Company’s knowledge, any other party is in breach or default
thereunder and, to the Company’s knowledge, no event has
occurred that, with the lapse of time or the giving of notice, or
both, would constitute a breach or default thereunder. To the
Company’s knowledge, performance by the Company of the
material provisions of such agreements or instruments will not
result in a violation of any existing applicable law, rule,
regulation, judgment, order or decree of any governmental agency or
court, domestic or foreign, having jurisdiction over the Company or
any of its assets or businesses, including, without limitation,
those relating to environmental laws and regulations.
2.3.3.
Prior
Securities Transactions
. No securities of the Company
have been sold by the Company or by or on behalf of, or for the
benefit of, any person or persons controlling, controlled by, or
under common control with the Company since the date of the
Company’s formation, except as disclosed in the Registration
Statement.
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2.3.4.
Regulations
.
The disclosures in the Registration Statement, the Statutory
Prospectus and the Prospectus concerning the effects of foreign,
federal, state and local regulation on the Company’s business
as currently contemplated are correct in all material respects and
do not omit to state a material fact necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading.
2.4.
Changes
After Dates in Registration Statement
.
2.4.1.
No
Material Adverse Change
.
Since the respective dates as of which information
is given in the Registration Statement, the Statutory Prospectus
and the Prospectus, except as otherwise specifically stated
therein: (i) there has been no material adverse change in the
condition, financial or otherwise, or business prospects of the
Company; (ii) there have been no material transactions entered into
by the Company, other than as contemplated pursuant to this
Agreement; (iii) no member of the Company’s board of
directors or management has resigned from any position with the
Company; and (iv) no event or occurrence has taken place which
materially impairs, or would likely materially impair, with the
passage of time, the ability of the members of the Company’s
board of directors or management to act in their capacities with
the Company as described in the Registration Statement,
the
Statutory Prospectus
and the
Prospectus.
2.4.2.
Recent
Securities Transactions, etc.
Subsequent to the respective
dates as of which information is given in the Registration
Statement, the Statutory Prospectus and the
Prospectus
and except as may otherwise be
indicated or contemplated herein or therein, the Company has not:
(i) issued any securities or incurred any liability or obligation,
direct or contingent, for borrowed money; or (ii) declared or
paid any dividend or made any other distribution on or in respect
to its capital stock.
2.5.
Independent
Accountants
. Marcum LLP (“
Marcum
”), whose report is filed
with the Commission as part of the Registration Statement and
included in the Registration Statement, the Statutory Prospectus
and the Prospectus, are independent registered public accountants
as required by the Act, the Regulations and the Public Company
Accounting Oversight Board
(the
“
PCAOB
”), including the rules and regulations
promulgated by such entity. To the Company’s knowledge,
Marcum
is duly registered and
in good standing with the PCAOB.
Marcum has not, during the
periods covered by the financial statements included in the
Registration Statement, the Statutory Prospectus and the
Prospectus, provided to the Company any non-audit services, as such
term is used in Section 10A(g) of the Exchange
Act.
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2.6.
Financial
Statements; Statistical Data
.
2.6.1.
Financial
Statements
. The financial statements, including the notes
thereto and supporting schedules included in the Registration
Statement, the Statutory Prospectus and the Prospectus, fairly
present in all material respects the financial position and the
results of operations of the Company at the dates and for the
periods to which they apply; and such financial statements have
been prepared in conformity with United States generally accepted
accounting principles (“
GAAP
”), consistently applied
throughout the periods involved; and the supporting schedules
included in the Registration Statement present fairly in all
material respects the information required to be stated therein in
conformity with the Regulations.
No other financial statements or supporting
schedules are required to be included or incorporated by reference
in the Registration Statement,
the Statutory Prospectus or
the Prospectus
.
The
Registration Statement, the Statutory Prospectus and the Prospectus
disclose all material off-balance sheet transactions, arrangements,
obligations (including contingent obligations), and other
relationships of the Company with unconsolidated entities or other
persons that may have a material current or future effect on the
Company’s financial condition, changes in financial
condition, results of operations, prospects, liquidity, capital
expenditures, capital resources, or significant components of
revenues or expenses.
There are no pro
forma or as adjusted financial statements which are required to be
included
in the Registration
Statement,
the Statutory Prospectus or the Prospectus
in accordance with
Regulation S-X of the Regulations which have not
been included as so required.
2.6.2.
Statistical
Data
. The statistical, industry-related and market-related
data included in the Registration Statement, the Statutory
Prospectus and/or the Prospectus are based on or derived from
sources which the Company reasonably and in good faith believes are
reliable and accurate, and such data agree with the sources from
which they are derived.
2.7.
Authorized
Capital; Options, etc.
The Company had at the date or
dates indicated in each of the Registration Statement, the
Statutory Prospectus and the Prospectus, as the case may be, duly
authorized, issued and outstanding capitalization as set forth in
the Registration Statement, the Statutory Prospectus and the
Prospectus. Based on the assumptions stated in the
Registration Statement, the Statutory Prospectus and the
Prospectus, the Company will have on the Closing Date the adjusted
stock capitalization set forth therein. Except as set forth in, or
contemplated by, the Registration Statement, the Statutory
Prospectus and the Prospectus, on the Effective Date and on the
Closing Date, there will be no options, warrants, or other rights
to purchase or otherwise acquire any authorized, but unissued
Common Stock or any security convertible into Common Stock, or any
contracts or commitments to issue or sell Common Stock or any such
options, warrants, rights or convertible securities.
2.8.
Valid
Issuance of Securities, etc.
2.8.1.
Outstanding
Securities
. All issued and outstanding Founder’s
Shares have been duly authorized and validly issued and are fully
paid and non-assessable; the holders thereof have no rights of
rescission with respect thereto, and are not subject to personal
liability by reason of being such holders; and none of such
securities were issued in violation of the preemptive rights of any
holders of any security of the Company or similar contractual
rights granted by the Company. The outstanding Founder’s
Shares conform to the descriptions thereof contained in the
Registration Statement, the Statutory Prospectus and the
Prospectus. All offers, sales and any transfers of the outstanding
Founder’s Shares were at all relevant times either registered
under the Act and the applicable state securities or Blue Sky laws
or exempt from such registration requirements.
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2.8.2.
Securities
To Be Sold
.
2.8.2.1. The
Public Securities have been duly authorized and reserved for
issuance and when issued and paid for in accordance with this
Agreement, will be validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal
liability by reason of being such holders; the Public Securities
are not and will not be subject to the preemptive rights of any
holders of any security of the Company or similar contractual
rights granted by the Company; and all corporate action required to
be taken for the authorization, issuance and sale of the Public
Securities has been duly and validly taken. The Public
Securities conform in all material respects to the descriptions
thereof contained in the Registration Statement, the Statutory
Prospectus and the Prospectus, as the case may
be.
2.8.2.2. The
Representative’s Shares have been duly authorized and
reserved for issuance and when issued in accordance with this
Agreement, will be validly issued, fully paid and non-assessable;
the holders thereof are not and will not be subject to personal
liability by reason of being such holders; the
Representative’s Shares are not and will not be subject to
the preemptive rights of any holders of any security of the Company
or similar contractual rights granted by the Company; and all
corporate action required to be taken for the authorization,
issuance and sale of the Representative’s Shares has been
duly and validly taken. The Representative’s Shares conform
in all material respects to the descriptions thereof contained in
the Registration Statement, the Statutory Prospectus and the
Prospectus, as the case may be.
2.8.2.3. When
issued, the Representative’s Purchase Option, the
Representative’s Rights and the Representative’s
Warrants
will
constitute the valid and binding obligation of the Company to issue
and sell, upon exercise thereof and payment of the exercise price
therefor, the number and type of securities of the Company called
for thereby in accordance with the terms thereof and such
Representative’s Purchase Option, the Representative’s
Rights and the Representative’s Warrants
are enforceable against the
Company in accordance with its terms, except: (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under foreign, federal and
state securities laws; and (iii) 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. The
Common Stock underlying the Representative’s Units, the
Representative’s Rights and the Representative’s
Warrants
have been
reserved for issuance upon the exercise of the
Representative’s Purchase Option upon payment of the
consideration therefore, and when issued in accordance with the
terms thereof, will be duly and validly authorized, validly issued,
fully paid and non-assessable; the holders thereof are not and will
not be subject to personal liability by reason of being such
holders. The Representative’s Purchase Option, the
Representative’s Units, the shares of Common Stock underlying
the Representative’s Units, the Representative’s Rights
and the Representative’s Warrants conform in all material
respects to the descriptions thereof contained in the Registration
Statement, the Statutory Prospectus and the Prospectus, as the case
may be.
2.8.2.4. The
Private
Units
and the
shares of Common Stock (the “
Private Shares
”), Rights (the
“
Private
Rights
”) and Warrants included within the Private
Units (the “
Private
Warrants
”) have been duly authorized and reserved for
issuance and when issued and paid for in accordance with the
Subscription Agreement, will be validly issued, fully paid and
non-assessable; the holders thereof are not and will not be subject
to personal liability by reason of being such holders; the Private
Units,
Private Shares, Private Rights
and Private Warrants are not
and will not be subject to the preemptive rights of any holders of
any security of the Company or similar contractual rights granted
by the Company; and all corporate action required to be taken for
the authorization, issuance and sale of the Private
Units, Private Shares,
Private Rights
and Private Warrants
has been duly and validly
taken. The Private
Units, Private Shares,
Private Rights
and Private Warrants
conform in all material respects
to the descriptions thereof contained in the Registration
Statement, the Statutory Prospectus and the Prospectus, as the case
may be.
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2.8.3.
No
Integration
. Neither the Company nor any of its affiliates
has, prior to the date hereof, made any offer or sale of any
securities which are required to be “integrated”
pursuant to the Act or the Regulations with the offer and sale of
the Public Securities pursuant to the Registration
Statement.
2.9.
Registration Rights of Third
Parties
. Except as set forth in the Registration
Statement, the Statutory Prospectus and the Prospectus, no holders
of any securities of the Company or any rights exercisable for or
convertible or exchangeable into securities of the Company have the
right to require the Company to register any such securities of the
Company under the Act or to include any such securities in a
registration statement to be filed by the Company.
2.10.
Validity
and Binding Effect of Agreements
. This Agreement, the
Trust Agreement, the Subscription Agreement, the Escrow Agreement,
the Services Agreement (as defined in Section 2.24.7 below),
the Business Combination Marketing Agreement (as defined in Section
2.27 below), the Rights Agreement (as defined in Section 2.29
below), the Warrant Agreement (as defined in Section 2.28 below),
the Registration Rights Agreement (as defined in Section 2.24.6)
and the Representative’s Purchase Option have been duly and
validly authorized by the Company and, when executed and delivered
by the Company and the other parties thereto, will constitute valid
and binding agreements of the Company, enforceable against the
Company in accordance with their respective terms, except: (i) as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally; (ii) as enforceability of any indemnification or
contribution provision may be limited under foreign, federal and
state securities laws; and (iii) 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.
2.11.
No
Conflicts, etc.
The execution, delivery, and
performance by the Company of this Agreement, the Trust Agreement,
the Subscription Agreement, the Escrow Agreement, the Services
Agreement, the Business Combination Marketing Agreement, the Rights
Agreement, the Warrant Agreement, the Registration Rights Agreement
and the Representative’s Purchase Option, the consummation by
the Company of the transactions herein and therein contemplated and
the compliance by the Company with the terms hereof and thereof do
not and will not, with or without the giving of notice or the lapse
of time or both: (i) result in a breach or violation of, or
conflict with any of the terms and provisions of, or constitute a
default under, or result in the creation, modification, termination
or imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to the terms of any agreement,
obligation, condition, covenant or instrument to which the Company
is a party or bound or to which its property is subject except
pursuant to the Trust Agreement; (ii) result in any violation of
the provisions of the Certificate of Incorporation or Bylaws of the
Company (collectively, the “
Charter Documents
”); or (iii)
violate any existing applicable statute, law, rule, regulation,
judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of
its properties, business or assets.
2.12.
No
Defaults; Violations
. No material default or violation
exists in the due performance and observance of any term, covenant
or condition of any material license, contract, indenture,
mortgage, deed of trust, note, loan or credit agreement, or any
other agreement or instrument evidencing an obligation for borrowed
money, or any other material agreement or instrument to which the
Company is a party or by which the Company may be bound or to which
any of the properties or assets of the Company is subject. The
Company is not in violation of any term or provision of its Charter
Documents or in violation of any franchise, license, permit,
applicable law, rule, regulation, judgment or decree of any
governmental agency or court, domestic or foreign, having
jurisdiction over the Company or any of its properties or
businesses.
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2.13.
Corporate
Power; Licenses; Consents
.
2.13.1.
Conduct
of Business
. The Company has all requisite corporate
power and authority, and has all necessary authorizations,
approvals, orders, licenses, certificates and permits of and from
all governmental regulatory officials and bodies that it needs as
of the date hereof to conduct its business for the purposes
described in the Registration Statement, the Statutory Prospectus
and the Prospectus. The disclosures in the Registration
Statement, the Statutory Prospectus and the Prospectus concerning
the effects of foreign, federal, state and local regulation on this
Offering and the Company’s business purpose as currently
contemplated are correct in all material respects and do not omit
to state a material fact required to be stated therein or necessary
in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Since its
formation and except as described in the Registration Statement,
the Company has conducted no business and has incurred no
liabilities other than in connection with its formation and in
furtherance of the Offering.
2.13.2.
Transactions
Contemplated Herein
. The Company has all corporate
power and authority to enter into this Agreement and to carry out
the provisions and conditions hereof, and all consents,
authorizations, approvals and orders required in connection
therewith have been obtained. No consent, authorization or
order of, and no filing with, any court, government agency or other
body, foreign or domestic, is required for the valid issuance, sale
and delivery, of the Public Securities and Representative’s
Securities and the consummation of the transactions and agreements
contemplated by this Agreement, the Trust Agreement, the
Subscription Agreement, the Escrow Agreement, the Services
Agreement, the Business Combination Marketing Agreement, the Rights
Agreement, the Warrant Agreement, the Registration Rights Agreement
and the Representative’s Purchase Option
and as contemplated by the
Registration Statement, the Statutory Prospectus and Prospectus,
except with respect to applicable foreign, federal and state
securities laws and the rules and regulations promulgated by the
Financial Industry Regulatory Authority, Inc. (“
FINRA
”).
2.14.
D&O
Questionnaires
. To the Company’s knowledge, all
information contained in the questionnaires (the
“
Questionnaires
”)
completed by each of the Company’s officers, directors, 5%
beneficial owners and owners of unregistered securities acquired
within the past 180 days (the “
Respondents
”) immediately prior to
the initial filing of the Registration Statement and provided to
the Representative, as such Questionnaires may have been updated
from time to time and confirmed by each of the Respondents, as well
as the biographies previously provided to the Representative, is
true and correct and the Company has not become aware of any
information which would cause the information disclosed in the
Questionnaires to become inaccurate and incorrect.
2.15.
Litigation;
Governmental Proceedings
. There is no action, suit,
proceeding, inquiry, arbitration, investigation, litigation or
governmental proceeding pending or, to the Company’s
knowledge, threatened against, or involving the Company or, to the
Company’s knowledge, any of the Respondents, which has not
been disclosed in the Registration Statement, the Statutory
Prospectus and the Prospectus.
2.16.
Good
Standing
. The Company has been duly organized and is
validly existing as a corporation and is in good standing under the
laws of its jurisdiction of incorporation and is duly qualified to
do business and is in good standing as a foreign corporation in
each jurisdiction in which its ownership or lease of property or
the conduct of business requires such qualification, except where
the failure to qualify would not have a material adverse effect on
the condition (financial or otherwise), prospects, earnings,
business or properties of the Company, whether or not arising from
transactions in the ordinary course of business, except as set
forth in or contemplated in the Statutory Prospectus and the
Prospectus (exclusive of any supplement thereto) (a
“
Material Adverse
Effect
”).
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2.17.
No
Consideration of a Business Combination
. Prior to the date
hereof, no Respondent has, and as of the Closing, the Company and
such Respondents will not have: (a) had any specific Business
Combination under consideration; or (b) directly or indirectly,
contacted any prospective target business which the Company may
seek to acquire (each, a “
Target Business
”) or had any
substantive discussions, formal or otherwise, with respect to
effecting any potential Business Combination with the
Company.
2.18.
Transactions
Affecting Disclosure to FINRA
.
2.18.1.
To the Company’s knowledge, all information contained in the
questionnaires (the “
FINRA
Questionnaires
”) completed by each of the Respondents
and provided to the Representative, as such FINRA Questionnaires
may have been updated from time to time and confirmed by each of
the Respondents, is true and correct and the Company has not become
aware of any information which would cause the information
disclosed in the FINRA Questionnaires to become inaccurate and
incorrect.
2.18.2. Except
as described in the Registration Statement, the Statutory
Prospectus and the Prospectus, there are no claims, payments,
arrangements, agreements or understandings relating to the payment
of a finder’s, consulting or origination fee by the Company
or any Respondent with respect to the sale of the Public Securities
hereunder or any other arrangements, agreements or understandings
of the Company or, to the Company’s knowledge, any Respondent
that may affect the Underwriters’ compensation, as determined
by FINRA.
2.18.3. Except
as described herein or in the Registration Statement, the Statutory
Prospectus and the Prospectus, the Company has not made any direct
or indirect payments (in cash, securities or otherwise) to: (i) any
person, as a finder’s fee, consulting fee or otherwise, in
consideration of such person raising capital for the Company or
introducing to the Company persons who raised or provided capital
to the Company; (ii) to any FINRA member; or (iii) to any person or
entity that has any direct or indirect affiliation or association
with any FINRA member, within the 180-day period prior to the
initial filing date of the Registration Statement with the
Commission.
2.18.4. To
the Company’s knowledge, except as set forth in the FINRA
Questionnaires, no Respondent is a member of FINRA, or a person
associated or affiliated with a member of FINRA.
2.18.5. To
the Company’s knowledge, except as set forth in the FINRA
Questionnaires, no Respondent is an owner of stock or other
securities of any member of FINRA (other than securities purchased
on the open market).
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2.18.6.
To the Company’s knowledge, except
as set forth in the FINRA Questionnaires, no Respondent has made a
subordinated loan to any member of FINRA.
2.18.7. No
proceeds from the sale of the Public Securities or Private
Units
(excluding
underwriting compensation) will be paid to any FINRA member, or any
persons associated or affiliated with a member of FINRA, except as
specifically authorized herein.
2.18.8. The
Company has not issued any warrants or other securities, or granted
any options, directly or indirectly to anyone who is a potential
underwriter in the Offering or a related person (as defined by
FINRA rules) of such an underwriter within the 180-day period prior
to the initial filing date of the Registration Statement with the
Commission, except as disclosed in the Registration Statement, the
Statutory Prospectus and the Prospectus.
2.18.9. To
the Company’s knowledge, except as set forth in the FINRA
Questionnaires, no person to whom securities of the Company have
been privately issued within the 180-day period prior to the
initial filing date of the Registration Statement with the
Commission has any relationship or affiliation or association with
any member of FINRA.
2.18.10. To
the Company’s knowledge, no FINRA member intending to
participate in the Offering has a conflict of interest (as defined
by FINRA rules) with the Company.
2.18.11. Except
with respect to the Representative in connection with the Offering,
the Company has not entered into any agreement or arrangement
(including, without limitation, any consulting agreement or any
other type of agreement) during the 180-day period prior to the
initial filing date of the Registration Statement with the
Commission, which arrangement or agreement provides for the receipt
of any item of value and/or the transfer or issuance of any
warrants, options, or other securities from the Company to a FINRA
member, any person associated with a member (as defined by FINRA
rules), any potential underwriters in the Offering and/or any
related persons.
2.19.
Taxes
.
2.19.1.
There are no transfer taxes or other similar fees or charges under
U.S. federal law or the laws of any U.S. state or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance or sale by
the Company of the Public Securities.
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2.19.2.
The Company has filed all U.S. federal, state and local tax returns
that are required to be a filed or has requested extensions
thereof, except in any case in which the failure to so file would
not have a Material Adverse Effect, and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing in due and
payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a
Material Adverse Effect.
2.20.
Foreign
Corrupt Practices Act
. Neither the Company nor any of
the Respondents or any other person acting on behalf of the Company
is aware of or has taken any action, directly or indirectly, that:
(i) would result in a violation by such persons of the Foreign
Corrupt Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “
FCPA
”) or otherwise subject the
Company to any damage or penalty in any civil, criminal or
governmental litigation or proceeding; (ii) if not done in the
past, might reasonably be expected to have had a Material Adverse
Effect or (iii) if not continued in the future, might reasonably be
expected to materially and adversely affect the assets, business or
operations of the Company, including, without limitation, given or
agreed to give any money, gift or similar benefit (other than legal
price concessions to customers in the ordinary course of business)
to any customer, supplier, employee or agent of a customer or
supplier, or official or employee of any governmental agency or
instrumentality of any government (domestic or foreign) or any
political party or candidate for office (domestic or foreign) or
any political party or candidate for office (domestic or foreign)
or other person who was, is, or may be in a position to help or
hinder the business of the Company (or assist it in connection with
any actual or proposed transaction). The Company’s internal
accounting controls and procedures are sufficient to cause the
Company to comply with the Foreign Corrupt Practices Act of 1977,
as amended.
2.21.
Currency
and Foreign Transactions Reporting Act
. The operations of
the Company are and have been conducted at all times in material
compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transaction Reporting Act
of 1970, as amended, the money laundering statutes of all
applicable jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively,
the “
Money Laundering
Laws
”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any
arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
2.22.
Bank
Secrecy Act; Money Laundering; Patriot Act
. Neither the Company, nor to the Company’s
knowledge,
any Respondent, has violated: (i) the Bank
Secrecy Act, as amended, (ii) the Money Laundering Laws or (iii)
the Uniting and Strengthening of America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT
ACT) Act of 2001, and/or the rules and regulations promulgated
under any such law, or any successor law.
2.23.
Officers’
Certificate
. Any certificate signed by any duly
authorized officer of the Company and delivered to the
Representative or to its counsel shall be deemed a representation
and warranty by the Company to the Underwriters as to the matters
covered thereby.
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2.24.
Agreements
With Company Affiliates and Others
.
2.24.1.
Insider
Letters
. The Company has caused to be duly executed
legally binding and enforceable agreements (except (i) as such
enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors’ rights
generally, (ii) as enforceability of any indemnification
contribution provision may be limited under foreign, federal and
state securities laws, and (iii) 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) in the
form annexed as an exhibit to the Registration Statement (the
“
Insider
Letters
”), pursuant to which each of the Respondents
agrees to certain matters, including but not limited to, the voting
of Common Stock held by them and certain matters described as being
agreed to by them under the “Proposed Business”
section of the Registration Statement, the Statutory
Prospectus and Prospectus.
2.24.2.
Subscription
Agreement
. The Sponsor has
executed and delivered
a subscription agreement, the form of which is annexed as an
exhibit to the Registration Statement (the
“
Subscription
Agreement
”), pursuant to
which
the Sponsor
has agreed, among other
things, to purchase on the Closing Date the Private
Units
in
the Private Placement.
2.24.3.
Escrow
Agreement
. The Company has caused the Sponsor to enter
into an escrow agreement (the “
Escrow Agreement
”) with CST&T
substantially in the form filed as an exhibit to the Registration
Statement whereby the Founder’s Shares will be held in escrow
by CST&T for a period (the “
Escrow Period
”) commencing on the
Effective Date and expiring on the one year anniversary of the
consummation of the Business Combination (subject to certain
earlier releases of such Founder’s Shares as provided for in
the Escrow Agreement and described in the Prospectus). During the
Escrow Period, such parties shall be prohibited from selling or
otherwise transferring such Founder’s Shares, except in
certain limited circumstances set forth in the Escrow Agreement and
described in the Prospectus. To the Company’s knowledge, the
Escrow Agreement is enforceable against the Sponsor and will not,
with or without the giving of notice or the lapse of time or both,
result in a breach of, or conflict with, any of the terms and
provisions of, or constitute a default under, an agreement or
instrument to which the Sponsor is a party.
2.24.4.
Non-Competition/Solicitation
.
To the Company’s knowledge, no Respondent is subject to any
non-competition agreement or non-solicitation agreement with any
employer or prior employer which could materially affect such
Respondent’s ability to be and act in the capacity of a
director or officer of the Company, as applicable.
2.24.5.
Loans
and Advances
. The Sponsor and the Company’s executive
officers have made advances and loans to the Company in an
aggregate amount not to exceed $175,000, as described in the
Registration Statement (the “
Insider Advances
”). The Insider
Advances do not bear any interest and are repayable by the Company
on the consummation of the Offering.
2.24.6.
Registration
Rights Agreement
. The Company and the Sponsor have entered
into a registration rights agreement (“
Registration Rights Agreement
”)
substantially in the form annexed as an exhibit to the Registration
Statement, whereby the Sponsor will be entitled to certain
registration rights with respect to its securities, as set forth in
such Registration Rights Agreement and described more fully in the
Registration Statement.
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2.24.7.
Administrative
Services
. The Company has entered into an agreement
(“
Services
Agreement
”) with the Sponsor substantially in the form
annexed as an exhibit to the Registration Statement pursuant to
which the Sponsor will make available to the Company, on the terms
and subject to the conditions set forth therein, general and
administrative services including office space, utilities and
secretarial support for the Company’s use for $10,000 per
month payable until the earlier of the consummation by the Company
of a Business Combination or the liquidation of the Trust
Account.
2.25.
Investment
Management Trust Agreement
. The Company has entered
into the Trust Agreement with respect to certain proceeds of the
Offering and the Private Placement substantially in the form filed
as an exhibit to the Registration Statement, pursuant to which the
funds held in the Trust Account may be released under limited
circumstances. The Trust Agreement shall not be amended, modified
or otherwise changed in any way that modifies the rights or
obligations of the Company without the prior written consent of the
Representative.
2.26.
Intentionally
Omitted
.
2.27.
Business
Combination Marketing Agreement
. The Company and the Representative have entered
into a separate business combination marketing agreement
substantially in the form filed as an exhibit to the Registration
Statement (the “
Business Combination Marketing
Agreement
”).
2.28.
Warrant
Agreement
. The Company has
entered into a warrant agreement with respect to the Warrants,
Representative’s Warrants and Private Warrants with CST&T
substantially in the form filed as an exhibit to the Registration
Statement (the “
Warrant
Agreement
”).
2.29.
Rights
Agreement
. The Company has
entered into a rights agreement with respect to the Rights, the
Representative’s Rights and Private Rights with CST&T
substantially in the form filed as an exhibit to the Registration
Statement (the “
Rights
Agreement
”).
2.30.
Investments
.
No more than 45% of the “value” (as defined in
Section 2(a)(41) of the Investment Company Act of 1940
(“
Investment Company
Act
”)) of the Company’s total assets (exclusive
of cash items and “Government Securities,” as defined
in Section 2(a)(16) of the Investment Company Act) consist of, and
no more than 45% of the Company’s net income after taxes is
derived from, securities other than Government
Securities.
2.31.
Investment
Company Act
. The Company is not required, and upon the
issuance and sale of the Public Securities as herein contemplated
and the application of the net proceeds therefrom as described in
the Prospectus will not be required, to register as an
“investment company” under the Investment Company
Act.
2.32.
Subsidiaries
.
The Company does not own an interest in any corporation,
partnership, limited liability company, joint venture, trust or
other business entity.
2.33.
Related
Party Transactions
. No relationship, direct or
indirect, exists between or among any of the Company or any
Respondent, on the one hand, and any customer or supplier of the
Company or any Respondent, on the other hand, which is required by
the Act, the Exchange Act or the Regulations to be described in the
Registration Statement, the Statutory Prospectus and the
Prospectus, which is not so described as required. There are no
outstanding loans, advances or guarantees of indebtedness by the
Company to or for the benefit of any of the officers or directors
of the Company or any of their respective family members, except as
disclosed in the Registration Statement, the Statutory Prospectus
and the Prospectus. The Company has not extended or maintained
credit, arranged for the extension of credit, or renewed an
extension of credit, in the form of a personal loan to or for any
director or officer of the Company.
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2.34.
No
Influence
. The Company has not offered, or caused the
Underwriters to offer, the Firm Units to any person or entity with
the intention of unlawfully influencing: (a) a customer or supplier
of the Company or any affiliate of the Company to alter the
customer’s or supplier’s level or type of business with
the Company or such affiliate or (b) a journalist or publication to
write or publish favorable information about the Company or any
such affiliate.
2.35.
Sarbanes-Oxley
.
The Company is in material compliance with the provisions of the
Sarbanes-Oxley Act of 2002, as amended (“
SOX
”), and the rules and regulations
promulgated thereunder and related or similar rules and regulations
promulgated by any governmental or self-regulatory entity or
agency, that are applicable to it as of the date
hereof.
2.36.
Nasdaq
Eligibility
. As of the Effective Date, the Public Securities
have been approved for listing on the Nasdaq Capital Markets
(“
NASDAQ
”),
subject to official notice of issuance and evidence of satisfactory
distribution. There is and has been no failure on the part of the
Company or any of the Company's directors or officers, in their
capacities as such, to comply with (as and when applicable), and
immediately following the effectiveness of the Registration
Statement the Company will be in compliance with, the NASDAQ
Marketplace Rules, as amended.
2.37.
Emerging Growth
Status
. From the date of the Company’s formation
through the date hereof, the Company has been and is an
“emerging growth company,” as defined in Section 2(a)
of the Act (an “
Emerging
Growth Company
”).
2.38.
Free-Writing Prospectus
and Testing-the-Waters
. The Company has not made any offer
relating to the Public Securities that would constitute an issuer
free writing prospectus, as defined in Rule 433 under the Act, or
that would otherwise constitute a “free writing
prospectus” as defined in Rule 405. The Company (a) has not
engaged in any Testing-the-Waters Communication other than
Testing-the-Waters Communications with the consent of the
Representative with entities that are qualified institutional
buyers within the meaning of Rule 144A under the Securities Act or
institutions that are accredited investors within the meaning of
Rule 501 under the Securities Act and (b) has not authorized anyone
to engage in Testing-the-Waters Communications other than its
officers and the Representative and individuals engaged by the
Representative. The Company has not distributed any Written
Testing-the-Waters Communications other than those listed on
Schedule B hereto. “Testing-the-Waters Communication”
means any oral or written communication with potential investors
undertaken in reliance on Section 5(d) of the Act.
2.39.
Disclosure
Controls and Procedures
. The Company maintains effective
“disclosure controls and procedures” (as defined under
Rule 13a-15(e) under the Exchange Act to the extent required by
such rule).
2.40.
[Intentionally
Omitted]
.
2.41.
Definition
of “Knowledge”
.
As used in herein, the term
“
knowledge of the
Company
” (or similar language) shall mean the
knowledge of the Company’s executive officers and directors,
with the assumption that such officers and directors shall have
made reasonable and diligent inquiry of the matters
presented.
3.
Covenants of the Company
.
The Company covenants and agrees as follows:
3.1.
Amendments
to Registration Statement
. The Company will deliver to
the Representative, prior to filing, any amendment or supplement to
the Registration Statement or Prospectus proposed to be filed after
the Effective Date and shall not file any such amendment or
supplement to which the Representative shall reasonably object in
writing.
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3.2.
Federal
Securities Laws
.
3.2.1.
Compliance
.
During the time when a prospectus is required to be delivered under
the Act, the Company will use all reasonable efforts to comply with
all requirements imposed upon it by the Act, the Regulations and
the Exchange Act and by the regulations under the Exchange Act, as
from time to time in force, so far as necessary to permit the
continuance of sales of or dealings in the Public Securities in
accordance with the provisions hereof and the Prospectus. If
at any time when a Prospectus relating to the Public Securities is
required to be delivered under the Act, any event shall have
occurred as a result of which, in the opinion of counsel for the
Company or counsel for the Underwriters, the Statutory Prospectus
and the Prospectus, as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, or if it is necessary during such period
to amend the Registration Statement or amend or supplement the
Statutory Prospectus and Prospectus to comply with the Act, the
Company will notify the Representative promptly and prepare and
file with the Commission, subject to Section 3.1 hereof, an
appropriate amendment to the Registration Statement or amendment or
supplement to the Statutory Prospectus and Prospectus (at the
expense of the Company) so as to correct such statement or omission
or effect such compliance.
3.2.2.
Filing of Final
Prospectus
. The Company will promptly file the
Prospectus (in form and substance satisfactory to the
Representative) with the Commission pursuant to the requirements of
Rule 424 of the Regulations.
3.2.3.
Exchange Act
Registration
. For a period of five years from the
Effective Date (except in connection with a going private
transaction), or until such earlier time upon which the Trust
Account is to be liquidated if a Business Combination has not been
consummated as required by its Charter Documents (the
“
Termination
Date
”), the Company (i) will use its best efforts to
maintain the registration of the Common Stock, Rights (until the
consummation of the Business Combination) and Warrants under the
provisions of the Exchange Act and (ii) will not deregister the
Common Stock, Rights (prior to the consummation of the Business
Combination) or Warrants under the Exchange Act without the prior
written consent of the Representative.
3.2.4.
Free Writing
Prospectuses
. The Company agrees that it will not make any
offer relating to the Public Securities
that would constitute an issuer
free writing prospectus, as defined in Rule 433 under the
Act.
3.2.5.
Sarbanes-Oxley
Compliance
. As soon as it is
legally required to do so, t
he Company shall take all
actions necessary to obtain and thereafter maintain material
compliance with each applicable provision of SOX and the rules and
regulations promulgated thereunder and related or similar rules and
regulations promulgated by any other governmental or
self-regulatory entity or agency with jurisdiction over the
Company.
3.3.
Emerging
Growth Company Status
. The Company will promptly notify the
Representative if the Company ceases to be an Emerging Growth
Company at any time prior to the earlier of five years after the
consummation of the Company’s initial Business Combination,
or the liquidation of the Trust Account if a Business Combination
is not consummated by the Termination Date.
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3.4.
[Intentionally
Omitted]
.
3.5.
Delivery
of Materials to Underwriters
. The Company will deliver
to each of the several Underwriters, without charge and from time
to time during the period when a prospectus is required to be
delivered under the Act or the Exchange Act, such number of copies
of each Statutory Prospectus, the Prospectus and all amendments and
supplements to such documents as such Underwriters may reasonably
request.
3.6.
Effectiveness
and Events Requiring Notice to the Representative
. The
Company will use its best efforts to cause the Registration
Statement to remain effective and will notify the Representative
immediately and confirm the notice in writing: (i) of the
effectiveness of the Registration Statement and any amendment
thereto; (ii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, or any
post-effective amendment thereto or preventing or suspending the
use of any Preliminary Prospectus or the Prospectus or of the
initiation, or the threatening, of any proceeding for that purpose;
(iii) of the issuance by any foreign or state securities commission
of any proceedings for the suspension of the qualification of the
Public Securities for offering or sale in any jurisdiction or of
the initiation, or the threatening, of any proceeding for that
purpose; (iv) of the mailing and delivery to the Commission for
filing of any amendment or supplement to the Registration Statement
or Prospectus; (v) of the receipt of any comments or request for
any additional information from the Commission; and (vi) of the
happening of any event during the period described in this
Section 3.6 hereof that, in the judgment of the Company or its
counsel, makes any statement of a material fact made in the
Registration Statement, the Statutory Prospectus or the Prospectus
untrue or that requires the making of any changes in the
Registration Statement, the Statutory Prospectus and Prospectus in
order to make the statements therein, (with respect to the
Prospectus and the Statutory Prospectus and in light of the
circumstances under which they were made), not misleading. If
the Commission or any foreign or state securities commission shall
enter a stop order or suspend such qualification at any time, the
Company will make every reasonable effort to obtain promptly the
lifting of such order.
3.7.
Review
of Financial Statements
. Until the earlier of five
years from the Effective Date, or until the liquidation of the
Trust Account if a Business Combination is not consummated by the
Termination Date, the Company, at its expense, shall cause its
regularly engaged independent certified public accountants to
review (but not audit)
the
Company’s financial statements for each of the first three
fiscal quarters prior to the announcement of quarterly financial
information, the filing of the Company’s Form 10-Q quarterly
report.
3.8.
Affiliated
Transactions
.
3.8.1.
Business
Combinations
. The Company will not consummate a
Business Combination with an entity that is affiliated with any
Respondent unless in each case the Company obtains an opinion from
an independent investment banking firm or another independent firm
that regularly renders fairness opinions on the type of target
business the Company is seeking to acquire that the Business
Combination is fair to the Company from a financial point of view
and a majority of the Company’s disinterested and independent
directors (if there are any) approve such transaction.
3.8.2.
Compensation
.
Except as disclosed in the Registration Statement, the Company
shall not pay any Respondent or any of their affiliates any fees or
compensation for services rendered to the Company prior to, or in
connection with, either this Offering or the Business
Combination.
3.9.
Secondary Market Trading and Standard
& Poor’s
. If the Company does not maintain the
listing of the Public Securities on NASDAQ or another national
securities exchange, the Company will (i) apply to be included in
Standard & Poor’s Daily News and Corporation Records
Corporate Descriptions for a period of five years from the
consummation of a Business Combination, (ii) take such commercially
reasonable steps as may be necessary to obtain a secondary market
trading exemption for the Company’s securities in the State
of California and (iii) take such other action as may be reasonably
requested by the Representative to obtain a secondary market
trading exemption in such other states as may be requested by the
Representative; provided that no qualification shall be required in
any jurisdiction where, as a result thereof, the Company would be
subject to service of general process or to taxation as a foreign
corporation doing business in such jurisdiction.
3.10.
Investor Relations
Firm
. Promptly after the execution of a definitive agreement
for a Business Combination, the Company shall retain an investor
relations firm with the expertise necessary to assist the Company
both before and after the consummation of the Business Combination
for a term to be agreed upon by the Company and the
Representative.
3.11.
Reports
to the Representative
.
3.11.1.
Periodic
Reports, etc.
For a period of five years from the
Effective Date or until such earlier time upon which the Company is
required to be liquidated and dissolved, the Company will furnish
to the Representative and its counsel copies of such financial
statements and other periodic and special reports as the Company
from time to time furnishes generally to holders of any class of
its securities, and promptly furnish to the Representative: (i) a
copy of each periodic report the Company shall be required to file
with the Commission; (ii) a copy of every press release and every
news item and article with respect to the Company or its
affairs which was released by the Company; (iii) a copy of
each Current Report on Form 8-K and any Schedules 13D, 13G, 14D-1
or 13E-4 received or prepared by the Company; (iv) five copies of
each registration statement filed by the Company with the
Commission under the Securities Act; and (v) such additional
documents and information with respect to the Company and the
affairs of any future subsidiaries of the Company as the
Representative may from time to time reasonably request; provided
that the Representative shall sign, if requested by the Company, a
Regulation FD compliant confidentiality agreement which is
reasonably acceptable to the Representative and its counsel in
connection with the Representative’s receipt of such
information. Documents filed with the Commission pursuant to
Electronic Data Gathering, Analysis and Retrieval System
(
“EDGAR”
) shall
be deemed to have been delivered to the Representative pursuant to
this section.
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3.11.2. For
a period of five years following the Effective Date or until such
earlier time upon which the Company is required to be liquidated,
the Company shall retain a transfer agent and warrant agent
acceptable to the Representative. CST&T is acceptable to the
Underwriters.
3.12.
Payment
of Expenses
. The Company hereby agrees to pay on each
of the Closing Date and the Option Closing Date, if any, to the
extent not paid at Closing Date, or such later date as may be
agreed to by the Representative in its sole discretion, all fees
and expenses incident to the performance of the obligations of the
Company under this Agreement, including, but not limited to: (i)
the preparation, printing, filing and mailing (including the
payment of postage with respect to such mailing) of the
Registration Statement, the Statutory Prospectus, and the final
Prospectus and mailing of this Agreement and related documents,
including the cost of all copies thereof and any amendments thereof
or supplements thereto supplied to the Underwriters in quantities
as may be required by the Underwriters; (ii) the printing,
engraving, issuance and delivery of the Units, Common Stock, Rights
and Warrants
included
in the Units, including any transfer or other taxes payable
thereon; (iii) NASDAQ filing fees or, if necessary, the
qualification of the Public Securities under state or foreign
securities or Blue Sky laws; (iv) fees and expenses (including
legal fees of the Representative’s counsel not to exceed
$15,000) incurred in registering the Offering with FINRA; (v) fees
and disbursements of the transfer, rights agent and warrant agent;
(vi) the preparation and delivery of transaction lucite cubes or
similar commemorative items in a style and quantity as reasonably
requested by the Representative
(not
to exceed $
3,000
)
; (vii)
all costs and expenses of the Company associated with “road
show” marketing and “due diligence” trips for the
Company’s management to meet with prospective investors,
including without limitation, all travel, food and lodging expenses
associated with such trips incurred by the Company or such
management; and (viii) all other costs and expenses customarily
borne by an issuer incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this
Section 3.12.
The Company also
agrees that it will pay for an investigative search firm of the
Representative’s choice to conduct an investigation of the
principals of the Company as shall be mutually selected by the
Representative and the Company (not to exceed $3,500 per individual
or $21,000 in the aggregate).
If the Offering is
consummated, the Representative may deduct from the net proceeds of
the Offering payable to the Company on the Closing Date the
expenses set forth above (which shall be mutually agreed upon
between the Company and the Representative prior to Closing) to be
paid by the Company to the Representative and others. If the
Offering is not consummated for any reason (other than a breach by
the Representative of any of its obligations hereunder), then the
Company shall reimburse the Representative in full for its
out-of-pocket accountable expenses actually incurred through such
date, including, without limitation, reasonable fees and
disbursements of counsel to the Representative. It is acknowledged
that the Company has already paid $25,000 to the Representative. To
the extent that the Representative’s out-of-pocket expenses
are less than this advance, the Representative shall refund the
excess to the Company.
3.13.
Application
of Net Proceeds
. The Company will apply the net
proceeds from this Offering received by it in a manner
substantially consistent with the application described under the
caption “Use of Proceeds” in the
Prospectus.
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3.14.
Delivery
of Earnings Statements to Security Holders
. The
Company will make generally available to its security holders as
soon as practicable, but not later than the first day of the
sixteenth full calendar month following the Effective Date, an
earnings statement (which need not be certified by independent
public or independent certified public accountants unless required
by the Act or the Regulations, but which shall satisfy the
provisions of Rule 158(a) under Section 11(a) of the Act)
covering a period of at least twelve consecutive months beginning
after the Effective Date.
3.15.
Notice
to FINRA
.
3.15.1.
Assistance
with Business Combination
. For a period of ninety days
following the Effective Date, in the event any person or entity
(regardless of any FINRA affiliation or association) is engaged to
assist the Company in its search for a Business Combination
candidate or to provide any similar Business Combination-related
services, the Company will provide the following information (the
“
Business Combination
Information
”) to the Representative:
(i) complete details of all services and copies of agreements
governing such services (which details or agreements may be
appropriately redacted to account for privilege or confidentiality
concerns); and (ii) justification as to why the person or
entity providing the Business Combination-related services should
not be considered an “underwriter and related person”
with respect to the Company’s initial public offering, as
such term is defined in Rule 5110 of FINRA’s Conduct
Rules. The Company also agrees that proper disclosure of
such arrangement or potential arrangement will be made in the proxy
statement which the Company will file for purposes of soliciting
stockholder approval for the Business Combination. Upon the
Company’s delivery of the Business Combination Information to
the Representative, the Company hereby expressly authorizes the
Representative to provide such information directly to FINRA as a
result of representations the Representative have made to FINRA in
connection with the Offering.
3.15.2.
Broker/Dealer
.
In the event the Company intends to register as a broker/dealer,
merge with or acquire a registered broker/dealer, or otherwise
become a member of FINRA, it shall promptly notify the
Representative.
3.16.
Stabilization
. Neither the
Company, nor, to its knowledge, any of its employees, officers,
directors or stockholders (without the consent of the
Representative) has taken or will take, directly or indirectly, any
action designed to or that has constituted or that might reasonably
be expected to cause or result in, under the Exchange Act, or
otherwise, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Units.
3.17.
Internal
Controls
. From and after the Closing Date, the Company
will maintain a system of internal accounting controls sufficient
to provide reasonable assurances that: (i) transactions are
executed in accordance with management’s general or specific
authorization; (ii) transactions are recorded as necessary in order
to permit preparation of financial statements in accordance with
GAAP and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management’s
general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect
to any differences.
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3.18.
Accountants
.
For a period of five years from the Effective Date or until such
earlier time upon which the Trust Account is required to be
liquidated, the Company shall retain Marcum or other independent
public accountants reasonably acceptable to the
Representative.
3.19.
Form
8-K’s
. The Company has retained
Marcum
to audit the
balance sheet of the Company as of the Closing Date (the
“
Audited Balance
Sheet
”) reflecting the receipt by the Company of the
proceeds of the Offering and the Private Placements. Within
four (4) Business Days of the Closing Date, the Company shall file
a Current Report on Form 8-K with the Commission, which Report
shall contain the Company’s Audited Balance Sheet. If the
Over-Allotment Option has not been exercised on the Effective Date,
the Company will also file an amendment to the Form 8-K, or a new
Form 8-K, to provide updated financial information of the Company
to reflect the exercise and consummation of the Over-Allotment
Option.
3.20.
FINRA
.
Until the Option Closing Date, if any, the Company shall advise the
Representative if it is aware that any 5% or greater stockholder of
the Company becomes an affiliate or associated person of a FINRA
member participating in the distribution of the Public
Securities.
3.21.
Corporate
Proceedings
. All corporate proceedings and other legal
matters necessary to carry out the provisions of this Agreement and
the transactions contemplated hereby shall have been done to the
reasonable satisfaction to counsel for the
Underwriters.
3.22.
