SUBSCRIPTION AGREEMENT
Exhibit 10.1
This SUBSCRIPTION AGREEMENT (this
“Subscription
Agreement”), dated as of
the “Effective Date”, is entered into by and between
Big Rock Partners Acquisition Corp., a Delaware corporation (the
“Company”),
and the undersigned subscriber (the “Subscriber”).
The “Effective Date” is the date on which the
Subscriber’s subscription is accepted by the
Company.
WHEREAS, in connection with the proposed business
combination (the “Transaction”)
between the Company and NeuroRx, Inc., a Delaware corporation
(“NeuroRx”),
pursuant to that certain Agreement and Plan of Merger, dated as of
December 13, 2020 (as amended, modified, supplemented or waived
from time to time in accordance with its terms, the
“Transaction
Agreement”), the
undersigned desires to subscribe for and purchase from the Company,
and the Company desires to sell to the undersigned, that number of
shares of the Company’s Common Stock, par value $0.001 per
share (the “Common Stock”),
set forth on the signature page hereof for a purchase price of
$10.00 per share (the “Per Share
Price,” and the aggregate
of such Per Share Price for all shares subscribed for by the
undersigned being referred to herein as the
“Purchase
Price”), on the terms and
subject to the conditions contained herein;
and
WHEREAS, in connection with the Transaction,
certain other “qualified institutional buyers” (as
defined in Rule 144A under the Securities Act of 1933, as amended
(the “Securities Act”))
and certain other institutional “accredited investors”
(as defined in Rule 501(a) under the Securities Act) (such other
investors, the “Other
Subscribers”) have
entered into separate subscription agreements with the Company (the
“Other Subscription
Agreements”)
substantially similar to this Subscription Agreement, pursuant to
which such other investors have, together with the undersigned,
pursuant to this Subscription Agreement and the Other Subscription
Agreements, agreed to purchase an aggregate of 1,000,000 shares of
Common Stock at the Per Share Price.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
representations, warranties and covenants, and subject to the
conditions, herein contained, and intending to be legally bound
hereby, the parties hereto hereby agree as
follows:
1. Subscription.
The undersigned hereby subscribes for and agrees to purchase from
the Company, and the Company hereby agrees to issue and sell to the
undersigned, the number of shares of Common Stock set forth on the
signature page of this Subscription Agreement (the
“Shares”)
on the terms and subject to the conditions provided for herein (the
“Subscription”).
2. Closing.
The closing of the Subscription contemplated hereby (the
“Subscription
Closing”) is contingent
upon the substantially concurrent consummation of the Transaction
(the “Transaction
Closing”). The
Subscription Closing shall occur on the date of the Transaction
Closing (the “Transaction Closing
Date”) and substantially
concurrently with the consummation of the Transaction Closing. Not
less than five business days prior to the scheduled Transaction
Closing Date, the Company shall provide written notice to the
undersigned (the “Closing
Notice”) (i) of such
scheduled Transaction Closing Date, (ii) that the Company
reasonably expects all conditions to the closing of the Transaction
to be satisfied or waived on or prior to such scheduled Transaction
Closing Date and (iii) containing wire instructions for the
payment of the Purchase Price. The Investor shall deliver the
Purchase Price to the Company two (2) business days prior to the
Subscription Closing, by wire transfer of United States dollars in
immediately available funds to the account(s) specified by the
Company in the Closing Notice, to be held in escrow until the
Subscription Closing. At the Subscription Closing, the Company
shall deliver to the Subscriber the Shares in book entry form, free
and clear of any liens or other restrictions whatsoever (other than
those set forth in this Subscription Agreement, arising under any
written agreement to which the Subscriber is a party, or arising
under applicable securities laws), in the name of the Subscriber
(or its nominee in accordance with its delivery instructions) by
causing such Shares to be registered on the Company’s share
register and will provide the Subscriber evidence of such issuance
from the Company’s transfer agent (the “Transfer
Agent”). In the event the Subscription Closing does not occur
within two business days after the date specified in the Closing
Notice, the Company shall promptly (but not later than one business
day thereafter) return the Purchase Price to the Subscriber by wire
transfer of U.S. dollars in immediately available funds to the
account specified by the Subscriber, and any book-entries for the
Shares shall be deemed repurchased and cancelled; provided that,
unless this Subscription Agreement has been terminated pursuant to
the terms hereof, such return of funds shall not terminate this
Subscription Agreement or relieve the Subscriber of its obligation
to purchase the Shares at the Subscription Closing. For purposes of
this Subscription Agreement, “business
day” shall mean any day
other than Saturday, Sunday or such other days on which banks
located in New York, New York are required or authorized by
applicable law to be closed for business.
Each
book-entry for the Shares shall contain a notation, and each
certificate (if any) evidencing the Shares shall be stamped or
otherwise imprinted with a legend, in substantially the following
form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF
ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION
THEREFROM.
3. Closing
Conditions.
a.
The obligations of the Company to consummate the transactions
contemplated hereunder are subject to the satisfaction (or valid
waiver by the Company in writing) of the condition that, at the
Subscription Closing, all representations and warranties of the
undersigned contained in this Subscription Agreement shall be true
and correct in all material respects (other than representations
and warranties that are qualified as to materiality or Subscriber
Material Adverse Effect (as defined herein), which representations
and warranties shall be true and correct in all respects) at and as
of the Subscription Closing, and consummation of the Subscription
Closing shall constitute a reaffirmation by the undersigned of each
of the representations, warranties and agreements of such party
contained in this Subscription Agreement as of the Subscription
Closing.
b.
The obligations of the undersigned to consummate the transactions
contemplated hereunder are subject to the satisfaction (or valid
waiver by the undersigned in writing) of the conditions that, at
the Subscription Closing:
i
all
representations and warranties of the Company contained in this
Subscription Agreement shall be true and correct in all material
respects (other than representations and warranties that are
qualified as to materiality or Material Adverse Effect (as defined
herein), which representations and warranties shall be true and
correct in all respects) at and as of the Subscription Closing, and
consummation of the Subscription Closing shall constitute a
reaffirmation by the Company of each of the representations,
warranties and agreements of such party contained in this
Subscription Agreement as of the Subscription Closing;
ii
the
Company shall have performed, satisfied and complied in all
material respects with all covenants, agreements and conditions
required by this Subscription Agreement to be performed, satisfied
or complied with at or prior to the Subscription Closing;
and
iii
no
suspension of the offering or sale of the Shares shall have been
initiated or, to the Company’s knowledge, threatened, in any
jurisdiction, including by the Securities and Exchange Commission
(the “Commission”), and the Shares shall have been
approved for listing on the Nasdaq Capital Market
(“Nasdaq”), subject to official notice of
issuance.
c.
The obligations of each of the Company and the undersigned to
consummate the transactions contemplated hereunder are subject to
the satisfaction (or waiver by the Company and the undersigned in
writing) of the conditions that, at the Subscription
Closing:
i
no
governmental authority of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any law, rule,
regulation, judgment, decree, executive order or award after the
date hereof (whether temporary, preliminary or permanent) which is
then in effect and has the effect of making the consummation of the
transactions contemplated hereby illegal or otherwise preventing or
prohibiting consummation of the transactions contemplated hereby,
and no governmental authority shall have instituted or threatened
in writing a proceeding seeking to impose any such prevention or
prohibition; and
ii
all
conditions precedent to the Transaction Closing, including all
necessary approvals of the Company’s stockholders and
regulatory approvals, if any, shall have been satisfied or waived
(other than those conditions that may only be satisfied at the
Transaction Closing, which conditions shall be satisfied as of the
Transaction Closing).
d.
