WARRANT AGREEMENT
Exhibit 4.6
THIS
WARRANT AGREEMENT (“Agreement”) dated as of
[ ],
2017 is between Big Rock Partners Acquisition Corp., a Delaware
corporation, (“Company”), and Continental Stock
Transfer & Trust Company, a New York corporation
(“Warrant Agent”).
2.1.
Form of Warrant.
Each Warrant shall be issued in registered form only, shall be in
substantially the form of Exhibit A hereto, the provisions of which
are incorporated herein and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board of Directors or
Chief Executive Officer and Treasurer, Secretary or Assistant
Secretary of the Company and shall bear a facsimile of the
Company’s seal. In the event the person whose facsimile
signature has been placed upon any Warrant shall have ceased to
serve in the capacity in which such person signed the Warrant
before such Warrant is issued, it may be issued with the same
effect as if he or she had not ceased to be such at the date of
issuance.
2.4.1.
Warrant Register.
The Warrant Agent shall maintain books (“Warrant
Register”) for the registration of original issuance and the
registration of transfer of the Warrants. Upon the initial issuance
of the Warrants, the Warrant Agent shall issue and register the
Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.4.2.
Registered Holder.
Prior to due presentment for registration of transfer of any
Warrant, the Company and the Warrant Agent may deem and treat the
person in whose name such Warrant is then registered in the Warrant
Register (“registered holder”) as the absolute owner of
such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the
Warrant certificate made by anyone other than the Company or the
Warrant Agent), for the purpose of any exercise thereof, and for
all other purposes, and neither the Company nor the Warrant Agent
shall be affected by any notice to the contrary.
2.5. Detachability
of Warrants. The securities comprising the Units will not be
separately transferable until the 90th day following
the date of the prospectus or, if such 90th day is not on
a day, other than Saturday, Sunday or federal holiday, on which
banks in New York City are generally open for normal business (a
“Business Day”), then on the immediately succeeding
Business Day following such date, or earlier with the consent of
EBC, but in no event will EBC allow separate trading of the
securities comprising the Units until (i) the Company has filed a
Current Report on Form 8-K which includes an audited balance sheet
reflecting the receipt by the Company of the gross proceeds of the
Public Offering including the proceeds received by the Company from
the exercise of the underwriters’ over-allotment option in
the Public Offering, if the over-allotment option is exercised
prior to the filing of the Form 8-K, and (ii) the Company has
issued a press release and has filed a Current Report on Form 8-K
announcing when such separate trading shall begin (the
“Detachment Date”).
2.7.
EBC Warrants. The
EBC Warrants shall be exercisable only upon the exercise of the
purchase options issued to EBC and/or its
designees and shall have the same terms and be in the same
form as the Public Warrants. The provisions of this Section 2.7 may
not be modified, amended or deleted without the prior written
consent of EBC.
2.8
Working Capital Warrants. The
Working Capital Warrants shall have the same terms and be in the
same form as the Placement Warrants.
3.1.
Warrant Price. Each whole
Warrant shall, when countersigned by the Warrant Agent, entitle the
registered holder thereof, subject to the provisions of such
Warrant and of this Agreement, to purchase from the Company the
number of shares of Common Stock stated therein, at the price of
$11.50 per share, subject to the adjustments provided in Section 4
hereof and in the last sentence of this Section 3.1. The term
“Warrant Price” as used in this Agreement refers to the
price per share at which the shares of Common Stock may be
purchased at the time a Warrant is exercised. The Company in its
sole discretion may lower the Warrant Price at any time prior to
the Expiration Date (as defined below) for a period of not less
than twenty (20) Business Days; provided, that the Company shall
provide at least twenty (20) days prior written notice of such
reduction to registered holders of the Warrants and, provided
further that any such reduction shall be applied consistently to
all of the Warrants.