Investment
Company
. The Company shall cause the proceeds of the
Offering to be held in the Trust Account to be invested only as set
forth in the Trust Agreement as in effect on the date hereof and
disclosed in the Prospectus. The Company will otherwise conduct its
business in a manner so that it will not become subject to the
Investment Company Act. Furthermore, once the Company consummates a
Business Combination, it will be engaged in a business other than
that of investing, reinvesting, owning, holding or trading
securities.
3.23.
Press
Releases
. The Company agrees that it will not issue press
releases or engage in any other publicity, without the
Representative’s prior written consent (not to be
unreasonably withheld), for a period of twenty-five (25) days after
the Closing Date; provided that in no event shall the Company be
prohibited from issuing any press release or engaging in any other
publicity required by law.
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3.24.
Electronic
Prospectus
. The Company shall cause to be prepared and
delivered to the Representative, at its expense, promptly, but in
no event later than two (2) Business Days from the effective date
of this Agreement, an Electronic Prospectus to be used by the
Underwriters in connection with the Offering. As used herein, the
term “
Electronic
Prospectus
” means a form of prospectus, and any
amendment or supplement thereto, that meets each of the following
conditions: (i) it shall be encoded in an electronic format,
satisfactory to the Representative, that may be transmitted
electronically by the other Underwriters to offerees and purchasers
of the Common Stock for at least the period during which a
Prospectus relating to the Common Stock is required to be delivered
under the Act; (ii) it shall disclose the same information as the
paper prospectus and prospectus filed pursuant to EDGAR, except to
the extent that graphic and image material cannot be disseminated
electronically, in which case such graphic and image material shall
be replaced in the electronic prospectus with a fair and accurate
narrative description or tabular representation of such material,
as appropriate; and (iii) it shall be in or convertible into a
paper format or an electronic format, satisfactory to the
Representative, that will allow recipients thereof to store and
have continuously ready access to the prospectus at any future
time, without charge to such recipients (other than any fee charged
for subscription to the Internet as a whole and for on-line time).
The Company hereby confirms that it has included or will include in
the Prospectus filed pursuant to EDGAR or otherwise with the
Commission and in the Registration Statement at the time it was
declared effective an undertaking that, upon receipt of a request
by an investor or his or her representative within the period when
a prospectus relating to the Common Stock is required to be
delivered under the Act, the Company shall transmit or cause to be
transmitted promptly, without charge, a paper copy of the
Prospectus.
3.25.
Future
Financings
. The Company agrees that neither it, nor any
successor or subsidiary of the Company, will consummate any public
or private equity or debt financing prior to or in connection with
the consummation of a Business Combination, unless all investors in
such financing expressly waive, in writing, any rights in or claims
against the Trust Account.
3.26.
NASDAQ
Maintenance
. Until the consummation of a Business
Combination, the Company will use commercially reasonable efforts
to maintain the listing by NASDAQ of the Units and the Common
Stock, Rights and Warrants included within the Units.
3.27.
Private
Placement Proceeds
. On the
Closing Date, the Company shall cause to be deposited
$2,500,000 of proceeds from the Private Placement into
the Trust Account. On the Option Closing Date, if any, the Company
shall cause to be deposited an amount of additional proceeds from
the additional Private
Units
sold
on the Option Closing Date into the Trust Account such that the
amount of funds in the Trust Account shall be $10.00 per Public
Share sold in the Offering.
3.28.
Reservation of
Shares
. The Company will reserve and keep
available that maximum number of its authorized but unissued
securities which are issuable pursuant to the Rights, Warrants, the
Private Rights, the Private Warrants, the Representative’s
Rights and the Representative’s Warrants outstanding from
time to time.
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3.29.
Testing-the-Waters
Communications
. If at any time
following the distribution of any Written Testing-the-Waters
Communication, there occurred or occurs an event or development as
a result of which such Written Testing-the-Waters Communication
included or would include any untrue statement of a material fact
or omitted or would omit to state any material fact necessary to
make the statements therein in light of the circumstances existing
at that subsequent time, not misleading, the Company will promptly
(i) notify the Representative so that use of the Written
Testing-the-Waters Communication may cease until it is amended or
supplemented; (ii) amend or supplement, at its own expense, such
Written Testing-the-Waters Communication to eliminate or correct
such untrue statement or omission; and (iii) supply any amendment
or supplement to the Representative in such quantities as may be
reasonably requested.
4.
Conditions
.
4.1.
Conditions
of Underwriters’ Obligations
. The obligations of
the several Underwriters to purchase and pay for the Public
Securities, as provided herein, shall be subject to the continuing
accuracy of the representations and warranties of the Company as of
the date hereof and as of the Closing Date and the Option Closing
Date, if any, to the accuracy of the statements of officers of the
Company made pursuant to the provisions hereof and to the
performance by the Company of its obligations hereunder and to the
following conditions:
4.1.1.
Regulatory
Matters
.
4.1.1.1.
Effectiveness
of Registration Statement
. The Registration Statement
shall have become effective not later than 5:00 p.m., New York
time, on the date of this Agreement or such later date and time as
shall be consented to in writing by the Representative, and, at the
Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings
for the purpose shall have been instituted or shall be pending or
contemplated by the Commission and any request on the part of the
Commission for additional information shall have been complied
with.
4.1.1.2.
FINRA
Clearance
. By the Effective Date, the Representative
shall have received clearance from FINRA as to the amount of
compensation allowable or payable to the Underwriters as described
in the Registration Statement.
4.1.1.3.
No
Commission Stop Order
. At the
Closing Date, the Commission has not issued any order or threatened
to issue any order preventing or suspending the use of any
Preliminary Prospectus, the Prospectus or any part thereof, and has
not instituted or, to the Company’s knowledge, threatened to
institute any proceedings with respect to such an
order.
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4.1.1.4.
NASDAQ
Listing
. The Public Securities shall have been approved for
listing on NASDAQ, subject to official notice of issuance and
evidence of satisfactory distribution.
4.1.2.
Company
Counsel Matters
.
4.1.2.1.
Opinion
of Company Counsel
. On each of the Closing Date or the
Option Closing Date, if any, the Representative shall have received
the favorable opinions (along with negative assurance letters) of
Akerman LLP, counsel to the Company, addressed to the
Representative as representative for the several Underwriters and
in form mutually agreed to by the Company and the
Representative.
4.1.2.2.
Reliance
.
In rendering such opinions, such counsel may rely: (i) as to
matters involving the application of laws other than the laws of
the United States and jurisdictions in which they are admitted, to
the extent such counsel deems proper and to the extent specified in
such opinion, if at all, upon an opinion or opinions (in form and
substance reasonably satisfactory to the Representative) of other
counsel reasonably acceptable to the Representative, familiar with
the applicable laws; and (ii) as to matters of fact, to the
extent they deem proper, on certificates or other written
statements of officers of the Company and officers of departments
of various jurisdiction having custody of documents respecting the
corporate existence or good standing of the Company, provided that
copies of any such statements or certificates shall be delivered to
the Underwriters’ counsel if requested. The opinions of
counsel for the Company and any opinion relied upon by such counsel
for the Company shall include a statement to the effect that it may
be relied upon by counsel for the Underwriters in its opinion
delivered to the Underwriters.
4.1.3.
Cold
Comfort Letter
. At the time this Agreement is
executed, and at the Closing Date and Option Closing Date, if any,
the Representative shall have received a letter, addressed to the
Representative as representative for the several Underwriters and
in form and substance satisfactory in all respects (including the
non-material nature of the changes or decreases, if any, referred
to in clause (iii) below) to the Representative from
Marcum
dated,
respectively, as of the date of this Agreement and as of the
Closing Date and Option Closing Date, if any:
(i) Confirming
that they are independent accountants with respect to the Company
within the meaning of the Act and the applicable Regulations and
that they have not, during the periods covered by the financial
statements included in the Registration Statement and the
Prospectus, provided to the Company any non-audit services, as such
term is used in Section 10A(g) of the Exchange
Act;
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(ii) Stating
that in their opinion the financial statements of the Company
included in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the Act and the published Regulations
thereunder;
(iii) Stating
that, on the basis of a limited review which included a reading of
the latest available unaudited interim financial statements of the
Company (with an indication of the date of the latest available
unaudited interim financial statements), a reading of the latest
available minutes of the stockholders and board of directors and
the various committees of the board of directors, consultations
with officers and other employees of the Company responsible for
financial and accounting matters and other specified procedures and
inquiries, nothing has come to their attention which would lead
them to believe that: (a) the unaudited financial statements of the
Company included in the Registration Statement and the Prospectus
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the Regulations
or are not fairly presented in conformity with GAAP applied on a
basis substantially consistent with that of the audited financial
statements of the Company included in the Registration Statement,
the Statutory Prospectus and the Prospectus; or (b) at a date
immediately prior to the Effective Date or Closing Date, as the
case may be, there was any change in the capital stock or long-term
debt of the Company, or any decrease in the stockholders’
equity of the Company as compared with amounts shown in the
September 30, 2017 balance sheet included in the Registration
Statement, other than as set forth in or contemplated by the
Registration Statement, or, if there was any decrease, setting
forth the amount of such decrease, and (c) during the period from
September 18, 2017 to a specified date immediately prior to the
Effective Date or Closing Date, as the case may be, there was any
changes in revenues, net earnings (losses), or net earnings
(losses) per share of Common Stock, in each case as compared with
the Statement of Operations for the period from September 18, 2017
(inception) to September 30, 2017 included in the Registration
Statement, or, if there was any such change, setting forth the
amount of such change;
(iv) Stating
that they have compared specific dollar amounts, numbers of shares,
percentages of revenues and earnings, statements and other
financial information pertaining to the Company set forth in the
Registration Statement in each case to the extent that such
amounts, numbers, percentages, statements and information may be
derived from the general accounting records, including work sheets,
of the Company and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries and other appropriate
procedures (which procedures do not constitute an examination in
accordance with generally accepted auditing standards) set forth in
the letter and found them to be in agreement; and
(v) Statements
as to such other matters incident to the transaction contemplated
hereby as the Representative may reasonably request.
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4.1.4.
Officers’
Certificates
.
4.1.4.1.
Officers’
Certificate
. As of each of the Closing Date and the
Option Closing Date, if any, the Representative shall have received
a certificate of the Company signed by the Chairman of the Board,
President or Chief Financial Officer (in their capacities as such),
respectively, to the effect that the Company has performed all
covenants and complied with all conditions required by this
Agreement to be performed or complied with by the Company prior to
and as of the Closing Date and that the conditions set forth in
this Section 4 hereof have been satisfied as of such date and
that, as of Closing Date, the representations and warranties of the
Company set forth in Section 2 hereof are true and
correct. In addition, the Representative will have received
such other and further certificates of officers of the Company as
the Representative may reasonably request.
4.1.4.2.
Secretary’s
Certificate
. As of each of the Closing Date and the
Option Closing Date, if any, the Representative shall have received
a certificate of the Company signed by the President of the
Company, respectively, certifying: (i) that the Amended and
Restated Certificate of Incorporation and Bylaws of the Company are
true and complete, have not been modified and are in full force and
effect; (ii) that the resolutions relating to the Offering are in
full force and effect and have not been modified; (iii) all
correspondence between the Company or its counsel and the
Commission; (iv) all correspondence between the Company or its
counsel and NASDAQ; and (v) as to the incumbency of the officers of
the Company. The documents referred to in such certificate
shall be attached to such certificate.
4.1.5.
No
Material Changes
. Prior to each of the Closing Date
and the Option Closing Date, if any: (i) there shall have been no
material adverse change or development involving a material adverse
change in the condition or prospects or the business activities,
financial or otherwise, of the Company from the latest dates as of
which such condition is set forth in the Registration Statement,
the Statutory Prospectus and Prospectus; (ii) no action suit or
proceeding, at law or in equity, shall have been pending or
threatened against the Company or any Respondent before or by any
court or foreign, federal or state commission, board or other
administrative agency wherein an unfavorable decision, ruling or
finding may materially adversely affect the business, operations,
prospects or financial condition or income of the Company, except
as set forth in the Registration Statement, the Statutory
Prospectus and Prospectus; (iii) no stop order shall have been
issued under the Act against the Company and no proceedings
therefor shall have been initiated or threatened by the Commission;
and (iv) the Registration Statement, the Statutory Prospectus and
the Prospectus and any amendments or supplements thereto shall
contain all material statements which are required to be stated
therein in accordance with the Act and the Regulations and shall
conform in all material respects to the requirements of the Act and
the Regulations, and none of the Registration Statement, the
Statutory Prospectus or the Prospectus, or any amendment or
supplement thereto shall contain any untrue statement of a material
fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein (in the case of
the Statutory Prospectus and Prospectus, in light of the
circumstances under which they were made), not
misleading.
4.1.6.
Delivery
of Agreements and Securities
. On the Effective Date, the
Company shall have delivered to the Representative executed copies
of the Trust Agreement, the Subscription Agreement, the Escrow
Agreement, the Services Agreement, the Business Combination
Marketing Agreement, the Rights Agreement, the Warrant Agreement,
the Registration Rights Agreement and all of the Insider Letters.
On the Closing Date, the Company shall have delivered to the
Representative the Representative’s Purchase Option and the
Representative’s Shares.
4.1.7.
Private
Units
. On the Closing Date and the Option Closing Date, as
applicable, the Private
Units have been
purchased
as provided for in the Subscription Agreement and
the purchase price for such securities shall be deposited into the
Trust Account.
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5.
Indemnification
.
5.1.
Indemnification
of Underwriters
.
5.1.1.
General
.
Subject to the conditions set forth below, the Company agrees to
indemnify and hold harmless each of the Underwriters and each
dealer selected by the Representative that participates in the
offer and sale of the Public Securities (each a “
Selected Dealer
”) and each of
their respective directors, officers, partners and employees and
each person, if any, who controls any such Underwriter or Selected
Dealer (“
Controlling
Person
”) within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, and its counsel,
against any and all loss, liability, claim, damage and expense
whatsoever (including but not limited to any and all legal or other
expenses reasonably incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or
any claim whatsoever, whether arising out of any action between any
of the Underwriters and the Company or between any of the
Underwriters and any third party or otherwise) to which they or any
of them may become subject under the Act, the Exchange Act or any
other foreign, federal, state or local statute, law, rule,
regulation or ordinance or at common law or otherwise or under the
laws, rules and regulation of foreign countries, arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in (i) any Preliminary Prospectus, the
Registration Statement, or the Prospectus (as from time to time
each may be amended and supplemented); (ii) in any post-effective
amendment or amendments or any new registration statement and
prospectus relating to any of the Public Securities; or (iii) any
application or other document or written communication (in this
Section 5 collectively called “
application
”) executed by the
Company or based upon written information furnished by the Company
in any jurisdiction in order to qualify the Public Securities under
the securities laws thereof or filed with the Commission, any
foreign or state securities commission or agency, NASDAQ (in each
case other than statements contained in the section captioned
“Selling Restrictions”); or the omission or alleged
omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, unless
such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company with
respect to an Underwriter by or on behalf of such Underwriter
expressly for use in any Preliminary Prospectus, the Registration
Statement the Prospectus or any amendment or supplement thereof, or
in any application, as the case may be, which furnished written
information, it is expressly agreed, consists solely of the
information described in clause (ii) of the last sentence of
Section 2.3.1. With respect to any untrue statement or
omission or alleged untrue statement or omission made in the
Preliminary Prospectus, the indemnity agreement contained in this
paragraph shall not inure to the benefit of any Underwriter to the
extent that any loss, liability, claim, damage or expense of such
Underwriter results from the fact that a copy of the Prospectus was
not given or sent to the person asserting any such loss, liability,
claim or damage at or prior to the written confirmation of sale of
the Public Securities to such person as required by the Act and the
Regulations, and if the untrue statement or omission has been
corrected in the Prospectus, unless such failure to deliver the
Prospectus was a result of non-compliance by the Company with its
obligations under Section 3.5 hereof. The Company agrees promptly
to notify the Representative of the commencement of any litigation
or proceedings against the Company or any of its officers,
directors or controlling persons in connection with the issue and
sale of the Public Securities or in connection with the Preliminary
Prospectus, the Registration Statement or the
Prospectus.
5.1.2.
Procedure
.
If any action is brought against an Underwriter or controlling
person in respect of which indemnity may be sought against the
Company pursuant to Section 5.1.1, such Underwriter shall
promptly notify the Company in writing of the institution of such
action and the Company shall assume the defense of such action,
including the employment and fees of counsel (subject to the
reasonable approval of such Underwriter) and payment of actual
expenses. Such Underwriter or controlling person shall have
the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of
such Underwriter or such controlling person unless: (i) the
employment of such counsel at the expense of the Company shall have
been authorized in writing by the Company in connection with the
defense of such action; (ii) the Company shall not have employed
counsel to have charge of the defense of such action; or (iii)
counsel to such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which
are different from or additional to those available to the Company
(in which case the Company shall not have the right to direct the
defense of such action on behalf of the indemnified party or
parties), in any of which events the reasonable fees and expenses
of not more than one additional firm of attorneys selected by the
Underwriter and/or controlling person shall be borne by the
Company. Notwithstanding anything to the contrary contained
herein, if the Underwriter or controlling person shall assume the
defense of such action as provided above, the Company shall have
the right to approve the terms of any settlement of such action
which approval shall not be unreasonably withheld.
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5.2.
Indemnification
of the Company
. Each Underwriter, severally and not
jointly, agrees to indemnify and hold harmless the Company, its
directors, officers, and employees and agents who control the
Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and its counsel, against any
and all loss, liability, claim, damage and expense described in the
foregoing indemnity from the Company to the several Underwriters,
as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions made in the
Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto, or in any application, in
reliance upon, and in strict conformity with, written information
furnished to the Company with respect to such Underwriter by or on
behalf of the Underwriter expressly for use in such Registration
Statement, Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto or in any such application, which furnished
written information, it is expressly agreed, consists solely of the
information described in clause (ii) of the last sentence of
Section 2.3.1. In case any action shall be brought against
the Company or any other person so indemnified based on any
Preliminary Prospectus, the Registration Statement, the Prospectus
or any amendment or supplement thereto or any application, and in
respect of which indemnity may be sought against any Underwriter,
such Underwriter shall have the rights and duties given to the
Company, and the Company and each other person so indemnified shall
have the rights and duties given to the several Underwriters by the
provisions of Section 5.1.2.
5.3.
Contribution
.
5.3.1.
Contribution
Rights
. In order to provide for just and equitable
contribution under the Act in any case in which (i) any person
entitled to indemnification under this Section 5 makes claim
for indemnification pursuant hereto but it is judicially determined
(by the entry of a final judgment or decree by a court of competent
jurisdiction and the expiration of time to appeal or the denial of
the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this
Section 5 provides for indemnification in such case, or (ii)
contribution under the Act, the Exchange Act or otherwise may be
required on the part of any such person in circumstances for which
indemnification is provided under this Section 5 but is
unavailable, then, and in each such case, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities,
claims, damages and expenses of the nature contemplated by said
indemnity agreement incurred by the Company and the Underwriters,
as incurred, in such proportions that the Underwriters are
responsible for that portion represented by the percentage that the
underwriting discount appearing on the cover page of the Prospectus
bears to the initial offering price appearing thereon and the
Company is responsible for the balance; provided, that, no person
guilty of a fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this
Section 5.3.1, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at
which the Public Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay in
respect of such losses, liabilities, claims, damages and
expenses. For purposes of this Section, each director,
officer and employee of an Underwriter or the Company, as
applicable, and each person, if any, who controls an Underwriter or
the Company, as applicable, within the meaning of Section 15
of the Act shall have the same rights to contribution as the
Underwriters or the Company, as applicable.
EarlyBirdCapital,
Inc.
November
20, 2017
Page 30
of 36
5.3.2.
Contribution
Procedure
. Within fifteen days after receipt by any
party to this Agreement (or its representatives) of notice of the
commencement of any action, suit or proceeding, such party will, if
a claim for contribution in respect thereof is to be made against
another party (“
contributing
party
”), notify the contributing party of the
commencement thereof, but the omission to so notify the
contributing party will not relieve it from any liability which it
may have to any other party other than for contribution
hereunder. In case any such action, suit or proceeding is
brought against any party, and such party notifies a contributing
party or its representatives of the commencement thereof within the
aforesaid fifteen days, the contributing party will be entitled to
participate therein with the notifying party and any other
contributing party similarly notified. Any such contributing
party shall not be liable to any party seeking contribution on
account of any settlement of any claim, action or proceeding
effected by such party seeking contribution on account of any
settlement of any claim, action or proceeding effected by such
party seeking contribution without the written consent of such
contributing party. The contribution provisions contained in
this Section are intended to supersede, to the extent
permitted by law, any right to contribution under the Act, the
Exchange Act or otherwise available. The Underwriters’
obligations to contribute pursuant to this Section 5.3 are
several and not joint.
6.
Default by an
Underwriter
.
6.1.
Default Not Exceeding 10%
of Firm Units
. If any Underwriter or Underwriters
shall default in its or their obligations to purchase the Firm
Units and if the number of the Firm Units with respect to which
such default relates does not exceed in the aggregate 10% of the
number of Firm Units that all Underwriters have agreed to purchase
hereunder, then such Firm Units to which the default relates shall
be purchased by the non-defaulting Underwriters in proportion to
their respective commitments hereunder.
6.2.
Default
Exceeding 10% of Firm Units
. In the event that the
default addressed in Section 6.1 above relates to more than 10% of
the Firm Units, the Representative may, in its discretion, arrange
for it or for another party or parties to purchase such Firm Units
to which such default relates on the terms contained herein.
If within one (1) Business Day after such default relating to more
than 10% of the Firm Units the Representative does not arrange for
the purchase of such Firm Units, then the Company shall be entitled
to a further period of one (1) Business Day within which to procure
another party or parties satisfactory to the Representative to
purchase said Firm Units on such terms. In the event that
neither the Representative nor the Company arrange for the purchase
of the Firm Units to which a default relates as provided in this
Section 6, this Agreement may be terminated by the
Representative or the Company without liability on the part of the
Company (except as provided in Sections 3.12 and 5 hereof) or the
several Underwriters (except as provided in Section 5 hereof);
provided
that nothing
herein shall relieve a defaulting Underwriter of its liability, if
any, to the other several Underwriters and to the Company for
damages occasioned by its default hereunder.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
31
of
36
6.3.
Postponement
of Closing Date
. In the event that the Firm Units to
which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as
aforesaid, the Representative or the Company shall have the right
to postpone the Closing Date for a reasonable period, but not in
any event exceeding five (5) Business Days, in order to effect
whatever changes may thereby be made necessary in the Registration
Statement and/or the Prospectus, as the case may be, or in any
other documents and arrangements, and the Company agrees to file
promptly any amendment to, or to supplement, the Registration
Statement and/or the Prospectus, as the case may be, that in the
reasonable opinion of counsel for the Underwriters may thereby be
made necessary. The term “Underwriter” as used in this
Agreement shall include any party substituted under this
Section 6 with like effect as if it had originally been a
party to this Agreement with respect to such
securities.
7.
Additional
Covenants
.
7.1.
Additional Shares or
Options
. Except as described in the Registration
Statement, the Company hereby agrees that until the Company
consummates a Business Combination, it shall not issue any Common
Stock or any options or other securities convertible into Common
Stock or any shares of preferred stock which participate in any
manner in the Trust Account or which vote on a Business
Combination.
7.2.
Trust
Account Waiver Acknowledgments
. The Company hereby agrees
that, prior to commencing its due diligence investigation of any
Target Business or obtaining the services of any vendor, it will
use its best efforts to have such Target Business or vendor
acknowledge in writing, whether through a letter of intent,
memorandum of understanding, agreement in principle or other
similar document (and subsequently acknowledges the same in any
definitive document replacing any of the foregoing), that (a) it
has read the Prospectus, and understands that the Company has
established the Trust Account, initially in an amount of
$60,000,000 for the benefit of the Public Stockholders
and that, except for the interest earned on the amounts held in the
Trust Account that may be released to the Company for its tax
obligations, the Company may disburse monies from the Trust Account
only: (i) to the Public Stockholders in the event of the conversion
or sale of their shares upon consummation of a Business Combination
or certain amendments to the Company’s Amended and Restated
Certificate of Incorporation, (ii) to the Public Stockholders in
connection with the Company’s
liquidation
in the event the Company is
unable to consummate a Business Combination within the required
time period or (iii) to the Company concurrently with, or after it
consummates a Business Combination, and (b) for and in
consideration of the Company (1) agreeing to evaluate such Target
Business for purposes of consummating a Business Combination with
it or (2) agreeing to engage the services of the vendor, as the
case may be, such Target Business or vendor agrees that it does not
have any right, title, interest or claim of any kind in or to any
monies of the Trust Account (“
Claim
”) and waives any Claim it
may have in the future as a result of, or arising out of, any
negotiations, contracts or agreements with the Company and will not
seek recourse against the Trust Account for any reason whatsoever.
The foregoing letters shall
substantially be in the form attached hereto as
Exhibit
A
and
B
,
respectively.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
32
of
36
7.3.
Insider
Letters
. The Company shall not take any action or omit
to take any action which would cause a breach of any of the Insider
Letters executed between each Respondent and the Representative and
will not allow any amendments to, or waivers of, such Insider
Letters without the prior written consent of the
Representative.
7.4.
Tender
Offer, Proxy and Other Information
. The Company shall
provide the Representative with copies of all proxy or tender offer
documentation and other information and all related material sent
to Public Stockholders in connection with a Business
Combination.
7.5.
Rule
419
. The Company agrees that it will use its best efforts to
prevent the Company from becoming subject to Rule 419 under the Act
prior to the consummation of any Business Combination, including,
but not limited to, using its best efforts to prevent any of the
Company’s outstanding securities from being deemed to be a
“penny stock” as defined in Rule 3a-51-1 under the
Exchange Act during such period.
7.6.
Presentation
of Potential Target Businesses
. The Company shall
cause each of the Respondents to agree that, in order to minimize
potential conflicts of interest which may arise from multiple
affiliations, the Respondents will present to the Company for its
consideration, prior to presentation to any other person or
company, any suitable opportunity to acquire an operating business,
until the earlier of the consummation by the Company of a Business
Combination or the liquidation of the Trust Account, subject to any
pre-existing fiduciary obligations the Respondents might
have.
7.7.
Target
Fair Market Value
. The Company agrees that the Target
Business that it acquires must have a fair market value equal to at
least 80% of the balance in the Trust Account (excluding any taxes)
at the time of signing the definitive agreement for the Business
Combination with such Target Business. The fair market value of
such business must be determined by the Board of Directors of the
Company based upon standards generally accepted by the financial
community, such as actual and potential sales, earnings, cash flow
and book value. If the Board of Directors of the Company is not
able to independently determine that the target business meets such
fair market value requirement, the Company will obtain an opinion
from an unaffiliated, 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.
The Company is not required to obtain such an opinion as to the
fair market value if the Company’s Board of Directors
independently determines that the Target Business does have
sufficient fair market value.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
33
of
36
8.
Representations and
Agreements to Survive Delivery
. Except as the context
otherwise requires, all representations, warranties and agreements
contained in this Agreement shall be deemed to be representations,
warranties and agreements at the Closing Date or Option Closing
Date, as applicable, and such representations, warranties and
agreements of the Underwriters and Company, including the indemnity
agreements contained in Section 5 hereof, shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter, the Company
or any controlling person, and shall survive termination of this
Agreement or the issuance and delivery of the Public Securities to
the several Underwriters until the earlier of the expiration of any
applicable statute of limitations and the seventh (7th) anniversary
of the Closing Date, at which time the representations, warranties
and agreements shall terminate and be of no further force and
effect.
9.
Effective Date of This Agreement and
Termination Thereof
.
9.1.
Effective
Date
. This Agreement shall become effective on the
Effective Date at the time the Registration Statement is declared
effective by the Commission.
9.2.
Termination
.
The Representative shall have the right to terminate this Agreement
at any time prior to any Closing Date: (i) if any domestic or
international event or act or occurrence has materially disrupted
or, in the Representative’s sole opinion, will in the
immediate future materially disrupt, general securities markets in
the United States; or (ii) if trading on the New York Stock
Exchange, the NYSE MKT LLC, NASDAQ or on the OTC Bulletin Board (or
successor trading market) shall have been suspended, or minimum or
maximum prices for trading shall have been fixed, or maximum ranges
for prices for securities shall have been fixed, or maximum ranges
for prices for securities shall have been required on the OTC
Bulletin Board or by order of the Commission or any other
government authority having jurisdiction, or (iii) if the United
States shall have become involved in a war or an increase in
existing major hostilities, or (iv) if a banking moratorium has
been declared by a New York State or federal authority, or (v) if a
moratorium on foreign exchange trading has been declared which
materially adversely impacts the United States securities market,
or (vi) if the Company shall have sustained a material loss by
fire, flood, accident, hurricane, earthquake, theft, sabotage or
other calamity or malicious act which, whether or not such loss
shall have been insured, will, in the Representative’s sole
opinion, make it inadvisable to proceed with the delivery of the
Common Stock, (vii) if any of the Company’s representations,
warranties or covenants hereunder are breached, or (viii) if the
Representative shall have become aware after the date hereof of a
Material Adverse Effect on the Company, or such adverse material
change in general market conditions, including, without limitation,
as a result of terrorist activities after the date hereof, as in
the Representative’s sole judgment would make it
impracticable to proceed with the offering, sale and/or delivery of
the Common Stock or to enforce contracts made by the Underwriters
for the sale of the Common Stock.
9.3.
Expenses
.
In the event that this Agreement shall not be carried out for any
reason whatsoever, within the time specified herein or any
extensions thereof pursuant to the terms herein, the obligations of
the Company to pay the out of pocket expenses related to the
transactions contemplated herein shall be governed by
Section 3.12 hereof.
9.4.
Indemnification
.
Notwithstanding any contrary provision contained in this Agreement,
any election hereunder or any termination of this Agreement, and
whether or not this Agreement is otherwise carried out, the
provisions of Section 5 shall not be in any way effected by,
such election or termination or failure to carry out the terms of
this Agreement or any part hereof.
10.
Miscellaneous
.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
34
of
36
10.1.
Notices
.
All communications hereunder, except as herein otherwise
specifically provided, shall be in writing and shall be mailed by
certified mail (with return receipt), delivered by hand or
reputable overnight courier, delivered by facsimile transmission
(with printed confirmation of receipt) and confirmed, or by
electronic transmission via PDF and shall be deemed given when so
mailed, delivered, or faxed or transmitted (or if mailed, five days
after such mailing):
If to
the Representative:
EarlyBirdCapital,
Inc.
366
Madison Avenue
New
York, New York 10017
Fax
No.: (212) 661-4936
Attn:
Steven Levine
Email:
slevine@ebcap.com
With a
copy (which shall not constitute notice) to:
Graubard
Miller
405
Lexington Avenue
New
York, New York 10174
Fax
No.: (212) 818-8881
Attn:
David Alan Miller, Esq.
Email:
dmiller@graubard.com
If to
the Company, to:
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Attn:
Richard Ackerman, Chief Executive Officer
Email:
rackerman@bigrockpartners.com
With a
copy (which shall not constitute notice) to:
Akerman
LLP
Three
Brickell City Centre
98
Southeast Seventh Street
Suite
1100
Miami,
Florida 33131
Fax
No.: (305) 374-5095
Attn:
Michael Francis, Esq.
Email:
michael.francis@akerman.com
10.2.
Headings
.
The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of
this Agreement.
10.3.
Amendment
.
This Agreement may only be amended by a written instrument executed
by each of the parties hereto.
10.4.
Entire
Agreement
. This Agreement (together with the other
agreements and documents being delivered pursuant to or in
connection with this Agreement) constitute the entire agreement of
the parties hereto with respect to the subject matter hereof and
thereof, and supersede all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter
hereof.
10.5.
Binding
Effect
. This Agreement shall inure solely to the
benefit of and shall be binding upon the Representative, the
Underwriters, the Company and the controlling persons, directors
and officers referred to in Section 5 hereof, and their
respective successors, legal representatives and assigns, and no
other person shall have or be construed to have any legal or
equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provisions herein
contained.
EarlyBirdCapital,
Inc.
November
20, 2017
Page
35
of
36
10.6.
Governing
Law, Venue, etc.
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
conflict of laws. Each of the Company and the Representative hereby
agrees that any action, proceeding or claim against it arising out
of, relating in any way to this Agreement 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. Each of the Company and the Representative 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 or the Representative, respectively,
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 10.1 hereof.
Such mailing shall be deemed personal service and shall be legal
and binding upon the Company or the Representative, respectively,
in any action, proceeding or claim. Each of the Company and the
Representative agrees that the prevailing party(ies) in any such
action shall be entitled to recover from the other party(ies) all
of its reasonable attorneys’ fees and expenses relating to
such action or proceeding and/or incurred in connection with the
preparation therefor.
10.7.
Execution
in Counterparts
. This Agreement may be executed in one
or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and
the same agreement, and shall become effective when one or more
counterparts has been signed by each of the parties hereto and
delivered to each of the other parties hereto. Delivery of a signed
counterpart of this Agreement by fax or email/.pdf transmission
shall constitute valid and sufficient delivery
thereof.
10.8.
Waiver,
etc.
The failure of any of the parties hereto to at
any time enforce any of the provisions of this Agreement shall not
be deemed or construed to be a waiver of any such provision, nor to
in any way affect the validity of this Agreement or any provision
hereof or the right of any of the parties hereto to thereafter
enforce each and every provision of this Agreement. No waiver
of any breach, non-compliance or non-fulfillment of any of the
provisions of this Agreement shall be effective unless set forth in
a written instrument executed by the party or parties against whom
or which enforcement of such waiver is sought; and no waiver of any
such breach, non-compliance or non-fulfillment shall be construed
or deemed to be a waiver of any other or subsequent breach,
non-compliance or non-fulfillment.
10.9.
No
Fiduciary Relationship
. The Company hereby acknowledges that
the Underwriters are acting solely as underwriters in connection
with the offering of the Public Securities. The Company further
acknowledges that the Underwriters are acting pursuant to a
contractual relationship created solely by this Agreement entered
into on an arm's length basis and in no event do the parties intend
that the Underwriters act or be responsible as a fiduciary to the
Company, its management, stockholders, creditors or any other
person in connection with any activity that the Underwriters may
undertake or have undertaken in furtherance of the offering of the
Public Securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim any fiduciary or similar
obligations to the Company, either in connection with the
transactions contemplated by this Agreement or any matters leading
up to such transactions, and the Company hereby confirms its
understanding and agreement to that effect. The Company and the
Underwriters agree that they are each responsible for making their
own independent judgments with respect to any such transactions,
and that any opinions or views expressed by the Underwriters to the
Company regarding such transactions, including but not limited to
any opinions or views with respect to the price or market for the
Public Securities, do not constitute advice or recommendations to
the Company. The Company hereby waives and releases, to the fullest
extent permitted by law, any claims that the Company may have
against the Underwriters with respect to any breach or alleged
breach of any fiduciary or similar duty to the Company in
connection with the transactions contemplated by this Agreement or
any matters leading up to such transactions.
[Signature
Page Follows]
EarlyBirdCapital,
Inc.
November
20, 2017
Page
36
of
36
If
the foregoing correctly sets forth the understanding between the
Underwriters and the Company, please so indicate in the space
provided below for that purpose, whereupon this letter shall
constitute a binding agreement between us.
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Very Truly
Yours,
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BIG
ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
Chairman, President and Chief Executive Officer
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Agreed to and accepted
as of the date first written above:
EARLYBIRDCAPITAL, INC.
, as Representative of the several
Underwriters
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By: /s/
Steven Levine
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Name: Steven
Levine
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Title:
CEO
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[Signature
Page to Underwriting Agreement, dated November 20,
2017]
SCHEDULE A
BIG ROCK PARTNERS ACQUISITION CORP.
6,000,000
Units
|
Underwriter
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Number of Firm Units
to be Purchased
|
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EarlyBirdCapital,
Inc.
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5,400,000
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I-Bankers
Securities, Inc.
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600,000
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TOTAL
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6,000,000
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SCHEDULE B
EXHIBIT A
Form of Target Business Letter
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Ladies and Gentlemen:
Reference is made to the Final Prospectus
of
Big Rock Partners Acquisition Corp.
(the “
Company
”), dated November 20,
2017
(the
“
Prospectus
”). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the
Prospectus.
We have read the Prospectus and understand
that
the Company
has
established the Trust Account, initially in an amount of at least
$60
,000,000
, for
the benefit of the Public Stockholders and that, except for the
interest earned on the amounts held in the Trust Account that may
be released to pay for the Company’s tax obligations,
the Company
may disburse monies from
the Trust Account only: (i)
to the Public Stockholders in
the event of the conversion or sale of their shares upon
consummation of a Business Combination or certain amendments to the
Company’s Amended and Restated Certificate of Incorporation
as described in the Prospectus, (ii) to the Public Stockholders in
connection with the Company’s
liquidation
in the event the Company is
unable to consummate a Business Combination within the required
time period or (iii) to the Company concurrently with, or after it
consummates a Business Combination.
For and in consideration of
the Company
agreeing to evaluate the undersigned
for purposes of consummating a Business Combination with it, the
undersigned hereby agrees that it does not have any right, title,
interest or claim of any kind in or to any monies in the Trust
Account (each, a “
Claim
”) and hereby waives any Claim it may have
in the future as a result of, or arising out of, any negotiations,
contracts or agreements with
the Company
and will not seek recourse against the Trust
Account for any reason whatsoever.
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Print Name of Target Business
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Authorized Signature of Target Business
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EXHIBIT B
Form of Vendor Letter
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Ladies and Gentlemen:
Reference is made to the Final Prospectus
of
Big Rock Partners Acquisition Corp.
(the “
Company
”), dated November 20, 2017
(the “
Prospectus
”). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the
Prospectus.
We have read the Prospectus and understand
that
the Company
has
established the Trust Account, initially in an amount of at least
$60
,000,000
, for
the benefit of the Public Stockholders and that, except for the
interest earned on the amounts held in the Trust Account that may
be released to pay for the Company’s tax obligations,
the Company
may disburse monies from
the Trust Account only: (i)
to the Public Stockholders in
the event of the conversion or sale of their shares upon
consummation of a Business Combination or certain amendments to the
Company’s Amended and Restated Certificate of
Incorporation
as
described in the Prospectus, (ii) to the Public Stockholders in
connection with the Company’s
liquidation
in the event the Company is
unable to consummate a Business Combination within the required
time period or (iii) to the Company concurrently with, or after it
consummates a Business Combination
.
For and in consideration of
the Company
agreeing to use the services of the
undersigned, the undersigned hereby agrees that it does not have
any right, title, interest or claim of any kind in or to any monies
in the Trust Account (each, a “
Claim
”) and hereby waives any Claim it may have
in the future as a result of, or arising out of, any services
provided to
the Company
and
will not seek recourse against the Trust Account for any reason
whatsoever.
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Print Name of Vendor
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Authorized Signature of Vendor
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Exhibit 1.2
EARLYBIRDCAPITAL, INC.
366 Madison Avenue
New York, New York 10017
November
20, 2017
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Attn:
Richard Ackerman
Ladies
and Gentlemen:
This is
to confirm our agreement whereby Big Rock Partners Acquisition
Corp., a Delaware corporation (“
Company
”), has requested
EarlyBirdCapital, Inc. (the “
Advisor
”) to assist it in
connection with the Company merging with, acquiring, engaging in a
share exchange, share reconstruction and amalgamation, purchasing
all or substantially all of the assets of, entering into
contractual arrangements, or engaging in any other similar business
combination (in each case, a “
Business Combination
”) with one or
more businesses or entities (each a “
Target
”) as described in the
Company’s Registration Statement on Form S-1 (File No.
333-220947) filed with the Securities and Exchange Commission
(“
Registration
Statement
”) in connection with its initial public
offering (“
IPO
”).
1.
Services
and Fees
.
(a) The
Advisor will:
(i)
Hold meetings with
Company stockholders to discuss the Business Combination and the
Target’s attributes;
(ii)
Introduce the
Company to potential investors to purchase the Company’s
securities in connection with the Business
Combination;
(iii)
Assist the Company
in trying to obtain stockholder approval for the Business
Combination, including assistance with the Company’s proxy
statement or tender offer materials; and
(iv)
Assist the Company
with any press releases and filings related to the Business
Combination or the Target.
(b) As
compensation for the foregoing services, the Company will pay the
Advisor a cash fee equal to 4% of the gross proceeds received by
the Company in the IPO (“
Fee
”). The Fee shall be payable in
cash and is due and payable to the Advisor by wire transfer at the
closing of the Business Combination (“
Closing
”). If a proposed Business
Combination is not consummated for any reason, no Fee shall be due
or payable to the Advisor hereunder. The Fee shall be exclusive of
any finder’s fees which may become payable to the Advisor
pursuant to any other agreement between the Advisor and the Company
or the Target.
2.
Expenses
.
At the
Closing, the Company shall reimburse the Advisor for all reasonable
costs and expenses incurred by the Advisor (including reasonable
fees and disbursements of counsel) in connection with the
performance of its services hereunder; provided, however, all
expenses in excess of $5,000 in the aggregate shall be subject to
the Company’s prior written approval, which approval shall
not be unreasonably withheld.
3.
Company
Cooperation
.
The
Company will provide full cooperation to the Advisor as may be
necessary for the efficient performance by the Advisor of its
obligations hereunder, including, but not limited to, providing to
the Advisor and its counsel, on a timely basis, all documents and
information regarding the Company and Target that the Advisor may
reasonably request or that are otherwise relevant to the
Advisor’s performance of its obligations hereunder
(collectively, the “
Information
”); making the
Company’s management, auditors, suppliers, customers,
consultants and advisors available to the Advisor; and, using
commercially reasonable efforts to provide the Advisor with
reasonable access to the management, auditors, suppliers,
customers, consultants and advisors of Target. The Company will
promptly notify the Advisor of any change in facts or circumstances
or new developments affecting the Company or Target or that might
reasonably be considered material to the Advisor’s engagement
hereunder.
4.
Representations;
Warranties and Covenants
.
The
Company represents, warrants and covenants to the Advisor that all
Information it makes available to the Advisor by or on behalf of
the Company in connection with the performance of its obligations
hereunder will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make
statements made, in light of the circumstances under which they
were made, not misleading as of the date thereof and as of the
consummation of the Business Combination.
5.
Indemnity
.
The
Company shall indemnify the Advisor and its affiliates and
directors, officers, employees, shareholders, representatives and
agents in accordance with the indemnification provisions set forth
in Annex I hereto, all of which are incorporated herein by
reference.
Notwithstanding the
foregoing and Annex 1, the Advisor agrees, if there is no Closing,
(i) that it does not have any right, title, interest or claim of
any kind in or to any monies in the Company’s trust account
(“
Trust
Account
”) established in connection with the IPO with
respect to the Fee (each, a “
Claim
”); (ii) to waive any Claim
it may have in the future as a result of, or arising out of, any
services provided to the Company hereunder; and (iii) to not seek
recourse against the Trust Account with respect to the
Fee.
6.
Use
of Name and Reports
.
Without
the Advisor’s prior written consent, neither the Company nor
any of its affiliates (nor any director, officer, manager, partner,
member, employee or agent thereof) shall quote or refer to (i) the
Advisor’s name or (ii) any advice rendered by the Advisor to
the Company or any communication from the Advisor in connection
with performance of their services hereunder, except as required by
applicable federal or state law, regulation or securities exchange
rule.
7.
Status
as Independent Contractor
.
The
Advisor shall perform its services as an independent contractor and
not as an employee of the Company or affiliate thereof. It is
expressly understood and agreed to by the parties that the Advisor
shall have no authority to act for, represent or bind the Company
or any affiliate thereof in any manner, except as may be expressly
agreed to by the Company in writing. In rendering such services,
the Advisor will be acting solely pursuant to a contractual
relationship on an arm’s-length basis. This Agreement is not
intended to create a fiduciary relationship between the parties and
neither the Advisor nor any of the Advisor’s officers,
directors or personnel will owe any fiduciary duty to the Company
or any other person in connection with any of the matters
contemplated by this Agreement.
8.
Potential
Conflicts
.
The
Company acknowledges that the Advisor is a full-service securities
firm engaged in securities trading and brokerage activities and
providing investment banking and advisory services from which
conflicting interests may arise. In the ordinary course of
business, the Advisor and its affiliates may at any time hold long
or short positions, and may trade or otherwise effect transactions,
for their own account or the accounts of customers, in debt or
equity securities of the Company, its affiliates or other entities
that may be involved in the transactions contemplated hereby.
Nothing in this Agreement shall be construed to limit or restrict
the Advisor or any of its affiliates in conducting such
business.
9.
Entire
Agreement
.
This
Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect
thereto. This Agreement may not be modified or terminated orally or
in any manner other than by an agreement in writing signed by the
parties hereto.
10.
Notices
.
Any
notices required or permitted to be given hereunder shall be in
writing and shall be deemed given when mailed by certified mail or
private courier service, return receipt requested, addressed to
each party at its respective addresses set forth above, or such
other address as may be given by a party in a notice given pursuant
to this Section.
11.
Successors
and Assigns
.
This
Agreement may not be assigned by either party without the written
consent of the other. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and, except where
prohibited, to their successors and assigns.
12.
Non-Exclusivity
.
Nothing
herein shall be deemed to restrict or prohibit the engagement by
the Company of other consultants providing the same or similar
services or the payment by the Company of fees to such parties. The
Company’s engagement of any other consultant(s) shall not
affect the Advisor’s right to receive the Fee and
reimbursement of expenses pursuant to this Agreement.
13.
Applicable
Law; Venue
.
This
Agreement shall be construed and enforced in accordance with the
laws of the State of New York without giving effect to conflict of
laws.
