NRX Pharmaceuticals, Inc PRE 14A, filed Feb 27, 2020
NRX Pharmaceuticals, Inc. (NRXP)
PRE 14A
2020-02-27
For: 2020-03-23
View Original
Added on
October 18, 2026
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the
Securities
Exchange Act of 1934
Filed
by the Registrant ☒
Filed
by a Party other than the Registrant ☐
Check
the appropriate box:
☒
Preliminary Proxy
Statement
☐
Confidential, for
Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
☐
Definitive Proxy
Statement
☐
Definitive
Additional Materials
☐
Soliciting Material
Pursuant to Section 240.14a-12
BIG ROCK PARTNERS ACQUISITION CORP.
(Name of Registrant as Specified In Its Charter)
(Name of Person(s) Filing Proxy Statement, if other than the
Registrant)
Payment
of Filing Fee (Check the appropriate box):
☒
No fee required.
☐
Fee computed on table below per Exchange Act
Rules 14a-6(i) (1) and 0-11.
(1)
Title of each class of securities to which
transaction applies:
(2)
Aggregate number of securities to which
transaction applies:
(3)
Per unit price or other underlying value of
transaction computed pursuant to Exchange Act Rule 0-11 (set forth
the amount on which the filing fee is calculated and state how it
was determined):
(4)
Proposed maximum aggregate value of
transaction:
(5)
Total fee paid:
☐
Fee paid previously with preliminary
materials.
☐
Check box if any part of the fee is offset as
provided by Exchange Act Rule 0-11(a)(2) and identify the filing
for which the offsetting fee was paid previously. Identify the
previous filing by registration statement number, or the Form or
Schedule and the date of its filing.
(1)
Amount Previously Paid:
(2)
Form, Schedule or Registration Statement
No.
(3)
Filing Party:
(4)
Date Filed:
BIG ROCK PARTNERS ACQUISITION CORP.
2645 N. FEDERAL HIGHWAY, SUITE 230
DELRAY BEACH, FLORIDA 33483
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD MARCH 23, 2020
TO THE STOCKHOLDERS OF BIG ROCK PARTNERS ACQUISITION
CORP.:
You are
cordially invited to attend the special meeting (the “special
meeting”) of stockholders of Big Rock Partners Acquisition
Corp. (the “Company,” “Big Rock Partners,”
“we,” “us” or “our”) to be held
at 10:00 a.m. EST on March 23, 2020 at the offices of the
Company’s special counsel, Graubard Miller, 405 Lexington
Avenue, 11th Floor, New York, New York 10174, for the sole purpose
of considering and voting upon the following
proposals:
●
a proposal to amend
(the “Extension Amendment”) the Company’s amended
and restated certificate of incorporation (the
“charter”) to extend the date by which the Company has
to consummate a business combination (the “Extension”)
from March 23, 2020 to _________ __, 2020 (the “Extended
Date”); and
●
a proposal to
approve the early winding up of the Company and redemption of 100%
of the outstanding public shares as described in the accompanying
proxy statement if the Company’s board of directors
determines at any time prior to the Extended Date that the Company
will be unable to consummate an initial business combination by the
Extended Date (the “Early Termination
Proposal”).
The
Extension Amendment and the Early Termination Proposal are more
fully described in the accompanying proxy statement.
The
purpose of the Extension Amendment is to allow the Company more
time to complete an initial business combination. The purpose of
the Early Termination Proposal is to obtain any necessary
stockholder approval to wind up the Company’s affairs and
redeem 100% of the outstanding public shares if the Company’s
board of directors determines in its sole discretion at any time
prior to the Extended Date that the Company will be unable to
consummate an initial business combination by the Extended
Date.
The
Company’s prospectus for its initial public offering
(“IPO”) and its charter provided that the Company had
only until May 22, 2019 to complete a business combination (after
giving effect to the two three-month extensions the Company
previously obtained pursuant to the charter). On May 21, 2019,
August 21, 2019 and November 21, 2019, the Company’s
stockholders approved amendments to the charter to provide that it
would have until August 22, 2019, November 22, 2019 and March 23,
2020, respectively, to complete a business combination. There is
not sufficient time before March 23, 2020 to allow the Company to
consummate an initial business combination. Accordingly, our board
has determined that it is in the best interests of our stockholders
to further extend the date that the Company has to consummate an
initial business combination to the Extended Date.
The
Company has agreed that if the Extension Amendment proposal is
approved and the Extension is implemented, it will deposit (each
deposit being referred to herein as a “Deposit”) into
the trust account established in connection with the IPO (the
“trust account”) $___ for each public share that is not
converted in connection with the stockholder vote to approve the
Extension, for each monthly period, or portion thereof, that is
needed by the Company to complete an initial business combination
from March 23, 2020 until the Extended Date. Alternatively, if the
Company does not have the funds necessary to make the Deposit
referred to above, Big Rock Partners Sponsor, LLC, the
Company’s sponsor (the “sponsor”), and BRAC
Lending Group LLC (the sponsor and BRAC Lending Group LLC being
collectively referred to herein as the “Insiders”), a
stockholder of the Company and an entity affiliated with
EarlyBirdCapital, Inc., the representative of the underwriters in
the IPO, have agreed that they and/or any of their respective
affiliates or designees will contribute to the Company as a loan
(each loan being referred to herein as a
“Contribution”) $___ for each public share that is not
converted in connection with the stockholder vote to approve the
Extension, for each monthly period, or portion thereof, that is
needed by the Company to complete an initial business combination
from March 23, 2020 until the Extended Date. Accordingly, if the
Company takes until the Extended Date to complete an initial
business combination, which would represent _____ monthly periods
through the Extended Date, the Company or Insiders would make
Deposits or Contributions of $_______ per month, or an aggregate of
$_______ (assuming no public shares were converted). Each Deposit
or Contribution will be placed in the trust account prior to the
beginning of such monthly period (or portion thereof), other than
the first Deposit or Contribution which will be made on the day of
the approval and implementation of the Extension Amendment.
Accordingly, if the Extension Amendment is approved and the
Extension is implemented and the Company takes the full time
through the Extended Date to complete an initial business
combination, the conversion amount per share at the meeting for
such business combination or the Company’s subsequent
liquidation will be approximately $_______ per share (without
taking into account any interest), in comparison to the current
conversion amount of approximately $_______ per share. The Company
and Insiders will not make any Deposit or Contribution unless the
Extension Amendment is approved and the Extension is completed. The
Contribution(s) will not bear any interest and will be repayable by
the Company to the Insiders or their affiliates upon consummation
of an initial business combination. The loans will be forgiven if
the Company is unable to consummate an initial business combination
except to the extent of any funds held outside of the trust
account. The Company or Insiders, as applicable, will have the sole
discretion whether to continue extending for additional monthly
periods until the Extended Date and if the Company or Insiders, as
applicable, determine not to continue extending for additional
monthly periods, the obligation to make additional Deposits or
Contributions will terminate. If this occurs, or if the
Company’s board of directors otherwise determines that the
Company will not be able to consummate an initial business
combination by the Extended Date and does not wish to seek an
additional extension, the Company would wind up the Company’s
affairs and redeem 100% of the outstanding public shares in
accordance with the same procedures set forth below that would be
applicable if the Extension Amendment proposal is not
approved.
i
The
holders of shares of common stock issued in the Company’s IPO
(the “public shares”) may elect to convert their public
shares into their pro rata portion of the funds held in the trust
account (calculated as of two business days prior to the meeting)
if the Extension is implemented (the “Conversion”).
Holders of public shares do not need to vote on the Extension
Amendment proposal or be a holder of record on the record date to
exercise conversion rights. The per-share pro rata portion of the
trust account on the record date (which is expected to be the same
approximate amount two business days prior to the meeting) was
approximately $_______. The closing price of the Company’s
common stock on the record date was $_______. Accordingly, if the
market price were to remain the same until the date of the meeting,
exercising conversion rights would result in a public stockholder
receiving approximately $___ more than if he sold his stock in the
open market. The Company cannot assure stockholders that they will
be able to sell their shares of Company common stock in the open
market, even if the market price per share is higher than the
conversion price stated above, as there may not be sufficient
liquidity in its securities when such stockholders wish to sell
their shares.
If the
Extension Amendment proposal is not approved, in accordance with
our charter, we will (i) cease all operations except for the
purpose of winding up, (ii) as promptly as reasonably possible but
not more than ten business days thereafter, redeem 100% of the
outstanding public shares with the aggregate amount then on deposit
in the trust account and (iii) thereafter seek to dissolve and
liquidate as described in more detail in this proxy
statement.
If the
Extension Amendment proposal is approved and the Extension is
implemented, but the Company’s board of directors
subsequently determines that the Company will not be able to
consummate an initial business combination by the Extended Date
(and does not wish to seek an additional extension), approval of
the Early Termination Proposal will allow the Company’s board
of directors to follow the same procedures set forth above (as if
the Extension Amendment proposal was not approved) without needing
any further stockholder approval.
If the
Extension Amendment is not approved, the Early Termination Proposal
will not be presented as we will be forced to dissolve and
liquidate.
The
Company’s board of directors has fixed the close of business
on March 3, 2020 as the date for determining the Company’s
stockholders entitled to receive notice of and vote at the special
meeting and any adjournment thereof. Only holders of record of the
Company’s common stock on that date are entitled to have
their votes counted at the special meeting or any adjournment
thereof. A complete list of stockholders of record entitled to vote
at the special meeting will be available for ten days before the
special meeting at the Company’s principal executive offices
for inspection by stockholders during ordinary business hours for
any purpose germane to the special meeting.
After
careful consideration of all relevant factors, the Company’s
board of directors has determined that (i) the Extension Amendment
proposal is fair to and in the best interests of the Company and
its stockholders, has declared it advisable and recommends that you
vote or give instruction to vote “FOR” such proposal;
and (ii) recommends that you vote or give instruction to vote
“FOR” the Early Termination Proposal.
Enclosed is the
proxy statement containing detailed information concerning the
Extension Amendment, the Early Termination Proposal and the special
meeting. Whether or not you plan to attend the special meeting, we
urge you to read this material carefully and vote your
shares.
I look
forward to seeing you at the meeting.
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March
__, 2020
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By
Order of the Board of Directors
Richard
Ackerman
Chairman,
President and Chief Executive Officer
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Your vote is important. Please sign, date and return your proxy
card as soon as possible to make sure that your shares are
represented at the special meeting. If you are a stockholder of
record, you may also cast your vote in person at the special
meeting. If your shares are held in an account at a brokerage firm
or bank, you must instruct your broker or bank how to vote your
shares, or you may cast your vote in person at the special meeting
by obtaining a proxy from your brokerage firm or bank. Your failure
to vote or instruct your broker or bank how to vote will have the
same effect as voting against each of the proposals.
