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”).
WHEREAS, the
Company has received a binding commitment from its sponsor
("Sponsor") to purchase an aggregate of 225,000 units
(or up to 243,750 units if the underwriters’ over-allotment
is exercised in full), each unit (“Unit”) comprised of
one share of common stock of the Company, $0.001 par value
(“Common Stock”), one right to receive one-tenth of one
share of Common Stock and one half of one warrant to purchase one
share of Common Stock for $11.50 per whole share, subject to
adjustment as described herein, pursuant to a Unit Subscription
Agreement (the “Sponsor Unit Purchase Agreement”), and
in connection therewith, will issue and deliver up to an aggregate
of 112,500 warrants (or up to 121,875 warrants if the
underwriters’ over-allotment is exercised in full)
(“Placement Warrants”), upon consummation of such
private placement (the “Private Offering”);
and
WHEREAS, in order
to finance the Company’s transaction costs in connection with
an intended initial Business Combination (defined below), the
Sponsor or an affiliate of the Sponsor or the Company’s
executive officers and directors or their affiliates may loan to
the Company funds as may be required, of which up to $1,500,000 of
such loans may be convertible into up to an additional 150,000
Units, including 75,000 warrants ("Working Capital
Warrants");
WHEREAS, the
Company is engaged in a public offering (“Public
Offering”) of Units and, in connection therewith, will issue
and deliver up to 2,500,000 warrants (or up to 2,875,000 warrants
if the underwriters’ over-allotment is exercised in full)
(“Public Warrants”) to the public investors and (ii)
250,000 warrants (underlying unit purchase options) to EBC or its
designees (“EBC Warrants” and, together with the
Placement Warrants, Working Capital Warrants and
Public Warrants, the “Warrants”); and
WHEREAS, the
Company has filed with the Securities and Exchange Commission a
Registration Statement on Form S-1, No. 333-220947
(“Registration Statement”) for the registration, under
the Securities Act of 1933, as amended (“Act”), of,
among other securities, the Warrants; and
WHEREAS, the
Company desires the Warrant Agent to act on behalf of the Company,
and the Warrant Agent is willing to so act, in connection with the
issuance, registration, transfer, exchange, redemption and exercise
of the Warrants; and
WHEREAS, the
Company desires to provide for the form and provisions of the
Warrants, the terms upon which they shall be issued and exercised,
and the respective rights, limitation of rights, and immunities of
the Company, the Warrant Agent, and the holders of the Warrants;
and
WHEREAS, all
acts and things have been done and performed which are necessary to
make the Warrants, when executed on behalf of the Company and
countersigned by or on behalf of the Warrant Agent, as provided
herein, the valid, binding and legal obligations of the Company,
and to authorize the execution and delivery of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements herein
contained, the parties hereto agree as follows:
1. Appointment
of Warrant Agent. The Company hereby appoints the
Warrant Agent to act as agent for the Company for the Warrants, and
the Warrant Agent hereby accepts such appointment and agrees to
perform the same in accordance with the terms and conditions set
forth in this Agreement.
2. Warrants.
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.
2.2. Uncertificated
Warrants. Notwithstanding anything herein to the contrary,
any Warrant, or portion thereof, may be issued as part of, and be
represented by, a Unit, and any Warrant may be issued in
uncertificated or book-entry form through the Warrant Agent and/or
the facilities of The Depository Trust Company (the
“Depositary”) or other book-entry depositary system, in
each case as determined by the Board of Directors of the Company or
by an authorized committee thereof. Any Warrant so issued shall
have the same terms, force and effect as a certificated Warrant
that has been duly countersigned by the Warrant Agent in accordance
with the terms of this Agreement.
2.3. Effect
of Countersignature. Except with respect to
uncertificated Warrants as described above, unless and until
countersigned by the Warrant Agent pursuant to this Agreement, a
Warrant shall be invalid and of no effect and may not be exercised
by the holder thereof.
2.4. Registration.
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”).