In the
event of any dispute under this Agreement, then and in such event,
each party hereto agrees that the dispute shall be brought and
enforced in the courts of the State of New York, County of New York
under the accelerated adjudication procedures of the Commercial
Division, or the United States District Court for the Southern
District of New York, in each event at the discretion of the party
initiating the dispute. Each party irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each party
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 a party may be served by transmitting a
copy thereof by registered or certified mail, postage prepaid,
addressed to such party at the address set forth at the beginning
of this Agreement. Such mailing shall be deemed personal service
and shall be legal and binding upon the party being served in any
action, proceeding or claim. The parties agree that the prevailing
party(ies) in any such action shall be entitled to recover from the
other party(ies) all of its reasonable attorneys’ fees and
expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
14.
Counterparts
.
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.
If the
foregoing correctly sets forth the understanding between the
Advisor and the Company with respect to the foregoing, please so
indicate your agreement by signing in the place provided below, at
which time this letter shall become a binding
contract.
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EARLYBIRDCAPITAL,
INC.
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By:
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/s/ Steven
Levine
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Name:
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Steven
Levine
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Title:
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CEO
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AGREED
AND ACCEPTED BY:
BIG
ROCK PARTNERS ACQUISITION CORP.
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By: /s/
Richard Ackerman
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Name: Richard
Ackerman
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Title:
Chairman, President and Chief Executive
Officer
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[Signature
Page to Business Combination Marketing Agreement]
ANNEX
I
Indemnification
In
connection with the Company's engagement of EarlyBirdCapital, Inc.
(the “
Advisor
”)
pursuant to that certain letter agreement (“
Agreement
”) of which this Annex
forms a part, Big Rock Partners Acquisition Corp. (the
“
Company
”)
hereby agrees, subject to the second paragraph of Section 5 of the
Agreement, to indemnify and hold harmless the Advisor and its
affiliates and its respective directors, officers, shareholders,
agents and employees of any of the foregoing (collectively the
“
Indemnified
Persons
”), from and against any and all claims,
actions, suits, proceedings (including those of stockholders),
damages, liabilities and expenses incurred by any of them
(including the reasonable fees and expenses of counsel), as
incurred, (collectively a “
Claim
”), that (A) are related to
or arise out of (i) any actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to
be made) by the Company, or (ii) any actions taken or omitted to be
taken by any Indemnified Person in connection with the Company's
engagement of the Advisor, or (B) otherwise relate to or arise out
of the Advisor's activities on the Company's behalf under the
Advisor's engagement, and the Company shall reimburse any
Indemnified Person for all expenses (including the reasonable fees
and expenses of counsel) as incurred by such Indemnified Person in
connection with investigating, preparing or defending any such
claim, action, suit or proceeding, whether or not in connection
with pending or threatened litigation in which any Indemnified
Person is a party. The Company will not, however, be responsible
for any Claim that is finally judicially determined to have
resulted from the gross negligence or willful misconduct of any
person seeking indemnification for such Claim. The Company further
agrees that no Indemnified Person shall have any liability to the
Company for or in connection with the Company's engagement of the
Advisor except for any Claim incurred by the Company as a result of
such Indemnified Person's gross negligence or willful
misconduct.
The
Company further agrees that it will not, without the prior written
consent of the Advisor, settle, compromise or consent to the entry
of any judgment in any pending or threatened Claim in respect of
which indemnification may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such Claim),
unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from
any and all liability arising out of such Claim.
Promptly upon
receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person
shall notify the Company in writing of such complaint or of such
assertion or institution but failure to so notify the Company shall
not relieve the Company from any obligation it may have hereunder,
except and only to the extent such failure results in the
forfeiture by the Company of substantial rights and defenses. If
the Company so elects or is requested by such Indemnified Person,
the Company will assume the defense of such Claim, including the
employment of counsel reasonably satisfactory to such Indemnified
Person and the payment of the fees and expenses of such counsel. In
the event, however, that legal counsel to such Indemnified Person
reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or
target of, any such Claim, includes an Indemnified Person and the
Company, and legal counsel to such Indemnified Person reasonably
concludes that there may be legal defenses available to it or other
Indemnified Persons different from or in addition to those
available to the Company, then such Indemnified Person may employ
its own separate counsel to represent or defend him, her or it in
any such Claim and the Company shall pay the reasonable fees and
expenses of such counsel. Notwithstanding anything herein to the
contrary, if the Company fails timely or diligently to defend,
contest, or otherwise protect against any Claim, the relevant
Indemnified Party shall have the right, but not the obligation, to
defend, contest, compromise, settle, assert crossclaims, or
counterclaims or otherwise protect against the same, and shall be
fully indemnified by the Company therefor, including without
limitation, for the reasonable fees and expenses of its counsel and
all amounts paid as a result of such Claim or the compromise or
settlement thereof.
In
addition, with respect to any Claim in which the Company assumes
the defense, the Indemnified Person shall have the right to
participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.
The
Company agrees that if any indemnity sought by an Indemnified
Person hereunder is held by a court to be unavailable for any
reason then (whether or not the Advisor is an Indemnified Person),
the Company and the Advisor shall contribute to the Claim for which
such indemnity is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the
one hand, and the Advisor on the other, in connection with the
Advisor's engagement referred to above, subject to the limitation
that in no event shall the amount of the Advisor's contribution to
such Claim exceed the amount of fees actually received by the
Advisor from the Company pursuant to the Advisor's engagement. The
Company hereby agrees that the relative benefits to the Company, on
the one hand, and the Advisor on the other, with respect to the
Advisor's engagement shall be deemed to be in the same proportion
as (a) the total value paid or proposed to be paid or received by
the Company or its stockholders as the case may be, pursuant to the
transaction (whether or not consummated) for which the Advisor is
engaged to render services bears to (b) the fee paid or proposed to
be paid to the Advisor in connection with such
engagement.
The
Company's indemnity, reimbursement and contribution obligations
under this Agreement (a) shall be in addition to, and shall in no
way limit or otherwise adversely affect any rights that any
Indemnified Party may have at law or at equity and (b) shall be
effective whether or not the Company is at fault in any
way.
6
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BIG
ROCK PARTNERS ACQUISITION CORP.
November 20, 2017
Big
Rock Partners Acquisition Corp., a corporation organized and
existing under the laws of the State of Delaware (the
“Corporation”), DOES HEREBY CERTIFY AS
FOLLOWS:
1. The
name of the Corporation is “Big Rock Partners Acquisition
Corp.” The original certificate of incorporation of the
Corporation was filed with the Secretary of State of the State of
Delaware (the “Secretary of State”) on September 18,
2017 (the “Original Certificate”).
2. This
Amended and Restated Certificate of Incorporation (the
“Amended and Restated Certificate”), which both
restates and amends the provisions of the Original Certificate, as
amended, was duly adopted in accordance with Sections 242 and 245
of the General Corporation Law of the State of Delaware and by
written consent of the Corporation’s stockholders in
accordance with Section 228 of the General Corporation Law of the
State of Delaware (the “DGCL”).
3. The
text of the Original Certificate, as amended, is hereby restated
and amended in its entirety to read as follows:
ARTICLE I
NAME
The
name of the corporation is Big Rock Partners Acquisition Corp. (the
“Corporation”).
ARTICLE II
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL. In
addition to the powers and privileges conferred upon the
Corporation by law and those incidental thereto, the Corporation
shall possess and may exercise all the powers and privileges that
are necessary or convenient to the conduct, promotion or attainment
of the business or purposes of the Corporation, including, but not
limited to, effecting a merger, capital stock exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
similar business combination, involving the Corporation and one or
more businesses or entities (a “Business
Combination”).
ARTICLE III
REGISTERED
AGENT
The
street address of the registered office of the Corporation in the
State of Delaware is Corporation Trust Center, 1209 Orange Street,
Wilmington, County of New Castle, State of Delaware 19801, and the
name of the Corporation’s registered agent at such address is
The Corporation Trust Company.
ARTICLE IV
CAPITALIZATION
Section
4.1
Authorized Capital Stock
. The
total number of shares of all classes of capital stock, each with a
par value of $0.001 per share, which the Corporation is authorized
to issue is 101,000,000 shares, consisting of (a) 100,000,000
shares of common stock, par value $0.001 per share (the
“Common Stock”), and (b) 1,000,000 shares of preferred
stock, par value $0.001 per share (the “Preferred
Stock”).
Section
4.2
Preferred Stock
. Subject to
Article IX of this Amended and Restated Certificate, the Board of
Directors of the Corporation (the “Board”) is hereby
expressly authorized to provide out of the unissued shares of the
Preferred Stock for one or more series of Preferred Stock and to
establish from time to time the number of shares to be included in
each such series and to fix the voting rights, if any,
designations, powers, preferences and relative, participating,
optional, special and other rights, if any, of each such series and
any qualifications, limitations and restrictions thereof, as shall
be stated in the resolution or resolutions adopted by the Board
providing for the issuance of such series and included in a
certificate of designation (a “Preferred Stock
Designation”) filed pursuant to the DGCL, and the Board is
hereby expressly vested with the authority to the full extent
provided by law, now or hereafter, to adopt any such resolution or
resolutions.
Section
4.3
Common Stock
.
(a)
Except as otherwise
required by law or this Amended and Restated Certificate (including
any Preferred Stock Designation), the holders of shares of Common
Stock shall be entitled to one vote for each such share on each
matter properly submitted to the stockholders on which the
stockholders generally are entitled to vote.
(b)
Except as otherwise
required by law or this Amended and Restated Certificate (including
any Preferred Stock Designation), at any annual or special meeting
of the stockholders of the Corporation, the holders of the Common
Stock shall have the exclusive right to vote for the election of
directors and on all other matters properly submitted to a vote of
the stockholders, and no holder of any series of Preferred Stock,
as such, shall be entitled to any voting powers in respect thereof.
Notwithstanding the foregoing, except as otherwise required by law
or this Amended and Restated Certificate (including a Preferred
Stock Designation), the holders of the Common Stock shall not be
entitled to vote on any amendment to this Amended and Restated
Certificate (including any amendment to any Preferred Stock
Designation) that relates solely to the terms of one or more
outstanding series of the Preferred Stock if the holders of such
affected series are entitled, either separately or together with
the holders of one or more other such series, to vote thereon
pursuant to this Amended and Restated Certificate (including any
Preferred Stock Designation) or the DGCL.
(c)
Subject to
applicable law, the rights, if any, of the holders of any
outstanding series of the Preferred Stock and the provisions of
Article IX hereof, the holders of the Common Stock shall be
entitled to receive such dividends and other distributions (payable
in cash, property or capital stock of the Corporation) when, as and
if declared thereon by the Board from time to time out of any
assets or funds of the Corporation legally available therefor, and
shall share equally on a per share basis in such dividends and
distributions.
(d)
Subject to
applicable law, the rights, if any, of the holders of any
outstanding series of the Preferred Stock and the provisions of
Article IX hereof, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after
payment or provision for payment of the debts and other liabilities
of the Corporation, the holders of the Common Stock shall be
entitled to receive all the remaining assets of the Corporation
available for distribution to its stockholders, ratably in
proportion to the number of shares of the Common Stock held by
them.
Section
4.4
Rights and Options
. The
Corporation has the authority to create and issue rights, warrants
and options entitling the holders thereof to acquire from the
Corporation any shares of its capital stock of any class or
classes, with such rights, warrants and options to be evidenced by
or in instrument(s) approved by the Board. The Board is empowered
to set the exercise price, duration, times for exercise and other
terms and conditions of such rights, warrants or options; provided,
however, that the consideration to be received for any shares of
capital stock issuable upon exercise thereof may not be less than
the par value thereof.
ARTICLE V
BOARD OF
DIRECTORS
Section
5.1
Board Powers
. The business and
affairs of the Corporation shall be managed by, or under the
direction of, the Board. In addition to the powers and authority
expressly conferred upon the Board by statute, this Amended and
Restated Certificate or the Bylaws of the Corporation
(“Bylaws”), the Board is 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 DGCL, this Amended and Restated Certificate, and
the Bylaws.
Section
5.2
Number, Election and
Term
.
(a)
The number of
directors of the Corporation shall be fixed from time to time in
the manner provided in the Bylaws.
(b)
Subject to Section
5.5 hereof, the Board shall be divided into two classes, as nearly
equal in number as possible and designated Class I and Class II.
The Board is authorized to assign members of the Board already in
office to Class I or Class II. The term of the initial Class I
Directors shall expire at the first annual meeting of the
stockholders of the Corporation following the effectiveness of this
Amended and Restated Certificate; the term of the initial Class II
Directors shall expire at the second annual meeting of the
stockholders of the Corporation following the effectiveness of this
Amended and Restated Certificate. At each succeeding annual meeting
of the stockholders of the Corporation, beginning with the first
annual meeting of the stockholders of the Corporation following the
effectiveness of this Amended and Restated Certificate, successors
to the class of directors whose term expires at that annual meeting
shall be elected for a two-year term or until the election and
qualification of their respective successors in office, subject to
their earlier death, resignation or removal. Subject to Section 5.5
hereof, if the number of directors is changed, any increase or
decrease shall be apportioned by the Board among the classes so as
to maintain the number of directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of
directors shorten the term of any incumbent director. The Board is
hereby expressly authorized, by resolution or resolutions thereof,
to assign members of the Board already in office to the aforesaid
classes at the time this Amended and Restated Certificate (and
therefore such classification) becomes effective in accordance with
the DGCL.
(c)
Subject to Section
5.5 hereof, a director shall hold office until the annual meeting
for the year in which his or her term expires and until his or her
successor has been elected and qualified, subject, however, to such
director’s earlier death, resignation, retirement,
disqualification or removal.
(d)
Unless and except
to the extent that the Bylaws shall so require, the election of
directors need not be by written ballot.
Section
5.3
Newly Created Directorships and
Vacancies
. Subject to Section 5.5 hereof, newly created
directorships resulting from an increase in the number of directors
and any vacancies on the Board resulting from death, resignation,
retirement, disqualification, removal or other cause may be filled
solely and exclusively by a majority vote of the remaining
directors then in office, even if less than a quorum, or by a sole
remaining director (and not by stockholders), and any director so
chosen shall hold office for the remainder of the full term of the
class of directors to which the new directorship was added or in
which the vacancy occurred and until his or her successor has been
elected and qualified, subject, however, to such director’s
earlier death, resignation, retirement, disqualification or
removal.
Section
5.4
Removal
. Subject to Section 5.5
hereof, any or all of the directors may be removed from office at
any time with cause and only by the affirmative vote of holders of
a majority of the voting power of all then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single
class.
Section
5.5
Preferred Stock - Directors
.
Notwithstanding any other provision of this Article V, and except
as otherwise required by law, whenever the holders of one or more
series of the Preferred Stock shall have the right, voting
separately by class or series, to elect one or more directors, the
term of office, the filling of vacancies, the removal from office
and other features of such directorships shall be governed by the
terms of such series of the Preferred Stock as set forth in this
Amended and Restated Certificate (including any Preferred Stock
Designation) and such directors shall not be included in any of the
classes created pursuant to this Article V unless expressly
provided by such terms.
ARTICLE VI
BYLAWS
In
furtherance and not in limitation of the powers conferred upon it
by law, the Board shall have the power and is expressly authorized
to adopt, amend, alter or repeal the Bylaws. The affirmative vote
of a majority of the Board shall be required to adopt, amend, alter
or repeal the Bylaws. The Bylaws also may be adopted, amended,
altered or repealed by the stockholders; provided, however, that in
addition to any vote of the holders of any class or series of
capital stock of the Corporation required by law or by this Amended
and Restated Certificate (including any Preferred Stock
Designation), the affirmative vote of the holders of at least a
majority of the voting power of all then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be
required for the stockholders to adopt, amend, alter or repeal the
Bylaws; and provided further, however, that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the
Board that would have been valid if such Bylaws had not been
adopted.
ARTICLE VII
MEETINGS OF
STOCKHOLDERS; ADVANCE NOTICE
Section
7.1
Meetings
. Subject to the
rights, if any, of the holders of any outstanding series of the
Preferred Stock, and to the requirements of applicable law, special
meetings of stockholders of the Corporation may be called only by
the Chairman of the Board, Chief Executive Officer of the
Corporation, or the Board pursuant to a resolution adopted by a
majority of the Board, and the ability of the stockholders to call
a special meeting is hereby specifically denied. Except as provided
in the foregoing sentence, special meetings of stockholders may not
be called by another person or persons.
Section
7.2
Advance Notice
. Advance notice
of stockholder nominations for the election of directors and of
business to be brought by stockholders before any meeting of the
stockholders of the Corporation shall be given in the manner
provided in the Bylaws.
ARTICLE VIII
LIMITED LIABILITY;
INDEMNIFICATION
Section
8.1
Limitation of Director
Liability
. 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
to the extent such exemption from liability or limitation thereof
is not permitted under the DGCL as the same exists or may hereafter
be amended unless they violated their duty of loyalty to the
Company or its stockholders, acted in bad faith, knowingly or
intentionally violated the law, authorized unlawful payments of
dividends, unlawful stock purchases or unlawful redemptions, or
derived improper personal benefit from their actions as directors.
Any amendment, modification or repeal of the foregoing sentence
shall not adversely affect any right or protection of a director of
the Corporation hereunder in respect of any act or omission
occurring prior to the time of such amendment, modification or
repeal.
Section
8.2
Indemnification and Advancement of
Expenses
.
(a)
To the fullest
extent permitted by applicable law, as the same exists or may
hereafter be amended, the Corporation shall indemnify and hold
harmless each person who is or was made a party or is threatened to
be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she is
or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (an “indemnitee”),
whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee
or agent, against all liability and loss suffered and expenses
(including, without limitation, attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties and amounts paid in
settlement) reasonably incurred by such indemnitee in connection
with such proceeding. The Corporation shall to the fullest extent
not prohibited by applicable law pay the expenses (including
attorneys’ fees) incurred by an indemnitee in defending or
otherwise participating in any proceeding in advance of its final
disposition; provided, however, that, to the extent required by
applicable law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking, by or on behalf of the indemnitee, to repay all
amounts so advanced if it shall ultimately be determined that the
indemnitee is not entitled to be indemnified under this Section 8.2
or otherwise. The rights to indemnification and advancement of
expenses conferred by this Section 8.2 shall be contract rights and
such rights shall continue as to an indemnitee who has ceased to be
a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators.
Notwithstanding the foregoing provisions of this Section 8.2(a),
except for proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall indemnify and
advance expenses to an indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the
Board.
(b)
The rights to
indemnification and advancement of expenses conferred on any
indemnitee by this Section 8.2 shall not be exclusive of any other
rights that any indemnitee may have or hereafter acquire under law,
this Amended and Restated Certificate, the Bylaws, an agreement,
vote of stockholders or disinterested directors, or
otherwise.
(c)
Any repeal or
amendment of this Section 8.2 by the stockholders of the
Corporation or by changes in law, or the adoption of any other
provision of this Amended and Restated Certificate inconsistent
with this Section 8.2, shall, unless otherwise required by law, be
prospective only (except to the extent such amendment or change in
law permits the Corporation to provide broader indemnification
rights on a retroactive basis than permitted prior thereto), and
shall not in any way diminish or adversely affect any right or
protection existing at the time of such repeal or amendment or
adoption of such inconsistent provision in respect of any
proceeding (regardless of when such proceeding is first threatened,
commenced or completed) arising out of, or related to, any act or
omission occurring prior to such repeal or amendment or adoption of
such inconsistent provision.
(d)
This Section 8.2
shall not limit the right of the Corporation, to the extent and in
the manner authorized or permitted by law, to indemnify and to
advance expenses to persons other than indemnitees.
ARTICLE IX
BUSINESS
COMBINATION REQUIREMENTS; EXISTENCE
Section
9.1
General
. The provisions of this
Article IX shall apply during the period commencing upon the
effectiveness of this Amended and Restated Certificate of
Incorporation and terminating upon the consummation of the
Corporation’s initial Business Combination and may not be
amended unless the Corporation provides dissenting holders of
Offering Shares (defined below) with the opportunity to convert
their Offering Shares to cash in accordance with Section 9.3(b).
The target business or target businesses acquired in the
Corporation’s initial 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 IX
will be determined by the Board 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 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.
Section
9.2
Approval
. 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.
Section
9.3
Proxy
Solicitation
.
(a)
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.
(b)
In the event that a
Business Combination is approved in accordance with Section 9.3(a)
and is consummated by the Corporation, any holder of shares of
Common Stock sold in the Company’s initial public offering
(the “Offering” and the shares sold in such Offering,
the “Offering Shares”) who voted on the proposal to
approve such Business Combination, whether such holder voted in
favor or against such Business Combination, may, contemporaneously
with such vote, demand that the Corporation convert his Offering
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 net of
interest that may be used by the Company to pay its franchise and
income taxes payable, calculated as of two business days prior to
the consummation of the Business Combination, by (ii) the total
number of Offering 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 Offering and into which a
certain amount of the net proceeds of the Offering and a
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 Offering. The Corporation may require any holder of
Offering Shares who demands that the Corporation convert such
Offering 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 Offering
Shares to be set forth in the proxy materials relating to such
Business Combination.
Section
9.4
Tender Offer
. 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 Offering 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 Offering Shares in any such
Tender Offer.
Section
9.5
Minimum Assets
. 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.
Section
9.6
Termination
. In the event that
the Corporation has not consummated a Business Combination within
12 months from the consummation of the Offering, the Board of
Directors may extend the period of time to consummate a Business
Combination up to two times (the latest such date being referred to
as the “Termination Date”), each by an additional three
months, for an aggregate of six additional months, providing that
(i) for each such extension the sponsor (or its designees) must
deposit into the Trust Account funds equal to one percent (1%) of
the gross proceeds of the Offering (including such proceeds from
the exercise of the underwriters’ over-allotment option, if
exercised) per extension in exchange for a non-interest bearing,
unsecured promissory note, for maximum aggregate proceeds to the
Corporation of two percent (2%) of the gross proceeds of the
Offering (including such proceeds from the exercise of the
underwriters’ over-allotment option, if exercised) if two
extensions occur and (ii) the procedures relating to any such
extension, as set forth in the Trust Agreement, shall have been
complied with. The gross proceeds from the issuance of such
promissory notes will be added to the proceeds from the Offering to
be held in the Trust Account and shall be used to fund the
redemption of the Offering Shares in accordance with this Section
9.6. In the event that the Corporation does not consummate a
Business Combination by 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 Offering Shares for
cash for a redemption price per share equal to the amount then held
in the Trust Account, including the interest earned thereon, less
any income or franchise taxes payable, divided by the total number
of Offering 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 DGCL, including the adoption of a resolution by
the Board pursuant to Section 275(a) of the DGCL finding the
dissolution of the Corporation advisable and the provision of such
notices as are required by said Section 275(a) of the DGCL,
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 DGCL to provide for
claims of creditors and other requirements of applicable
law.
Section
9.7
Distributions from the Trust
Account
. A holder of Offering Shares shall be entitled to
receive distributions from the Trust Account only in the event (i)
he demands conversion of his shares in accordance with Section
9.3(b) in connection with any Proxy Solicitation, (ii) he sells his
shares to the Corporation in accordance with Section 9.4 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
IX prior to the consummation of a Business Combination. In no other
circumstances shall a holder of Offering Shares have any right or
interest of any kind in or to the Trust Account.
Section
9.8
No Transactions with Other Blank Check
Companies
. Unless and until the Corporation has consummated
its initial Business Combination as permitted under this Article
IX, 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.
Section
9.9
Transactions with Affiliates
.
The Corporation shall not consummate a Business Combination with an
entity that is affiliated with any of the Corporation’s
officers, directors or sponsors or their respective affiliates
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.
Section
9.10
Share Issuances
. 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 a Business
Combination.
ARTICLE X
FORUM
Section
10.1
Forum
. 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 DGCL 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.
Section
10.2
Foreign Action
. If any action
the subject matter of which is within the scope of Section 10.1 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 10.1 (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.
Section
10.3
Severability
. If any provision
or provisions of this Article X 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 X (including, without limitation, each
portion of any sentence of this Article X 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
X.
ARTICLE XI
CORPORATE
OPPORTUNITY
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, or any of their respective affiliates, 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 Amended and Restated Certificate or
in the future.
ARTICLE
XII
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF
INCORPORATION
The
Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate (including any Preferred Stock
Designation), and other provisions authorized by the laws of the
State of Delaware at the time in force that may be added or
inserted, in the manner now or hereafter prescribed by this Amended
and Restated Certificate and the DGCL; and, except as set forth in
Article VIII, all rights, preferences and privileges of whatever
nature herein conferred upon stockholders, directors or any other
persons by and pursuant to this Amended and Restated Certificate in
its present form or as hereafter amended are granted subject to the
right reserved in this Article XII; provided, however, that Article
IX of this Amended and Restated Certificate may be amended only as
provided therein.
[Signature Page Follows]
IN
WITNESS WHEREOF, Big Rock Partners Acquisition Corp. has caused
this Amended and Restated Certificate to be duly executed and
acknowledged in its name and on its behalf by an authorized officer
as of the date first set forth above.
BIG
ROCK PARTNERS ACQUISITION CORP.
Name:
Richard Ackerman
Title:
Chief Executive Officer
[Signature Page to
Amended and Restated Certificate of Incorporation]
Exhibit
3.2
AMENDED AND RESTATED
BY
LAWS
OF
BIG
ROCK PARTNERS ACQUISITION CORP.
(THE
“CORPORATION”)
ARTICLE
I.
OFFICES
Section
1.1
Registered Office.
The registered office of the Corporation within the State of
Delaware shall be located at either (a) the principal place of
business of the Corporation in the State of Delaware or (b) the
office of the corporation or individual acting as the
Corporation’s registered agent in Delaware.
Section
1.2
Additional Offices.
The Corporation may, in addition to its registered office in the
State of Delaware, have such other offices and places of business,
both within and outside the State of Delaware, as the Board of
Directors of the Corporation (the “Board”) may from
time to time determine or as the business and affairs of the
Corporation may require.
ARTICLE
II.
STOCKHOLDERS MEETINGS
Section
2.1
Annual Meetings.
The annual meeting of stockholders shall be held at such place,
either within or without the State of Delaware and time and on such
date as shall be determined by the Board and stated in the notice
of the meeting, provided that the Board may in its sole discretion
determine that the meeting shall not be held at any place, but may
instead be held solely by means of remote communication pursuant to
Section 9.5(a). At each annual meeting, the stockholders entitled
to vote on such matters shall elect those directors of the
Corporation to fill any term of a directorship that expires on the
date of such annual meeting and may transact any other business as
may properly be brought before the meeting.
Section
2.2
Special Meetings.
Subject to the rights of the holders of any outstanding series of
the preferred stock of the Corporation (“Preferred
Stock”), and to the requirements of applicable law, special
meetings of stockholders, for any purpose or purposes, may be
called only by the Chairman of the Board, Chief Executive Officer,
or the Board pursuant to a resolution adopted by a majority of the
Board, and may not be called by any other person. Special meetings
of stockholders shall be held at such place, either within or
without the State of Delaware, and at such and time and on such
date as shall be determined by the Board and stated in the
Corporation’s notice of the meeting, provided that the Board
may in its sole discretion determine that the meeting shall not be
held at any place, but may instead be held solely by means of
remote communication pursuant to Section 9.5(a).
Section
2.3
Notices. Written
notice of each stockholders meeting stating the place, if any,
date, and time of the meeting, and the means of remote
communication, if any, by which stockholders and proxy holders may
be deemed to be present in person and vote at such meeting and the
record date for determining the stockholders entitled to vote at
the meeting, if such date is different from the record date for
determining stockholders entitled to notice of the meeting, shall
be given in the manner permitted by Section 9.3 to each stockholder
entitled to vote thereat as of the record date for determining the
stockholders entitled to notice of the meeting, by the Corporation
not less than 10 nor more than 60 days before the date of the
meeting unless otherwise required by the General Corporation Law of
the State of Delaware (the “DGCL”). If said notice is
for a stockholders meeting other than an annual meeting, it shall
in addition state the purpose or purposes for which the meeting is
called, and the business transacted at such meeting shall be
limited to the matters so stated in the Corporation’s notice
of meeting (or any supplement thereto). Any meeting of stockholders
as to which notice has been given may be postponed, and any meeting
of stockholders as to which notice has been given may be cancelled,
by the Board upon public announcement (as defined in Section
2.7(c)) given before the date previously scheduled for such
meeting.
Section
2.4
Quorum. Except as
otherwise provided by applicable law, the Corporation’s
Certificate of Incorporation, as the same may be amended or
restated from time to time (the “Certificate of
Incorporation”) or these By Laws, the presence, in person or
by proxy, at a stockholders meeting of the holders of shares of
outstanding capital stock of the Corporation representing a
majority of the voting power of all outstanding shares of capital
stock of the Corporation entitled to vote at such meeting shall
constitute a quorum for the transaction of business at such
meeting, except that when specified business is to be voted on by a
class or series of stock voting as a class, the holders of shares
representing a majority of the voting power of the outstanding
shares of such class or series shall constitute a quorum of such
class or series for the transaction of such business. If a quorum
shall not be present or represented by proxy at any meeting of the
stockholders of the Corporation, the chairman of the meeting may
adjourn the meeting from time to time in the manner provided in
Section 2.6 until a quorum shall attend. The stockholders present
at a duly convened meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough stockholders
to leave less than a quorum. Shares of its own stock belonging to
the Corporation or to another corporation, if a majority of the
voting power of the shares entitled to vote in the election of
directors of such other corporation is held, directly or
indirectly, by the Corporation, shall neither be entitled to vote
nor be counted for quorum purposes; provided, however, that the
foregoing shall not limit the right of the Corporation or any such
other corporation to vote shares held by it in a fiduciary
capacity.
Section
2.5
Voting of
Shares.
(a)
Voting Lists. The
Secretary of the Corporation (the “Secretary”) shall
prepare, or shall cause the officer or agent who has charge of the
stock ledger of the Corporation to prepare and make, at least 10
days before every meeting of stockholders, a complete list of the
stockholders of record entitled to vote at such meeting; provided,
however, that if the record date for determining the stockholders
entitled to vote is less than 10 days before the meeting date, the
list shall reflect the stockholders entitled to vote as of the
tenth day before the meeting date, arranged in alphabetical order
and showing the address and the number and class of shares
registered in the name of each stockholder. Nothing contained in
this Section 2.5(a) shall require the Corporation to include
electronic mail addresses or other electronic contact information
on such list. 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 10 days prior to
the meeting: (i) on a reasonably accessible electronic network,
provided that the information required to gain access to such list
is provided with the notice of the meeting, or (ii) during ordinary
business hours, at the principal place of business of the
Corporation. In the event that the Corporation determines to make
the list available on an electronic network, the Corporation may
take reasonable steps to ensure that such information is available
only to stockholders of the Corporation. If the meeting is to be
held at a place, then the list shall be produced and kept at the
time and place of the meeting during the whole time thereof, and
may be inspected by any stockholder who is present. If a meeting of
stockholders is to be held solely by means of remote communication
as permitted by Section 9.5(a), the list shall be open to the
examination of any stockholder during the whole time of the meeting
on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of
meeting. The stock ledger shall be the only evidence as to who are
the stockholders entitled to examine the list required by this
Section 2.5(a) or to vote in person or by proxy at any meeting of
stockholders.
(b)
Manner of Voting.
At any stockholders meeting, every stockholder entitled to vote may
vote in person or by proxy. If authorized by the Board, the voting
by stockholders or proxy holders at any meeting conducted by remote
communication may be effected by a ballot submitted by electronic
transmission (as defined in Section 9.3), provided that any such
electronic transmission must either set forth or be submitted with
information from which the Corporation can determine that the
electronic transmission was authorized by the stockholder or proxy
holder. The Board, in its discretion, or the chairman of the
meeting of stockholders, in such person’s discretion, may
require that any votes cast at such meeting shall be cast by
written ballot.
(c)
Proxies. 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 another person or persons to act for such
stockholder by proxy, but no such proxy shall be voted or acted
upon after three years from its date, unless the proxy provides for
a longer period. Proxies need not be filed with the Secretary until
the meeting is called to order, but shall be filed with the
Secretary before being voted. Without limiting the manner in which
a stockholder may authorize another person or persons to act for
such stockholder as proxy, either of the following shall constitute
a valid means by which a stockholder may grant such authority. No
stockholder shall have cumulative voting rights.
(i)
A stockholder may
execute a writing authorizing another person or persons to act for
such stockholder as proxy. Execution may be accomplished by the
stockholder or such stockholder’s authorized officer,
director, employee or agent signing such writing or causing such
person’s signature to be affixed to such writing by any
reasonable means, including, but not limited to, by facsimile
signature.
(ii)
A
stockholder may authorize another person or persons to act for such
stockholder as proxy by transmitting or authorizing the
transmission of an electronic transmission to the person who will
be the holder of the proxy or to a proxy solicitation firm, proxy
support service organization or like agent duly authorized by the
person who will be the holder of the proxy to receive such
transmission, provided that any such electronic transmission must
either set forth or be submitted with information from which it can
be determined that the electronic transmission was authorized by
the stockholder. Any copy, facsimile telecommunication or other
reliable reproduction of the writing or transmission authorizing
another person or persons to act as proxy for a stockholder may be
substituted or used in lieu of the original writing or transmission
for any and all purposes for which the original writing or
transmission could be used; provided that such copy, facsimile
telecommunication or other reproduction shall be a complete
reproduction of the entire original writing or
transmission.
(d)
Required Vote.
Subject to the rights of the holders of one or more series of
Preferred Stock, voting separately by class or series, to elect
directors pursuant to the terms of one or more series of Preferred
Stock, at all meetings of stockholders at which a quorum is
present, the election of directors shall be determined by a
plurality of the votes cast by the stockholders present in person
or represented by proxy at the meeting and entitled to vote
thereon. All other matters presented to the stockholders at a
meeting at which a quorum is present shall be determined by the
vote of a majority of the votes cast by the stockholders present in
person or represented by proxy at the meeting and entitled to vote
thereon, unless the matter is one upon which, by applicable law,
the Certificate of Incorporation, these By Laws or applicable stock
exchange rules, a different vote is required, in which case such
provision shall govern and control the decision of such
matter.
(e)
Inspectors of
Election. The Board may, and shall if required by law, in advance
of any meeting of stockholders, designate one or more persons as
inspectors of election, who may be employees of the Corporation or
otherwise serve the Corporation in other capacities, to act at such
meeting of stockholders or any adjournment thereof and to make a
written report thereof. The Board may appoint one or more persons
as alternate inspectors to replace any inspector who fails to act.
If no inspectors of election or alternates are appointed by the
Board, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before
discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict
impartiality and according to the best of his or her ability. The
inspectors shall ascertain and report the number of outstanding
shares and the voting power of each; determine the number of shares
present in person or represented by proxy at the meeting and the
validity of proxies and ballots; count all votes and ballots and
report the results; determine and retain for a reasonable period a
record of the disposition of any challenges made to any
determination by the inspectors; and certify their determination of
the number of shares represented at the meeting and their count of
all votes and ballots. No person who is a candidate for an office
at an election may serve as an inspector at such election. Each
report of an inspector shall be in writing and signed by the
inspector or by a majority of them if there is more than one
inspector acting at such meeting. If there is more than one
inspector, the report of a majority shall be the report of the
inspectors.
Section
2.6
Adjournments. Any
meeting of stockholders, annual or special, may be adjourned by the
chairman of the meeting, from time to time, whether or not there is
a quorum, to reconvene at the same or some other place. Notice need
not be given of any such adjourned meeting if the date, time, and
place, if any, thereof, and the means of remote communication, if
any, by which stockholders and proxy holders may be deemed to be
present in person and vote at such adjourned meeting are announced
at the meeting at which the adjournment is taken. At the adjourned
meeting the stockholders, or the holders of any class or series of
stock entitled to vote separately as a class, as the case may be,
may transact any business that might have been transacted at the
original meeting. If the adjournment is for more than 30 days,
notice of the adjourned meeting shall be given to each stockholder
of record entitled to vote at the meeting. If after the adjournment
a new record date for stockholders entitled to vote is fixed for
the adjourned meeting, the Board shall fix a new record date for
notice of such adjourned meeting in accordance with Section 9.2,
and shall give notice of the adjourned meeting to each stockholder
of record entitled to vote at such adjourned meeting as of the
record date fixed for notice of such adjourned
meeting.
Section
2.7
Advance Notice for
Business.
(a)
Annual Meetings of
Stockholders. No business may be transacted at an annual meeting of
stockholders, other than business that is either (i) specified
in the Corporation’s notice of meeting (or any supplement
thereto) given by or at the direction of the Board,
(ii) otherwise properly brought before the annual meeting by
or at the direction of the Board or (iii) otherwise properly
brought before the annual meeting by any stockholder of the
Corporation (x) who is a stockholder of record entitled to
vote at such annual meeting on the date of the giving of the notice
provided for in this Section 2.7(a) and on the record date for the
determination of stockholders entitled to vote at such annual
meeting and (y) who complies with the notice procedures set
forth in this Section 2.7(a). Notwithstanding anything in this
Section 2.7(a) to the contrary, only persons nominated for election
as a director to fill any term of a directorship that expires on
the date of the annual meeting pursuant to Section 3.2 will be
considered for election at such meeting.
(i)
In addition to any
other applicable requirements, for business (other than
nominations) to be properly brought before an annual meeting by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary and such business must
otherwise be a proper matter for stockholder action. Subject to
Section 2.7(a)(iii), a stockholder’s notice to the Secretary
with respect to such business, to be timely, must be received by
the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th day nor earlier
than the opening of business on the 120th day before the
anniversary date of the immediately preceding annual meeting of
stockholders; provided, however, that in the event that the annual
meeting is called for a date that is not within 30 days before or
after such anniversary date, notice by the stockholder to be timely
must be so received not earlier than the opening of business on the
120th day before the meeting and not later than the later of (x)
the close of business on the 90th day before the meeting or (y) the
close of business on the 10th day following the day on which public
announcement of the date of the annual meeting is first made by the
Corporation. The public announcement of an adjournment of an annual
meeting shall not commence a new time period for the giving of a
stockholder’s notice as described in this Section
2.7(a).
(ii)
To
be in proper written form, a stockholder’s notice to the
Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to
bring before the annual meeting (A) a brief description of the
business desired to be brought before the annual meeting, the text
of the proposal or business (including the text of any resolutions
proposed for consideration and in the event such business includes
a proposal to amend these By Laws, the language of the proposed
amendment) and the reasons for conducting such business at the
annual meeting, (B) the name and record address of such stockholder
and the name and address of the beneficial owner, if any, on whose
behalf the proposal is made, (C) the class or series and number of
shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and by the
beneficial owner, if any, on whose behalf the proposal is made, (D)
a description of all arrangements or understandings between such
stockholder and the beneficial owner, if any, on whose behalf the
proposal is made and any other person or persons (including their
names) in connection with the proposal of such business by such
stockholder, (E) any material interest of such stockholder and the
beneficial owner, if any, on whose behalf the proposal is made in
such business and (F) a representation that such stockholder (or a
qualified representative of such stockholder) intends to appear in
person or by proxy at the annual meeting to bring such business
before the meeting.
(iii)
The
foregoing notice requirements of this Section 2.7(a) shall be
deemed satisfied by a stockholder as to any proposal (other than
nominations) if the stockholder has notified the Corporation of
such stockholder’s intention to present such proposal at an
annual meeting in compliance with Rule 14a-8 (or any successor
thereof) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), and such stockholder has complied with
the requirements of such rule for inclusion of such proposal in a
proxy statement prepared by the Corporation to solicit proxies for
such annual meeting. No business shall be conducted at the annual
meeting of stockholders except business brought before the annual
meeting in accordance with the procedures set forth in this Section
2.7(a), provided, however, that once business has been properly
brought before the annual meeting in accordance with such
procedures, nothing in this Section 2.7(a) shall be deemed to
preclude discussion by any stockholder of any such business. If the
Board or the chairman of the annual meeting determines that any
stockholder proposal was not made in accordance with the provisions
of this Section 2.7(a) or that the information provided in a
stockholder’s notice does not satisfy the information
requirements of this Section 2.7(a), such proposal shall not be
presented for action at the annual meeting. Notwithstanding the
foregoing provisions of this Section 2.7(a), if the stockholder (or
a qualified representative of the stockholder) does not appear at
the annual meeting of stockholders of the Corporation to present
the proposed business, such proposed business shall not be
transacted, notwithstanding that proxies in respect of such matter
may have been received by the Corporation.
(iv)
In
addition to the provisions of this Section 2.7(a), a stockholder
shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in this Section 2.7(a) shall be
deemed to affect any rights of stockholders to request inclusion of
proposals in the Corporation’s proxy statement pursuant to
Rule 14a-8 under the Exchange Act.
(b)
Special Meetings of
Stockholders. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation’s notice of meeting.
Nominations of persons for election to the Board may be made at a
special meeting of stockholders at which directors are to be
elected pursuant to the Corporation’s notice of meeting only
pursuant to Section 3.2.
(c)
Public
Announcement. For purposes of these By Laws, “public
announcement” shall mean disclosure in a press release
reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by
the Corporation with the Securities and Exchange Commission
pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any
successor thereto).
Section
2.8
Conduct of
Meetings. The chairman of each annual and special meeting of
stockholders shall be the Chairman of the Board or, in the absence
(or inability or refusal to act) of the Chairman of the Board, the
Chief Executive Officer (if he or she shall be a director) or, in
the absence (or inability or refusal to act of the Chief Executive
Officer or if the Chief Executive Officer is not a director, the
President (if he or she shall be a director) or, in the absence (or
inability or refusal to act) of the President or if the President
is not a director, such other person as shall be appointed by the
Board. The date and time of the opening and the closing of the
polls for each matter upon which the stockholders will vote at a
meeting shall be announced at the meeting by the chairman of the
meeting. The Board may adopt such rules and regulations for the
conduct of the meeting of stockholders as it shall deem
appropriate. Except to the extent inconsistent with these By Laws
or such rules and regulations as adopted by the Board, the chairman
of any meeting of stockholders shall have the right and authority
to convene and to adjourn the meeting, to prescribe such rules,
regulations and procedures and to do all such acts as, in the
judgment of such chairman, are appropriate for the proper conduct
of the meeting. Such rules, regulations or procedures, whether
adopted by the Board or prescribed by the chairman of the meeting,
may include, without limitation, the following: (a) the
establishment of an agenda or order of business for the meeting;
(b) rules and procedures for maintaining order at the meeting and
the safety of those present; (c) limitations on attendance at or
participation in the meeting to stockholders of record of the
Corporation, their duly authorized and constituted proxies or such
other persons as the chairman of the meeting shall determine; (d)
restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (e) limitations on the time allotted to
questions or comments by participants. Unless and to the extent
determined by the Board or the chairman of the meeting, meetings of
stockholders shall not be required to be held in accordance with
the rules of parliamentary procedure. The secretary of each annual
and special meeting of stockholders shall be the Secretary or, in
the absence (or inability or refusal to act) of the Secretary, an
Assistant Secretary so appointed to act by the chairman of the
meeting. In the absence (or inability or refusal to act) of the
Secretary and all Assistant Secretaries, the chairman of the
meeting may appoint any person to act as secretary of the
meeting.
ARTICLE
III.
DIRECTORS
Section
3.1
Powers and Number.
The business and affairs of the Corporation shall be managed by or
under the direction of the Board, which may exercise all such
powers of the Corporation and do all such lawful acts and things as
are not by statute or by the Certificate of Incorporation or by
these By Laws required to be exercised or done by the stockholders.
Directors need not be stockholders or residents of the State of
Delaware.
Except as otherwise provided
by law or the Certificate of Incorporation, the property, affairs,
and business of the corporation shall be managed by its board of
directors, consisting of not less than one nor more than ten
persons, as fixed from time to time by resolution of the board of
directors or stockholders, and shall initially be set at seven (7).
The directors shall have power, from time to time and at any time
when the stockholders as such are not assembled in a meeting, to
increase or decrease their own number by an amendment to these
bylaws. If the number of directors is increased, the additional
directors may be elected by a majority of the directors in office
at the time of the increase, or if not so elected prior to the next
meeting of the stockholders, the additional directors shall be
elected by the stockholders. Directors need not be stockholders of
the corporation.
Section
3.2
Advance Notice for
Nomination of Directors.
(a)
Only persons who
are nominated in accordance with the following procedures shall be
eligible for election as directors of the Corporation, except as
may be otherwise provided by the terms of one or more series of
Preferred Stock with respect to the rights of holders of one or
more series of Preferred Stock to elect directors. Nominations of
persons for election to the Board at any annual meeting of
stockholders, or at any special meeting of stockholders called for
the purpose of electing directors as set forth in the
Corporation’s notice of such special meeting, may be made (i)
by or at the direction of the Board or (ii) by any stockholder of
the Corporation (x) who is a stockholder of record entitled to vote
in the election of directors on the date of the giving of the
notice provided for in this Section 3.2 and on the record date for
the determination of stockholders entitled to vote at such meeting
and (y) who complies with the notice procedures set forth in this
Section 3.2.
(b)
In addition to any
other applicable requirements, for a nomination to be made by a
stockholder, such stockholder must have given timely notice thereof
in proper written form to the Secretary. To be timely, a
stockholder’s notice to the Secretary must be received by the
Secretary at the principal executive offices of the Corporation
(i) in the case of an annual meeting, not later than the close
of business on the 90th day nor earlier than the opening of
business on the 120th day before the anniversary date of the
immediately preceding annual meeting of stockholders; provided,
however, that in the event that the annual meeting is called for a
date that is not within 30 days before or after such anniversary
date, notice by the stockholder to be timely must be so received
not earlier than the opening of business on the 120th day before
the meeting and not later than the later of (x) the close of
business on the 90th day before the meeting or (y) the close
of business on the 10th day following the day on which public
announcement of the date of the annual meeting was first made by
the Corporation; and (ii) in the case of a special meeting of
stockholders called for the purpose of electing directors, not
later than the close of business on the 10th day following the day
on which public announcement of the date of the special meeting is
first made by the Corporation. In no event shall the public
announcement of an adjournment or postponement of an annual meeting
or special meeting commence a new time period (or extend any time
period) for the giving of a stockholder’s notice as described
in this Section 3.2.