2
3.2. Duration
of Warrants. A Warrant may be exercised only during the
period (“Exercise Period”) commencing on the later the
consummation by the Company of a merger, share exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
other similar business combination with one or more businesses or
entities (“Business Combination”) (as described more
fully in the Registration Statement) or 12 months from the closing
of the Public Offering, and terminating at 5:00 p.m., New York City
time on the earlier to occur of (i) five years from the
consummation of a Business Combination and (ii) the Redemption Date
as provided in Section 6.2 of this Agreement (“Expiration
Date”). The period of time from the date the Warrants will
first become exercisable until the expiration of the Warrants shall
hereafter be referred to as the “Exercise Period.”
Except with respect to the right to receive the Redemption Price
(as set forth in Section 6 hereunder), each Warrant not exercised
on or before the Expiration Date shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration
Date. The Company in its sole discretion may extend the
duration of the Warrants by delaying the Expiration Date; provided,
however, that the Company will provide at least twenty (20) days
prior written notice of any such extension to registered holders
and, provided further that any such extension shall be applied
consistently to all of the Warrants.
3.3.1.
Payment. Subject to the
provisions of the Warrant and this Agreement, a Warrant, when
countersigned by the Warrant Agent, may be exercised by the
registered holder thereof by surrendering it, at the office of the
Warrant Agent, or at the office of its successor as Warrant Agent,
in the Borough of Manhattan, City and State of New York, with the
subscription form, as set forth in the Warrant, duly executed, and
by paying in full the Warrant Price for each share of Common Stock
as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, as
follows:
(a)
by good certified
check or good bank draft payable to the order of the Warrant
Agent (or as otherwise agreed to by the Company);
or
(b)
in the event of
redemption pursuant to Section 6 hereof in which the
Company’s management has elected to force all holders of
Warrants to exercise such Warrants on a “cashless
basis,” by surrendering the Warrants for that number of
shares of Common Stock equal to the quotient obtained by dividing
(x) the product of the number of shares of Common Stock underlying
the Warrants, multiplied by the difference between the Warrant
Price and the “Fair Market Value” (defined below) by
(y) the Fair Market Value. Solely for purposes of this Section
3.3.1(b), the “Fair Market Value” shall mean the
average reported last sale price of the Common Stock for the five
(5) trading days ending on the third trading day prior to the date
on which the notice of redemption is sent to holders of the
Warrants pursuant to Section 6 hereof; or
(c)
with respect to any
Placement Warrants or Working Capital
Warrants , so long as such Placement Warrants
or Working Capital Warrants are held by the initial
purchasers of the Placement Warrants or their permitted
transferees, by surrendering such Placement Warrants
or Working Capital
Warrants for that number of shares of Common Stock
equal to the quotient obtained by dividing (x) the product of the
number of shares of Common Stock underlying the Warrants,
multiplied by the difference between the exercise price of the
Warrants and the “Fair Market Value” by (y) the Fair
Market Value; provided, however, that no cashless exercise shall be
permitted unless the Fair Market Value is equal to or higher than
the exercise price. Solely for purposes of this Section 3.3.1(c),
the “Fair Market Value” shall mean the average reported
last sale price of the Common Stock for the five (5) trading days
ending on the third trading day prior to the date of exercise;
or
(d)
in the event the
registration statement required by Section 7.4 hereof is not
effective and current within ninety (90) days after the closing of
a Business Combination, by surrendering such Warrants for that
number of shares of Common Stock equal to the quotient obtained by
dividing (x) the product of the number of shares of Common Stock
underlying the Warrants, multiplied by the difference between the
exercise price of the Warrants and the “Fair Market
Value” by (y) the Fair Market Value; provided, however, that
no cashless exercise shall be permitted unless the Fair Market
Value is equal to or higher than the exercise price. Solely for
purposes of this Section 3.3.1(d), the “Fair Market
Value” shall mean the average reported last sale price of the
Common Stock for the five (5) trading days ending on the day prior
to the date of exercise.
3
3.3.3.
Valid
Issuance. All shares of Common Stock issued upon the
proper exercise of a Warrant in conformity with this Agreement
shall be validly issued, fully paid and nonassessable.