Important Notice Regarding the Availability of Proxy Materials for
the Special meeting of Stockholders to be held on March 23, 2020:
This notice of meeting and the accompany proxy statement are
available at
https://www.cstproxy.com/bigrockpartners/smp2020.
ii
BIG ROCK PARTNERS ACQUISITION CORP.
2645 N. FEDERAL HIGHWAY, SUITE 230
DELRAY BEACH, FLORIDA 33483
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS
TO BE HELD MARCH 23, 2020
PROXY STATEMENT
Big
Rock Partners Acquisition Corp. (the “Company,”
“Big Rock Partners,” “we,” “us”
or “our”), a Delaware corporation, is providing this
proxy statement in connection with the solicitation by the Board of
proxies to be voted at the Special Meeting to be held on March 23,
2020, at the offices of the Company’s special counsel,
Graubard Miller, 405 Lexington Avenue, 11th Floor, New York, New
York 10174.
At the
special meeting, the following proposals will be considered and
voted upon:
●
a proposal to amend
(the “Extension Amendment”) the Company’s amended
and restated certificate of incorporation (the
“charter”) to extend the date by which the Company has
to consummate a business combination (the “Extension”)
from March 23, 2020 to _________ __, 2020 (the “Extended
Date”); and
●
a proposal to
approve the early winding up of the Company and redemption of 100%
of the outstanding public shares as described in the accompanying
proxy statement if the Company’s board of directors
determines at any time prior to the Extended Date that the Company
will be unable to consummate an initial business combination by the
Extended date (the “Early Termination
Proposal”).
The
purpose of the Extension Amendment is to allow the Company more
time to complete an initial business combination. The purpose of
the Early Termination Proposal is to obtain any necessary
stockholder approval to wind up the Company’s affairs and
redeem 100% of the outstanding public shares if the Company’s
board of directors determines in its sole discretion at any time
prior to the Extended Date that the Company will be unable to
consummate an initial business combination by the Extended date and
does not wish to seek an additional extension.
The
Company’s prospectus for its initial public offering
(“IPO”) and its charter provided that the Company had
only until May 22, 2019 to complete a business combination (after
giving effect to the two three-month extensions the Company
previously obtained pursuant to the charter). On May 21, 2019,
August 22, 2019 and November 21, 2019, the Company’s
stockholders approved an amendment to the charter to provide that
it would have until August 22, 2019, November 22, 2019 and March
23, 2020, respectively, to complete a business combination. There
is not sufficient time before March 23, 2020 to allow the Company
to consummate an initial business combination. Accordingly, our
board has determined that it is in the best interests of our
stockholders to extend the date that the Company has to consummate
a business combination to the Extended Date.
The
holders of shares of common stock issued in the IPO (the
“public shares”) may elect to convert their public
shares into their pro rata portion of the funds held in the trust
account established at the time of the IPO (the “trust
account”) if the Extension is implemented (the
“Conversion”). Holders of public shares do not need to
vote on the Extension Amendment proposal or be a holder of record
on the record date to exercise conversion rights.
Approval of the
Extension Amendment is a condition to the implementation of the
Extension. In addition, we will not proceed with the Extension if
we do not have at least $5,000,001 of net tangible assets following
approval of the Extension Amendment proposal, after taking into
account the Conversion.
If the Extension
Amendment is approved, the amount remaining in the trust account
may be only a small fraction of the approximately $___ million that
was in the trust account as of the record date. In such event, the
Company may need to obtain additional funds to complete a proposed
business combination and there can be no assurance that such funds
will be available on terms acceptable to the parties or at all.
Additionally, if the Extension Amendment is approved, the
Company’s rights and warrants will remain outstanding in
accordance with their existing terms.
1
The
Company has agreed that if the Extension Amendment proposal is
approved and the Extension is implemented, it will deposit (each
deposit being referred to herein as a “Deposit”) into
the trust account established in connection with the IPO (the
“trust account”) $___ for each public share that is not
converted in connection with the stockholder vote to approve the
Extension, for each monthly period, or portion thereof, that is
needed by the Company to complete an initial business combination
from March 23, 2020 until the Extended Date. Alternatively, if the
Company does not have the funds necessary to make the Deposit
referred to above, Big Rock Partners Sponsor, LLC, the
Company’s sponsor (the “sponsor”), and BRAC
Lending Group LLC (the sponsor and BRAC Lending Group LLC being
collectively referred to herein as the “Insiders”), a
stockholder of the Company and an entity affiliated with
EarlyBirdCapital, Inc., the representative of the underwriters in
the IPO, have agreed that they and/or any of their respective
affiliates or designees will contribute to the Company as a loan
(each loan being referred to herein as a
“Contribution”) $___ for each public share that is not
converted in connection with the stockholder vote to approve the
Extension, for each monthly period, or portion thereof, that is
needed by the Company to complete an initial business combination
from March 23, 2020 until the Extended Date. Accordingly, if the
Company takes until the Extended Date to complete an initial
business combination, which would represent ____ monthly periods
through the Extended Date, the Company or Insiders would make
Deposits or Contributions of $_______ per month, or an aggregate of
$_______ (assuming no public shares were converted). Each Deposit
or Contribution will be placed in the trust account prior to the
beginning of such monthly period (or portion thereof), other than
the first Deposit or Contribution which will be made on the day of
the approval and implementation of the Extension Amendment.
Accordingly, if the Extension Amendment is approved and the
Extension is implemented and the Company takes the full time
through the Extended Date to complete an initial business
combination, the conversion amount per share at the meeting for
such business combination or the Company’s subsequent
liquidation will be approximately $_______ per share (without
taking into account any interest), in comparison to the current
conversion amount of approximately $_______ per share. The Company
and Insiders will not make any Deposit or Contribution unless the
Extension Amendment is approved and the Extension is completed. The
Contribution(s) will not bear any interest and will be repayable by
the Company to the Insiders or their affiliates upon consummation
of an initial business combination. The loans will be forgiven if
the Company is unable to consummate an initial business combination
except to the extent of any funds held outside of the trust
account. The Company or Insiders, as applicable, will have the sole
discretion whether to continue extending for additional monthly
periods until the Extended Date and if the Company or Insiders, as
applicable, determine not to continue extending for additional
monthly periods, the obligation to make additional Deposits or
Contributions will terminate. If this occurs, or if the
Company’s board of directors otherwise determines that the
Company will not be able to consummate an initial business
combination by the Extended Date and does not wish to seek an
additional extension, the Company would wind up the Company’s
affairs and redeem 100% of the outstanding public shares in
accordance with the same procedures set forth below that would be
applicable if the Extension Amendment proposal is not
approved.
If the
Extension Amendment proposal is not approved, in accordance with
our charter, we will (i) cease all operations except for the
purpose of winding up, (ii) as promptly as reasonably possible but
not more than ten business days thereafter, redeem 100% of the
outstanding public shares, at a per-share price, payable in cash,
equal to the aggregate amount then on deposit in the trust account,
including any interest but net of franchise and income taxes
payable, divided by the number of then outstanding public shares,
which redemption will completely extinguish public
stockholders’ rights as stockholders (including the right to
receive further liquidation distributions, if any), subject to
applicable law, and (iii) as promptly as reasonably possible
following such redemption, subject to the approval of our remaining
stockholders and our board of directors, dissolve and liquidate,
subject (in the case of (ii) and (iii) above) to our obligations
under Delaware law to provide for claims of creditors and the
requirements of other applicable law.
The
holders of shares of common stock issued prior to the IPO
(“insider shares”) have waived their rights to
participate in any liquidation distribution with respect to the
1,725,000 insider shares as well as the shares (“private
shares”) included in the 272,500 units (“private
placement units”) purchased by them simultaneously with the
IPO. EarlyBirdCapital, Inc. and its designees have also waived
their rights to participate in any liquidation distributions with
respect to the 138,000 shares issued to them in connection with the
IPO (“representative shares”). As a consequence of such
waivers, a liquidating distribution will be made only with respect
to the public shares. There will be no distribution from the trust
account with respect to the Company’s rights or warrants,
which will expire worthless in the event we wind up.
2
If the
Extension Amendment proposal is not approved and the Company
liquidates, A/Z Property Partners, LLC (“A/Z
Property”), an entity majority owned by Richard Ackerman, the
Company’s Chairman, President and Chief Executive Officer,
has agreed that it will be liable to us if and to the extent any
claims by a vendor for services rendered or products sold to us, or
a prospective target business with which we have discussed entering
into a transaction agreement, reduces the amount of funds in the
trust account to below $10.00 per public share, except as to any
claims by a third party who executed a waiver of any and all rights
to seek access to the trust account and except as to any claims
under our indemnity of the underwriters of our IPO against certain
liabilities, including liabilities under the Securities Act. In the
event that an executed waiver is deemed to be unenforceable against
a third party, A/Z Property will not be responsible for such third
party claims. Furthermore, it will not be liable to our public
stockholders and instead will only have liability to us. There is
no assurance, however, that it will be able to satisfy those
obligations to us. Based on the cash available to the Company
outside of its trust account for working capital and the
Company’s outstanding expenses owed to all creditors (both
those that have signed trust fund waivers and those that have not),
it is not anticipated that A/Z Property will have any
indemnification obligations. Accordingly, regardless of whether an
indemnification obligation exists, the per share liquidation price
for the public shares is anticipated to be $_______, plus interest.
Nevertheless, the Company cannot assure you that the per share
distribution from the trust account, if the Company liquidates,
will not be less than $_______, plus interest, due to unforeseen
claims of creditors.
Under
the Delaware General Corporation Law (the “DGCL”),
stockholders may be held liable for claims by third parties against
a corporation to the extent of distributions received by them in a
dissolution. If the corporation complies with certain procedures
set forth in Section 280 of the DGCL intended to ensure that it
makes reasonable provision for all claims against it, including a
60-day notice period during which any third-party claims can be
brought against the corporation, a 90-day period during which the
corporation may reject any claims brought, and an additional
150-day waiting period before any liquidating distributions are
made to stockholders, any liability of stockholders with respect to
a liquidating distribution is limited to the lesser of such
stockholder’s pro rata share of the claim or the amount
distributed to the stockholder, and any liability of the
stockholder would be barred after the third anniversary of the
dissolution. However, because the Company will not be complying
with Section 280 of the DGCL, Section 281(b) of the DGCL requires
us to adopt a plan, based on facts known to us at such time that
will provide for our payment of all existing and pending claims or
claims that may be potentially brought against us within the
subsequent ten years. Because we are a blank check company, rather
than an operating company, and our operations have been and will
continue to be limited to searching for prospective target
businesses to acquire, the only likely claims to arise would be
from our vendors (such as lawyers, investment bankers, etc.) or
prospective target businesses.
