AGREEMENT
THIS AGREEMENT (this “
Agreement
”) is dated as of November 17, 2018 by
and among Big Rock Partners Sponsor, LLC (the
“
Seller
”), BRAC Lending Group LLC (the
“
Investor
”) and Big Rock Partners Acquisition Corp.,
a Delaware company (the “
Company
”).
RECITALS
The Company was formed on September 18, 2017 for
the purpose of entering into a merger, share exchange, asset
acquisition, share purchase, recapitalization, reorganization or
similar business combination with one or more businesses or
entities (a “
Business
Combination
”).
The Seller owns an aggregate of (i) 272,500 units
(“
Private
Units
”), each Private
Unit consisting of one share of common stock, par value $0.001 per
share (the “
Common Stock
”), of the Company, one right to receive
one-tenth (1/10) of one share of Common Stock upon consummation of
a Business Combination (the “
Rights
”) and one warrant to purchase one-half
(1/2) of one share of Common Stock for $11.50 per full share (the
“
Warrants
”) and (ii) 1,725,000 shares of Common Stock
(the “
Insider
Shares
”).
The Investor has introduced the Company to a
potential target business with which the Company may consummate a
Business Combination (the “
Introduced
Target
”) and is
interested in assisting the Company with completing such Business
Combination, including paying for certain expenses in connection
therewith.
The
Company’s Board of Directors has determined that it is in the
best interests of the Company and its shareholders to enter into
this Agreement.
In
consideration of the foregoing, pursuant to this Agreement, the
Seller will transfer, for an aggregate purchase price of $1.00,
1,500,000 Insider Shares to the Investor.
AGREEMENT
For
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties agree as
follows:
ARTICLE 1
DEFINITIONS
The
following terms, as used herein, have the following
meanings:
“
1933 Act
” means the Securities Act of 1933, as
amended.
“
1934 Act
” means the Securities Exchange Act of 1934,
as amended.
“
Affiliate
” means any Person that, directly or
indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such
terms are used in the 1933 Act and the rules and regulations
promulgated thereunder.
“
Alternative
Target
” has the meaning
set forth in
Section
7.4
.
“
Business
Combination
” has the
meaning set forth in the Preamble.
“
Business Combination
Expenses
” has the meaning
set forth in
Section
7.3
.
“
Business Day
” means any day other than a Saturday,
Sunday or legal or bank holiday in the City of New York, State of
New York. If any time period set forth in this Agreement expires on
other than a Business Day, such period shall be extended to and
through the next succeeding Business Day.
“
Common Stock
” has the meaning set forth in the
Preamble.
“
Company SEC
Documents
” means all
documents, as such documents may have been amended (and, if
amended, only the most recent form of such document shall be deemed
to be one of the “Company SEC Documents”), filed by the
Company with the SEC under either the 1933 Act or the 1934 Act
since the Company’s formation.
“
Extensions
” has the meaning set forth in
Section
7.2
.
“
Indemnified
Damages
” has the meaning
set forth in
Section
6.1
.
“
Insider
Shares
” has the meaning
set forth in the Preamble.
“
Introduced
Target
” has the meaning
set forth in the Preamble.
“
Investor
” has the meaning set forth in the
Preamble.
“
Lien
” means, with respect to any property or
asset, any mortgage, lien, pledge, charge, security interest,
encumbrance or other adverse claim of any kind in respect of such
property or asset, other than (i) Liens created by the Investor,
(ii) restrictions on transfer pursuant to securities laws or the
Stock Escrow Agreement and (iii) liens created by the
Company’s Amended and Restated Certificate of Incorporation.
For purposes of this Agreement, a Person shall be deemed to own
subject to a Lien, any property or asset that it has acquired or
holds subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title retention
agreement relating to such property or asset.
“
Non-Business Combination
Expenses
” has the meaning
set forth in
Section
7.5
.
“
Note
” has the meaning set forth in
Section
7.2
.
“
Person
” means an individual, corporation,
partnership, limited liability company, association, trust or other
entity or organization, including a government or political
subdivision or an agency or instrumentality
thereof.
“
Private
Units
” has the meaning
set forth in the Preamble.
“
Prospectus
” means the Company’s final
prospectus, dated November 20, 2017, filed with the SEC in
connection with its initial public offering.
“
Rights
” has the meaning set forth in the
Preamble.
“
SEC
” means the Securities and Exchange
Commission.
“
Seller
” has the meaning set forth in the
Preamble.
“
Stock Escrow
Agent
” means Continental
Stock Transfer & Trust Company.
“
Stock Escrow
Agreement
” means that
certain Stock Escrow Agreement dated as of November 20, 2017 by and
among the Seller, the Company and the Stock Escrow
Agent.
“
Trust
Account
” means the
account into which certain proceeds from the Company’s
initial public offering of securities and sale of the Private Units
were deposited.
“
Trust
Agreement
” means that
certain Investment Management Trust Agreement dated as of November
20, 2017 by and among the Company and the
Trustee.
“
Trustee
” means Continental Stock Transfer &
Trust Company.
“
Warrants
” has the meaning set forth in the
Preamble
Any
reference in this Agreement to (i) a statute shall be to such
statute, as amended from time to time, and to the rules and
regulations promulgated thereunder and (ii) the word
“including” shall mean “including, without
limitation.”
ARTICLE 2
TRANSFER
OF INSIDER SHARES
2.1
Transfer of Insider Shares.