(c)
Notwithstanding
anything in paragraph (b) to the contrary, in the event that the
number of directors to be elected to the Board at an annual meeting
is greater than the number of directors whose terms expire on the
date of the annual meeting and there is no public announcement by
the Corporation naming all of the nominees for the additional
directors to be elected or specifying the size of the increased
Board before the close of business on the 90th day prior to the
anniversary date of the immediately preceding annual meeting of
stockholders, a stockholder’s notice required by this Section
3.2 shall also be considered timely, but only with respect to
nominees for the additional directorships created by such increase
that are to be filled by election at such annual meeting, if it
shall be received by the Secretary at the principal executive
offices of the Corporation not later than the close of business on
the 10th day following the date on which such public announcement
was first made by the Corporation.
(d)
To be in proper
written form, a stockholder’s notice to the Secretary must
set forth (i) as to each person whom the stockholder proposes to
nominate for election 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 or series and
number of shares of capital stock of the Corporation that are owned
beneficially or of record by the person and (D) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice (A) the name and record address of
such stockholder as they appear on the Corporation’s books
and the name and address of the beneficial owner, if any, on whose
behalf the nomination is made, (B) the class or series and number
of shares of capital stock of the Corporation that are owned
beneficially and of record by such stockholder and the beneficial
owner, if any, on whose behalf the nomination is made, (C) a
description of all arrangements or understandings relating to the
nomination to be made by such stockholder among such stockholder,
the beneficial owner, if any, on whose behalf the nomination is
made, each proposed nominee and any other person or persons
(including their names), (D) a representation that such stockholder
(or a qualified representative of such stockholder) intends to
appear in person or by proxy at the meeting to nominate the persons
named in its notice and (E) any other information relating to such
stockholder and the beneficial owner, if any, on whose behalf the
nomination is made that would be required to be disclosed in a
proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to
Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a
written consent of each proposed nominee to being named as a
nominee and to serve as a director if elected.
(e)
If the Board or the
chairman of the meeting of stockholders determines that any
nomination was not made in accordance with the provisions of this
Section 3.2, or that the information provided in a
stockholder’s notice does not satisfy the information
requirements of this Section 3.2, then such nomination shall not be
considered at the meeting in question. Notwithstanding the
foregoing provisions of this Section 3.2, if the stockholder (or a
qualified representative of the stockholder) does not appear at the
meeting of stockholders of the Corporation to present the
nomination, such nomination shall be disregarded, notwithstanding
that proxies in respect of such nomination may have been received
by the Corporation.
(f)
In addition to the
provisions of this Section 3.2, a stockholder shall also comply
with all of the applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set
forth herein. Nothing in this Section 3.2 shall be deemed to affect
any rights of the holders of Preferred Stock to elect directors
pursuant to the Certificate of Incorporation.
Section
3.3
Vacancies.
In case one or more vacancies shall
occur in the board of directors by reason of death, resignation, or
otherwise, except insofar as otherwise provided in the case of a
vacancy or vacancies occurring by reason of removal by the
stockholders, the remaining directors, although less than a quorum,
may by a vote of the majority of the directors then in office elect
a successor or successors for the unexpired term or
terms.
Section
3.4
Compensation.
Unless otherwise restricted by the Certificate of Incorporation or
these By Laws, the Board shall have the authority to fix the
compensation of directors. The directors may be reimbursed their
expenses, if any, of attendance at each meeting of the Board,
including for service on a committee of the Board, and may be paid
either a fixed sum for attendance at each meeting of the Board or
other compensation as director. No such payment shall preclude any
director from serving the Corporation in any other capacity and
receiving compensation therefor. Members of committees of the Board
may be allowed like compensation and reimbursement of expenses for
service on the committee.
ARTICLE
IV.
BOARD
MEETINGS
Section
4.1
Annual Meetings.
The Board shall meet as soon as practicable after the adjournment
of each annual stockholders meeting at the place of the annual
stockholders meeting unless the Board shall fix another time and
place and give notice thereof in the manner required herein for
special meetings of the Board. No notice to the directors shall be
necessary to legally convene this meeting, except as provided in
this Section 4.1.
Section
4.2
Regular Meetings.
Regularly scheduled, periodic meetings of the Board may be held
without notice at such times, dates and places (within or without
the State of Delaware) as shall from time to time be determined by
the Board.
Section
4.3
Special Meetings.
Special meetings of the Board (a) may be called by the Chairman of
the Board or President and (b) shall be called by the Chairman of
the Board, President or Secretary on the written request of at
least a majority of directors then in office, or the sole director,
as the case may be, and shall be held at such time, date and place
(within or without the State of Delaware) as may be determined by
the person calling the meeting or, if called upon the request of
directors or the sole director, as specified in such written
request. Notice of each special meeting of the Board shall be
given, as provided in Section 9.3, to each director (i) at
least 24 hours before the meeting if such notice is oral notice
given personally or by telephone or written notice given by hand
delivery or by means of a form of electronic transmission and
delivery; (ii) at least two days before the meeting if such
notice is sent by a nationally recognized overnight delivery
service; and (iii) at least five days before the meeting if
such notice is sent through the United States mail. If the
Secretary shall fail or refuse to give such notice, then the notice
may be given by the officer who called the meeting or the directors
who requested the meeting. Any and all business that may be
transacted at a regular meeting of the Board may be transacted at a
special meeting. Except as may be otherwise expressly provided by
applicable law, the Certificate of Incorporation, or these By Laws,
neither the business to be transacted at, nor the purpose of, any
special meeting need be specified in the notice or waiver of notice
of such meeting. A special meeting may be held at any time without
notice if all the directors are present or if those not present
waive notice of the meeting in accordance with Section
9.4.
Section
4.4
Quorum; Required
Vote. A majority of the Board shall constitute a quorum for the
transaction of business at any meeting of the Board, 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, except as may be
otherwise specifically provided by applicable law, the Certificate
of Incorporation or these By Laws. If a quorum shall not be present
at any meeting, a majority of the directors present may adjourn the
meeting from time to time, without notice other than announcement
at the meeting, until a quorum is present.
Section
4.5
Consent In Lieu of
Meeting. Unless otherwise restricted by the Certificate of
Incorporation or these By Laws, any action required or permitted to
be taken at any meeting of the Board or any committee thereof may
be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing or by
electronic transmission, and the writing or writings or electronic
transmission or transmissions (or paper reproductions thereof) are
filed with the minutes of proceedings of the Board or committee.
Such filing shall be in paper form if the minutes are maintained in
paper form and shall be in electronic form if the minutes are
maintained in electronic form.
Section
4.6
Organization. The
chairman of each meeting of the Board shall be the Chairman of the
Board or, in the absence (or inability or refusal to act) of the
Chairman of the Board, the Chief Executive Officer (if he or she
shall be a director) or, in the absence (or inability or refusal to
act) of the Chief Executive Officer or if the Chief Executive
Officer is not a director, the President (if he or she shall be a
director) or in the absence (or inability or refusal to act) of the
President or if the President is not a director, a chairman elected
from the directors present. The Secretary shall act as secretary of
all meetings of the Board. In the absence (or inability or refusal
to act) of the Secretary, an Assistant Secretary shall perform the
duties of the Secretary at such meeting. In the absence (or
inability or refusal to act) of the Secretary and all Assistant
Secretaries, the chairman of the meeting may appoint any person to
act as secretary of the meeting.
ARTICLE
V.
COMMITTEES
OF DIRECTORS
Section
5.1
Establishment. The
Board may by resolution passed by a majority of the Board designate
one or more committees, each committee to consist of one or more of
the directors of the Corporation. Each committee shall keep regular
minutes of its meetings and report the same to the Board when
required. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve any such
committee.
Section
5.2
Available Powers.
Any committee established pursuant to Section 5.1 hereof, to the
extent permitted by applicable law and by resolution of the Board,
shall have and may exercise all of the powers and authority of the
Board 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 that may require it.
Section
5.3
Alternate Members.
The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member
at any meeting of such committee. In the absence or
disqualification of a member of the committee, the member or
members thereof present at any meeting and not disqualified from
voting, whether or not he, she or they constitute a quorum, may
unanimously appoint another member of the Board to act at the
meeting in place of any such absent or disqualified
member.
Section
5.4
Procedures. Unless
the Board otherwise provides, the time, date, place, if any, and
notice of meetings of a committee shall be determined by such
committee. At meetings of a committee, a majority of the number of
members of the committee (but not including any alternate member,
unless such alternate member has replaced any absent or
disqualified member at the time of, or in connection with, such
meeting) shall constitute a quorum for the transaction of business.
The act of a majority of the members present at any meeting at
which a quorum is present shall be the act of the committee, except
as otherwise specifically provided by applicable law, the
Certificate of Incorporation, these By Laws or the Board. If a
quorum is not present at a meeting of a committee, the members
present may adjourn the meeting from time to time, without notice
other than an announcement at the meeting, until a quorum is
present. Unless the Board otherwise provides and except as provided
in these By Laws, each committee designated by the Board may make,
alter, amend and repeal rules for the conduct of its business. In
the absence of such rules each committee shall conduct its business
in the same manner as the Board is authorized to conduct its
business pursuant to Article III and Article IV of these By
Laws.
ARTICLE
VI.
OFFICERS
Section
6.1
Officers. The
officers of the Corporation elected by the Board shall be a
Chairman of the Board, a Chief Executive Officer, a President, a
Chief Financial Officer, a Secretary and such other officers
(including without limitation, Vice Presidents, Assistant
Secretaries and a Treasurer) as the Board from time to time may
determine. Officers elected by the Board shall each have such
powers and duties as generally pertain to their respective offices,
subject to the specific provisions of this Article VI. Such
officers shall also have such powers and duties as from time to
time may be conferred by the Board. The Chief Executive Officer or
President may also appoint such other officers (including without
limitation one or more Vice Presidents and Controllers) as may be
necessary or desirable for the conduct of the business of the
Corporation. Such other officers shall have such powers and duties
and shall hold their offices for such terms as may be provided in
these By Laws or as may be prescribed by the Board or, if such
officer has been appointed by the Chief Executive Officer or
President, as may be prescribed by the appointing
officer.
(a)
Chairman of the
Board. The Chairman of the Board shall preside when present at all
meetings of the stockholders and the Board. The Chairman of the
Board shall have general supervision and control of the acquisition
activities of the Corporation subject to the ultimate authority of
the Board, and shall be responsible for the execution of the
policies of the Board with respect to such matters. In the absence
(or inability or refusal to act) of the Chairman of the Board, the
Chief Executive Officer (if he or she shall be a director) shall
preside when present at all meetings of the stockholders and the
Board. The powers and duties of the Chairman of the Board shall not
include supervision or control of the preparation of the financial
statements of the Corporation (other than through participation as
a member of the Board). The position of Chairman of the Board and
Chief Executive Officer may be held by the same
person.
(b)
Chief Executive
Officer. The Chief Executive Officer shall be the chief executive
officer of the Corporation, shall have general supervision of the
affairs of the Corporation and general control of all of its
business subject to the ultimate authority of the Board, and shall
be responsible for the execution of the policies of the Board with
respect to such matters, except to the extent any such powers and
duties have been prescribed to the Chairman of the Board pursuant
to Section 6.1(a) above. In the absence (or inability or refusal to
act) of the Chairman of the Board, the Chief Executive Officer (if
he or she shall be a director) shall preside when present at all
meetings of the stockholders and the Board. The position of Chief
Executive Officer and President may be held by the same
person.
(c)
President. The
President shall make recommendations to the Chief Executive Officer
on all operational matters that would normally be reserved for the
final executive responsibility of the Chief Executive Officer. In
the absence (or inability or refusal to act) of the Chairman of the
Board and Chief Executive Officer, the President (if he or she
shall be a director) shall preside when present at all meetings of
the stockholders and the Board. The President shall also perform
such duties and have such powers as shall be designated by the
Board. The position of President and Chief Executive Officer may be
held by the same person.
(d)
Vice Presidents. In
the absence (or inability or refusal to act) of the President, the
Vice President (or in the event there be more than one Vice
President, the Vice Presidents in the order designated by the
Board) shall perform the duties and have the powers of the
President. Any one or more of the Vice Presidents may be given an
additional designation of rank or function.
(e)
Secretary.
(i)
The Secretary shall
attend all meetings of the stockholders, the Board and (as
required) committees of the Board and shall record the proceedings
of such meetings in books to be kept for that purpose. The
Secretary shall give, or cause to be given, notice of all meetings
of the stockholders and special meetings of the Board and shall
perform such other duties as may be prescribed by the Board, the
Chairman of the Board, Chief Executive Officer or President. The
Secretary shall have custody of the corporate seal of the
Corporation and the Secretary, or any Assistant Secretary, shall
have authority to affix the same to any instrument requiring it,
and when so affixed, it may be attested by his or her signature or
by the signature of such Assistant Secretary. The Board may give
general authority to any other officer to affix the seal of the
Corporation and to attest the affixing thereof by his or her
signature.
(ii)
The
Secretary shall keep, or cause to be kept, at the principal
executive office of the Corporation or at the office of the
Corporation’s transfer agent or registrar, if one has been
appointed, a stock ledger, or duplicate stock ledger, showing the
names of the stockholders and their addresses, the number and
classes of shares held by each and, with respect to certificated
shares, the number and date of certificates issued for the same and
the number and date of certificates cancelled.
(f)
Assistant
Secretaries. The Assistant Secretary or, if there be more than one,
the Assistant Secretaries in the order determined by the Board
shall, in the absence (or inability or refusal to act) of the
Secretary, perform the duties and have the powers of the
Secretary.
(g)
Chief Financial
Officer. The Chief Financial Officer shall perform all duties
commonly incident to that office (including, without limitation,
the care and custody of the funds and securities of the
Corporation, which from time to time may come into the Chief
Financial Officer’s hands and the deposit of the funds of the
Corporation in such banks or trust companies as the Board, the
Chief Executive Officer or the President may
authorize).
(h)
Treasurer. The
Treasurer shall, in the absence (or inability or refusal to act) of
the Chief Financial Officer, perform the duties and exercise the
powers of the Chief Financial Officer.
Section
6.2
Term of Office;
Removal; Vacancies. The elected officers of the Corporation shall
be appointed by the Board and shall hold office until their
successors are duly elected and qualified by the Board or until
their earlier death, resignation, retirement, disqualification, or
removal from office. Any officer may be removed, with or without
cause, at any time by the Board. Any officer appointed by the Chief
Executive Officer or President may also be removed, with or without
cause, by the Chief Executive Officer or President, as the case may
be, unless the Board otherwise provides. Any vacancy occurring in
any elected office of the Corporation may be filled by the Board.
Any vacancy occurring in any office appointed by the Chief
Executive Officer or President may be filled by the Chief Executive
Officer, or President, as the case may be, unless the Board then
determines that such office shall thereupon be elected by the
Board, in which case the Board shall elect such
officer.
Section
6.3
Other Officers. The
Board may delegate the power to appoint such other officers and
agents, and may also remove such officers and agents or delegate
the power to remove same, as it shall from time to time deem
necessary or desirable.
Section
6.4
Multiple
Officeholders; Stockholder and Director Officers. Any number of
offices may be held by the same person unless the Certificate of
Incorporation or these By Laws otherwise provide. Officers need not
be stockholders or residents of the State of Delaware.
ARTICLE
VII.
SHARES
Section
7.1
Certificated and
Uncertificated Shares. The shares of the Corporation may be
certificated or uncertificated, subject to the sole discretion of
the Board and the requirements of the DGCL.
Section
7.2
Multiple Classes of
Stock. If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the
Corporation shall (a) cause the powers, designations, preferences
and relative, participating, optional or other special rights of
each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights to be
set forth in full or summarized on the face or back of any
certificate that the Corporation issues to represent shares of such
class or series of stock or (b) in the case of uncertificated
shares, within a reasonable time after the issuance or transfer of
such shares, send to the registered owner thereof a written notice
containing the information required to be set forth on certificates
as specified in clause (a) above; provided, however, that, except
as otherwise provided by applicable law, in lieu of the foregoing
requirements, there may be set forth on the face or back of such
certificate or, in the case of uncertificated shares, on such
written notice a statement that 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 and
the qualifications, limitations or restrictions of such preferences
or rights.
Section
7.3
Signatures. Each
certificate representing capital stock of the Corporation shall be
signed by or in the name of the Corporation by (a) the Chairman of
the Board, Chief Executive Officer, the President or a Vice
President and (b) the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary of the Corporation. Any or all
the signatures on the certificate may be a facsimile. In case any
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, such certificate may be issued by the
Corporation with the same effect as if such person were such
officer, transfer agent or registrar on the date of
issue.
Section
7.4
Consideration and
Payment for Shares.
(a)
Subject to
applicable law and the Certificate of Incorporation, shares of
stock may be issued for such consideration, having in the case of
shares with par value a value not less than the par value thereof,
and to such persons, as determined from time to time by the Board.
The consideration may consist of any tangible or intangible
property or any benefit to the Corporation including cash,
promissory notes, services performed, contracts for services to be
performed or other securities, or any combination
thereof.
(b)
Subject to
applicable law and the Certificate of Incorporation, shares may not
be issued until the full amount of the consideration has been paid,
unless upon the face or back of each certificate issued to
represent any partly paid shares of capital stock or upon the books
and records of the Corporation in the case of partly paid
uncertificated shares, there shall have been set forth the total
amount of the consideration to be paid therefor and the amount paid
thereon up to and including the time said certificate representing
certificated shares or said uncertificated shares are
issued.
Section
7.5
Lost, Destroyed or
Wrongfully Taken Certificates.
(a)
If an owner of a
certificate representing shares claims that such certificate has
been lost, destroyed or wrongfully taken, the Corporation shall
issue a new certificate representing such shares or such shares in
uncertificated form if the owner: (i) requests such a new
certificate before the Corporation has notice that the certificate
representing such shares has been acquired by a protected
purchaser; (ii) if requested by the Corporation, delivers to the
Corporation a bond sufficient to indemnify the Corporation against
any claim that may be made against the Corporation on account of
the alleged loss, wrongful taking or destruction of such
certificate or the issuance of such new certificate or
uncertificated shares; and (iii) satisfies other reasonable
requirements imposed by the Corporation.
(b)
If a certificate
representing shares has been lost, apparently destroyed or
wrongfully taken, and the owner fails to notify the Corporation of
that fact within a reasonable time after the owner has notice of
such loss, apparent destruction or wrongful taking and the
Corporation registers a transfer of such shares before receiving
notification, the owner shall be precluded from asserting against
the Corporation any claim for registering such transfer or a claim
to a new certificate representing such shares or such shares in
uncertificated form.
Section
7.6
Transfer of
Stock.
(a)
If a certificate
representing shares of the Corporation is presented to the
Corporation with an endorsement requesting the registration of
transfer of such shares or an instruction is presented to the
Corporation requesting the registration of transfer of
uncertificated shares, the Corporation shall register the transfer
as requested if:
(i)
in the case of
certificated shares, the certificate representing such shares has
been surrendered;
(ii)
(A)
with respect to certificated shares, the endorsement is made by the
person specified by the certificate as entitled to such shares; (B)
with respect to uncertificated shares, an instruction is made by
the registered owner of such uncertificated shares; or (C) with
respect to certificated shares or uncertificated shares, the
endorsement or instruction is made by any other appropriate person
or by an agent who has actual authority to act on behalf of the
appropriate person;
(iii)
the
Corporation has received a guarantee of signature of the person
signing such endorsement or instruction or such other reasonable
assurance that the endorsement or instruction is genuine and
authorized as the Corporation may request;
(iv)
the
transfer does not violate any restriction on transfer imposed by
the Corporation that is enforceable in accordance with Section
7.8(a); and
(v)
such other
conditions for such transfer as shall be provided for under
applicable law have been satisfied.
(b)
Whenever any
transfer of shares shall be made for collateral security and not
absolutely, the Corporation shall so record such fact in the entry
of transfer if, when the certificate for such shares is presented
to the Corporation for transfer or, if such shares are
uncertificated, when the instruction for registration of transfer
thereof is presented to the Corporation, both the transferor and
transferee request the Corporation to do so.
Section
7.7
Registered
Stockholders. Before due presentment for registration of transfer
of a certificate representing shares of the Corporation or of an
instruction requesting registration of transfer of uncertificated
shares, the Corporation may treat the registered owner as the
person exclusively entitled to inspect for any proper purpose the
stock ledger and the other books and records of the Corporation,
vote such shares, receive dividends or notifications with respect
to such shares and otherwise exercise all the rights and powers of
the owner of such shares, except that a person who is the
beneficial owner of such shares (if held in a voting trust or by a
nominee on behalf of such person) may, upon providing documentary
evidence of beneficial ownership of such shares and satisfying such
other conditions as are provided under applicable law, may also so
inspect the books and records of the Corporation.
Section
7.8
Effect of the
Corporation’s Restriction on Transfer.
(a)
A written
restriction on the transfer or registration of transfer of shares
of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, if permitted
by the DGCL and noted conspicuously on the certificate representing
such shares or, in the case of uncertificated shares, contained in
a notice, offering circular or prospectus sent by the Corporation
to the registered owner of such shares within a reasonable time
prior to or after the issuance or transfer of such shares, may be
enforced against the holder of such shares or any successor or
transferee of the holder including an executor, administrator,
trustee, guardian or other fiduciary entrusted with like
responsibility for the person or estate of the holder.
(b)
A restriction
imposed by the Corporation on the transfer or the registration of
shares of the Corporation or on the amount of shares of the
Corporation that may be owned by any person or group of persons,
even if otherwise lawful, is ineffective against a person without
actual knowledge of such restriction unless: (i) the shares are
certificated and such restriction is noted conspicuously on the
certificate; or (ii) the shares are uncertificated and such
restriction was contained in a notice, offering circular or
prospectus sent by the Corporation to the registered owner of such
shares prior to or within a reasonable time after the issuance or
transfer of such shares.
Section
7.9
Regulations. The
Board shall have power and authority to make such additional rules
and regulations, subject to any applicable requirement of law, as
the Board may deem necessary and appropriate with respect to the
issue, transfer or registration of transfer of shares of stock or
certificates representing shares. The Board may appoint one or more
transfer agents or registrars and may require for the validity
thereof that certificates representing shares bear the signature of
any transfer agent or registrar so appointed.
ARTICLE
VIII.
INDEMNIFICATION
Section
8.1
Right to
Indemnification. To the fullest extent permitted by applicable law,
as the same exists or may hereafter be amended, the Corporation
shall indemnify and hold harmless each person who was or is made a
party or is threatened to be made a party to or is otherwise
involved in any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (hereinafter a “proceeding”), by reason
of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust, other enterprise or nonprofit
entity, including service with respect to an employee benefit plan
(hereinafter an “Indemnitee”), whether the basis of
such proceeding is alleged action in an official capacity as a
director, officer, employee or agent, or in any other capacity
while serving as a director, officer, employee or agent, against
all liability and loss suffered and expenses (including, without
limitation, attorneys’ fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid in settlement) reasonably
incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in Section 8.3 with
respect to proceedings to enforce rights to indemnification, the
Corporation shall indemnify an Indemnitee in connection with a
proceeding (or part thereof) initiated by such Indemnitee only if
such proceeding (or part thereof) was authorized by the
Board.
Section
8.2
Right to
Advancement of Expenses. In addition to the right to
indemnification conferred in Section 8.1, an Indemnitee shall also
have the right to be paid by the Corporation to the fullest extent
not prohibited by applicable law the expenses (including, without
limitation, attorneys’ fees) incurred in defending or
otherwise participating in any such proceeding in advance of its
final disposition (hereinafter an “advancement of
expenses”); provided, however, that, if the DGCL requires, an
advancement of expenses incurred by an Indemnitee in his or her
capacity as a director or officer of the Corporation (and not in
any other capacity in which service was or is rendered by such
Indemnitee, including, without limitation, service to an employee
benefit plan) shall be made only upon the Corporation’s
receipt of an undertaking (hereinafter an
“undertaking”), by or on behalf of such Indemnitee, to
repay all amounts so advanced if it shall ultimately be determined
that such Indemnitee is not entitled to be indemnified under this
Article VIII or otherwise.
Section
8.3
Right of Indemnitee
to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not
paid in full by the Corporation within 60 days after a written
claim therefor has been received by the Corporation, except in the
case of a claim for an advancement of expenses, in which case the
applicable period shall be 20 days, the Indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking,
the Indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. In (a) any suit brought by the
Indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by an Indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (b) in any
suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final judicial
decision from which there is no further right to appeal
(hereinafter a “final adjudication”) that, the
Indemnitee has not met any applicable standard for indemnification
set forth in the DGCL. Neither the failure of the Corporation
(including its directors who are not parties to such action, a
committee of such directors, independent legal counsel, or its
stockholders) to have made a determination prior to the
commencement of such suit that indemnification of the Indemnitee is
proper in the circumstances because the Indemnitee has met the
applicable standard of conduct set forth in the DGCL, nor an actual
determination by the Corporation (including a determination by its
directors who are not parties to such action, a committee of such
directors, independent legal counsel, or its stockholders) that the
Indemnitee has not met such applicable standard of conduct, shall
create a presumption that the Indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the
Indemnitee, shall be a defense to such suit. In any suit brought by
the Indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or by the Corporation to recover
an advancement of expenses pursuant to the terms of an undertaking,
the burden of proving that the Indemnitee is not entitled to be
indemnified, or to such advancement of expenses, under this Article
VIII or otherwise shall be on the Corporation.
Section
8.4
Non-Exclusivity of
Rights. The rights provided to any Indemnitee pursuant to this
Article VIII shall not be exclusive of any other right, which such
Indemnitee may have or hereafter acquire under applicable law, the
Certificate of Incorporation, these By Laws, an agreement, a vote
of stockholders or disinterested directors, or
otherwise.
Section
8.5
Insurance. The
Corporation may maintain insurance, at its expense, to protect
itself and/or any director, officer, employee or agent of the
Corporation or another corporation, partnership, joint venture,
trust or other enterprise against any expense, liability or loss,
whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the
DGCL.
Section
8.6
Indemnification of
Other Persons. This Article VIII shall not limit the right of the
Corporation to the extent and in the manner authorized or permitted
by law to indemnify and to advance expenses to persons other than
Indemnitees. Without limiting the foregoing, the Corporation may,
to the extent authorized from time to time by the Board, grant
rights to indemnification and to the advancement of expenses to any
employee or agent of the Corporation and to any other person who is
or was serving at the request of the Corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to an employee benefit plan, to the fullest
extent of the provisions of this Article VIII with respect to the
indemnification and advancement of expenses of Indemnitees under
this Article VIII.
Section
8.7
Amendments. Any
repeal or amendment of this Article VIII by the Board or the
stockholders of the Corporation or by changes in applicable law, or
the adoption of any other provision of these By Laws inconsistent
with this Article VIII, will, to the extent permitted by applicable
law, be prospective only (except to the extent such amendment or
change in applicable law permits the Corporation to provide broader
indemnification rights to Indemnitees on a retroactive basis than
permitted prior thereto), and will not in any way diminish or
adversely affect any right or protection existing hereunder in
respect of any act or omission occurring prior to such repeal or
amendment or adoption of such inconsistent provision; provided
however, that amendments or repeals of this Article VIII shall
require the affirmative vote of the stockholders holding at least
66.7% of the voting power of all outstanding shares of capital
stock of the Corporation.
Section
8.8
Certain
Definitions. For purposes of this Article VIII, (a) references to
“other enterprise” shall include any employee benefit
plan; (b) references to “fines” shall include any
excise taxes assessed on a person with respect to an employee
benefit plan; (c) references to “serving at the request of
the Corporation” shall include any service that imposes
duties on, or involves services by, a person with respect to any
employee benefit plan, its participants, or beneficiaries; and (d)
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 interest of the
Corporation” for purposes of Section 145 of the
DGCL.
Section
8.9
Contract Rights.
The rights provided to Indemnitees pursuant to this Article VIII
shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer, agent or
employee and shall inure to the benefit of the Indemnitee’s
heirs, executors and administrators.
Section
8.10
Severability. If
any provision or provisions of this Article VIII shall be held to
be invalid, illegal or unenforceable for any reason whatsoever: (a)
the validity, legality and enforceability of the remaining
provisions of this Article VIII shall not in any way be affected or
impaired thereby; and (b) to the fullest extent possible, the
provisions of this Article VIII (including, without limitation,
each such portion of this Article VIII containing any such
provision held to be invalid, illegal or unenforceable) shall be
construed so as to give effect to the intent manifested by the
provision held invalid, illegal or unenforceable.
ARTICLE
IX.
MISCELLANEOUS
Section
9.1
Place of Meetings.
If the place of any meeting of stockholders, the Board or committee
of the Board for which notice is required under these By Laws is
not designated in the notice of such meeting, such meeting shall be
held at the principal business office of the Corporation; provided,
however, if the Board has, in its sole discretion, determined that
a meeting shall not be held at any place, but instead shall be held
by means of remote communication pursuant to Section 9.5 hereof,
then such meeting shall not be held at any place.
Section
9.2
Fixing Record
Dates.
(a)
In order that the
Corporation may determine the stockholders entitled to notice of
any meeting of stockholders or any adjournment thereof, the Board
may fix a record date, which shall not precede the date upon which
the resolution fixing the record date is adopted by the Board, and
which record date shall not be more than 60 nor less than 10 days
before the date of such meeting. If the Board so fixes a date, such
date shall also be the record date for determining the stockholders
entitled to vote at such meeting unless the Board determines, at
the time it fixes such record date, that a later date on or before
the date of the meeting shall be the date for making such
determination. If no record date is fixed by the Board, the record
date for determining stockholders entitled to notice of and to vote
at a meeting of stockholders shall be at the close of business on
the business day next preceding the day on which notice is given,
or, if notice is waived, at the close of business on the business
day next preceding the day on which the meeting is held. 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 may fix a new record
date for the adjourned meeting, and in such case shall also fix as
the record date for stockholders entitled to notice of such
adjourned meeting the same or an earlier date as that fixed for
determination of stockholders entitled to vote in accordance with
the foregoing provisions of this Section 9.2(a) at the adjourned
meeting.
(b)
In order that the
Corporation may determine the stockholders entitled to receive
payment of any dividend or other distribution or allotment of any
rights or the stockholders 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 may fix a record
date, which record date shall not precede the date upon which the
resolution fixing the record date is adopted, and which record date
shall be not more than 60 days prior to such action. If no record
date is fixed, the record date for determining stockholders for any
such purpose shall be at the close of business on the day on which
the Board adopts the resolution relating thereto.
Section
9.3
Means of Giving
Notice.
(a)
Notice to
Directors. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to
any director, such notice shall be given either (i) in writing and
sent by mail, or by a nationally recognized delivery service, (ii)
by means of facsimile telecommunication or other form of electronic
transmission, or (iii) by oral notice given personally or by
telephone. A notice to a director will be deemed given as follows:
(i) if given by hand delivery, orally, or by telephone, when
actually received by the director, (ii) if sent through the United
States mail, when deposited in the United States mail, with postage
and fees thereon prepaid, addressed to the director at the
director’s address appearing on the records of the
Corporation, (iii) if sent for next day delivery by a nationally
recognized overnight delivery service, when deposited with such
service, with fees thereon prepaid, addressed to the director at
the director’s address appearing on the records of the
Corporation, (iv) if sent by facsimile telecommunication, when sent
to the facsimile transmission number for such director appearing on
the records of the Corporation, (v) if sent by electronic mail,
when sent to the electronic mail address for such director
appearing on the records of the Corporation, or (vi) if sent by any
other form of electronic transmission, when sent to the address,
location or number (as applicable) for such director appearing on
the records of the Corporation.
(b)
Notice to
Stockholders. Whenever under applicable law, the Certificate of
Incorporation or these By Laws notice is required to be given to
any stockholder, such notice may be given (i) in writing and sent
either by hand delivery, through the United States mail, or by a
nationally recognized overnight delivery service for next day
delivery, or (ii) by means of a form of electronic transmission
consented to by the stockholder, to the extent permitted by, and
subject to the conditions set forth in Section 232 of the DGCL. A
notice to a stockholder shall be deemed given as follows: (i) if
given by hand delivery, when actually received by the stockholder,
(ii) if sent through the United States mail, when deposited in the
United States mail, with postage and fees thereon prepaid,
addressed to the stockholder at the stockholder’s address
appearing on the stock ledger of the Corporation, (iii) if sent for
next day delivery by a nationally recognized overnight delivery
service, when deposited with such service, with fees thereon
prepaid, addressed to the stockholder at the stockholder’s
address appearing on the stock ledger of the Corporation, and (iv)
if given by a form of electronic transmission consented to by the
stockholder to whom the notice is given and otherwise meeting the
requirements set forth above, (A) if by facsimile transmission,
when directed to a number at which the stockholder has consented to
receive notice, (B) if by electronic mail, when directed to an
electronic mail address at which the stockholder has consented to
receive notice, (C) if by a posting on an electronic network
together with separate notice to the stockholder of such specified
posting, upon the later of (1) such posting and (2) the giving of
such separate notice, and (D) if by any other form of electronic
transmission, when directed to the stockholder. A stockholder may
revoke such stockholder’s consent to receiving notice by
means of electronic communication by giving written notice of such
revocation to the Corporation. Any such consent shall be deemed
revoked if (1) the Corporation is unable to deliver by electronic
transmission two consecutive notices given by the Corporation in
accordance with such consent and (2) such inability becomes known
to the Secretary or an Assistant Secretary or to the
Corporation’s transfer agent, or other person responsible for
the giving of notice; provided, however, the inadvertent failure to
treat such inability as a revocation shall not invalidate any
meeting or other action.
(c)
Electronic
Transmission. “Electronic transmission” means any form
of communication, not directly involving the physical transmission
of paper, that creates a record that may be retained, retrieved and
reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated
process, including but not limited to transmission by telex,
facsimile telecommunication, electronic mail, telegram and
cablegram.
(d)
Notice to
Stockholders Sharing Same Address. Without limiting the manner by
which notice otherwise may be given effectively by the Corporation
to stockholders, any notice to stockholders given by the
Corporation under any provision of the DGCL, the Certificate of
Incorporation or these By Laws shall be effective if given by a
single written notice to stockholders who share an address if
consented to by the stockholders at that address to whom such
notice is given. A stockholder may revoke such stockholder’s
consent by delivering written notice of such revocation to the
Corporation. Any stockholder who fails to object in writing to the
Corporation within 60 days of having been given written notice by
the Corporation of its intention to send such a single written
notice shall be deemed to have consented to receiving such single
written notice.
(e)
Exceptions to
Notice Requirements. Whenever notice is required to be given, under
the DGCL, the Certificate of Incorporation or these By Laws, to any
person with whom communication is unlawful, the giving of such
notice to such person shall not be required and there shall be no
duty to apply to any governmental authority or agency for a license
or permit to give such notice to such person. Any action or meeting
that shall be taken or held without notice to any such person with
whom communication is unlawful shall have the same force and effect
as if such notice had been duly given. In the event that the action
taken by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the
certificate shall state, if such is the fact and if notice is
required, that notice was given to all persons entitled to receive
notice except such persons with whom communication is
unlawful.
Whenever
notice is required to be given by the Corporation, under any
provision of the DGCL, the Certificate of Incorporation or these By
Laws, to any stockholder to whom (1) notice of two consecutive
annual meetings of stockholders and all notices of stockholder
meetings or of the taking of action by written consent of
stockholders without a meeting to such stockholder during the
period between such two consecutive annual meetings, or (2) all,
and at least two payments (if sent by first-class mail) of
dividends or interest on securities during a 12-month period, have
been mailed addressed to such stockholder at such
stockholder’s address as shown on the records of the
Corporation and have been returned undeliverable, the giving of
such notice to such stockholder shall not be required. Any action
or meeting that shall be taken or held without notice to such
stockholder shall have the same force and effect as if such notice
had been duly given. If any such stockholder shall deliver to the
Corporation a written notice setting forth such stockholder’s
then current address, the requirement that notice be given to such
stockholder shall be reinstated. In the event that the action taken
by the Corporation is such as to require the filing of a
certificate with the Secretary of State of Delaware, the
certificate need not state that notice was not given to persons to
whom notice was not required to be given pursuant to Section 230(b)
of the DGCL. The exception in subsection (1) of the first sentence
of this paragraph to the requirement that notice be given shall not
be applicable to any notice returned as undeliverable if the notice
was given by electronic transmission.
Section
9.4
Waiver of Notice.
Whenever any notice is required to be given under applicable law,
the Certificate of Incorporation, or these By Laws, a written
waiver of such notice, signed before or after the date of such
meeting by the person or persons entitled to said notice, or a
waiver by electronic transmission by the person entitled to said
notice, shall be deemed equivalent to such required notice. All
such waivers shall be kept with the books of the Corporation.
Attendance at a meeting shall constitute a waiver of notice of such
meeting, except where a person attends for the express purpose of
objecting to the transaction of any business on the ground that the
meeting was not lawfully called or convened.
Section
9.5
Meeting Attendance
via Remote Communication Equipment.
(a)
Stockholder
Meetings. If authorized by the Board in its sole discretion, and
subject to such guidelines and procedures as the Board may adopt,
stockholders entitled to vote at such meeting and proxy holders not
physically present at a meeting of stockholders may, by means of
remote communication:
(i)
participate in a
meeting of stockholders; and
(ii)
be
deemed present in person and vote at a meeting of stockholders,
whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (A) the Corporation
shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of
remote communication is a stockholder or proxy holder, (B) the
Corporation shall implement reasonable measures to provide such
stockholders and proxy holders a reasonable opportunity to
participate in the meeting and, if entitled to vote, to vote on
matters submitted to the applicable stockholders, including an
opportunity to read or hear the proceedings of the meeting
substantially concurrently with such proceedings, and (C) if any
stockholder or proxy holder votes or takes other action at the
meeting by means of remote communication, a record of such votes or
other action shall be maintained by the Corporation.
(b)
Board Meetings.
Unless otherwise restricted by applicable law, the Certificate of
Incorporation or these By Laws, members of the Board or any
committee thereof may participate in a meeting of the Board or any
committee thereof by means of conference telephone or other
communications equipment by means of which all persons
participating in the meeting can hear each other. Such
participation in a meeting shall constitute presence in person at
the meeting, except where a person participates in the meeting for
the express purpose of objecting to the transaction of any business
on the ground that the meeting was not lawfully called or
convened.
Section
9.6
Dividends. The
Board may from time to time declare, and the Corporation may pay,
dividends (payable in cash, property or shares of the
Corporation’s capital stock) on the Corporation’s
outstanding shares of capital stock, subject to applicable law and
the Certificate of Incorporation.
Section
9.7
Reserves. The Board
may set apart out of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and may
abolish any such reserve.
Section
9.8
Contracts and
Negotiable Instruments. Except as otherwise provided by applicable
law, the Certificate of Incorporation or these By Laws, any
contract, bond, deed, lease, mortgage or other instrument may be
executed and delivered in the name and on behalf of the Corporation
by such officer or officers or other employee or employees of the
Corporation as the Board may from time to time authorize. Such
authority may be general or confined to specific instances as the
Board may determine. The Chairman of the Board, the Chief Executive
Officer, the President, the Chief Financial Officer, the Treasurer
or any Vice President may execute and deliver any contract, bond,
deed, lease, mortgage or other instrument in the name and on behalf
of the Corporation. Subject to any restrictions imposed by the
Board, the Chairman of the Board Chief Executive Officer,
President, the Chief Financial Officer, the Treasurer or any Vice
President may delegate powers to execute and deliver any contract,
bond, deed, lease, mortgage or other instrument in the name and on
behalf of the Corporation to other officers or employees of the
Corporation under such person’s supervision and authority, it
being understood, however, that any such delegation of power shall
not relieve such officer of responsibility with respect to the
exercise of such delegated power.
Section
9.9
Fiscal Year. The
fiscal year of the Corporation shall be fixed by the
Board.
Section
9.10
Seal. The Board may
adopt a corporate seal, which shall be in such form as the Board
determines. The seal may be used by causing it or a facsimile
thereof to be impressed, affixed or otherwise
reproduced.
Section
9.11
Books and Records.
The books and records of the Corporation may be kept within or
outside the State of Delaware at such place or places as may from
time to time be designated by the Board.
Section
9.12
Resignation. Any
director, committee member or officer may resign by giving notice
thereof in writing or by electronic transmission to the Chairman of
the Board, the Chief Executive Officer, the President or the
Secretary. The resignation shall take effect at the time specified
therein, or at the time of receipt of such notice if no time is
specified or the specified time is earlier than the time of such
receipt. Unless otherwise specified therein, the acceptance of such
resignation shall not be necessary to make it
effective.
Section
9.13
Surety Bonds. Such
officers, employees and agents of the Corporation (if any) as the
Chairman of the Board, Chief Executive Officer, President or the
Board may direct, from time to time, shall be bonded for the
faithful performance of their duties and for the restoration to the
Corporation, in case of their death, resignation, retirement,
disqualification or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in their
possession or under their control belonging to the Corporation, in
such amounts and by such surety companies as the Chairman of the
Board, Chief Executive Officer, President or the Board may
determine. The premiums on such bonds shall be paid by the
Corporation and the bonds so furnished shall be in the custody of
the Secretary.
Section
9.14
Securities of Other
Corporations. Powers of attorney, proxies, waivers of notice of
meeting, consents in writing 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 Chairman of the Board,
Chief Executive Officer, President, any Vice President or any
officers authorized by the Board. Any such officer, may, in the
name of 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, or to consent in writing, in the
name of the Corporation as such holder, to any action by such
corporation, and at any such meeting or with respect to any such
consent shall possess and may exercise any and all rights and power
incident to the ownership of such securities and which, as the
owner thereof, the Corporation might have exercised and possessed.
The Board may from time to time confer like powers upon any other
person or persons.
Section
9.15
Amendments. The
Board shall have the power to adopt, amend, alter or repeal the By
Laws. The affirmative vote of a majority of the Board shall be
required to adopt, amend, alter or repeal the By Laws. The By Laws
also may be adopted, amended, altered or repealed by the
stockholders; provided, however, that in addition to any vote of
the holders of any class or series of capital stock of the
Corporation required by applicable law or the Certificate of
Incorporation, the affirmative vote of the holders of at least a
majority of the voting power (except as otherwise provided in
Section 8.7) of all outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of
directors, voting together as a single class, shall be required for
the stockholders to adopt, amend, alter or repeal the By
Laws.
Exhibit 4.1
BIG
ROCK PARTNERS ACQUISITION CORP.
and
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
RIGHT
AGREEMENT
Dated
as of November 20, 2017
This
Right Agreement (this “Agreement”) is made as of
November 20, 2017 between Big Rock Partners
Acquisition Corp., a Delaware corporation (the
“Company”), and Continental Stock Transfer & Trust
Company, a New York corporation (“Rights
Agent”).
WHEREAS, the
Company is engaged in an initial public offering (the
“Offering”) of units of the Company’s equity
securities (each, a “Unit” and collectively, the
“Units”) to EarlyBirdCapital, Inc. (the
“Representative”), as representative of the several
underwriters (the “Underwriters”), each such Unit
comprised of one share of common stock of the Company, par value
$.001 per share (“Common Stock”), one right to receive
one-tenth of one share of Common Stock (each, a “Public
Right” and collectively, the “Public Rights”)
upon the happening of an “Exchange Event” (defined
herein), and one-half of one warrant to purchase one share of
Common Stock, and in connection therewith, has determined to issue
and deliver up to 6,900,000 Public Rights (including
up to 900,000 Public Rights subject to the
over-allotment option) to public investors in the Offering;
and
WHEREAS, the
Company has agreed to sell to Big Rock Partners Sponsor, LLC an
aggregate of up to 272,500 Units in a private
placement, including 272,500 rights underlying such
Units (the "Private Rights"); and
WHEREAS, the
Company has entered into that certain Unit Purchase Option, dated
as of November 20, 2017, pursuant to which the Company
will issue and deliver to the Representative an aggregate of
600,000 Units, including 600,000 rights
underlying such Units (the “Purchase Option Rights” and
together with the Private Rights and the Public Rights, the
“Rights”); and
WHEREAS, the
Company has filed with the Securities and Exchange Commission
registration statements on Form S-1, File
Nos. 333-220947 and 333-221659, and the
prospectus forming a part thereof (the “Prospectus”),
for the registration under the Securities Act of 1933, as amended,
of the Units and each of the securities comprising the Units, and
the shares of Common Stock underlying the Public Rights and
Purchase Option Rights; and
WHEREAS, the
Company desires the Rights Agent to act on behalf of the Company,
and the Rights 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 Rights 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 Rights 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 Rights Agent
.
The Company hereby appoints the Rights Agent to act as agent for
the Company for the Rights, and the Rights 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 and the 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 Rights Agent pursuant to this
Agreement, a Right shall be invalid and of no effect and may not be
exchanged for shares of Common Stock.
2.3
Registration.
2.3.1
Right
Register
. The Rights 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 Rights 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 Rights Agent by the Company.
2.3.2
Registered
Holder
. Prior to due presentment for registration of
transfer of any Right, the Company and the Rights 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
Rights Agent), for the purpose of the exchange thereof, and for all
other purposes, and neither the Company nor the Rights 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 earlier to occur of: (i) the 90th
day following the date of the Prospectus or (ii) the announcement
by EarlyBirdCapital, Inc. of its intention to allow separate
earlier trading, except that in no event will the securities
comprising the Units be separately tradeable until 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 Offering including the proceeds received by the
Company from the exercise of the over-allotment option, if the
over-allotment option is exercised by the date thereof and 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 (defined
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 shares of
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 Rights 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 number of full shares 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 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 1/10 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 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 of the Exchange Event, irrespective of the date of delivery of
such certificate.