If the
Extension Amendment proposal is approved and the Extension is
implemented, the Company will (i) remove from the trust account an
amount (the “Withdrawal Amount”) equal to the pro rata
portion of funds available in the trust account relating to the
converted public shares and (ii) deliver to the holders of such
converted public shares their pro rata portion of the Withdrawal
Amount. The remainder of such funds, plus the Deposits or
Contributions, shall remain in the trust account and be available
for use by the Company to complete a business combination on or
before the Extended Date. Holders of public shares who do not
convert their public shares now will retain their conversion rights
and their ability to vote on a business combination through the
Extended Date if the Extension Amendment is approved and the
Extension is implemented.
If the
Extension Amendment proposal is approved and the Extension is
implemented, but the Company’s board of directors
subsequently determines that the Company will not be able to
consummate an initial business combination by the Extended Date
(and does not wish to seek an additional extension), approval of
the Early Termination Proposal will allow the Company’s board
of directors to follow the same procedures set forth above (as if
the Extension Amendment proposal was not approved) without needing
any further stockholder approval.
The
record date for the special meeting is March 3, 2020. Record
holders of shares of the Company’s common stock at the close
of business on the record date are entitled to vote or have their
votes cast at the special meeting. On the record date, there were
5,149,749 outstanding shares of Company common stock, including
3,014,249 outstanding public shares. The Company’s rights and
warrants do not have voting rights.
This
proxy statement contains important information about the special
meeting and the proposals. Please read it carefully and vote your
shares.
This
proxy statement is dated March __, 2020 and is first being mailed
to stockholders on or about that date.
3
QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING
These
Questions and Answers are only summaries of the matters they
discuss. They do not contain all of the information that may be
important to you. You should read carefully the entire document,
including the annexes to this proxy statement.
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Q. Why
am I receiving this proxy statement?
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A. The
Company is a blank check company formed in September 2017 for the
purpose of entering into a merger, share exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
other similar business combination with one or more businesses or
entities. In November 2017, the Company consummated its IPO from
which it derived gross proceeds of $69,000,000 (including
$9,000,000 from the exercise of the underwriters’
over-allotment option). Like most blank check companies, our
charter provides for the return of the IPO proceeds held in the
trust account to the holders of public shares if there is no
qualifying business combination(s) consummated on or before a
certain date (in our case, after the two extensions we were
permitted to obtain pursuant to our charter, May 22,
2019).
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The
Company was unable to complete a qualifying business combination by
such date and on May 21, 2019, the Company’s stockholders
approved an amendment to the charter to provide that it would have
until August 22, 2019. The Company then sought further amendments
to the charter to provide that it would have until March 23, 2020
to complete a business combination. In connection with these
amendments, the Company offered public stockholders the right to
have their public shares converted into a pro rata portion of the
trust account. Accordingly, as of the record date, the Company has
approximately $___ million of cash in the trust account.
The
board of directors believes that it is in the best interests of the
stockholders to continue the Company’s existence until the
Extended Date in order to allow the Company more time to complete
an initial business combination and is therefore holding this
special meeting.
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Q. What is
being voted on?
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A. You
are being asked to vote on
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●
a proposal to amend
the Company’s charter to extend the date by which the Company
has to consummate a business combination to the Extended Date;
and
●
a proposal to
approve the early winding up of the Company and redemption of 100%
of the outstanding public shares as herein if the Company’s
board of directors determines at any time prior to the Extended
Date that the Company will be unable to consummate an initial
business combination by the Extended date.
Approval of the
Extension Amendment is a condition to the implementation of the
Extension.
If the
Extension is implemented, the Company will remove the Withdrawal
Amount from the trust account, deliver to the holders of converted
public shares the pro rata portion of the Withdrawal Amount and
retain the remainder of the funds in the trust account, plus the
Deposits or Contributions, for the Company’s use in
connection with consummating a business combination on or before
the Extended Date.
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4
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We
will not proceed if we do not have at least $5,000,001 of net
tangible assets following approval of the Extension Amendment
proposal, after taking into account the Conversion.
If the
Extension Amendment proposal is approved and the Extension is
implemented, the removal of the Withdrawal Amount from the trust
account will reduce the Company’s net asset value. The
Company cannot predict the amount that will remain in the trust
account if the Extension Amendment proposal is approved and the
amount remaining in the trust account may be only a small fraction
of the approximately $___ million that was in the trust account as
of the record date. In such event, the Company may need to obtain
additional funds to complete its business combination and there can
be no assurance that such funds will be available on terms
acceptable to the parties or at all.
If the
Extension Amendment proposal is not approved, we will (i) cease all
operations except for the purpose of winding up, (ii) as promptly
as reasonably possible but not more than ten business days
thereafter, redeem 100% of the outstanding public shares, at a
per-share price, payable in cash, equal to the aggregate amount
then on deposit in the trust account, including any interest but
net of franchise and income taxes payable, divided by the number of
then outstanding public shares, which redemption will completely
extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions,
if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the
approval of our remaining stockholders and our board of directors,
dissolve and liquidate, subject (in the case of (ii) and (iii)
above) to our obligations under Delaware law to provide for claims
of creditors and the requirements of other applicable
law.
If the
Extension Amendment proposal is not approved, the Early Termination
Proposal will not be submitted to stockholders for a vote as we
will be dissolving and liquidating promptly after the special
meeting.
The
holders of the insider shares, private shares and representative
shares have waived their rights to participate in any liquidation
distribution with respect to such shares. There will be no
distribution from the trust account with respect to our rights and
warrants, which will expire worthless in the event we wind up. The
Company will pay the costs of liquidation from its remaining assets
outside of the trust account. If such funds are insufficient, A/Z
Property has agreed to advance it the funds necessary to complete
such liquidation (currently anticipated to be no more than
approximately $15,000) and has agreed not to seek repayment of such
expenses.
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Q. Why is the
Company proposing the Extension Amendment proposal?
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A. The
Company’s charter provided for the return of the IPO proceeds
held in the trust account to the holders of public shares if there
is no qualifying business combination(s) consummated on or before
May 22, 2019 (after giving effect to the two three-month extensions
the Company previously obtained pursuant to the
charter).
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The
Company was unable to complete a qualifying business combination by
such date and on May 21, 2019, the Company’s stockholders
approved an amendment to the charter to provide that it would have
until August 22, 2019. The Company was again unable to complete a
qualifying business combination by such date and on August 21,
2019, the Company’s stockholders approved an amendment to the
charter to provide tht it would have until November 22, 2019 to
complete a business combination. The Company was again unable to
complete a qualifying business combination by such date and on
November 21, 2019, the Company’s stockholders approved an
amendment to the charter to provide tht it would have until March
23, 2020 to complete a business combination
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5
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The Company will
not be able to consummate an initial business combination by March
23, 2020. Accordingly, the Company has determined to seek
stockholder approval to extend the date by which the Company has to
complete a business combination.
The
Company believes that given the Company’s expenditure of
time, effort and money on searching for potential business
combination opportunities, circumstances warrant providing public
stockholders an opportunity to consider a proposed business
combination. Accordingly, the Company’s board of directors is
proposing the Extension Amendment to extend the Company’s
corporate existence until the Extended Date.
You
are not being asked to vote on any proposed business combination at
this time. If the Extension is implemented and you do not elect to
convert your public shares now, you will retain the right to vote
on any proposed business combination when and if one is submitted
to stockholders and the right to convert your public shares into a
pro rata portion of the trust account in the event a proposed
business combination is approved and completed or the Company has
not consummated a business combination by the Extended
Date.
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Q. Why should
I vote for the Extension Amendment?
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A. The
Company’s board of directors believes stockholders will
benefit from the Company consummating an initial business
combination and is proposing the Extension Amendment to extend the
date by which the Company has to complete a business combination
until the Extended Date and to allow for the Conversion. The
Extension would give the Company additional time to complete a
business combination.
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Given
the Company’s expenditure of time, effort and money on
searching for potential business combination opportunities,
circumstances warrant providing public stockholders an opportunity
to consider a proposed business combination, inasmuch as the
Company is also affording stockholders who wish to convert their
public shares as originally contemplated, the opportunity to do so
as well. Accordingly, we believe that the Extension is consistent
with the spirit in which the Company offered its securities to the
public.
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Q. Why is the
Company proposing the Early Termination Proposal?
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A. The
purpose of the Early Termination Proposal is to obtain any
necessary stockholder approval to wind up the Company’s
affairs and redeem 100% of the outstanding public shares if the
Company’s board of directors determines in its sole
discretion at any time prior to the Extended Date that the Company
will be unable to consummate an initial business combination by the
Extended Date and does not wish to seek an additional
extension.
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Accordingly,
if the Extension Amendment proposal is approved and the Extension
is consummated, but the Company’s board of directors
subsequently determines that the Company will not be able to
consummate an initial business combination by the Extended Date
(and does not wish to seek an additional extension), the
Company’s board of directors will be able to determine in its
sole discretion whether to cease efforts to consummate an initial
business combination and to instead proceed to redeem 100% of the
outstanding public shares and liquidate and dissolve the
Company.
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6
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Q. How do the
Company’s executive officers, directors and affiliates intend
to vote their shares?
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A.
All of the Company’s directors, executive officers and their
respective affiliates, as well as BRAC Lending Group, are expected
to vote any common stock over which they have voting control
(including any public shares owned by them) in favor of the
Extension Amendment proposal and in favor of the Early Termination
Proposal.
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The
holders of the 1,725,000 insider shares, 272,500 private shares and
138,000 representative shares, including those held by the
Company’s sponsor, directors and executive officers together
with BRAC Lending Group and their respective affiliates, are not
entitled to convert any shares in connection with the Extension
Amendment. On the record date, these shares represented
approximately 41.5% of the Company’s issued and outstanding
common stock.
Neither
the Company’s sponsor, directors or executive officers nor
BRAC Lending Group or any of their respective affiliates
beneficially owned any public shares as of the record date.
However, they may choose to buy public shares in the open market
and/or through negotiated private purchases after the date of this
proxy statement. In the event that purchases do occur, the
purchasers may seek to purchase shares from stockholders who would
otherwise have voted against the Extension Amendment and/or elected
to convert their shares. Any public shares so purchased will be
voted in favor of the Extension Amendment proposal and the Early
Termination Proposal.
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Q. What vote
is required to adopt each proposal?
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A.
Extension Amendment. Approval of the Extension Amendment will
require the affirmative vote of holders of a majority of the issued
and outstanding shares of the Company’s common stock as of
the record date.