Seller is as of the date hereof transferring 1,500,000 Insider
Shares to the Investor, which Insider Shares shall continue to be
held in escrow pursuant to the Stock Escrow Agreement, for an
aggregate purchase price of $1.00. Seller has delivered a duly
executed stock power or instrument of transfer and a notice to the
Stock Escrow Agent evidencing the agreement of the Seller set forth
herein.
ARTICLE 3
DELIVERIES
3.1
Deliveries by Sellers, Investors and
Company
. The Seller, the Investor or the Company, as the
case may be, shall deliver on the date hereof:
3.1.1
A
letter agreement executed by the Seller addressed to the Stock
Escrow Agent, in the form attached hereto as
Exhibit A
, with respect to the
transfer of the Insider Shares, along with an appropriate stock
power or instruments of transfer to effectuate same;
3.1.2
An
Insider letter, in the form attached hereto as
Exhibit B
, for the Investor
(which shall include an acknowledgement by the Investor to become a
party to the Stock Escrow Agreement with respect to the Insider
Shares);
3.1.3
A
Registration Rights Assignment Agreement Letter, in the form
attached hereto as
Exhibit C
, with respect to the
assignment of Seller’s registration rights with respect to
the Insider Shares being transferred hereunder;
3.1.4
A
certificate, executed by an authorized officer of the Company,
indicating that to such authorized officer’s knowledge, all
finder and advisory agreements, except for the Business Combination
Marketing Agreement, dated November 20, 2017, between the Company
and EarlyBirdCapital, Inc., and the Finder’s Agreement, dated
April 17, 2018, between the Company and EarlyBirdCapital, Inc.,
have been terminated and are of no further force and effect;
and
3.1.5
Such
other certificates, instruments and documents, if any, as may be
necessary to consummate the transactions contemplated by this
Agreement.
ARTICLE 4
REPRESENTATIONS
AND WARRANTIES OF THE SELLER AND THE COMPANY
4.1
The Seller makes
the representations and warranties contained in this Section 4.1 to
the Investor, intending that the Investor relies on each of such
representations and warranties in order to induce the Investor to
enter into and complete the transactions contemplated by this
Agreement. Notwithstanding anything to the contrary herein, the
Seller shall not be deemed to make any other representation or
warranty, other than as expressly made by the Seller in this
Section 4.1.
4.1.1
Authorization
of Seller
. The execution, delivery and performance by the
Seller of this Agreement and the consummation by the Seller of the
transactions contemplated hereby are within the Seller’s
powers and have been duly authorized by all necessary action on the
part of the Seller. This Agreement constitutes a valid and binding
agreement of the Seller, enforceable against the Seller in
accordance with its terms.
4.1.2
Governmental
Authorization
. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby by the Seller, requires no action by or in
respect of, or filing with, any governmental body, agency, official
or authority, domestic or foreign, other than compliance with any
applicable requirements of the 1933 Act, the 1934 Act and any other
applicable securities laws, whether state, federal or
foreign.
4.1.3
Non-contravention
.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by the Seller,
do not and will not (i) contravene, conflict with, or result in a
violation or breach of any applicable law, statute, ordinance,
rule, regulation, judgment, injunction, order or decree binding
upon or applicable to the Seller, (ii) contravene, conflict with,
or result in a violation or breach of any provision of any written
or oral agreement to which the Seller is a party, (iii) require any
consent or other action by any Person under, constitute a default
or an event that, with or without notice or lapse of time or both,
could become a default under, or cause or permit the termination,
cancellation, acceleration or other change of any right or
obligation or the loss of any benefit to which the Seller is
entitled under any provision of any agreement or other instrument
binding upon the Seller or any license, franchise, permit,
certificate, approval or other similar authorization affecting the
assets or business of the Seller, or (iv) result in the creation or
imposition of any Lien on the Insider Shares.
4.1.4
Title
to Shares
. Subject to the terms and provisions of the Stock
Escrow Agreement, the Seller has good and valid legal title to, and
beneficial ownership of, the Insider Shares owned by it and full
legal right and power to transfer and deliver the Insider Shares
owned by it to the Investor in the manner provided in this
Agreement. Upon the transfer of the Insider Shares, the Investor
will receive good and valid legal title to, and full beneficial
ownership of, the Insider Shares owned by the Seller being
transferred hereunder, free and clear of all Liens, subject to the
terms and provisions of the Stock Escrow Agreement.
4.1.5
Litigation
.
There is no litigation or other administrative or judicial
proceedings pending or, to the Seller’s knowledge, threatened
that would reasonably be expected to endanger the Seller’s
right to transfer the Insider Shares owned by it to the Investor.
There are no judgments against the Seller that would be reasonably
be expected to endanger the Seller’s right to transfer the
Insider Shares owned by it to the Investor in accordance with the
terms of this Agreement.
4.1.6
Liabilities
of the Company
. The Seller agrees to be responsible for any
and all liabilities of the Company as of the date of this
Agreement, except for liabilities associated with the possible
redemption of shares by the Company’s shareholders, as
described in the Company’s Amended and Restated Certificate
of Incorporation.
4.2
The Company makes
the representations and warranties contained in this Section 4.2 to
the Investor, intending that the Investor rely on each of such
representations and warranties in order to induce the Investor to
enter into and complete the transactions contemplated by this
Agreement.
Notwithstanding anything to the contrary herein, the Company shall
not be deemed to make any other representation or warranty, other
than as expressly made by the Company in this Section
4.2.
