NRX Pharmaceuticals, Inc 8-K, filed Dec 17, 2020
NRX Pharmaceuticals, Inc. (NRXP)
8-K
2020-12-17
For: 2020-12-13
View Original
Added on
April 11, 2026
About this 8-K
NRX Pharmaceuticals, Inc filed this 8-K on December 17, 2020, reporting on events of December 13, 2020.
Items reported
- Item 1.01: Entered into a material agreement
- Item 7.01: Regulation FD disclosure
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): December 13, 2020
BIG ROCK PARTNERS ACQUISITION CORP.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-38302
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82-2844431
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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2645 N.
Federal Highway, Suite 230
Delray
Beach, FL
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33483
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant’s telephone number, including area code:
202-654-7060
Not Applicable
(Former Name or Former Address, if Changed Since Last
Report)
Check
the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant
under any of the following provisions (see General Instruction A.2.
below):
☒ Written communications pursuant to Rule 425 under
the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12
under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to
Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
☐ Pre-commencement communications pursuant to
Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Securities registered pursuant to Section 12(b) of the
Act:
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Title of each class
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TradingSymbol(s)
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Name of each exchange onwhich registered
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Units,
each consisting of one share of common stock, one right, and
one-half of one warrant
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BRPAU
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The
Nasdaq Stock Market LLC
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Common
stock, par value $0.001 per share
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BRPA
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The
Nasdaq Stock Market LLC
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Rights,
exchangeable into one-tenth of one share of common
stock
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BRPAR
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The
Nasdaq Stock Market LLC
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Warrants,
each whole warrant exercisable for one share of common stock at an
exercise price of $11.50
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BRPAW
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The
Nasdaq Stock Market LLC
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Indicate by check mark whether the registrant is an emerging growth
company as defined in Rule 405 of the Securities Act of 1933
(§230.405 of this chapter) or Rule 12b-2 of the Securities
Exchange Act of 1934 (§240.12b-2 of this
chapter).
Emerging growth company ☒
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 13(a) of the Exchange
Act. ☐
Item
1.01 Entry
into a Material Definitive Agreement.
On December 13, 2020, Big Rock Partners
Acquisition Corp., a Delaware corporation
(“BRPA”),
NeuroRx, Inc., a Delaware corporation (“NeuroRx”),
and Big Rock Merger Corp., a Delaware corporation and wholly-owned
subsidiary of BRPA (“Merger
Sub”), entered into an
Agreement and Plan of Merger (“Merger
Agreement”). Pursuant to
the Merger Agreement, Merger Sub will merge with and into NeuroRx,
with NeuroRx surviving the merger (“Merger”).
As a result of the Merger, and upon consummation of the Merger and
the other transactions contemplated by the Merger Agreement
(“Transactions”),
NeuroRx will become a wholly-owned subsidiary of BRPA, with the
stockholders of NeuroRx becoming stockholders of
BRPA.
NeuroRx is a clinical-stage small molecule
pharmaceutical company which develops novel therapeutics for the
treatment of central nervous system disorders and life-threatening
pulmonary diseases. NeuroRx recently announced a commercial
partnership with Relief Therapeutics Holding AG for global
commercialization of RLF-100, or “SamiAir”, an
application for COVID-related respiratory failure (the
“NeuroRx COVID-19
Drug”). NeuroRx is also
developing NRX-100/101, the first sequential drug regimen for
bipolar depression in patients with acute suicidal ideation and
behavior (the “NeuroRx Antidepressant
Drug Regimen”.
The Transactions are expected to be consummated in
the first half of 2021, following receipt of the required approvals
by the stockholders of BRPA and NeuroRx (such approvals, the
“BRPA Stockholder
Approval” and the
“NeuroRx Stockholder
Approval,” respectively)
and the fulfilment of certain other conditions set forth in the
Merger Agreement.
The
following summary of the Merger Agreement is qualified in its
entirety by reference to the text of the Merger Agreement, which is
attached as an exhibit hereto and is incorporated herein by
reference.
Merger Agreement
Merger Consideration
Pursuant to the Merger Agreement, the aggregate
consideration payable to the stockholders of NeuroRx at the
effective time of the Merger (the “Effective
Time”) will equal
50,000,000 shares (“Closing
Consideration”) of BRPA
common stock, par value $0.001 per share
(“BRPA
Common Stock”), plus the
additional contingent right to receive the Earnout Shares and
Earnout Cash (each as defined below). At the Effective Time, each
outstanding share of NeuroRx common stock (including shares of
NeuroRx common stock resulting from the conversion of NeuroRx
preferred stock immediately prior to the Effective Time) will be
converted into the right to receive a pro rata portion of the
Closing Consideration and the contingent right to receive a pro
rata portion of the Earnout Shares and Earnout Cash. Each option
and warrant of NeuroRx that is outstanding and unexercised
immediately prior to the Effective Time will be assumed by BRPA and
will represent the right to acquire an adjusted number of shares of
BRPA Common Stock at an adjusted exercise price, in each case,
pursuant to the terms of the Merger Agreement.
As part of the aggregate consideration payable to
NeuroRx’s securityholders pursuant to the terms of the Merger
Agreement, NeuroRx’s securityholders (including option
holders and warrant holders) who own NeuroRx securities immediately
prior to the Closing will have the contingent right to receive
their pro rata portion of (i) an aggregate of 25,000,000 shares of
BRPA Common Stock (“Earnout
Shares”) if, prior to
December 31, 2022, the NeuroRx COVID-19 Drug receives emergency use
authorization by the Food and Drug Administration
(“FDA”) and NeuroRx submits and the FDA files for
review a new drug application for the NeuroRx COVID-19 Drug (the
occurrence of the foregoing, the “Earnout Shares
Milestone”), and (ii) an
aggregate of $100,000,000 in cash (“Earnout
Cash”) upon the earlier
to occur of (x) FDA approval of the NeuroRx COVID-19 Drug and the
listing of the NeuroRx COVID-19 Drug in the FDA’s
“Orange Book” and (y) FDA approval of the NeuroRx
Antidepressant Drug Regimen and the listing of the NeuroRx
Antidepressant Drug Regimen in the FDA’s “Orange
Book,” in each case prior to December 31, 2022 (the
occurrence of either of clauses (x) or (y), the
“Earnout Cash
Milestone”).
Transfer Restrictions
Pursuant to the Merger Agreement, stockholders of
NeuroRx holding an aggregate of approximately 63% of
NeuroRx’s outstanding common stock will enter into a lock-up
agreement with BRPA with respect to the Closing Consideration and
Earnout Shares, if earned, issuable to them in the Transactions.
The Merger Agreement provides that such shares of BRPA Common Stock
will be subject to transfer restrictions until the earlier
of (a) the six-month anniversary of the Closing, (b) with
respect to 50% of the shares of BRPA Common Stock issued to such
persons, the date on which the closing price of the BRPA Common
Stock equals or exceeds $12.00 per share (as adjusted for stock
splits, stock dividends, reorganizations, recapitalizations and the
like) for any 20 trading days within any 30-trading day
period commencing after the Closing, and (c) the date after the
closing on which BRPA consummates a liquidation, merger, stock
exchange or other similar transaction which results in all of
BRPA’s stockholders having the right to exchange their BRPA
Common Stock for cash, securities or other property. Certain BRPA insiders and others will enter into
an amendment to the existing stock escrow agreement providing for
the shares held in escrow thereunder to be released from escrow at
the same time as the release of transfer restrictions under the
lock-up agreement.
Governance
As a condition to the closing of the Transactions
(“Closing”),
at the Effective Time the current officers and directors of BRPA
will resign from such positions, the current officers of NeuroRx
will become officers of BRPA, and certain directors of NeuroRx and
other individuals will become directors of
BRPA.
Representations and Warranties
The
Merger Agreement contains representations and warranties of NeuroRx
and its subsidiaries relating to, among other things, proper
organization and qualification; capitalization; the authorization,
performance and enforceability against NeuroRx of the Merger
Agreement; governmental actions and filings; compliance with laws;
permits; financial statements; absence of certain changes;
condition and sufficiency of NeuroRx’s assets; litigation;
benefit plans; labor matters; restrictions on business activities;
real and personal property; tax matters; environmental matters;
brokers’ fees; intellectual property; product warranties and
product liability; material contracts; insurance; transactions with
affiliates; compliance with international trade and anti-corruption
laws; FDA and European Medicines Agency approvals; health care
regulatory compliance matters; board approval; and stockholder
approval.
The Merger Agreement contains representations and
warranties of BRPA and Merger Sub relating to, among other things,
proper organization and qualification; capitalization; the
authorization, performance and enforceability against BRPA and
Merger Sub of the Merger Agreement; governmental actions and
filings; compliance with laws; reports filed with the Securities
and Exchange Commission (“SEC”), financial statements, and compliance
with the Sarbanes-Oxley Act; absence of undisclosed liabilities;
absence of changes; litigation; benefit plans; labor matters;
business activities of BRPA; real and personal property;
intellectual property; tax matters; brokers’ fees; material
contracts; insurance; transactions with affiliates; Nasdaq listing;
and BRPA’s trust account.
