Big Rock Partners Acquisition Corp. Suite 230 Delray Beach, FL 33483 EarlyBirdCapital, Inc. New York, New York 10017
Exhibit 10.1b
_________,
2017
0000 X.
Xxxxxxx Xxxxxxx
Suite
230
Delray
Beach, FL 33483
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
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 5,000,000 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 statement on
Form S-1, No. 333-220947 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, the undersigned,
xxxxxx 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 the
Founder’s Shares owned by the undersigned and any shares
acquired by the undersigned in the Public Offering or the secondary
public market 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 12 months from the date
of the closing of the Public Offering (or up to 18 months if the
Company extends the period of time to consummate a Business
Combination by the full amount of time, as described in the
Prospectus).
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
xxxxxx 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, 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
xxxxxx agrees to not propose, or vote in favor of, an amendment to
the Company’s amended and restated certificate of
incorporation prior to the consummation of a Business Combination
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 225,000 units consists of one share of Common Stock, one
Right and one-half of one Warrant (or up to 243,750 units if the
Underwriters’ over-allotment option is exercised in full)
that are acquired for an aggregate purchase price of $2,250,000 (or
$2,437,500 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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By:
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EARLYBIRDCAPITAL,
INC.
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By:
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Name
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[Signature
Page to Letter Agreement]
