AMENDMENT TO STOCK ESCROW AGREEMENT
Exhibit 12
AMENDMENT TO
This
Amendment to the Stock Escrow Agreement (this “Amendment”), dated as of
May 24, 2021, is by and among Big Rock Partners Acquisition Corp.,
a Delaware corporation (to be renamed NRX Pharmaceuticals, Inc. the
“Company”), Big Rock
Partners Sponsor, LLC, a Delaware limited liability company
(“Sponsor”), BRAC Lending
Group LLC, a Delaware limited liability company
(“BRAC”),
Xxxxxxxx Xxxxxx, and Continental Stock Transfer & Trust Company
(the “Escrow
Agent”).
WHEREAS, in
connection with the initial public offering of units of the
Company, the Sponsor agreed to deposit all of the shares of the
Company’s common stock, par value $0.001 per share
(“BRPA Common
Stock”), owned by it into escrow pursuant to the terms
and conditions of that certain Stock Escrow Agreement dated as of
November 20, 2017 by and among the Company, Sponsor, and the Escrow
Agent (the “Escrow
Agreement”);
WHEREAS, on
November 18, 2018, the Company, Sponsor, BRAC, and Continental
entered into a letter agreement providing for the transfer of
1,500,000 shares of BRPA Common Stock from Sponsor to BRAC, for
aggregate consideration of $1.00, which shares of BRPA Common Stock
would remain in escrow pursuant to the terms of the Escrow
Agreement;
WHEREAS, the
Company has entered into an Agreement and Plan of Merger,
dated as of December 13, 2020 (as amended, the “Merger Agreement”) by and
among the Company, Big Rock
Merger Corp., a Delaware corporation and wholly-owned subsidiary of
the Company, and NeuroRx,
Inc., a Delaware corporation (“NeuroRx”), and pursuant
to Sections 1.9 and 1.10 of the Merger Agreement, that certain
Sponsor Forfeiture Agreement among Sponsor, BRAC, and the Company dated on or about the date
hereof (the “Sponsor
Agreement”), and Section 4.3(vi) of the Escrow
Agreement, the Sponsor and BRAC have instructed the Escrow Agent to
release from escrow an aggregate of 875,000 shares of BRPA Common
Stock (the “Forfeited Shares”) for
the forfeiture and cancellation of such Forfeited
Shares;
WHEREAS, pursuant
to Sections 1.9 and 1.10 of the Merger Agreement and the Sponsor
Forfeiture Agreement, Sponsor agreed that 125,000 shares of BRPA
Common Stock owned by Sponsor (the “Sponsor Earnout Shares”),
which Sponsor Earnout Shares are being held in escrow, shall either
be released from escrow to the Sponsor upon the achievement of the
Earnout Shares Milestone (as such term is defined in the Merger
Agreement) or terminated and cancelled by BRPA on December 31, 2022
in the event that the Earnout Shares Milestone is not
achieved;
WHEREAS, pursuant
to Section 1.10 of the Merger Agreement, the Company and NeuroRx agreed that the
40,000 shares of BRPA Common Stock held by Xxxxxxxx Xxxxxx should
be released from escrow;
WHEREAS, pursuant
to Section 1.10 of the Merger Agreement, the Company and NeuroRx agreed to shorten
the Escrow Period (as defined in the Escrow Agreement);
and
WHEREAS, it is a
condition to the consummation of the transactions contemplated by
the Merger Agreement that the parties hereto enter into this
Amendment;
WHEREAS,
EarlyBirdCapital, Inc. (the “Representative”) has
consented to the this Amendment pursuant to Section 6.8 of the
Escrow Agreement; and
WHEREAS, each of
Sponsor, BRAC, and Xxxxxxxx Xxxxxx are referred to herein as
“Initial
Stockholders” and each of the Initial Stockholders,
the Company, and the Escrow
Agent, are referred to herein, individually, as a
“Party”
and, collectively, as the “Parties”.
NOW,
THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1.
Amendments to Escrow
Agreement.
(a)
The recitals of the
Escrow Agreement shall be deleted in their entirety and replaced
with the recitals of this Amendment;
(b)
References to
Sponsor in the Escrow Agreement shall be replaced with references
to the Initial Stockholders;
(c)
References to the
Escrow Shares shall mean shares of BRPA Common Stock held by the
Initial Stockholders in the amounts as set forth opposite such
Initial Stockholder’s name on Exhibit A hereto;
(d)
Section 3 of the
Escrow Agreement shall be deleted in its entirety and replaced with
the following:
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 as follows:
(i)
with respect to the
40,000 shares of BRPA Common Stock held by Xxxxxxxx Xxxxxx, upon
the completion of the transactions contemplated by that certain
Agreement and Plan of Merger, dated as of December 13, 2020 by and
among the Company, Big Rock
Merger Corp., and NeuroRx. (the “Closing”);
(ii)
with respect to the
Sponsor Earnout Shares, on the date prior to December 31, 2022 that
(1) NeuroRx’s COVID-19 drug receives emergency use
authorization by the FDA and (2) NeuroRx submits and FDA files for
review a new drug application for the NeuroRx’s COVID-19 drug
(the occurrence of the foregoing, the “Earnout Shares
Milestone”); and
(iii)
with respect to all
other Escrow Shares, on the earliest of (x) the six-month
anniversary of the Closing, (y) with respect to 50% of the Escrow
Shares, the date on which the closing price of the BRPA Common
Stock equals or exceeds $12.00 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
commencing after the Closing Date, and (z) the date after the
Closing on which BRPA consummates a liquidation, merger, stock
exchange or other similar transaction which results in all of
BRPA’s stockholders having the right to exchange their BRPA
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 Initial
Stockholders; provided that if the Earnout Shares Milestone has not
occurred prior to December 31, 2022, on December 31, 2022,
the Company shall instruct the
Escrow Agent to release the Sponsor Earnout Shares to the Company and the Company shall terminate and cancel the
Sponsor Earnout Shares. The Escrow Agent shall have no further
duties hereunder after the disbursement of the Escrow Shares in
accordance with this Section 3.