Covenants
The Merger Agreement includes customary covenants
of the parties with respect to business operations prior to
consummation of the Transactions and efforts to satisfy conditions
to the consummation of the Transactions. Each party agreed, to the
extent not inconsistent with the fiduciary duties of their
respective boards of directors, to abide by exclusivity provisions
set forth in the Merger Agreement. The Merger Agreement also
contains additional covenants of the parties, including, among
others: covenants providing for BRPA and NeuroRx to cooperate in
the preparation of a Registration Statement on Form S-4, and
the proxy statement for the solicitation of the BRPA Stockholder
Approval and consent solicitation statement for solicitation of the
NeuroRx Stockholder Approval included therein (collectively, the
“Registration
Statement”); for NeuroRx
to terminate certain existing investor rights agreements with its
securityholders; for NeuroRx to obtain certain voting support
agreements from the holders of at least a majority of its
outstanding common stock and the holders of at least two-thirds of
each class of its outstanding preferred stock (subject to certain
cut-backs in the event that the NeuroRx board, in the exercise of
its fiduciary duties, changes its recommendation to stockholders as
permitted under the Merger Agreement); for BRPA to use reasonable
best efforts to cause the BRPA Common Stock to continue to be
listed on Nasdaq following the consummation of the Merger; for BRPA
to adopt an incentive equity plan; for certain initial stockholders
of BRPA to enter into agreements with BRPA providing for the
forfeiture of shares and escrow of shares to align their interests
with the interests of the NeuroRx securityholders; for the BRPA
lenders to enter into agreements with BRPA providing for the
conversion of certain non-convertible loans into convertible
promissory notes on the terms set forth in the Merger Agreement;
for EarlyBirdCapital, Inc., the representative of the underwriters
in BRPA’s initial public offering (“EBC”), to enter into an amendment to the
Business Combination Marketing Agreement, dated as of November 20,
2017, between EBC and BRPA (“BCMA”),
providing that in lieu of the cash fee due to EBC under the BCMA,
BRPA will issue 200,000 shares of BRPA Common Stock to EBC and the
BCMA will terminate; and for BRPA to enter into a registration
rights agreement granting certain stockholders of BRPA, EBC, and
certain stockholders of NeuroRx customary registration
rights.
Conditions to Closing
Mutual Conditions
The
consummation of the Transactions is conditioned upon the following,
among other things:
●
receipt
of the BRPA Stockholder Approval and the NeuroRx Stockholder
Approval;
●
BRPA shall have at least $5,000,001 of net
tangible assets (as determined in accordance with Rule 3a51-1(g)(1)
of the Securities Exchange Act of 1934, as amended (the
“Exchange
Act”));
●
all
specified waiting periods under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended shall have expired, and no
order, judgment, injunction, decree, writ, stipulation,
determination or award, in each case, entered by or with any
governmental authority or statute, rule or regulation that is in
effect and prohibits or enjoins the consummation of the
Transactions;
●
the Registration Statement shall have become
effective in accordance with the provisions of the Securities Act
of 1933, as amended (“Securities
Act”), no stop order
shall have been issued by the SEC that remains in effect with
respect to the Registration Statement, and no proceeding seeking
such a stop order shall have been threatened or initiated by the
SEC which remains pending;
●
each
ancillary agreement required to be executed by the Merger Agreement
shall have been executed and delivered by the parties
thereto;
●
BRPA
shall be and remain listed on Nasdaq and BRPA’s application
to list the shares of BRPA Common Stock to be issued in connection
with the Transactions (including the Earnout Shares) shall have
been approved by Nasdaq, subject to official notice thereof and
public holder requirements; and
●
the
holders of BRPA Common Stock issued in BRPA’s initial public
offering shall have had the opportunity to convert such shares into
a pro rata portion of BRPA’s trust account in connection with
the BRPA Stockholder Approval, and all such conversions shall have
been completed.
Other Conditions to NeuroRx’s Obligations
The
obligations of NeuroRx to consummate the Transactions are also
conditioned upon, among other things:
●
the
accuracy of the representations and warranties of BRPA (subject to
certain bring-down standards);
●
performance
in all material respects of the covenants of BRPA required by the
Merger Agreement to be performed on or prior to the
closing;
●
no
material adverse effect with respect to BRPA shall have occurred
between the date of the Merger Agreement and the closing of the
Transactions;
●
BRPA
being in compliance with the reporting requirements under the
Securities Act and Exchange Act;
●
BRPA
having delivered certain customary officer’s and
secretary’s certificates;
●
NeuroRx
having received an opinion that the Merger will qualify as a
tax-free reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended;
●
the
resignation of each officer and director of BRPA as of the
Effective Time;
●
the
adoption of an amended and restated certificate of incorporation of
BRPA, in form and substance reasonably satisfactory to BRPA and
NeuroRx;
●
BRPA shall have obtained approval from its
stockholders to extend the deadline for BRPA to consummate its
initial business combination from December 23, 2020 to April 23,
2021 (the “Extension
Approval”);
and
●
the
outstanding loans to and borrowings by BRPA shall not exceed
$3,000,000.
Other Conditions to BRPA’s and Merger Sub’s
Obligations
The
obligations of BRPA and Merger Sub to consummate the Transactions
are also conditioned upon, among other things:
●
the
accuracy of the representations and warranties of NeuroRx (subject
to certain bring-down standards);
●
performance
in all material respects of the covenants of NeuroRx required by
the Merger Agreement to be performed on or prior to the
closing;
●
no
material adverse effect with respect to NeuroRx shall have occurred
between the date of the Merger Agreement and the closing of the
Transactions;
●
all
outstanding loans or other indebtedness by NeuroRx to any insider
shall have been repaid in full; and
●
NeuroRx
having delivered certain customary officer’s and
secretary’s certificates.
Waivers
Either
BRPA or NeuroRx may waive any inaccuracies in the representations
and warranties made to such party contained in the Merger Agreement
or in any document delivered pursuant to the Merger Agreement and
waive compliance with any agreements or conditions for the benefit
of itself or such party contained in the Merger Agreement or in any
document delivered pursuant to the Merger Agreement.
Notwithstanding the foregoing, pursuant to BRPA’s amended and
restated certificate of incorporation, BRPA cannot consummate the
proposed business combination if it has less than $5,000,001 of net
tangible assets remaining upon consummation of the Transactions,
after taking into account the holders of public shares that
properly demanded that BRPA convert their public shares for their
pro rata share of the trust account.
Termination
The
Merger Agreement may be terminated at any time prior to the Closing
as follows:
●
by
mutual written consent of BRPA and NeuroRx;
●
by written notice from either BRPA or NeuroRx if
the other party has breached any of its covenants or
representations and warranties such that the party’s
closing conditions would not be satisfied at the Closing (subject
to a thirty-day cure period);
●
by
written notice from either BRPA or NeuroRx if the transactions are
not consummated on or before April 23, 2021;
●
by
written notice from either BRPA or NeuroRx if a governmental entity
shall have issued a final, non-appealable governmental order, rule
or regulation permanently enjoining or prohibiting the consummation
of the Merger;
●
by
written notice from either BRPA or NeuroRx if either the BRPA
Stockholder Approval or the NeuroRx Stockholder Approval is not
obtained in the time periods described in the Merger
Agreement;
●
by
written notice from NeuroRx prior to obtaining the NeuroRx
Stockholder Approval in order to enter into a definitive agreement
with respect to a superior proposal (as such term is defined in the
Merger Agreement), if NeuroRx’s board of directors determines
in good faith, in consultation with its outside legal counsel, that
the failure to take such action would be inconsistent with its
fiduciary duties under applicable law;
●
by written notice
from NeuroRx to BRPA if Extension Approval is not obtained by
December 24, 2020; or
●
by
written notice from either BRPA or NeuroRx if the shares of BRPA
Common Stock are delisted from Nasdaq.
In
the event that NeuroRx terminates the Merger Agreement in order to
enter into a definitive agreement for a superior proposal, BRPA
will be entitled to receive a termination fee in the amount of
$10,000,000.
Item
7.01 Regulation
FD Disclosure.
Press Release
Attached
as Exhibit 99.1 to this Report is the press release jointly issued
by the parties announcing the Transactions on December 14,
2020.
Investor Meetings
Attached
as Exhibit 99.2 to this Report is the form of investor presentation
to be used by BRPA and NeuroRx in presentations to certain of their
securityholders and other persons regarding the proposed
Merger.
The
information set forth above under this Item 7.01, including the
exhibits attached hereto, is intended to be furnished and shall not
be deemed “filed” for purposes of Section 18 of
the Exchange Act or otherwise subject to the liabilities of that
section, nor shall it be deemed incorporated by reference in any
filing under the Securities Act or the Exchange Act, except as
expressly set forth by specific reference in such
filing.