2.6. Placement
Warrants Attributes. The Placement
Warrants will be issued in the same form as the Public
Warrants but they (i) will not be redeemable by the Company and
(ii) may be exercised for cash or on a cashless basis at the
holder’s option, in either case as long as the Placement
Warrants are held by the initial purchasers or their affiliates and
permitted transferees (as prescribed in Section 5.6 hereof).
Once a Placement Warrant is transferred to a holder
other than an affiliate or permitted transferee, it shall be
treated as a Public Warrant hereunder for all
purposes.
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. Terms
and Exercise of 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.
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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. Exercise
of 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.
3.3.2. Issuance
of Certificates. As soon as practicable after the
exercise of any Warrant and the clearance of the funds in payment
of the Warrant Price (if any), the Company shall issue to the
registered holder of such Warrant a certificate or certificates for
the number of shares of Common Stock to which he, she or it is
entitled, registered in such name or names as may be directed by
him, her or it, and if such Warrant shall not have been exercised
in full, a new countersigned Warrant for the number of shares as to
which such Warrant shall not have been
exercised. Notwithstanding the foregoing, in no event will the
Company be required to net cash settle the Warrant exercise. No
Warrant shall be exercisable and the Company shall not be obligated
to issue shares of Common Stock upon exercise of a Warrant unless
the Common Stock issuable upon such Warrant exercise has been
registered, qualified or deemed to be exempt under the securities
laws of the state of residence of the registered holder of the
Warrants. In the event that the condition in the immediately
preceding sentence is not satisfied with respect to a Warrant, the
holder of such Warrant shall not be entitled to exercise such
Warrant and such Warrant may have no value and expire worthless, in
which case the purchaser of a Unit containing such Public Warrants
shall have paid the full purchase price for the Unit solely for the
shares of Common Stock and rights to receive shares of Common Stock
underlying such Unit. Warrants may not be exercised by, or
securities issued to, any registered holder in any state in which
such exercise would be unlawful.
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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.
4.1. Stock
Dividends; Split Ups. If after the date hereof, the
number of outstanding shares of Common Stock is increased by a
stock dividend payable in shares of Common Stock, or by a split up
of shares of Common Stock, or other similar event, then, on the
effective date of such stock dividend, split up or similar event,
the number of shares of Common Stock issuable on exercise of each
Warrant shall be increased in proportion to such increase in
outstanding shares of Common Stock.
4.2. Aggregation
of Shares. If after the date hereof, the number of
outstanding shares of Common Stock is decreased by a consolidation,
combination, reverse stock split or reclassification of shares of
Common Stock or other similar event, then, on the effective date of
such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common
Stock issuable on exercise of each Warrant shall be decreased in
proportion to such decrease in outstanding shares of Common
Stock.
4.3. Extraordinary
Dividends. If the Company, at any time while the Warrants
are outstanding and unexpired, shall pay a dividend or make a
distribution in cash, securities or other assets to the holders of
the shares of Common Stock or other shares of the Company’s
capital stock into which the Warrants are convertible (an
“Extraordinary Dividend”), then the Warrant Price shall
be decreased, effective immediately after the effective date of
such Extraordinary Dividend, by the amount of cash and the fair
market value (as determined by the Company’s Board of
Directors, in good faith) of any securities or other assets paid on
each share of Common Stock in respect of such Extraordinary
Dividend; provided, however, that none of the following shall be
deemed an Extraordinary Dividend for purposes of this provision:
(a) any adjustment described in subsection 4.1 above, (b) any cash
dividends or cash distributions which, when combined on a per share
basis with all other cash dividends and cash distributions paid on
the Common Stock during the 365-day period ending on the date of
declaration of such dividend or distribution does not exceed $0.50
(as adjusted to appropriately reflect any of the events referred to
in other subsections of this Section 4 and excluding cash dividends
or cash distributions that resulted in an adjustment to the Warrant
Price or to the number of shares of Common Stock issuable on
exercise of each Warrant) but only with respect to the amount of
the aggregate cash dividends or cash distributions equal to or less
than $0.50, (c) any payment to satisfy the conversion rights of the
holders of the shares of Common Stock in connection with a proposed
initial Business Combination or (d) any payment in connection with
the Company’s liquidation and the distribution of its assets
upon its failure to consummate a Business Combination. Solely for
purposes of illustration, if the Company, at a time while the
Warrants are outstanding and unexpired, pays a cash dividend of
$0.35 and previously paid an aggregate of $0.40 of cash dividends
and cash distributions on the Common Stock during the 365-day
period ending on the date of declaration of such $0.35 dividend,
then the Warrant Price will be decreased, effectively immediately
after the effective date of such $0.35 dividend, by $0.25 (the
absolute value of the difference between $0.75 (the aggregate
amount of all cash dividends and cash distributions paid or made in
such 365-day period, including such $0.35 dividend) and $0.50 (the
greater of (x) $0.50 and (y) the aggregate amount of all cash
dividends and cash distributions paid or made in such 365-day
period prior to such $0.35 dividend)).
