BIG ROCK PARTNERS ACQUISITION CORP. and CONTINENTAL STOCK TRANSFER & TRUST COMPANY RIGHT AGREEMENT Dated as of November 20, 2017
Exhibit 4.1
and
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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.
1
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.
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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.
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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.
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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.
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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:
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx
Xxxxxxxx, Chief Executive Officer
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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
Xxx
Xxxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Compliance Department
with a
copy to:
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:Xxxxxx
Xxxxxx
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.
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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]
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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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By:
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/s/ Xxxxxxx
Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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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/ Xxxxx
Aqui
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Name: Xxxxx
Aqui
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Title: Vice
President
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