3.3.4.
Date of
Issuance. Each person in whose name any such
certificate for shares of Common Stock is issued shall for all
purposes be deemed to have become the holder of record of such
shares on the date on which the Warrant was surrendered and payment
of the Warrant Price was made, irrespective of the date of delivery
of such certificate, except that, if the date of such surrender and
payment is a date when the share transfer books of the Company are
closed, such person shall be deemed to have become the holder of
such shares at the close of business on the next succeeding date on
which the share transfer books are open.
3.3.5.
Maximum
Percentage. A holder of a Warrant may notify the
Company in writing in the event it elects to be subject to the
provisions contained in this subsection 3.3.5; however, no holder
of a Warrant shall be subject to this subsection 3.3.5 unless he,
she or it makes such election. If the election is made by a holder,
the Warrant Agent shall not effect the exercise of the
holder’s Warrant, and such holder shall not have the right to
exercise such Warrant, to the extent that after giving effect to
such exercise, such person (together with such person’s
affiliates), to the Warrant Agent’s actual knowledge, would
beneficially own in excess of 9.8% (the “Maximum
Percentage”) of the shares of Common Stock outstanding
immediately after giving effect to such exercise. For purposes of
the foregoing sentence, the aggregate number of shares of Common
Stock beneficially owned by such person and its affiliates shall
include the number of shares of Common Stock issuable upon exercise
of the Warrant with respect to which the determination of such
sentence is being made, but shall exclude shares of Common Stock
that would be issuable upon (x) exercise of the remaining,
unexercised portion of the Warrant beneficially owned by such
person and its affiliates and (y) exercise or conversion of the
unexercised or unconverted portion of any other securities of the
Company beneficially owned by such person and its affiliates
(including, without limitation, any convertible notes or
convertible preferred stock or warrants) subject to a limitation on
conversion or exercise analogous to the limitation contained
herein. Except as set forth in the preceding sentence, for purposes
of this paragraph, beneficial ownership shall be calculated in
accordance with Section 13(d) of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). For purposes of
the Warrant, in determining the number of outstanding shares of
Common Stock, the holder may rely on the number of outstanding
shares of Common Stock as reflected in (1) the Company’s most
recent annual report on Form 10-K, quarterly report on Form 10-Q,
current report on Form 8-K or other public filing with the
Securities and Exchange Commission as the case may be, (2) a more
recent public announcement by the Company or (3) any other notice
by the Company or Warrant Agent setting forth the number of shares
of Common Stock outstanding. For any reason at any time, upon the
written request of the holder of the Warrant, the Company shall,
within two (2) Business Days, confirm orally and in writing to such
holder the number of shares of Common Stock then outstanding. In
any case, the number of outstanding shares of Common Stock shall be
determined after giving effect to the conversion or exercise of
equity securities of the Company by the holder and its affiliates
since the date as of which such number of outstanding shares of
Common Stock was reported. By written notice to the Company, the
holder of a Warrant may from time to time increase or decrease the
Maximum Percentage applicable to such holder to any other
percentage specified in such notice; provided, however, that any
such increase shall not be effective until the sixty-first (61st)
day after such notice is delivered to the Company.
4.
Adjustments.
4
5
6.
Redemption.
6
6.4
Exclusion of Certain
Warrants. The Company agrees that the redemption rights
provided in this Section 6 shall apply only to outstanding
warrants. To the extent a person holds rights to purchase warrants,
such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are expired the Company may
redeem the warrants issued upon such exercise provided that the
criteria for redemption is met. Additionally, the Company agrees
that the redemption rate shall not apply to the Placement
Warrants if at the time of the redemption such Placement Warrants
continue to be held by the initial purchasers or their permitted
transferees. However, once such Placement Warrants are transferred
(other than to permitted transferees under Section 5.6), the
Company may redeem the Placement Warrants in the same manner as the
Public Warrants. The EBC Warrants shall not be redeemable until
after the exercise of the purchase option issued to EBC. The
provisions of this Section 6.4 may not be modified, amended or
deleted without the prior written consent of EBC.