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4.4. Adjustments
in Exercise Price. Whenever the number of shares of
Common Stock purchasable upon the exercise of the Warrants is
adjusted, as provided in Sections 4.1 and 4.2 above, the Warrant
Price shall be adjusted (to the nearest cent) by multiplying such
Warrant Price immediately prior to such adjustment by a fraction
(x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of the Warrants immediately
prior to such adjustment, and (y) the denominator of which shall be
the number of shares of Common Stock so purchasable immediately
thereafter.
4.5. Replacement
of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding shares of
Common Stock (other than a change covered by Section 4.1, 4.2 or
4.3 hereof or that solely affects the par value of the Common
Stock), or in the case of any merger or consolidation of the
Company with or into another corporation (other than a
consolidation or merger in which the Company is the continuing
corporation and that does not result in any reclassification or
reorganization of the outstanding Common Stock), or in the case of
any sale or conveyance to another corporation or entity of the
assets or other property of the Company as an entirety or
substantially as an entirety in connection with which the Company
is dissolved, the Warrant holders shall thereafter have the right
to purchase and receive, upon the basis and upon the terms and
conditions specified in the Warrants and in lieu of the shares of
Common Stock of the Company immediately theretofore purchasable and
receivable upon the exercise of the rights represented thereby, the
kind and amount of shares of stock or other securities or property
(including cash) receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution
following any such sale or transfer, that the Warrant holder would
have received if such Warrant holder had exercised his, her or its
Warrant(s) immediately prior to such event; and if any
reclassification also results in a change in the Common Stock
covered by Section 4.1, 4.2 or 4.3, then such adjustment shall be
made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section
4.5. The provisions of this Section 4.5 shall similarly apply
to successive reclassifications, reorganizations, mergers or
consolidations, sales or other transfers.
4.6. Notices
of Changes in Warrant. Upon every adjustment of the
Warrant Price or the number of shares issuable upon exercise of a
Warrant, the Company shall give written notice thereof to the
Warrant Agent, which notice shall state the Warrant Price resulting
from such adjustment and the increase or decrease, if any, in the
number of shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is
based. Upon the occurrence of any event specified in Sections
4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company
shall give written notice to each Warrant holder, at the last
address set forth for such holder in the Warrant Register, of the
record date or the effective date of the event. Failure to
give such notice, or any defect therein, shall not affect the
legality or validity of such event.
4.7. No
Fractional Warrants or Shares. No fractional Warrants
will be issued hereunder. Additionally, notwithstanding any
provision contained in this Agreement to the contrary, the Company
shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to
this Section 4, the holder of any Warrant would be entitled, upon
the exercise of such Warrant, to receive a fractional interest in a
share, the Company shall, upon such exercise, round up to the
nearest whole number of shares of Common Stock to be issued to the
Warrant holder.
4.8. Form
of Warrant. The form of Warrant need not be changed
because of any adjustment pursuant to this Section 4, and Warrants
issued after such adjustment may state the same Warrant Price and
the same number of shares as is stated in the Warrants initially
issued pursuant to this Agreement. However, the Company may at
any time in its sole discretion make any change in the form of
Warrant that the Company may deem appropriate and that does not
affect the substance thereof, and any Warrant thereafter issued or
countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so
changed.