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Early
Termination Proposal. Approval of the Early Termination Proposal
will require the affirmative vote of the holders of a majority of
the issued and outstanding shares of the Company’s common
stock represented in person or by proxy at the meeting and entitled
to vote thereon.
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Q. What if I
don’t want to vote for the Extension Amendment proposal or
the Early Termination Proposal?
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A. If
you do not want the Extension Amendment to be approved, you must
abstain, not vote, or vote against the proposal. If the Extension
Amendment is approved, and the Extension is implemented, then the
Withdrawal Amount will be withdrawn from the trust account and paid
to the converting or non-voting holders.
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If
you do not want the Early Termination Proposal to be approved, you
must abstain, not vote or vote against the proposal.
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Q. Will you
seek any further extensions to liquidate the trust
account?
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A.
Other than the extension until the Extended Date as described in
this proxy statement, the Company does not currently anticipate
seeking any further extension to consummate a business combination,
although it may determine to do so in the
future.
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7
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Q. What
happens if the Extension Amendment is not approved?
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A.
If the Extension Amendment is not approved, we will (i) cease all
operations except for the purpose of winding up, (ii) as promptly
as reasonably possible but not more than ten business days
thereafter, redeem 100% of the outstanding public shares, at a
per-share price, payable in cash, equal to the aggregate amount
then on deposit in the trust account, including any interest but
net of franchise and income taxes payable, divided by the number of
then outstanding public shares, which redemption will completely
extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions,
if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the
approval of our remaining stockholders and our board of directors,
dissolve and liquidate, subject (in the case of (ii) and (iii)
above) to our obligations under Delaware law to provide for claims
of creditors and the requirements of other applicable
law.
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The
holders of the insider shares, private shares and representative
shares waived their rights to participate in any liquidation
distribution with respect to such shares. There will be no
distribution from the trust account with respect to our rights and
warrants which will expire worthless in the event we wind up. The
Company will pay the costs of liquidation from its remaining assets
outside of the trust account, which it believes are sufficient for
such purposes. If such funds are insufficient, A/Z Property has
agreed to advance the Company the funds necessary to complete such
liquidation (currently anticipated to be no more than approximately
$15,000) and has agreed not to seek repayment of such
expenses.
If the
Extension Amendment proposal is not approved, the Early Termination
Proposal will not be submitted to stockholders for a vote as we
will be dissolving and liquidating promptly after the special
meeting.
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Q. If the
Extension Amendment proposal is approved, what happens
next?
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A. If
the Extension Amendment is approved, the Company will continue to
attempt to consummate an initial business combination until the
Extended Date or the earlier date on which the Company’s
board of directors otherwise determines in its sole discretion that
it will not be able to consummate an initial business combination
by the Extended Date and does not wish to seek an additional
extension.
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The Company will
remain a reporting company under the Securities Exchange Act of
1934 and its units, common stock, rights and warrants will remain
publicly traded until the Extended Date.
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Q. Would I
still be able to exercise my conversion rights if I vote against
any subsequently proposed business combination?
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A. Unless
you elect to convert your shares, you will be able to vote on any
subsequently proposed business combination when it is submitted to
stockholders. If you disagree with the business combination, you
will retain your right to vote against it and/or convert your
public shares upon consummation of the business combination in
connection with the stockholder vote to approve such business
combination, subject to any limitations set forth in the
charter.
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8
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Q. How do I
change my vote?
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A. If
you have submitted a proxy to vote your shares and wish to change
your vote, you may do so by delivering a later-dated, signed proxy
card to the Company’s secretary prior to the date of the
special meeting or by voting in person at the special meeting.
Attendance at the special meeting alone will not change your vote.
You also may revoke your proxy by sending a notice of revocation to
the Company located at 2645 N. Federal Highway, Suite 230, Delray
Beach, Florida 33483, Attn: Corporate Secretary.
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Q. How are
votes counted?
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A. Votes
will be counted by the inspector of election appointed for the
meeting, who will separately count “FOR” and
“AGAINST” votes, abstentions and broker non-votes. The
Extension Amendment proposal must be approved by the affirmative
vote of a majority of the issued and outstanding shares of common
stock as of the record date. The Early Termination proposal must be
approved by the affirmative vote of a majority of the issued and
outstanding shares of the Company’s common stock represented
in person or by proxy at the meeting and entitled to vote
thereon.
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With
respect to the Extension Amendment proposal, abstentions and broker
non-votes will have the same effect as “AGAINST” votes.
Abstentions and broker non-votes will not have any effect on the
Early Termination proposal. If your shares are held by your broker
as your nominee (that is, in “street name”), you may
need to obtain a proxy form from the institution that holds your
shares and follow the instructions included on that form regarding
how to instruct your broker to vote your shares. If you do not give
instructions to your broker, your broker can vote your shares with
respect to “discretionary” items, but not with respect
to “non-discretionary” items. Discretionary items are
proposals considered routine under the rules of the New York Stock
Exchange applicable to member brokerage firms. These rules provide
that for routine matters your broker has the discretion to vote
shares held in street name in the absence of your voting
instructions. On non-discretionary items for which you do not give
your broker instructions, the shares will be treated as broker
non-votes.
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Q. If my
shares are held in “street name,” will my broker
automatically vote them for me?
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A. No.
Your broker can vote your shares only if you provide instructions
on how to vote. You should instruct your broker to vote your
shares. Your broker can tell you how to provide these
instructions.
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Q. What is a
quorum requirement?
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A. A
quorum of stockholders is necessary to hold a valid meeting. A
quorum will be present if at least a majority of the outstanding
shares of common stock on the record date are represented by
stockholders present at the meeting or by proxy.
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Your
shares will be counted towards the quorum only if you submit a
valid proxy (or one is submitted on your behalf by your broker,
bank or other nominee) or if you vote in person at the special
meeting. Abstentions and broker non-votes will be counted towards
the quorum requirement. If there is no quorum, a majority of the
votes present at the special meeting may adjourn the special
meeting to another date.
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9
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Q. Who can
vote at the special meeting?
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A. Only
holders of record of the Company’s common stock at the close
of business on March __, 2020 are entitled to have their vote
counted at the special meeting and any adjournments or
postponements thereof. On the record date, 5,149,749 shares of
common stock were outstanding and entitled to vote.
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Stockholder
of Record: Shares Registered in Your Name. If on the record date
your shares were registered directly in your name with the
Company’s transfer agent, Continental Stock Transfer &
Trust Company, then you are a stockholder of record. As a
stockholder of record, you may vote in person at the special
meeting or vote by proxy. Whether or not you plan to attend the
special meeting in person, we urge you to fill out and return the
enclosed proxy card to ensure your vote is counted.
Beneficial Owner:
Shares Registered in the Name of a Broker or Bank. If on the record
date your shares were held, not in your name, but rather in an
account at a brokerage firm, bank, dealer, or other similar
organization, then you are the beneficial owner of shares held in
“street name” and these proxy materials are being
forwarded to you by that organization. As a beneficial owner, you
have the right to direct your broker or other agent on how to vote
the shares in your account. You are also invited to attend the
special meeting. However, since you are not the stockholder of
record, you may not vote your shares in person at the special
meeting unless you request and obtain a valid proxy from your
broker or other agent.
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Q. Does the
board recommend voting for the approval of the Extension Amendment
and the Early Termination Proposal?
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A. Yes.
After careful consideration of the terms and conditions of these
proposals, the board of directors of the Company has determined
that the Extension Amendment proposal is fair to and in the best
interests of the Company and its stockholders. The board of
directors recommends that the Company’s stockholders vote
“FOR” the Extension Amendment proposal and the Early
Termination Proposal.
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Q. What
interests do the Company’s directors and officers have in the
approval of the proposals?
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A. The
Company’s directors, officers and their affiliates have
interests in the proposals that may be different from, or in
addition to, your interests as a stockholder. These interests
include, but are not limited to, ownership of insider shares and
private shares, rights and warrants that will become worthless if
the Extension Amendment is not approved, loans by them that will
not be repaid in the event of our winding up and the possibility of
future compensatory arrangements. See the section entitled
“The Special meeting—Interests of the Company’s
Directors and Officers.”
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Q. What if I
object to the Extension Amendment? Do I have appraisal
rights?
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A.
Company stockholders do not have appraisal rights in connection
with the Extension Amendment under the DGCL.
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Q. What
happens to the Company’s rights and warrants if the Extension
Amendment is not approved?
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A. If
the Extension Amendment is not approved by March 23, 2020, we will
(i) cease all operations except for the purpose of winding up, (ii)
as promptly as reasonably possible but not more than ten business
days thereafter, redeem 100% of the outstanding public shares, at a
per-share price, payable in cash, equal to the aggregate amount
then on deposit in the trust account, including any interest but
net of franchise and income taxes payable, divided by the number of
then outstanding public shares, which redemption will completely
extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions,
if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the
approval of our remaining stockholders and our board of directors,
dissolve and liquidate, subject (in the case of (ii) and (iii)
above) to our obligations under Delaware law to provide for claims
of creditors and the requirements of other applicable law. In such
event, your rights and warrants will become worthless.
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10
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Q. What
happens to the Company’s rights and warrants if the Extension
Amendment
proposal and Early
Termination Proposal is approved?
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A. If
the Extension Amendment proposal and Early Termination Proposal are
approved, the Company will continue to attempt to consummate a
business combination until the Extended Date or an earlier date if
the Company’s board of directors determines in its sole
discretion that it will not be able to consummate an initial
business combination by the Extended Date and does not wish to seek
an additional extension. The rights and warrants will remain
outstanding in accordance with their terms during any extension
period. The rights will still automatically convert into one-tenth
of a share of common stock on the consummation of any business
combination. The warrants will still become exercisable commencing
on the consummation of any business combination.
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Q. What do I
need to do now?
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A. The
Company urges you to read carefully and consider the information
contained in this proxy statement, including the annexes, and to
consider how the proposals will affect you as a Company
stockholder. You should then vote as soon as possible in accordance
with the instructions provided in this proxy statement and on the
enclosed proxy card.
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Q. How do I
vote?
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A. If
you are a holder of record of Company common stock, you may vote in
person at the special meeting or by submitting a proxy for the
special meeting. Whether or not you plan to attend the special
meeting in person, we urge you to vote by proxy to ensure your vote
is counted. You may submit your proxy by completing, signing,
dating and returning the enclosed proxy card in the accompanying
pre-addressed postage paid envelope. You may still attend the
special meeting and vote in person if you have already voted by
proxy.
If your
shares of Company common stock are held in “street
name” by a broker or other agent, you have the right to
direct your broker or other agent on how to vote the shares in your
account. You are also invited to attend the special meeting.
However, since you are not the stockholder of record, you may not
vote your shares in person at the special meeting unless you
request and obtain a valid proxy from your broker or other
agent.