4.2.1
Company
Authorization
. This Agreement is the valid and binding
obligation of the Company, enforceable in accordance with its
terms. The execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate or other action
of the Company.
4.2.2
Corporate
Existence and Power
. The Company is a company duly
incorporated, validly existing and in good standing under the laws
of the State of Delaware and has all corporate powers and all
governmental licenses, authorizations, permits, consents and
approvals required to carry on its business as now
conducted.
4.2.3
Governmental
Authorization
. The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby by the Company require no action by or in
respect of, or filing with, any governmental body, agency, official
or authority, domestic or foreign, other than compliance with any
applicable requirements of the 1933 Act, the 1934 Act and any other
applicable securities laws, whether state, federal or
foreign
.
4.2.4
Non-contravention
.
The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by the
Company, do not and will not (i) contravene, conflict with, or
result in a violation or breach of any provision of the
Company’s Amended and Restated Certificate of Incorporation
or Bylaws or any applicable law, statute, ordinance, rule,
regulation, judgment, injunction, order or decree binding upon or
applicable to the Company, (ii) contravene, conflict with, or
result in a violation or breach of any provision of any written or
oral agreement to which the Company or the Seller is a party, (iii)
require any consent or other action by any Person under, constitute
a default or an event that, with or without notice or lapse of time
or both, could become a default under, or cause or permit the
termination, cancellation, acceleration or other change of any
right or obligation or the loss of any benefit to which the Company
is entitled under any provision of any agreement or other
instrument binding upon the Company or any license, franchise,
permit, certificate, approval or other similar authorization
affecting the assets or business of the Company, or (iv) result in
the creation or imposition of any Lien on the Insider
Shares.
4.2.5
Capitalization
.
The authorized capital stock of the Company consists of
100,000,000
shares of
Common Stock, 9,035,500 of which shares are issued and outstanding,
and 1,000,000 shares of preferred stock, none of which shares are
issued and outstanding. All of the issued and outstanding shares of
the Company have been duly authorized and validly issued and are
fully paid and non-assessable and have been issued in compliance
with applicable federal and state securities laws. Except as
contemplated by this Agreement or as disclosed in the Company SEC
Documents (i) no subscription, warrant, option, convertible
security or other right (contingent or otherwise) to purchase or
acquire any shares of capital stock of the Company is authorized or
outstanding, (ii) there is not any commitment or offer of the
Company to issue any subscription, warrant, option, convertible
security or other such right or to issue or distribute to holders
of any shares of its capital stock any evidences of indebtedness or
assets of the Company, (iii) the Company has no obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire
any shares of its capital stock or any interest therein or to pay
any dividend or make any other distribution in respect thereof, and
(iv) there are no restrictions on the transfer of the
Company’s capital stock other than those arising from
securities laws. Except as set forth in this Agreement or in the
Company SEC Documents, no Person is entitled to (x) any preemptive
or similar right with respect to the issuance of any securities of
the Company, or (y) any rights with respect to the registration of
any securities of the Company under the 1933 Act.
4.2.6
SEC
Filings
. As of its filing date, as any such filing may have
been amended prior to the date hereof, each Company SEC Document
complied, as to form and content in all material respects with the
applicable requirements of the 1933 Act and the 1934 Act, as the
case may be, and did not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make
the statements made therein, in the light of the circumstances
under which they were made, not misleading.
4.2.7
No
Undisclosed Material Liabilities
. Since September 30, 2018,
there has been no material change in the financial condition of the
Company. Except as disclosed in the Company SEC Documents, there
are no material liabilities or obligations of the Company of any
kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, other than liabilities or obligations
incurred in the ordinary course of business consistent with past
practices since September 30, 2018 or in connection with the
transactions contemplated hereby.
4.2.8
Litigation
.
There is no litigation or other administrative or judicial
proceedings pending or, to the Company’s knowledge,
threatened against the Company. There are no judgments against the
Company.
4.2.9
Tax
Obligations
. As of the date of this Agreement, the accrued
interest earned on the funds held in the Trust Account is
sufficient to pay all of the Company’s (i) currently
outstanding tax liabilities and (ii) tax liabilities anticipated to
be incurred or owed from the date of this Agreement through the
closing of a Business Combination.
4.2.10
Finder
Agreements
. All finder and advisory agreements entered into
by the Company prior to the date of this Agreement have been
terminated by the Company except for the Business Combination
Marketing Agreement, dated November 20, 2017, between the Company
and EarlyBirdCapital, Inc., and the Finder’s Agreement, dated
April 17, 2018, between the Company and EarlyBirdCapital,
Inc.
ARTICLE 5
REPRESENTATIONS
AND WARRANTIES OF THE INVESTOR
The Investor makes the representations and
warranties contained in this Article 5 to the Company and Seller
intending that the Company and Seller rely on each of such
representations and warranties in order to induce the Company and
Seller to enter into and complete the transactions contemplated by
this Agreement.
Notwithstanding anything to the contrary herein,
the Investor shall not be deemed to make any other representation
or warranty, other than as expressly made by the Investor in this
Article 5.
5.1
Existence; Authorization
. The
Investor is a limited liability company duly incorporated, validly
existing and in good standing under the laws of the State of
Delaware. The execution, delivery and performance by the Investor
of this Agreement and the consummation by the Investor of the
transactions contemplated hereby is within the Investor’s
power and have been duly authorized by all necessary action. This
Agreement constitutes a valid and binding agreement of the
Investor, enforceable against the Investor in accordance with its
terms.