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 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.
3.3.5
Duration
of Rights
. If an Exchange Event does not occur within the
time period set forth in the Company’s 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
Rights 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 representing an equal
aggregate number of Rights shall be issued and the old Right shall
be cancelled by the Rights Agent. The Rights so cancelled shall be
delivered by the Rights Agent to the Company from time to time upon
request.
4.2
Procedure for Surrender of
Rights
. Rights may be surrendered to the Rights Agent,
together with a written request for exchange or transfer, and
thereupon the Rights Agent shall issue in exchange therefor one or
more new Rights 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 Rights Agent shall not
cancel such Right and issue new Rights in exchange therefor until
the Rights Agent has received an opinion of counsel for the Company
stating that such transfer may be made and indicating whether the
new Rights must also bear a restrictive legend.
4.3
Fractional Rights
. The Rights
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
Right Execution and
Countersignature
. The Rights 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 Rights Agent, will supply the Rights 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
Rights
. If any Right is lost, stolen, mutilated, or
destroyed, the Company and the Rights 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, include the
surrender thereof), issue a new Right of like denomination, tenor,
and date as the Right so lost, stolen, mutilated, or destroyed. Any
such new Right shall constitute a substitute contractual obligation
of the Company, whether or not the allegedly lost, stolen,
mutilated, or destroyed Right shall be at any time enforceable by
anyone.
5.3
Reservation 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 exchange of all outstanding Rights issued
pursuant to this Agreement.
6.
Concerning the Rights 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 Rights 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 Rights Agent
.
6.2.1
Appointment
of Successor Rights Agent
. The Rights 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 Rights Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in
writing a successor Rights Agent in place of the Rights 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 Rights 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 Rights Agent at the
Company’s cost. Any successor Rights 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 Rights Agent shall be vested with all the authority,
powers, rights, immunities, duties, and obligations of its
predecessor Rights Agent with like effect as if originally named as
Rights Agent hereunder, without any further act or deed; but if for
any reason it becomes necessary or appropriate, the predecessor
Rights Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Rights Agent
all the authority, powers, and rights of such predecessor Rights
Agent hereunder; and upon request of any successor Rights 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 Rights Agent all such authority,
powers, rights, immunities, duties, and obligations.
6.2.2
Notice
of Successor Rights Agent
. In the event a successor Rights
Agent shall be appointed, the Company shall give notice thereof to
the predecessor Rights Agent and the transfer agent for the Common
Stock not later than the effective date of any such
appointment.
6.2.3
Merger
or Consolidation of Rights Agent
. Any corporation into which
the Rights Agent may be merged or with which it may be consolidated
or any corporation resulting from any merger or consolidation to
which the Rights Agent shall be a party shall be the successor
Rights Agent under this Agreement without any further
act.
6.3
Fees and Expenses of Rights
Agent
.
6.3.1
Remuneration
.
The Company agrees to pay the Rights Agent reasonable remuneration
for its services as such Rights Agent hereunder and will reimburse
the Rights Agent upon demand for all expenditures that the Rights
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
Rights Agent for the carrying out or performing of the provisions
of this Agreement.
6.4
Liability of Rights
Agent
.
6.4.1
Reliance
on Company Statement
. Whenever in the performance of its
duties under this Agreement, the Rights 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, Chief Operating Officer or Chief Financial
Officer and delivered to the Rights Agent. The Rights 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 Rights Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith. Subject to Section 6.6
below, the Company agrees to indemnify the Rights Agent and save it
harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by
the Rights Agent in the execution of this Agreement except as a
result of the Rights Agent’s gross negligence, willful
misconduct, or bad faith.
6.4.3
Exclusions
.
The Rights 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 Common Stock to be issued pursuant to this Agreement or any
Right or as to whether any Common Stock will when issued be valid
and fully paid and nonassessable.
6.5
Acceptance of Agency
. The
Rights 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 Rights 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 Rights 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 Rights 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 Agreement to be given or made by the
Rights 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 Rights Agent), as follows:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
Attention: Richard
Ackerman, 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 Rights 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 Rights Agent with the Company), as
follows:
Continental Stock
Transfer & Trust Company
One
State Street Plaza, 30th Floor
New
York, New York 10004
Attention:
Compliance Department
with a
copy to:
EarlyBirdCapital,
Inc.
366
Madison Avenue, 8th Floor
New
York, New York 10017
Attention:Steven
Levine
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 7.2 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 3.1, 7.4
and 7.8 hereof, the Representative, any right, remedy, or claim
under or by reason of this 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 3.1, 7.4 and 7.8 hereof. All covenants,
conditions, stipulations, promises, and agreements contained in
this 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 Rights Agent in the
Borough of Manhattan, City and State of New York, for inspection by
the registered holder of any Right. The Rights 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
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 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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BIG
ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
President and Chief Executive Officer
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CONTINENTAL STOCK
TRANSFER & TRUST COMPANY
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By:
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/s/ Stacy
Aqui
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Name: Stacy
Aqui
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Title: Vice
President
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Exhibit
4.2
WARRANT AGREEMENT
THIS
WARRANT AGREEMENT (“Agreement”) dated as of
November 20, 2017 is between Big Rock Partners
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 its sponsor
("Sponsor") to purchase an aggregate of 250,000 units
(or up to 272,500 units if the underwriters’
over-allotment is exercised in full), each unit
(“Unit”) comprised of one share of common stock of the
Company, $0.001 par value (“Common Stock”), one right
to receive one-tenth of one share of Common Stock and one half of
one warrant to purchase one share of Common Stock for $11.50 per
whole share, subject to adjustment as described herein, pursuant to
a Unit Subscription Agreement (the “Sponsor Unit Purchase
Agreement”), and in connection therewith, will issue and
deliver up to an aggregate of 125,000 warrants (or up
to 136,250 warrants if the underwriters’
over-allotment is exercised in full) (“Placement
Warrants”), upon consummation of such private placement (the
“Private Offering”); and
WHEREAS, in order
to finance the Company’s transaction costs in connection with
an intended initial Business Combination (defined below), the
Sponsor or an affiliate of the Sponsor or the Company’s
executive officers and directors or their affiliates may loan to
the Company funds as may be required, of which up to $1,500,000 of
such loans may be convertible into up to an additional 150,000
Units, including 75,000 warrants ("Working Capital
Warrants");
WHEREAS, the
Company is engaged in a public offering (“Public
Offering”) of Units and, in connection therewith, will issue
and deliver up to 3,000,000 warrants (or
up to 3,450,000 warrants if the underwriters’
over-allotment is exercised in full) (“Public
Warrants”) to the public investors and (ii)
300,000 warrants (underlying unit purchase options) to
EBC or its designees (“EBC Warrants” and, together with
the Placement Warrants, Working Capital Warrants and Public
Warrants, the “Warrants”); and
WHEREAS, the
Company has filed with the Securities and Exchange Commission
Registration Statements on Form S-1, Nos.
333-220947 and 333-221659 (“Registration
Statements”) for the registration, under the
Securities Act of 1933, as amended (“Act”), of, among
other securities, the 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.
Placement
Warrants Attributes
. The Placement 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 Placement Warrants are held by the initial purchasers
or their affiliates and permitted transferees (as prescribed in
Section 5.6 hereof). Once a Placement 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 shall be exercisable only upon the exercise of the
purchase options issued to EBC and/or its designees and 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 written consent of EBC.
2.8
Working Capital Warrants
. The
Working Capital Warrants shall have the same terms and be in the
same form as the Placement 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 (“Exercise Period”) commencing on the later 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 Warrant Agent
(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
Placement Warrants
or Working Capital
Warrants
, so long as such Placement Warrants or Working
Capital Warrants are held by the initial purchasers of the
Placement Warrants or their permitted transferees, by surrendering
such Placement Warrants
or Working Capital
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 and rights to receive 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 Warrant Agent 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,
provided, however, that under no circumstances shall the Warrants
be adjusted pursuant to this Section 4 as a result of any issuance
of securities in connection with the Business Combination. 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.
Placement
Warrants
. The Warrant Agent shall not register any transfer
of Placement Warrants until the consummation by the Company of an
initial Business Combination, except for transfers (i) to the
Company’s Sponsor, officers, directors, employees,
consultants or their affiliates, (ii) to a holder’s officers,
directors, employees or members, 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) by private sales made at or prior to the consummation of a
Business Combination at prices no greater than the price at which
the Placement 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 Unit Purchase Agreements 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 Public
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 $21.00
per share (subject to adjustment in accordance with Section 4
hereof), for any twenty (20) trading days within a thirty (30)
trading day period ending on the third business day prior to the
notice of redemption.
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 agrees that the redemption rights provided in this
Section 6 shall 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 expired 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 rate
shall not apply to the Placement Warrants if at the time of the
redemption such Placement Warrants continue to be held by the
initial purchasers or their permitted transferees. However, once
such Placement Warrants are transferred (other than to permitted
transferees under Section 5.6), the Company may redeem the
Placement Warrants in the same manner as the Public Warrants. The
EBC Warrants shall not be redeemable until after the exercise of
the purchase option issued to EBC. 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, but in no event later than fifteen (15) business days
after such closing, 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:
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
Attn: Chief
Executive Officer
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, 30th Floor
New
York, NY 10004-1561
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
Akerman
LLP
Three
Brickell City Centre
98
Southeast 7
th
Street,
Suite
1100
Miami,
FL 33131
Attn: Michael
Francis, Esq.
and
EarlyBirdCapital,
Inc.
366
Madison Avenue, 8
th
Floor
New
York, New York 10017
Attn: General
Counsel
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 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 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 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 a majority of the then outstanding
Warrants. 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. The provisions of this Section 9.8 may
not be modified, amended or deleted without the prior written
consent of EBC.
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 Statements)
(“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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BIG
ROCK PARTNERS ACQUISITION CORP.
|
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By:
|
/s/ Richard
Ackerman
|
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Name:
Richard Ackerman
|
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Title:
President and Chief Executive
Officer
|
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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/s/ Stacy
Aqui
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Name:
Stacy Aqui
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Title:
Vice President
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11
Exhibit
4.3
THE
REGISTERED HOLDER OF THIS PURCHASE OPTION BY ITS ACCEPTANCE HEREOF,
AGREES THAT IT WILL NOT SELL, TRANSFER OR ASSIGN THIS PURCHASE
OPTION EXCEPT AS HEREIN PROVIDED AND THE REGISTERED HOLDER OF THIS
PURCHASE OPTION AGREES THAT IT WILL NOT SELL, TRANSFER, ASSIGN,
PLEDGE OR HYPOTHECATE THIS PURCHASE OPTION FOR A PERIOD OF 180 DAYS
FOLLOWING THE EFFECTIVE DATE (DEFINED BELOW) TO ANYONE OTHER THAN
(I) EARLYBIRDCAPITAL, INC. (“
EBC
”)
OR AN UNDERWRITER OR SELECTED DEALER IN CONNECTION WITH THE
OFFERING, OR (II) A BONA FIDE OFFICER OR PARTNER OF EBC OR OF ANY
SUCH UNDERWRITER OR SELECTED DEALER, EXCEPT IN ACCORDANCE WITH
FINRA RULE 5110(G)(2). ADDITIONALLY, PURSUANT TO FINRA CONDUCT RULE
5110(G), THE PURCHASE OPTION (OR THE COMMON STOCK, RIGHTS AND
WARRANTS UNDERLYING THIS PURCHASE OPTION) WILL NOT BE THE SUBJECT
OF ANY HEDGING, SHORT SALE, DERIVATIVE, PUT OR CALL TRANSACTION
THAT WOULD RESULT IN THE ECONOMIC DISPOSITION OF THE SECURITIES BY
ANY PERSON FOR A PERIOD OF 180 DAYS IMMEDIATELY FOLLOWING THE
EFFECTIVE DATE.
THIS
PURCHASE OPTION IS NOT EXERCISABLE PRIOR TO THE LATER OF THE
CONSUMMATION BY BIG ROCK PARTNERS ACQUISITION CORP.
(“
COMPANY
”)
OF A MERGER, SHARE EXCHANGE, ASSET ACQUISITION, SHARE PURCHASE,
RECAPITALIZATION, REORGANIZATION OR OTHER SIMILAR BUSINESS
COMBINATION WITH ONE OR MORE BUSINESSES OR ENTITIES
(“
BUSINESS
COMBINATION
”) (AS DESCRIBED MORE FULLY IN THE
COMPANY’S REGISTRATION STATEMENT (DEFINED HEREIN)) AND
NOVEMBER 20, 2018. VOID AFTER 5:00 P.M. NEW YORK CITY
LOCAL TIME, ON THE EXPIRATION DATE (DEFINED HEREIN).
FORM OF
UNIT PURCHASE OPTION
FOR THE PURCHASE OF
600,000 UNITS
OF
BIG ROCK PARTNERS ACQUISITION CORP.
1.
Purchase
Option
.
THIS
CERTIFIES THAT, in consideration of $100 duly paid by or on behalf
of EarlyBirdCapital, Inc. (“
Holder
”),
as registered owner of this Purchase Option, to Big Rock Partners
Acquisition Corp. (“
Company
”),
Holder is entitled, at any time or from time to time upon the later
of the consummation of a Business Combination or November
20, 2018 (“
Commencement
Date
”), and at or before 5:00 p.m., New York City
local time, on the five year anniversary of the effective date
(“
Effective
Date
”) of the Company’s registration statement
(“
Registration
Statement
”) pursuant to which Units are offered for
sale to the public (“
Offering
”),
but not thereafter (“
Expiration
Date
”), to subscribe for, purchase and receive, in
whole or in part, up to six hundred thousand
(600,000) units (“
Units
”)
of the Company, each Unit consisting of one share of common stock
of the Company, par value
$0.001 per share
(“
Common
Stock
”), one right (“
Right(s)
”) entitling the Holder to
receive one tenth (1/10) of a share of Common Stock upon
consummation of a Business Combination, and one-half of one warrant
(“
Warrant(s)
”),
each whole warrant to purchase one share of Common
Stock. Each Right is the same as the right included in
the Units being registered for sale to the public by way of the
Registration Statement. Each Warrant is the same as the warrant
included in the Units being registered for sale to the public by
way of the Registration Statement (“
Public
Warrants
”). If the Expiration Date is a day
on which banking institutions are authorized by law to close, then
this Purchase Option may be exercised on the next succeeding day
which is not such a day in accordance with the terms herein.
Notwithstanding anything to the contrary, the Holder agrees that it
will not be permitted to exercise this Purchase Option or the
Warrants underlying this Purchase Option after the five year
anniversary of the Effective Date. During the period ending on the
Expiration Date, the Company agrees not to take any action that
would terminate the Purchase Option. This Purchase Option is
initially exercisable at $10.00 per Unit so purchased; provided,
however, that upon the occurrence of any of the events specified in
Section 6 hereof, the rights granted by this Purchase Option,
including the exercise price per Unit and the number of Units (and
shares of Common Stock, Rights and Warrants) to be received upon
such exercise, shall be adjusted as therein specified. The term
“
Exercise
Price
” shall mean the initial exercise price or the
adjusted exercise price, depending on the context.
2.
Exercise.
2.1
Exercise
Form
. In order to exercise this Purchase Option, the
exercise form attached hereto must be duly executed and completed
and delivered to the Company, together with this Purchase Option
and payment of the Exercise Price for the Units being purchased
payable in cash or by certified check or official bank check. If
the subscription rights represented hereby shall not be exercised
at or before 5:00 p.m., New York City local time, on the Expiration
Date this Purchase Option shall become and be void without further
force or effect, and all rights represented hereby shall cease and
expire.
2.2
Legend
.
Each certificate for the securities purchased under this Purchase
Option shall bear a legend as follows unless such securities have
been registered under the Securities Act of 1933, as amended
(“
Act
”):
“The
securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended (“Act”) or
applicable state law. The securities may not be offered for sale,
sold or otherwise transferred except pursuant to an effective
registration statement under the Act, or pursuant to an exemption
from registration under the Act and applicable state
law.”
2.3
Cashless
Exercise
.
2.3.1
Determination
of Amount
. In lieu of the payment of the Exercise Price
multiplied by the number of Units for which this Purchase Option is
exercisable (and in lieu of being entitled to receive shares of
Common Stock and Warrants) in the manner required by Section 2.1,
and subject to Section 6.1 hereof, the Holder shall have the right
(but not the obligation) to convert any exercisable but unexercised
portion of this Purchase Option into Units (“
Cashless Exercise
Right
”) as follows: upon exercise of the
Cashless Exercise Right, the Company shall deliver to the Holder
(without payment by the Holder of any of the Exercise Price in
cash) that number of Units (or that number of shares of Common
Stock, Rights and Warrants comprising that number of Units) equal
to the number of Units to be exercised multiplied by the quotient
obtained by dividing (x) the “Value” (as defined below)
of the portion of the Purchase Option being exercised by (y) the
Current Market Value (as defined below). The
“Value” of the portion of the Purchase Option being
exercised shall equal the remainder derived from subtracting (a)
(i) the Exercise Price multiplied by (ii) the number of Units
underlying the portion of this Purchase Option being exercised from
(b) the Current Market Value of a Unit multiplied by the number of
Units underlying the portion of the Purchase Option being
exercised. As used herein, the term “Current
Market Value” per Unit at any date means: (A) in the event
that the Units, Common Stock and Public Warrants are still trading,
(i) if the Units are listed on a national securities exchange or
quoted on the OTC Bulletin Board (or successor exchange), the
average reported last sale price of the Units in the principal
trading market for the Units as reported by the exchange, Nasdaq or
the Financial Industry Regulatory Authority (“
FINRA
”),
as the case may be, for the three trading days preceding the date
in question; or (ii) if the Units are not listed on a national
securities exchange or quoted on the OTC Bulletin Board (or
successor exchange), but is traded in the residual over-the-counter
market, the average reported last sale price for Units for the
three trading days preceding the date in question for which such
quotations are reported by the Pink Sheets, LLC or similar
publisher of such quotations; (B) in the event that the Units are
not still trading but the Common Stock and Public Warrants
underlying the Units are still trading, the aggregate of (i) the
product of (x) the Current Market Price of the Common Stock and (y)
the number of shares of Common Stock underlying one Unit (which
shall include the portion of a share of Common Stock the holder of
a Unit would automatically receive in connection with the Right
included in each such Unit) plus (ii) the product of (x) the
Current Market Price of the Public Warrants and (y) the number of
the Warrants included in one Unit; or (C) in the event that neither
the Units nor Public Warrants are still trading, the aggregate of
(i) the product of (x) the Current Market Price of the Common Stock
and (y) the number of shares of Common Stock underlying one Unit
(which shall include the portion of a share of Common Stock the
holder of a Unit would automatically receive in connection with the
Right included in each such Unit) plus (ii) the remainder derived
from subtracting (x) the exercise price of the Warrants multiplied
by the number of shares of Common Stock issuable upon exercise of
the Warrants underlying one Unit from (y) the product of (aa) the
Current Market Price of the Common Stock multiplied by (bb) the
number of shares of Common Stock underlying the Warrants included
in each such Unit. The “
Current Market
Price
” shall mean (i) if the Common Stock (or Public
Warrants, as the case may be) is listed on a national securities
exchange or quoted on the OTC Bulletin Board (or successor
exchange), the average reported last sale price of the Common Stock
(or Public Warrants) in the principal trading market for the Common
Stock (or Public Warrants) as reported by the exchange, Nasdaq or
FINRA, as the case may be, for the three trading days preceding the
date in question; (ii) if the Common Stock (or Public Warrants, as
the case may be) is not listed on a national securities exchange or
quoted on the OTC Bulletin Board (or successor exchange), but is
traded in the residual over-the-counter market, the average
reported last sale price for the Common Stock (or Public Warrants)
on for the three trading days preceding the date in question for
which such quotations are reported by the Pink Sheets, LLC or
similar publisher of such quotations; and (iii) if the fair market
value of the Common Stock cannot be determined pursuant to clause
(i) or (ii) above, such price as the Board of Directors of the
Company shall determine, in good faith. In the event the
Public Warrants have expired and are no longer exercisable, no
“Value” shall be attributed to the Warrants underlying
this Purchase Option or Common Stock issuable upon exercise of the
Warrant.
2.3.2
Mechanics
of Cashless Exercise
. The Cashless Exercise Right may be
exercised by the Holder on any business day on or after the
Commencement Date and not later than the Expiration Date by
delivering the Purchase Option with the duly executed exercise form
attached hereto with the cashless exercise section completed to the
Company, exercising the Cashless Exercise Right and specifying the
total number of Units the Holder will purchase pursuant to such
Cashless Exercise Right.
2.4
No
Obligation to Net Cash Settle
. Notwithstanding anything to
the contrary contained in this Purchase Option, in no event will
the Company be required to net cash settle the exercise of the
Purchase Option or the Rights or Warrants underlying the Purchase
Option. The holder of the Purchase Option and the Warrants
underlying the Purchase Option will not be entitled to exercise the
Purchase Option or the Warrants underlying such Purchase Option
unless it exercises such Purchase Option pursuant to the Cashless
Exercise Right or a registration statement is effective, or an
exemption from the registration requirements is available at such
time and, if the holder is not able to exercise the Purchase Option
or underlying Warrants, the Purchase Option and/or the underlying
Warrants, as applicable, will expire worthless.
3.
Transfer
.
3.1
General
Restrictions
. The registered Holder of this Purchase Option,
by its acceptance hereof, agrees that it will not sell, transfer,
assign, pledge or hypothecate this Purchase Option (or the Common
Stock, Rights and Warrants underlying this Purchase Option) for a
period of 180 days pursuant to FINRA Conduct Rule 5110(g)(1)
following the Effective Date to anyone other than (i) EBC or
an underwriter or selected dealer in connection with the Offering,
or (ii) a bona fide officer or partner of EBC or of any such
underwriter or selected dealer. Additionally, pursuant to FINRA
Conduct Rule 5110(g), the Purchase Option (or the Common Stock,
Rights and Warrants underlying this Purchase Option) will not be
the subject of any hedging, short sale, derivative, put or call
transaction that would result in the economic disposition of the
securities by any person for a period of 180 days immediately
following the Effective Date. On and after the 181
st
day following the
Effective Date, transfers to others may be made subject to
compliance with or exemptions from applicable securities laws. In
order to make any permitted assignment, the Holder must deliver to
the Company the assignment form attached hereto duly executed and
completed, together with the Purchase Option and payment of all
transfer taxes, if any, payable in connection therewith. The
Company shall within five business days transfer this Purchase
Option on the books of the Company and shall execute and deliver a
new Purchase Option or Purchase Options of like tenor to the
appropriate assignee(s) expressly evidencing the right to purchase
the aggregate number of Units purchasable hereunder or such portion
of such number as shall be contemplated by any such
assignment.
3.2
Restrictions
Imposed by the Act
. The securities evidenced by this
Purchase Option shall not be transferred unless and until
(i) the Company has received the opinion of counsel for the
Holder that the securities may be transferred pursuant to an
exemption from registration under the Act and applicable state
securities laws, the availability of which is established to the
reasonable satisfaction of the Company (the Company hereby agreeing
that the opinion of Graubard Miller shall be deemed satisfactory
evidence of the availability of an exemption), or (ii) a
registration statement or a post-effective amendment to the
Registration Statement relating to such securities has been filed
by the Company and declared effective by the Securities and
Exchange Commission (the “
Commission
”)
and compliance with applicable state securities law has been
established.
4.
New
Purchase Options to be Issued
.
4.1
Partial
Exercise or Transfer
. Subject to the restrictions in Section
3 hereof, this Purchase Option may be exercised or assigned in
whole or in part. In the event of the exercise or
assignment hereof in part only, upon surrender of this Purchase
Option for cancellation, together with the duly executed exercise
or assignment form and funds sufficient to pay any Exercise Price
(except to the extent that the Holder elects to exercise this
Purchase Option by means of a cashless exercise as provided in
Section 2.3 above) and/or transfer tax, the Company shall cause to
be delivered to the Holder without charge a new Purchase Option of
like tenor to this Purchase Option in the name of the Holder
evidencing the right of the Holder to purchase the number of Units
purchasable hereunder as to which this Purchase Option has not been
exercised or assigned.
4.2
Lost
Certificate
. Upon receipt by the Company of evidence
satisfactory to it of the loss, theft, destruction or mutilation of
this Purchase Option and of reasonably satisfactory indemnification
or the posting of a bond, the Company shall execute and deliver a
new Purchase Option of like tenor and date. Any such new Purchase
Option executed and delivered as a result of such loss, theft,
mutilation or destruction shall constitute a substitute contractual
obligation on the part of the Company.
5.
Registration
Rights
.
5.1
Demand
Registration
.
5.1.1
Grant
of Right
. The Company, upon written demand
(“
Initial Demand
Notice
”) of the Holder(s) of at least 51% of the
Purchase Options and/or the underlying Units and/or the underlying
securities (“
Majority
Holders
”), agrees to use its best efforts to register
(the “
Demand
Registration
”) under the Act on one occasion, all or
any portion of the Purchase Options requested by the Majority
Holders in the Initial Demand Notice and all of the securities
underlying such Purchase Options, including the Units, Common
Stock, the Warrants and the Common Stock underlying the Rights and
Warrants (collectively, the “
Registrable
Securities
”). On such occasion, the Company will use
its best efforts to file a registration statement or a
post-effective amendment to the Registration Statement covering the
Registrable Securities within sixty days after receipt of the
Initial Demand Notice and use its best efforts to have such
registration statement or post-effective amendment declared
effective as soon as possible thereafter. The demand for
registration may be made at any time during a period of five years
beginning on the Effective Date. The Initial Demand
Notice shall specify the number of shares of Registrable Securities
proposed to be sold and the intended method(s) of distribution
thereof. The Company will notify all holders of the Purchase
Options and/or Registrable Securities of the demand within ten days
from the date of the receipt of any such Initial Demand Notice.
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 fifteen
(15) 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 5.1.4. The Company shall
not be obligated to effect more than one (1) Demand Registration
under this Section 5.1 in respect of all Registrable
Securities.
5.1.2
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.
5.1.3
Underwritten
Offering
. If the Majority Holders so elect and such holders
so advise the Company as part of the Initial Demand Notice, 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 the
Majority Holders.
5.1.4
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
Common Stock or other securities which the Company desires to sell
and the 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 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 Common Stock or other securities registrable pursuant
to the terms of the Registration Rights Agreement between the
Company and the initial investors in the Company and EBC (and/or
its designees), dated as of November 20, 2017 (the
“
Registration Rights
Agreement
” and such registrable securities, the
“
Investor
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 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.
5.1.5
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 the
Company does not have to continue its obligations under
Section 5.1 with respect to such proposed
offering.
5.1.6
Terms.
The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, including the expenses of
any legal counsel selected by the Holders to represent them in
connection with the sale of the Registrable Securities, but the
Holders shall pay any and all underwriting commissions. The Company
agrees to use its reasonable best efforts to qualify or register
the Registrable Securities in such states as are reasonably
requested by the Majority Holder(s); provided, however, that in no
event shall the Company be required to register the Registrable
Securities in a state in which such registration would cause (i)
the Company to be obligated to qualify to do business in such
state, or would subject the Company to taxation as a foreign
corporation doing business in such jurisdiction or (ii) the
principal stockholders of the Company to be obligated to escrow
their shares of Common Stock of the Company. The Company shall use
its best efforts to cause any registration statement or
post-effective amendment filed pursuant to the demand rights
granted under Section 5.1.1 to remain effective for a period of
nine consecutive months from the effective date of such
registration statement or post-effective amendment.
5.2
Piggy-Back
Registration
.
5.2.1
Piggy-Back
Rights
. If at any time during the seven year period
commencing on the Effective Date the Company proposes to file a
registration statement under the 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 5.1), other than
a registration statement (i) filed in connection with any
employee share 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 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.
5.2.2
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 Common
Stock, if any, as to which registration has been demanded pursuant
to written contractual arrangements with persons other than the
holders of Registrable Securities hereunder, the Registrable
Securities as to which registration has been requested under this
Section 5.2, and the 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) first, the Common Stock or other securities that the
Company desires to sell 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 Common Stock or other securities, if any,
comprised of Registrable Securities and Investor
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) third, to the
extent that the Maximum Number of shares has not been reached under
the foregoing clauses (A) and (B), the 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;
(b) If
the registration is a Demand Registration undertaken at the demand
of holders of Investor Securities, (A) first, the 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 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 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 Investor Securities, (A) first, the 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 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 Common Stock or
other securities comprised of Registrable Securities and Investor
Securities, Pro Rata, as to which registration has been requested
pursuant to the terms hereof and of the Registration Rights
Agreement, 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 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.
5.2.3
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 5.2.4.
5.2.4
Terms
.
The Company shall bear all fees and expenses attendant to
registering the Registrable Securities, including the expenses of
any legal counsel selected by the Holders to represent them in
connection with the sale of the Registrable Securities but the
Holders shall pay any and all underwriting commissions related to
the Registrable Securities. In the event of such a proposed
registration, the Company shall furnish the then Holders of
outstanding Registrable Securities with not less than fifteen days
written notice prior to the proposed date of filing of such
registration statement. Such notice to the Holders shall continue
to be given for each applicable registration statement filed
(during the period in which the Purchase Option is exercisable) by
the Company until such time as all of the Registrable Securities
have been registered and sold. The Holders of the Registrable
Securities shall exercise the “piggy-back” rights
provided for herein by giving written notice, within ten days of
the receipt of the Company’s notice of its intention to file
a registration statement. The Company shall use its best efforts to
cause any registration statement filed pursuant to the above
“piggyback” rights to remain effective for at least
nine months from the date that the Holders of the Registrable
Securities are first given the opportunity to sell all of such
securities.
5.3
General
Terms
.
5.3.1
Indemnification
.
The Company shall, to the fullest extent permitted by applicable
law, indemnify the Holder(s) of the Registrable Securities to be
sold pursuant to any registration statement hereunder and each
person, if any, who controls such Holders within the meaning of
Section 15 of the Act or Section 20(a) of the Securities Exchange
Act of 1934, as amended (“
Exchange
Act
”), against all loss, claim, damage, expense or
liability (including all reasonable attorneys’ fees and other
expenses reasonably incurred in investigating, preparing or
defending against litigation, commenced or threatened, or any claim
whatsoever whether arising out of any action between the
underwriter and the Company or between the underwriter and any
third party or otherwise) to which any of them may become subject
under the Act, the Exchange Act or otherwise, arising from such
registration statement but only to the same extent and with the
same effect as the provisions pursuant to which the Company has
agreed to indemnify the underwriters contained in Section 5 of the
Underwriting Agreement between the Company, EBC and the other
underwriters named therein dated the Effective Date. The Holder(s)
of the Registrable Securities to be sold pursuant to such
registration statement, and their successors and assigns, shall
severally, and not jointly, indemnify the Company, its officers and
directors and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against all loss, claim, damage, expense or liability
(including all reasonable attorneys’ fees and other expenses
reasonably incurred in investigating, preparing or defending
against any claim whatsoever) to which they may become subject
under the Act, the Exchange Act or otherwise, arising from
information furnished by or on behalf of such Holders, or their
successors or assigns, in writing, for specific inclusion in such
registration statement to the same extent and with the same effect
as the provisions contained in Section 5 of the Underwriting
Agreement pursuant to which the underwriters have agreed to
indemnify the Company.
5.3.2
Exercise
of Purchase Options
. Nothing contained in this Purchase
Option shall be construed as requiring the Holder(s) to exercise
their Purchase Options or Warrants underlying such Purchase Options
prior to or after the initial filing of any registration statement
or the effectiveness thereof.
5.3.3
Documents
Delivered to Holders
. The Company shall furnish EBC, as
representative of the Holders participating in any of the foregoing
offerings, a signed counterpart, addressed to the participating
Holders, of (i) an opinion of counsel to the Company, dated the
effective date of such registration statement (and, if such
registration includes an underwritten public offering, an opinion
dated the date of the closing under any underwriting agreement
related thereto), and (ii) if such registration statement is filed
in connection of an underwritten public offering, a “cold
comfort” letter dated the effective date of such registration
statement (and, if such registration includes an underwritten
public offering, a letter dated the date of the closing under the
underwriting agreement) signed by the independent public
accountants who have issued a report on the Company’s
financial statements included in such registration statement, in
each case covering substantially the same matters with respect to
such registration statement (and the prospectus included therein)
and, in the case of such accountants’ letter, with respect to
events subsequent to the date of such financial statements, as are
customarily covered in opinions of issuer’s counsel and in
accountants’ letters delivered to underwriters in
underwritten public offerings of securities. The Company shall also
deliver promptly to EBC, as representative of the Holders
participating in the offering, the correspondence and memoranda
described below and copies of all correspondence between the
Commission and the Company, its counsel or auditors and all
memoranda relating to discussions with the Commission or its staff
with respect to the registration statement and permit EBC, as
representative of the Holders, to do such investigation, upon
reasonable advance notice, with respect to information contained in
or omitted from the registration statement as it deems reasonably
necessary to comply with applicable securities laws or rules of
FINRA. Such investigation shall include access to books, records
and properties and opportunities to discuss the business of the
Company with its officers and independent auditors, all to such
reasonable extent and at such reasonable times and as often as EBC,
as representative of the Holders, shall reasonably request. The
Company shall not be required to disclose any confidential
information or other records to EBC, as representative of the
Holders, or to any other person, until and unless such persons
shall have entered into reasonable confidentiality agreements (in
form and substance reasonably satisfactory to the Company), with
the Company with respect thereto.
5.3.4
Underwriting
Agreement
. The Company shall enter into an underwriting
agreement with the managing underwriter(s), if any, selected by any
Holders whose Registrable Securities are being registered pursuant
to this Section 5, which managing underwriter shall be reasonably
acceptable to the Company. Such agreement shall be reasonably
satisfactory in form and substance to the Company, each Holder and
such managing underwriters, and shall contain such representations,
warranties and covenants by the Company and such other terms as are
customarily contained in agreements of that type used by the
managing underwriter. The Holders shall be parties to any
underwriting agreement relating to an underwritten sale of their
Registrable Securities and may, at their option, require that any
or all the representations, warranties and covenants of the Company
to or for the benefit of such underwriters shall also be made to
and for the benefit of such Holders. Such Holders shall not be
required to make any representations or warranties to or agreements
with the Company or the underwriters except as they may relate to
such Holders and their intended methods of distribution. Such
Holders, however, shall agree to such covenants and indemnification
and contribution obligations for selling stockholders as are
customarily contained in agreements of that type used by the
managing underwriter. Further, such Holders shall execute
appropriate custody agreements and otherwise cooperate fully in the
preparation of the registration statement and other documents
relating to any offering in which they include securities pursuant
to this Section 5. Each Holder shall also furnish to the Company
such information regarding itself, the Registrable Securities held
by it, and the intended method of disposition of such securities as
shall be reasonably required to effect the registration of the
Registrable Securities.
5.3.5
Rule
144 Sale
. Notwithstanding anything contained in this Section
5 to the contrary, the Company shall have no obligation pursuant to
Sections 5.1 or 5.2 to use its best efforts to obtain the
registration of Registrable Securities held by any Holder (i) where
such Holder would then be entitled to sell under Rule 144 within
any three-month period (or such other period prescribed under Rule
144 as may be provided by amendment thereof) all of the Registrable
Securities then held by such Holder, and (ii) where the number of
Registrable Securities held by such Holder is within the volume
limitations under paragraph (e) of Rule 144 (calculated as if such
Holder were an affiliate within the meaning of Rule
144).
5.3.6
Supplemental
Prospectus
. Each Holder agrees, that upon receipt of any
notice from the Company of the happening of any event as a result
of which the prospectus included in the registration statement, as
then in effect, includes an untrue statement of a material fact or
omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of
the circumstances then existing, such Holder will immediately
discontinue disposition of Registrable Securities pursuant to the
registration statement covering such Registrable Securities until
such Holder’s receipt of the copies of a supplemental or
amended prospectus, and, if so desired by the Company, such Holder
shall deliver to the Company (at the expense of the Company) or
destroy (and deliver to the Company a certificate of such
destruction) all copies, other than permanent file copies then in
such Holder’s possession, of the prospectus covering such
Registrable Securities current at the time of receipt of such
notice.
6.
Adjustments.
6.1
Adjustments
to Exercise Price and Number of Securities
. The Exercise
Price and the number of Units underlying the Purchase Option shall
be subject to adjustment from time to time as hereinafter set
forth:
6.1.1
Share
Dividends - Split-Ups
. If after the date hereof, and subject
to the provisions of Section 6.3 below, the number of outstanding
shares of Common Stock is increased by a share dividend payable in
Common Stock or by a split-up of Common Stock or other similar
event, then, on the effective date thereof, the number of shares of
Common Stock underlying each of the Units purchasable hereunder
shall be increased in proportion to such increase in outstanding
shares. In such case, the number of shares of Common Stock, and the
exercise price applicable thereto, underlying the Warrants
underlying each of the Units purchasable hereunder shall be
adjusted in accordance with the terms of the Warrants.
6.1.2
Aggregation
of Shares
. If after the date hereof, and subject to the
provisions of Section 6.3, the number of outstanding shares of
Common Stock is decreased by a consolidation, combination or
reclassification of Common Stock or other similar event, then, on
the effective date thereof, the number of shares of Common Stock
underlying each of the Units purchasable hereunder shall be
decreased in proportion to such decrease in outstanding shares. In
such case, the number of shares of Common Stock, and the exercise
price applicable thereto, underlying the Warrants underlying each
of the Units purchasable hereunder shall be adjusted in accordance
with the terms of the Warrants.
6.1.3
Replacement
of Securities upon Reorganization, etc
. In case of any
reclassification or reorganization of the outstanding Common Stock
other than a change covered by Section 6.1.1 or 6.1.2 hereof or
that solely affects the par value of such 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 property of the Company as an entirety
or substantially as an entirety in connection with which the
Company is dissolved, the Holder of this Purchase Option shall have
the right thereafter (until the expiration of the right of exercise
of this Purchase Option) to receive upon the exercise hereof, for
the same aggregate Exercise Price payable hereunder immediately
prior to such event, the kind and amount of shares 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, by a Holder of
the number of shares of Common Stock of the Company obtainable upon
exercise of this Purchase Option and the underlying Rights and
Warrants immediately prior to such event; and if any
reclassification also results in a change in Common Stock covered
by Section 6.1.1 or 6.1.2, then such adjustment shall be made
pursuant to Sections 6.1.1, 6.1.2 and this Section 6.1.3. The
provisions of this Section 6.1.3 shall similarly apply to
successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
6.1.4
Changes
in Form of Purchase Option
. This form of Purchase Option
need not be changed because of any change pursuant to this Section,
and Purchase Options issued after such change may state the same
Exercise Price and the same number of Units as are stated in the
Purchase Options initially issued pursuant to this Agreement. The
acceptance by any Holder of the issuance of new Purchase Options
reflecting a required or permissive change shall not be deemed to
waive any rights to an adjustment occurring after the Commencement
Date or the computation thereof.
6.2
Substitute
Purchase Option
. In case of any consolidation of the Company
with, or merger of the Company with, or merger of the Company into,
another corporation (other than a consolidation or merger which
does not result in any reclassification or change of the
outstanding Common Stock), the corporation formed by such
consolidation or merger shall execute and deliver to the Holder a
supplemental Purchase Option providing that the holder of each
Purchase Option then outstanding or to be outstanding shall have
the right thereafter (until the stated expiration of such Purchase
Option) to receive, upon exercise of such Purchase Option, the kind
and amount of shares and other securities and property receivable
upon such consolidation or merger, by a holder of the number of
shares of Common Stock of the Company for which such Purchase
Option might have been exercised immediately prior to such
consolidation, merger, sale or transfer. Such supplemental Purchase
Option shall provide for adjustments which shall be identical to
the adjustments provided in Section 6. The above provision of this
Section shall similarly apply to successive consolidations or
mergers.
6.3
Elimination
of Fractional Interests
. The Company shall not be required
to issue certificates representing fractions of shares of Common
Stock or Warrants upon the exercise of the Purchase Option, nor
shall it be required to issue scrip or pay cash in lieu of any
fractional interests, it being the intent of the parties that all
fractional interests shall be eliminated by rounding any fraction
up or down to the nearest whole number of Warrants, shares of
Common Stock or other securities, properties or rights (or as
otherwise provided pursuant to the Warrants Agreement or Rights
Agreement, as the case may be).
7.
Reservation
and Listing.
The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock, solely
for the purpose of issuance upon exercise of the Purchase Options
(including the Common Stock underlying the Rights) or the Warrants
underlying the Purchase Option, such number of shares of Common
Stock or other securities, properties or rights as shall be
issuable upon the exercise thereof. The Company covenants and
agrees that, upon exercise of the Purchase Options and payment of
the Exercise Price therefor, all shares of Common Stock and other
securities issuable upon such exercise shall be duly and validly
issued, fully paid and non-assessable and not subject to preemptive
rights of any stockholder. The Company further covenants and agrees
that upon exercise of the Warrants underlying the Purchase Options
and payment of the respective Warrant exercise price therefor, all
shares of Common Stock and other securities issuable upon such
exercise shall be duly and validly issued, fully paid and
non-assessable and not subject to preemptive rights of any
stockholder. As long as the Purchase Options shall be outstanding,
the Company shall use its best efforts to cause all (i) Units and
Common Stock issuable upon exercise of the Purchase Options
(including the Common Stock underlying the Rights), (ii) Warrants
issuable upon exercise of the Purchase Options, and (iii) Common
Stock issuable upon conversion of the Rights included in the Units
issuable upon exercise of the Purchase Option and (iv) Common Stock
issuable upon exercise of the Warrants included in the Units
issuable upon exercise of the Purchase Option to be listed (subject
to official notice of issuance) on all securities exchanges (or, if
applicable on the OTC Bulletin Board or any successor trading
market) on which the Units, the Common Stock or the Public Warrants
issued to the public in connection herewith may then be listed
and/or quoted.
8.
Certain
Notice Requirements
.
8.1
Holder’s
Right to Receive Notice
. Nothing herein shall be construed
as conferring upon the Holders the right to vote or consent as a
stockholder for the election of directors or any other matter, or
as having any rights whatsoever as a stockholder of the Company.
If, however, at any time prior to the expiration of the Purchase
Options and their exercise, any of the events described in Section
8.2 shall occur, then, in one or more of said events, the Company
shall give written notice of such event at least fifteen days prior
to the date fixed as a record date or the date of closing the
transfer books for the determination of the stockholders entitled
to such dividend, distribution, conversion or exchange of
securities or subscription rights, or entitled to vote on such
proposed dissolution, liquidation, winding up or sale. Such notice
shall specify such record date or the date of the closing of the
transfer books, as the case may be. Notwithstanding the foregoing,
the Company shall deliver to each Holder a copy of each notice
given to the other stockholders of the Company at the same time and
in the same manner that such notice is given to the
stockholders.
8.2
Events
Requiring Notice
. The Company shall be required to give the
notice described in this Section 8 upon one or more of the
following events: (i) if the Company shall take a record of the
holders of its Common Stock for the purpose of entitling them to
receive a dividend or distribution payable otherwise than in cash,
or a cash dividend or distribution payable otherwise than out of
retained earnings, as indicated by the accounting treatment of such
dividend or distribution on the books of the Company, or (ii) the
Company shall offer to all the holders of its Common Stock any
additional shares of the Company or securities convertible into or
exchangeable for shares of the Company, or any option, right or
warrant to subscribe therefor, or (iii) a dissolution, liquidation
or winding up of the Company (other than in connection with a
consolidation or merger) or a sale of all or substantially all of
its property, assets and business shall be proposed.
8.3
Notice
of Change in Exercise Price
. The Company shall, promptly
after an event requiring a change in the Exercise Price pursuant to
Section 6 hereof, send notice to the Holders of such event and
change (“
Price
Notice
”). The Price Notice shall describe the event
causing the change and the method of calculating same and shall be
certified as being true and accurate by the Company’s
President and Chief Financial Officer.
8.4
Transmittal
of Notices
. All notices, requests, consents and other
communications under this Purchase Option shall be in writing and
shall be deemed to have been duly made when hand delivered, or
mailed by express mail or private courier service: (i) if to the
registered Holder of the Purchase Option, to the address of such
Holder as shown on the books of the Company, or (ii) if to the
Company, to the following address or to such other address as the
Company may designate by notice to the Holders:
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Attn:
Chief Executive Officer
Email:
rackerman@bigrockpartners.com
9.
Miscellaneous.
9.1
Amendments
.
The Company and EBC may from time to time supplement or amend this
Purchase Option without the approval of any of the Holders in order
to cure any ambiguity, to correct or supplement any provision
contained herein that may be defective or inconsistent with any
other provisions herein, or to make any other provisions in regard
to matters or questions arising hereunder that the Company and EBC
may deem necessary or desirable and that the Company and EBC deem
shall not adversely affect the interest of the Holders. All other
modifications or amendments shall require the written consent of
and be signed by the party against whom enforcement of the
modification or amendment is sought.
9.2
Headings
.
The headings contained herein are for the sole purpose of
convenience of reference, and shall not in any way limit or affect
the meaning or interpretation of any of the terms or provisions of
this Purchase Option.
9.3
Entire
Agreement
. This Purchase Option (together with the other
agreements and documents being delivered pursuant to or in
connection with this Purchase Option) constitutes the entire
agreement of the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings of
the parties, oral and written, with respect to the subject matter
hereof.
