Big Rock Partners Acquisition Corp. Suite 230 Delray Beach, Florida 33483
Exhibit 10.6
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxx 00000
September
26, 2017
Big
Rock Partners Sponsor, LLC
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxxx, Xxxxxxx 00000
Ladies
and Gentlemen:
This
securities subscription agreement (the “Agreement”) is entered into on
September 26, 2017 by and between Big Rock Partners Sponsor, LLC, a
Delaware limited liability company (the “ Subscriber ” or “
you ”), and Big Rock
Partners Acquisition Corp., a Delaware corporation (the “
Company ”, “
we ” or “
us ”). Pursuant to the
terms hereof, the Company hereby accepts the offer the Subscriber
has made to purchase 1,437,500 shares of the Company’s common
stock, $0.001 par value per share (the “ Shares ”), up to 187,500 of which
Shares are subject to complete or partial forfeiture (the “
forfeiture ”) if the
underwriters of the proposed initial public offering (“
IPO ”) of units of the
Company do not fully exercise their over-allotment option (the
“ Over-allotment
Option ”). The Company and the Subscriber’s
agreements regarding such Shares are as follows:
1. Purchase of
Securities.
1.1. Purchase
of Shares. For the sum of $25,000 (the “Purchase Price”), which the
Company acknowledges receiving in cash from or on behalf of the
Subscriber, the Company hereby issues the Shares to the Subscriber,
and the Subscriber hereby purchases the Shares from the Company,
subject to forfeiture by the Subscriber, on the terms and subject
to the conditions set forth in this Agreement.
2. Representations, Warranties and
Agreements.
2.1. Subscriber’s
Representations, Warranties and Agreements. To induce the
Company to issue the Shares to the Subscriber, the Subscriber
hereby represents and warrants to the Company and agrees with the
Company as follows:
2.1.1. No
Government Recommendation or Approval. The Subscriber
understands that no federal or state agency has passed upon or made
any recommendation or endorsement of the offering of the
Shares.
2.1.2. No
Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Subscriber of the
transactions contemplated hereby do not violate, conflict with or
constitute a default under (i) the formation and governing
documents of the Subscriber, (ii) any agreement, indenture or
instrument to which the Subscriber is a party or (iii) any law,
statute, rule or regulation to which the Subscriber is subject, or
any agreement, order, judgment or decree to which the Subscriber is
subject.
2.1.3. Authority.
Upon execution and delivery by you, this Agreement is a legal,
valid and binding agreement of Subscriber, enforceable against
Subscriber in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting the enforcement of
creditors’ rights generally and subject to general principles
of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
2.1.4. Experience,
Financial Capability and Suitability. Subscriber is: (i)
sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Shares and (ii) able to
bear the economic risk of its investment in the Shares for an
indefinite period of time because the Shares have not been
registered under the Securities Act (as defined below) and
therefore cannot be sold unless subsequently registered under the
Securities Act or an exemption from such registration is available.
Subscriber is capable of evaluating the merits and risks of its
investment in the Company and has the capacity to protect its own
interests. Subscriber must bear the economic risk of this
investment until the Shares are sold pursuant to an effective
registration statement under the Securities Act or an exemption
from registration available with respect to such sale. Subscriber
is able to afford a complete loss of Subscriber’s investment
in the Shares.
1
2.1.5. Access
to Information; Independent Investigation. Prior to the
execution of this Agreement, the Subscriber has had the opportunity
to ask questions of and receive answers from representatives of the
Company concerning an investment in the Company, as well as the
finances, operations, business and prospects of the Company, and
the opportunity to obtain additional information to verify the
accuracy of all information so obtained. In determining whether to
make this investment, Subscriber has relied solely on
Subscriber’s own knowledge and understanding of the Company
and its business based upon Subscriber’s own due diligence
investigation and the information furnished pursuant to this
paragraph. Subscriber understands that no person has been
authorized to give any information or to make any representations
which were not furnished pursuant to this Section 2 and Subscriber
has not relied on any other representations or information in
making its investment decision, whether written or oral, relating
to the Company, its operations and/or its prospects.
2.1.6. Regulation
D Offering. Subscriber represents that it is an
“accredited investor” as such term is defined in Rule
501(a) of Regulation D under the Securities Act of 1933, as amended
(the “Securities Act
”) and acknowledges the sale contemplated hereby is being
made in reliance on a private placement exemption to
“accredited investors” within the meaning of Section
501(a) of Regulation D under the Securities Act or similar
exemptions under state law.