Cautionary Note Regarding Forward Looking Statements
Neither
BRPA, NeuroRx nor any of their respective affiliates makes any
representation or warranty as to the accuracy or completeness of
the information contained in this Current Report on Form 8-K. This
Current Report on Form 8-K is not intended to be all-inclusive or
to contain all the information that a person may desire in
considering the proposed Transactions discussed herein. It is not
intended to form the basis of any investment decision or any other
decision in respect of the proposed Transactions.
This
Current Report on Form 8-K and the exhibits filed or furnished
herewith include “forward-looking statements” within
the meaning of the federal securities laws with respect to the
proposed transaction between NeuroRx and BRPA, including statements
regarding the benefits of the transaction, the anticipated timing
of the Transactions, the drugs under development by NeuroRx and the
markets in which it operates. BRPA’s and NeuroRx’s
actual results may differ from its expectations, estimates and
projections and consequently, you should not rely on these
forward-looking statements as predictions of future events. These
forward-looking statements generally are identified by the words
“aspire,” “expect,” “estimate,”
“project,” “budget,”
“forecast,” “anticipate,”
“intend,” “plan,” “may,”
“will,” “will be,” “will
continue,” “will likely result,”
“could,” “should,”
“believe(s),” “predicts,”
“potential,” “continue,”
“future,” “opportunity,”
“strategy,” and similar expressions are intended to
identify such forward-looking statements. These forward-looking
statements include, without limitation, BRPA’s and
NeuroRx’s expectations with respect to future performance and
anticipated financial impacts of the proposed
Transactions.
These
forward-looking statements involve significant risks and
uncertainties that could cause the actual results to differ
materially from the expected results. Most of these factors are
outside BRPA’s and NeuroRx’s control and are difficult
to predict. Factors that may cause such differences include, but
are not limited to: (1) the approvals, timing, and ability to
complete the proposed business combination, which may adversely
affect the trading price of BRPA’s securities; (2)
BRPA’s ability to remain listed on the Nasdaq Capital Market
prior to the closing of the proposed business combination; (3) the
combined company’s continued listing on the Nasdaq Capital
Market after closing of the proposed business combination; (4) the
benefits of the proposed business combination, including future
financial and operating results of the combined company; (5) the
inherent uncertainty associated with the FDA approval process; (6)
the risk that the proposed transaction disrupts current plans and
operations of NeuroRx as a result of the announcement and
consummation of the transaction described therein and herein; (7)
costs related to the proposed business combination; (8) changes in
applicable laws or regulations; (9) the possibility that the
combined company may be adversely affected by other economic,
business, and/or competitive factors; (10) the impact of COVID-19
or other adverse public health developments; and (11) other risks
and uncertainties that will be detailed in the proxy
statement/consent solicitation statement/prospectus and
registration statement to be filed on Form S-4 with the SEC and as
indicated from time to time in BRPA’s filings with the SEC.
These filings identify and address other important risks and
uncertainties that could cause actual events and results to differ
materially from those contained in the forward-looking
statements.
BRPA
and NeuroRX caution that the foregoing list of factors is not
exclusive. BRPA and NeuroRx caution readers not to place undue
reliance upon any forward-looking statements, which speak only as
of the date made. Neither BRPA nor NeuroRx undertake or accept any
obligation or undertaking to release publicly any updates or
revisions to any forward-looking statements to reflect any change
in its expectations or any change in events, conditions or
circumstances on which any such statement is based.
Additional Information and Where to Find It
This
document relates to a proposed transaction between NeuroRx and
BRPA. This document does not constitute an offer to sell or
exchange, or the solicitation of an offer to buy or exchange, any
securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, sale or exchange would be
unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. BRPA intends to file a
registration statement on Form S-4 (“Registration
Statement”), which will include a proxy statement for the
solicitation of BRPA shareholder approval, a prospectus for the
offer and sale of BRPA securities in the transaction and a consent
solicitation statement of NeuroRx, and other relevant documents
with the Securities and Exchange Commission (“SEC”).
The proxy statement/consent solicitation statement/prospectus will
be mailed to stockholders of BRPA and NeuroRx as of a record date
to be established for voting on the proposed business combination.
INVESTORS AND SECURITY HOLDERS OF BRPA AND NEURORX ARE URGED TO
READ THE REGISTRATION STATEMENT, PROXY STATEMENT/CONSENT
SOLICITATION STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS THAT
WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN
THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT
INFORMATION ABOUT THE PROPOSED TRANSACTIONS. Investors and security
holders will be able to obtain free copies of the registration
statement, proxy statement, prospectus and other documents
containing important information about BRPA and NeuroRx once such
documents are filed with the SEC, through the website maintained by
the SEC at http://www.sec.gov. In addition, copies of the documents
filed with the SEC by BRPA can be obtained free of charge on
BRPA’S website at www.bigrockpartners.com or by directing a
written request to BRPA at 2645 N. 2645 N. Federal Highway, Suite
230 Delray Beach, FL 33483.
Participants in the Solicitation
BRPA,
NeuroRx and their respective directors and executive officers,
under SEC rules, may be deemed to be participants in the
solicitation of proxies of BRPA’s shareholders in connection
with the proposed Transactions. Investors and securityholders may
obtain more detailed information regarding the names and interests
in the proposed Transactions of BRPA’s directors and officers
in BRPA’s filings with the SEC, including the forthcoming
proxy statement/consent solicitation statement/prospectus
statement. You may obtain a free copy of these documents as
described in the preceding paragraph.
Item
9.01 Financial
Statements and Exhibits.
(d) Exhibits:
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Exhibit
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Description
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2.1*
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Merger
Agreement, dated as of December 13, 2020, by and among Big Rock
Partners Acquisition Corp., NeuroRx, Inc., and Big Rock Merger
Corp.
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Press
release, dated December 14, 2020.
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Investor
Presentation
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*
Certain
exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601(b)(2). BRPA agrees to
furnish supplementally a copy of all omitted exhibits and schedules
to the Securities and Exchange Commission upon its
request.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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Dated:
December 17, 2020
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BIG
ROCK PARTNERS ACQUISITION CORP.
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By:
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/s/ Richard
Ackerman
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Richard
Ackerman
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Chairman, President
and Chief Executive Officer
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Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BIG ROCK PARTNERS ACQUISITION CORP.,
NEURORX, INC., and
BIG ROCK MERGER CORP.
DATED AS OF DECEMBER 13, 2020
TABLE OF CONTENTS
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ARTICLE I
THE MERGER
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2
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1.1
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The
Merger
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2
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1.2
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Governing
Documents
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2
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1.3
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Effect
on Securities
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2
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1.4
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Exchange
Procedures.