4.9. Other
Events. In case any event shall occur affecting the Company
as to which none of the provisions of preceding subsections of this
Section 4 are strictly applicable, but which would require an
adjustment to the terms of the Warrants in order to (i) avoid an
adverse impact on the Warrants and (ii) effectuate the intent and
purpose of this Section 4, then, in each such case, the Company
shall appoint a firm of independent public accountants, investment
banking or other appraisal firm of recognized national standing,
which shall give its opinion as to whether or not any adjustment to
the rights represented by the Warrants is necessary to effectuate
the intent and purpose of this Section 4 and, if they determine
that an adjustment is necessary, the terms of such adjustment,
provided, however, that under no circumstances shall the Warrants
be adjusted pursuant to this Section 4 as a result of any issuance
of securities in connection with the Business Combination. The
Company shall adjust the terms of the Warrants in a manner that is
consistent with any adjustment recommended in such
opinion.
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5.
Transfer and Exchange of
Warrants.
5.1. Registration
of Transfer. The Warrant Agent shall register the
transfer, from time to time, of any outstanding Warrant upon the
Warrant Register, upon surrender of such Warrant for transfer,
properly endorsed with signatures properly guaranteed and
accompanied by appropriate instructions for transfer. Upon any
such transfer, a new Warrant representing an equal aggregate number
of Warrants shall be issued and the old Warrant shall be cancelled
by the Warrant Agent. The Warrants so cancelled shall be
delivered by the Warrant Agent to the Company from time to time
upon request.
5.2. Procedure
for Surrender of Warrants. Warrants may be surrendered
to the Warrant Agent, together with a written request for exchange
or transfer, and thereupon the Warrant Agent shall issue in
exchange therefor one or more new Warrants as requested by the
registered holder of the Warrants so surrendered, representing an
equal aggregate number of Warrants; provided, however, that in the
event that a Warrant surrendered for transfer bears a restrictive
legend, the Warrant Agent shall not cancel such Warrant and issue
new Warrants in exchange therefor until the Warrant Agent has
received an opinion of counsel for the Company stating that such
transfer may be made and indicating whether the new Warrants must
also bear a restrictive legend.
5.3. Fractional
Warrants. The Warrant Agent shall not be required to
effect any registration of transfer or exchange which will result
in the issuance of a warrant certificate for a fraction of a
warrant.
5.4. Service
Charges. No service charge shall be made for any
exchange or registration of transfer of Warrants.
5.5. Warrant
Execution and Countersignature. The Warrant Agent is
hereby authorized to countersign and to deliver, in accordance with
the terms of this Agreement, the Warrants required to be issued
pursuant to the provisions of this Section 5, and the Company,
whenever required by the Warrant Agent, will supply the Warrant
Agent with Warrants duly executed on behalf of the Company for such
purpose.
5.6. Placement
Warrants. The Warrant Agent shall not register any transfer
of Placement Warrants until the consummation by the Company of an
initial Business Combination, except for transfers (i) to the
Company’s Sponsor, officers, directors,
employees, consultants or their affiliates, (ii) to a
holder’s officers, directors, employees or members, in each
case if the holder is an entity, (iii) by bona fide gift to a
member of the holder’s immediate family or to a trust, the
beneficiary of which is the holder or a member of the
holder’s immediate family for estate planning purposes, (iv)
by virtue of the laws of descent and distribution upon death, (v)
pursuant to a qualified domestic relations order, (vi) to the
Company for no value for cancellation in connection with the
consummation of a Business Combination or (vii) by private sales
made at or prior to the consummation of a Business Combination at
prices no greater than the price at which the Placement Warrants
were originally purchased, in each case (except for clause (vi)) on
the condition that prior to such registration for transfer, the
Warrant Agent shall be presented with written documentation
pursuant to which each transferee or the trustee or legal guardian
for such transferee agrees to be bound by the terms of the Unit
Purchase Agreements and any other applicable agreement the
transferor is bound by.
5.7. Transfers
prior to Detachment. Prior to the Detachment Date, the
Public Warrants may be transferred or exchanged only together with
the Unit in which such Warrant is included, and only for the
purpose of effecting, or in conjunction with, a transfer or
exchange of such Unit. Furthermore, each transfer of a Unit on
the register relating to such Units shall operate also to transfer
the Warrants included in such Unit. Notwithstanding the
foregoing, the provisions of this Section 5.7 shall have no effect
on any transfer of Warrants on or after the Detachment
Date.