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Q. How do I
convert my shares of Company common stock?
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A. If
the Extension is implemented, each public stockholder may seek to
convert his public shares for a pro rata portion of the funds
available in the trust account, less any franchise and income taxes
owed on such funds but not yet paid. Holders of public shares do
not need to vote on the Extension Amendment proposal or be a holder
of record on the record date to exercise conversion
rights.
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To
demand conversion, you must either physically tender your stock
certificates to Continental Stock Transfer & Trust Company, the
Company’s transfer agent, at Continental Stock Transfer &
Trust Company, 1 State Street, New York, New York 10004, Attn: Mark
Zimkind, mzimkind@continentalstock.com, prior to the vote for the
Extension Amendment or deliver your shares to the transfer agent
electronically using The Depository Trust Company’s DWAC
(Deposit/Withdrawal At Custodian) System, which election would
likely be determined based on the manner in which you hold your
shares. You will only be entitled to receive cash in connection
with a conversion of these shares if you continue to hold them
until the effective date of the Extension.
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11
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Q. What should
I do if I receive more
than
one set of voting materials?
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A. You
may receive more than one set of voting materials, including
multiple copies of this proxy statement and multiple proxy cards or
voting instruction cards, if your shares are registered in more
than one name or are registered in different accounts. For example,
if you hold your shares in more than one brokerage account, you
will receive a separate voting instruction card for each brokerage
account in which you hold shares. Please complete, sign, date and
return each proxy card and voting instruction card that you receive
in order to cast a vote with respect to all of your Company
shares.
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Q. Who is
paying for this proxy solicitation?
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A. The
Company will pay for the entire cost of soliciting proxies. In
addition to these mailed proxy materials, our directors and
officers may also solicit proxies in person, by telephone or by
other means of communication. These parties will not be paid any
additional compensation for soliciting proxies. We may also
reimburse brokerage firms, banks and other agents for the cost of
forwarding proxy materials to beneficial owners.
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Q. Who can
help answer my questions?
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A. If
you have questions about the proposals or if you need additional
copies of the proxy statement or the enclosed proxy card you should
contact:
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Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway, Suite 230
Delray
Beach, Florida 33483
Attn:
Richard Ackerman
Telephone: (310)
734-2300
or
Advantage Proxy,
Inc.
P.O.
Box 13581
Des
Moines, WA 98198
Toll
Free Telephone: (877) 870-8565
Main
Telephone: (206) 870-8565
E-mail:
ksmith@advantageproxy.com
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12
FORWARD-LOOKING STATEMENTS
We
believe that some of the information in this proxy statement
constitutes forward-looking statements. You can identify these
statements by forward-looking words such as “may,”
“expect,” “anticipate,”
“contemplate,” “believe,”
“estimate,” “intends,” and
“continue” or similar words. You should read statements
that contain these words carefully because they:
●
discuss future
expectations;
●
contain projections
of future results of operations or financial condition;
or
●
state other
“forward-looking” information.
We
believe it is important to communicate our expectations to our
stockholders. However, there may be events in the future that we
are not able to predict accurately or over which we have no
control. The cautionary language discussed in this proxy statement
provide examples of risks, uncertainties and events that may cause
actual results to differ materially from the expectations described
by us in such forward-looking statements, including, among other
things, claims by third parties against the trust account,
unanticipated delays in the distribution of the funds from the
trust account and the Company’s ability to finance and
consummate a business combination following the distribution of
funds from the trust account. You are cautioned not to place undue
reliance on these forward-looking statements, which speak only as
of the date of this proxy statement.
All
forward-looking statements included herein attributable to the
Company or any person acting on the Company’s behalf are
expressly qualified in their entirety by the cautionary statements
contained or referred to in this section. Except to the extent
required by applicable laws and regulations, the Company undertakes
no obligation to update these forward-looking statements to reflect
events or circumstances after the date of this proxy statement or
to reflect the occurrence of unanticipated events.
13
BACKGROUND
The Company
We are
a Delaware company incorporated on September 18, 2017 for the
purpose of entering into a merger, share exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
other similar business combination with one or more businesses or
entities.
In
November 2017, we consummated our IPO of 6,900,000 units, including
900,000 units that were subject to the underwriters’
over-allotment option, with each unit consisting of one share of
common stock, one right entitling the holder to receive one-tenth
(1/10) of one share of common stock upon the consummation of an
initial business combination and one-half of one redeemable
warrant, with each whole warrant to purchase one share of common
stock. The units were sold at an offering price of $10.00 per unit,
generating gross proceeds of $69,000,000.
Prior
to our IPO, we issued an aggregate of 1,725,000 insider shares for
an aggregate purchase price of $25,000.
Simultaneous with
the consummation of the IPO, we consummated the private placement
of an aggregate of 272,500 private placement units at a price of
$10.00 per private placement unit, generating total proceeds of
$2,725,000.
The
prospectus for our IPO and our charter originally provided that we
had only until May 22, 2019 to complete a business combination
(after giving effect to the two three-month extensions we
previously obtained pursuant to the charter). We were not able to
consummate an initial business combination by such date and on May
21, 2019, our stockholders approved an amendment to the charter to
provide that we would have until August 22, 2019. We were again not
able to consummate an initial business combination by such date and
on August 21, 2019, our stockholders approved an amendment to the
charter to provide that we would have until November 22, 2019 to
complete a business combination. We were again unable to complete a
qualifying business combination by such date and on November 21,
2019, our stockholders approved an amendment to the charter to
provide tht we would have until March 23, 2020 to complete a
business combination. In connection with these amendments, the
Company offered public stockholders the right to have their public
shares converted into a pro rata portion of the trust account.
Accordingly, as of the record date, the Company has approximately
$___ million of cash in the trust account.
The
mailing address of the Company’s principal executive office
is 2645 N. Federal Highway, Suite 230, Delray Beach, Florida 33483,
and its telephone number is (310) 734-2300.
THE EXTENSION AMENDMENT PROPOSAL AND EARLY TERMINATION
PROPOSAL
The Extension Amendment Proposal
The
Company is proposing to amend its charter to extend the date by
which the Company has to consummate a business combination to the
Extended Date. The Extension Amendment is essential to the overall
implementation of the board of directors’ plan to allow the
Company more time to complete an initial business combination.
Approval of the Extension Amendment is a condition to the
implementation of the Extension. A copy of the proposed amendment
to the charter of the Company is attached to this proxy statement
as Annex A.
All
holders of the Company’s public shares, whether they vote for
or against the Extension Amendment or do not vote at all, will be
permitted to convert all or a portion of their public shares into
their pro rata portion of the trust account, provided that the
Extension is implemented. Holders of public shares do not need to
be a holder of record on the record date in order to exercise
conversion rights. We will not proceed with the Extension if we do
not have at least $5,000,001 of net tangible assets following
approval of the Extension Amendment proposal, after taking into
account the Conversion.
The
per-share pro rata portion of the trust account on the record date
(which is expected to be the same approximate amount two business
days prior to the meeting) was approximately $_______. The closing
price of the Company’s common stock on the record date was
$_______. Accordingly, if the market price were to remain the same
until the date of the meeting, exercising conversion rights would
result in a public stockholder receiving approximately $___ more
than if he sold his stock in the open market. The Company cannot
assure stockholders that they will be able to sell their shares of
Company common stock in the open market, even if the market price
per share is higher than the conversion price stated above, as
there may not be sufficient liquidity in its securities when such
stockholders wish to sell their shares.
14
The
Company has agreed that if the Extension Amendment proposal is
approved and the Extension is implemented, it will make the Deposit
of $___ for each public share that is not converted in connection
with the stockholder vote to approve the Extension, for each
monthly period, or portion thereof, that is needed by the Company
to complete an initial business combination from March 23, 2020
until the Extended Date. Alternatively, if the Company does not
have the funds necessary to make the Deposit referred to above, the
Insiders have agreed that they and/or any of their respective
affiliates or designees will make the Contribution of $___ for each
public share that is not converted in connection with the
stockholder vote to approve the Extension, for each monthly period,
or portion thereof, that is needed by the Company to complete an
initial business combination from March 23, 2020 until the Extended
Date. Accordingly, if the Company takes until the Extended Date to
complete an initial business combination, which would represent
______ monthly periods through the Extended Date, the Company or
Insiders would make Deposits or Contributions of $_______ per
month, or an aggregate of $_______ (assuming no public shares were
converted). Each Deposit or Contribution will be placed in the
trust account prior to the beginning of such monthly period (or
portion thereof), other than the first Deposit or Contribution
which will be made on the day of the approval and implementation of
the Extension Amendment. Accordingly, if the Extension Amendment is
approved and the Extension is implemented and the Company takes the
full time through the Extended Date to complete an initial business
combination, the conversion amount per share at the meeting for
such business combination or the Company’s subsequent
liquidation will be approximately $_______ per share (without
taking into account any interest), in comparison to the current
conversion amount of approximately $_______ per share. The Company
and Insiders will not make any Deposit or Contribution unless the
Extension Amendment is approved and the Extension is implemented.
The Contributions will not bear any interest and will be repayable
by the Company to the Insiders or their affiliates upon
consummation of an initial business combination. The loans will be
forgiven if the Company is unable to consummate an initial business
combination except to the extent of any funds held outside of the
trust account. The Company or Insiders, as applicable, will have
the sole discretion whether to continue extending for additional
monthly periods until the Extended Date and if the Company or
Insiders, as applicable, determine not to continue extending for
additional monthly periods, their obligation to make additional
Deposits or Contributions will terminate. If this occurs, or if the
Company’s board of directors otherwise determines that the
Company will not be able to consummate an initial business
combination by the Extended Date and does not wish to seek an
additional extension, the Company would wind up the Company’s
affairs and redeem 100% of the outstanding public shares in
accordance with the same procedures set forth below that would be
applicable if the Extension Amendment proposal is not
approved.
The Early Termination Proposal
The
Company is proposing the Early Termination Proposal to obtain any
necessary stockholder approval to wind up the Company’s
affairs and redeem 100% of the outstanding public shares if the
Company’s board of directors determines in its sole
discretion at any time prior to the Extended Date that the Company
will be unable to consummate an initial business combination by the
Extended Date and does not wish to seek an additional extension.
Accordingly, if the Extension Amendment proposal is approved and
the Extension is consummated, but the Company’s board of
directors subsequently determines that the Company will not be able
to consummate an initial business combination by the Extended Date
(and does not wish to seek an additional extension), the
Company’s board of directors will be able to determine in its
sole discretion whether to cease efforts to consummate an initial
business combination and to instead proceed to redeem 100% of the
outstanding public shares and liquidate and dissolve the
Company.