7
8.2.1.
Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it
hereafter appointed, may resign its duties and be discharged from
all further duties and liabilities hereunder after giving sixty
(60) days’ notice in writing to the Company. If the office of
the Warrant Agent becomes vacant by resignation or incapacity to
act or otherwise, the Company shall appoint in writing a successor
Warrant Agent in place of the Warrant Agent. If the Company shall
fail to make such appointment within a period of thirty (30) days
after it has been notified in writing of such resignation or
incapacity by the Warrant Agent or by the holder of the Warrant
(who shall, with such notice, submit his Warrant for inspection by
the Company), then the holder of any Warrant may apply to the
Supreme Court of the State of New York for the County of New York
for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether
appointed by the Company or by such court, shall be a corporation
organized and existing under the laws of the State of New York, in
good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such
laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After
appointment, any successor Warrant Agent shall be vested with all
the authority, powers, rights, immunities, duties, and obligations
of its predecessor Warrant Agent with like effect as if originally
named as Warrant Agent hereunder, without any further act or deed;
but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense
of the Company, an instrument transferring to such successor
Warrant Agent all the authority, powers, and rights of such
predecessor Warrant Agent hereunder; and upon request of any
successor Warrant Agent the Company shall make, execute,
acknowledge, and deliver any and all instruments in writing for
more fully and effectually vesting in and confirming to such
successor Warrant Agent all such authority, powers, rights,
immunities, duties, and obligations.
8.2.2.
Notice of Successor
Warrant Agent. In the event a successor Warrant Agent
shall be appointed, the Company shall give notice thereof to the
predecessor Warrant Agent and the transfer agent for the shares of
Common Stock not later than the effective date of any such
appointment.
8.2.3.
Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant
Agent may be merged or with which it may be consolidated or any
corporation resulting from any merger or consolidation to which the
Warrant Agent shall be a party shall be the successor Warrant Agent
under this Agreement without any further act.
8.3.1.
Remuneration. The Company
agrees to pay the Warrant Agent reasonable remuneration for its
services as such Warrant Agent hereunder and will reimburse the
Warrant Agent upon demand for all expenditures that the Warrant
Agent may reasonably incur in the execution of its duties
hereunder.
8.3.2.
Further
Assurances. The Company agrees to perform, execute,
acknowledge, and deliver or cause to be performed, executed,
acknowledged, and delivered all such further and other acts,
instruments, and assurances as may reasonably be required by the
Warrant Agent for the carrying out or performing of the provisions
of this Agreement.
8.4.1.
Reliance on Company
Statement. Whenever in the performance of its duties
under this Agreement, the Warrant Agent shall deem it necessary or
desirable that any fact or matter be proved or established by the
Company prior to taking or suffering any action hereunder, such
fact or matter (unless other evidence in respect thereof be herein
specifically prescribed) may be deemed to be conclusively proved
and established by a statement signed by the Chief Executive
Officer or Chairman of the Board of Directors of the Company and
delivered to the Warrant Agent. The Warrant Agent may rely
upon such statement for any action taken or suffered in good faith
by it pursuant to the provisions of this Agreement.
8.4.2.
Indemnity. The
Warrant Agent shall be liable hereunder only for its own gross
negligence, willful misconduct or bad faith. The Company agrees to
indemnify the Warrant Agent and save it harmless against any and
all liabilities, including judgments, costs and reasonable counsel
fees, for anything done or omitted by the Warrant Agent in the
execution of this Agreement except as a result of the Warrant
Agent’s gross negligence, willful misconduct, or bad
faith.
8
8.4.3.
Exclusions. The Warrant
Agent shall have no responsibility with respect to the validity of
this Agreement or with respect to the validity or execution of any
Warrant (except its countersignature thereof); nor shall it be
responsible for any breach by the Company of any covenant or
condition contained in this Agreement or in any Warrant; nor shall
it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner,
method, or amount of any such adjustment or the ascertaining of the
existence of facts that would require any such adjustment; nor
shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares of
Common Stock to be issued pursuant to this Agreement or any Warrant
or as to whether any shares of Common Stock will, when issued, be
valid and fully paid and nonassessable.