6.
Redemption.
6.1. Redemption. Subject
to Section 6.4 hereof, not less than all of the outstanding Public
Warrants may be redeemed, at the option of the Company, at any time
during the Exercise Period (so long as there is a current
registration statement in effect with respect to the shares of
Common Stock underlying the Warrants), at the office of the Warrant
Agent, upon the notice referred to in Section 6.2, at the price of
$0.01 per Warrant (“Redemption Price”), provided that
the last sales price of the Common Stock equals or exceeds $21.00
per share (subject to adjustment in accordance with Section 4
hereof), for any twenty (20) trading days within a thirty (30)
trading day period ending on the third business day prior to the
notice of redemption.
6
6.2. Date
Fixed for, and Notice of, Redemption. In the event the
Company shall elect to redeem all of the Public Warrants, the
Company shall fix a date for the redemption (the “Redemption
Date”). Notice of redemption shall be mailed by first class
mail, postage prepaid, by the Company not less than thirty (30)
days prior to the Redemption Date to the registered holders of the
Warrants to be redeemed at their last addresses as they shall
appear on the registration books. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly
given whether or not the registered holder received such
notice.
6.3. Exercise
After Notice of Redemption. The Public Warrants may be
exercised, for cash (or on a “cashless basis” in
accordance with Section 3 of this Agreement) at any time after
notice of redemption shall have been given by the Company pursuant
to Section 6.2 hereof and prior to the Redemption Date. In the
event the Company determines to require all holders of Public
Warrants to exercise their Warrants on a “cashless
basis” pursuant to Section 3.3.1(b), the notice of redemption
will contain the information necessary to calculate the number of
shares of Common Stock to be received upon exercise of the
Warrants, including the “Fair Market Value” in such
case. On and after the Redemption Date, the record holder of the
Warrants shall have no further rights except to receive, upon
surrender of the Warrants, the Redemption Price.
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.
Other Provisions Relating to Rights of
Holders of Warrants.
7.1. No
Rights as Stockholder. A Warrant does not entitle the
registered holder thereof to any of the rights of a stockholder of
the Company, including, without limitation, the right to receive
dividends, or other distributions, exercise any preemptive rights
to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of
directors of the Company or any other matter.
7.2. Lost,
Stolen, Mutilated, or Destroyed Warrants. If any
Warrant is lost, stolen, mutilated, or destroyed, the Company and
the Warrant Agent may on such terms as to indemnity or otherwise as
they may in their discretion impose (which shall, in the case of a
mutilated Warrant, include the surrender thereof), issue a new
Warrant of like denomination, tenor, and date as the Warrant so
lost, stolen, mutilated, or destroyed. Any such new Warrant
shall constitute a substitute contractual obligation of the
Company, whether or not the allegedly lost, stolen, mutilated, or
destroyed Warrant shall be at any time enforceable by
anyone.
7.3. Reservation
of Shares of Common Stock. The Company shall at all
times reserve and keep available a number of its authorized but
unissued shares of Common Stock that will be sufficient to permit
the exercise in full of all outstanding Warrants issued pursuant to
this Agreement.