The obligations of the undersigned to consummate the transactions
contemplated hereunder are also subject to the condition that the
Transaction Agreement (as the same exists on the date of this
Subscription Agreement) shall not have been terminated or rescinded
and, shall not have been amended to, and there shall have been no
waiver or modification to the Transaction Agreement (as the same
exists on the date of this Subscription Agreement) that would,
materially adversely affect the economic benefits that Subscriber
would reasonably expect to receive under this Subscription
Agreement without having received Subscriber’s prior written
consent to such amendment, waiver, or modification (not to be
unreasonably withheld, conditioned or delayed).
4. IRS
Form W-9; Further Assurances. At or prior to the Subscription Closing, the
undersigned shall provide the Company upon request with a properly
completed and duly executed IRS Form W-9 or applicable
IRS Form W-8, as appropriate. At or prior to the
Subscription Closing, the parties hereto shall execute and deliver
such additional documents and take such additional actions as the
parties hereto mutually and reasonably may deem to be practical and
necessary in order to consummate the Subscription as contemplated
by this Subscription Agreement.
5. Company
Representations and Warranties.
The Company represents and warrants to the undersigned
that:
a.
The Company has been duly incorporated, is validly existing and is
in good standing under the laws of the State of Delaware, with the
requisite corporate power and authority to own, lease and operate
its properties and conduct its business as presently conducted and
to enter into, deliver and perform its obligations under this
Subscription Agreement.
b.
The Shares have been duly authorized and, when issued and delivered
to the undersigned against full payment therefor in accordance with
the terms of this Subscription Agreement, the Shares will be
validly issued, fully paid and non-assessable and will
not have been issued in violation of or subject to any preemptive
or similar rights created under the Company’s Certificate of
Incorporation or bylaws, each as amended, or under the laws of the
State of Delaware.
c.
This Subscription Agreement has been duly authorized, executed and
delivered by the Company and is the valid and legally binding
obligation of and enforceable against the Company in accordance
with its terms, except as may be limited or otherwise affected by
(i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting
the rights of creditors generally and (ii) principles of
equity, whether considered at law or equity.
d. The execution, delivery and performance of this
Subscription Agreement, the issuance and sale of the Shares and the
compliance by the Company with all of the provisions of this
Subscription Agreement and the consummation of the transactions
contemplated hereby will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any of the property or assets of the
Company pursuant to the terms of (i) any indenture, mortgage,
deed of trust, loan agreement, lease, license or other agreement or
instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company
is subject, which would reasonably be expected to have a material
adverse effect on the business, properties, financial condition,
assets, liabilities stockholders’ equity or results of
operations of the Company and its subsidiaries, taken as a whole,
or prevents, or materially impairs, materially delays or materially
impedes the performance of the Company of its obligations to
consummate the transactions contemplated herein or the validity of
the Shares (a “Material Adverse
Effect”); (ii) the
provisions of the organizational documents of the Company; or
(iii) any statute or any judgment, order, rule or regulation
of any court or governmental agency or body, domestic or foreign,
having jurisdiction over the Company or any of its properties that
would have a Material Adverse Effect.
e.
The Company is not required to obtain any consent, waiver,
authorization or order of, give any notice to, or make any filing
or registration with, any court or other federal, state, local or
other governmental authority or self-regulatory organization in
connection with the execution, delivery and performance of this
Subscription Agreement (including, without limitation, the issuance
of the Shares), other than (i) filings with the Commission,
(ii) filings required by applicable state securities laws,
(iii) any filings required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 or similar antitrust laws,
(iv) filings required by Nasdaq, including with respect to
obtaining Company stockholder approval, (v) consents, waivers,
authorizations or filings that have been obtained or made on or
prior to the Subscription Closing and (vi) where the failure of
which to obtain such consents, waivers, authorizations or orders,
give such notices, or to make such filings or registrations would
not be reasonably likely to have a Material Adverse
Effect.
f.
The Company is in compliance with all applicable laws, except where
such non-compliance would not be reasonably likely to
have a Material Adverse Effect.
g. The issued and outstanding shares of Common
Stock are registered pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the
“Exchange
Act”), and are listed for
trading on Nasdaq under the symbol “BRPA” (it being
understood that the trading symbol will be changed in connection
with the Transaction Closing). Except as set forth in the SEC
Documents (defined below), there is no suit,
action, proceeding or investigation pending or, to the
knowledge of the Company, threatened, against the Company by Nasdaq
or the Commission, respectively, to prohibit or terminate the
listing of the Common Stock on Nasdaq or to deregister the Common
Stock under the Exchange Act. The Company has taken no action that
is designed to terminate the registration of the Common Stock under
the Exchange Act or the listing of such shares on
Nasdaq.
h. A copy
of each form, report, statement, schedule, prospectus, proxy,
registration statement and other document, if any, filed by the
Company with the Commission since its initial registration of the
Common Stock under the Exchange Act (the “SEC
Documents”) is available
to the undersigned via the Commission’s XXXXX system.
All SEC Documents required to be filed
have been filed and, as of their respective filing dates, complied
in all material respects with the requirements of the Securities
Act and the Exchange Act applicable to the SEC Documents. None of
the SEC Documents contained, when filed or, if amended, as of the
date of such amendment with respect to those disclosures that are
amended, any untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances
under which they were made, not
misleading; provided,
that the Company makes no such representation or warranty with
respect to the proxy statement / prospectus / consent solicitation
statement filed in connection with the Transaction (the
“Proxy
Statement/Prospectus”) or
any other information relating to NeuroRx or any of its affiliates
included in any SEC Document or filed as an exhibit thereto. The
financial statements of the Company included in the SEC Documents
comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with
respect thereto as in effect at the time of filing and fairly
present in all material respects the financial position of the
Company as of and for the dates thereof and the results of
operations and cash flows for the periods then ended, subject, in
the case of unaudited statements, to
normal, year-end audit adjustments and lack of full
footnotes. Other than in connection with the Proxy
Statement/Prospectus, there are no material outstanding or
unresolved comments in comment letters from the staff of the
Division of Corporation Finance (the “Staff”)
of the Commission with respect to any of the SEC
Documents.