5.2
Governmental Authorization
. The
execution, delivery and performance by the Investor of this
Agreement and the consummation by the Investor of the transactions
contemplated hereby require no action by or in respect of, or
filing with, any governmental body, agency, official or authority,
domestic, or foreign, other than compliance with any applicable
requirements of the 1933 Act, the 1934 Act and any other applicable
securities laws, whether state, federal or foreign.
5.3
Non-contravention
. The
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby by the
Investor, do not and will not (i) contravene, conflict with, or
result in a violation or breach of any applicable law, statute,
ordinance, rule, regulation, judgment, injunction, order or decree
binding upon or applicable to the Investor, (ii) contravene,
conflict with, or result in a violation or breach of any provision
of any written or oral agreement to which the Investor is a party,
or (iii) require any consent or other action by any Person under,
constitute a default or an event that, with or without notice or
lapse of time or both, could become a default under, or cause or
permit the termination, cancellation, acceleration or other change
of any right or obligation or the loss of any benefit to which the
Investor is entitled under any provision of any agreement or other
instrument binding upon the Investor or any license, franchise,
permit, certificate, approval or other similar authorization
affecting the assets or business of the Investor.
5.4
Investment
Representations
.
5.4.1
Acknowledgment
.
The Investor understands and agrees that the Insider Shares have
not been registered under the 1933 Act or the securities laws of
any state of the U.S. and that the transfer of the Insider Shares
will be effected in reliance upon one or more exemptions from
registration afforded under the 1933 Act.
5.4.2
Investment
Purpose
. The Investor acknowledges that it is acquiring the
Insider Shares for its own account for investment only and not with
a view towards, or for resale in connection with, the public sale
or distribution thereof.
5.4.3
Experience
of the Investor
. The Investor, either alone or together with
its representatives, has such knowledge, sophistication and
experience in business and financial matters so as to be capable of
evaluating the merits and risks of the prospective investment in
the Insider Shares, and has so evaluated the merits and risks of
such investment. The Investor is able to bear the economic risk of
an investment in the Insider Shares and, at the present time, is
able to afford a complete loss of such investment and the possible
cancellation of the Note (as described in Section 7.2 of this
Agreement).
5.4.4
Status
.
The Investor represents and warrants to the Seller that it is an
“Accredited Investor” as defined in the rules
promulgated under the 1933 Act, and has delivered to the Seller and
the Company a completed Investor Questionnaire in the form attached
hereto as
Exhibit
D
. Investor understands that the Insider Shares will be
transferred to the Investor in reliance upon the truth and accuracy
of the representations, warranties, agreements, acknowledgments and
understandings of the Investor set forth in this Agreement, in
order that the Seller may determine the applicability and
availability of the exemptions from registration on which the
Seller is relying.
5.5
Information
. The Investor has
reviewed the Company SEC Documents, including the exhibits thereto.
The Investor and its advisors, if any, have been afforded the
opportunity to ask questions of the Seller, the Company and its
management. The Investor has sought such accounting, legal and tax
advice as it has considered necessary to make an informed
investment decision with respect to its acquisition of the Insider
Shares.
ARTICLE 6
INDEMNIFICATION
6.1
Indemnification by the Seller
.
From and after the date of this Agreement, the Seller shall
indemnify, defend and hold harmless the Investor, the Company and
their respective officers, directors, shareholders, members,
managers, employees, agents and Affiliates and their successors and
assigns against any loss, claim, damage, cost, obligation,
liability, penalty and expense, including all legal and other
expenses reasonably incurred in connection with investigating or
defending against any such loss, claim, damage, cost, obligation,
liability, penalty or expense or action in respect of such matters
(collectively referred to as “
Indemnified Damages
”), occasioned
by, arising out of or resulting from any breach or default of any
representation or warranty by, or covenant of, the Seller contained
in this Agreement or any other agreement or certificate provided
for in this Agreement.
6.2
Indemnification by the Company
.
From and after the date of this Agreement, the Company shall
indemnify, defend and hold harmless the Investor and its respective
officers, directors, shareholders, members, managers, employees,
agents and Affiliates and its successors and assigns against any
Indemnified Damages occasioned by, arising out of or resulting from
any breach or default of any representation or warranty by, or
covenant of, the Company contained in this Agreement or any other
agreement or certificate provided for in this
Agreement.
6.3
Indemnification by the
Investor
. From and after the date of this Agreement, the
Investor shall indemnify defend and hold harmless Seller, the
Company and their respective officers, directors, shareholders,
members, managers, employees, agents and Affiliates and their
respective successors and assigns against any Indemnified Damages
occasioned by, arising out of or resulting from any breach or
default of any representation or warranty by, or covenant of, the
Investor contained in this Agreement or any other agreement
provided for in this Agreement.
6.4
Notice of Indemnification
. Upon
receipt by an indemnified party of notice of the commencement
against it of any action involving a claim, such indemnified party,
if a claim in respect of such action is to be made by it against
any indemnifying party under this Article 6, shall promptly notify
in writing the indemnifying party of such commencement. In case any
such action is brought against any indemnified party, and it
notifies an indemnifying party of such commencement, the
indemnifying party will be entitled to participate in the defense
and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, assume the defense of the
action, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such
indemnified party of its election to assume the defense, the
indemnifying party will not be liable to such indemnified party
under this Article 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
other than reasonable costs of investigation. Any such indemnifying
party shall not be liable to any such indemnified party on account
of any settlement of any claim or action effected without the
written consent of such indemnifying party (which consent shall not
be unreasonably withheld). The indemnifying party will not settle
or compromise any claim or action without the written consent of
the indemnified party (which consent shall not be unreasonably
withheld).