7.4. Registration
of Shares of Common Stock. The Company agrees that as
soon as practicable after the closing of its initial Business
Combination, but in no event later than fifteen (15) business days
after such closing, it shall use its best efforts to file with the
Securities and Exchange Commission a registration statement for the
registration, under the Act, of the shares of Common Stock issuable
upon exercise of the Warrants, and it shall use its best efforts to
take such action as is necessary to register or qualify for sale,
in those states in which the Warrants were initially offered by the
Company and in those states where holders of Warrants then reside,
the shares of Common Stock issuable upon exercise of the Warrants,
to the extent an exemption is not available. The Company will
use its best efforts to cause the same to become effective and to
maintain the effectiveness of such registration statement until the
expiration of the Warrants in accordance with the provisions of
this Agreement. If any such registration statement has not
been declared effective by the 90th day following the closing of
the Business Combination, holders of the Warrants shall have the
right, during the period beginning on the 91st day after the
closing of the Business Combination and ending upon such
registration statement being declared effective by the Securities
and Exchange Commission, and during any other period when the
Company shall fail to have maintained an effective registration
statement covering the shares of Common Stock issuable upon
exercise of the Warrants, to exercise such Warrants on a
“cashless basis” as determined in accordance with
Section 3.3.1(d). The Company shall provide the Warrant Agent with
an opinion of counsel for the Company (which shall be an outside
law firm with securities law experience) stating that (i) the
exercise of the Warrants on a cashless basis in accordance with
this Section 7.4 is not required to be registered under the Act and
(ii) the shares of Common Stock issued upon such exercise will be
freely tradable under U.S. federal securities laws by anyone who is
not an affiliate (as such term is defined in Rule 144 under the
Act) of the Company and, accordingly, will not be required to bear
a restrictive legend. For the avoidance of any doubt, unless
and until all of the Warrants have been exercised on a cashless
basis, the Company shall continue to be obligated to comply with
its registration obligations under the first three sentences of
this Section 7.4. The provisions of this Section 7.4 may not be
modified, amended or deleted without the prior written consent of
EBC.
7
8.
Concerning
the Warrant Agent and Other Matters.
8.1. Payment
of Taxes. The Company will from time to time promptly
pay all taxes and charges that may be imposed upon the Company or
the Warrant Agent in respect of the issuance or delivery of shares
of Common Stock upon the exercise of Warrants, but the Company
shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2. Resignation,
Consolidation, or Merger of Warrant Agent.
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.
Fees
and Expenses of Warrant Agent.
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.
Liability of
Warrant Agent.
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.
Miscellaneous
Provisions.
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.
9.4. Persons
Having Rights under this Agreement. Nothing in this
Agreement expressed and nothing that may be implied from any of the
provisions hereof is intended, or shall be construed, to confer
upon, or give to, any person or corporation other than the parties
hereto and the registered holders of the Warrants and, for the
purposes of Sections 2.7, 6.4, 7.4, 9.4 and 9.8 hereof, EBC, any
right, remedy, or claim under or by reason of this Agreement or of
any covenant, condition, stipulation, promise, or agreement
hereof. EBC shall be deemed to be a third-party beneficiary of
this Agreement with respect to Sections 2.7, 6.4, 7.4, 9.4 and 9.8
hereof. All covenants, conditions, stipulations, promises, and
agreements contained in this Agreement shall be for the sole and
exclusive benefit of the parties hereto (and EBC with respect to
the Sections 2.7, 6.4, 7.4, 9.4 and 9.8 hereof) and their
successors and assigns and of the registered holders of the
Warrants.
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.
9.6. Counterparts. This
Agreement may be executed in any number of original or facsimile
counterparts and each of such counterparts shall for all purposes
be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument.
9.7. Effect
of Headings. The section headings herein are for
convenience only and are not part of this Agreement and shall not
affect the interpretation thereof.
9.8. Amendments. This
Agreement may be amended by the parties hereto without the consent
of any registered holder for the purpose of curing any ambiguity,
or of curing, correcting or supplementing any defective provision
contained herein or adding or changing any other provisions with
respect to matters or questions arising under this Agreement as the
parties may deem necessary or desirable and that the parties deem
shall not adversely affect the interest of the registered
holders. All other modifications or amendments, including any
amendment to increase the Warrant Price or shorten the Exercise
Period, shall require the written consent or vote of the registered
holders of a majority of the then outstanding
Warrants. Notwithstanding the foregoing, the Company may lower
the Warrant Price or extend the duration of the Exercise Period
pursuant to Sections 3.1 and 3.2, respectively, without the consent
of the registered holders. The provisions of this Section 9.8 may
not be modified, amended or deleted without the prior written
consent of EBC.
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
IN
WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the day and year first above
written.
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By:
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Name:
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Title:
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CONTINENTAL
STOCK TRANSFER & TRUST COMPANY
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By:
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11