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6
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1.5
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The
Closing
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7
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1.6
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Deliveries
at Closing
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7
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1.7
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Lock-Up
Agreement
|
8
|
|
1.8
|
Earnout
|
8
|
|
1.9
|
Sponsor
Agreement
|
9
|
|
1.10
|
Amendment
to Stock Escrow Agreement
|
10
|
|
1.11
|
Amendment
to BCMA
|
10
|
|
1.12
|
Amendment
to BRPA Loan Agreements
|
10
|
|
1.13
|
Registration
Rights Agreement
|
10
|
|
1.14
|
Taking
of Necessary Action; Further Action
|
11
|
|
1.15
|
Tax
Consequences
|
11
|
|
1.16
|
Payment
of Expenses
|
11
|
|
1.17
|
Dissenting
Shares
|
11
|
|
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
12
|
|
|
2.1
|
Organization
and Qualification
|
12
|
|
2.2
|
Subsidiaries
|
12
|
|
2.3
|
Capitalization
|
13
|
i
|
2.4
|
Authority
Relative to this Agreement
|
14
|
|
2.5
|
No
Conflict; Required Filings and Consents
|
15
|
|
2.6
|
Compliance
|
15
|
|
2.7
|
Permits
|
16
|
|
2.8
|
Financial
Matters
|
16
|
|
2.9
|
Absence
of Certain Developments
|
17
|
|
2.10
|
Condition
and Sufficiency of Assets
|
18
|
|
2.11
|
Litigation
|
18
|
|
2.12
|
Employee
Benefit Plans
|
18
|
|
2.13
|
Labor
Matters
|
19
|
|
2.14
|
Restrictions
on Business Activities
|
20
|
|
2.15
|
Title
to Property
|
20
|
|
2.16
|
Taxes
|
21
|
|
2.17
|
Environmental
Matters
|
21
|
|
2.18
|
Brokers
|
22
|
|
2.19
|
Intellectual
Property
|
22
|
|
2.20
|
Product
Warranties; Product Liability
|
24
|
|
2.21
|
Agreements,
Contracts and Commitments
|
25
|
|
2.22
|
Insurance
|
28
|
|
2.23
|
Interested
Party Transactions
|
28
|
|
2.24
|
Registration
Statement
|
28
|
|
2.25
|
Certain
Business Practices
|
28
|
|
2.26
|
FDA
and EMEA Approval
|
29
|
|
2.27
|
Health
Care Regulatory Compliance
|
31
|
|
2.28
|
Board
Approval
|
32
|
|
2.29
|
Company
Stockholder Approval
|
32
|
|
2.30
|
No
Additional Representations and Warranties; No Reliance
|
32
|
|
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BRPA AND MERGER SUB
|
33
|
|
|
3.1
|
Organization
and Qualification
|
33
|
|
3.2
|
Subsidiaries
|
33
|
|
3.3
|
Capitalization
|
34
|
|
3.4
|
Authority
Relative to this Agreement
|
35
|
|
3.5
|
No
Conflict; Required Filings and Consents
|
36
|
|
3.6
|
Compliance
|
36
|
|
3.7
|
BRPA
SEC Reports and Financial Statements
|
37
|
|
3.8
|
No
Undisclosed Liabilities
|
38
|
|
3.9
|
Absence
of Certain Developments
|
38
|
|
3.10
|
Litigation
|
38
|
|
3.11
|
Employee
Benefit Plans
|
38
|
|
3.12
|
Labor
Matters
|
38
|
|
3.13
|
Business
Activities
|
39
|
|
3.14
|
Title
to Property
|
39
|
|
3.15
|
Intellectual
Property
|
39
|
|
3.16
|
Taxes
|
39
|
|
3.17
|
Brokers
|
40
|
|
3.18
|
Agreements,
Contracts and Commitments
|
40
|
|
3.19
|
Insurance
|
40
|
|
3.20
|
Interested
Party Transactions
|
41
|
|
3.21
|
BRPA
Listing
|
41
|
|
3.22
|
Trust
Fund
|
41
|
|
3.23
|
Registration
Statement
|
41
|
|
3.24
|
No
Additional Representations and Warranties; No Reliance
|
41
|
|
ARTICLE IV
CONDUCT PRIOR TO CLOSING
|
42
|
|
|
4.1
|
Conduct
of Business by the Company
|
42
|
|
4.2
|
Conduct
of Business by BRPA and Merger Sub
|
45
|
|
4.3
|
Confidentiality;
Access to Information
|
47
|
|
4.4
|
Exclusivity
|
49
|
|
4.5
|
Reasonable
Best Efforts
|
50
|
|
ARTICLE V
ADDITIONAL AGREEMENTS
|
51
|
|
|
5.1
|
Registration
Statement; BRPA Special Meeting
|
51
|
ii
|
5.2
|
Directors
and Officers of BRPA After Transactions
|
52
|
|
5.3
|
HSR
Act
|
53
|
|
5.4
|
Public
Announcements
|
54
|
|
5.5
|
Required
Information
|
54
|
|
5.6
|
No
Securities Transactions
|
55
|
|
5.7
|
No
Claim Against Trust Fund
|
55
|
|
5.8
|
Disclosure
of Certain Matters
|
55
|
|
5.9
|
Securities
Listing
|
55
|
|
5.10
|
Charter
Protections; Directors’ and Officers’ Liability
Insurance
|
56
|
|
5.11
|
Insider
Loans
|
57
|
|
5.12
|
BRPA
Borrowings
|
57
|
|
5.13
|
Trust
Fund Disbursement
|
57
|
|
5.14
|
Tax
Matters
|
57
|
|
5.15
|
Incentive
Equity Plan
|
58
|
|
5.16
|
Company
Stockholder Approval
|
58
|
|
5.17
|
Third
Party Consents
|
59
|
|
5.18
|
BRPA
Financing
|
59
|
|
5.19
|
Employment
Agreements
|
59
|
|
5.20
|
Termination
of Company Stockholder Agreements
|
59
|
|
5.21
|
Section
16 of the Exchange Act
|
59
|
|
5.22
|
Extension
|
59
|
|
5.23
|
Company
Support Agreements
|
60
|
|
ARTICLE VI
CONDITIONS TO THE TRANSACTION
|
60
|
|
|
6.1
|
Conditions
to Obligations of Each Party to Effect the Merger
|
60
|
|
6.2
|
Additional
Conditions to Obligations of the Company
|
61
|
|
6.3
|
Additional
Conditions to the Obligations of BRPA
|
62
|
|
ARTICLE VII
TERMINATION
|
63
|
|
|
7.1
|
Termination
|
63
|
|
7.2
|
Notice
of Termination; Effect of Termination
|
64
|
|
7.3
|
Fees
and Expenses
|
65
|
|
ARTICLE
VIII GENERAL PROVISIONS
|
65
|
|
|
8.1
|
Notices
|
65
|
|
8.2
|
Interpretation
|
66
|
|
8.3
|
Counterparts;
Electronic Delivery
|
66
|
|
8.4
|
Entire
Agreement; Third Party Beneficiaries
|
67
|
|
8.5
|
Severability
|
67
|
|
8.6
|
Other
Remedies; Specific Performance
|
67
|
|
8.7
|
Governing
Law
|
67
|
|
8.8
|
Consent
to Jurisdiction; WAIVER OF TRIAL BY JURY
|
68
|
|
8.9
|
Rules
of Construction
|
68
|
|
8.10
|
Assignment
|
68
|
iii
|
8.11
|
Amendment
|
68
|
|
8.12
|
Extension;
Waiver
|
68
|
|
8.13
|
Currency
|
69
|
|
8.14
|
Schedules
|
69
|
|
8.15
|
Nonsurvival
of Representations, Warranties and Covenants
|
69
|
|
8.16
|
Non-Recourse
|
69
|
Exhibits
Exhibit
A – Certain Definitions
Exhibit
B – Form of Voting and Support Agreement
iv
Index to Defined Terms
This index is included for convenience only and does not constitute
a part of the agreement
|
Term
|
Section
|
|
A&R
Charter Proposal
|
5.1(b)
|
|
Acquisition
Proposal
|
4.4(d)
|
|
Action
|
Exhibit
A
|
|
Additional
Forfeited Shares
|
1.9(a)
|
|
Additional
Proposal
|
5.1(b)
|
|
Affiliate
|
Exhibit
A
|
|
Agreement
|
Preamble
|
|
Ancillary
Agreements
|
Exhibit
A
|
|
Antitrust
Law
|
Exhibit
A
|
|
Approvals
|
2.1(a)
|
|
Assets
|
2.10
|
|
BCMA
|
1.11
|
|
BCMA
Amendment Agreement
|
1.11
|
|
BRAC
|
Exhibit
A
|
|
BRPA
|
Preamble
|
|
BRPA
A&R Bylaws
|
Recital
G
|
|
BRPA
A&R Charter
|
Recital
F
|
|
BRPA
Affiliate Agreement
|
3.20
|
|
BRPA
Audited Financial Statements
|
3.7(b)
|
|
BRPA
Board
|
3.4(b)
|
|
BRPA
Board Recommendation
|
5.1(f)
|
|
BRPA
Borrowings
|
5.12
|
|
BRPA
Change in Recommendation
|
5.1(f)
|
|
BRPA
Competing Transactions
|
4.4(a)
|
|
BRPA
Common Stock
|
Exhibit
A
|
|
BRPA
Contracts
|
3.18(a)
|
|
BRPA
Cure Period
|
7.1(e)
|
|
BRPA
Financial Statements
|
3.7(b)
|
|
BRPA
Lenders
|
Exhibit
A
|
|
BRPA
Material Adverse Effect
|
Exhibit
A
|
|
BRPA
Plan
|
5.15
|
|
BRPA
Plan Proposal
|
5.1(b)
|
|
BRPA
Preferred Stock
|
Exhibit
A
|
|
BRPA
Rights
|
Exhibit
A
|
|
BRPA
Schedules
|
Article
III
|
|
BRPA
SEC Reports
|
3.7(a)
|
|
BRPA
Securities
|
Exhibit
A
|
|
BRPA
Stockholder Approval
|
3.4(c)
|
