November 20, 2017
Exhibit 10.5
November
20, 2017
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxxx, Xxxxxxx 00000
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Re:
Initial Public Offering
Ladies
and Gentlemen:
This
letter (this “Letter Agreement”) is being delivered to
you in accordance with the Underwriting Agreement (the
“Underwriting Agreement”) entered into by and between
Big Rock Partners Acquisition Corp., a Delaware corporation (the
“Company”), and EarlyBirdCapital, Inc., as
representative of the several underwriters (the
“Underwriters”), relating to an underwritten initial
public offering (the “Public Offering”), of
6,000,000 of the Company’s units (the
“Units”), each comprised of one share of the
Company’s common stock, par value $0.001 per share (the
“Common Stock”), one right (each, a
“Right”), and one-half of one warrant (each, a
“Warrant”). Each Right entitles the holder thereof to
receive one-tenth (1/10) of one share of Common Stock upon the
consummation of a Business Combination. Each whole Warrant entitles
the holder thereof to purchase one share of the Common Stock at a
price of $11.50 per share, subject to adjustment. The Units shall
be sold in the Public Offering pursuant to the registration
statements on Form S-1, Nos. 333-220947
and 333-221659 and the prospectus (the
“Prospectus”) filed by the Company with the Securities
and Exchange Commission (the “Commission”) and the
Company has applied to have the Units listed on the NASDAQ Capital
Market. Certain capitalized terms used herein are defined in
paragraph ten hereof.
In
order to induce the Company and the Underwriters to enter into the
Underwriting Agreement and to proceed with the Public Offering and
for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, A/Z Property
Partners, LLC (the “A/Z Property”) hereby agrees with
the Company as follows:
1. In
the event of the liquidation of the Trust Account, A/Z Property
agrees to indemnify and hold harmless the Company against any and
all loss, liability, claim, damage and expense whatsoever
(including, but not limited to, any and all legal or other expenses
reasonably incurred in investigating, preparing or defending
against any litigation, whether pending or threatened, or any claim
whatsoever) to which the Company may become subject as a result of
any claim by (i) any third party for services rendered or products
sold to the Company or (ii) a prospective target business with
which the Company has negotiated with for a proposed Business
Combination (a “Target”); provided, however, that such
indemnification of the Company by A/Z Property shall apply only to
the extent necessary to ensure that such claims by a third party
for services rendered or products sold to the Company or a Target
do not reduce the amount of funds in the Trust Account to below the
lesser of (i) $10.00 per share of the Offering Shares and (ii) the
actual amount per share of the Offering Shares held in the Trust
Account due to reductions in the value of the trust assets as of
the date of the liquidation of the Trust Account, in each case
including interest earned on the funds held in the Trust Account
and not previously released to the Company to pay its franchise and
income taxes, less franchise and income taxes payable, and,
provided, further, that only if such third party or Target has not
executed an agreement waiving claims against and all rights to seek
access to the Trust Account whether or not such agreement is
enforceable. In the event that any such executed waiver is deemed
to be unenforceable against such third party, A/Z Property shall
not be responsible for any liability as a result of any such third
party claims. Notwithstanding any of the foregoing, such
indemnification of the Company by A/Z Property shall not apply as
to any claims under the Company’s obligation to indemnify the
Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended. A/Z Property shall
have the right to defend against any such claim with counsel of its
choice reasonably satisfactory to the Company if, within 15 days
following written receipt of notice of the claim to A/Z Property,
A/Z Property notifies the Company in writing that it shall
undertake such defense.
2. A/Z
Property has full right and power, without violating any agreement
to which it is bound (including, without limitation, any
non-competition or non-solicitation agreement with any employer or
former employer), to enter into this Letter Agreement.
3. As
used herein, “Trust Account” shall mean the trust fund
into which a portion of the net proceeds of the Public Offering
shall be deposited.
4. This
Letter Agreement constitutes the entire agreement and understanding
of the parties hereto in respect of the subject matter hereof and
supersedes all prior understandings, agreements, or representations
by or among the parties hereto, written or oral, to the extent they
relate in any way to the subject matter hereof or the transactions
contemplated hereby. This Letter Agreement may not be changed,
amended, modified or waived (other than to correct a typographical
error) as to any particular provision, except by a written
instrument executed by all parties hereto.
5. No
party hereto may assign either this Letter Agreement or any of its
rights, interests, or obligations hereunder without the prior
written consent of the other party. Any purported assignment in
violation of this paragraph shall be void and ineffectual and shall
not operate to transfer or assign any interest or title to the
purported assignee. This Letter Agreement shall be binding on A/Z
Property and its successors and assigns.
6. This
Letter Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of New York, without giving
effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The
parties hereto (i) all agree that any action, proceeding, claim or
dispute arising out of, or relating in any way to, this Letter
Agreement shall be brought and enforced in the courts of New York
City, in the State of New York, and irrevocably submits to such
jurisdiction and venue, which jurisdiction and venue shall be
exclusive and (ii) waives any objection to such exclusive
jurisdiction and venue or that such courts represent an
inconvenient forum.
7. Any
notice, consent or request to be given in connection with any of
the terms or provisions of this Letter Agreement shall be in
writing and shall be sent by express mail or similar private
courier service, by certified mail (return receipt requested), by
hand delivery or facsimile transmission.
8. A/Z
Property acknowledges and understands that the Underwriters and the
Company will rely upon the agreements, representations and
warranties set forth herein in proceeding with the Public Offering.
Nothing contained herein shall be deemed to render the Underwriters
a representative of, or a fiduciary with respect to, the Company,
its stockholders or any creditor or vendor of the Company with
respect to the subject matter hereof.
9. This
Letter Agreement shall terminate on the earlier of (i) the
consummation of the Business Combination or (ii) the liquidation of
the Company; provided, however, that such termination shall not
relieve the undersigned from liability for any breach of this
agreement prior to its termination.
[Signature
page follows]
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Sincerely,
A/Z
Property Partners, LLC
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By:
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/s/ Xxxxxxx
Xxxxxxxx
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Name: Xxxxxxx
Xxxxxxxx
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Title:
Managing Member
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Acknowledged
and Agreed:
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By: /s/ Xxxx
Xxxxxxx
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Name: Xxxx
Xxxxxxx
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Title: Chief
Financial Officer
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EARLYBIRDCAPITAL,
INC.
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By: /s/
Xxxxxx Xxxxxx
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Name: Xxxxxx
Xxxxxx
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Title:
CEO
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[Signature
Page to Letter Agreement]