i. The authorized capital stock of the Company
consists of (i) 100,000,000 shares of the Company’s common
stock, par value $0.001 per share (the “Common
Stock”), and (ii)
1,000,000 shares of preferred stock, par value $0.001 per share
(“Preferred
Stock”). As of the date
of this Subscription Agreement, (i) 2,688,242 shares of Common
Stock are issued and outstanding, all of which are validly issued,
fully paid and non-assessable and not subject to any
preemptive rights, (ii) no shares of the Company’s
common stock are held in the treasury of the Company, (iii)
warrants sold in the Company’s initial public offering and
private placement completed simultaneously therewith to purchase an
aggregate of 3,586,250 shares of Common Stock are issued and
outstanding, (iv) rights sold in the Company’s initial public
offering and private placement completed simultaneously therewith
that convert into an aggregate of 717,250 shares of Common Stock
are issued and outstanding and (v) 600,000 shares of Common Stock,
warrants to purchase 300,000 shares of Common Stock and rights that
convert into 60,000 shares of Common Stock in the unit purchase
option sold to the underwriters and its designees in connection
with the Company’s initial public offering are issued and
outstanding. There are no shares of Preferred Stock issued and
outstanding. The Company has no subsidiaries (other than wholly
owned subsidiaries formed in connection with the Transaction) and
does not own, directly or indirectly, interests or investments
(whether equity or debt) in any person, whether incorporated or
unincorporated. Except as set
forth above and pursuant to the Other Subscription Agreements and
as contemplated by the Transaction and described in the SEC
Documents, there are no outstanding options, warrants or other
rights to subscribe for, purchase or acquire from the Company any
shares of Common Stock or other equity interests in the Company, or
securities convertible into or exchangeable or exercisable for such
equity interests. There are no securities or instruments issued by
or to which the Company is a party containing anti-dilution or
similar provisions that will be triggered by the issuance of
(i) the Shares or (ii) the shares to be issued pursuant
to any Other Subscription Agreement. There are no stockholder
agreements, voting trusts or other agreements or understandings to
which the Company is a party or by which it is bound relating to
the voting of any securities of the Company, other than (A) as
set forth in the SEC Documents and (B) as contemplated by the
Transaction.
j.
Except for such matters as have not had and would not be reasonably
likely to have, individually or in the aggregate, a Material
Adverse Effect, there is no action, lawsuit, claim or other
proceeding, in each case by or before any governmental authority
pending, or, to the knowledge of the Company, threatened in writing
against the Company. Except for such matters as have not had and
would not be reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect there is no unsatisfied
judgment, consent decree, injunction, or continuing order of any
governmental authority or arbitrator outstanding against the
Company.
k.
Assuming the accuracy of the representations and warranties of the
Subscriber set forth in Section 6, in connection with the
offer, sale and delivery of the Shares in the manner contemplated
by this Agreement, it is not necessary to register the Shares under
the Securities Act. The Shares (i) were not offered by any
form of general solicitation or general advertising and
(ii) are not being offered in a manner involving a public
offering under, or in a distribution in violation of, the
Securities Act, or any state securities laws.
l.
As of the date hereof, the Company is not in default or violation
(and no event has occurred which, with notice or the lapse of time
or both, would constitute a default or violation) of any term,
condition or provision of (i) the organizational documents of
the Company, (ii) any loan or credit agreement, note, bond,
mortgage, indenture, lease or other agreement, permit, franchise or
license to which the Company is now a party or by which the
Company’s properties or assets are bound or (iii) any
statute or any judgment, order, rule or regulation of any court or
governmental agency or body, domestic or foreign, having
jurisdiction over the Company or any of its properties, except, in
the case of clauses (ii) and (iii), for defaults or violations
that have not had and would not be reasonably expected to have,
individually or in the aggregate, a Material Adverse
Effect.
m.
Since consummation of its initial public offering, neither the
Company nor any person acting on its behalf has offered any
securities of the Company for sale or solicited any offer to buy
any securities of the Company nor has the Company entered into any
subscription agreement, side letter or similar agreement with any
investor in connection with such investor’s direct or
indirect investment in the Company other than (i) the
Transaction Agreement and (ii) the Other Subscription
Agreements; provided, the Other Subscription Agreements reflect the
same Per Share Purchase Price and terms that are no more favorable
to any such Other Subscriber thereunder than the terms of this
Subscription Agreement.
n.
The Company has not entered into any agreement or arrangement
entitling any agent, broker, investment banker, financial advisor
or other person to any broker’s or finder’s fee or any
other commission or similar fee in connection with the issuance and
sale of the Shares for which the Subscriber could become liable.
The Company is not aware of any person that has been or will be
paid (directly or indirectly) remuneration for solicitation of
purchasers in connection with the sale of any
Shares.
o.
There are no securities or instruments issued by or to which the
Company is a party containing anti-dilution or similar provisions
that will be triggered by the issuance of (i) the Shares or
(ii) the Shares to be issued pursuant to any Other
Subscription Agreement, in each case, that have not been or will
not be validly waived on or prior to the Transaction Closing
Date.
6. Subscriber
Representations and Warranties.
The undersigned represents and warrants to the Company, as of the
date of this Subscription Agreement and as of the Subscription
Closing, that:
a. The undersigned is (i) a “qualified
institutional buyer” (as defined in Rule 144A under the
Securities Act), or an institutional “accredited
investor” (within the meaning of Rule 501(a) under the
Securities Act), in each case, satisfying the requirements set
forth on Schedule
A hereto, (ii) is
acquiring the Shares only for its own account and not for the
account of others or if the undersigned is subscribing for the
Shares as a fiduciary or agent for one or more investor accounts,
each owner of such account is an accredited investor and the
undersigned has full investment discretion with respect to each
such account, and the full power and authority to make the
acknowledgements, representations, warranties and agreements herein
on behalf of each owner of each such account, and (iii) is not
acquiring the Shares with a view to, or for offer or sale in
connection with, any distribution thereof in violation of the
Securities Act (and shall provide the requested information
on Schedule
A hereto following the
signature page hereto). The undersigned is not an entity formed for
the specific purpose of acquiring the
Shares.
b.
The undersigned (i) is an institutional account as defined in
FINRA Rule 4512(c) and (ii) is a sophisticated investor,
experienced in investing in private equity transactions and capable
of evaluating investment risks independently, both in general and
with regard to all transactions and investment strategies involving
a security or securities including the undersigned’s
participation in the Transaction.
c.
Alone, or together with any professional advisor(s), the
undersigned has adequately analyzed and fully considered the risks
of an investment in the Shares and determined that the Shares are a
suitable investment for the undersigned and that the undersigned is
able at this time and in the foreseeable future to bear the
economic risk of a total loss of the undersigned’s investment
in the Company. The undersigned acknowledges specifically that a
possibility of total loss exists.
d.
The undersigned understands that the Shares are being offered in a
transaction not involving any public offering within the meaning of
the Securities Act and that the Shares have not been registered
under the Securities Act. The undersigned understands that the
Shares may not be resold, transferred, pledged or otherwise
disposed of by the undersigned absent an effective registration
statement under the Securities Act, except (i) to the Company
or a subsidiary thereof, (ii) to non-U.S. persons
pursuant to offers and sales that occur outside the United States
within the meaning of Regulation S under the Securities Act or
(iii) pursuant to another applicable exemption from the
registration requirements of the Securities Act, and, in each of
cases (i) and (iii), in accordance with any applicable
securities laws of the states and other jurisdictions of the United
States, and that any certificates or book-entry positions
representing the Shares shall contain a legend to such effect. The
undersigned acknowledges that the Shares will not be eligible for
resale pursuant to Rule 144A promulgated under the Securities Act.
The undersigned understands and agrees that the Shares will be
subject to the foregoing transfer restrictions and, as a result of
these transfer restrictions, the undersigned may not be able to
readily resell the Shares or pledge the Shares and may be required
to bear the financial risk of an investment in the Shares for an
indefinite period of time. The undersigned understands that it has
been advised to consult legal counsel prior to making any offer,
resale, pledge or transfer of any of the Shares.
e.