Reasons for the Proposals
The
Company’s IPO prospectus and charter provided that the
Company had until May 22, 2019 to complete a business combination
(after giving effect to the two three-month extensions the Company
previously obtained pursuant to the charter). On May 21, 2019,
August 21, 2019 and November 21, 2019, the Company’s
stockholders approved amendments to the charter to provide that it
would have until August 22, 2019, November 22, 2019 and March 23,
2020, respectively, to complete a business
combination.
The
Company believes that given the Company’s expenditure of
time, effort and money on searching for potential business
combination opportunities, circumstances warrant providing public
stockholders an opportunity to consider a proposed business
combination. Accordingly, since the Company will not be able to
complete an initial business combination by March 23, 2020, the
Company has determined to seek stockholder approval to extend the
time for closing a business combination beyond March 23, 2020 to
the Extended Date. The Company and its officers and directors
agreed that it would not seek to amend the Company’s charter
to allow for a longer period of time to complete a business
combination unless it provided holders of public shares with the
right to seek conversion of their public shares in connection
therewith.
15
The
purpose of the Early Termination Proposal is to obtain any
necessary stockholder approval to wind up the Company’s
affairs and redeem 100% of the outstanding public shares if the
Company’s board of directors determines in its sole
discretion at any time prior to the Extended Date that the Company
will be unable to consummate an initial business combination by the
Extended date and does not wish to seek an additional
extension.
If the Extension Amendment Proposal Is Not Approved
If the
Extension Amendment is not approved, we will (i) cease all
operations except for the purpose of winding up, (ii) as promptly
as reasonably possible but not more than ten business days
thereafter, redeem 100% of the outstanding public shares, at a
per-share price, payable in cash, equal to the aggregate amount
then on deposit in the trust account, including any interest but
net of franchise and income taxes payable, divided by the number of
then outstanding public shares, which redemption will completely
extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions,
if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the
approval of our remaining stockholders and our board of directors,
dissolve and liquidate, subject (in the case of (ii) and (iii)
above) to our obligations under Delaware law to provide for claims
of creditors and the requirements of other applicable
law.
If the
Extension Amendment is not approved, the Company or Insiders, as
applicable, will not make the Deposit or Contribution, as
applicable, and the Early Termination Proposal will not be
presented to stockholders.
The
holders of the insider shares, private shares and representative
shares have waived their rights to participate in any liquidation
distribution with respect to such shares. There will be no
distribution from the trust account with respect to the
Company’s rights and warrants which will expire worthless in
the event the Extension Amendment is not approved. The Company will
pay the costs of liquidation from its remaining assets outside of
the trust account. If such funds are insufficient, A/Z Property has
agreed to advance it the funds necessary to complete such
liquidation (currently anticipated to be no more than approximately
$15,000) and has agreed not to seek repayment of such
expenses.
If the Extension Amendment proposal and Early Termination Proposal
are Approved
If the
Extension Amendment proposal and Early Termination Proposal are
approved, the Company will file an amendment to the charter with
the Secretary of State of the State of Delaware in the form of
Annex A hereto to extend the time it has to complete a business
combination until the Extended Date. The Company will then continue
to attempt to consummate a business combination until the Extended
Date or until the Company’s board of directors determines in
its sole discretion that it will not be able to consummate an
initial business combination by the Extended Date as described
below and does not wish to seek an additional extension. The
Company will remain a reporting company under the Securities
Exchange Act of 1934 and its units, common stock, rights and
warrants will remain publicly traded during the extension period.
The rights and warrants will continue in existence in accordance
with their terms.
You
are not being asked to vote on any business combination at this
time. If the Extension is implemented and you do not elect to
convert your public shares now, you will retain the right to vote
on any proposed business combination when and if it is submitted to
stockholders and the right to convert your public shares into a pro
rata portion of the trust account in the event the proposed
business combination is approved and completed or if the Company
has not consummated a business combination by the Extended
Date.
If the
Extension Amendment proposal is approved, and the Extension is
implemented, the removal of the Withdrawal Amount from the trust
account will reduce the Company’s net asset value. The
Company cannot predict the amount that will remain in the trust
account if the Extension Amendment proposal is approved, and the
amount remaining in the trust account may be only a small fraction
of the approximately $___ million that was in the trust account as
of the record date. However, we will not proceed if we do not have
at least $5,000,001 of net tangible assets following approval of
the Extension Amendment proposal (after taking into account the
conversion of public shares).
16
Conversion Rights
If the
Extension Amendment proposal is approved, and the Extension is
implemented, each public stockholder may seek to convert his public
shares for a pro rata portion of the funds available in the trust
account, less any franchise and income taxes owed on such funds but
not yet paid, calculated as of two business days prior to the
meeting. Holders of public shares do not need to vote on the
Extension Amendment proposal or be a holder of record on the record
date to exercise conversion rights.
TO DEMAND CONVERSION, YOU MUST EITHER
PHYSICALLY TENDER YOUR STOCK CERTIFICATES TO CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, THE COMPANY’S TRANSFER AGENT,
AT CONTINENTAL STOCK TRANSFER & TRUST COMPANY, 1 STATE STREET,
NEW YORK, NEW YORK 10004, ATTN: MARK ZIMKIND,
MZIMKIND@CONTINENTALSTOCK.COM, PRIOR TO THE VOTE FOR THE EXTENSION
AMENDMENT OR DELIVER YOUR SHARES TO THE TRANSFER AGENT
ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC
(DEPOSIT/WITHDRAWAL AT CUSTODIAN) SYSTEM. You will only be
entitled to receive cash in connection with a conversion of these
shares if you continue to hold them until the effective date of the
Extension Amendment and Conversion. The requirement for physical or
electronic delivery prior to the vote at the special meeting
ensures that a converting holder’s election is irrevocable
once the Extension Amendment is approved. In furtherance of such
irrevocable election, stockholders making the election will not be
able to tender their shares after the vote at the special
meeting.
The
electronic delivery process through the DWAC system can be
accomplished by the stockholder, whether or not it is a record
holder or its shares are held in “street name,” by
contacting the transfer agent or its broker and requesting delivery
of its shares through the DWAC system. Delivering shares physically
may take significantly longer. In order to obtain a physical stock
certificate, a stockholder’s broker and/or clearing broker,
DTC, and the Company’s transfer agent will need to act
together to facilitate this request. There is a nominal cost
associated with the above-referenced tendering process and the act
of certificating the shares or delivering them through the DWAC
system. The transfer agent will typically charge the tendering
broker a nominal amount and the broker would determine whether or
not to pass this cost on to the redeeming holder. It is the
Company’s understanding that stockholders should generally
allot at least two weeks to obtain physical certificates from the
transfer agent. The Company does not have any control over this
process or over the brokers or DTC, and it may take longer than two
weeks to obtain a physical stock certificate. Such stockholders
will have less time to make their investment decision than those
stockholders that deliver their shares through the DWAC system.
Stockholders who request physical stock certificates and wish to
convert may be unable to meet the deadline for tendering their
shares before exercising their conversion rights and thus will be
unable to convert their shares.
Certificates that
have not been tendered in accordance with these procedures prior to
the vote for the Extension Amendment will not be converted into a
pro rata portion of the funds held in the trust account. In the
event that a public stockholder tenders its shares and decides
prior to the vote at the special meeting that it does not want to
convert its shares, the stockholder may withdraw the tender. If you
delivered your shares for conversion to our transfer agent and
decide prior to the vote at the special meeting not to convert your
shares, you may request that our transfer agent return the shares
(physically or electronically). You may make such request by
contacting our transfer agent at address listed above. In the event
that a public stockholder tenders shares and the Extension
Amendment is not approved or is abandoned, these shares will be
redeemed in accordance with the terms of the charter promptly
following the meeting, as described elsewhere herein. The Company
anticipates that a public stockholder who tenders shares for
conversion in connection with the vote to approve the Extension
Amendment would receive payment of the conversion price for such
shares soon after the completion of the Extension Amendment. The
transfer agent will hold the certificates of public stockholders
that make the election until such shares are converted for cash or
redeemed in connection with our winding up.
If
properly demanded, the Company will convert each public share for a
pro rata portion of the funds available in the trust account, less
any franchise and income taxes owed on such funds but not yet paid,
calculated as of two business days prior to the meeting. As of the
record date, this would amount to approximately $_______ per share
(which is expected to be the same approximate amount as of two
business days prior to the meeting). The closing price of the
Company’s common stock on the record date was $_______.
Accordingly, if the market price were to remain the same until the
date of the meeting, exercising conversion rights would result in a
public stockholder receiving approximately $___ more than if he
sold his stock in the open market. Additionally, if the Extension
Amendment is approved and the Company or Insiders make the Deposit
or Contribution, the conversion price for any subsequent business
combination or liquidation will be approximately $_______, or
$_______ per share more than the current conversion
price.
17
If you
exercise your conversion rights, you will be exchanging your shares
of the Company’s common stock for cash and will no longer own
the shares. You will be entitled to receive cash for these shares
only if you properly demand conversion by tendering your stock
certificate(s) to the Company’s transfer agent prior to the
vote for the Extension Amendment. If the Extension Amendment is not
approved or if it is abandoned, these shares will be redeemed in
accordance with the terms of the charter promptly following the
meeting as described elsewhere herein.
The Special meeting
Date, Time and Place. The special
meeting of the Company’s stockholders will be held at 10:00
a.m., EST on March 23, 2020, at the offices of the Company’s
special counsel, Graubard Miller, at 405 Lexington Avenue, 11th
Floor, New York, New York 10174.
Voting Power; Record Date. You will be
entitled to vote or direct votes to be cast at the special meeting,
if you owned Company common stock at the close of business on March
3, 2020, the record date for the special meeting. At the close of
business on the record date, there were 5,149,749 outstanding
shares of Company common stock each of which entitles its holder to
cast one vote per proposal. Company rights and warrants do not
carry voting rights.
Proxies; Board Solicitation. Your proxy
is being solicited by the Company’s board of directors on the
proposals being presented to stockholders at the special meeting.
No recommendation is being made as to whether you should elect to
convert your shares. Proxies may be solicited in person or by
telephone. If you grant a proxy, you may still revoke your proxy
and vote your shares in person at the special meeting. Advantage
Proxy, Inc. is assisting the Company in the proxy solicitation
process for this special meeting. The Company will pay that firm a
$5,500 fee plus disbursements for such services at the closing of
any proposed business combination.
Required Vote
The
affirmative vote by holders of a majority of the Company’s
issued and outstanding common stock is required to approve the
Extension Amendment. Abstentions and broker non-votes will have the
same effect as “AGAINST” votes with respect to the
Extension Amendment. All of the Company’s directors,
executive officers and their affiliates are expected to vote any
common stock owned by them in favor of the Extension
Amendment.