|
BRPA
Stockholder Matters
|
5.1(b)
|
|
BRPA
Stockholders
|
Exhibit
A
|
|
BRPA
Unaudited Financial Statements
|
3.7(b)
|
|
BRPA
Units
|
Exhibit
A
|
v
|
Term
|
Section
|
|
BRPA
Warrants
|
Exhibit
A
|
|
Business
Combination
|
Exhibit
A
|
|
Business
Day
|
Exhibit
A
|
|
CARES
Act
|
2.8(f)
|
|
Cash
and Cash Equivalents
|
Exhibit
A
|
|
Certificate
of Merger
|
1.1
|
|
Charter
Documents
|
Exhibit
A
|
|
Closing
|
1.5
|
|
Closing
Date
|
1.5
|
|
Code
|
Recital
H
|
|
Company
|
Preamble
|
|
Company
Annual Financial Statements
|
2.8(a)(i)
|
|
Company
Antidepressant Drug Regimen
|
Exhibit
A
|
|
Company
Board
|
2.28
|
|
Company
Board Recommendation
|
5.16
|
|
Company
Certificate of Incorporation
|
Exhibit
A
|
|
Company
Common Stock
|
Exhibit
A
|
|
Company
Competing Transactions
|
4.4(b)
|
|
Company
Contracts
|
2.21(a)
|
|
Company
COVID-19 Drug
|
Exhibit
A
|
|
Company
Cure Period
|
7.1(e)
|
|
Company
Schedule
|
Article
II
|
|
Company
Financial Statements
|
2.8(a)(ii)
|
|
Company
Intellectual Property
|
Exhibit
A
|
|
Company
Interim Financial Statements
|
2.8(a)(ii)
|
|
Company
IP Registrations
|
2.19(b)
|
|
Company
Material Adverse Effect
|
Exhibit
A
|
|
Company
Preferred Stock
|
Exhibit
A
|
|
Company
Products
|
Exhibit
A
|
|
Company
Schedules
|
Article
II
|
|
Company
Series A Preferred Stock
|
Exhibit
A
|
|
Company
Series B Preferred Stock
|
Exhibit
A
|
|
Company
Series B-1 Preferred Stock
|
Exhibit
A
|
|
Company
Series B-1A Preferred Stock
|
Exhibit
A
|
|
Company
Series B-2 Preferred Stock
|
Exhibit
A
|
|
Company
Stock
|
Exhibit
A
|
|
Company
Stock Options
|
Exhibit
A
|
|
Company
Stockholder
|
Exhibit
A
|
|
Company
Stockholder Agreements
|
Exhibit
A
|
|
Company
Stockholder Approval
|
2.29
|
|
Company
Stockholders Meeting
|
5.16
|
|
Company
Warrants
|
Exhibit
A
|
|
Consent
Solicitation Statement
|
Exhibit
A
|
|
Continental
|
1.4(a)
|
|
Copyrights
|
Exhibit
A
|
vi
|
Term
|
Section
|
|
DGCL
|
Recital
A
|
|
Dissenting
Shares
|
1.17
|
|
Earnout
Cash
|
1.8(b)
|
|
Earnout
Cash Milestone
|
1.8(b)
|
|
Earnout
Consideration
|
1.8
(b)
|
|
Earnout
Shares
|
1.8(a)
|
|
Earnout
Shares Milestone
|
1.8(a)
|
|
EBC
|
1.11
|
|
Effective
Time
|
1.1
|
|
Election
of Directors Proposal
|
5.1(b)
|
|
EMEA
|
Exhibit
A
|
|
Environmental
Law
|
Exhibit
A
|
|
ERISA
|
2.12(a)
|
|
Exchange
Act
|
2.8(b)
|
|
Exchange
Agent
|
1.4(a)
|
|
Exchange
Agent Agreement
|
1.4(a)
|
|
Exchange
Ratio
|
Exhibit
A
|
|
Export
Control Laws
|
Exhibit
A
|
|
Extension
|
5.22
|
|
FDA
|
Exhibit
A
|
|
Financing
|
5.18
|
|
Forfeited
Shares
|
1.9(a)
|
|
Governmental
Entity
|
Exhibit
A
|
|
Governmental
Order
|
Exhibit
A
|
|
Hazardous
Substance
|
Exhibit
A
|
|
Health
Care Programs
|
Exhibit
A
|
|
Health
Care Regulatory Laws
|
Exhibit
A
|
|
HIPAA
|
Exhibit
A
|
|
HSR
Act
|
Exhibit
A
|
|
IEC
|
Exhibit
A
|
|
immediate
family
|
Exhibit
A
|
|
Inbound
IP Contracts
|
2.19(c)
|
|
Information
Privacy and Security Laws
|
Exhibit
A
|
|
Initial
Forfeited Shares
|
1.9(a)
|
|
Insider
|
Exhibit
A
|
|
Insurance
Policies
|
Exhibit
A
|
|
Intellectual
Property Rights
|
Exhibit
A
|
|
Interim
Period
|
4.1
|
|
IP
Contracts
|
2.19(c)
|
|
IRB
|
Exhibit
A
|
|
knowledge
|
Exhibit
A
|
|
Legal
Requirements
|
Exhibit
A
|
|
Letter
of Transmittal
|
1.4(c)
|
|
Lien
|
Exhibit
A
|
|
Material
Company Contracts
|
2.21(a)
|
vii
|
Term
|
Section
|
|
Merger
|
Recital
A
|
|
Merger
Consideration
|
Exhibit
A
|
|
Merger
Sub
|
Preamble
|
|
Most
Recent Balance Sheet
|
2.8(a)(ii)
|
|
Most
Recent Balance Sheet Date
|
2.8(a)(ii)
|
|
Nasdaq
|
3.21
|
|
Nasdaq
Proposal
|
5.1(b)
|
|
Note
Amendment
|
1.12
|
|
OFAC
|
Exhibit
A
|
|
Offer
|
Recital
C
|
|
Option
Post Earnout Adjustment
|
1.3
|
|
Outbound
IP Contracts
|
2.19(c)
|
|
Outside
Date
|
7.1(b)
|
|
Outstanding
BRPA Transaction Expenses
|
1.16(b)
|
|
Outstanding
Company Transaction Expenses
|
1.16(a)
|
|
Parties
|
Preamble
|
|
Patents
|
Exhibit
A
|
|
Per
Share Merger Consideration
|
1.3(b)
|
|
Permits
|
2.7
|
|
Permitted
Liens
|
Exhibit
A
|
|
Permitted
Transferee
|
Exhibit
A
|
|
Person
|
Exhibit
A
|
|
Personal
Confidential Information
|
Exhibit
A
|
|
Personal
Property
|
2.15(b)
|
|
Plan
|
2.12(a)
|
|
Post
Earnout Substitute Option
|
1.3
|
|
Protected
Health Information
|
Exhibit
A
|
|
Proxy
Statement
|
Exhibit
A
|
|
Registration
Rights Agreement
|
1.13
|
|
Registration
Statement
|
5.1(a)
|
|
Representative
|
Exhibit
A
|
|
Retained
Shares
|
1.3
|
|
Returns
|
2.16(a)
|
|
Reviewable
Document
|
5.5(a)
|
|
Sanctions
|
2.25(c)
|
|
Schedules
|
Exhibit
A
|
|
SEC
|
Exhibit
A
|
|
SEC
Approval Date
|
5.1(d)
|
|
Securities
Act
|
Exhibit
A
|
|
Signing
Press Release
|
5.4
|
|
Sponsor
|
Exhibit
A
|
|
Sponsor
Agreement
|
1.9
|
|
Sponsor
Earnout Shares
|
1.9(b)
|
|
Stimulus
Funds
|
2.8(f)
|
|
Stock
Escrow Agreement
|
1.10
|
viii
|
Term
|
Section
|
|
Stock
Escrow Amendment
|
1.10
|
|
Subsidiaries
|
Exhibit
A
|
|
Substitute
Options
|
1.3(c)
|
|
Superior
Proposal
|
4.4(d)
|
|
Support
Agreements
|
Recital
D
|
|
Supporting
Stockholders
|
Recital
D
|
|
Surviving
Corporation
|
Recital
A
|
|
Tax
|
Exhibit
A
|
|
Tax
Opinion
|
Exhibit
A
|
|
Tax
Opinion Counsel
|
Exhibit
A
|
|
Terminating
BRPA Breach
|
7/1(d)
|
|
Terminating
Company Breach
|
7.1(e)
|
|
Trademarks
|
Exhibit
A
|
|
Transaction
Proposal
|
5.1(b)
|
|
Transactions
|
Exhibit
A
|
|
Trust
Agreement
|
3.22
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Trust
Fund
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3.22
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U.S.
GAAP
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Exhibit
A
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Written
Consent
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5.16
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ix
Execution Version
AGREEMENT AND PLAN OF MERGER
THIS
AGREEMENT AND PLAN OF MERGER
is made and entered into as of December 13, 2020, by and among Big
Rock Partners Acquisition Corp., a Delaware corporation
(“BRPA”), NeuroRx, Inc., a
Delaware corporation (the “Company”), and Big Rock
Merger Corp., a Delaware corporation and wholly owned Subsidiary of
BRPA (“Merger
Sub”). The term “Agreement” as used herein
refers to this Agreement and Plan of Merger, as the same may be
amended from time to time, and all schedules hereto (including the
Company Schedules and the BRPA Schedules, as defined in the
preambles to Articles II and III hereof, respectively). Each
of BRPA, Merger Sub, and the Company, are referred to herein,
individually, as a “Party” and, collectively,
as the “Parties”. Except as
otherwise indicated, capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in
Exhibit
A.
RECITALS
A. Upon
the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law (the
“DGCL”),
the Parties intend to enter into a business combination transaction
by which Merger Sub will merge with and into the Company (the
“Merger”)
with the Company being the surviving entity of the Merger and
becoming a wholly-owned Subsidiary of BRPA
(“Surviving
Corporation”), on the terms
and subject to the conditions set forth in this
Agreement.