The undersigned understands and agrees that the undersigned is
purchasing the Shares directly from the Company. The undersigned
further acknowledges that there have been no representations,
warranties, covenants and agreements made to the undersigned by the
Company, its officers or directors, or any other party to the
Transaction or person or entity, expressly or by implication, other
than those representations, warranties, covenants and agreements
included in this Subscription Agreement.
f. Either (i) the undersigned is not a
Benefit Plan Investor as contemplated by the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”),
or (ii) the undersigned’s acquisition and holding of the
Shares will not constitute or result in
a non-exempt prohibited transaction under
Section 406 of ERISA, Section 4975 of the Internal
Revenue Code of 1986, as amended, or any applicable similar
law.
g.
The undersigned acknowledges and agrees that the undersigned has
received and has had an adequate opportunity to review, such
financial and other information as the undersigned deems necessary
in order to make an investment decision with respect to the Shares
and made its own assessment and is satisfied concerning the
relevant tax and other economic considerations relevant to the
undersigned’s investment in the Shares. The undersigned
represents and agrees that the undersigned and the
undersigned’s professional advisor(s), if any, have had the
full opportunity to ask such questions, receive such answers, and
conducted and completed their own independent due diligence with
respect to the Transaction and obtain such information as the
undersigned and such undersigned’s professional advisor(s),
if any, have deemed necessary to make an investment decision with
respect to the Shares. Based on such information as the undersigned
has deemed appropriate, the undersigned has independently made its
own analysis and decision to enter into the transactions
contemplated by this Subscription Agreement. Except for the
representations, warranties and agreements of the Company
expressly set forth in the Subscription Agreement, the
undersigned is relying exclusively on their own sources of
information, investment analysis and due diligence (including
professional advice the undersigned deems appropriate) with respect
to the transactions contemplated by this Subscription Agreement,
the Transaction, the Shares, and the business, condition (financial
and otherwise), management, operations, properties and prospects of
the Company, including but not limited to all business, legal,
regulatory, accounting, credit and tax matters.
h.
The undersigned became aware of this offering of the Shares solely
by means of direct contact between the undersigned and the Company
or a representative of the Company on behalf of the Company, and
the Shares were offered to the undersigned solely by direct contact
between the undersigned and the Company or a representative of the
Company. The undersigned did not become aware of this offering of
the Shares, nor were the Shares offered to the undersigned, by any
other means. The undersigned acknowledges that the Company
represents and warrants that the Shares (i) were not offered
by any form of general solicitation or general advertising and
(ii) are not being offered in a manner involving a public
offering under, or in a distribution in violation of, the
Securities Act, or any state securities laws.
i.
The undersigned acknowledges that it is aware that there are
substantial risks incident to the purchase and ownership of the
Shares. The undersigned is able to fend for himself, herself or
itself in the transactions completed herein, has such knowledge and
experience in financial and business matters as to be capable of
evaluating the merits and risks of an investment in the Shares and
has the ability to bear the economic risks of such investment in
the Shares and can afford a complete loss of such investment. The
undersigned has sought such accounting, legal and tax advice as the
undersigned has considered necessary to make an informed investment
decision. The undersigned understands and acknowledges that the
purchase and sale of the Shares hereunder meets (i) the
exemptions from filing under FINRA Rule 5123(b)(1)(A) and
(ii) the institutional customer exemption under FINRA Rule
2111(b).
j.
The undersigned understands and agrees that no federal or state
agency has passed upon or endorsed the merits of the offering of
the Shares or made any findings or determination as to the fairness
of this investment.
k.
The undersigned is validly existing in good standing under the laws
of its jurisdiction of incorporation or formation, with power and
authority to enter into, deliver and perform its obligations under
this Subscription Agreement.
l. The execution, delivery and performance by the
undersigned of this Subscription Agreement are within the powers of
the undersigned and have been duly authorized and the consummation
of the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or provisions
of, or constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any of the
property or assets of the undersigned pursuant to the terms of
(i) any order, ruling or regulation of any court or other
tribunal or of any governmental commission or agency or any
agreement or other undertaking or pursuant to the terms of any
indenture, mortgage, deed of trust, loan agreement, lease, license
or other agreement or instrument to which the undersigned is a
party or by which the undersigned is bound or to which any of the
property or assets of the undersigned is subject, which would
reasonably be expected to have a material adverse effect on the
legal authority of the undersigned to comply in all material
respects with the terms of this Subscription Agreement (a
“Subscriber Material
Adverse Effect”); (ii)
the provisions of the organizational documents of the undersigned;
or (iii) any statute or any judgment, order, rule or
regulation of any governmental authority having jurisdiction over
the undersigned or any of its properties that would have a
Subscriber Material Adverse Effect. The undersigned’s
signatory has legal competence and capacity to execute the same and
has been duly authorized by the undersigned to execute the same on
behalf of the undersigned, and this Subscription Agreement
constitutes a legal, valid and binding obligation of the
undersigned, enforceable against the undersigned in accordance with
its terms, except as may be limited or otherwise affected by
(i) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other laws relating to or affecting
the rights of creditors generally, and (ii) principles of
equity, whether considered at law or
equity.
m. The undersigned is not (i) a person or
entity named on the List of Specially Designated Nationals and
Blocked Persons administered by the U.S. Treasury
Department’s Office of Foreign Assets Control
(“OFAC”),
the United Nations Security Council, or in any Executive Order
issued by the President of the United States and administered by
OFAC (“OFAC
List”), or a person or
entity prohibited by any OFAC sanctions program, (ii) a
Designated National as defined in the Cuban Assets Control
Regulations, 31 C.F.R. Part 515, or
(iii) a non-U.S. shell bank or providing banking
services indirectly to a non-U.S. shell bank
(collectively, a “Prohibited
Investor”). The
undersigned agrees to provide law enforcement agencies, if
requested thereby, such records as required by applicable
law, provided that
the undersigned is permitted to do so under applicable law. If the
undersigned is a financial institution subject to the Bank Secrecy
Act (31 U.S.C. Section 5311 et seq.) (the
“BSA”), as amended by the USA PATRIOT Act of
2001 (the “PATRIOT
Act”), and its
implementing regulations (collectively, the
“BSA/PATRIOT
Act”), the undersigned
maintains policies and procedures reasonably designed to comply
with applicable obligations under the BSA/PATRIOT Act. To the
extent required, it maintains policies and procedures reasonably
designed for the screening of its investors against the OFAC
sanctions programs, including the OFAC List. To the extent
required, it maintains policies and procedures reasonably designed
to ensure that the funds held by the undersigned and used to
purchase the Shares were legally derived.
n. On the Transaction Closing Date, the
undersigned will have sufficient funds to pay the Purchase Price as
required pursuant Section 2.