9.4
Binding
Effect
. This Purchase Option shall inure solely to the
benefit of and shall be binding upon, the Holder and the Company
and their permitted assignees, respective successors, legal
representative and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim
under or in respect of or by virtue of this Purchase Option or any
provisions herein contained.
9.5
Governing
Law; Submission to Jurisdiction
. This Purchase Option shall
be governed by and construed and enforced in accordance with the
laws of the State of New York, without giving effect to conflict of
laws. The Company hereby agrees that any action, proceeding or
claim against it arising out of, or relating in any way to this
Purchase Option shall be brought and enforced in the courts of the
State of New York or of the United States of America 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 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 8 hereof. Such mailing shall be deemed personal service and
shall be legal and binding upon the Company in any action,
proceeding or claim. The Company and the Holder agree that the
prevailing party(ies) in any such action shall be entitled to
recover from the other party(ies) all of its reasonable
attorneys’ fees and expenses relating to such action or
proceeding and/or incurred in connection with the preparation
therefor.
9.6
Waiver,
Etc
. The failure of the Company or the Holder to at any time
enforce any of the provisions of this Purchase Option shall not be
deemed or construed to be a waiver of any such provision, nor to in
any way affect the validity of this Purchase Option or any
provision hereof or the right of the Company or any Holder to
thereafter enforce each and every provision of this Purchase
Option. No waiver of any breach, non-compliance or non-fulfillment
of any of the provisions of this Purchase Option shall be effective
unless set forth in a written instrument executed by the party or
parties against whom or which enforcement of such waiver is sought;
and no waiver of any such breach, non-compliance or non-fulfillment
shall be construed or deemed to be a waiver of any other or
subsequent breach or non-compliance.
9.7
Execution
in Counterparts
. This Purchase Option may be executed in one
or more counterparts, and by the different parties hereto in
separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and
the same agreement, and shall become effective when one or more
counterparts has been signed by each of the parties hereto and
delivered to each of the other parties hereto.
9.8
Exchange
Agreement
. As a condition of the Holder’s receipt and
acceptance of this Purchase Option, Holder agrees that, at any time
prior to the complete exercise of this Purchase Option by Holder,
if the Company and EBC enter into an agreement (“
Exchange
Agreement
”) pursuant to which they agree that all
outstanding Purchase Options will be exchanged for securities or
cash or a combination of both, then Holder shall agree to such
exchange and become a party to the Exchange Agreement.
IN
WITNESS WHEREOF, the Company has caused this Purchase Option to be
signed by its duly authorized officer as of the [___] day of
[_____], 2017.
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BIG ROCK PARTNERS ACQUISITION CORP.
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By:
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Name:
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Title:
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Form to
be used to exercise Purchase Option:
Big
Rock Partners Acquisition Corp.
c/o Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
Attn.:
Chief Executive Officer
Date:_________________,
20___
The
undersigned hereby elects irrevocably to exercise all or a portion
of the within Purchase Option and to purchase ____ Units of Big
Rock Partners Acquisition Corp.and hereby makes payment of
$____________ (at the rate of $10.00 per Unit) in payment of the
Exercise Price pursuant thereto. Please issue the securities as to
which this Purchase Option is exercised in accordance with the
instructions given below.
or
The
undersigned hereby elects irrevocably to convert its right to
purchase _________ Units purchasable under the within Purchase
Option by surrender of the unexercised portion of the attached
Purchase Option (with a “Value” based of $_______ based
on a “Market Price” of $_______). Please issue the
securities comprising the Units as to which this Purchase Option is
exercised in accordance with the instructions given
below.
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NOTICE: The
signature to this assignment must correspond with the name as
written upon the face of the purchase option 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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INSTRUCTIONS
FOR REGISTRATION OF SECURITIES
Name
Address
Form to
be used to assign Purchase Option:
ASSIGNMENT
(To be
executed by the registered Holder to effect a transfer of the
within Purchase Option):
FOR
VALUE RECEIVED,______________________________________________ does
hereby sell, assign and transfer
unto___________________________________________ the right to
purchase __________ Units of Big Rock Partners Acquisition Corp.
(“
Company
”)
evidenced by the within Purchase Option and does hereby authorize
the Company to transfer such right on the books of the
Company.
Dated:
___________________, 20__
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Signature
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NOTICE: The
signature to this assignment must correspond with the name as
written upon the face of the purchase option 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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14
Exhibit 10.1
INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Investment Management Trust Agreement (this
“Agreement”) is made effective as of November
20, 2017 by and between Big Rock Partners Acquisition Corp.,
a Delaware corporation (the “Company”), and Continental
Stock Transfer & Trust Company, a New York corporation (the
“Trustee”).
WHEREAS,
the Company’s registration statements on Form
S-1, Nos. 333-220947 and 333-221659 (the
“Registration Statements”) and prospectus
(the “Prospectus”) for the initial public offering of
the Company’s units (the “Units”), each of which
consists of one share of the Company’s common stock, par
value $0.001 per share (the “Common Stock”), one right
to receive one-tenth of one share of Common Stock upon a
Business Combination (defined
below) and one-half of one warrant, each whole warrant
entitling the holder thereof to purchase one share of Common Stock
(such initial public offering hereinafter referred to as the
“Offering”), have been declared effective
as of the date hereof by the U.S. Securities and Exchange
Commission; and
WHEREAS,
the Company has entered into an Underwriting Agreement (the
“Underwriting Agreement”) with EarlyBirdCapital, Inc.
as representative (“EBC” or the
“Representative”) of the several underwriters (the
“Underwriters”) named therein; and
WHEREAS,
as described in the Registration Statements,
$60,000,000 of the gross proceeds of the Offering and
sale of the Private Placement Units (as defined in the
Underwriting Agreement) (or $69,000,000
if the Underwriters’ over-allotment option is exercised in
full) will be delivered to the Trustee to be deposited and held in
a segregated trust account located at all times in the United
States (the “Trust Account”) for the benefit of the
Company and the holders of the Common Stock included in the Units
issued in the Offering as hereinafter provided (the amount to be
delivered to the Trustee (and any interest subsequently earned
thereon) is 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.
NOW
THEREFORE, 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 the Trust Account established by the Trustee at
J.P. Morgan Chase Bank, N.A. 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, having a maturity of 180 days or less, or in money
market funds meeting the conditions of paragraph (d) of Rule 2a-7
promulgated under the Investment Company Act of 1940, as amended,
which invest only in direct U.S. government treasury obligations,
as determined by the Company; the Trustee may not invest in any
other securities or assets, it being understood that the Trust
Account will earn no interest while account funds are uninvested
awaiting the Company’s instructions hereunder and the Trustee
may earn bank credits or other consideration during such
periods;
(d)
Collect and
receive, when due, all interest or other income arising from the
Property, which shall become part of the “Property,” as
such term is used herein;
(e)
Promptly notify the
Company of all communications received by the Trustee with respect
to any Property requiring action by the Company;
(f)
Supply any
necessary information or documents as may be requested by the
Company (or its authorized agents) in connection with the
Company’s preparation of the tax returns relating to assets
held in the Trust Account;
(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 (x)
receipt of, and only in accordance with, the terms of a letter from
the Company (“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 Chief Executive
Officer, President, Chief Financial Officer, Secretary or Chairman
of the board of directors (the “Board”) or other
authorized officer of 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, including
interest not previously released to the Company to pay its
franchise and income taxes, only as directed in the Termination
Letter and the other documents referred to therein, or (y)
expiration of such time period provided for in the Company’s
amended and restated certificate of incorporation, as the same may
be amended from time to time (the “Last Date”), if a
Termination Letter has not been received by the Trustee prior to
such date, in which case the Trust Account, including interest not
previously released to the Company to pay its franchise and income
taxes, shall be liquidated in accordance with the procedures set
forth in the Termination Letter attached as Exhibit B and the
Property in the Trust Account shall be distributed to the Public
Stockholders of record as of such date; provided, however, that in
the event the Trustee receives a Termination Letter in a form
substantially similar to Exhibit B hereto, or if the Trustee begins
to liquidate the Property because it has received no such
Termination Letter by the Last Date, the Trustee shall keep the
Trust Account open until twelve (12) months following the date the
Property has been distributed to the Public
Stockholders;
(j)
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 (a
“Tax Payment Withdrawal Instruction”), withdraw from
the Trust Account and distribute to the Company the amount of
interest earned on the Property requested by the Company to cover
any income or franchise tax obligation owed by the Company as a
result of assets of the Company or interest or other income earned
on the Property, which amount shall be delivered directly to the
Company by electronic funds transfer or other method of prompt
payment, and the Company shall forward such payment to the relevant
taxing authority; provided, however, that to the extent there is
not sufficient cash in the Trust Account to pay such tax
obligation, the Trustee shall liquidate such assets held in the
Trust Account as shall be designated by the Company in writing to
make such distribution; provided, further, that if the tax to be
paid is a franchise tax, the written request by the Company to make
such distribution shall be accompanied by a copy of the franchise
tax bill from the State of Delaware for the Company and a written
statement from the principal financial officer of the Company
setting forth the actual amount payable. The written request of the
Company referenced above shall constitute presumptive evidence that
the Company is entitled to said funds, and the Trustee shall have
no responsibility to look beyond said request;
(k)
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 D (a
“Stockholder Redemption Withdrawal Instruction”), the
Trustee shall distribute on behalf of the Company the amount
requested by the Company to be used to redeem shares of Common
Stock from Public Stockholders properly submitted in connection
with a stockholder vote to approve an amendment to the
Company’s amended and restated certificate of incorporation
that would affect the substance or timing of the Company’s
obligation to redeem 100% of its public shares of Common Stock if
the Company has not consummated an initial Business Combination
within such time as is described in the Company’s amended and
restated certificate of incorporation. The written request of the
Company referenced above shall constitute presumptive evidence that
the Company is entitled to distribute said funds, and the Trustee
shall have no responsibility to look beyond said request;
and
(l)
Not make any
withdrawals or distributions from the Trust Account other than
pursuant to Section 1(i), (j) or (k) above.
2.
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, President, Chief Executive
Officer or Chief Financial Officer. In addition, except with
respect to its duties under Sections 1(i) and 1(j) hereof, 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 and with reasonable care, 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 Section
4 hereof, hold the Trustee harmless and indemnify the Trustee from
and against any and all expenses, including reasonable counsel fees
and disbursements, or losses suffered by the Trustee in connection
with any action taken by it hereunder and in connection with any
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 interest
earned on the Property, except for expenses and losses resulting
from the Trustee’s gross negligence, fraud 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 Section 2(b), 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 such consent shall not be unreasonably withheld. The Company
may participate in such action with its own counsel;
(c)
Pay the Trustee the
fees set forth on Schedule A hereto, including an initial
acceptance fee, annual administration fee, and transaction
processing fee 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 unless and until it is
distributed to the Company pursuant to Sections 1(i) through 1(j)
hereof. The Company shall pay the Trustee the initial acceptance
fee and the first monthly fee at the consummation of the Offering.
The Trustee shall refund to the Company the monthly fee (on a pro
rata basis) with respect to any period after the liquidation of the
Trust Account. The Company shall not be responsible for any other
fees or charges of the Trustee except as set forth in this Section
2(c), Schedule A and as may be provided in Section 2(b)
hereof;
(d)
In connection with
any vote of the Company’s stockholders regarding a merger,
capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination involving the
Company and one or more businesses (the “Business
Combination”), provide to the Trustee an affidavit or
certificate of the inspector of elections for the stockholder
meeting verifying the vote of such stockholders regarding such
Business Combination;
(e)
Provide EBC with a
copy of any Termination Letter(s) and/or any other correspondence
that is sent to the Trustee with respect to any proposed withdrawal
from the Trust Account promptly after it issues the same;
and
(f)
Instruct the
Trustee to make only those distributions that are permitted under
this Agreement, and refrain from instructing the Trustee to make
any distributions that are not permitted under this
Agreement.
3.
Limitations of Liability
. The Trustee
shall have no responsibility or liability to:
(a)
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;
(b)
Take any action
with respect to the Property, other than as directed in Section 1
hereof, and the Trustee shall have no liability to any party except
for liability arising out of the Trustee’s gross negligence,
fraud or willful misconduct;
(c)
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;
(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 Trustee’s best judgment, except for the
Trustee’s gross negligence, fraud 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, which counsel may
be the Company’s counsel), 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
the Trustee believes, in good faith and with reasonable care, 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 accuracy
of the information contained in the Registration
Statements;
(h)
Provide any
assurance that any Business Combination entered into by the Company
or any other action taken by the Company is as contemplated by the
Registration Statements;
(i)
File information
returns with respect to the Trust Account with any local, state or
federal taxing authority or provide periodic written statements to
the Company documenting the taxes payable by the Company, if any,
relating to any interest income earned on the
Property;
(j)
Prepare, execute
and file tax reports, income or other tax returns and pay any taxes
with respect to any income generated by, and activities relating
to, the Trust Account, regardless of whether such tax is payable by
the Trust Account or the Company, including, but not limited to,
franchise and income tax obligations, except pursuant to Section
1(j) hereof; or
(k)
Verify
calculations, qualify or otherwise approve the Company’s
written requests for distributions pursuant to Sections 1(i), 1(j)
and 1(k) hereof.
4.
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 2(b) or Section 2(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.
5.
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, pending which the Trustee shall
continue to act in accordance with this Agreement. At such time
that the Company notifies the Trustee that a successor trustee has
been appointed 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 (90) 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 and
its obligations in accordance with the provisions of Section 1(i)
hereof (which section may not be amended under any circumstances)
and distributed the Property in accordance with the provisions of
the Termination Letter, this Agreement shall terminate except with
respect to Section 2(b).
6.
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 confidential information, or of
any change in its authorized personnel. In executing funds
transfers, the Trustee shall 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. Except for any
liability arising out of the Trustee’s gross negligence,
fraud or willful misconduct, the Trustee shall not be liable for
any loss, liability or expense resulting from any error in the
information or transmission of the funds.
(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(k) hereof (which sections may not be modified,
amended or deleted without the affirmative vote of a majority of
the then outstanding shares of Common Stock; provided that no such
amendment will affect any Public Stockholder who has otherwise
indicated his election to redeem his shares of Common Stock in
connection with a stockholder vote sought to amend this Agreement),
this Agreement or any provision hereof may only be changed, amended
or modified (other than to correct a typographical error) by a
writing signed by each of the parties hereto and with the
prior written consent of EBC.
(d)
The parties hereto
consent to the jurisdiction and venue of any state or federal court
located in the City of New York, State of New York, for purposes of
resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR
COUNTERCLAIM IN ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY
WAIVES THE RIGHT TO TRIAL BY JURY.
(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
One
State Street, 30th Floor
New
York, New York 10004
Attn:
Steven G. Nelson or Sharmin Carter
Fax
No.: (212) 509-5150
if to
the Company, to:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
Attn:
Richard Ackerman
in each
case, with copies to:
Akerman
LLP
Three
Brickell City Centre
98
Southeast 7
th
Street,
Suite
1100
Miami,
FL 33131
Attn:
Michael Francis, Esq.
Fax
No.: (305) 374-5095
and
EarlyBirdCapital,
Inc.
One
Huntington Quadrangle, Suite 4C18
Melville, New York
11747
Attn.:
Eileen Moore
Fax
No.: (212) 661-4936
and
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue, 11th Floor
New
York, New York 10174
Attn:
David Alan Miller, Esq.
Fax
No.: (212) 818-8881
(f)
Each of the Company
and the Trustee 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.
(g)
Each of the Company
and the Trustee hereby acknowledges and agrees that EBC on behalf
of the Underwriters, is a third party beneficiary of this
Agreement.
(h)
Except as specified
herein, no party to this Agreement may assign its rights or
delegate its obligations hereunder to any other person or
entity.
[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:
|
/s/ Francis
Wolf
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|
|
|
|
Name: Francis
E. Wolf, Jr.
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|
|
|
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Title:
Vice President
|
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|
Big
Rock Partners Acquisition Corp.
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By:
|
/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
Chief Executive Officer
|
|
[Signature Page to
Investment Management Trust Agreement]
SCHEDULE A
|
Fee
Item
|
|
Time
and method of payment
|
|
Amount
|
|
Initial
set-up fee.
|
|
Initial
closing of Offering by wire transfer.
|
|
|
$2,000.00
|
|
|
|
|
|
|
|
|
Trustee
administration fee
|
|
Payable
annually. First year fee payable, at initial closing of Offering by
wire transfer, thereafter by wire transfer or check.
|
|
$
|
10,000.00
|
|
|
|
|
|
|
|
|
Transaction
processing fee for disbursements to Company under Sections 1(i) ,
1(j) and 1(k)
|
|
Deduction
by Trustee from accumulated income following disbursement made to
Company under Section 1
|
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$
|
250.00
|
|
|
|
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|
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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
One
State Street, 30th Floor
New
York, New York 10004
Attn:
Steven G. Nelson or Sharmin Carter
Re: Trust
Account No.
Termination Letter
Sir or
Madam:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement
between Big Rock Partners Acquisition Corp. (the
“Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of _____, 2017 (the
“Trust Agreement”), this is to advise you that the
Company has entered into an agreement with ___________ (the
“Target Business”) to consummate a business combination
with Target Business (the “Business Combination”) on or
about ____________. The Company shall notify you at least
forty-eight (48) hours in advance of the actual date of the
consummation of the Business Combination (the “Consummation
Date”). Capitalized terms used but not defined herein shall
have the meanings set forth in the Trust Agreement.
In
accordance with the terms of the Trust Agreement, we hereby
authorize you to commence to liquidate all of the assets of the
Trust Account on ___________, and to transfer the proceeds into the
trust checking 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 checking account at
[
●
]
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, or will be consummated concurrently with your transfer
of funds to the accounts as directed by the Company (the “
Notification ” ); (ii) the Company shall deliver to you (a)
[an affidavit] [a certificate] of the Chief Executive Officer,
which verifies that the Business Combination has been approved by a
vote of the Company’s stockholders, if a vote is held and (b)
joint written instruction signed by the Company and
EarlyBirdCapital, Inc. with respect to the transfer of the funds
held in the Trust Account (the “Instruction Letter”).
You are hereby directed and authorized to transfer the funds held
in the Trust Account immediately upon your receipt of the
Notification 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 in writing of the
same and the Company shall direct you as to whether such funds
should remain in the Trust Account and be distributed after the
Consummation Date to the Company. Upon the distribution of all the
funds, net of any payments necessary for reasonable unreimbursed
expenses related to liquidating the Trust Account, your obligations
under 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 Section 1(c) of the Trust
Agreement on the business day immediately following the
Consummation Date as set forth in the notice as soon thereafter as
possible.
Very
truly yours,
Big
Rock Partners Acquisition Corp.
By:
_________________________________________________
Name:
Title:
AGREED
TO AND
ACKNOWLEDGED
BY
EARLYBIRDCAPITAL,
INC.
By:
_________________________________________________
EXHIBIT B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
One
State Street, 30th Floor
New
York, New York 10004
Attn:
Steven G. Nelson or Sharmin Carter
Re: Trust
Account No.
Termination Letter
Sir or
Madam:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement
between Big Rock Partners Acquisition Corp. (the
“Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of _____, 2017 (the
“Trust Agreement”), this is to advise you that the
Company has been unable to effect a business combination with a
Target Business (the “Business Combination”) within the
time frame specified in the Company’s Amended and Restated
Certificate of Incorporation, as described in the Company’s
Prospectus relating to the Offering. Capitalized terms used but not
defined herein 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 of the assets in the Trust Account
on ____________, 20___ and to transfer the total proceeds into the
trust checking account at
[
●
]
to await distribution to the Public
Stockholders. The Company has selected [_________]
1
as the record date for the purpose of
determining the Public Stockholders entitled to receive their share
of the liquidation proceeds. You agree to be the Paying Agent of
record and, in your separate capacity as Paying Agent, agree to
distribute said funds directly to the Company’s 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, net of any
payments necessary for reasonable unreimbursed expenses related to
liquidating the Trust Account, your obligations under the Trust
Agreement shall be terminated, except to the extent otherwise
provided in Section 1(j) of the Trust Agreement.
Very
truly yours,
Big
Rock Partners Acquisition Corp.
By:
_________________________________________________
Name:
Title:
cc:
EarlyBirdCapital, Inc.
EXHIBIT C
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
One
State Street, 30th Floor
New
York, New York 10004
Attn:
Accounting Department: Sharmin Carter and Celeste
Gonzalez
Re: Trust
Account No.
Tax Payment Withdrawal Instruction
Ladies:
Pursuant
to Section 1(j) of the Investment Management Trust Agreement
between Big Rock Partners Acquisition Corp. (the
“Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of _____, 2017 (the
“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. Capitalized terms used but
not defined herein shall have the meanings set forth in the Trust
Agreement.
The
Company needs such funds to pay for the tax obligations as set
forth on the attached tax return or tax statement. 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]
Very
truly yours,
Big
Rock Partners Acquisition Corp.
By:
_________________________________________________
Name:
Title:
cc:
EarlyBirdCapital, Inc.
EXHIBIT D
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
One
State Street, 30th Floor
New
York, New York 10004
Attn:
Steven G. Nelson or Sharmin Carter
Re: Trust
Account No.
Stockholder Redemption Withdrawal Instruction
Sir or
Madam:
Pursuant
to Section 1(k) of the Investment Management Trust Agreement
between Big Rock Partners Acquisition Corp. (the
“Company”) and Continental Stock Transfer & Trust
Company (the “Trustee”), dated as of _____, 2017 (the
“Trust Agreement”), the Company hereby requests that
you deliver to the redeeming Public Stockholders of the Company
$_______ of the principal and interest income earned on the
Property as of the date hereof. Capitalized terms used but not
defined herein shall have the meanings set forth in the Trust
Agreement.
The
Company needs such funds to pay its Public Stockholders who have
properly elected to have their shares of Common Stock redeemed by
the Company in connection with a stockholder vote to approve an
amendment to the Company’s amended and restated certificate
of incorporation that affects the substance or timing of the
Company’s obligation to redeem 100% of its public shares of
Common Stock if the Company has not consummated an initial Business
Combination within such time as is described in the Company’s
amended and restated certificate of incorporation. As such, you are
hereby directed and authorized to transfer (via wire transfer) such
funds promptly upon your receipt of this letter to the redeeming
Public Stockholders in accordance with your customary
procedures.
Very
truly yours,
Big
Rock Partners Acquisition Corp.
By:
_________________________________________________
Name:
Title:
cc:
EarlyBirdCapital, Inc.
Exhibit 10.2
STOCK ESCROW AGREEMENT
STOCK
ESCROW AGREEMENT, dated as of November 20, 2017 (the
“Agreement”) by and among Big Rock Partners Acquisition
Corp., a Delaware corporation (the “Company”), Big Rock
Partners Sponsor LLC, a Delaware limited liability company (the
“Sponsor”), and Continental Stock Transfer & Trust
Company (the “Escrow Agent”).
WHEREAS,
the Company has entered into an Underwriting Agreement, dated
November 20, 2017 (the “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 in a public
offering (the “IPO”) 6,000,000 units (plus
up to 900,000 units to cover over-allotments, if any)
(the “Units”) of the Company’s securities, each
Unit consisting of one share of the Company’s common stock,
par value $0.001 per share (the “Common Stock”), one
right to receive one-tenth (1/10) of one share of Common Stock upon
the consummation of an initial business combination, and one-half
of one warrant (a “Warrant”), each whole Warrant
entitling the holder to purchase one share of Common Stock, all as
more fully described in the Company’s Prospectus dated
November 20, 2017 (“Prospectus”),
comprising part of the Company’s Registration
Statements on Form S-1 (File Nos.
333-220947 and 333-221659) under the Securities Act of
1933, as amended (the “Registration
Statements”), declared effective on
November 20, 2017 (the “Effective
Date”);
WHEREAS,
the Sponsor has agreed, as a condition to the Underwriters’
obligation to purchase the Units pursuant to the Underwriting
Agreement and to offer them to the public, to deposit all of the
number of shares of Common Stock as set forth opposite
Sponsor’s name on Exhibit A attached hereto, in the aggregate
1,725,000 shares, which includes all shares of Common
Stock outstanding prior to the date of the closing of the IPO (the
“Closing Date”), up to 225,000 shares of
which will be forfeited if the Underwriters’ over-allotment
option is not exercised in full (the “Founder Shares”
or “Escrow Shares”), in escrow with the Escrow Agent as
hereinafter provided; and
WHEREAS,
the Company and the Sponsor desire that the Escrow Agent accept the
Escrow 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 Escrow
Shares
. On or before the Closing Date, the Sponsor shall
deliver to the Escrow Agent certificates representing their
respective Escrow Shares, together with Medallion
guaranteed stock powers, to be held and disbursed subject to the
terms and conditions of this Agreement. The Sponsor acknowledges
and agrees that the certificates representing the Escrow Shares
will bear a legend to reflect the deposit of such Escrow Shares
under this Agreement.
3.
Disbursement of the
Escrow Shares
. The Escrow Agent shall hold the Escrow Shares
until the termination of the Escrow Period (as defined below).
The “Escrow Period” shall be the period
beginning on the date the certificates representing the Escrow
Shares are deposited with the Escrow Agent and ending on the
earliest of (x) the first anniversary of the completion of the
Company’s initial business combination (as such term is
defined in the Registration Statements), (y) such time
subsequent to the Company’s initial business combination as
the last sales price of the Company’s Common Stock equals or
exceeds $12.50 per share (as adjusted for stock splits, stock
dividends, reorganizations, recapitalizations and the like) for any
20 trading days within any 30-trading day period, and (z) the date
on which the Company completes a liquidation, merger, stock
exchange or other similar transaction after the Company’s
initial business combination that results in all of the
Company’s stockholders having the right to exchange their
shares of Common Stock for cash, securities or other
property.
On the
termination date of the Escrow Period, the Escrow Agent shall, upon
written instructions from the Company, disburse the Escrow Shares
to the Sponsor; provided, however, that if the Escrow Agent is
notified by the Company, with written notice to the Sponsor,
pursuant to Section 6.6 hereof that up to an aggregate of
225,000 of the Escrow Shares have been forfeited
because the Underwriters did not exercise their over-allotment
option in full then the Escrow Agent shall promptly destroy the
certificates representing such Escrow Shares (or portion thereof,
as applicable). In addition, notwithstanding anything to the
contrary contained herein, the Escrow Agent shall disburse the
Escrow Shares to the Sponsor upon being notified by the Company
that the trust account into which substantially all of the proceeds
of the IPO has been deposited as described in the Prospectus (the
“Trust Account”) is being liquidated because the
Company has been unable to consummate its initial business
combination within the required time frame. 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 Sponsor
in Escrow Shares
.
4.1
Voting Rights as a
Stockholder
. Subject to the terms of the Insider Letter
described in Section 4.4 hereof and except as herein provided, the
Sponsor shall retain all of its rights as a stockholder of the
Company during the Escrow Period, including, without limitation,
the right to vote the Escrow Shares.
4.2
Dividends and Other
Distributions in Respect of the Escrow Shares
. During the
Escrow Period, all dividends payable in cash with respect to the
Escrow Shares shall be paid to the Sponsor, but all dividends
payable in stock or other non-cash property with respect to all of
the Escrow Shares (“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 applicable Escrow Period, no sale,
transfer or other disposition may be made of any or all of the
Escrow Shares except (i) to the Sponsor's or the Company’s
officers, directors, employees, consultants or their affiliates,
(ii) to a Sponsor’s officers, directors, employees or
members; (iii) to relatives and trusts of the Sponsor for estate
planning purposes; (iv) pursuant to a qualified domestic relations
order; (v) by private sales made at or prior to the consummation of
a business combination at prices no greater than the price at which
the shares were originally purchased; or (vi) to the Company for no
value for cancellation in connection with the consummation of a
business combination; provided, however, that in the case of
clauses (i) through (vi), except with the Company’s prior
written consent, these permitted transferees must enter into a
written agreement agreeing to be bound by the terms of
this Agreement. During the applicable Escrow Period, the Sponsor
shall not pledge or grant a security interest in the Escrow Shares
or grant a security interest in its rights under this Agreement.
The Escrow Shares shall bear the legend provided on Exhibit B
attached hereto.
4.4
Insider
Letter
. Sponsor has executed a letter agreement with the
Representative and the Company, dated as of the Effective Date, and
which is filed as an exhibit to the Registration
Statements (the “Insider Letter”), which
contains certain rights and obligations of the Sponsor with respect
to the Company, including, but not limited to, certain voting
obligations in respect of the Escrow Shares.
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, which counsel may be company counsel), 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 taken by it hereunder, 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, willful misconduct or bad faith 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, as set forth
on Exhibit C hereto. 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 all of 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.
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 reference to its principles of
conflicts of law which would require the application of the 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
Entire
Agreement
. This Agreement and the Insider Letters 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. In connection with any proposed
amendment, the Escrow Agent may request an opinion of the
Company’s counsel as to the validity of the proposed
amendment as a condition to its execution of said
amendment.
6.3
Headings
.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation
thereof.
6.4
Binding
Effect
. This Agreement shall be binding upon and inure to
the benefit of the respective parties hereto and their legal
representative, successors and assigns.
6.5
Notices
. Any
notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally or
by private national courier service, or be mailed, certified or
registered mail, return receipt requested, postage prepaid, and
shall be deemed given when so delivered personally or by private
national courier service, or, if mailed, four business days after
the date of mailing, in the case of the Sponsor to the address
listed on Exhibit A attached hereto, and to the other parties, as
follows:
if to
the Escrow Agent, to:
Continental Stock
Transfer & Trust Company
One
State Street Plaza, 30th Floor
New
York, New York 10004
Attn:
Steven G. Nelson or Sharmin Carter
Fax
No.: (212) 509-5150
if to
the Company, to:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
Attn:
Richard Ackerman
and a
copy, which shall not constitute notice, to:
Akerman
LLP
Three
Brickell City Centre
98
Southeast 7
th
Street,
Suite
1100
Miami,
FL 33131
Attn:
Michael Francis, Esq.
Fax
No.: (305) 374-5095
if to
the Sponsor, to the address set forth in Exhibit A
hereto.
A copy
of any notice sent hereunder shall be sent to:
EarlyBirdCapital,
Inc.
One
Huntington Quadrangle, Suite 4C18
Melville, New York
11747
Attn:
Eileen Moore
Fax
No.: (212) 661-4936
with a
copy, to:
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue, 11th Floor
New
York, New York 10174
Attn:
David Alan Miller, Esq.
Fax
No.: (212) 818-8881
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.
6.6
Liquidation of
Company; Forfeiture
. The Company shall give the Escrow Agent
prompt written notification of (i) the liquidation of the Trust
Account or (ii) forfeiture of up to an aggregate of
225,000 Escrow Shares held by the Sponsor to the
extent the Underwriters’ over-allotment option is not
exercised in full, as further described in the Registration
Statements.
6.7
Trust Account
Waiver
. Notwithstanding anything herein to the contrary, the
Escrow Agent hereby waives any and all right, title, interest,
demand, damages, action, causes of action or claim of any kind
whatsoever, known or unknown, foreseen or unforeseen, in law or
equity (a “Claim”) that it has or may have against the
Company or in or to any distribution of the Trust Account, and
hereby agrees not to seek recourse, reimbursement, payment or
satisfaction for any Claim against the Trust Account for any reason
whatsoever.
6.8
Third-Party
Beneficiaries
. Sponsor hereby acknowledges that the
Underwriters, including, without limitation, the Representative,
are third-party beneficiaries of this Agreement and this Agreement
cannot be modified or changed without the prior written consent of
the Representative.
6.9
Counterpart
s.
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.
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the Company has caused the execution of this
Agreement as of the date first above written.
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BIG ROCK PARTNERS
ACQUISITION CORP.
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By:
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/s/ Lori
Wittman
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Name: Lori
Wittman
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Title: Chief
Financial Officer
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CONTINENTAL STOCK
TRANSFER & TRUST COMPANY
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By:
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/s/ Stacy
Aqui
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Name: Stacy
Aqui
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Title: Vice
President
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BIG ROCK PARTNER
SPONSOR, LLC
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
Managing Member
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[Signature Page to
Securities Escrow Agreement]
EXHIBIT A
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Name
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Founder
Shares
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Big
Rock Partners Sponsor, LLC.2645 N. Federal Highway Suite 230 Delray
Beach, FL 33483Attn: Richard Ackerman
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1,725,000
(up to 225,000 of which will be forfeited if the
Underwriters’ over-allotment option is not exercised in
full)
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EXHIBIT B
LEGEND
The
following legend shall be included on the certificates representing
the Founder Shares:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, 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 SUCH ACT OR SUCH LAWS
OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.
THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
OF A STOCK ESCROW AGREEMENT AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE
ESCROW AGREEMENT.”
EXHIBIT C
ESCROW
AGENT FEES
$200
escrow agent fee per month to be billed on the Closing
Date.
Exhibit 10.3
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”)
is entered into as of the 20
th
day of
November, 2017, by and between Big Rock Partners
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 currently hold all of the issued and
outstanding securities of the Company;
WHEREAS, the Investors and the Company desire to enter into this
Agreement to provide the Investors with certain rights relating to
the registration of shares of Common Stock, Founders’ Units
(defined below) and Working Capital Units (defined below) held by
them;
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.
“ 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
$0.001 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.
“ Founders’ Units ” means the units being
purchased privately by the Investors simultaneously with the
consummation of the Company’s initial public offering
(including to a certain extent in connection with the consummation
of the underwriters’ over-allotment option related
thereto).
“ 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.
“ 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 Founders’ 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, Founders’
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 November
20, 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 the units held by
Investors or 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 Founders’ 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 Founders’ 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 Founders’ 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 shares 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 three (3) 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, in good faith, 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) 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
Demanding Holder has requested be included in such registration,
regardless of the number of shares held by each such Demanding
Holder (such proportion is referred to herein as “ Pro Rata
”)) that can be sold without exceeding the Maximum Number of
Shares; (ii) to the extent that the Maximum Number of Shares has
not been reached under the foregoing clause (i), the Registrable
Securities of holders exercising their rights to register their
Registrable Securities pursuant to Section 2.2; (iii) 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 that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (iv) to the extent
that the Maximum Number of Shares has not been reached under the
foregoing clauses (i), (ii) and (iii), 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 (v) to the extent that the Maximum
Number of Shares have not been reached under the foregoing clauses
(i), (ii), (iii) and (iv), 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 and Option 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) 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) 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) 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 comprised 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) 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.
c) If the registration is a “demand” registration
undertaken at the demand of persons or entities other than the
holders of Registrable Securities or Option Securities, (A) 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) 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) 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 comprised of Registrable
Securities and Option Securities, Pro Rata, as to which
registration has been requested pursuant to the terms hereof and
the Unit Purchase Option, as applicable, that can be sold without
exceeding the Maximum Number of Shares; and (D) 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 Class A 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
and Limitations on Registration Rights. 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. Notwithstanding anything herein to the contrary, (i)
EarlyBirdCapital, Inc. may not exercise its rights under Sections
2.1 and 2.2 hereunder after five (5) and seven (7) years after the
effective date of the registration statement relating to the
Company’s initial public offering, respectively, and (ii)
EarlyBirdCapital, Inc. may not exercise its rights under Section
2.1 more than one time.
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 and the representative of the underwriters of the
Company’s initial public offering, 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 Investors or holder
of Registrable Securities or of any assignee of the Investors 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:
Big Rock Partners Acquisition Corp.,
c/o Big Rock Partners Sponsor, LLC
2645 N. Federal Highway
Suite 230
Delray Beach, FL 33483
(310) 734 2300
Attn: Chief Executive Officer
with a copy to:
Akerman LLP
Three Brickell City Centre
98 Southeast Seventh Street
Suite 1100
Miami, Florida 33131
Attn: Michael Francis, Esq.
To and Investor, to the address set forth below such
Investor’s name on Exhibit A hereto.
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 Investors 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 Investors 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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COMPANY:
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BIG ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/ Lori
Wittman
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Name: Lori Wittman
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Title: Chief Financial Officer
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INVESTORS:
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BIG ROCK PARTNERS SPONSOR, LLC
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By:
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/s/ Richard
Ackerman
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Name: Richard Ackerman
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Title: Managing Member
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[Signature Page to Registration Rights Agreement]
EXHIBIT A
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Name
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Address
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Big Rock Partners Sponsor, LLC
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2645 N. Federal Highway, Suite 230, Delray Beach, FL
33483
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Exhibit 10.4
November
20, 2017
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
EarlyBirdCapital,
Inc.
366
Madison Avenue
New
York, New York 10017
Re:
Initial Public Offering
Ladies
and Gentlemen:
This
letter (this “Letter Agreement”) is being delivered to
you in accordance with the Underwriting Agreement (the
“Underwriting Agreement”) entered into by and between
Big Rock Partners Acquisition Corp., a Delaware corporation (the
“Company”), and EarlyBirdCapital, Inc., as
representative of the several underwriters (the
“Underwriters”), relating to an underwritten initial
public offering (the “Public Offering”), of
6,000,000 of the Company’s units (the
“Units”), each comprised of one share of the
Company’s common stock, par value $0.001 per share (the
“Common Stock”), one right (each, a
“Right”) and one-half of one warrant (each, a
“Warrant
”). Each Right
entitles the holder thereof to receive one-tenth (1/10) of one
share of Common Stock upon the consummation of a Business
Combination. Each whole Warrant entitles the holder thereof to
purchase one share of the Common Stock at a price
of $11.50
per share, subject to adjustment. The Units shall be sold in the
Public Offering pursuant to the registration
statements on Form S-1, Nos. 333-220947
and 333-221659 and the prospectus (the
“Prospectus”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) and the
Company has applied to have the Units listed on the NASDAQ Capital
Market. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in
Section 9.
In
order to induce the Company and the Underwriters to enter into the
Underwriting Agreement and to proceed with the Public Offering and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Big Rock Partners
Sponsor, LLC (the “Sponsor”) hereby agrees with the
Company as follows:
1.
The Sponsor agrees
that if the Company seeks stockholder approval of a proposed
Business Combination, then in connection with such proposed
Business Combination, it shall vote all shares
of Common Stock owned by it in favor of such proposed
Business Combination.
2.
The Sponsor hereby
agrees that in the event that the Company fails to consummate a
Business Combination 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 Sponsor shall
take all reasonable steps to 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 ten business days
thereafter, redeem 100% of the Common Stock sold as part of the
Units in the Public Offering (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 not
previously released to the Company to pay its franchise and income
taxes, divided by the number of then outstanding Offering Shares,
which redemption will completely extinguish Public
Stockholders’ 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 the approval of the
Company’s remaining stockholders and the Company’s
board of directors, dissolve and liquidate, subject in each case to
the Company’s obligations under Delaware law to provide for
claims of creditors and other requirements of applicable law. The
Sponsor agrees to not propose any amendment to the Company’s
amended and restated certificate of incorporation that would affect
the substance or timing of the Company’s obligation to redeem
100% of the Offering 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,
as the same may be amended from time to time, unless the Company
provides its Public Stockholders with the opportunity to redeem
their shares of Common Stock upon approval of any such amendment 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 funds held in the Trust Account and not previously released to
the Company to pay its franchise and income taxes, divided by the
number of then outstanding Offering Shares.
The
Sponsor acknowledges that it has no right, title, interest or claim
of any kind in or to any monies held in the Trust Account or any
other asset of the Company as a result of any liquidation of the
Company with respect to the Founder’s Shares. The Sponsor
hereby further waives, with respect to any shares of the Common
Stock held by it, him or her, any redemption rights it, he or she
may have in connection with the consummation of a Business
Combination, including, without limitation, any such rights
available in the context of a stockholder vote to approve such
Business Combination or in the context of a tender offer made by
the Company to purchase shares of the Common Stock, although the
Sponsor shall be entitled to redemption and liquidation rights with
respect to any shares of the Common Stock (other than the
Founder’s Shares) it or they hold if the Company fails to
consummate a Business Combination within the time period set
forth in the Company's amended and resetated certificate of
incorporation, as the same may be amended from time to
time.
3.
During the period
commencing on the effective date of the Underwriting Agreement and
ending 180 days after such date, the undersigned shall not (i)
sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, with respect
to any Units, shares of Common Stock, Warrants or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock owned by him, her or it, (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of any Units, shares
of Common Stock, Warrants or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock owned by
him, her or it, whether any such transaction is to be settled by
delivery of such securities, in cash or otherwise, or (iii)
publicly announce any intention to effect any transaction specified
in clause (i) or (ii).
4.
In order to
minimize potential conflicts of interest that may arise from
multiple corporate affiliations, the Sponsor hereby agrees that
until the earliest of the Company’s initial Business
Combination or liquidation, the Sponsor 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 Sponsor might
have.
(a)
The Sponsor hereby
agrees not to participate in the formation of, or become an officer
or director of, any other blank check company until the Company has
entered into a definitive agreement with respect to a Business
Combination or the Company has failed to complete a Business
Combination within the required time period set forth in the
Company’s amended and restated certificate of incorporation,
as the same may be amended from time to time.
(b)
The Sponsor hereby
agrees and acknowledges that: (i) each of the Underwriters and the
Company would be irreparably injured in the event of a breach by
the Sponsor of its obligations in this Letter Agreement, (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.
5.
(a)
On the date of the Prospectus, the Founder’s Shares, a
portion of which will be subject to forfeiture in the event the
Underwriters do not exercise their over-allotment option in full,
will be placed into an escrow account maintained in New York, New
York by Continental Stock Transfer & Trust Company, acting as
escrow agent.
(b)
The
Sponsor agrees that it shall not effectuate any Transfer of Private
Placement Units or securities underlying such units, until after
the completion of a Business Combination.
(c)
Notwithstanding
the provisions of paragraph 5(b), Transfers of the
Private Placement Units and securities underlying the Private
Placement Units are permitted (a) to the Company’s officers,
directors, consultants or their affiliates; (b) to an
entity’s members; (c) to relatives and trusts for estate
planning purposes; (d) pursuant to a qualified domestic relations
order; (e) by private sales made at or after the consummation of a
Business Combination at prices no greater than the price at which
the units were originally purchased; or (f) to the
Company for no value for cancellation in connection with the
consummation of a Business Combination; provided, however, that in
the case of clauses (a) through (e) these permitted transferees
must enter into a written agreement agreeing to be bound by these
transfer restrictions.
6.
Except as disclosed
in the Prospectus, under the heading "Prospectus Summary -
The Offering - Limited payments to insiders," neither the
Sponsor nor any affiliate of the Sponsor, nor any director or
officer of the Company, shall receive any finder’s fee,
reimbursement, consulting fee, monies in respect of any repayment
of a loan or other compensation prior to, or in connection with any
services rendered in order to effectuate the consummation of the
Company’s initial Business Combination (regardless of the
type of transaction that it is).
7.
The Sponsor has
full right and power, without violating any agreement to which it
is bound (including, without limitation, any non-competition or
non-solicitation agreement with any employer or former employer),
to enter into this Letter Agreement.
8.
The Sponsor hereby
agrees to not propose, or vote in favor of, an amendment to the
Company’s amended and restated certificate of incorporation
to be effective prior to the consummation of a
Business Combination
that
would restrict Public Stockholders from converting or selling 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 Offering Shares if
the Company does not complete a Business Combination within the
required time period
unless the Company provides
holders of Offering Shares with the opportunity to have their
shares redeemed upon such approval in accordance with the
certificate of incorporation.
9.
As used herein,
(i) “Business Combination” shall mean a merger,
capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination, involving the
Company and one or more businesses or entities;
(ii) “Founder’s Shares” shall mean the
shares of Common Stock of the Company held by the initial
stockholders of the Company prior to the consummation of the Public
Offering; (iii) “Private Placement Units” shall
mean the 250,000 units consists of one share of Common
Stock, one Right and one-half of one Warrant (or up to
272,500 units if the Underwriters’
over-allotment option is exercised in full) that are acquired for
an aggregate purchase price of $2,500,000 (or
$2,725,000 if the Underwriters’
over-allotment option is exercised in full), in a private placement
that shall occur simultaneously with the consummation of the Public
Offering; (iv) “Public Stockholders” shall mean
the holders of securities issued in the Public Offering;
(v) “Trust Account” shall mean the trust fund into
which a portion of the net proceeds of the Public Offering shall be
deposited; and (vi) “Transfer” shall mean the
(a) sale of, offer to sell, contract or agreement to sell,
hypothecate, pledge, grant of any option to purchase or otherwise
dispose of or agreement to dispose of, directly or indirectly, or
establishment or increase of a put equivalent position or
liquidation with respect to or decrease of a call equivalent
position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any
security, (b) entry into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of any security, whether any such
transaction is to be settled by delivery of such securities, in
cash or otherwise, or (c) public announcement of any intention
to effect any transaction specified in clause (a) or
(b).
10.
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.
11.
No party hereto may
assign either this Letter Agreement or any of its rights,
interests, or obligations hereunder without the prior written
consent of the other party. Any purported assignment in violation
of this paragraph shall be void and ineffectual and shall not
operate to transfer or assign any interest or title to the
purported assignee. This Letter Agreement shall be binding on the
Sponsor and its successors and assigns.
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
parties hereto (i) all agree that any action, proceeding, claim or
dispute arising out of, or relating in any way to, this Letter
Agreement shall be brought and enforced in the courts of New York
City, in the State of New York, and irrevocably submits to such
jurisdiction and venue, which jurisdiction and venue shall be
exclusive and (ii) waives any objection to such exclusive
jurisdiction and venue or that such courts represent an
inconvenient forum.
13.
Any notice, consent
or request to be given in connection with any of the terms or
provisions of this Letter 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
facsimile transmission.
14.
The Sponsor
acknowledges and understands that the Underwriters and the Company
will rely upon the agreements, representations and warranties set
forth herein in proceeding with the Public Offering. Nothing
contained herein shall be deemed to render the Underwriters a
representative of, or a fiduciary with respect to, the Company, its
stockholders or any creditor or vendor of the Company with respect
to the subject matter hereof.