(e)
Section 4.4 of the
Escrow Agreement shall be deleted in its entirety.
(f)
Section 5.5 of the
Escrow Agreement shall be amended to remove the requirement for the
“Representative” (as defined in the Escrow Agreement)
to approve a successor escrow agent.
(g)
Section 6.5 of the
Escrow Agreement shall be deleted in its entirety and replaced with
the following:
6.5 Notices.
All notices and other communications among the Parties shall be in
writing and shall be deemed to have been duly given (i) when
delivered in person, (ii) when delivered after posting in the
United States mail having been sent registered or certified mail
return receipt requested, postage prepaid, (iii) when delivered by
FedEx or other nationally recognized overnight delivery service or
(iv) when e-mailed during normal business hours (and otherwise as
of the immediately following Business Day), addressed in the case
of the Initial Stockholders to the addresses listed on Exhibit A
attached hereto, and to the other Parties, as
follows:
if
to the Escrow Agent, to:
Continental
Stock Transfer & Trust Company
Xxx
Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Email:
if to the
Company,
to:
NRX
Pharmaceuticals, Inc.
0000
X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxxxxxx Xxxxxx
Email:
xxxxxxx@xxxxxxxxxxxxx.xxx
and
a copy, which shall not constitute notice, to:
Xxxxxxxxxx
Xxxxxxxxxx
Email:
xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
(h)
Section
6.8 of the Escrow Agreement shall be deleted in its entirety and
Section 6.9 shall be renumbered as Section 6.8.
2.
The Escrow
Agreement shall remain in full force and effect except as expressly
amended by this Amendment. Upon the execution and delivery hereof,
the Escrow Agreement shall thereupon be deemed to be amended as
hereinabove set forth as fully and with the same effect as if the
amendments made hereby were originally set forth in the Escrow
Agreement, and this Amendment and the Escrow Agreement shall
henceforth be read, taken and construed as one and the same
instrument.
4.
This Amendment
shall be construed and enforced in accordance with the laws of the
State of New York without giving effect to the conflict of laws
principles thereof.
[Remainder
of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the
date first written above.
COMPANY:
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BIG ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/
Xxxxxxx Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Chief Executive Officer
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INITIAL
STOCKHOLDERS:
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BIG ROCK PARTNERS SPONSOR, LLC
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By:
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/s/
Xxxxxxx
Xxxxxxxx
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Name:
Xxxxxxx Xxxxxxxx
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Title:
Managing Member
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Address:
____________________________
____________________________________
____________________________________
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By:
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/s/
Xxxxx Xxxxxxxx
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Name:
Xxxxx Xxxxxxxx
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Title:
Managing Member
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Address:
____________________________
____________________________________
____________________________________
[Signature Page to Amendment to Stock Escrow
Agreement]
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XXXXXXXX XXXXXX
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By:
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/s/
Xxxxxxx X. Xxxxxxx
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Name:
Xxxxxxx X. Xxxxxxx
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Title:
Partner
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Address: The
Chrysler Building
405
Lexington Avenue, 11th Fl
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxx Xxxx Xxxxxx / Xxxxxxx X. Xxxxxxx
Email:
xxxxxxx@xxxxxxxx.xxx /
xxxxxxxx@xxxxxxxx.xxx
ESCROW
AGENT:
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY
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By:
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/s/ Xxx
Xxxx
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Name:
Xxx Xxxx
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Title:
Vice President
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[Signature Page to Amendment to Stock Escrow
Agreement]
Exhibit
A
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Name
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Pre-Closing
Escrow Shares
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Shares
Forfeited
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Shares
Released from Escrow
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Sponsor
Earnout Shares (1)
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Post-Closing
Escrow Shares
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Big
Rock Partners Sponsor, LLC
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225,000
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5,435
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0
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125,000
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219,565
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1,460,000
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869,565
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0
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0
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590,435
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Xxxxxxxx
Xxxxxx
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40,000
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0
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40,000
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0
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0
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TOTAL
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1,725,000
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875,000
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40,000
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125,000
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810,000
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(1) Included within the Post-Closing Escrow Shares.