8.5.
Acceptance
of Agency. The Warrant Agent hereby accepts the agency
established by this Agreement and agrees to perform the same upon
the terms and conditions herein set forth and among other things,
shall account promptly to the Company with respect to Warrants
exercised and concurrently account for, and pay to the Company, all
monies received by the Warrant Agent for the purchase of shares of
Common Stock through the exercise of Warrants.
9.1.
Successors. All the
covenants and provisions of this Agreement by or for the benefit of
the Company or the Warrant Agent shall bind and inure to the
benefit of their respective successors and assigns.
9.2.
Notices. Any notice,
statement or demand authorized by this Agreement to be given or
made by the Warrant Agent or by the holder of any Warrant to or on
the Company shall be sufficiently given when so delivered if by
hand or overnight delivery or if sent by certified mail or private
courier service within five (5) days after deposit of such notice,
postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as
follows:
c/o Big
Rock Partners Sponsor, LLC
0000 X.
Xxxxxxx Xxxxxxx
Xxxxx
000
Xxxxxx
Xxxxx, XX 00000
Attn: Chief
Executive Officer
Any
notice, statement or demand authorized by this Agreement to be
given or made by the holder of any Warrant or by the Company to or
on the Warrant Agent shall be sufficiently given when so delivered
if by hand or overnight delivery or if sent by certified mail or
private courier service within five days after deposit of such
notice, postage prepaid, addressed (until another address is filed
in writing by the Warrant Agent with the Company), as
follows:
Continental Stock
Transfer & Trust Company
0 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000-0000
Attn: Compliance
Department
with a
copy in each case to:
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: Xxxxx
Xxxx Xxxxxx, Esq.
and
Akerman
LLP
Three
Brickell City Centre
00
Xxxxxxxxx 0xx
Xxxxxx,
Xxxxx
0000
Xxxxx,
XX 00000
Attn: Xxxxxxx
Xxxxxxx, Esq.
and
EarlyBirdCapital,
Inc.
000
Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn: General
Counsel
9
9.3. Applicable
Law. The validity, interpretation, and performance of
this Agreement and of the Warrants shall be governed in all
respects by 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 Company hereby agrees that any action,
proceeding or claim against it arising out of or relating in any
way to this Agreement shall be brought and enforced in the courts
of the State of New York or the United States District Court for
the Southern District of New York, and irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. The
Company hereby waives any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum. Any such
process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return
receipt requested, postage prepaid, addressed to it at the address
set forth in Section 9.2 hereof. Such mailing shall be deemed
personal service and shall be legal and binding upon the Company in
any action, proceeding or claim.
9.5. Examination
of the Warrant Agreement. A copy of this Agreement
shall be available at all reasonable times at the office of the
Warrant Agent in the Borough of Manhattan, City and State of New
York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to
submit his Warrant for inspection by it.
9.9
Trust Account Waiver. The
Warrant Agent acknowledges and agrees that it shall not make any
claims or proceed against the trust account established by the
Company in connection with the Public Offering (as more fully
described in the Registration Statement) (“Trust
Account”), including by way of set-off, and shall not be
entitled to any funds in the Trust Account under any circumstance.
In the event that the Warrant Agent has a claim against the Company
under this Agreement, the Warrant Agent will pursue such claim
solely against the Company and not against the property held in the
Trust Account.
9.10
Severability. This Agreement
shall be deemed severable, and the invalidity or unenforceability
of any term or provision hereof shall not affect the validity or
enforceability of this Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable
term or provision, the parties hereto intend that there shall be
added as a part of this Agreement a provision as similar in terms
to such invalid or unenforceable provision as may be possible and
be valid and enforceable.
[signature
page follows]
10
|
||
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
|
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
11