B. The
respective boards of directors of each of BRPA, Merger Sub and the
Company have each approved, declared advisable and resolved to
recommend to their respective stockholders the Transactions upon
the terms and subject to the conditions of this Agreement and in
accordance with the DGCL.
C. Pursuant
to BRPA’s Charter Documents, BRPA shall provide an
opportunity to its stockholders to have their BRPA Common Stock
redeemed for the consideration, and on the terms and subject to the
conditions and limitations, set forth in this Agreement,
BRPA’s Charter Documents, the Trust Agreement, and the Proxy
Statement in conjunction with, inter
alia, obtaining approval
from the BRPA Stockholders for the Business Combination (the
“Offer”).
D. Prior
to the consummation of the Transactions, certain Company
Stockholders (such Company Stockholders, the
“Supporting
Stockholders”) shall enter
into certain Voting and Support Agreements (the
“Support
Agreements”), with BRPA and
Merger Sub, in the form set forth on
Exhibit B.
E. Prior
to the consummation of the Transactions, BRPA shall, subject to
obtaining the BRPA Stockholder Approval, adopt the BRPA Plan in a
form reasonably acceptable to BRPA and the
Company.
F. Prior
to the consummation of the Transactions, BRPA shall, subject to
obtaining the BRPA Stockholder Approval, adopt an amended and
restated certificate of incorporation (the
“BRPA
A&R Charter”) in a form
reasonably acceptable to BRPA and the Company.
G. Prior
to the consummation of the Transactions, BRPA shall adopt the
amended and restated bylaws (the “BRPA
A&R Bylaws”) in a form
reasonably acceptable to BRPA and the Company.
H. The
Parties intend, for U.S. federal income tax purposes, that the
Merger shall constitute a transaction that qualifies as a
reorganization governed by Section 368 of the Internal Revenue
Code of 1986, as amended (the “Code”).
NOW,
THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
ARTICLE I
THE
MERGER
1.1 The
Merger. At the Effective
Time, and subject to and upon the terms and conditions of this
Agreement and the applicable provisions of the DGCL, Merger Sub
shall merge with and into the Company, the separate corporate
existence of Merger Sub shall cease, and the Company shall continue
as the Surviving Corporation after the Merger and as a wholly owned
Subsidiary of BRPA. The Merger will be consummated in accordance
with this Agreement and the DGCL immediately upon the filing of a
certificate of merger between Merger Sub and the Company (the
“Certificate of
Merger”) with the Secretary of State of the State of
Delaware, or at such other time as may be agreed by BRPA and the
Company in writing and specified in such filings (the
“Effective
Time”). The effect of the Merger will be as provided
in this Agreement, the Certificate of Merger, and the applicable
provisions of the DGCL. Without limiting the generality of the
foregoing, and subject thereto, at the Effective Time, by virtue of
the Merger and without any further action on the part of the
Parties or the holders of any of the securities of the Company, all
of the property, rights, privileges, powers, franchises, debts,
liabilities, and duties of the Company and Merger Sub shall vest in
the Surviving Corporation.
1.2 Governing
Documents.
(a) At
the Effective Time, the Certificate of Incorporation and Bylaws of
Merger Sub shall become the Certificate of Incorporation and Bylaws
of the Surviving Corporation, in each case, until thereafter
supplemented or amended in accordance with its terms and the
DGCL.
(b) Prior
to the Effective Time, the bylaws of BRPA shall be amended and
restated to be the BRPA A&R Bylaws.
(c) Subject
to obtaining the BRPA Stockholder Approval, BRPA shall file the
BRPA A&R Charter with the Secretary of State of the State of
Delaware prior to the Effective Time.
1.3 Effect
on Securities.
2
(a) Preferred
Stock Conversion. The Company
shall take all actions necessary to cause each share of Company
Preferred Stock that is issued and outstanding immediately prior to
the Effective Time to be converted immediately prior to the
Effective Time into a number of shares of Company Common Stock at
the then-effective conversion rate (as calculated pursuant to the
Company Certificate of Incorporation) in accordance with the
Company Certificate of Incorporation (such conversions, the
“Company Preferred
Stock Conversion”).
Following the Company Preferred Stock Conversion
all of the
shares of Company Preferred Stock shall be canceled or terminated,
as applicable, shall no longer be outstanding and shall cease to
exist and no payment or distribution shall be made with respect
thereto, and each holder of Preferred Stock shall thereafter cease
to have any rights with respect to such securities.
The Preferred Stock Conversion may be
made contingent upon the occurrence of the
Closing.
(b) Conversion
of Company Common Stock.
Subject to the terms and conditions of this Agreement, at the
Effective Time (and, for the avoidance of doubt, following
the Preferred Stock Conversion), by virtue of the Merger and without any further
action on the part of Parties or the holders of any of the
securities of the Company, each share of Company Common Stock
(including shares of Company Common Stock resulting from the
Preferred Stock Conversion) that is issued and outstanding
immediately prior to the Effective Time (other than any shares to
be canceled pursuant to Section 1.3(g)
and the Dissenting Shares), will be
automatically converted into the right to receive (i) a number of
shares of BRPA Common Stock equal to the Exchange Ratio (the
“Per Share Merger
Consideration”) and (ii)
a contingent right to receive (1) a number of Earnout Shares
issuable pursuant to Section 1.8(a),
if any and (2) an amount of Earnout Cash payable pursuant to
Section 1.8(b),
if any.
(c) Assumption
of Company Stock Options.
(i) At
the Closing, without any action on the part of the holders of any
options exercisable for shares of Company Common Stock
(“Company Stock
Options”), each then
outstanding Company Stock Option will be assumed by BRPA and
automatically exchanged for an option to purchase shares of BRPA
Common Stock (“Substitute
Options”). Each
Substitute Option will be issued pursuant to the BRPA Plan and will
continue to have, and be subject to, the same terms and conditions
set forth in the applicable documents evidencing the terms of the
Company Stock Option (including any applicable incentive plan and
stock option agreement or other document evidencing such Company
Stock Option) immediately prior to the Closing, including any
repurchase rights or vesting provisions, except that (i) each
Substitute Option will be exercisable (or will become exercisable
in accordance with its terms) for that number of whole shares of
BRPA Common Stock equal to the product of the number of shares of
Company Common Stock that were issuable upon exercise of such
Company Stock Option immediately prior to the Closing multiplied by
the Option Exchange Ratio, rounded down to the nearest whole number
of shares of BRPA Common Stock and (ii) the per share exercise
price for the shares of BRPA Common Stock issuable upon exercise of
such Substitute Option will be equal to the quotient determined by
dividing the exercise price per share of Company Common Stock at
which such Company Stock Option was exercisable immediately prior
to the Closing by the Option Exchange Ratio, rounded up to the
nearest whole cent. The Company shall take no action, other than
those actions contemplated by this Agreement, that will cause or
result in the accelerated vesting of the assumed Company Stock
Options. Each Substitute Option shall be vested immediately
following the Closing as to the same percentage of the total number
of shares subject thereto as the Company Stock Option was vested as
to immediately prior to the Closing. BRPA shall file with the SEC a
registration statement on Form S-8 (or any successor form or
comparable form in another relevant jurisdiction) relating to the
Substitute Options promptly in accordance with applicable Legal
Requirements, and BRPA shall use reasonable best efforts to
maintain the effectiveness of such registration statement for so
long as any Substitute Options remain outstanding. As soon as
reasonably practicable following the Closing Date, BRPA will use
reasonable best efforts to issue to each Person who holds a
Substitute Option a document evidencing the foregoing assumption of
such Company Stock Option by BRPA.
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(ii) In
the event that either the Earnout Shares Milestone or the Earnout
Cash Milestone has not occurred during the Earnout Period, promptly
following the end of the Earnout Period the Company shall adjust
each Substitute Option (each such Substitute Option adjusted
pursuant to this Section
1.3(c)(ii), a
“Post-Earnout
Substitute Option”) by
reducing the number of shares of BRPA Common Stock underlying any
such Substitute Option and increasing the exercise price of any
such Substitute Option such that following such adjustment
contemplated by this Section
1.3(c)(ii), the number of
shares of BRPA Common Stock underlying such Post-Earnout Substitute
Option, the exercise price per share of each such Post-Earnout
Substitute Option and the aggregate intrinsic value of each such
Post-Earnout Substitute Option (and taking into account any
intervening exercises of the Substitute Option and the provisions
of Section
1.3(c)(iii) below) shall equal
the respective number of shares, exercise price per share and
aggregate intrinsic value that would have resulted following the
adjustment of the applicable underlying Substitute Option had the
conversion procedures set forth in Section
1.3(c)(i) been applied using
the Option Post-Earnout Exchange Ratio in lieu of the Option
Exchange Ratio (the “Option Post-Earnout
Adjustment”).