7. Registration
Rights.
a. The Company agrees that, within 45 calendar
days after the Transaction Closing Date (the
“Filing
Deadline”), the Company
will file with the Commission (at the Company’s sole cost and
expense) a registration statement (the “Registration
Statement”) registering
under the Securities Act the resale of all the Shares, and the
Company shall use its commercially reasonable efforts to have the
Registration Statement declared effective as soon as practicable
after the filing thereof, but no later than the earlier of
(i) the 60th calendar
day (or 90th calendar
day if the Commission notifies the Company that it will
“review” the Registration Statement) following the
Filing Deadline and (ii) the 10th business
day after the date the Company is notified (orally or in writing,
whichever is earlier) by the Commission that the Registration
Statement will not be “reviewed” or will not be subject
to further review (such earlier date, the
“Effectiveness
Date”); provided, however, that the Company’s obligations to include
the Shares in the Registration Statement are contingent upon the
undersigned furnishing in writing to the Company such information
regarding the undersigned, the securities of the Company held by
the undersigned and the intended method of disposition of the
Shares as shall be reasonably requested by the Company to effect
the registration of the Shares, and shall execute such documents in
connection with such registration as the Company may reasonably
request that are customary of a selling stockholder in similar
situations. In no event shall the undersigned be identified as a
statutory underwriter in the Registration Statement unless
requested by the Commission; provided, that if the Commission
requests that the undersigned be identified as a statutory
underwriter in the Registration Statement, the undersigned will
have an opportunity to withdraw from the Registration Statement.
Notwithstanding the foregoing, if the Commission prevents the
Company from including any or all of the shares proposed to be
registered under the Registration Statement due to limitations on
the use of Rule 415 of the Securities Act for the resale of the
Shares by the applicable shareholders or otherwise, such
Registration Statement shall register for resale such number of
Shares which is equal to the maximum number of Shares as is
permitted by the Commission. In such event, the number of shares to
be registered for each selling shareholder named in the
Registration Statement shall be reduced pro rata among all such
selling shareholders. Until the earliest of (i) the date on
which the Shares may be resold without volume or manner of sale
limitations pursuant to Rule 144 and without the requirement for
the Company to be in compliance with the current public information
required under Rule 144(c)(1) (or Rule 144(i)(2), if applicable),
(ii) the date on which such Shares have actually been sold and
(iii) the date which is three years after the Subscription
Closing (such date, the “End
Date”), the Company shall
use its commercially reasonable efforts to maintain the continuous
effectiveness of the Registration Statement. For purposes of
clarification, any failure by the Company to file the Registration
Statement by the Filing Deadline or to have such Registration
Statement declared effective by the Effectiveness Date shall not
otherwise relieve the Company of its obligations to file or effect
the Registration Statement set forth in
this Section 7.
The Company will provide a draft of the Registration Statement to
the undersigned for review at least two (2) business days in
advance of filing the Registration Statement. For purposes of
this Section 7,
“Shares” shall mean, as of any date of determination,
the Shares and any other equity security of the Company issued or
issuable with respect to the Shares by way of share split,
dividend, distribution, recapitalization, merger, exchange,
replacement or similar event or
otherwise.
b.
The Company shall, at its expense:
(i)
advise the undersigned within two business days: (A) when a
Registration Statement or any amendment thereto has been filed with
the Commission and when such Registration Statement or any
post-effective amendment thereto has become effective; (B) of
the issuance by the Commission of any stop order suspending the
effectiveness of any Registration Statement or the initiation of
any proceedings for such purpose; (C) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares included therein for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose; and (D) subject to the provisions in this
Subscription Agreement, of the occurrence of any event that
requires the making of any changes in any Registration Statement or
prospectus so that, as of such date, the statements therein are not
misleading and do not omit to state a material fact required to be
stated therein or necessary to make the statements therein (in the
case of a prospectus, in the light of the circumstances under which
they were made) not misleading. Notwithstanding anything to the
contrary set forth herein, the Company shall not, when so advising
the undersigned of such events, provide the undersigned with any
material, nonpublic information regarding the Company other than to
the extent that providing notice to the undersigned of the
occurrence of the events listed in (A) through (D) above
constitutes material, nonpublic information regarding the
Company;
(ii)
use its commercially reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of any Registration
Statement as promptly as reasonably practicable;
(iii) upon the occurrence of any event
contemplated in Section 7(c),
except for such times as the Company is permitted hereunder to
suspend, and has suspended, the use of a prospectus forming part of
a Registration Statement, the Company shall use its commercially
reasonable efforts to as promptly as reasonably practicable prepare
a post-effective amendment to such Registration Statement or a
supplement to the related prospectus, or file any other required
document so that, as thereafter delivered to purchasers of the
Shares included therein, such prospectus will not include any
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(iv)
use its commercially reasonable efforts to cause all Shares to be
listed on each securities exchange or market, if any, on which the
shares of Common Stock issued by the Company have been
listed;
(v)
use its commercially reasonable efforts to take all other steps
necessary to effect the registration of the Shares contemplated
hereby;
(vi)
use its commercially reasonable efforts to file all reports and
other materials required to be filed by the Exchange Act so long as
the Company remains subject to such requirements and the filing of
such reports and other documents is required for the applicable
provisions of Rule 144 to enable the undersigned to sell the Shares
under Rule 144 for so long as the undersigned holds Shares;
and
(vii)
use its commercially reasonable efforts, if requested by Subscriber
to (A) cause the removal of the restrictive legends from any
Shares being sold under the Registration Statement or pursuant to
Rule 144 at the time of sale of such Shares and (B) cause its
legal counsel to deliver an opinion, if necessary, to the Transfer
Agent in connection with the removal of such restrictive legends,
in each case upon the receipt of customary representations and
other documentation from the Subscriber that is necessary to
establish that restrictive legends are no longer required as
reasonably requested by the Company, its counsel or the Transfer
Agent.
c. Notwithstanding anything to the contrary in
this Subscription Agreement, the Company shall be entitled to delay
or postpone the effectiveness of the Registration Statement, and
from time to time to require the undersigned not to sell under the
Registration Statement or to suspend the effectiveness thereof, if
the negotiation or consummation of a transaction by the Company or
its subsidiaries is pending or an event has occurred or will occur,
which negotiation, consummation or event, the Company’s board
of directors reasonably believes, upon the advice of legal counsel,
would require additional disclosure by the Company in the
Registration Statement of material information that the Company has
a bona fide business purpose for keeping confidential and
the non- disclosure of which in the Registration
Statement would be expected, in the reasonable determination of the
Company’s board of directors, upon the advice of legal
counsel, to cause the Registration Statement to fail to comply with
applicable disclosure requirements (each such circumstance, a
“Suspension
Event”); provided, however, that the Company may not delay or suspend the
effectiveness or use of the Registration Statement on more than two
occasions or for more than an aggregate of 90 calendar days in any
one instance, or more than 180 total calendar days, in each case in
any 12-month period. Upon receipt of any written notice
from the Company of the happening of any Suspension Event (which
notice shall not contain material non-public information)
during the period that the Registration Statement is effective or
if as a result of a Suspension Event the Registration Statement or
related prospectus contains any untrue statement of a material fact
or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the
circumstances under which they were made (in the case of the
prospectus) not misleading, the undersigned agrees that (i) it
will immediately discontinue offers and sales of the Shares under
the Registration Statement (excluding, for the avoidance of doubt,
sales conducted pursuant to Rule 144) until the undersigned
receives copies of a supplemental or amended prospectus (which the
Company agrees to promptly prepare) that corrects the
misstatement(s) or omission(s) referred to above and receives
notice that any post-effective amendment has become effective or
unless otherwise notified by the Company that it may resume such
offers and sales, and (ii) it will maintain the
confidentiality of any information included in such written notice
delivered by the Company unless otherwise required by law or
subpoena. If so directed by the Company, the undersigned will
deliver to the Company or, in the undersigned’s sole
discretion destroy, all copies of the prospectus covering the
Shares in the undersigned’s
possession; provided, however, that this obligation to deliver or destroy all
copies of the prospectus covering the Shares shall not apply
(i) to the extent the undersigned is required to retain a copy
of such prospectus (a) in order to comply with applicable
legal, regulatory, self-regulatory or professional requirements or
(b) in accordance with a bona
fide pre-existing document retention policy or
(ii) to copies stored electronically on archival servers as a
result of automatic data back-up.