In
addition, the Company’s directors, executive officers,
EarlyBirdCapital and their respective affiliates may choose to buy
public shares in the open market and/or through negotiated private
purchases. In the event that purchases do occur, the purchasers may
seek to purchase shares from stockholders who would otherwise have
voted against the Extension Amendment proposal and elected to
convert their shares into a portion of the trust account. Any
public shares purchased by affiliates will be voted in favor of the
Extension Amendment proposal and the Early Termination
Proposal.
The
affirmative vote of a majority of the Company’s issued and
outstanding shares of the Company’s common stock represented
in person or by proxy at the meeting and entitled to vote thereon,
is required to approve the Early Termination Proposal. Abstentions
and broker non-votes will not have any effect on this
proposal.
Interests of the Company’s Directors and
Officers
When
you consider the recommendation of the Company’s board of
directors, you should keep in mind that the Company’s
executive officers and members of the Company’s board of
directors have interests that may be different from, or in addition
to, your interests as a stockholder. These interests include, among
other things:
●
If the Extension
Amendment is not approved and we do not consummate a business
combination by March 23, 2020, the 225,000 insider shares owned by
the sponsor which were acquired for approximately $0.01 per share
will be worthless (as the holders have waived liquidation rights
with respect to such shares), as will the 272,500 private placement
units that were acquired simultaneously with the IPO by the sponsor
for an aggregate purchase price of $2,725,000. Such common stock
and units had an aggregate market value of approximately $______
based on the last sale price of $_______ and $____ of the common
stock and units, respectively, on Nasdaq on March 3,
2020;
18
●
In connection with
the IPO, A/Z Partners has agreed that if the Extension Amendment is
not approved and the Company liquidates, it will be liable under
certain circumstances to ensure that the proceeds in the trust
account are not reduced by certain claims of target businesses or
vendors or other entities that are owed money by the Company for
services rendered, contracted for or products sold to the
Company;
●
All rights
specified in the Company’s charter relating to the right of
officers and directors to be indemnified by the Company, and of the
Company’s officers and directors to be exculpated from
monetary liability with respect to prior acts or omissions, will
continue after a business combination. If the Extension Amendment
is not approved and the Company liquidates, the Company will not be
able to perform its obligations to its officers and directors under
those provisions;
●
The Company’s
officers and directors and their affiliates have loaned the Company
an aggregate of $______ as of the record date. If the Extension
Amendment is not approved and a business combination is not
consummated, these loans will not be repaid
●
If Big Rock
Partners is unable to complete a business combination within the
required time period, it will pay the costs of any subsequent
liquidation from its remaining assets outside of the trust account.
If such funds are insufficient, A/Z Partners has agreed to pay the
funds necessary to complete such liquidation (currently anticipated
to be no more than approximately $15,000) and has agreed not to
seek repayment for such expenses.
●
The Company’s
officers, directors and their affiliates are entitled to
reimbursement of out-of-pocket expenses incurred by them in
connection with certain activities on the Company’s behalf,
such as identifying and investigating possible business targets and
business combinations. If the Extension Amendment is not approved
and a business combination is not consummated, these out-of-pocket
expenses will not be repaid.
Additionally,
if the Extension Amendment is approved and the Company consummates
an initial business combination, the officers and directors may
have additional interests that would be described in the proxy
statement for such transaction.
Board Recommendation
THE
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE
“FOR” THE EXTENSION AMENDMENT PROPOSAL AND EARLY
TERMINATION PROPOSAL. THE BOARD OF DIRECTORS EXPRESSES NO OPINION
AS TO WHETHER YOU SHOULD CONVERT YOUR PUBLIC SHARES.
19
BENEFICIAL OWNERSHIP OF SECURITIES
The
following table sets forth certain information regarding the
beneficial ownership of the Company’s common stock as of the
record date by:
●
each person known
by us to be the beneficial owner of more than 5% of our outstanding
shares of common stock;
●
each of our
officers, directors and senior advisors; and
●
all our officers
and directors as a group.
As of
the record date, there were a total of 5,149,749 shares of common
stock outstanding. Unless otherwise indicated, all persons named in
the table have sole voting and investment power with respect to all
shares of common stock beneficially owned by them. The following
table does not reflect beneficial ownership of the Company’s
rights or warrants as these rights and warrants are not convertible
or exercisable, respectively, within 60 days of the date of this
proxy statement.
|
|
Amount and Nature
of Beneficial Ownership
|
Approximate
Percentage of Outstanding Shares of Common Stock(2)
|
|
Name
and Address of Beneficial Owner(1)
|
|
|
|
BRAC Lending Group
LLC(3)
|
1,432,000
|
27.8%
|
|
Polar Asset
Management Partners Inc.(4)
|
517,500
|
10.0%
|
|
Big Rock Partners
Sponsor, LLC
|
497,500(5)(6)
|
8.2%
|
|
Richard
Ackerman
|
497,500(5)(6)
|
8.2%
|
|
HGC Investment
Management Inc.(7)
|
480,678
|
9.3%
|
|
Alec N.
Litowitz(8)
|
465,000
|
9.0%
|
|
OxFORD Asset
Management LLP(9)
|
431,602
|
8.9%
|
|
K2 Principal Fund,
L.P.(10)
|
433,091
|
8.8%
|
|
Bennett
Kim
|
-
|
-
|
|
Richard
Birdoff
|
-
|
-
|
|
Michael
Fong(11)
|
-
|
-
|
|
Stuart
Koenig(11)
|
-
|
-
|
|
Albert G.
Rex(11)
|
-
|
-
|
|
Troy T.
Taylor(11)
|
-
|
-
|
|
All directors and
executive officers as a group (7 individuals)
|
497,500(5)
|
8.2%
|
__________
(1)
Unless otherwise
indicated, the business address of each of the individuals is 2645
N. Federal Highway, Suite 230, Delray Beach, Florida
33483.
(2)
Based on 5,149,749
shares of the Company’s Common Stock outstanding as of the
record date.
(3)
Information was
obtained from a Schedule 13D filed on November 26, 2018 with the
SEC. Each of David M. Nussbaum and Steven Levine is a managing
member of BRAC Lending Group LLC.
(4)
Information was
obtained from a Schedule 13G/A filed on February 12, 2019 with the
SEC. Polar Asset Management Partners Inc. serves as the investment
advisor to Polar Multi-Strategy MasterFund ("PMSMF") and certain
managed accounts (together with PMSMF, the “Polar
Vehicles”), with respect to the shares directly held by the
Polar Vehicles. The address for Polar Asset Management Partners
Inc. is 401 Bay Street, Suite 1900, PO Box 19, Toronto, Ontario M5H
2Y4, Canada.
20
(5)
Richard Ackerman is
the Company's President, Chairman and Chief Executive Officer and
the managing member of Big Rock Partners Sponsor, LLC and has the
sole voting and dispositive power of the securities held by the
sponsor. Accordingly. Mr. Ackerman may be deemed to have beneficial
ownership of such shares.
(6)
Represents shares
held by our sponsor, of which Mr. Ackerman is the managing member
and has sole voting and investment power with respect to such
shares. Messrs. Fong, Koenig, Rex and Taylor hold economic
interests in Big Rock Partners Sponsor, LLC and pecuniary interests
in the securities held by Big Rock Partners Sponsor, LLC. Each of
Messrs. Fong, Koenig, Rex and Taylor disclaims beneficial ownership
of such securities, except to the extent of his or her pecuniary
interests.
(7)
Information was
obtained from a Schedule 13G filed on February 13, 2019 with the
SEC. HGC Investment Management Inc. (“HGC”) serves as
the investment manager to HGC Arbitrage Fund LP (the
“Fund”) with respect to the shares held by HGC on
behalf of the Fund. The address of the business office of HGC is
366 Adelaide, Suite 601, Toronto, Ontario M5V 1R9,
Canada.
(8)
Information was
obtained from a Schedule 13G filed on February 13, 2020 with the
SEC. Represents shares held by Magnetar Constellation Master Fund,
Ltd (“Constellation Master Fund”), Magnetar
Constellation Fund II, Ltd (“Constellation Fund”),
Magnetar Xing He Master Fund Ltd (“Xing He Master
Fund”), Magnetar SC Fund Ltd (“SC Fund”),
Magnetar Capital Master Fund Ltd, (“Master Fund”) and
Magnetar Structured Credit Fund, LP (“Structured Credit
Fund”), all Cayman Islands exempted companies except for
Structured Credit Fund which is a Delaware limited partnership ,
collectively (the “Magnetar Funds”). Magnetar Financial
serves as the investment adviser to the Magnetar Funds, and as
such, Magnetar Financial exercises voting and investment power over
the common Shares held for the Magnetar Funds’ accounts.
Magnetar Capital Partners serves as the sole member and parent
holding company of Magnetar Financial. Supernova Management is the
general partner of Magnetar Capital Partners. The manager of
Supernova Management is Mr. Litowitz.The address of the business
office of Mr. Litowitz is 1603 Orrington Avenue, 13th Floor,
Evanston, Illinois 60201.
(9)
Information was
obtained from a Schedule 13G filed on February 13, 2020 with the
SEC. Relates to shares held for the account of OxAM Quant Fund
Limited, a Cayman Islands exempted company (“OxAM”).
OxFORD Asset Management serves as investment adviser to OxAM. In
such capacity, OxFORD may be deemed to exercise the voting and
dispositive power over the Shares held for the account of the
OxAM.. The address of the business office of OxFORD Asset
Management is OxAM House, 6 George Street, Oxford, United Kingdom,
OX1 2BW.
(10)
Information was
obtained from a Schedule 13G filed on February 13, 2020 with the
SEC. Relates to shares held of record (and may be deemed to be
beneficially owned) by The K2 Principal Fund, L.P.. The address of
the business office of The K2 Principal Fund is 2 Bloor St West, Suite 801, Toronto,
Ontario, M4W 3E2.
(11)
Does not include
shares held by Big Rock Partners Sponsor, LLC. This individual is a
member of Big Rock Partners Sponsor, LLC as described in footnote
6.
All of
the insider shares have been placed in escrow with Continental
Stock Transfer & Trust Company, as escrow agent, until (1) with
respect to 50% of the insider shares, the earlier of one year after
the date of the consummation of our initial business combination
and the date on which the closing price of our shares of common
stock equals or exceeds $12.50 per share (as adjusted for share
splits, share dividends, reorganizations and recapitalizations) for
any 20 trading days within any 30-trading day period commencing
after our initial business combination and (2) with respect to the
remaining 50% of the insider shares, one year after the date of the
consummation of our initial business combination, or earlier, in
either case, if, subsequent to our initial business combination, we
consummate a liquidation, merger, share exchange or other similar
transaction which results in all of our stockholders having the
right to exchange their shares for cash, securities or other
property.