2.1.7. Investment
Purposes. The Subscriber is purchasing the Shares solely for
investment purposes, for the Subscriber’s own account and not
for the account or benefit of any other person, and not with a view
towards the distribution or dissemination thereof. The Subscriber
did not decide to enter into this Agreement as a result of any
general solicitation or general advertising within the meaning of
Rule 502 under the Securities Act.
2.1.8. Restrictions
on Transfer; Shell Company. Subscriber understands the
Shares are being offered in a transaction not involving a public
offering within the meaning of the Securities Act. Subscriber
understands the Shares will be “restricted securities”
within the meaning of Rule 144(a)(3) under the Securities Act, and
Subscriber understands that the certificates representing the
Shares will contain a legend in respect of such restrictions. If in
the future the Subscriber decides to offer, resell, pledge or
otherwise transfer the Shares, such Shares may be offered, resold,
pledged or otherwise transferred only pursuant to (i) registration
under the Securities Act, or (ii) an available exemption from
registration. Subscriber agrees that if any transfer of its Shares
or any interest therein is proposed to be made, as a condition
precedent to any such transfer, Subscriber may be required to
deliver to the Company an opinion of counsel satisfactory to the
Company. Absent registration or an exemption, the Subscriber agrees
not to resell the Shares. Subscriber further acknowledges that
because the Company is a shell company, Rule 144 may not be
available to the Subscriber for the resale of the Shares until one
year following consummation of the initial business combination by
the Company, despite technical compliance with the requirements of
Rule 144 and the release or waiver of any contractual transfer
restrictions.
2.1.9. No
Governmental Consents. No governmental, administrative or
other third party consents or approvals are required, necessary or
appropriate on the part of Subscriber in connection with the
transactions contemplated by this Agreement.
2.2. Company’s
Representations, Warranties and Agreements. To induce the
Subscriber to purchase the Shares, the Company hereby represents
and warrants to the Subscriber and agrees with the Subscriber as
follows:
2.2.1. Organization
and Corporate Power. The Company is a Delaware corporation
and is qualified to do business in every jurisdiction in which the
failure to so qualify would reasonably be expected to have a
material adverse effect on the financial condition, operating
results or assets of the Company. The Company possesses all
requisite corporate power and authority necessary to carry out the
transactions contemplated by this Agreement.
2.2.2. No
Conflicts. The execution, delivery and performance of this
Agreement and the consummation by the Company of the transactions
contemplated hereby do not violate, conflict with or constitute a
default under (i) the certificate of incorporation of the Company,
(ii) any agreement, indenture or instrument to which the Company is
a party or (iii) any law, statute, rule or regulation to which the
Company is subject, or any agreement, order, judgment or decree to
which the Company is subject.
2.2.3. Title
to Securities. Upon issuance in accordance with, and payment
pursuant to, the terms hereof, the Shares will be duly and validly
issued, fully paid and nonassessable. Upon issuance in accordance
with, and payment pursuant to, the terms hereof, and registration
in the Company’s register of stockholders, the Subscriber
will have or receive good title to the Shares, free and clear of
all liens, claims and encumbrances of any kind, other than (a)
transfer restrictions hereunder and other agreements to which the
Shares may be subject, (b) transfer restrictions under federal and
state securities laws, and (c) liens, claims or encumbrances
imposed due to the actions of the Subscriber.
2.2.4. No
Adverse Actions. There are no actions, suits, investigations
or proceedings pending, threatened against or affecting the Company
which (i) seek to restrain, enjoin, prevent the consummation of or
otherwise affect the transactions contemplated by this Agreement or
(ii) question the validity or legality of any transactions or seek
to recover damages or to obtain other relief in connection with any
transactions.
3. Forfeiture of
Shares.
3.1. Partial
or No Exercise of the Over-allotment Option. In the event
the Over-allotment Option is not exercised in full, the Subscriber
shall forfeit any and all rights to up to 187,500 Shares (based
upon the percentage of the Over-allotment Option not exercised)
such that immediately following such forfeiture, the Subscriber and
all other initial stockholders prior to the IPO will own an
aggregate number of Shares (not including shares issuable upon
exercise of any warrants or any shares purchased by the Subscriber
in the Company’s IPO or in the aftermarket) equal to 20% of
the issued and outstanding shares of the Company immediately
following the IPO.
