AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit 2.2
AMENDMENT TO
This Amendment to Agreement and Plan of Merger
(this “Amendment”),
dated as of January 27, 2021, is by and among Big Rock Partners
Acquisition Corp., a Delaware corporation
(“BRPA”),
NeuroRx, Inc., a Delaware corporation (the
“Company”),
and Big Rock Merger Corp., a Delaware corporation and wholly owned
Subsidiary of BRPA (“Merger
Sub”). Each of BRPA,
Merger Sub, and the Company, are referred to herein, individually,
as a “Party” and, collectively, as the
“Parties”.
Factual Background
A. The
Parties entered into an Agreement and Plan of Merger, dated as of
December 13, 2020 (as amended, the “Original
Agreement”).
B. The
Parties have agreed that the Company will pay the filing fee with
respect to the Registration Statement.
C. In
connection with the Company’s payment of the filing fee with
respect to the Registration Statement, the Parties desire to amend
the Original Agreement to (i) decrease the aggregate principal
amount available under the Note Amendment pursuant to Section 1.12
of the Original Agreement from $3,000,000 to $2,708,213.36, and
(ii) modify the condition to Closing contained in Section 6.2(k) of
the Original Agreement to decrease the maximum amount of all BRPA
Borrowings outstanding that are due and payable as of the Closing
Date or at any time after the Closing from $3,000,000 to
$2,708,213.36.
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. Amendment to BRPA Loan
Agreements. Section 1.12 of the
Original Agreement is hereby amended as follows: Each use of the
text “$3,000,000” in Section 1.12 of the Original
Agreement is hereby deleted and the text
“$2,708,213.36” is inserted
therefor.
2. Additional Conditions
to Obligations of the Company.
Section 6.2(k) of the Original Agreement is hereby amended as
follows: The text “three million dollars ($3,000,000)”
in Section 6.2(k) of the Original Agreement is hereby deleted and
the text “two million seven hundred eight thousand two
hundred thirteen dollars and thirty-six cents
($2,708,213.36)” is inserted therefor.
3. Miscellaneous.
(a) Interpretation.
Capitalized terms not defined herein
shall have the meaning ascribed to them in the Original Agreement.
On and after the date hereof, each reference in the Original
Agreement to “this Agreement”, “hereunder”,
“hereof”, “herein” or words of like import
referring to the Original Agreement shall mean and be a reference
to the Original Agreement as amended by this
Amendment.
(b)
No Further Amendments. The Original
Agreement shall remain in full force and effect except as expressly
amended by this Amendment. Upon the execution and delivery hereof,
the Original 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 Original
Agreement, and this Amendment and the Original Agreement shall
henceforth be read, taken and construed as one and the same
instrument. Article VIII of the Original Agreement is hereby
incorporated herein, mutatis mutandis.
[Remainder of Page Intentionally Left Blank]
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first written above.
By:
/s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Chief Executive Officer
NEURORX,
INC.
By:
/s/ Xxxxxxxx
Xxxxxx
Name:
Xxxxxxxx Xxxxxx
Title:
Chief Executive Officer
BIG
ROCK MERGER CORP.
By:
/s/ Xxxxxxx
Xxxxxxxx
Name:
Xxxxxxx Xxxxxxxx
Title:
Chief Executive Officer