6.5
Limitations on Indemnification
.
Absent fraud, no indemnified party shall be entitled to recover
from an indemnifying party for, and the indemnified parties waive
any right to recover, punitive, special, indirect, exemplary, and
consequential damages (including lost income, revenue or profits,
multiples of earnings, or any diminution in value) arising in
connection with or with respect to any claim under this
Agreement.
ARTICLE 7
COVENANTS
7.1
Assignment of Registration
Rights
. The Seller hereby conditionally assigns to the
Investor the Seller’s rights and obligations under that
certain Registration Rights Agreement dated as of November 20, 2017
among the Company and each of the parties executing a signature
page thereto with respect to the Insider Shares being transferred
hereunder, but shall retain all such rights with respect to any
securities not being transferred to the Investor including the
Private Units.
7.2
Extensions
. The Seller agrees
to take all actions reasonably necessary to extend the period of
time the Company has to consummate a Business Combination up to two
times, at the direction of the Investor, for an aggregate of up to
six months (the “
Extensions
”), including notifying
the Trustee of the intent to obtain, and fund, the Extensions. The
Investor will loan the Company the funds necessary to obtain the
Extensions when required by the Trust Agreement and the Prospectus
(the “
Extension
Funds
”), and the Extension Funds shall be deposited
into the Trust Account as required by the Company’s Amended
and Restated Certificate of Incorporation; provided however the
Company shall receive the Extension Funds for the first extension
no later than November 20, 2018. Such loan will be evidenced by a
promissory note (“
Note
”) in form reasonably
satisfactory to the Investor. The Note shall be non-interest
bearing and shall be payable upon consummation of any Business
Combination. If the Company does not consummate a Business
Combination, the Note (including without limitation any Business
Combination Expenses loaned by the Investor to the Company as
provided in Section 7.3 below) will be cancelled and any
outstanding indebtedness thereunder forgiven except to the extent
of any funds held outside of the Trust Account after paying all
other fees and expenses of the Company incurred prior to the date
of such failure to so consummate a Business Combination, including
without limitation any Non-Business Combination Related
Expenses.
7.3
Investor Introduced
Target Business
. Investor has
introduced Seller and the Company to the Introduced Target.
Promptly after the date hereof, the Company will work expeditiously
towards the negotiation, preparation and execution and delivery of
definitive documentation with respect to a Business Combination
with the Introduced Target. The Investor agrees to loan to the
Company the funds necessary to pay all expenses incurred by the
Company in connection with, and in order to consummate, a Business
Combination with the Introduced Target, including but not limited
to, accounting, legal, advisory and financial printer fees (the
“
Business Combination
Expenses
”), upon
presentment of proper invoices evidencing such expenses. The amount
of any such loans shall be added to the Note.
7.4
Exclusivity; Alternative
Transaction
. If the Company is unable to enter into
definitive documentation for a Business Combination with the
Introduced Target for any reason, the Investor will use its best
efforts to locate an alternative target business for the Company to
consummate a Business Combination with (“
Alternative Target
”) and the
Company will work expeditiously towards consummating a Business
Combination with the Alternative Target. Notwithstanding anything
contained herein to the contrary, this Agreement will not, in any
way, limit the Company’s ability to have discussions or
negotiations regarding, work or perform due diligence on any
alternative transaction at any time; provided that upon execution
of definitive documentation with respect to a Business Combination
with the Introduced Target or an Alternative Target, the Company
will cease all activities relating to an alternative transaction.
Further, subject to any fiduciary duty obligations of the members
of the board of the Company, the Company will not execute any
letter of intent, term sheet, memorandum of understanding or
definitive agreement with a target business other than the
Introduced Target or an Alternative Target without the prior
consent of the Investor.
7.5
Non-Business Combination Related
Expenses
. The Seller agrees to loan the Company the funds
necessary to pay the expenses of the Company other than the
Business Combination Expenses through the closing of a Business
Combination when and as needed in order for the Company to continue
in operation (the “
Non-Business Combination Related
Expenses
”).
Upon
consummation of a Business Combination, up to $200,000 of the
Non-Business Combination Related Expenses (the
“
Non-Business Combination
Expense Cap
”) will be
repaid by the Company to the Seller provided that the Company has
funds available to it sufficient to repay such expenses as well as
to pay for all stockholder redemptions, all Business Combination
Expenses, repayment of the Note, and any funds necessary for the
working capital requirements of the Company following closing of
the Business Combination. Any remaining amounts in excess of the
Non-Business Combination Expense Cap will be forgiven. If the
Company does not consummate a Business Combination, all outstanding
loans made by the Seller to cover the Non-Business Combination
Related Expenses will be forgiven
.
7.6
Further Assurances
. Each party
agrees that it will execute and deliver, or cause to be executed
and delivered, on or after the date of this Agreement, all such
other documents and instruments as are reasonably required for the
performance of such party’s obligations hereunder and will
take all commercially reasonable actions as may be necessary to
consummate the transactions contemplated hereby and to effectuate
the provisions and purposes hereof.