3.2. Termination
of Rights as Stockholder. If any of the Shares are forfeited
by the Subscriber in accordance with this Section 3, then after
such time, the Subscriber (or successor in interest), shall no
longer have any rights as a holder of such Shares, and the Company
shall take such action as is appropriate to cancel such Shares. In
addition, the Subscriber hereby irrevocably grants the Company a
limited power of attorney for the purpose of effectuating the
foregoing and agrees to take any and all actions reasonably
requested by the Company necessary to effect any adjustment in this
Section 3.
4. Waiver of Liquidation Distributions;
Redemption Rights. In connection with the Shares purchased
pursuant to this Agreement, the Subscriber hereby waives any and
all right, title, interest or claim of any kind in or to any
distributions by the Company from the trust account which will be
established for the benefit of the Company’s public
stockholders and into which substantially all of the proceeds of
the IPO will be deposited (the “ Trust Account ”), in the event of
a liquidation of the Company upon the Company’s failure to
timely complete an initial business combination. For purposes of
clarity, in the event the Subscriber purchases Shares in the IPO or
in the aftermarket, any additional Shares so purchased shall be
eligible to receive any liquidating distributions by the Company.
However, in no event will the Subscriber have the right to redeem
any Shares into funds held in the Trust Account upon the successful
completion of an initial business combination.
5. Restrictions on
Transfer.
5.1. Securities
Law Restrictions. In addition to any restrictions to be
contained in that certain letter agreement (commonly known as an
“ Insider Letter
”) dated as of the closing of the IPO by and between
Subscriber and the Company and the escrow agreement between the
Subscriber and the Company’s transfer agent as escrow agent
(commonly known as the “ Escrow Agreement ”), Subscriber
agrees not to sell, transfer, pledge, hypothecate or otherwise
dispose of all or any part of the Shares unless, prior thereto (a)
a registration statement on the appropriate form under the
Securities Act and applicable state securities laws with respect to
the Shares proposed to be transferred shall then be effective or
(b) the Company has received an opinion from counsel reasonably
satisfactory to the Company, that such registration is not required
because such transaction is exempt from registration under the
Securities Act and the rules promulgated by the Securities and
Exchange Commission thereunder and with all applicable state
securities laws.
5.2. Restrictive
Legends. Any certificates representing the Shares shall have
endorsed thereon legends substantially as follows:
“THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS
AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED,
SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS
OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
OF A STOCK ESCROW AGREEMENT AND MAY NOT BE OFFERED, SOLD,
TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE
ESCROW AGREEMENT.”
5.3. Additional
Shares or Substituted Securities. In the event of the
declaration of a share dividend, the declaration of an
extraordinary dividend payable in a form other than Shares, a
spin-off, a share split, an adjustment in conversion ratio, a
recapitalization or a similar transaction affecting the
Company’s outstanding Shares without receipt of
consideration, any new, substituted or additional securities or
other property which are by reason of such transaction distributed
with respect to any Shares subject to this Section 5 or into which
such Shares thereby become convertible shall immediately be subject
to this Section 5 and Section 3. Appropriate adjustments to reflect
the distribution of such securities or property shall be made to
the number and/or class of Shares subject to this Section 5 and
Section 3.
3
5.4. Escrow.
The Subscriber acknowledges that the Shares will be held in escrow
pursuant to the Escrow Agreement. Pursuant to the Escrow Agreement,
the Shares will be held in escrow and 50% of such Shares may not be
released until the earlier of the one year anniversary of the date
of the Company’s initial business combination (the
“Consummation
Date”) and the date on which the closing price of the
Company’s Shares exceeds $12.50 per share for any 20 trading
days within a 30-trading day period following the Consummation Date
(as adjusted for share splits, share dividends, reorganizations and
recapitalizations) while the remaining 50% of such Shares may not
be released until the end of the one-year anniversary of the
Consummation Date. Notwithstanding the foregoing, the Shares shall
be immediately released from escrow if, subsequent to the
Consummation Date, the Company consummates a subsequent
liquidation, merger, stock exchange or other similar transaction
which results in all of the Company’s shareholders having the
right to exchange their shares of common stock for cash, securities
or property.