d. The Company shall indemnify, defend and hold
harmless the undersigned (to the extent a seller under the
Registration Statement), the officers, directors, partners,
members, managers, employees, advisers and agents of each of them,
and each person who controls the undersigned (within the meaning of
Section 15 of the Securities Act or Section 20 of the
Exchange Act) to the fullest extent permitted by applicable law,
from and against any and all
reasonable out-of-pocket losses, claims, damages,
liabilities, costs (including, without limitation, reasonable
attorneys’ fees) and expenses (collectively,
“Losses”),
based upon (i) any untrue or alleged untrue statement of a
material fact contained in the Registration Statement, any
prospectus included in the Registration Statement or any form of
prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, or arising out of or relating to any
omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein (in
the case of any prospectus or form of prospectus or supplement
thereto, in light of the circumstances under which they were made)
not misleading, or (ii) any violation or alleged violation by
the Company of the Securities Act, Exchange Act or any state
securities law or any rule or regulation thereunder, in connection
with the performance of its obligations under
this Section 7,
except to the extent, that such untrue statements, alleged untrue
statements, omissions or alleged omissions are based upon
information regarding the undersigned furnished in writing to the
Company by the undersigned expressly for use therein or the
undersigned has omitted a material fact from such
information; provided, however, that the indemnification contained in
this Section 7(d) shall
not apply to amounts paid in settlement of any Losses if such
settlement is effected without the consent of the Company (which
consent shall not be unreasonably withheld, conditioned or
delayed), nor shall the Company be liable for any Losses to the
extent they arise out of or are based upon a violation which occurs
(A) in connection with any failure of such person to deliver
or cause to be delivered a prospectus made available by the Company
in the time required under the Securities Act, (B) as a result
of offers or sales effected by or on behalf of any person by means
of a “free writing prospectus” (as defined in Rule 405
under the Securities Act) that was not authorized in writing by the
Company, or (C) in connection with any offers or sales
effected by or on behalf of the undersigned in violation
of Section 7(c) provided
that the Company has provided written notice of such Suspension
Event to Subscriber in accordance with Section 7(c).
The Company shall notify the undersigned of the institution, threat
or assertion of any proceeding arising from or in connection with
the transactions contemplated by this Section 7 of
which the Company is aware.
e. The undersigned shall, severally and not
jointly with any Other Subscriber, indemnify and hold harmless the
Company, its directors, officers, agents and employees, and each
person who controls the Company (within the meaning of
Section 15 of the Securities Act and Section 20 of the
Exchange Act), to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, arising out of or are
based upon any untrue or alleged untrue statement of a material
fact contained in any Registration Statement, any prospectus
included in the Registration Statement, or any form of prospectus,
or in any amendment or supplement thereto or in
any preliminary prospectus, or arising out of or relating to
any omission or alleged omission of a material fact required to be
stated therein or necessary to make the statements therein (in the
case of any prospectus, or any form of prospectus or supplement
thereto, in light of the circumstances under which they were made)
not misleading to the extent, but only to the extent, that such
untrue statements or omissions are based upon information regarding
the undersigned furnished in writing to the Company by the
undersigned expressly for use therein; provided, however, that the indemnification contained in
this Section 7(e) shall
not apply to amounts paid in settlement of any Losses if such
settlement is effected without the consent of the undersigned
(which consent shall not be unreasonably withheld, conditioned or
delayed). Notwithstanding anything to the contrary herein, in no
event shall the liability of the undersigned be greater in amount
than the dollar amount of the net proceeds received by the
undersigned upon the sale of the Shares giving rise to such
indemnification obligation. The undersigned shall notify the
Company promptly of the institution, threat or assertion of any
proceeding arising from or in connection with the transactions
contemplated by this Section 7 of
which the undersigned is aware. Such indemnity shall remain in full
force and effect regardless of any investigation made by or on
behalf of an indemnified party and shall survive the transfer of
the Shares by the undersigned.
f. If the indemnification provided under
this Section 7 from
the indemnifying party is unavailable or insufficient to hold
harmless an indemnified party in respect of any losses, claims,
damages, liabilities and expenses referred to herein, then the
indemnifying party, in lieu of indemnifying the indemnified party,
shall contribute to the amount paid or payable by the indemnified
party as a result of such losses, claims, damages, liabilities and
expenses in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party,
as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and indemnified party
shall be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue
statement of a material fact or omission or alleged omission to
state a material fact, was made by, or relates to information
supplied by, such indemnifying party or indemnified party, and the
indemnifying party’s and indemnified party’s relative
intent, knowledge, access to information and opportunity to correct
or prevent such action. The amount paid or payable by a party as a
result of the losses or other liabilities referred to above shall
be subject to the limitations set forth in this Section 7 and
deemed to include any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any
investigation or proceeding. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution pursuant to
this Section 7(f) from
any person who was not guilty of such fraudulent misrepresentation.
Each indemnifying party’s obligation to make a contribution
pursuant to this Section 7(f) shall
be individual, not joint and several, and in no event shall the
liability of Subscriber hereunder exceed the net proceeds received
by Subscriber upon the sale of the shares giving rise to such
indemnification obligation.
8. INTENTIONALLY
OMITTED
9. Termination.
Except for the provisions of Sections
9 through 11, which shall survive any termination hereunder,
this Subscription Agreement shall terminate and be void and of no
further force and effect, and all rights and obligations of the
parties hereunder shall terminate without any further liability on
the part of any party in respect thereof, upon the earliest to
occur of (a) the date and time that the Transaction Agreement
is terminated in accordance with its terms, (b) May 24,
2021, and (c) upon the mutual written agreement of each of the
parties hereto to terminate this Subscription
Agreement; provided that,
subject to the limitations set forth in Section 10,
nothing herein will relieve any party hereto from liability for any
willful breach hereof prior to the time of termination, and each
party hereto will be entitled to any remedies at law or in equity
to recover out-of-pocket losses, liabilities or damages
arising from such willful breach. The Company shall promptly notify
the undersigned of the termination of the Transaction Agreement
promptly after the termination of such Transaction Agreement. For
the avoidance of doubt, if any termination hereof occurs after the
delivery by the undersigned of the Purchase Price for the Shares
pursuant to Section 2,
the Company shall promptly (but not later than three business days
thereafter) return the Purchase Price to the undersigned without
any deduction for or on account of any tax, withholding, charges,
or set-off.
10. Trust Account
Waiver. Reference is made to
the final prospectus of the Company, dated as of November 20, 2017
and filed with the Commission (the “Prospectus”).