ARTICLE 8
MISCELLANEOUS
8.1
Notices
. All notices, demands
or requests provided for or permitted to be given pursuant to this
Agreement must be in writing and shall be delivered or sent, with
the copies indicated, by personal delivery, email, facsimile (with
confirmation of receipt by intended recipient and additional copy
sent by overnight delivery service) or overnight delivery service
(by a reputable international carrier) to the parties as follows
(or at such other address as a party may specify by notice given
pursuant to this Section):
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To the
Seller:
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Big
Rock Partners Sponsor, LLC
2645 N.
Federal Highway, Suite 230
Delray
Beach, Florida 33483
Attn:
Richard Ackerman
Facsimile:
Email:
rackerman@bigrockpartners.com
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To the
Company:
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Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway, Suite 230
Delray
Beach, Florida 33483
Attn:
Lori Wittman
Facsimile:
Email:
lwittman@bigrockpartners.com
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In
either case, with a copy to:
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Akerman
LLP
350
East Las Olas Boulevard, Suite 1600
Ft.
Lauderdale, FL 33301
Attn:
Teddy Klinghoffer
Facsimile:
305-349-4805
Email:
teddy.klinghoffer@akerman.com
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To the
Investor:
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The
Lending Group
c/o
David Nussbaum
EarlyBirdCapital,
Inc.
366
Madison Avenue
8th
Floor
New
York, NY 10017
Facsimile:
Email:
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With a
copy to:
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Graubard
Miller
The
Chrysler Building
405
Lexington Avenue
New
York, New York 10174
Attn:
David Alan Miller, Esq.
Facsimile:
(212) 818-8881
Email:
dmiller@graubard.com
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All
notices shall be deemed given and received one business day after
their delivery to the addresses for the respective party(ies), with
the copies indicated, as provided in this Section.
8.2
Entire Agreement
. This
Agreement contains the sole and entire binding agreement among the
parties hereto with respect to the subject matter hereof and
supersedes any and all other prior written or oral agreements among
them.
8.3
Amendment
. No amendment or
modification of this Agreement shall be valid unless in writing and
duly executed by the parties affected by the amendment or
modification.
8.4
Binding Effect
. This Agreement
shall be binding upon and inure to the benefit of the parties and
their respective representatives, heirs, successors and permitted
assigns.
8.5
Waiver
. Waiver by any party of
any breach of any provision of this Agreement shall not be
considered as or constitute a continuing waiver or a waiver of any
other breach of the same or any other provision of this
Agreement.
8.6
Captions
. The captions
contained in this Agreement are inserted only as a matter of
convenience or reference and in no way define, limit, extend or
describe the scope of this Agreement or the intent of any of its
provisions.
8.7
Construction
. In the
construction of this Agreement, whether or not so expressed, words
used in the singular or in the plural, respectively, include both
the plural and the singular and the masculine, feminine and neuter
genders include all other genders. Since all parties have engaged
in the drafting of this Agreement, no presumption of construction
against any party shall apply.
8.8
Section References
. All
references contained in this Agreement to Sections shall be deemed
to be references to Sections of this Agreement, except to the
extent that any such reference specifically refers to another
document. All references to Sections shall be deemed also to refer
to all subsections of such Sections, if any.
8.9
Severability
. In the event that
any portion of this Agreement is illegal or unenforceable, it shall
affect no other provisions of this Agreement, and the remainder of
this Agreement shall be valid and enforceable in accordance with
its terms.
8.10
Assignment
.
Neither this Agreement nor any rights under this Agreement may be
assigned by any party without the written consent of all other
parties; provided, however, the Investor may assign this Agreement
to an Affiliate or Affiliates of the Investor so long as the
Investor remains responsible for its obligations
hereunder.
8.11
Governing
Law
. This Agreement and the interpretation of its terms
shall be governed by the laws of the State of New York, without
application of conflicts of law principles.
8.12
Attorneys’
Fees
. Each of the parties shall pay its respective
attorneys’ fees and expenses for the negotiation and
preparation of this Agreement and the other agreements contemplated
by this Agreement.
If any
legal action or other proceeding relating to this Agreement, the
agreements or transactions contemplated hereby, or the enforcement
of any provision of this Agreement or the agreements contemplated
hereby is brought against any party, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable
expenses relating thereto (including attorney's fees and expenses)
from the party against which such action or proceeding is brought
in addition to any other relief to which such prevailing party may
be entitled.
8.13
Public
Disclosure
. No party to this Agreement shall make any public
disclosure or publicity release pertaining to the existence of the
subject matter contained in this Agreement without notifying and
consulting with the other parties; provided, however, that
notwithstanding the foregoing, each party shall be permitted to
make required filings with the SEC. With respect to the press
release and Form 8-K to be filed in connection with this
transaction, as well as all press releases and documents to be
filed in connection with any Business Combination, the Company
shall provide the Seller and the Investor with a copy of such
release and/or document in advance and a reasonable opportunity to
comment thereon.
8.14
Execution
in Counterparts; Electronic Signatures
. This Agreement and
any amendment, waiver or consent hereto may be executed by the
parties hereto in separate counterparts, each of which, when so
executed and delivered, shall be an original, but all such
counterparts shall together constitute one and the same instrument.
All such counterparts may be delivered among the parties hereto by
facsimile or other electronic transmission, which shall not affect
the validity thereof.
8.15
Trust
Account Waiver
. Notwithstanding anything contained herein to
the contrary, unless and until the consummation of any Business
Combination, Investor (i) waives any right, title, interest or
claim of any kind in or to any monies in the Trust Account and (ii)
agrees that it will not seek recourse against the Trust Account for
any reason whatsoever.