5.5. Registration
Rights. Subscriber acknowledges that the Shares are being
purchased pursuant to an exemption from the registration
requirements of the Securities Act and will become freely tradable
only after certain conditions are met or they are registered
pursuant to a Registration Rights Agreement (the
“Registration Rights
Agreement ”) to be entered into with the Company prior
to the closing of the IPO.
6. Other Agreements.
6.1. Further
Assurances. Subscriber agrees to execute such further
instruments and to take such further action as may reasonably be
necessary to carry out the intent of this Agreement.
6.2. Notices.
All notices, statements or other documents which are required or
contemplated by this Agreement shall be: (i) in writing and
delivered personally or sent by first class registered or certified
mail, overnight courier service or facsimile or electronic
transmission to the address designated in writing, (ii) by
facsimile to the number most recently provided to such party or
such other address or fax number as may be designated in writing by
such party and (iii) by electronic mail, to the electronic mail
address most recently provided to such party or such other
electronic mail address as may be designated in writing by such
party. Any notice or other communication so transmitted shall be
deemed to have been given on the day of delivery, if delivered
personally, on the business day following receipt of written
confirmation, if sent by facsimile or electronic transmission, one
(1) business day after delivery to an overnight courier service or
five (5) days after mailing if sent by mail.
6.3. Entire
Agreement. This Agreement, together with (a) that certain
Insider Letter to be entered into between Subscriber and the
Company, (b) that certain Escrow Agreement to be entered into among
Subscriber, the Company, the Company’s transfer agent and
certain other shareholders of the Company, and (c) that certain
Registration Rights Agreement to be entered into among Subscriber,
the Company and certain other shareholders of the Company, each
substantially in the form to be filed as an exhibit to the
Registration Statement on Form S-1 associated with the
Company’s IPO, embodies the entire agreement and
understanding between the Subscriber and the Company with respect
to the subject matter hereof and supersedes all prior oral or
written agreements and understandings relating to the subject
matter hereof. No statement, representation, warranty, covenant or
agreement of any kind not expressly set forth in this Agreement
shall affect, or be used to interpret, change or restrict, the
express terms and provisions of this Agreement.
6.4. Modifications
and Amendments. The terms and provisions of this Agreement
may be modified or amended only by written agreement executed by
all parties hereto.
6.5. Waivers
and Consents. The terms and provisions of this Agreement may
be waived, or consent for the departure therefrom granted, only by
a written document executed by the party entitled to the benefits
of such terms or provisions. No such waiver or consent shall be
deemed to be or shall constitute a waiver or consent with respect
to any other terms or provisions of this Agreement, whether or not
similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and
shall not constitute a continuing waiver or consent.
6.6. Assignment.
The rights and obligations under this Agreement may not be assigned
by either party hereto without the prior written consent of the
other party.
6.7. Benefit.
All statements, representations, warranties, covenants and
agreements in this Agreement shall be binding on the parties hereto
and shall inure to the benefit of the respective successors and
permitted assigns of each party hereto. Nothing in this Agreement
shall be construed to create any rights or obligations except among
the parties hereto, and no person or entity shall be regarded as a
third-party beneficiary of this Agreement.
4
6.8. Governing
Law. This Agreement and the rights and obligations of the
parties hereunder shall be construed in accordance with and
governed by the laws of the State of Delaware applicable to
contracts wholly performed within the borders of such state,
without giving effect to the conflict of law principles
thereof.
6.9. Severability.
In the event that any court of competent jurisdiction shall
determine that any provision, or any portion thereof, contained in
this Agreement shall be unreasonable or unenforceable in any
respect, then such provision shall be deemed limited to the extent
that such court deems it reasonable and enforceable, and as so
limited shall remain in full force and effect. In the event that
such court shall deem any such provision, or portion thereof,
wholly unenforceable, the remaining provisions of this Agreement
shall nevertheless remain in full force and effect.
6.10. No
Waiver of Rights, Powers and Remedies. No failure or delay
by a party hereto in exercising any right, power or remedy under
this Agreement, and no course of dealing between the parties
hereto, shall operate as a waiver of any such right, power or
remedy of such party. No single or partial exercise of any right,
power or remedy under this Agreement by a party hereto, nor any
abandonment or discontinuance of steps to enforce any such right,
power or remedy, shall preclude such party from any other or
further exercise thereof or the exercise of any other right, power
or remedy hereunder. The election of any remedy by a party hereto
shall not constitute a waiver of the right of such party to pursue
other available remedies. No notice to or demand on a party not
expressly required under this Agreement shall entitle the party
receiving such notice or demand to any other or further notice or
demand in similar or other circumstances or constitute a waiver of
the rights of the party giving such notice or demand to any other
or further action in any circumstances without such notice or
demand.