Notwithstanding the immediately preceding sentence, in the event
that neither the Earnout Shares Milestone nor the Earnout Cash
Milestone occur, the Option Post-Earnout Adjustment shall be based
on the Exchange Ratio instead of the Option Exchange Ratio (and
shall take into account any intervening exercises of the Substitute
Option and the provisions of Section
1.3(c)(iii) below).
(iii) In
the event that any Substitute Option is exercised prior to the
earlier of the date on which both the Earnout Share Milestone and
the Earnout Cash Milestone have been achieved and December 31,
2022, the optionholder shall agree, as a condition to such
exercise, that a sufficient number of shares of BRPA Common Stock
(as determined below) shall not be delivered to the optionholder
but shall be held in escrow by the Company (and may not be sold,
transferred or otherwise disposed) pending the determination of any
Option Post-Earnout Adjustment. The number of shares of BRPA Common
Stock to be retained by the Company shall be the number that would
be forfeited as a result of the reduction pursuant to the Option
Post-Earnout Adjustment if any of the Earnout Shares Milestone or
the Earnout Cash Milestone that had not been achieved as of the
date of such option exercise was not achieved by December 31, 2022
(the “Retained
Shares”). At the time of
any such exercise, the Company shall determine reasonably and in
good faith the applicable number of Retained Shares. Following the
determination of any Option Post-Earnout Adjustment, then the
Company shall permanently retain the applicable number of Retained
Shares that shall be forfeited by such optionholder, and the
remaining Retained Shares shall be released promptly thereafter to
such optionholder.
(d) Assumption
of Company Warrants. At the
Closing, without any action on the part of the holders of any
Company Warrants, each then outstanding Company Warrant will be
assumed by BRPA and automatically treated as if such Company
Warrant were a Company Stock Option in accordance with
Section
1.3(c).
4
(e) Adjustments
to Merger Consideration. The
number of shares of BRPA Common Stock issuable as Merger
Consideration or any amount contained herein which is based upon
the number of shares of Company Common Stock or Company Preferred
Stock, as applicable, shall be equitably adjusted to reflect
appropriately the effect of any stock split, reverse stock split,
stock dividend (including any dividend or distribution of
securities convertible into shares of BRPA Common Stock, Company
Common Stock or Company Preferred Stock, as applicable),
extraordinary cash dividend, reorganization, recapitalization,
reclassification, combination, exchange of shares or other like
change with respect to shares of BRPA Common Stock, Company Common
Stock or Company Preferred Stock, as applicable occurring on or
after the date hereof but at or prior to the Effective Time (or, as
it relates to the Earnout Shares, prior to the date of issuance of
such Earnout Shares in accordance with Section
1.8); provided, however, that
this Section 1.3(e)
shall not be construed to permit BRPA
or the Company to take any action with respect to their respective
securities that is prohibited by the terms and conditions of this
Agreement.
(f) Fractional
Shares. No certificates or
scrip representing fractional shares of BRPA Common Stock will be
issued upon the conversion of Company Common Stock (including
shares of Company Common Stock resulting from the Company Preferred
Stock Conversion), and each holder of Company Common Stock or
Company Preferred Stock who would otherwise be entitled to a
fraction of a share of BRPA Common Stock at any time shares of BRPA
Common Stock are distributed to any such Person pursuant to this
Agreement (after aggregating all fractional shares that otherwise
would be received by such holder in connection with such
distribution) shall receive from BRPA, in lieu of such fractional
share, one (1) share of BRPA Common Stock.
(g) Cancellation
of Treasury Stock. At the
Effective Time, by virtue of the Merger and without any further
action on the part of any holder thereof, each share of Company
Common Stock held by the Company, BRPA, or Merger Sub or any direct
or indirect wholly owned Subsidiary of any of the foregoing
immediately prior to the Effective Time shall be canceled and
extinguished without any conversion or payment in respect
thereof.
(h) Conversion
of Merger Sub Stock into Stock of the Surviving
Corporation. At the Effective
Time, by virtue of the Merger and without any further action on the
part of any holder thereof, each share of common stock, par value
$0.0001 per share, of Merger Sub outstanding immediately prior to
the Effective Time shall be converted into and become one share of
common stock, par value $0.0001 per share, of the Surviving
Corporation with the same rights, powers and privileges as the
shares so converted and all such shares shall constitute the only
outstanding shares of capital stock of the Surviving Corporation
immediately following the Effective Time. From and after the
Effective Time, each share of capital stock of Merger Sub shall no
longer be outstanding and shall automatically be cancelled and
cease to exist.
(i) No
Further Ownership Rights. Until
surrendered as contemplated by Section
1.4, all of the shares of
Company Common Stock (including any shares of Company Common Stock
resulting from the Preferred Stock Conversion) converted into the
right to receive the Per Share Merger Consideration shall be
deemed, from and after the Closing, to represent only the right to
receive the Per Share Merger Consideration and any dividends or
other distributions as contemplated by Section 1.3(e)
and the contingent right to receive
the Earnout Consideration. If, after the Closing, shares of Company
Common Stock (including any shares of Company Common Stock
resulting from the Preferred Stock Conversion) are presented to
BRPA or the Company for any reason, they shall be cancelled and
exchanged as provided in this Agreement.
5
1.4 Exchange
Procedures.
(a) Appointment
of Exchange Agent. BRPA and the
Company shall appoint Continental Stock Transfer & Trust
Company (“Continental”),
or if Continental shall be unavailable, a mutually agreeable bank
or trust company, to act as exchange agent and paying agent
(“Exchange
Agent”) for the
distribution of the aggregate Per Share Merger Consideration and
the Earnout Consideration (if earned pursuant to
Section
1.8) to the Company
Stockholders pursuant to this Section 1.4
and an exchange agent agreement in
form and substance mutually agreeable to BRPA and the Company
(“Exchange Agent
Agreement”).
(b) Delivery
of Closing Consideration to Exchange Agent. Immediately following the Effective Time, BRPA
will deliver or cause to be delivered to the Exchange Agent such
number of shares of BRPA Common Stock equal to the aggregate Per
Share Merger Consideration deliverable pursuant to this Agreement.
The Exchange Agent will be deemed to be the agent for the Company
Stockholders for the purpose of receiving the aggregate Per Share
Merger Consideration and BRPA shall cause the Exchange Agent,
pursuant to irrevocable instructions, to pay the aggregate Per
Share Merger Consideration in accordance with the terms of this
Agreement. Until they are distributed, the shares of BRPA Common
Stock held by the Exchange Agent will be deemed to be outstanding
from and after the Effective Time, but the Exchange Agent will not
vote those shares or exercise any rights of a stockholder with
regard to them. If any dividends or distributions are paid with
regard to shares of BRPA Common Stock while they are held by the
Exchange Agent, the Exchange Agent will hold the dividends or
distributions, uninvested, until shares of BRPA Common Stock are
distributed to the Company Stockholders, at which time the Exchange
Agent will distribute the dividends or distributions that have been
paid with regard to those shares of BRPA Common Stock to the former
Company Stockholders.
(c) Letters
of Transmittal. Concurrently
with the mailing of the Consent Solicitation Statement, BRPA shall
cause the Exchange Agent to deliver to each Company Stockholder a
letter of transmittal (and any instructions related thereto) in
form and substance reasonably acceptable to BRPA and the Surviving
Corporation (the “Letter of
Transmittal”) to be
completed and executed by such Company Stockholder to receive such
Company Stockholder’s Per Share Merger Consideration as
contemplated by Section 1.3(a)
and such Company Stockholder’s
pro rata portion of the Earnout Consideration, if payable pursuant
to Section
1.8. The Letter of Transmittal
will contain, among other things, customary representations of each
Company Stockholder relating to (as applicable for Company
Stockholders that are individuals) existence, power and authority,
due authorization, due execution, enforceability and ownership of
the shares of Company Common Stock owned by such Company
Stockholder (including shares of Company Common Stock owned by such
Company Stockholder resulting from the Preferred Stock
Conversion).
(d) Delivery
of Per Share Merger Consideration. Upon receipt by the Exchange Agent of a validly
executed and delivered Letter of Transmittal, together with the
share certificate(s) evidencing the Company Common Stock, and/or
Company Preferred Stock, as applicable, or evidence that such
securities have been transferred by book entry transfer to an
account established by the Exchange Agent, the Exchange Agent shall
issue to the applicable Company Stockholder (or its designee) the
Per Share Merger Consideration to which such Company Stockholder is
entitled under Section
1.3(b).
6
(e) Delivery
of Earnout Consideration. BRPA
will deliver, or cause to be delivered, to the Exchange Agent the
Earnout Shares and/or Earnout Cash, as applicable, in each case, in
accordance with Section
1.8. Promptly after the
Exchange Agent’s receipt of the Earnout Shares and/or Earnout
Cash from BRPA, the Exchange Agent shall deliver the Earnout Shares
and/or Earnout Cash to the Company Stockholders entitled to receive
the Earnout Shares and/or Earnout Cash pursuant to and in
accordance with Section
1.8.