15.
This Letter
Agreement shall terminate on the earlier of (i) the consummation of
the Business Combination or (ii) the liquidation of the Company;
provided, however, that such termination shall not relieve the
undersigned from liability for any breach of this agreement prior
to its termination.
[Signature
page follows]
Sincerely,
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BIG ROCK PARTNERS
SPONSOR, LLC
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
Managing Member
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Acknowledged
and Agreed:
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BIG ROCK PARTNERS
ACQUISITION CORP.
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By:
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/s/ Lori
Wittman
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Name: Lori
Wittman
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Title: Chief
Financial Offier
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EARLYBIRDCAPITAL,
INC.
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By:
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/s/ Steven
Levine
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Name: Steven
Levine
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Title:
CEO
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[Signature
Page to Letter Agreement]
Exhibit 10.5
November
20, 2017
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
EarlyBirdCapital,
Inc.
366
Madison Avenue
New
York, New York 10017
Re:
Initial Public Offering
Ladies
and Gentlemen:
This
letter (this “Letter Agreement”) is being delivered to
you in accordance with the Underwriting Agreement (the
“Underwriting Agreement”) entered into by and between
Big Rock Partners Acquisition Corp., a Delaware corporation (the
“Company”), and EarlyBirdCapital, Inc., as
representative of the several underwriters (the
“Underwriters”), relating to an underwritten initial
public offering (the “Public Offering”), of
6,000,000 of the Company’s units (the
“Units”), each comprised of one share of the
Company’s common stock, par value $0.001 per share (the
“Common Stock”), one right (each, a
“Right”), and one-half of one warrant (each, a
“Warrant”). Each Right entitles the holder thereof to
receive one-tenth (1/10) of one share of Common Stock upon the
consummation of a Business Combination. Each whole Warrant entitles
the holder thereof to purchase one share of the Common Stock at a
price of $11.50 per share, subject to adjustment. The Units shall
be sold in the Public Offering pursuant to the registration
statements on Form S-1, Nos. 333-220947
and 333-221659 and the prospectus (the
“Prospectus”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) and the
Company has applied to have the Units listed on the NASDAQ Capital
Market. Certain capitalized terms used herein are defined in
paragraph ten hereof.
In
order to induce the Company and the Underwriters to enter into the
Underwriting Agreement and to proceed with the Public Offering and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, A/Z Property
Partners, LLC (the “A/Z Property”) hereby agrees with
the Company as follows:
1.
In
the event of the liquidation of the Trust Account, A/Z Property
agrees to indemnify and hold harmless the Company against any and
all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all legal or other expenses
reasonably incurred in investigating, preparing or defending
against any litigation, whether pending or threatened, or any claim
whatsoever) to which the Company may become subject as a result of
any claim by (i) any third party for services rendered or products
sold to the Company or (ii) a prospective target business with
which the Company has negotiated with for a proposed Business
Combination (a “Target”); provided, however, that such
indemnification of the Company by A/Z Property shall apply only to
the extent necessary to ensure that such claims by a third party
for services rendered or products sold to the Company or a Target
do not reduce the amount of funds in the Trust Account to below the
lesser of (i) $10.00 per share of the Offering Shares and (ii) the
actual amount per share of the Offering Shares held in the Trust
Account due to reductions in the value of the trust assets as of
the date of the liquidation of the Trust Account, in each case
including interest earned on the funds held in the Trust Account
and not previously released to the Company to pay its franchise and
income taxes, less franchise and income taxes payable, and,
provided, further, that only if such third party or Target has not
executed an agreement waiving claims against and all rights to seek
access to the Trust Account whether or not such agreement is
enforceable. In the event that any such executed waiver is deemed
to be unenforceable against such third party, A/Z Property shall
not be responsible for any liability as a result of any such third
party claims. Notwithstanding any of the foregoing, such
indemnification of the Company by A/Z Property shall not apply 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. A/Z Property shall
have the right to defend against any such claim with counsel of its
choice reasonably satisfactory to the Company if, within 15 days
following written receipt of notice of the claim to A/Z Property,
A/Z Property notifies the Company in writing that it shall
undertake such defense.
2.
A/Z
Property has full right and power, without violating any agreement
to which it is bound (including, without limitation, any
non-competition or non-solicitation agreement with any employer or
former employer), to enter into this Letter Agreement.
3.
As
used herein, “Trust Account” shall mean the trust fund
into which a portion of the net proceeds of the Public Offering
shall be deposited.
4.
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.
5.
No
party hereto may assign either this Letter Agreement or any of its
rights, interests, or obligations hereunder without the prior
written consent of the other party. Any purported assignment in
violation of this paragraph shall be void and ineffectual and shall
not operate to transfer or assign any interest or title to the
purported assignee. This Letter Agreement shall be binding on A/Z
Property and its successors and assigns.
6.
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
parties hereto (i) all agree that any action, proceeding, claim or
dispute arising out of, or relating in any way to, this Letter
Agreement shall be brought and enforced in the courts of New York
City, in the State of New York, and irrevocably submits to such
jurisdiction and venue, which jurisdiction and venue shall be
exclusive and (ii) waives any objection to such exclusive
jurisdiction and venue or that such courts represent an
inconvenient forum.
7.
Any
notice, consent or request to be given in connection with any of
the terms or provisions of this Letter 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 facsimile transmission.
8.
A/Z
Property acknowledges and understands that the Underwriters and the
Company will rely upon the agreements, representations and
warranties set forth herein in proceeding with the Public Offering.
Nothing contained herein shall be deemed to render the Underwriters
a representative of, or a fiduciary with respect to, the Company,
its stockholders or any creditor or vendor of the Company with
respect to the subject matter hereof.
9.
This
Letter Agreement shall terminate on the earlier of (i) the
consummation of the Business Combination or (ii) the liquidation of
the Company; provided, however, 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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Sincerely,
A/Z
Property Partners, LLC
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title:
Managing Member
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Acknowledged
and Agreed:
BIG
ROCK PARTNERS ACQUISITION CORP.
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By: /s/ Lori
Wittman
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Name: Lori
Wittman
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Title: Chief
Financial Officer
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EARLYBIRDCAPITAL,
INC.
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By: /s/
Steven Levine
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Name: Steven
Levine
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Title:
CEO
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[Signature
Page to Letter Agreement]
Exhibit 10.6
November
20, 2017
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, FL 33483
EarlyBirdCapital,
Inc.
366
Madison Avenue
New
York, New York 10017
Re
Initial Public
Offering
Gentlemen:
This
letter (this “Letter Agreement”) is being delivered to
you in accordance with the Underwriting Agreement (the
“Underwriting Agreement”) entered into by and between
Big
Rock Partners Acquisition
Corp., a Delaware corporation (the “Company”), and
EarlyBirdCapital, Inc., as representative of the several
underwriters (the “Underwriters”), relating to an
underwritten initial public offering (the “Public
Offering”), of 6,000,000 of the Company’s
units (the “Units”), each comprised of one share of the
Company’s common stock, par value $0.001 per share (the
“Common Stock”), one right (each, a
“Right”) and one-half of one warrant (each, a
“Warrant”). Each Right entitles the holder thereof to
receive one-tenth (1/10) of one share of Common Stock upon the
consummation of a Business Combination. Each whole Warrant entitles
the holder thereof to purchase one share of Common Stock at a price
of $11.50 per share, subject to adjustment. The Units shall be sold
in the Public Offering pursuant to the registration
statements on Form S-1, Nos. 333-220947
and 333-221659 and the prospectus (the
“Prospectus”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) and the
Company has applied to have the Units listed on the NASDAQ Capital
Market. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in
Section 10.
In
order to induce the Company and the Underwriters to enter into the
Underwriting Agreement and to proceed with the Public Offering 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.
The undersigned
agrees that if the Company seeks stockholder approval of a proposed
Business Combination, then in connection with such proposed
Business Combination, the undersigned shall vote all shares
of Common Stock owned by it in favor of such proposed
Business Combination.
2.
The undersigned
hereby agrees that in the event that the Company fails to
consummate a Business Combination 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
undersigned shall take all reasonable steps to 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 ten business
days thereafter, redeem 100% of the Common Stock sold as part of
the Units in the Public Offering (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 not previously released to the Company to pay its
franchise and income taxes, divided by the number of then
outstanding Offering Shares, which redemption will completely
extinguish Public Stockholders’ 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 the
approval of the Company’s remaining stockholders and the
Company’s board of directors, dissolve and liquidate, subject
in each case to the Company’s obligations under Delaware law
to provide for claims of creditors and other requirements of
applicable law. The undersigned agrees that the undersigned will
not propose any amendment to the Company’s amended and
restated certificate of incorporation that would affect the
substance or timing of the Company’s obligation to redeem
100% of the Offering 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,
as the same may be amended from time to time, unless the Company
provides its Public Stockholders with the opportunity to redeem
their shares of Common Stock upon approval of any such amendment 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 funds held in the Trust Account and not previously released to
the Company to pay its franchise and income taxes, divided by the
number of then outstanding Offering Shares.
The
undersigned acknowledges that the undersigned has no right, title,
interest or claim of any kind in or to any monies held in the Trust
Account or any other asset of the Company as a result of any
liquidation of the Company with respect to the Founder’s
Shares. The undersigned hereby further waives, with respect to any
shares of the Common Stock held by the undersigned, any redemption
rights the undersigned may have in connection with the consummation
of a Business Combination, including, without limitation, any such
rights available in the context of a stockholder vote to approve
such Business Combination or in the context of a tender offer made
by the Company to purchase shares of the Common Stock (the
undersigned shall be entitled to redemption and liquidation rights
with respect to any shares of the Common Stock (other than the
Founder’s Shares) the undersigned holds if the Company fails
to consummate a Business Combination within the time period
set forth in the Company's amended and restated certificate of
incorporation, as the same may be amended time to
time.
3.
During the period
commencing on the effective date of the Underwriting Agreement and
ending 180 days after such date, the undersigned shall not (i)
sell, offer to sell, contract or agree to sell, hypothecate,
pledge, grant any option to purchase or otherwise dispose of or
agree to dispose of, directly or indirectly, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder, with respect
to any Units, shares of Common Stock, Warrants or any securities
convertible into, or exercisable, or exchangeable for, shares of
Common Stock owned by the undersigned, (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of any Units, shares
of Common Stock, Warrants or any securities convertible into, or
exercisable, or exchangeable for, shares of Common Stock owned by
the undersigned, whether any such transaction is to be settled by
delivery of such securities, in cash or otherwise, or (iii)
publicly announce any intention to effect any transaction specified
in clause (i) or (ii). The undersigned further agrees that the
foregoing restrictions shall be equally applicable to any issuer
directed Units that the undersigned may purchase in the Public
Offering.
4.
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.
(a)
The undersigned
hereby agrees not to participate in the formation of, or become an
officer or director of, any other blank check company until the
Company has entered into a definitive agreement with respect to a
Business Combination or the Company has failed to complete a
Business Combination within the required time period set forth in
the Company’s amended and restated certificate of
incorporation, as the same may be amended from time to
time.
(b)
The undersigned
hereby agrees and acknowledges that: (i) each of the Underwriters
and the Company would be irreparably injured in the event of a
breach by the undersigned of his or her obligations in this Letter
Agreement, (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.
5.
(a)
On the date of the Prospectus, the Founder’s Shares will be
placed into an escrow account maintained in New York, New York by
Continental Stock Transfer & Trust Company, acting as escrow
agent.
(b)
The undersigned
agrees that it shall not effectuate any Transfer of Private
Placement Units or Securities underlying such units, until after
the completion of a Business Combination.
(c)
Notwithstanding the
provisions of paragraph 5(b), Transfers of Private Placement Units
are permitted to (a) the Company’s officers, directors,
consultants or their affiliates; (b) to an entity’s members;
(c) to relatives and trusts for estate planning purposes; (d)
pursuant to a qualified domestic relations order; (e) by private
sales made at or after the consummation of a Business Combination
at prices no greater than the price at which the units were
originally purchased; or (f) to the Company for no value for
cancellation in connection with the consummation of a Business
Combination; provided, however, that in the case of clauses (a)
through (e) these permitted transferees must enter into a written
agreement agreeing to be bound by these transfer
restrictions.
6.
The
undersigned’s biographical information furnished to the
Company that is included in the Prospectus is true and accurate in
all respects and does not omit any material information with
respect to the undersigned’s background. The
undersigned’s questionnaire furnished to the Company is true
and accurate in all respects. The undersigned represents and
warrants that: the undersigned is not subject to or a respondent in
any legal action for, any injunction, cease-and-desist order or
order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction; the
undersigned has never been convicted of, or pleaded guilty to, any
crime (i) involving fraud, (ii) relating to any financial
transaction or handling of funds of another person, or (iii)
pertaining to any dealings in any securities; and the undersigned
is not currently a defendant in any such criminal proceeding; and
the undersigned has never been suspended or expelled from
membership in any securities or commodities exchange or association
or had a securities or commodities license or registration denied,
suspended or revoked.
7.
Except as disclosed
in the Prospectus under the heading "Prospectus Summary - The
Offering - Limited payment to insiders," neither the
undersigned nor any affiliate of the undersigned, shall receive any
finder’s fee, reimbursement, consulting fee, monies in
respect of any repayment of a loan or other compensation prior to,
or in connection with any services rendered in order to effectuate
the consummation of the Company’s initial Business
Combination (regardless of the type of transaction that it
is).
8.
The undersigned has
full right and power, without violating any agreement to which the
undersigned is bound (including, without limitation, any
non-competition or non-solicitation agreement with any employer or
former employer), to enter into this Letter Agreement and to serve
as an officer of the Company or as a director on the board of
directors of the Company, as applicable, and hereby consents to
being named in the Prospectus as an officer and/or director of the
Company, as applicable. 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.
9.
The undersigned hereby agrees to not
propose, or vote in favor of, an amendment to the Company’s
amended and restated certificate of incorporation to be effective
prior to the consummation of a Business Combination that would
restrict Public Stockholders from converting or selling 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 Offering Shares if
the Company does not complete a Business Combination within the
required time period unless the Company provides holders of
Offering Shares with the opportunity to have their shares redeemed
upon such approval in accordance with the certificate of
incorporation.
10.
As used herein,
(i) “Business Combination” shall mean a merger,
capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination, involving the
Company and one or more businesses or entities;
(ii) “Founder’s Shares” shall mean the
shares of Common Stock of the Company held by the initial
stockholders of the Company prior to the consummation of the Public
Offering; (iii) “Private Placement Units” shall
mean the 250,000 units consists of one share of Common
Stock, one Right and one-half of one Warrant (or up to
272,500 units if the Underwriters’
over-allotment option is exercised in full) that are acquired for
an aggregate purchase price of $2,500,000 (or
$2,725,000 if the Underwriters’
over-allotment option is exercised in full), in a private placement
that shall occur simultaneously with the consummation of the Public
Offering; (iv) “Public Stockholders” shall mean
the holders of securities issued in the Public Offering;
(v) “Trust Account” shall mean the trust fund into
which a portion of the net proceeds of the Public Offering shall be
deposited; and (vi) “Transfer” shall mean the
(a) sale of, offer to sell, contract or agreement to sell,
hypothecate, pledge, grant of any option to purchase or otherwise
dispose of or agreement to dispose of, directly or indirectly, or
establishment or increase of a put equivalent position or
liquidation with respect to or decrease of a call equivalent
position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any
security, (b) entry into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of any security, whether any such
transaction is to be settled by delivery of such securities, in
cash or otherwise, or (c) public announcement of any intention
to effect any transaction specified in clause (a) or
(b).
11.
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 the parties hereto.
12.
No party hereto may
assign either this Letter Agreement or any of its rights,
interests, or obligations hereunder without the prior written
consent of the other party. Any purported assignment in violation
of this paragraph shall be void and ineffectual and shall not
operate to transfer or assign any interest or title to the
purported assignee. This Letter Agreement shall be binding on the
undersigned and each of their respective successors, heirs,
personal representatives and assigns.
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. The
parties hereto (i) agree that any action, proceeding, claim or
dispute arising out of, or relating in any way to, this Letter
Agreement shall be brought and enforced in the courts of New York
City, in the State of New York, and irrevocably submits to such
jurisdiction and venue, which jurisdiction and venue shall be
exclusive and (ii) waives any objection to such exclusive
jurisdiction and venue or that such courts represent an
inconvenient forum.
14.
Any notice, consent
or request to be given in connection with any of the terms or
provisions of this Letter 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
facsimile transmission.
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 Public Offering. Nothing
contained herein shall be deemed to render the Underwriters a
representative of, or a fiduciary with respect to, the Company, its
stockholders or any creditor or vendor of the Company with respect
to the subject matter hereof.
16.
This Letter
Agreement shall terminate on the earlier of (i) the consummation of
the Business Combination or (ii) the liquidation of the Company;
provided, however, that such termination shall not relieve the
undersigned from liability for any breach of this agreement prior
to its termination.
[Signature
page follows]
Sincerely,
By:____________________
Name:
Acknowledged and
Agreed:
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BIG ROCK PARTNERS
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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[Signature
Page to Letter Agreement]
Exhibit 10.7
Big Rock Partners Acquisition Corp.
2645 N. Federal Highway
Suite 230
Delray Beach, Florida 33483
November 20, 2017
Big Rock Partners Sponsor, LLC.
2645 N. Federal Highway
Suite 230
Delray Beach, Florida 33483
Re: Administrative Services Agreement
Gentlemen:
This letter agreement by and between Big Rock Partners Acquisition
Corp. (the “Company” or “our”) and our
sponsor, Big Rock Partners Sponsor, LLC (the
“Affiliate”), dated as of the date hereof, will confirm
our agreement that, commencing on the effective date
(the “Effective Date”) of the Registration Statement on
Form S-1 and prospectus filed with the Securities and Exchange
Commission (the “Registration Statement”) and
continuing until the earlier of the consummation by the Company of
an initial business combination or the Company’s liquidation
(in each case as described in the Registration Statement) (such
earlier date hereinafter referred to as the “Termination
Date”):
(i) the Affiliate shall make available to the Company, at 2645 N.
Federal Highway, Suite 230, Delray Beach, Florida 33483 (or any
successor location), certain office space, utilities, secretarial
support and administrative services as may be reasonably required
by the Company. In exchange therefor, the Company shall pay the
Affiliate the sum of $10,000 per month on the Effective Date and
continuing monthly thereafter until the Termination Date;
and
(ii) the Affiliate hereby irrevocably waives any and all right,
title, interest, causes of action and claims of any kind (each, a
“Claim”) in or to, and any and all right to seek
payment of any amounts due to it out of, the trust account
established for the benefit of the public stockholders of the
Company and into which substantially all of the proceeds of the
Company’s initial public offering will be deposited (the
“Trust Account”), and hereby irrevocably waives any
Claim it may have in the future as a result of, or arising out of,
this letter agreement, which Claim would reduce, encumber or
otherwise adversely affect the Trust Account or any monies or other
assets in the Trust Account, and further agrees not to seek
recourse, reimbursement, payment or satisfaction of any Claim
against the Trust Account or any monies or other assets in the
Trust Account for any reason whatsoever.
This letter agreement constitutes the entire agreement and
understanding of the parties hereto in respect of its subject
matter and supersedes all prior understandings, agreements, or
representations by or among the parties hereto, written or oral, to
the extent they relate in any way to the subject matter hereof or
the transactions contemplated hereby.
This letter agreement may not be amended, modified or waived as to
any particular provision, except by a written instrument executed
by the parties hereto.
No party hereto may assign either this letter agreement or any of
its rights, interests, or obligations hereunder without the prior
written approval of the other party. Any purported assignment in
violation of this paragraph shall be void and ineffectual and shall
not operate to transfer or assign any interest or title to the
purported assignee.
This letter agreement, the entire relationship of the parties
hereto, and any litigation between the parties (whether grounded in
contract, tort, statute, law or equity) shall be governed by,
construed in accordance with, and interpreted pursuant to the laws
of the State of New York, without giving effect to its choice of
laws principles.
[Signature page follows]
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Very truly yours,
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Big Rock Partners Acquisition Corp.
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By:
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/s/ Lori
Wittman
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Name: Lori Wittman
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Title: Chief Financial Officer
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AGREED TO AND ACCEPTED BY:
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By:
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/s/ Richard
Ackerman
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Name: Richard Ackerman
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Title: Managing Member
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[Signature Page to Administrative Services Agreement]
Exhibit 10.8
FORM OF INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “ Agreement ”) is
made as of November __, 2017, by and between BIG ROCK PARTNERS
ACQUISITION CORP., a Delaware corporation (the “ Company
”), and _______________ (“ Indemnitee
”).
RECITALS
WHEREAS, highly competent persons have become more reluctant to
serve publicly-held corporations as directors, officers or other
capacities unless they are provided with adequate protection
through insurance or adequate indemnification against inordinate
risks of claims and actions against them arising out of their
service to and activities on behalf of such
corporations.
WHEREAS, the Board of Directors of the Company (the “ Board
”) has determined that, in order to attract and retain
qualified individuals as directors, officers and special advisors,
the Company will attempt to maintain on an ongoing basis, at its
sole expense, liability insurance to protect such persons serving
the Company and its subsidiaries from certain liabilities. Although
the furnishing of such insurance has been a customary and
widespread practice among United States-based corporations and
other business enterprises, the Company believes that, given
current market conditions and trends, such insurance may be
available to it in the future only at higher premiums and with more
exclusions. At the same time, directors, officers and others are
being increasingly subjected to expensive and time-consuming
litigation. The Certificate of Incorporation (as may be amended
and/or restated from time to time, the “ Charter ”)
and/or the Bylaws (as may be amended and/or restated from time to
time, the “ Bylaws ”) of the Company require
indemnification of the officers and directors of the Company, and
permit indemnification of employees and agents of the Company.
Indemnitee may also be entitled to indemnification pursuant to
applicable provisions of the Delaware General Corporation Law
(“ DGCL ”). The Charter, Bylaws and the DGCL expressly
provide that the indemnification provisions set forth therein are
not exclusive, and thereby contemplate that contracts may be
entered into between the Company and members of the board of
directors, officers and other persons with respect to
indemnification, hold harmless, exoneration, advancement and
reimbursement rights.
WHEREAS, the uncertainties relating to such insurance and to
indemnification have increased the difficulty of attracting and
retaining such persons.
WHEREAS, the Board has determined that the increased difficulty in
attracting and retaining such persons is detrimental to the best
interests of the Company’s stockholders and that the Company
should act to assure such persons that there will be increased
certainty of such protection in the future.
WHEREAS, it is reasonable, prudent and necessary for the Company
contractually to obligate itself to indemnify, hold harmless,
exonerate and to advance expenses on behalf of, such persons to the
fullest extent permitted by applicable law so that they will serve
or continue to serve the Company free from undue concern that they
will not be so protected against liabilities.
WHEREAS, this Agreement is a supplement to and in furtherance of
the Charter and Bylaws of the Company and any resolutions adopted
pursuant thereto, and shall not be deemed a substitute therefor,
nor to diminish or abrogate any rights of Indemnitee
thereunder.
WHEREAS, Indemnitee may not be willing to serve as an officer,
director or special advisor of the Company, as applicable, without
adequate protection, and the Company desires Indemnitee to serve in
one or more of such capacities. Indemnitee is willing to serve or
continue to serve for or on behalf of the Company on the condition
that Indemnitee be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants
contained herein, the Company and Indemnitee do hereby covenant and
agree as follows:
TERMS AND CONDITIONS
1. SERVICES
TO THE COMPANY . In consideration of the Company’s covenants
and obligations hereunder, Indemnitee will serve or continue to
serve as an officer, director, special advisor and/or key employee
of the Company, as applicable, for so long as Indemnitee is duly
elected or appointed or until Indemnitee tenders his or her
resignation or until Indemnitee is removed. The foregoing
notwithstanding, this Agreement shall continue in full force and
effect after Indemnitee has ceased to serve as a director, officer,
special advisor and/or key employee of the Company, as applicable,
as provided in Section 16. This Agreement, however, shall not
impose any obligation on Indemnitee or the Company to continue
Indemnitee’s service to the Company beyond any period
otherwise required by law or by other agreements or commitments of
the parties, if any.
2. DEFINITIONS
. As used in this Agreement:
(a) References
to “ agent ” shall mean any person who is or was a
director, officer, employee or special advisor of the Company or a
subsidiary of the Company or other person authorized by the Company
to act for the Company, to include such person serving in such
capacity as a director, officer, employee, fiduciary or other
official of another corporation, partnership, limited liability
company, joint venture, trust or other enterprise at the request
of, for the convenience of, or to represent the interests of the
Company or a subsidiary of the Company.
(b) The
terms “ Beneficial Owner ” and “ Beneficial
Ownership ” shall have the meanings set forth in
Rule 13d-3 promulgated under the Exchange Act (as defined
below) as in effect on the date hereof.
(c) A
“ Change in Control ” shall be deemed to occur upon the
earliest to occur after the later of the date of this Agreement or
the consummation of the Company’s initial public offering of
any of the following events:
(i) Acquisition
of Stock by Third Party. Any Person (as defined below) is or
becomes the Beneficial Owner, directly or indirectly, of securities
of the Company representing fifteen percent (15%) or more of the
combined voting power of the Company’s then outstanding
securities entitled to vote generally in the election of directors,
unless (1) the change in the relative Beneficial Ownership of
the Company’s securities by any Person results solely from a
reduction in the aggregate number of outstanding shares of
securities entitled to vote generally in the election of directors,
or (2) such acquisition was approved in advance by the
Continuing Directors (as defined below) and such acquisition would
not constitute a Change in Control under part (iii) of this
definition;
(ii) Change
in Board of Directors. Individuals who, as of the date hereof,
constitute the Board, and any new director whose election by the
Board or nomination for election by the Company’s
stockholders was approved by a vote of at least two thirds of the
directors then still in office who were directors on the date
hereof or whose election for nomination for election was previously
so approved (collectively, the “ Continuing Directors
”), cease for any reason to constitute at least a majority of
the members of the Board;
(iii) Corporate
Transactions. The effective date of a merger, stock exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
other similar business combination of the Company (a “
Business Combination ”), in each case, unless, following such
Business Combination: (1) all or substantially all of the
individuals and entities who were the Beneficial Owners of
securities entitled to vote generally in the election of directors
immediately prior to such Business Combination beneficially own,
directly or indirectly, more than 51% of the combined voting power
of the then outstanding securities of the Company entitled to vote
generally in the election of directors resulting from such Business
Combination (including, without limitation, a corporation which as
a result of such transaction owns the Company or all or
substantially all of the Company’s assets either directly or
through one or more Subsidiaries (as defined below)) in
substantially the same proportions as their ownership immediately
prior to such Business Combination, of the securities entitled to
vote generally in the election of directors; (2) no Person
(excluding any corporation resulting from such Business
Combination) is the Beneficial Owner, directly or indirectly, of
15% or more of the combined voting power of the then outstanding
securities entitled to vote generally in the election of directors
of the surviving corporation except to the extent that such
ownership existed prior to the Business Combination; and
(3) at least a majority of the Board of Directors of the
corporation resulting from such Business Combination were
Continuing Directors at the time of the execution of the initial
agreement, or of the action of the Board of Directors, providing
for such Business Combination;
(iv) Liquidation.
The approval by the stockholders of the Company of a complete
liquidation of the Company or an agreement or series of agreements
for the sale or disposition by the Company of all or substantially
all of the Company’s assets, other than factoring the
Company’s current receivables or escrows due (or, if such
stockholder approval is not required, the decision by the Board to
proceed with such a liquidation, sale, or disposition in one
transaction or a series of related transactions); or
(v) Other
Events. There occurs any other event of a nature that would be
required to be reported in response to Item 6(e) of
Schedule 14A of Regulation 14A (or a response to any
similar item on any similar schedule or form) promulgated under the
Exchange Act (as defined below), whether or not the Company is then
subject to such reporting requirement.
(d) “
Corporate Status ” describes the status of a person who is or
was a director, officer, trustee, general partner, manager,
managing member, fiduciary, employee, special advisor or agent of
the Company or of any other Enterprise (as defined below) which
such person is or was serving at the request of the
Company.
(e) “
Delaware Court ” shall mean the Court of Chancery of the
State of Delaware.
(f) “
Disinterested Director ” shall mean a director of the Company
who is not and was not a party to the Proceeding (as defined below)
in respect of which indemnification is sought by
Indemnitee.
(g) “
Enterprise ” shall mean the Company and any other
corporation, constituent corporation (including any constituent of
a constituent) absorbed in a consolidation or merger to which the
Company (or any of its wholly owned subsidiaries) is a party,
limited liability company, partnership, joint venture, trust,
employee benefit plan or other enterprise of which Indemnitee is or
was serving at the request of the Company as a director, officer,
trustee, general partner, managing member, fiduciary, employee,
special advisor or agent.
(h) “
Exchange Act ” shall mean the Securities Exchange Act of
1934, as amended.
(i) “
Expenses ” shall include all direct and indirect costs, fees
and expenses of any type or nature whatsoever, including, without
limitation, all reasonable attorneys’ fees and costs,
retainers, court costs, transcript costs, fees of experts, witness
fees, travel expenses, fees of private investigators and
professional advisors, duplicating costs, printing and binding
costs, telephone charges, postage, delivery service fees, fax
transmission charges, secretarial services and all other
disbursements, obligations or expenses in connection with
prosecuting, defending, preparing to prosecute or defend,
investigating, being or preparing to be a witness in, settlement or
appeal of, or otherwise participating in, a Proceeding (as defined
below), including reasonable compensation for time spent by the
Indemnitee for which he or she is not otherwise compensated by the
Company or any third party. Expenses also shall include Expenses
incurred in connection with any appeal resulting from any
Proceeding (as defined below), including without limitation the
principal, premium, security for, and other costs relating to any
cost bond, supersedes bond, or other appeal bond or its equivalent.
Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against
Indemnitee.
(j) References
to “ fines ” shall include any excise tax assessed on
Indemnitee with respect to any employee benefit plan; references to
“serving at the request of the Company” shall include
any service as a director, officer, employee, special advisor,
agent or fiduciary of the Company which imposes duties on, or
involves services by, such director, officer, employee, special
advisor, agent or fiduciary with respect to an employee benefit
plan, its participants or beneficiaries; and if Indemnitee acted in
good faith and in a manner Indemnitee reasonably believed to be in
the best interests of the participants and beneficiaries of an
employee benefit plan, Indemnitee shall be deemed to have acted in
a manner “not opposed to the best interests of the
Company” as referred to in this Agreement.
(k) “
Independent Counsel ” shall mean a law firm or a member of a
law firm with significant experience in matters of corporation law
and that neither presently is, nor in the past five years has been,
retained to represent: (i) the Company or Indemnitee in any
matter material to either such party (other than with respect to
matters concerning the Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements); or
(ii) any other party to the Proceeding (as defined below)
giving rise to a claim for indemnification hereunder.
Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the
applicable standards of professional conduct then prevailing, would
have a conflict of interest in representing either the Company or
Indemnitee in an action to determine Indemnitee’s rights
under this Agreement.
(l) The
term “ Person ” shall have the meaning as set forth in
Sections 13(d) and 14(d) of the Exchange Act as in effect on the
date hereof; provided, however, that “Person” shall
exclude: (i) the Company; (ii) any Subsidiaries (as defined
below) of the Company; (iii) any employment benefit plan of
the Company or of a Subsidiary (as defined below) of the Company or
of any corporation owned, directly or indirectly, by the
stockholders of the Company in substantially the same proportions
as their ownership of stock of the Company; and (iv) any
trustee or other fiduciary holding securities under an employee
benefit plan of the Company or of a Subsidiary (as defined below)
of the Company or of a corporation owned directly or indirectly by
the stockholders of the Company in substantially the same
proportions as their ownership of stock of the
Company.
(m) The
term “ Proceeding ” shall include any threatened,
pending or completed action, suit, arbitration, mediation,
alternate dispute resolution mechanism, investigation, inquiry,
administrative hearing or any other actual, threatened or completed
proceeding, whether brought in the right of the Company or
otherwise and whether of a civil (including intentional or
unintentional tort claims), criminal, administrative or
investigative nature, in which Indemnitee was, is, will or might be
involved as a party or otherwise by reason of the fact that
Indemnitee is or was a director, officer, employee or special
advisor of the Company, by reason of any action (or failure to act)
taken by Indemnitee or of any action (or failure to act) on
Indemnitee’s part while acting as a director, officer,
employee or special advisor of the Company, or by reason of the
fact that Indemnitee is or was serving at the request of the
Company as a director, officer, trustee, general partner, managing
member, fiduciary, employee, special advisor or agent of any other
Enterprise, in each case whether or not serving in such capacity at
the time any liability or expense is incurred for which
indemnification, reimbursement, or advancement of expenses can be
provided under this Agreement.
(n) The
term “ Subsidiary ,” with respect to any Person, shall
mean any corporation, limited liability company, partnership, joint
venture, trust or other entity of which a majority of the voting
power of the voting equity securities or equity interest is owned,
directly or indirectly, by that Person.
3. INDEMNITY
IN THIRD-PARTY PROCEEDINGS . To the fullest extent permitted by
applicable law, the Company shall indemnify, hold harmless and
exonerate Indemnitee in accordance with the provisions of this
Section 3 if Indemnitee was, is, or is threatened to be made,
a party to or a participant (as a witness, deponent or otherwise)
in any Proceeding, other than a Proceeding by or in the right of
the Company to procure a judgment in its favor by reason of
Indemnitee’s Corporate Status. Pursuant to this
Section 3, Indemnitee shall be indemnified, held harmless and
exonerated against all Expenses, judgments, liabilities, fines,
penalties and amounts paid in settlement (including all interest,
assessments and other charges paid or payable in connection with or
in respect of such Expenses, judgments, fines, penalties and
amounts paid in settlement) actually, and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company and, in the
case of a criminal Proceeding, had no reasonable cause to believe
that Indemnitee’s conduct was unlawful.
4.
INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY. To the
fullest extent permitted by applicable law, the Company shall
indemnify, hold harmless and exonerate Indemnitee in accordance
with the provisions of this Section 4 if Indemnitee was, is,
or is threatened to be made, a party to or a participant (as a
witness, deponent or otherwise) in any Proceeding by or in the
right of the Company to procure a judgment in its favor by reason
of Indemnitee’s Corporate Status. Pursuant to this
Section 4, Indemnitee shall be indemnified, held harmless and
exonerated against all Expenses actually and reasonably incurred by
Indemnitee or on Indemnitee’s behalf in connection with such
Proceeding or any claim, issue or matter therein, if Indemnitee
acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Company. No
indemnification, hold harmless or exoneration for Expenses shall be
made under this Section 4 in respect of any claim, issue or
matter as to which Indemnitee shall have been finally adjudged by a
court to be liable to the Company, unless and only to the extent
that any court in which the Proceeding was brought or the Delaware
Court shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of
the case, Indemnitee is fairly and reasonably entitled to
indemnification, to be held harmless or to
exoneration.
5. INDEMNIFICATION
FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL .
Notwithstanding any other provisions of this Agreement except for
Section 26, to the extent that Indemnitee was or is, by reason of
Indemnitee’s Corporate Status, a party to (or a participant
in) and is successful, on the merits or otherwise, in any
Proceeding or in defense of any claim, issue or matter therein, in
whole or in part, the Company shall, to the fullest extent
permitted by applicable law, indemnify, hold harmless and exonerate
Indemnitee against all Expenses actually and reasonably incurred by
Indemnitee in connection therewith. If Indemnitee is not wholly
successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or
matters in such Proceeding, the Company shall, to the fullest
extent permitted by applicable law, indemnify, hold harmless and
exonerate Indemnitee against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection with each successfully resolved claim, issue or matter.
If the Indemnitee is not wholly successful in such Proceeding, the
Company also shall, to the fullest extent permitted by applicable
law, indemnify, hold harmless and exonerate Indemnitee against all
Expenses reasonably incurred in connection with a claim, issue or
matter related to any claim, issue, or matter on which the
Indemnitee was successful. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a
Proceeding by dismissal, with or without prejudice, shall be deemed
to be a successful result as to such claim, issue or
matter.
6. INDEMNIFICATION
FOR EXPENSES OF A WITNESS . Notwithstanding any other provision of
this Agreement except for Section 26, to the extent that Indemnitee
is, by reason of Indemnitee’s Corporate Status, a witness or
deponent in any Proceeding to which Indemnitee was or is not a
party or threatened to be made a party, he shall, to the fullest
extent permitted by applicable law, be indemnified, held harmless
and exonerated against all Expenses actually and reasonably
incurred by Indemnitee or on Indemnitee’s behalf in
connection therewith.
7. CONTRIBUTION
IN THE EVENT OF JOINT LIABILITY.
(a) To
the fullest extent permissible under applicable law, if the
indemnification, hold harmless and/or exoneration rights provided
for in this Agreement are unavailable to Indemnitee in whole or in
part for any reason whatsoever, the Company, in lieu of
indemnifying, holding harmless or exonerating Indemnitee, shall
pay, in the first instance, the entire amount incurred by
Indemnitee, whether for judgments, liabilities, fines, penalties,
amounts paid or to be paid in settlement and/or for Expenses, in
connection with any Proceeding without requiring Indemnitee to
contribute to such payment, and the Company hereby waives and
relinquishes any right of contribution it may have at any time
against Indemnitee.
(b) The
Company shall not enter into any settlement of any Proceeding in
which the Company is jointly liable with Indemnitee (or would be if
joined in such Proceeding) unless such settlement provides for a
full and final release of all claims asserted against
Indemnitee.
(c) The
Company hereby agrees to fully indemnify, hold harmless and
exonerate Indemnitee from any claims for contribution which may be
brought by officers, directors or employees of the Company other
than Indemnitee who may be jointly liable with
Indemnitee.
8.
EXCLUSIONS.
Notwithstanding any provision in this Agreement except for Section
26, the Company shall not be obligated under this Agreement to make
any indemnification, advance expenses, hold harmless or exoneration
payment in connection with any claim made against
Indemnitee:
(a) for
which payment has actually been received by or on behalf of
Indemnitee under any insurance policy or other indemnity or
advancement provision, except with respect to any excess beyond the
amount actually received under any insurance policy, contract,
agreement, other indemnity or advancement provision or
otherwise;
(b) for
an accounting of profits made from the purchase and sale (or sale
and purchase) by Indemnitee of securities of the Company within the
meaning of Section 16(b) of the Exchange Act or similar provisions
of state statutory law or common law; or
(c) except
as otherwise provided in Sections 14(f)-(g) hereof, prior to a
Change in Control, in connection with any Proceeding (or any part
of any Proceeding) initiated by Indemnitee, including any
Proceeding (or any part of any Proceeding) initiated by Indemnitee
against the Company or its directors, officers, employees or other
indemnitees, unless (i) the Board authorized the Proceeding
(or any part of any Proceeding) prior to its initiation or
(ii) the Company provides the indemnification, hold harmless
or exoneration payment, in its sole discretion, pursuant to the
powers vested in the Company under applicable law. Indemnitee shall
seek payments or Advances from the Company only to the extent that
such payments or Advances are unavailable from any insurance policy
of the Company covering Indemnitee.
9. ADVANCES
OF EXPENSES; DEFENSE OF CLAIM.
(a) Notwithstanding
any provision of this Agreement to the contrary except for Section
26, and to the fullest extent not prohibited by applicable law, the
Company shall pay the Expenses incurred by Indemnitee (or
reasonably expected by Indemnitee to be incurred by Indemnitee
within three months) in connection with any Proceeding within ten
(10) days after the receipt by the Company of a statement or
statements requesting such advances from time to time, prior to the
final disposition of any Proceeding. Advances shall, to the fullest
extent permitted by law, be unsecured and interest free. Advances
shall, to the fullest extent permitted by law, be made without
regard to Indemnitee’s ability to repay the Expenses and
without regard to Indemnitee’s ultimate entitlement to be
indemnified, held harmless or exonerated under the other provisions
of this Agreement. Advances shall include any and all reasonable
Expenses incurred pursuing a Proceeding to enforce this right of
advancement, including Expenses incurred preparing and forwarding
statements to the Company to support the advances claimed. To the
fullest extent required by applicable law, such payments of
Expenses in advance of the final disposition of the Proceeding
shall be made only upon the Company’s receipt of an
undertaking, by or on behalf of the Indemnitee, to repay the
advanced amounts to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company
under the provisions of this Agreement, the Charter, the Bylaws of
the Company, applicable law or otherwise. This Section 9(a) shall
not apply to any claim made by Indemnitee for which an
indemnification, hold harmless or exoneration payment is excluded
pursuant to Section 8.
(b) The
Company will be entitled to participate in the Proceeding at its
own expense.
(c) The
Company shall not settle any action, claim or Proceeding (in whole
or in part) which would impose any Expense, judgment, fine, penalty
or limitation on the Indemnitee without the Indemnitee’s
prior written consent.
10. PROCEDURE
FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION.
(a) Indemnitee
agrees to notify promptly the Company in writing upon being served
with any summons, citation, subpoena, complaint, indictment,
information or other document relating to any Proceeding, claim,
issue or matter therein which may be subject to indemnification,
hold harmless or exoneration rights, or advancement of Expenses
covered hereunder. The failure of Indemnitee to so notify the
Company shall not relieve the Company of any obligation which it
may have to the Indemnitee under this Agreement, or
otherwise.
(b) Indemnitee
may deliver to the Company a written application to indemnify, hold
harmless or exonerate Indemnitee in accordance with this Agreement.
Such application(s) may be delivered from time to time and at such
time(s) as Indemnitee deems appropriate in Indemnitee’s sole
discretion. Following such a written application for
indemnification by Indemnitee, the Indemnitee’s entitlement
to indemnification shall be determined according to Section 11(a)
of this Agreement.
11. PROCEDURE
UPON APPLICATION FOR INDEMNIFICATION.
(a) A
determination, if required by applicable law, with respect to
Indemnitee’s entitlement to indemnification shall be made in
the specific case by one of the following methods, which shall be
at the election of Indemnitee: (i) by a majority vote of the
Disinterested Directors, even though less than a quorum of the
Board or (ii) by Independent Counsel in a written opinion to
the Board, a copy of which shall be delivered to Indemnitee. The
Company promptly will advise Indemnitee in writing with respect to
any determination that Indemnitee is or is not entitled to
indemnification, including a description of any reason or basis for
which indemnification has been denied. If it is so determined that
Indemnitee is entitled to indemnification, payment to Indemnitee
shall be made within ten (10) days after such determination.
Indemnitee shall reasonably cooperate with the person, persons or
entity making such determination with respect to Indemnitee’s
entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation
or information which is not privileged or otherwise protected from
disclosure and which is reasonably available to Indemnitee and
reasonably necessary to such determination. Any costs or Expenses
(including reasonable attorneys’ fees and disbursements)
incurred by Indemnitee in so cooperating with the person, persons
or entity making such determination shall be borne by the Company
(irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby agrees to
indemnify and to hold Indemnitee harmless therefrom.
(b) In
the event the determination of entitlement to indemnification is to
be made by Independent Counsel pursuant to Section 11(a) hereof,
the Independent Counsel shall be selected as provided in this
Section 11(b). The Independent Counsel shall be selected by
Indemnitee (unless Indemnitee shall request that such selection be
made by the Board), and Indemnitee shall give written notice to the
Company advising it of the identity of the Independent Counsel so
selected and certifying that the Independent Counsel so selected
meets the requirements of “Independent Counsel” as
defined in Section 2 of this Agreement. If the Independent
Counsel is selected by the Board, the Company shall give written
notice to Indemnitee advising Indemnitee of the identity of the
Independent Counsel so selected and certifying that the Independent
Counsel so selected meets the requirements of “Independent
Counsel” as defined in Section 2 of this Agreement. In
either event, Indemnitee or the Company, as the case may be, may,
within ten (10) days after such written notice of selection
shall have been received, deliver to the Company or to Indemnitee,
as the case may be, a written objection to such selection;
provided, however, that such objection may be asserted only on the
ground that the Independent Counsel so selected does not meet the
requirements of “Independent Counsel” as defined in
Section 2 of this Agreement, and the objection shall set forth
with particularity the factual basis of such assertion. Absent a
proper and timely objection, the person so selected shall act as
Independent Counsel. If such written objection is so made and
substantiated, the Independent Counsel so selected may not serve as
Independent Counsel unless and until such objection is withdrawn or
a court of competent jurisdiction has determined that such
objection is without merit. If, within twenty (20) days after
submission by Indemnitee of a written request for indemnification
pursuant to Section 10(a) hereof, no Independent Counsel shall have
been selected and not objected to, either the Company or Indemnitee
may petition the Delaware Court for resolution of any objection
which shall have been made by the Company or Indemnitee to the
other’s selection of Independent Counsel and/or for the
appointment as Independent Counsel of a person selected by the
Delaware Court, and the person with respect to whom all objections
are so resolved or the person so appointed shall act as Independent
Counsel under Section 11(a) hereof. Upon the due commencement of
any judicial proceeding or arbitration pursuant to Section 13(a) of
this Agreement, Independent Counsel shall be discharged and
relieved of any further responsibility in such capacity (subject to
the applicable standards of professional conduct then
prevailing).
(c) The
Company agrees to pay the reasonable fees and expenses of
Independent Counsel and to fully indemnify and hold harmless such
Independent Counsel against any and all Expenses, claims,
liabilities and damages arising out of or relating to this
Agreement or its engagement pursuant hereto.
12. PRESUMPTIONS
AND EFFECT OF CERTAIN PROCEEDINGS.