[
Remainder
of page intentionally left blank; signature page to
follow
.
]
The parties have executed this Agreement as of the date set forth
above.
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/s/ Richard
Ackerman
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Name: Richard
Akerman
Title:
Managing Member
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/s/ Lori
Wittman
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Name: Lori
Wittman
Title: Chief
Financial Officer
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/s/ David M
Nussbaum
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Name: David M
Nussbaum
Title:
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Exhibit A
See Exhibit 10.2 to the Form 8-K
Exhibit B
See Exhibit 10.3 to the Form 8-K
Exhibit C
See Exhibit 10.4 to the Form 8-K
Exhibit D
INVESTOR QUESTIONNAIRE
IN
CONNECTION WITH YOUR PURCHASE OF SHARES OF COMMON STOCK (THE
“SHARES”) OF BIG ROCK PARTNERS ACQUISITION CORP. (THE
“COMPANY”), PLEASE INDICATE IF YOU QUALIFY AS AN
"ACCREDITED INVESTOR" UNDER
ONE OR
MORE
OF THE FOLLOWING (
please check
all
that apply
):
☐
Any
individual whose net worth, or joint net worth with that
person’s spouse, at the time of his or her purchase of the
Shares, exceeds US$1,000,000. For purposes of calculating net worth
under this section, (i) the person's primary residence shall not be
included as an asset; (ii) indebtedness that is secured by the
person's primary residence, up to the estimated fair market value
of the primary residence at the time of the sale of the Shares,
shall not be included as a liability (except that if the amount of
such indebtedness outstanding at the time of sale of securities
exceeds the amount outstanding 60 days before such time, other than
as a result of the acquisition of the primary residence, the amount
of such excess shall be included as a liability); and (iii)
indebtedness that is secured by the person's primary residence in
excess of the estimated fair market value of the primary residence
at the time of the sale of the Shares shall be included as a
liability.
☐
Any
individual who had an individual income in excess of US$200,000 in
each of the two most recent years or joint income with that
person’s spouse in excess of US$300,000 in each of those
years and reasonably expects to reach the same income level in the
current year.
☐
Any
director or executive officer of the Company. For purposes of this
section, “executive officer” means the president; any
vice president in charge of a principal business unit, division or
function, such as sales, administration or finance; or any other
person or persons who perform(s) similar policymaking functions for
the Company.
☐
Any
organization described in section 501(c)(3) of the Internal Revenue
Code, corporation, Massachusetts or similar business trust, or
partnership (which the parties understand includes a limited
liability company) not formed for the specific purpose of acquiring
the Shares, with total assets in excess of $5,000,000.
☐
Any
trust, with total assets in excess of US$5,000,000, not formed for
the specific purpose of acquiring the Shares, whose purchase is
directed by a sophisticated person as described in Rule
506(b)(2)(ii) under the Securities Act of 1933, as
amended.
☐
Any
bank, as defined in Section 3(a)(2) of the Securities Act of 1933,
or a savings and loan association or other institution as defined
in Section 3(a)(5)(A) of the Securities Act of 1933, whether acting
in its individual or fiduciary capacity
☐
Any
broker
or
dealer registered pursuant to Section 15 of the Securities Exchange
Act of 1934, as amended.
☐
Any
insurance company as defined in Section 2(a)(13) of the Securities
Act of 1933.
☐
Any
investment company registered under the Investment Company Act of
1940 or a business development company as defined in Section
2(a)(48) of such Act.
☐
Any
Small Business Investment Company licensed by the U. S. Small
Business Administration under Section 301(c) or (d) of the Small
Business Investment Act of 1958.
☐
Any
plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such
plan has total assets in excess of $5,000,000.
☐
Any
employee benefit plan within the meaning of the Employee Retirement
Income Security Act of 1974 (“ERISA”), and either the
decision to acquire the Shares has been made by a plan fiduciary,
as defined in Section 3(21) of ERISA, which is either a bank,
savings and loan association, insurance company or registered
investment advisor, or the employee benefit plan has total assets
in excess of $5,000,000, or if a self-directed plan, investment
decisions are made solely by persons who are accredited
investors.
☐
Any
private business development company as defined in Section
202(a)(22) of the Investment Advisers Act of 1940.
☐
Any
entity in which all of the equity owners are Accredited Investors,
as described above.
By
signing below, the Investor confirms that the information in this
Investor Questionnaire is true, correct and complete.
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Name of
Investor
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By:
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Signature
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Date:
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PROMISSORY NOTE
$
690,000.00 As of November 20, 2018
Big
Rock Partners Acquisition Corp. (“Maker”) promises to
pay to the order of BRAC Lending Group LLC or its successors or
assigns (“Payee”) the principal sum of Six Hundred
Ninety Thousand Dollars and No Cents ($690,000.00) in lawful money
of the United States of America, on the terms and conditions
described below.
1.
Principal
. The principal
balance of this Note shall be repayable on the consummation of the
Maker’s initial merger, capital stock exchange, asset
acquisition or other similar business combination with one or more
businesses or entities (a “Business Combination”).
Payee understands that if a Business Combination is not consummated
within the time period specified in the Maker’s amended and
restated certificate of incorporation, this Note will not be repaid
and all amounts owed hereunder will be forgiven except to the
extent that the Maker has funds available to it outside of its
trust account established in connection with its initial public
offering (“Trust Account”) after paying all other fees
and expenses of the Maker incurred prior to the date of such
failure to so consummate a Business Combination which are due and
payable.