6.11. Survival
of Representations and Warranties. All representations and
warranties made by the parties hereto in this Agreement or in any
other agreement, certificate or instrument provided for or
contemplated hereby, shall survive the execution and delivery
hereof and any investigations made by or on behalf of the
parties.
6.12. No
Broker or Finder. Each of the parties hereto represents and
warrants to the other that no broker, finder or other financial
consultant has acted on its behalf in connection with this
Agreement or the transactions contemplated hereby in such a way as
to create any liability on the other. Each of the parties hereto
agrees to indemnify and save the other harmless from any claim or
demand for commission or other compensation by any broker, finder,
financial consultant or similar agent claiming to have been
employed by or on behalf of such party and to bear the cost of
legal expenses incurred in defending against any such
claim.
6.13. Headings
and Captions. The headings and captions of the various
subdivisions of this Agreement are for convenience of reference
only and shall in no way modify or affect the meaning or
construction of any of the terms or provisions hereof.
6.14. Counterparts.
This Agreement may be executed in one or more counterparts, all of
which when taken together shall be considered one and the same
agreement and shall become effective when counterparts have been
signed by each party and delivered to the other party, it being
understood that both parties need not sign the same counterpart. In
the event that any signature is delivered by facsimile transmission
or any other form of electronic delivery, such signature shall
create a valid and binding obligation of the party executing (or on
whose behalf such signature is executed) with the same force and
effect as if such signature page were an original
thereof.
6.15. Construction.
The parties hereto have participated jointly in the negotiation and
drafting of this Agreement. If an ambiguity or question of intent
or interpretation arises, this Agreement will be construed as if
drafted jointly by the parties hereto and no presumption or burden
of proof will arise favoring or disfavoring any party hereto
because of the authorship of any provision of this Agreement. The
words “ include
,” “ includes
,” and “ including ” will be deemed to be
followed by “ without
limitation .” Pronouns in masculine, feminine, and
neuter genders will be construed to include any other gender, and
words in the singular form will be construed to include the plural
and vice versa, unless the context otherwise requires. The words
“ this Agreement
,” “ herein
,” “ hereof
,” “ hereby
,” “ hereunder
,” and words of similar import refer to this Agreement as a
whole and not to any particular subdivision unless expressly so
limited. The parties hereto intend that each representation,
warranty, and covenant contained herein will have independent
significance. If any party hereto has breached any representation,
warranty, or covenant contained herein in any respect, the fact
that there exists another representation, warranty or covenant
relating to the same subject matter (regardless of the relative
levels of specificity) which such party hereto has not breached
will not detract from or mitigate the fact that such party hereto
is in breach of the first representation, warranty, or
covenant.
7. Voting and Tender of Shares.
Subscriber agrees to vote the Shares in favor of an initial
business combination that the Company negotiates and submits for
approval to the Company’s stockholders and shall not seek
redemption with respect to such Shares. Additionally, the
Subscriber agrees not to tender any Shares in connection with a
tender offer presented to the Company’s stockholders in
connection with an initial business combination negotiated by the
Company.
[Signature Page Follows]
5
If the
foregoing accurately sets forth our understanding and agreement,
please sign the enclosed copy of this Agreement and return it to
us.
|
|
Very
truly yours,
|
|
|
|
|
|
|
|
||
|
|
|
|
|
|
By:
|
/s/
Xxxx Xxxxxxx
|
|
|
|
Name:
Xxxx Xxxxxxx
|
|
|
|
Title:
Chief Financial Officer
|
Accepted
and agreed as of the date first written above.
|
BIG
ROCK PARTNERS SPONSOR, LLC
|
|
|
|
|
|
|
|
By:
|
/s/
Xxxxxxx Xxxxxxxx
|
|
|
|
Name:
Xxxxxxx Xxxxxxxx
|
|
|
|
Title:
Managing Member
|
|
[Signature
Page to Securities Subscription Agreement]
6