(a) In
making a determination with respect to entitlement to
indemnification hereunder, the person, persons or entity making
such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section 10(b) of
this Agreement, and the Company shall have the burden of proof to
overcome that presumption in connection with the making by any
person, persons or entity of any determination contrary to that
presumption. Neither the failure of the Company (including by the
Disinterested Directors or Independent Counsel) to have made a
determination prior to the commencement of any action pursuant to
this Agreement that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor
an actual determination by the Company (including by the
Disinterested Directors or Independent Counsel) that Indemnitee has
not met such applicable standard of conduct, shall be a defense to
the action or create a presumption that Indemnitee has not met the
applicable standard of conduct.
(b) If
the person, persons or entity empowered or selected under
Section 11 of this Agreement to determine whether Indemnitee
is entitled to indemnification shall not have made a determination
within thirty (30) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to
indemnification shall, to the fullest extent permitted by law, be
deemed to have been made and Indemnitee shall be entitled to such
indemnification, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a
final judicial determination that any or all such indemnification
is expressly prohibited under applicable law; provided, however,
that such 30-day period may be extended for a reasonable time, not
to exceed an additional fifteen (15) days, if the person,
persons or entity making the determination with respect to
entitlement to indemnification in good faith requires such
additional time for the obtaining or evaluating of documentation
and/or information relating thereto.
(c) The
termination of any Proceeding or of any claim, issue or matter
therein, by judgment, order, settlement or conviction, or upon a
plea of nolo contendere or its equivalent, shall not (except as
otherwise expressly provided in this Agreement) of itself adversely
affect the right of Indemnitee to indemnification or create a
presumption that Indemnitee 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 Company or, with respect to any criminal
Proceeding, that Indemnitee had reasonable cause to believe that
Indemnitee’s conduct was unlawful.
(d) For
purposes of any determination of good faith, Indemnitee shall be
deemed to have acted in good faith if Indemnitee’s action is
based on the records or books of account of the Enterprise,
including financial statements, or on information supplied to
Indemnitee by the directors, manager, or officers of the Enterprise
in the course of their duties, or on the advice of legal counsel
for the Enterprise, its Board, any committee of the Board or any
director, trustee, general partner, manager or managing member, or
on information or records given or reports made to the Enterprise,
its Board, any committee of the Board or any director, trustee,
general partner, manager or managing member, by an independent
certified public accountant or by an appraiser or other expert
selected by the Enterprise, its Board, any committee of the Board
or any director, trustee, general partner, manager or managing
member. The provisions of this Section 12(d) shall not be deemed to
be exclusive or to limit in any way the other circumstances in
which the Indemnitee may be deemed or found to have met the
applicable standard of conduct set forth in this
Agreement.
(e) The
knowledge and/or actions, or failure to act, of any other director,
officer, trustee, partner, manager, managing member, fiduciary,
agent or employee of the Enterprise shall not be imputed to
Indemnitee for purposes of determining the right to indemnification
under this Agreement.
13. REMEDIES
OF INDEMNITEE.
(a) In
the event that (i) a determination is made pursuant to
Section 11 of this Agreement that Indemnitee is not entitled
to indemnification under this Agreement, (ii) advancement of
Expenses is not timely made pursuant to Section 9 of this
Agreement, (iii) no determination of entitlement to
indemnification shall have been made pursuant to Section 11(a) of
this Agreement within thirty (30) days after receipt by the
Company of the request for indemnification, (iv) payment of
indemnification is not made pursuant to Section 5, 6 or the
last sentence of Section 11(a) of this Agreement within ten
(10) days after receipt by the Company of a written request
therefor, (v) a contribution payment is not made in a timely
manner pursuant to Section 7 of this Agreement,
(vi) payment of indemnification pursuant to Section 3 or 4 of
this Agreement is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to
indemnification, or (vii) payment to Indemnitee pursuant to
any hold harmless or exoneration rights under this Agreement or
otherwise is not made in accordance with this Agreement, Indemnitee
shall be entitled to an adjudication by the Delaware Court to such
indemnification, hold harmless, exoneration, contribution or
advancement rights. Alternatively, Indemnitee, at
Indemnitee’s option, may seek an award in arbitration to be
conducted by a single arbitrator pursuant to the Commercial
Arbitration Rules of the American Arbitration Association. Except
as set forth herein, the provisions of Delaware law (without regard
to its conflict of laws rules) shall apply to any such arbitration.
The Company shall not oppose Indemnitee’s right to seek any
such adjudication or award in arbitration.
(b) In
the event that a determination shall have been made pursuant to
Section 11(a) of this Agreement that Indemnitee is not entitled to
indemnification, any judicial proceeding or arbitration commenced
pursuant to this Section 13 shall be conducted in all respects
as a de novo trial, or arbitration, on the merits and Indemnitee
shall not be prejudiced by reason of that adverse
determination.
(c) In
any judicial proceeding or arbitration commenced pursuant to this
Section 13, Indemnitee shall be presumed to be entitled to be
indemnified, held harmless, exonerated to receive advancement of
Expenses under this Agreement and the Company shall have the burden
of proving Indemnitee is not entitled to be indemnified, held
harmless, exonerated and to receive advancement of Expenses, as the
case may be, and the Company may not refer to or introduce into
evidence any determination pursuant to Section 11(a) of this
Agreement adverse to Indemnitee for any purpose. If Indemnitee
commences a judicial proceeding or arbitration pursuant to this
Section 13, Indemnitee shall not be required to reimburse the
Company for any advances pursuant to Section 9 until a final
determination is made with respect to Indemnitee’s
entitlement to indemnification (as to which all rights of appeal
have been exhausted or lapsed).
(d) If a
determination shall have been made pursuant to Section 11(a) of
this Agreement that Indemnitee is entitled to indemnification, the
Company shall be bound by such determination in any judicial
proceeding or arbitration commenced pursuant to this
Section 13, absent (i) a misstatement by Indemnitee of a
material fact, or an omission of a material fact necessary to make
Indemnitee’s statement not materially misleading, in
connection with the request for indemnification, or (ii) a
prohibition of such indemnification under applicable
law.
(e) The
Company shall be precluded from asserting in any judicial
proceeding or arbitration commenced pursuant to this
Section 13 that the procedures and presumptions of this
Agreement are not valid, binding and enforceable and shall
stipulate in any such court or before any such arbitrator that the
Company is bound by all the provisions of this
Agreement.
(f) The
Company shall indemnify and hold harmless Indemnitee to the fullest
extent permitted by law against all Expenses and, if requested by
Indemnitee, shall (within ten (10) days after the
Company’s receipt of such written request) pay to Indemnitee,
to the fullest extent permitted by applicable law, such Expenses
which are incurred by Indemnitee in connection with any judicial
proceeding or arbitration brought by Indemnitee: (i) to
enforce Indemnitee’s rights under, or to recover damages for
breach of, this Agreement or any other indemnification, hold
harmless, exoneration, advancement or contribution agreement or
provision of the Charter, or the Company’s Bylaws now or
hereafter in effect; or (ii) for recovery or advances under
any insurance policy maintained by any person for the benefit of
Indemnitee, regardless of the outcome and whether Indemnitee
ultimately is determined to be entitled to such indemnification,
hold harmless or exoneration right, advancement, contribution or
insurance recovery, as the case may be (unless such judicial
proceeding or arbitration was not brought by Indemnitee in good
faith).
(g) Interest
shall be paid by the Company to Indemnitee at the legal rate under
Delaware law for amounts which the Company indemnifies, holds
harmless or exonerates, or advances, or is obliged to indemnify,
hold harmless or exonerate or advance for the period commencing
with the date on which Indemnitee requests indemnification, to be
held harmless, exonerated, contribution, reimbursement or
advancement of any Expenses and ending with the date on which such
payment is made to Indemnitee by the Company.
14. SECURITY
. Notwithstanding anything herein to the contrary except for
Section 26, to the extent requested by the Indemnitee and approved
by the Board, the Company may at any time and from time to time
provide security to the Indemnitee for the Company’s
obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided
to the Indemnitee, may not be revoked or released without the prior
written consent of the Indemnitee.
15. NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION.
(a) The
rights of Indemnitee as provided by this Agreement shall not be
deemed exclusive of any other rights to which Indemnitee may at any
time be entitled under applicable law, the Charter, the
Company’s Bylaws, any agreement, a vote of stockholders or a
resolution of directors, or otherwise. No amendment, alteration or
repeal of this Agreement or of any provision hereof shall limit or
restrict any right of Indemnitee under this Agreement in respect of
any Proceeding (regardless of when such Proceeding is first
threatened, commenced or completed) or claim, issue or matter
therein arising out of, or related to, any action taken or omitted
by such Indemnitee in Indemnitee’s Corporate Status prior to
such amendment, alteration or repeal. To the extent that a change
in applicable law, whether by statute or judicial decision, permits
greater indemnification, hold harmless or exoneration rights or
advancement of Expenses than would be afforded currently under the
Charter, the Company’s Bylaws or this Agreement, it is the
intent of the parties hereto that Indemnitee shall enjoy by this
Agreement the greater benefits so afforded by such change. No right
or remedy herein conferred is intended to be exclusive of any other
right or remedy, and every other right and remedy shall be
cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other right or remedy.
(b) The
DGCL, the Charter and the Company’s Bylaws permit the Company
to purchase and maintain insurance or furnish similar protection or
make other arrangements including, but not limited to, providing a
trust fund, letter of credit, or surety bond (“
Indemnification Arrangements ”) on behalf of Indemnitee
against any liability asserted against Indemnitee or incurred by or
on behalf of Indemnitee or in such capacity as a director, officer,
employee, special advisor or agent of the Company, or arising out
of Indemnitee’s status as such, whether or not the Company
would have the power to indemnify Indemnitee against such liability
under the provisions of this Agreement or under the DGCL, as it may
then be in effect. The purchase, establishment, and maintenance of
any such Indemnification Arrangement shall not in any way limit or
affect the rights and obligations of the Company or of the
Indemnitee under this Agreement except as expressly provided
herein, and the execution and delivery of this Agreement by the
Company and the Indemnitee shall not in any way limit or affect the
rights and obligations of the Company or the other party or parties
thereto under any such Indemnification Arrangement.
(c) To
the extent that the Company maintains an insurance policy or
policies providing liability insurance for directors, officers,
trustees, partners, managers, managing members, fiduciaries,
employees, special advisors or agents of the Company or of any
other Enterprise which such person serves at the request of the
Company, Indemnitee shall be covered by such policy or policies in
accordance with its or their terms to the maximum extent of the
coverage available for any such director, officer, trustee,
partner, managers, managing member, fiduciary, employee, special
advisor or agent under such policy or policies. If, at the time the
Company receives notice from any source of a Proceeding as to which
Indemnitee is a party or a participant (as a witness, deponent or
otherwise), the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of such
Proceeding to the insurers in accordance with the procedures set
forth in the respective policies. The Company shall thereafter take
all necessary or desirable action to cause such insurers to pay, on
behalf of the Indemnitee, all amounts payable as a result of such
Proceeding in accordance with the terms of such
policies.
(d) In
the event of any payment under this Agreement, the Company, to the
fullest extent permitted by law, shall be subrogated to the extent
of such payment to all of the rights of recovery of Indemnitee, who
shall execute all papers required and take all action necessary to
secure such rights, including execution of such documents as are
necessary to enable the Company to bring suit to enforce such
rights.
(e) The
Company’s obligation to indemnify, hold harmless, exonerate
or advance Expenses hereunder to Indemnitee who is or was serving
at the request of the Company as a director, officer, trustee,
partner, manager, managing member, fiduciary, employee, special
advisor or agent of any other Enterprise shall be reduced by any
amount Indemnitee has actually received as indemnification, hold
harmless or exoneration payments or advancement of expenses from
such Enterprise. Notwithstanding any other provision of this
Agreement to the contrary except for Section 26,
(i) Indemnitee shall have no obligation to reduce, offset,
allocate, pursue or apportion any indemnification, hold harmless,
exoneration, advancement, contribution or insurance coverage among
multiple parties possessing such duties to Indemnitee prior to the
Company’s satisfaction and performance of all its obligations
under this Agreement, and (ii) the Company shall perform fully
its obligations under this Agreement without regard to whether
Indemnitee holds, may pursue or has pursued any indemnification,
advancement, hold harmless, exoneration, contribution or insurance
coverage rights against any person or entity other than the
Company.
16.
DURATION
OF AGREEMENT. All agreements and obligations of the Company
contained herein shall continue during the period Indemnitee serves
as a director, officer, employee and/or special advisor of the
Company or as a director, officer, trustee, partner, manager,
managing member, fiduciary, employee, special advisor or agent of
any other corporation, partnership, joint venture, trust, employee
benefit plan or other Enterprise which Indemnitee serves at the
request of the Company and shall continue thereafter so long as
Indemnitee shall be subject to any possible Proceeding (including
any rights of appeal thereto and any Proceeding commenced by
Indemnitee pursuant to Section 13 of this Agreement) by reason
of Indemnitee’s Corporate Status, whether or not Indemnitee
is acting in any such capacity at the time any liability or expense
is incurred for which indemnification or advancement can be
provided under this Agreement.
17.
SEVERABILITY.
If any provision or provisions of this Agreement shall be held to
be invalid, illegal or unenforceable for any reason whatsoever:
(a) the validity, legality and enforceability of the remaining
provisions of this Agreement (including, without limitation, each
portion of any Section, paragraph or sentence of this Agreement
containing any such provision held to be invalid, illegal or
unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby
and shall remain enforceable to the fullest extent permitted by
law; (b) such provision or provisions shall be deemed reformed
to the extent necessary to conform to applicable law and to give
the maximum effect to the intent of the parties hereto; and
(c) to the fullest extent possible, the provisions of this
Agreement (including, without limitation, each portion of any
Section, paragraph or sentence of this Agreement containing any
such provision held to be invalid, illegal or unenforceable, that
is not itself invalid, illegal or unenforceable) shall be construed
so as to give effect to the intent manifested thereby.
18. ENFORCEMENT
AND BINDING EFFECT.
(a) The
Company expressly confirms and agrees that it has entered into this
Agreement and assumed the obligations imposed on it hereby in order
to induce Indemnitee to serve as a director, officer, special
advisor and/or key employee of the Company, and the Company
acknowledges that Indemnitee is relying upon this Agreement in
serving as a director, officer, special advisor and/or key employee
of the Company.
(b) Without
limiting any of the rights of Indemnitee under the Charter or
Bylaws of the Company as they may be amended from time to time,
this Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all
prior agreements and understandings, oral, written and implied,
between the parties hereto with respect to the subject matter
hereof.
(c) The
indemnification, hold harmless, exoneration and advancement of
expenses rights provided by or granted pursuant to this Agreement
shall be binding upon and be enforceable by the parties hereto and
their respective successors and assigns (including any direct or
indirect successor by purchase, merger, consolidation or otherwise
to all or substantially all of the business and/or assets of the
Company), shall continue as to an Indemnitee who has ceased to be a
director, officer, employee, special advisor or agent of the
Company or a director, officer, trustee, general partner, manager,
managing member, fiduciary, employee, special advisor or agent of
any other Enterprise at the Company’s request, and shall
inure to the benefit of Indemnitee and Indemnitee’s spouse,
assigns, heirs, devisees, executors and administrators and other
legal representatives.
(d) The
Company shall require and cause any successor (whether direct or
indirect by purchase, merger, consolidation or otherwise) to all,
substantially all or a substantial part, of the business and/or
assets of the Company, by written agreement in form and substance
reasonably satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform if no such
succession had taken place.
(e) The
Company and Indemnitee agree herein that a monetary remedy for
breach of this Agreement, at some later date, may be inadequate,
impracticable and difficult of proof, and further agree that such
breach may cause Indemnitee irreparable harm. Accordingly, the
parties hereto agree that Indemnitee may, to the fullest extent
permitted by law, enforce this Agreement by seeking, among other
things, injunctive relief and/or specific performance hereof,
without any necessity of showing actual damage or irreparable harm
and that by seeking injunctive relief and/or specific performance,
Indemnitee shall not be precluded from seeking or obtaining any
other relief to which he may be entitled. The Company and
Indemnitee further agree that Indemnitee shall, to the fullest
extent permitted by law, be entitled to such specific performance
and injunctive relief, including temporary restraining orders,
preliminary injunctions and permanent injunctions, without the
necessity of posting bonds or other undertaking in connection
therewith. The Company acknowledges that in the absence of a
waiver, a bond or undertaking may be required of Indemnitee by the
Court, Company hereby waives any such requirement of such a bond or
undertaking to the fullest extent permitted by law.
19.
MODIFICATION
AND WAIVER. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by the
Company and the Indemnitee. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any
other provisions of this Agreement nor shall any waiver constitute
a continuing waiver.
20.
NOTICES.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed to have been duly
given (i) if delivered by hand and receipted for by the party
to whom said notice or other communication shall have been
directed, or (ii) mailed by certified or registered mail with
postage prepaid, on the third (3rd) business day after the date on
which it is so mailed:
(a) If
to Indemnitee, at the address indicated on the signature page of
this Agreement, or such other address as Indemnitee shall provide
in writing to the Company.
(b) If
to the Company, to:
Big Rock Partners Acquisition Corp.
c/o Big Rock Partners Sponsor, LLC
2645 N. Federal Highway
Suite 230
Delray Beach, FL 33483
or to any other address as may have been furnished to Indemnitee in
writing by the Company.
21. APPLICABLE
LAW AND CONSENT TO JURISDICTION . This Agreement and the legal
relations among the parties shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware,
without regard to its conflict of laws rules. Except with respect
to any arbitration commenced by Indemnitee pursuant to Section
13(a) of this Agreement, to the fullest extent permitted by law,
the Company and Indemnitee hereby irrevocably and unconditionally:
(a) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the
Delaware Court and not in any other state or federal court in the
United States of America or any court in any other country; (b)
consent to submit to the exclusive jurisdiction of the Delaware
Court for purposes of any action or proceeding arising out of or in
connection with this Agreement; (c) waive any objection to the
laying of venue of any such action or proceeding in the Delaware
Court; and (d) waive, and agree not to plead or to make, any
claim that any such action or proceeding brought in the Delaware
Court has been brought in an improper or inconvenient forum, or is
subject (in whole or in part) to a jury trial. To the fullest
extent permitted by law, the parties hereby agree that the mailing
of process and other papers in connection with any such action or
proceeding in the manner provided by Section 20 or in such other
manner as may be permitted by law, shall be valid and sufficient
service thereof.
22.
IDENTICAL
COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be
an original but all of which together shall constitute one and the
same Agreement. Only one such counterpart signed by the party
against whom enforceability is sought needs to be produced to
evidence the existence of this Agreement.
23.
MISCELLANEOUS.
Use of the masculine pronoun shall be deemed to include usage of
the feminine pronoun where appropriate. The headings of the
paragraphs of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to
affect the construction thereof.
24.
PERIOD
OF LIMITATIONS. No legal action shall be brought and no cause of
action shall be asserted by or in the right of the Company against
Indemnitee, Indemnitee’s spouse, heirs, executors or personal
or legal representatives after the expiration of two years from the
date of accrual of such cause of action, and any claim or cause of
action of the Company shall be extinguished and deemed released
unless asserted by the timely filing of a legal action within such
two-year period; provided, however, that if any shorter period of
limitations is otherwise applicable to any such cause of action
such shorter period shall govern.
25.
ADDITIONAL
ACTS. If for the validation of any of the provisions in this
Agreement any act, resolution, approval or other procedure is
required to the fullest extent permitted by law, the Company
undertakes to cause such act, resolution, approval or other
procedure to be affected or adopted in a manner that will enable
the Company to fulfill its obligations under this
Agreement.
26.
WAIVER.
Indemnitee hereby agrees that it does not have any right, title,
interest or claim of any kind (each, a “Claim”) in or
to any monies in the trust account established in connection with
the Company’s initial public offering for the benefit of the
Company and holders of shares issued in such offering, and hereby
waives any Claim it may have in the future as a result of, or
arising out of, any services provided to the Company and will not
seek recourse against such trust account for any reason
whatsoever.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this
Indemnification Agreement to be signed as of the day and year first
above written.
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BIG ROCK PARTNERS ACQUISITION CORP.
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By:
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Name:
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Title:
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INDEMNITEE
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By:
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Name:
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Address:
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[Signature page to Indemnification Agreement]
Exhibit 10.9
Big Rock Partners Acquisition Corp.
2645 N. Federal Highway
Suite 230
Delray Beach, Florida 33483
November
20, 2017
Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
RE:
Securities Subscription Agreement
Ladies
and Gentlemen:
This
securities subscription agreement (the “
Agreement
”) is entered into on
November 20, 2017 by and between Big Rock Partners Sponsor, LLC, a
Delaware limited liability company (the “
Subscriber
” or “
you
”), and Big Rock
Partners Acquisition Corp., a Delaware corporation (the
“
Company
”,
“
we
” or
“
us
”). Pursuant
to the terms hereof, the Subscriber hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to the
Subscriber, on the Closing (as defined in Section 1.1) (i) 250,000
Private Placement Units (the “
Initial Units
”), each consisting
of one (1) share of the Company’s common stock, $0.001 par
value per share (the “
Shares
”), (ii) one (1) right (the
“
Rights
”)
entitling the holder to receive one-tenth (1/10) of one Share upon
the consummation of an initial business combination, and (iii)
one-half (1/2) of one warrant (the “
Warrants
”). Additionally, pursuant
to the terms hereof, Subscriber hereby agrees to purchase from the
Company, and the Company hereby agrees to sell to the Subscriber,
up to 22,500 Private Placement Units (the “
Additional Units
” and together
with the Initial Units, the “
Units
”) to the extent the
underwriters of the proposed initial public offering
(“
IPO
”) of the
Units exercise their over-allotment option (the “
Over-allotment Option
”) in full.
The Company and the Subscriber’s agreements regarding such
Units are as follows:
1.
Purchase of
Securities
.
1.1.
Closing
.
The closing of the sale and purchase of the Initial Units shall
take place simultaneously with, and subject to, the consummation of
the IPO and the closing of the purchase and sale of Additional
Units shall take place simultaneously with, and subject to, the
closing of the Over-Allotment Option (each a “
Closing Date
”).
1.2.
Purchase
of Units
. For the sum of $2,500,000 (the “
Initial Purchase Price
”), payable
in cash at the Closing, the Company shall issue the Initial Units
to the Subscriber, on the terms and subject to the conditions set
forth in this Agreement. In addition, Subscriber hereby
conditionally agrees to purchase up to an additional 22,500
Additional Units at $10.00 per Unit, in an amount necessary to
maintain in the Trust Account (as defined in Section 3 below) at
$10.00 per unit sold in the IPO, for up to an additional purchase
price of $225,000.00 (the “
Additional Purchase Price
,” and
together with the Initial Purchase Price, the “
Purchase Price
”). Subscriber shall
deliver the Purchase Price to the Trust Account (defined below) or
into an escrow account maintained by Akerman LLP, counsel for the
Company, at least one (1) business day prior to the date of
effectiveness of the registration statement filed by the Company in
connection with the IPO (the “
Registration
Statement
”).
2.
Representations, Warranties and
Agreements
.
2.1.
Subscriber’s
Representations, Warranties and Agreements
. To induce the
Company to issue the Units to the Subscriber, the Subscriber hereby
represents and warrants to the Company and agrees with the Company
as follows:
2.1.1.
No
Government Recommendation or Approval
. The Subscriber
understands that no federal or state agency has passed upon or made
any recommendation or endorsement of the offering of the
Units.
2.1.2.
No
Conflicts
. The execution, delivery and performance of this
Agreement and the consummation by the Subscriber of the
transactions contemplated hereby do not violate, conflict with or
constitute a default under (i) the formation and governing
documents of the Subscriber, (ii) any agreement, indenture or
instrument to which the Subscriber is a party or (iii) any law,
statute, rule or regulation to which the Subscriber is subject, or
any agreement, order, judgment or decree to which the Subscriber is
subject.
2.1.3.
Authority
.
Upon execution and delivery by you, this Agreement is a legal,
valid and binding agreement of Subscriber, enforceable against
Subscriber in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting the enforcement of
creditors’ rights generally and subject to general principles
of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
2.1.4.
Experience,
Financial Capability and Suitability
. Subscriber is: (i)
sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Units and (ii) able to
bear the economic risk of its investment in the Units for an
indefinite period of time because the Units (and underlying
securities) have not been registered under the Securities Act (as
defined below) and therefore cannot be sold unless subsequently
registered under the Securities Act or an exemption from such
registration is available. Subscriber is capable of evaluating the
merits and risks of its investment in the Company and has the
capacity to protect its own interests. Subscriber must bear the
economic risk of this investment until the Units are sold pursuant
to an effective registration statement under the Securities Act or
an exemption from registration available with respect to such sale.
Subscriber is able to afford a complete loss of Subscriber’s
investment in the Units.
2.1.5.
Access
to Information; Independent Investigation
. Prior to the
execution of this Agreement, the Subscriber has had the opportunity
to ask questions of and receive answers from representatives of the
Company concerning an investment in the Company, as well as the
finances, operations, business and prospects of the Company, and
the opportunity to obtain additional information to verify the
accuracy of all information so obtained. In determining whether to
make this investment, Subscriber has relied solely on
Subscriber’s own knowledge and understanding of the Company
and its business based upon Subscriber’s own due diligence
investigation and the information furnished pursuant to this
paragraph. Subscriber understands that no person has been
authorized to give any information or to make any representations
which were not furnished pursuant to this Section 2 and Subscriber
has not relied on any other representations or information in
making its investment decision, whether written or oral, relating
to the Company, its operations and/or its prospects.
2.1.6.
Regulation
D Offering
. Subscriber represents that it is an
“accredited investor” as such term is defined in Rule
501(a) of Regulation D under the Securities Act of 1933, as amended
(the “
Securities
Act
”) and acknowledges the sale contemplated hereby is
being made in reliance on a private placement exemption to
“accredited investors” within the meaning of Section
501(a) of Regulation D under the Securities Act or similar
exemptions under state law.
2.1.7.
Investment
Purposes
. The Subscriber is purchasing the Units solely for
investment purposes, for the Subscriber’s own account and not
for the account or benefit of any other person, and not with a view
towards the distribution or dissemination thereof. The Subscriber
did not decide to enter into this Agreement as a result of any
general solicitation or general advertising within the meaning of
Rule 502 under the Securities Act.
2.1.8.
Restrictions
on Transfer; Shell Company
. Subscriber understands the Units
are being offered in a transaction not involving a public offering
within the meaning of the Securities Act. Subscriber understands
the Units will be “restricted securities” within the
meaning of Rule 144(a)(3) under the Securities Act, and Subscriber
understands that the certificates representing the Units will
contain a legend in respect of such restrictions. If in the future
the Subscriber decides to offer, resell, pledge or otherwise
transfer the Units, such Units may be offered, resold, pledged or
otherwise transferred only pursuant to (i) registration under the
Securities Act, or (ii) an available exemption from registration.
Subscriber agrees that if any transfer of its Units or any interest
therein is proposed to be made, as a condition precedent to any
such transfer, Subscriber may be required to deliver to the Company
an opinion of counsel satisfactory to the Company. Absent
registration or an exemption, the Subscriber agrees not to resell
the Units. Subscriber further acknowledges that because the Company
is a shell company, Rule 144 may not be available to the Subscriber
for the resale of the Units until one year following consummation
of the initial business combination by the Company, despite
technical compliance with the requirements of Rule 144 and the
release or waiver of any contractual transfer
restrictions.
2.1.9.
No
Governmental Consents
. No governmental, administrative or
other third party consents or approvals are required, necessary or
appropriate on the part of Subscriber in connection with the
transactions contemplated by this Agreement.
2.2.
Company’s
Representations, Warranties and Agreements
. To induce the
Subscriber to purchase the Units, the Company hereby represents and
warrants to the Subscriber and agrees with the Subscriber as
follows:
2.2.1.
Organization
and Corporate Power
. The Company is a Delaware corporation
and is qualified to do business in every jurisdiction in which the
failure to so qualify would reasonably be expected to have a
material adverse effect on the financial condition, operating
results or assets of the Company. The Company possesses all
requisite corporate power and authority necessary to carry out the
transactions contemplated by this Agreement.
2.2.2.
No
Conflicts
. The execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions
contemplated hereby do not violate, conflict with or constitute a
default under (i) the certificate of incorporation of the Company,
(ii) any agreement, indenture or instrument to which the Company is
a party or (iii) any law, statute, rule or regulation to which the
Company is subject, or any agreement, order, judgment or decree to
which the Company is subject.
2.2.3.
Title
to Securities
. Upon issuance in accordance with, and payment
pursuant to, the terms hereof, the Units and Shares, and upon
exercise of the Rights and Warrants, the Shares issuable
thereunder, will be duly and validly issued, fully paid and
nonassessable. Upon issuance in accordance with, and payment
pursuant to, the terms hereof, and registration in the
Company’s register of stockholders, the Subscriber will have
or receive good title to the Units, free and clear of all liens,
claims and encumbrances of any kind, other than (a) transfer
restrictions hereunder and other agreements to which the Units may
be subject, (b) transfer restrictions under federal and state
securities laws, and (c) liens, claims or encumbrances imposed due
to the actions of the Subscriber.
2.2.4.
No
Adverse Actions
. There are no actions, suits, investigations
or proceedings pending, threatened against or affecting the Company
which (i) seek to restrain, enjoin, prevent the consummation of or
otherwise affect the transactions contemplated by this Agreement or
(ii) question the validity or legality of any transactions or seek
to recover damages or to obtain other relief in connection with any
transactions.
3.
Waiver of Liquidation Distributions;
Redemption Rights
. In connection with the Units purchased
pursuant to this Agreement, the Subscriber hereby waives any and
all right, title, interest or claim of any kind in or to any
distributions by the Company from the trust account which will be
established for the benefit of the Company’s public
stockholders and into which the Purchase Price and substantially
all of the proceeds of the IPO will be deposited (the
“
Trust
Account
”), in the event of a liquidation of the
Company upon the Company’s failure to timely complete an
initial business combination. For purposes of clarity, in the event
the Subscriber purchases Units in the IPO or Units or Shares in the
aftermarket, any additional Units or Shares so purchased shall be
eligible to receive any liquidating distributions by the
Company.
4.
Restrictions on
Transfer
.
4.1.
Securities
Law Restrictions
. In addition to any restrictions to be
contained in that certain letter agreement (commonly known as an
“
Insider
Letter
”) dated as of the closing of the IPO by and
between Subscriber and the Company, Subscriber agrees not to sell,
transfer, pledge, hypothecate or otherwise dispose of all or any
part of the Units unless, prior thereto (a) a registration
statement on the appropriate form under the Securities Act and
applicable state securities laws with respect to the Units proposed
to be transferred shall then be effective or (b) the Company has
received an opinion from counsel reasonably satisfactory to the
Company, that such registration is not required because such
transaction is exempt from registration under the Securities Act
and the rules promulgated by the Securities and Exchange Commission
thereunder and with all applicable state securities
laws.
4.2.
Restrictive
Legends
. Any certificates representing the Units shall have
endorsed thereon legends substantially as follows:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, 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 SUCH ACT OR SUCH LAWS
OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO LOCKUP
PURSUANT TO AN INSIDER LETTER BETWEEN, AMONG OTHERS, BIG ROCK
PARTNERS ACQUISITION CORP. AND BIG ROCK PARTNERS SPONSOR, LLC 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.”
4.3.
Additional
Units or Substituted Securities
. In the event of the
declaration of a share dividend, the declaration of an
extraordinary dividend payable in a form other than Units, a
spin-off, a share split, an adjustment in conversion ratio, a
recapitalization or a similar transaction affecting the
Company’s outstanding Units without receipt of consideration,
any new, substituted or additional securities or other property
which are by reason of such transaction distributed with respect to
any Units subject to this Section 4 or into which such Units
thereby become convertible shall immediately be subject to this
Section 4. Appropriate adjustments to reflect the distribution of
such securities or property shall be made to the number and/or
class of Units subject to this Section 4.
4.4.
Registration
Rights
. Subscriber acknowledges that the Units are being
purchased pursuant to an exemption from the registration
requirements of the Securities Act and will become freely tradable
only after certain conditions are met or they are registered
pursuant to a Registration Rights Agreement (the
“
Registration Rights
Agreement
”) to be entered into with the Company on or
prior to the closing of the IPO.
5.
Other Agreements
.
5.1.
Further
Assurances
. Subscriber agrees to execute such further
instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
5.2.
Notices
.
All notices, statements or other documents which are required or
contemplated by this Agreement shall be: (i) in writing and
delivered personally or sent by first class registered or certified
mail, overnight courier service or facsimile or electronic
transmission to the address designated in writing, (ii) by
facsimile to the number most recently provided to such party or
such other address or fax number as may be designated in writing by
such party and (iii) by electronic mail, to the electronic mail
address most recently provided to such party or such other
electronic mail address as may be designated in writing by such
party. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered
personally, on the business day following receipt of written
confirmation, if sent by facsimile or electronic transmission, one
(1) business day after delivery to an overnight courier service or
five (5) days after mailing if sent by mail.
5.3.
Entire
Agreement
. This Agreement, together with (a) that certain
Insider Letter to be entered into between Subscriber and the
Company, and (b) that certain Registration Rights Agreement to be
entered into among Subscriber and the Company, each substantially
in the form to be filed as an exhibit to the Registration Statement
on Form S-1 associated with the Company’s IPO, embodies the
entire agreement and understanding between the Subscriber and the
Company with respect to the subject matter hereof and supersedes
all prior oral or written agreements and understandings relating to
the subject matter hereof. No statement, representation, warranty,
covenant or agreement of any kind not expressly set forth in this
Agreement shall affect, or be used to interpret, change or
restrict, the express terms and provisions of this
Agreement.
5.4.
Modifications
and Amendments
. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by
all parties hereto.
5.5.
Waivers
and Consents
. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by
a written document executed by the party entitled to the benefits
of such terms or provisions. No such waiver or consent shall be
deemed to be or shall constitute a waiver or consent with respect
to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and
shall not constitute a continuing waiver or consent.
5.6.
Assignment
.
The rights and obligations under this Agreement may not be assigned
by either party hereto without the prior written consent of the
other party.
5.7.
Benefit
.
All statements, representations, warranties, covenants and
agreements in this Agreement shall be binding on the parties hereto
and shall inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this Agreement
shall be construed to create any rights or obligations except among
the parties hereto, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
5.8.
Governing
Law
. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and
governed by the laws of the State of Delaware applicable to
contracts wholly performed within the borders of such state,
without giving effect to the conflict of law principles
thereof.
5.9.
Severability
.
In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in
this Agreement shall be unreasonable or unenforceable in any
respect, then such provision shall be deemed limited to the extent
that such court deems it reasonable and enforceable, and as so
limited shall remain in full force and effect. In the event that
such court shall deem any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
5.10.
No
Waiver of Rights, Powers and Remedies
. No failure or delay
by a party hereto in exercising any right, power or remedy under
this Agreement, and no course of dealing between the parties
hereto, shall operate as a waiver of any such right, power or
remedy of such party. No single or partial exercise of any right,
power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right,
power or remedy, shall preclude such party from any other or
further exercise thereof or the exercise of any other right, power
or remedy hereunder. The election of any remedy by a party hereto
shall not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party
receiving such notice or demand to any other or further notice or
demand in similar or other circumstances or constitute a waiver of
the rights of the party giving such notice or demand to any other
or further action in any circumstances without such notice or
demand.
5.11.
Survival
of Representations and Warranties
. All representations and
warranties made by the parties hereto in this Agreement or in any
other agreement, certificate or instrument provided for or
contemplated hereby, shall survive the execution and delivery
hereof and any investigations made by or on behalf of the
parties.
5.12.
No
Broker or Finder
. Each of the parties hereto represents and
warrants to the other that no broker, finder or other financial
consultant has acted on its behalf in connection with this
Agreement or the transactions contemplated hereby in such a way as
to create any liability on the other. Each of the parties hereto
agrees to indemnify and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder,
financial consultant or similar agent claiming to have been
employed by or on behalf of such party and to bear the cost of
legal expenses incurred in defending against any such
claim.
5.13.
Headings
and Captions
. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference
only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
5.14.
Counterparts
.
This Agreement may be executed in one or more counterparts, all of
which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission
or any other form of electronic delivery, such signature shall
create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and
effect as if such signature page were an original
thereof.
5.15.
Construction
.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. If an ambiguity or question of intent
or interpretation arises, this Agreement will be construed as if
drafted jointly by the parties hereto and no presumption or burden
of proof will arise favoring or disfavoring any party hereto
because of the authorship of any provision of this Agreement. The
words “
include
,” “
includes
,” and “
including
” will be deemed to be
followed by “
without
limitation
.” Pronouns in masculine, feminine, and
neuter genders will be construed to include any other gender, and
words in the singular form will be construed to include the plural
and vice versa, unless the context otherwise requires. The words
“
this Agreement
,” “
herein
,” “
hereof
,” “
hereby
,” “
hereunder
,” and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so
limited. The parties hereto intend that each representation,
warranty, and covenant contained herein will have independent
significance. If any party hereto has breached any representation,
warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative
levels of specificity) which such party hereto has not breached
will not detract from or mitigate the fact that such party hereto
is in breach of the first representation, warranty, or
covenant.
6.
Voting and Tender of
Securities
. Subscriber agrees to vote any Shares owned by it
in favor of an initial business combination that the Company
negotiates and submits for approval to the Company’s
stockholders and Subscriber shall not seek redemption with respect
to such Shares in connection with any proposed initial business
combination or in connection with certain amendments to the
Company’s amended and restated certificate of incorporation
as described in the Registration Statement. Additionally, the
Subscriber agrees not to tender any Units, Shares, or Warrants, in
whole or in part, in connection with a tender offer presented to
the Company’s stockholders in connection with an initial
business combination negotiated by the Company.
7.
Terms of the Warrants underlying
Units
. The Warrants underlying the Units purchased hereunder
will be non-redeemable so long as they are held by the Subscriber
(or any of its permitted transferees), and may be exercisable on a
“cashless” basis if held by the Subscriber (or any of
its permitted transferees). Once transferred by the Subscriber to
someone other than a permitted transferee, the Warrants underlying
the Units purchased hereunder will be redeemable and exercisable in
the same manner as the Warrants purchased by investors in the
IPO.
[Signature Page Follows]
If the
foregoing accurately sets forth our understanding and agreement,
please sign the enclosed copy of this Agreement and return it to
us.
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|
Very
truly yours,
|
|
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BIG
ROCK PARTNERS ACQUISITION CORP.
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|
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|
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By:
|
/s/
Lori Wittman
|
|
|
|
Name:
Lori Wittman
|
|
|
|
Title:
Chief Financial Officer
|
Accepted
and agreed as of the date first written above.
|
BIG
ROCK PARTNERS SPONSOR, LLC
|
|
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By:
|
/s/
Richard Ackerman
|
|
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Name:
Richard Ackerman
|
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|
|
Title:
Managing Member
|
|
[Signature
Page to Securities Subscription Agreement]
Exhibit 99.1
Big Rock Partners Acquisition Corp. Announces Pricing of $60
Million Initial Public Offering
NEW YORK, NY / ACCESSWIRE / November 20, 2017 /
Big Rock Partners Acquisition Corp. (NASDAQ:
BRPAU) (the "Company" or "Big Rock Partners") today announced the
pricing of its initial public offering of 6,000,000 units at $10.00
per unit. Each unit consists of one share of common stock, one half
of one warrant, each whole warrant exercisable to purchase one
share of common stock at a price of $11.50 per whole share, and one
right to receive one-tenth of one share of common stock upon the
consummation of the Company's initial business
combination.
The units are expected to begin trading later today shortly after
the issuance of this press release on the NASDAQ Capital Market
under the symbol "BRPAU." Once the securities comprising the units
begin separate trading, the common stock, warrants, and rights are
expected to be listed on the NASDAQ Capital Market under the
symbols "BRPA," "BRPAW," and "BRPAR," respectively. Separate
trading of the units is expected to occur on February 20, 2018,
unless EarlyBirdCapital, Inc., the underwriters' representative,
informs the Company of its decision to allow earlier separate
trading. The underwriters have been granted a 45-day option to
purchase up to an additional 900,000 units offered by the Company
to cover over-allotments if any. The offering is expected to close
on November 22, 2017, subject to customary closing
conditions.
Big Rock Partners is a blank check company formed for the purpose
of entering into a merger, stock exchange, asset acquisition, stock
purchase, recapitalization, reorganization, or other similar
business combination with one or more businesses or entities.
Although the Company's search for a target business is not limited
to a particular industry or geographic region, it intends to
initially focus its search on identifying a prospective target
business in the senior housing and care industry in the United
States. Big Rock Partners' management team includes Richard
Ackerman, Chairman, President, and Chief Executive Officer, Lori
Wittman, Chief Financial Officer and Treasurer, and Bennett Kim,
Chief Investment Officer and Corporate Secretary.
EarlyBirdCapital acted as sole book-running manager and I-Bankers
Securities, Inc. acted as co-manager of the offering.
A registration statement relating to these securities was declared
effective by the Securities and Exchange Commission on November 20,
2017. The offering is being made only by means of a prospectus,
copies of which may be obtained by contacting EarlyBirdCapital,
Inc., 366 Madison Avenue, 8th Floor, New York, New York 10017,
Attn: Syndicate Department, 212-661-0200. Copies of the
registration statement can be accessed through the SEC's website
at
www.sec.gov
.
This press release shall not constitute an offer to sell or the
solicitation of an offer to buy, nor shall there be any sale of
these securities in any state or jurisdiction in which such an
offer, solicitation or sale would be unlawful prior to registration
or qualification under the securities laws of any such state or
jurisdiction.
Forward-Looking Statements
:
This press release includes forward-looking statements that involve
risks and uncertainties. Forward-looking statements are statements
that are not historical facts. Such forward-looking statements,
including statements regarding the successful consummation of the
Company's initial public offering, are subject to risks and
uncertainties, which could cause actual results to differ from the
forward-looking statements. The Company expressly disclaims any
obligations or undertaking to release publicly any updates or
revisions to any forward-looking statements contained herein to
reflect any change in the Company's expectations with respect
thereto or any change in events, conditions or circumstances on
which any statement is based, except as required by
law.
Contact
:
Big Rock Partners Acquisition Corporation
Dawn Langford
(310) 734-2344
dlangford@bigrockpartners.com
SOURCE:
Big Rock Partners
Acquisition Corp.
Exhibit 99.2
Big Rock Partners Acquisition Corp. Completes $60 Million Initial
Public Offering
DELRAY BEACH, FL / ACCESSWIRE / November 22, 2017
/
Big Rock Partners
Acquisition Corp. (NASDAQ: BRPAU) ("Big Rock Partners" or the
"Company") today announced the closing of its initial public
offering of 6,000,000 units at a public offering price of $10.00
per unit, with the offering raising gross proceeds of $60,000,000.
The units commenced trading on Monday, November 20, 2017, on The
NASDAQ Capital Market ("Nasdaq") under the symbol "BRPAU." Each
unit issued in the initial public offering consists of one share of
common stock, one-half of one warrant, each whole warrant to
purchase one share of common stock at a price of $11.50 per share,
and one right to receive one-tenth of a share of common stock on
the consummation of an initial business combination. Once the
securities comprising the units begin separate trading, the common
stock, warrants and rights are expected to be traded on Nasdaq
under the symbols "BRPA," "BRPAW," and "BRPAR," respectively.
Separate trading of the units is expected to occur on February 20,
2018, unless EarlyBirdCapital, Inc., the underwriters'
representative, informs the Company of its decision to allow
earlier separate trading.
EarlyBirdCapital, Inc. acted as sole book-running manager and
I-Bankers Securities, Inc. acted as co-manager of the offering. Big
Rock Partners has granted the underwriters a 45-day option to
purchase up to 900,000 additional units to cover over-allotments,
if any.
Of the proceeds received from the consummation of the initial
public offering and a simultaneous private placement of 250,000
units for $2,500,000 in gross proceeds, $60,000,000 (or $10.00 per
unit sold in the public offering) was placed in trust.
Akerman LLP served as counsel to the Company and Graubard Miller
served as counsel to the underwriters.
Registration statements relating to these securities were declared
effective by the Securities and Exchange Commission on November 20,
2017. This press release shall not constitute an offer to sell or
the solicitation of an offer to buy, nor shall there be any sale
of, these securities in any state or jurisdiction in which such
offer, solicitation, or sale would be unlawful prior to
registration or qualification under the securities laws of any such
state or jurisdiction.
This public offering was made only by means of a prospectus. Copies
of the prospectus relating to this offering may be obtained by
contacting EarlyBirdCapital, Inc., 366 Madison Avenue, 8th Floor,
New York, New York 10017. Copies of the registration statement can
be accessed through the SEC's website at
www.sec.gov
.
About Big Rock Partners
Big Rock Partners is a blank check company formed for the purpose
of entering into a merger, stock exchange, asset acquisition, stock
purchase, recapitalization, reorganization, or other similar
business combination with one or more businesses or entities.
Although the Company's search for a target business is not limited
to a particular industry or geographic region, it intends to
initially focus its search on identifying a prospective target
business in the senior housing and care industry in the United
States.
Big Rock Partners' management team includes Richard Ackerman,
Chairman, President, and Chief Executive Officer, Lori Wittman,
Chief Financial Officer and Treasurer, and Bennett Kim, Chief
Investment Officer and Corporate Secretary.
Forward-Looking Statements
This press release contains statements that constitute
"forward-looking statements." Forward-looking statements are
subject to numerous conditions, many of which are beyond the
control of the Company, including those set forth in the Risk
Factors section of the Company's registration statement and
prospectus for the Company's offering filed with the SEC. Copies
are available on the SEC's website,
www.sec.gov
.
The Company undertakes no obligation to update these statements for
revisions or changes after the date of this release, except as
required by law.
Contact:
Big Rock Partners Acquisition Corporation
Dawn Langford
(310) 734-2344
dlangford@bigrockpartners.com
SOURCE:
Big Rock Partners
Acquisition Corp.