2.
Interest
. No interest shall
accrue on the unpaid principal balance of this Note.
3.
Application of Payments
. All
payments shall be applied first to payment in full of any costs
incurred in the collection of any sum due under this Note,
including (without limitation) reasonable attorneys’ fees,
then to the payment in full of any late charges and finally to the
reduction of the unpaid principal balance of this
Note.
4.
Events of Default
. The
following shall constitute Events of Default:
(a)
Failure to Make Required
Payments
. Failure by Maker to pay the principal of this Note
within five (5) business days following the date when
due.
(b)
Voluntary Bankruptcy, Etc.
The
commencement by Maker of a voluntary case under the Federal
Bankruptcy Code, as now constituted or hereafter amended, or any
other applicable federal or state bankruptcy, insolvency,
reorganization, rehabilitation or other similar law, or the consent
by it to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other
similar official) of Maker or for any substantial part of its
property, or the making by it of any assignment for the benefit of
creditors, or the failure of Maker generally to pay its debts as
such debts become due, or the taking of corporate action by Maker
in furtherance of any of the foregoing.
(c)
Involuntary Bankruptcy, Etc.
The entry of a decree or order for relief by a court having
jurisdiction in the premises in respect of Maker in an involuntary
case under the Federal Bankruptcy Code, as now or hereafter
constituted, or any other applicable federal or state bankruptcy,
insolvency or other similar law, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of Maker or for any substantial part of its property, or
ordering the winding-up or liquidation of its affairs, and the
continuance of any such decree or order unstayed and in effect for
a period of 60 consecutive days.
5.
Remedies
.
(a)
Upon the occurrence
of an Event of Default specified in Section 4(a), Payee may, by
written notice to Maker, declare this Note to be due and payable,
whereupon the principal amount of this Note, and all other amounts
payable thereunder, shall become immediately due and payable
without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived, anything contained herein
or in the documents evidencing the same to the contrary
notwithstanding.
(b)
Upon the occurrence
of an Event of Default specified in Sections 4(b) and 4(c), the
unpaid principal balance of, and all other sums payable with regard
to, this Note shall automatically and immediately become due and
payable, in all cases without any action on the part of
Payee.
6.
Waivers
. Maker and all
endorsers and guarantors of, and sureties for, this Note waive
presentment for payment, demand, notice of dishonor, protest, and
notice of protest with regard to the Note, all errors, defects and
imperfections in any proceedings instituted by Payee under the
terms of this Note, and all benefits that might accrue to Maker by
virtue of any present or future laws exempting any property, real
or personal, or any part of the proceeds arising from any sale of
any such property, from attachment, levy or sale under execution,
or providing for any stay of execution, exemption from civil
process, or extension of time for payment; and Maker agrees that
any real estate that may be levied upon pursuant to a judgment
obtained by virtue hereof, on any writ of execution issued hereon,
may be sold upon any such writ in whole or in part in any order
desired by Payee.
7.
Unconditional Liability
. Maker
hereby waives all notices in connection with the delivery,
acceptance, performance, default, or enforcement of the payment of
this Note, and agrees that its liability shall be unconditional,
without regard to the liability of any other party, and shall not
be affected in any manner by any indulgence, extension of time,
renewal, waiver or modification granted or consented to by Payee,
and consents to any and all extensions of time, renewals, waivers,
or modifications that may be granted by Payee with respect to the
payment or other provisions of this Note, and agrees that
additional makers, endorsers, guarantors, or sureties may become
parties hereto without notice to them or affecting their liability
hereunder.
8.
Notices
. Any notice called for
hereunder shall be deemed properly given if (i) sent by certified
mail, return receipt requested, (ii) personally delivered, (iii)
dispatched by any form of private or governmental express mail or
delivery service providing receipted delivery, (iv) sent by
telefacsimile or (v) sent by e-mail, to the following addresses or
to such other address as either party may designate by notice in
accordance with this Section:
If to
Maker:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway
Suite
230
Delray
Beach, Florida 33483
If to
Payee:
BRAC
Lending Group LLC
c/o
David Nussbaum
EarlyBirdCapital,
Inc.
366
Madison Avenue, 8th Floor
New
Yor, New York 10017
Notice
shall be deemed given on the earlier of (i) actual receipt by the
receiving party, (ii) the date shown on a telefacsimile
transmission confirmation, (iii) the date on which an e-mail
transmission was received by the receiving party’s on-line
access provider (iv) the date reflected on a signed delivery
receipt, or (vi) two (2) Business Days following tender of delivery
or dispatch by express mail or delivery service.
9.
Construction
. This Note shall
be construed and enforced in accordance with the domestic, internal
law, but not the law of conflict of laws, of the State of New
York.
10.
Severability
. Any provision
contained in this Note which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the
extent of such prohibition or unenforceability without invalidating
the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other
jurisdiction.
10.
Trust
Fund Waiver
. Payee hereby waives any and all right, title,
interest or claim of any kind in or to any distribution of the
funds held in the Trust Account (“Claim”) and agrees it
will not seek recourse against the Trust Account for any reason
whatsoever, except in the event Maker consummates a Business
Combination.
IN
WITNESS WHEREOF, Maker, intending to be legally bound hereby, has
caused this Note to be duly executed the day and year first above
written.
BIG
ROCK PARTNERS ACQUISITION CORP.
By:
/s/ Richard
Ackerman
Name:
Richard Ackerman
Title:
Chief Executive Officer