The undersigned hereby represents and warrants that it has read the
Prospectus and understands that the Company has established a trust
account (the “Trust
Account”) containing the
proceeds of its initial public offering (the
“IPO”) and the overallotment shares acquired by
its underwriters and from certain private placements occurring
simultaneously with the IPO (including interest accrued from time
to time thereon) for the benefit of the Company’s public
stockholders (including overallotment shares acquired by the
Company’s underwriters the “Public
Stockholders”), and that,
except as otherwise described in the Prospectus, the Company may
disburse monies from the Trust Account only: (a) to the Public
Stockholders in the event they elect to have their shares of Common
Stock converted to cash (as described in the Prospectus) in
connection with the consummation of the Company’s initial
business combination (as such term is used in the Prospectus) (the
“Business
Combination”) or in
connection with an extension of its deadline to consummate a
Business Combination, (b) to the Public Stockholders if the
Company fails to consummate a Business Combination within the time
period set forth in the Company’s certificate of
incorporation, as amended, (c) as necessary to pay any taxes,
or (d) to the Company after or concurrently with the
consummation of a Business Combination. For and in consideration of
the Company entering into this Subscription Agreement, and for
other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the undersigned hereby irrevocably
waives any right, title, interest or claim of any kind in or to any
monies in the Trust Account or distributions therefrom, or to make
any claim against the Trust Account (including any distributions
therefrom) that arises out of or as a result of, or in connection
with this Subscription Agreement (the “Released
Claims”) that the
undersigned may have now or in the future, and will not seek
recourse against the Trust Account (including any distributions
therefrom) with respect to such Released Claims. The undersigned
agrees and acknowledges that such irrevocable waiver is material to
this Subscription Agreement and specifically relied upon by the
Company and its affiliates to induce the Company to enter in this
Subscription Agreement, and the undersigned further intends and
understands such waiver to be valid, binding and enforceable
against the undersigned under applicable law. To the extent the
undersigned commences any action or proceeding based upon, in
connection with, relating to or arising out of any matter relating
to the Company or its representatives, which proceeding seeks, in
whole or in part, monetary relief against the Company or its
representatives, the undersigned hereby acknowledges and agrees
that the undersigned sole remedy shall be against funds held
outside of the Trust Account and that such claim shall not permit
the undersigned (or any person claiming on any of their behalves or
in lieu of any of them) to have any claim against the Trust Account
(including any distributions therefrom) or any amounts contained
therein. Nothing in this Section 10 shall be deemed to limit
undersigned’s right to distributions from the Trust Account
in accordance with the Company’s certificate of incorporation
in respect of any conversion by the undersigned in respect of
Common Stock acquired by any means other than pursuant to this
Subscription Agreement. Notwithstanding anything in this
Subscription Agreement to the contrary, the provisions of this
paragraph shall survive indefinitely.
11. Miscellaneous.
a. The Company shall, no later than 9:00 a.m., New
York City time, on the first business day immediately following the
Effective Date of this Subscription Agreement, issue one or more
press releases or file with the Commission a Current Report on
Form 8-K (collectively, the “Disclosure
Document”) disclosing all
material terms of the transactions contemplated hereby and any
other material, nonpublic information that the Company or its
representatives has provided to the undersigned at any time prior
to the filing of the Disclosure Document. From and after the
issuance of the Disclosure Document, to the Company’s
knowledge, Subscriber shall not be in possession of any material,
nonpublic information received from the Company or any of its
officers, directors or employees, and undersigned shall no longer
be subject to any confidentiality or similar obligations under any
current agreement, whether written or oral with Company or any of
its affiliates in connection with the Transactions. Notwithstanding
anything in this Agreement to the contrary, the Company shall not
publicly disclose the name of Subscriber or any of its affiliates
or investment advisers, or include the name of Subscriber or any of
its affiliates or investment advisers in any press release or in
any filing with the Commission or any regulatory agency or trading
market, without the prior written consent of Subscriber, except
(a) in the Registration Statement, Proxy Statement/Prospectus,
any Form 8-K or related materials to be filed with the
Commission by the Company with respect to this Subscription
Agreement (including the filing of this Subscription Agreement or a
form of this Subscription Agreement with the Commission) or the
Transaction, in each case to the extent required or (b) as
required by law or regulation or at the request of the Staff of the
Commission or regulatory agency or under the regulations of Nasdaq,
in which case the Company shall provide Subscriber with prior
written notice of such disclosure permitted under this subclause
(b).
b.
Neither this Subscription Agreement nor any rights that may accrue
to the undersigned hereunder (other than the Shares acquired
hereunder) may be transferred or assigned, except that Subscriber
may assign its rights and obligations under this Subscription
Agreement to one or more of its affiliates (including other
investment funds or accounts managed or advised by the investment
manager who acts on behalf of Subscriber or an affiliate thereof);
provided, that no such assignment shall relieve Subscriber of its
obligations hereunder. Neither this Subscription Agreement nor any
rights that may accrue to the Company hereunder may be transferred
or assigned by the Company (provided, that, for the avoidance of
doubt, the Company may transfer the Subscription Agreement and its
rights hereunder solely in connection with the consummation of the
Transactions and exclusively to another entity under the control
of, or under common control with, the Company).
c.
The Company may request from the undersigned such additional
information as the Company may reasonably deem necessary to
evaluate the eligibility of the undersigned to acquire the Shares,
and the undersigned shall promptly provide such information as may
reasonably be requested, to the extent readily available and to the
extent consistent with its internal policies and procedures;
provided that the Company agrees to keep confidential any such
information provided by the undersigned and identified as
confidential, except as may be required under applicable
law.
d.
The undersigned acknowledges that the Company will rely on the
acknowledgments, understandings, agreements, representations and
warranties contained in this Subscription Agreement. Each party
agrees that the purchase by the undersigned of Shares from the
Company will constitute a reaffirmation of its own acknowledgments,
understandings, agreements, representations and warranties herein
(as modified by any such notice) as of the Subscription
Closing.
e.
The Company is entitled to rely upon this Subscription Agreement
and is irrevocably authorized to produce this Subscription
Agreement or a copy hereof when required by law, regulatory
authority or Nasdaq to do so in any administrative or legal
proceeding or official inquiry with respect to the matters covered
hereby.
f.
All the agreements, representations and warranties herein made by
each party hereto shall survive the Subscription
Closing.
g.
This Subscription Agreement may not be amended, modified or waived
except by an instrument in writing, signed by the party against
whom enforcement of such amendment, modification or waiver is
sought.
h. This Subscription Agreement constitutes the
entire agreement, and supersedes all other prior agreements,
understandings, representations and warranties, both written and
oral, among the parties, with respect to the subject matter hereof.
Except as otherwise expressly set forth in Section
7(d), Section
7(e), Section 7(f) and Section 11(b) hereof,
this Subscription Agreement shall not confer any rights or remedies
upon any person other than, NeuroRx the parties hereto, and their
respective successor and assigns.
i.
Except as otherwise provided herein, this Subscription Agreement
shall be binding upon, and inure to the benefit of the parties
hereto and their heirs, executors, administrators, successors,
legal representatives, and permitted assigns, and the agreements,
representations, warranties, covenants and acknowledgments
contained herein shall be deemed to be made by, and be binding
upon, such heirs, executors, administrators, successors, legal
representatives and permitted assigns.
j.
If any provision of this Subscription Agreement shall be invalid,
illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions of this Subscription Agreement shall
not in any way be affected or impaired thereby and shall continue
in full force and effect.
k.