During
the escrow period, the holders of these shares will not be able to
sell or transfer their securities except for transfers, assignments
or sales (i) to our officers, directors, employees, consultants or
their affiliates, (ii) to an entity’s officers, directors,
employees or members, (iii) to relatives and trusts 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 us for no value for cancellation in
connection with the consummation of our initial 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 shares were originally purchased, in each
case (except for clause (vi) or with our prior consent) where the
transferee agrees to the terms of the escrow agreement and to be
bound by these transfer restrictions and other agreements of our
initial stockholder as set forth herein, but will retain all other
rights as our stockholders, including, without limitation, the
right to vote their shares of common stock and the right to receive
cash dividends, if declared. If dividends are declared and payable
in shares of common stock, such dividends will also be placed in
escrow. If we are unable to effect a business combination and
liquidate, there will be no liquidation distribution with respect
to the insider shares.
21
STOCKHOLDER PROPOSALS
If the
Extension Amendment proposal is approved and the Extension is
implemented, the Company’s next annual meeting of
stockholders will likely be held on or about _________, 2020,
unless the date is changed by the Company’s board of
directors. If you are a stockholder and you want to include a
proposal in the proxy statement for the next annual meeting, you
need to provide it to the Company by no later than approximately
_______, 2020. You should direct any proposals to the
Company’s secretary at the Company’s principal office.
If you are a stockholder and you want to present a matter of
business to be considered or nominate a director to be elected at
the next annual meeting, under the Company’s bylaws you must
give timely notice of the matter or the nomination, in writing, to
the Company’s secretary. To be timely, the notice has to be
given between 60 and 90 days before the annual meeting date (or
between ________, 2020 and ________, 2020, if the next annual
meeting is held on _______, 2020).
If the
Extension Amendment proposal is not approved, there will be no
further annual meetings of the Company.
DELIVERY OF DOCUMENTS TO STOCKHOLDERS
Pursuant to the
rules of the SEC, the Company and its agents that deliver
communications to its stockholders are permitted to deliver to two
or more stockholders sharing the same address a single copy of the
Company’s proxy statement. Upon written or oral request, the
Company will deliver a separate copy of the proxy statement to any
stockholder at a shared address who wishes to receive separate
copies of such documents in the future. Stockholders receiving
multiple copies of such documents may likewise request that the
Company deliver single copies of such documents in the future.
Stockholders may notify the Company of their requests by calling or
writing the Company at the Company’s principal executive
offices at 2645 N. Federal Highway, Suite 230, Delray Beach,
Florida 33483.
WHERE YOU CAN FIND MORE INFORMATION
The
Company files reports, proxy statements and other information with
the SEC as required by the Securities Exchange Act of 1934, as
amended. You may read and copy reports, proxy statements and other
information filed by the Company with the SEC at its public
reference room located at 100 F Street, N.E., Washington, D.C.
20549-1004. You may obtain information on the operation of the
Public Reference Room by calling the SEC at 1-800-SEC-0330. You may
also obtain copies of the materials described above at prescribed
rates by writing to the SEC, Public Reference Section, 100 F
Street, N.E., Washington, D.C. 20549-1004. The Company files its
reports, proxy statements and other information electronically with
the SEC. You may access information on the Company at the SEC
website containing reports, proxy statements and other information
at http://www.sec.gov. This proxy statement describes the material
elements of relevant contracts, exhibits and other information
attached as annexes to this proxy statement. Information and
statements contained in this proxy statement are qualified in all
respects by reference to the copy of the relevant contract or other
document included as an annex to this document.
This
proxy statement contains important business and financial
information about us that is not included in or delivered with this
document. You may obtain this additional information, or additional
copies of this proxy statement, at no cost, on our website at
www.bigrockpartners.com and you may ask any questions you may have
about the Extension Amendment by contacting us at the following
address, telephone number or facsimile number:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway, Suite 230
Delray
Beach, Florida 33483
Tel:
(310) 734-2300
In
order to receive timely delivery of the documents in advance of the
special meeting, you must make your request for information no
later than March 12, 2020.
22
ANNEX A
PROPOSED FOURTH AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
BIG ROCK PARTNERS ACQUISITION CORP.
Pursuant to Section 242 of the
Delaware General Corporation Law
The
undersigned, being a duly authorized officer of BIG ROCK PARTNERS
ACQUISITION CORP. (the “Corporation”), a corporation
existing under the laws of the State of Delaware, does hereby
certify as follows:
1.
The name of the Corporation is Big Rock Partners Acquisition
Corp.
2.
The Corporation’s Certificate of Incorporation was filed in
the office of the Secretary of State of the State of Delaware on
September 18, 2017. An Amended and Restated Certificate of
Incorporation was filed in the office of the Secretary of State of
the State of Delaware on November 20 ,2017. A first amendment to
the Amended and Restated Certificate of Incorporation was filed in
the office of the Secretary of State of the State of Delaware on
May 21, 2019, a second amendment was filed in the office of the
Secretary of State of the State of Delaware on August 21, 2019 and
a third amendment was filed in the office of the Secretary of State
of the State of Delaware on November 21, 2019.
3.
This Fourth Amendment to the Amended and Restated Certificate of
Incorporation further amends the Amended and Restated Certificate
of Incorporation of the Corporation.
4.
This Fourth Amendment to the Amended and Restated Certificate of
Incorporation was duly adopted by the affirmative vote of the
holders of a majority of the stock entitled to vote at a meeting of
stockholders in accordance with ARTICLE SIXTH of the Amended and
Restated Certificate of Incorporation and the provisions of
Sections 242 the General Corporation Law of the State of Delaware
(the “GCL”).
5. The
text of Section 9.6 of the Amended and Restated Certificate of
Incorporation is hereby amended and restated to read in full as
follows:
Section
9.6. Termination. In the event that the Corporation has not
consummated a Business Combination by _________ __, 2020 (the
“Termination Date”), the Corporation shall (i) cease
all operations except for the purposes of winding up, (ii) as
promptly as reasonably possible but not more than ten (10) business
days thereafter, redeem 100% of the Offering Shares for cash for a
redemption price per share equal to the amount then held in the
Trust Account, including the interest earned thereon, less any
franchise or income taxes payable, divided by the total number of
Offering Shares then outstanding (which redemption will completely
extinguish such holders’ rights as stockholders, including
the right to receive further liquidation distributions, if any),
subject to applicable law, and (iii) as promptly as reasonably
possible following such redemption, subject to approval of the
Corporation’s then stockholders and subject to the
requirements of the DGCL, including the adoption of a resolution by
the Board pursuant to Section 275(a) of the DGCL finding the
dissolution of the Corporation advisable and the provision of such
notices as are required by said Section 275(a) of the DGCL,
dissolve and liquidate the balance of the Corporation’s net
assets to its remaining stockholders, as part of the
Corporation’s plan of dissolution and liquidation, subject
(in the case of clauses (ii) and (iii) above) to the
Corporation’s obligations under the DGCL to provide for
claims of creditors and other requirements of applicable
law.
IN
WITNESS WHEREOF, I have signed this Amendment to the Amended and
Restated Certificate of Incorporation this 23rd day of March,
2020.
Name:
______________________
Title:
_______________________
PRELIMINARY PROXY
Big Rock Partners Acquisition Corp.
2645 N.
Federal Highway, Suite 230
Delray
Beach, Florida 33483
SPECIAL MEETING OF STOCKHOLDERS
MARCH 23, 2020
YOUR VOTE IS IMPORTANT
FOLD AND DETACH HERE
BIG ROCK PARTNERS ACQUISITION CORP.
THIS PROXY IS SOLICITED BY THE BOARD OF DIRECTORS
FOR THE SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON
MARCH 23, 2020
The
undersigned, revoking any previous proxies relating to these
shares, hereby acknowledges receipt of the Notice and Proxy
Statement, dated March __, 2020, in connection with the Special
meeting to be held at 10:00 a.m. EST on March 23, 2020 at the
offices of Graubard Miller, 405 Lexington Avenue, New York, New
York 10174, and hereby appoints Richard Ackerman and Bennett Kim,
and each of them (with full power to act alone), the attorneys and
proxies of the undersigned, with power of substitution to each, to
vote all shares of the common stock, of Big Rock Partners
Acquisition Corp. (the “Company”) registered in the
name provided, which the undersigned is entitled to vote at the
Special meeting of Stockholders, and at any adjournments thereof,
with all the powers the undersigned would have if personally
present. Without limiting the general authorization hereby given,
said proxies are, and each of them is, instructed to vote or act as
follows on the proposals set forth in this Proxy
Statement.
THIS
PROXY, WHEN EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR”
THE EXTENSION AMENDMENT CONSISTING PROPOSAL 1 BELOW AND,
“FOR” THE EARLY TERMINATION CONSISTING OF PROPOSAL
2.
THE
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSALS 1
AND 2.
Important Notice Regarding the Availability of Proxy Materials for
the Special meeting of Stockholders to be held on March 23,
2020: This notice of meeting and the accompany proxy
statement are available at https://www.cstproxy.com/bigrockpartners/smp2020.
|
|
FOR
|
AGAINST
|
ABSTAIN
|
|
Proposal 1 –Extension of Corporate Life
Amend
the Company’s amended and restated certificate of
incorporation to extend the date that the Company has to consummate
a business combination to _________ __, 2020.
|
☐
|
☐
|
☐
|
|
|
FOR
|
AGAINST
|
ABSTAIN
|
|
Proposal 2 –Early Termination
Approve
the Company’s early winding up and redemption of 100% of the
outstanding public shares if determined by the Company’s
board of directors.
|
☐
|
☐
|
☐
|
|
Dated:
|
_________________________
2020
|
______________________________________________
Stockholder’s
Signature
______________________________________________
Stockholder’s
Signature
Signature
should agree with name printed hereon. If stock is held in the name
of more than one person, EACH joint owner should sign. Executors,
administrators, trustees, guardians, and attorneys should indicate
the capacity in which they sign. Attorneys should submit powers of
attorney.
PLEASE SIGN, DATE AND RETURN THE PROXY IN THE ENVELOPE ENCLOSED TO
CONTINENTAL STOCK TRANSFER & TRUST COMPANY. THIS PROXY WILL BE
VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER.
IF NO DIRECTION IS MADE, THIS PROXY WILL BE VOTED “FOR”
THE PROPOSALS SET FORTH IN PROPOSALS 1 AND 2 AND WILL GRANT
DISCRETIONARY AUTHORITY TO VOTE UPON SUCH OTHER MATTERS AS MAY
PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENTS THEREOF. THIS
PROXY WILL REVOKE ALL PRIOR PROXIES SIGNED BY YOU.