November 20, 2017
Exhibit 10.6
November
20, 2017
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxxx, XX 00000
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
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 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 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. Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in
Section 10.
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,
hereby 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 shares
of Common Stock owned by it 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 the time period
set forth in the Company's amended and restated certificate of
incorporation, as the same may be amended time to
time.
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
hereby 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 under the heading "Prospectus Summary - The
Offering - Limited payment to insiders," 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 hereby agrees to not
propose, or vote in favor of, an amendment to the Company’s
amended and restated certificate of incorporation to be effective
prior to the consummation of a Business Combination that would
restrict Public Stockholders from converting or selling their
shares to the Company in connection with a Business
Combination or 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
required time period 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 250,000 units consists of one share of Common
Stock, one Right and one-half of one Warrant (or up to
272,500 units if the Underwriters’
over-allotment option is exercised in full) that are acquired for
an aggregate purchase price of $2,500,000 (or
$2,725,000 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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Name
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Title
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EARLYBIRDCAPITAL,
INC.
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By:
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Name:
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Title:
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[Signature
Page to Letter Agreement]