This Subscription Agreement may be executed in one or more
counterparts (including by facsimile or electronic mail or in .pdf)
and by different parties in separate counterparts, with the same
effect as if all parties hereto had signed the same document. All
counterparts so executed and delivered shall be construed together
and shall constitute one and the same agreement.
l.
Each party shall pay all of its own expenses in connection with
this Subscription Agreement and the transactions contemplated
herein.
m.
Any notice or communication required or permitted hereunder shall
be in writing and either delivered personally, emailed or
telecopied, sent by overnight mail via a reputable overnight
carrier, or sent by certified or registered mail, postage prepaid,
and shall be deemed to be given and received (a) when so
delivered personally, (b) upon receipt of an appropriate
electronic answerback or confirmation when so delivered by telecopy
(to such number specified below or another number or numbers as
such person may subsequently designate by notice given hereunder),
(c) when sent, with no mail undeliverable or other rejection
notice, if sent by email, or (d) two business days after the
date of mailing to the address below or to such other address or
addresses as such person may hereafter designate by notice given
hereunder:
i
if to
the undersigned, to such address, facsimile number or email address
set forth on the signature page hereto;
ii
if to
the Company (prior to the Transaction Closing), to:
0000
X. Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx
Xxxxx, XX 00000
Attention:
Xxxxxxx Xxxxxxxx
E-mail: xxxxxxxxx@xxxxxxxxxxxxxxx.xxx
with
a copy to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attention:
Xxxxx Xxxx Xxxxxx / Xxxxxxx X. Xxxxxxx
E-mail: xxxxxxx@xxxxxxxx.xxx /
xxxxxxxx@xxxxxxxx.xxx
iii
if to
the Company (following the Transaction Closing), to:
NRX
Pharmaceuticals, Inc.
0000
X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
Xxxxxxxx Xxxxxx
Email: xxxxxxx@xxxxxxxxxxxxx.xxx
with
a copy to:
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, XX 00000
Attention:
Xxxxx X. Xxxxxxxxxx / Xxxxx X. Xxxxxxx
E-mail:
xxxxxxxxxxx@xxxxxxxxx.xxx / xxxxxxxx@xxxxxxxxx.xxx
n. The
parties hereto agree that irreparable damage would occur in the
event that any of the provisions of this Subscription Agreement
were not performed in accordance with their specific terms or were
otherwise breached and that money or other legal remedies would not
be an adequate remedy for such damage. It is accordingly agreed
that NeuroRx, the Company and the Subscriber shall each be entitled
to an injunction or injunctions to prevent breaches of this
Subscription Agreement and to enforce specifically the terms and
provisions of this Subscription Agreement, this being in addition
to any other remedy to which such party is entitled at law, in
equity, in contract, in tort or otherwise. The parties hereto
further acknowledge and agree: (x) to waive any requirement for the
security or posting of any bond in connection with any such
equitable remedy; (y) not to assert that a remedy of specific
enforcement pursuant to this Section 11(n) is unenforceable,
invalid, contrary to applicable law or inequitable for any reason;
and (z) to waive any defenses in any action for specific
performance, including the defense that a remedy at law would be
adequate.
o. THIS SUBSCRIPTION AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF
LAWS THAT WOULD OTHERWISE REQUIRE THE APPLICATION OF THE LAW OF ANY
OTHER STATE. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY LITIGATION PURSUANT TO THIS
SUBSCRIPTION AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
HEREBY.
p.
If Subscriber is a Massachusetts Business Trust, a copy of the
Agreement and Declaration of Trust of Subscriber or any affiliate
thereof is on file with the Secretary of State of the Commonwealth
of Massachusetts and notice is hereby given that the Subscription
Agreement is executed on behalf of the trustees of Subscriber or
any affiliate thereof as trustees and not individually and that the
obligations of the Subscription Agreement are not binding on any of
the trustees, officers or stockholders of Subscriber or any
affiliate thereof individually but are binding only upon Subscriber
or any affiliate thereof and its assets and property.
[SIGNATURE PAGES FOLLOW]
IN WITNESS
WHEREOF, the undersigned has
executed or caused this Subscription Agreement to be executed by
its duly authorized representative as of the date set forth
below.
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Name of
Subscriber:
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State/Country
of Formation or Domicile:
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Signature of Subscriber:
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Name in
which shares are to beregistered (if different):
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Date: March ,
2021
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Subscriber’s
EIN:
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Business
Address-Street:
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Mailing
Address-Street (if different):
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City,
State, Zip:
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City,
State, Zip:
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Attn:
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Attn:
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Telephone
No.:
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Telephone
No.:
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Facsimile
No.:
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Facsimile
No.:
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Email
Address:
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Email
Address:
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Number
of Shares subscribed for:
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Purchase
Price:
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Price
Per Share: $10.00
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IN WITNESS
WHEREOF, Big Rock Partners
Acquisition Corp. has accepted this Subscription Agreement as of
the date set forth below.
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By:
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Name:
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Title:
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Date: March ,
2021
SCHEDULE A
ELIGIBILITY REPRESENTATIONS OF THE SUBSCRIBER
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A.
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QUALIFIED
INSTITUTIONAL BUYER STATUS
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(Please
check the applicable subparagraphs):
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☐
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We are
a “qualified institutional buyer” (as defined in Rule
144A under the Securities Act).
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**OR
B.
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**
INSTITUTIONAL
ACCREDITED INVESTOR STATUS
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(Please
check the applicable subparagraphs):
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1.
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☐ We are an “accredited investor” (within
the meaning of Rule 501(a) under the Securities Act) or an entity
in which all of the equity holders are accredited investors within
the meaning of Rule 501(a) under the Securities Act, and have
marked and initialed the appropriate box below indicating the
provision under which we qualify as an “accredited
investor.”
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2.
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☐ We are not a natural person.
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Rule 501(a), in relevant part, states that an
“accredited investor” shall mean any person who comes
within any of the below listed categories, or who the issuer
reasonably believes comes within any of the below listed
categories, at the time of the sale of the securities to that
person. The Subscriber has indicated, by marking and initialing the
appropriate box below, the provision(s) below which apply to the
Subscriber and under which the Subscriber accordingly qualifies as
an “accredited investor.”
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☐
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Any
bank, registered broker or dealer, insurance company, registered
investment company, business development company, or small business
investment company;
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☐
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Any
plan established and maintained by a state, its political
subdivisions, or any agency or instrumentality of a state or its
political subdivisions for the benefit of its employees, if such
plan has total assets in excess of $5,000,000;
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☐
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Any
employee benefit plan, within the meaning of the Employee
Retirement Income Security Act of 1974, if a bank, insurance
company, or registered investment adviser makes the investment
decisions, or if the plan has total assets in excess of
$5,000,000;
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☐
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Any
organization described in Section 501(c)(3) of the Internal
Revenue Code, corporation, similar business trust, or partnership,
not formed for the specific purpose of acquiring the securities
offered, with total assets in excess of
$5,000,000;
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☐
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Any
trust with assets in excess of $5,000,000, not formed to acquire
the securities offered, whose purchase is directed by a
sophisticated person; or
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☐
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Any
entity in which all of the equity owners are accredited investors
meeting one or more of the above tests.
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This page should be completed by the Subscriber and constitutes a
part of the Subscription Agreement.