(f) Payment
to Third Parties. If payment of
the Per Share Merger Consideration in respect of a Company
Stockholder is to be made to a recipient other than the Person in
whose name shares of Company Common Stock (including shares of
Company Common Stock resulting from the Preferred Stock Conversion)
are registered, it shall be a condition of payment that the Person
requesting such payment must provide funds for payment of any
transfer or other Taxes required by reason of the payment to a
Person other than the registered holder of such securities or
establish to the satisfaction of BRPA that the Tax has been paid or
is not applicable.
(g) Termination
of Exchange Agreement. On June
30, 2023, BRPA shall instruct the Exchange Agent to deliver to BRPA
any portion of the Merger Consideration deposited with the Exchange
Agent that remains undistributed to the Company Stockholders
pursuant to instructions provided to the Exchange Agent by BRPA at
such time, unless required otherwise by applicable Legal
Requirements. Thereafter, any Company Stockholders who have not
complied with the provisions of this Agreement for receiving any
Merger Consideration from the Exchange Agent shall look only to
BRPA for such amounts.
1.5 The
Closing. Subject to the
terms and conditions of this Agreement, the closing of the Merger
and the other Transactions (the “Closing”) will take place
remotely via the exchange of electronic signature pages on the
second Business Day following the satisfaction or waiver of each of
the conditions set forth in Article VI hereof (other than
those conditions which can be satisfied only at the Closing, but
subject to the satisfaction or waiver of such conditions at
Closing), or at such other time and place as may be agreed to by
BRPA and the Company (such date, the “Closing Date”). Subject
to the provisions of Article VII of this Agreement,
the failure to consummate the Closing on the date and time
determined pursuant to this Section 1.5 will not result in
the termination of this Agreement and will not relieve any Party of
any obligation under this Agreement. Subject to the satisfaction or
waiver of all of the conditions set forth in Article VI of this Agreement,
and provided this Agreement has not theretofore been terminated
pursuant to its terms, on the Closing Date, the Company and Merger
Sub shall cause the Certificate of Merger to be executed,
acknowledged and filed with the Secretary of State of the State of
Delaware as provided in Sections 251 and 103 of the
DGCL.
1.6 Deliveries
at Closing. At the Closing,
each Party shall deliver or cause to be delivered all of the
certificates, instruments, and other documents required to be
delivered by such Party pursuant to Article VI.
7
1.7 Lock-Up
Agreement. At the Closing,
BRPA and the Company Stockholders listed on Schedule 1.7 of the Company
Schedules (the “Lock-Up Stockholders”)
shall enter into an agreement which shall provide that the Lock-Up
Stockholders shall not transfer the shares of BRPA Common Stock
received hereunder as Per Share Merger Consideration except to
Permitted Transferees, until the earlier of (a) the six-month
anniversary of the Closing Date, (b) with respect to 50% of the
shares of BRPA Common Stock issued to the Lock-Up Stockholders, the
date on which the closing price of the BRPA Common Stock equals or
exceeds $12.00 per share (as adjusted for stock splits, stock
dividends, reorganizations, recapitalizations and the like) for any
20 trading days within any 30-trading day period
commencing after the Closing Date, and (c) the date after the
Closing on which BRPA consummates a liquidation, merger, stock
exchange or other similar transaction which results in all of
BRPA’s stockholders having the right to exchange their BRPA
Common Stock for cash, securities or other property. The book entry
positions or certificates evidencing shares of BRPA Common Stock
issued to the Lock-Up Stockholders hereunder will each include
prominent disclosure or bear a prominent legend evidencing the fact
that such shares are subject to the foregoing transfer
restrictions.
1.8 Earnout.
(a) Earnout
Shares Milestone. If, prior to
December 31, 2022, (1) the COVID-19 Drug receives emergency use
authorization by the FDA and (2) the Company submits and FDA files
for review a new drug application for the Company COVID-19 Drug
(the occurrence of the foregoing, the “Earnout Shares
Milestone”), then BRPA
shall issue, in accordance with Section 1.8(c)
and subject to the terms and
conditions set forth herein, to each holder of Company Common Stock
outstanding immediately prior to the Effective Time (including the
holders of shares of Company Common Stock resulting from the
Preferred Stock Conversion), a number of shares of BRPA Common
Stock equal to such holder’s Earnout Pro Rata Portion
multiplied
by twenty-five million
(25,000,000) shares of BRPA Common Stock (the aggregate number of
such shares being referred to as the “Earnout
Shares”).
(b) Earnout
Cash Milestone. Upon the
earlier to occur of (1) FDA approval of the Company COVID-19 Drug
and the listing of the Company COVID-19 Drug in the FDA’s
“Orange Book” and (2) FDA approval of the Company
Antidepressant Drug Regimen and the listing of the Company
Antidepressant Drug Regimen in the FDA’s “Orange
Book”, in each case prior to December 31, 2022 (the
occurrence of either of clauses (1) or (2), the
“Earnout Cash
Milestone”), BRPA shall
deliver, in accordance with Section 1.8(c)
and subject to the terms and
conditions set forth herein, to each holder of Company Common Stock
outstanding immediately prior to the Effective Time (including the
holders of shares of Company Common Stock resulting from the
Preferred Stock Conversion), an amount of cash equal to such
holder’s Earnout Pro Rata Portion multiplied by
one hundred million dollars
($100,000,000) (the aggregate amount of such cash being referred to
as the “Earnout
Cash”, and together with
the Earnout Shares, the “Earnout
Consideration”).
8
(c) BRPA’s
obligation to issue the Earnout Shares is solely conditioned upon
and contingent on the occurrence of the Earnout Share Milestone and
not conditioned upon or contingent on the occurrence of the Earnout
Cash Milestone; BRPA’s obligation to deliver the Earnout Cash
is solely conditioned upon and contingent on the occurrence of the
Earnout Cash Milestone and not conditioned upon or contingent on
the occurrence of the Earnout Share Milestone. Within five (5)
Business Days after the occurrence of the Earnout Shares Milestone,
BRPA shall deliver the Earnout Shares to the Exchange Agent for
distribution to the Company Stockholders entitled to receive the
Earnout Shares pursuant to Section 1.8(a)
which shall be distributed promptly to
such Company Stockholders in accordance with the Letters of
Transmittal with no action required on the part of the Company
Stockholders. Following the occurrence of the Earnout Cash
Milestone and on a date that the BRPA Board reasonably determines
in good faith to pay the Earnout Cash, BRPA shall deliver the
Earnout Cash to the Exchange Agent for distribution to the Company
Stockholders entitled to receive the Earnout Cash pursuant
to Section 1.8(b)
which shall be distributed promptly to
such Company Stockholders in accordance with the Letters of
Transmittal with no action required on the part of the Company
Stockholders. The Parties understand and agree that (i) the right
to receive any Earnout Shares or Earnout Cash pursuant to the terms
of this Agreement is a contingent right that is not transferable
except by operation of Legal Requirements relating to descent and
distribution, divorce and community property, and such contingent
right does not constitute an equity or ownership interest in BRPA,
and (ii) no Company Stockholder shall have any rights as a
stockholder of BRPA solely as a result of such Company
Stockholder’s contingent right to receive Earnout Shares
pursuant to the terms of this Agreement
1.9 Sponsor
Agreement
. On or
prior to the Closing Date, BRPA, the Sponsor, and BRAC shall enter
into an agreement in a form and on terms and conditions reasonably
acceptable to the Company (the “Sponsor Agreement”)
providing that, immediately prior to the Effective
Time:
(a) the
Sponsor and BRAC will forfeit, and BRPA will terminate and cancel:
(i) an aggregate of 875,000 shares of BRPA Common Stock (the
“Initial Forfeited
Shares”) and (ii) one share of BRPA Common Stock for
each share of BRPA Common Stock validly redeemed by BRPA
Stockholders in connection with the Offer, up to a maximum of
300,000 shares of BRPA Common Stock (the “Additional Forfeited
Shares,” and together with the Initial Forfeited
Shares, the “Forfeited Shares”);
and
(b) subject
an aggregate of 125,000 shares of BRPA Common Stock owned by
Sponsor to escrow (the “Sponsor Earnout Shares”),
which Sponsor Earnout Shares shall either be released from escrow
to the Sponsor upon the achievement of the Earnout Shares Milestone
or terminated and cancelled by BRPA on December 31, 2022 in the
event that the Earnout Shares Milestone is not
achieved.
9
1.10 Amendment
to Stock Escrow Agreement. On or prior to
the Closing Date, BRPA, Sponsor, BRAC, Graubard Miller and
Continental shall enter into an amendment (“Stock Escrow Amendment”)
to that certain escrow agreement entered into between Continental,
BRPA, BRAC, Graubard Miller and the Sponsor on November 20, 2017
(as amended by that certain letter agreement dated November 17,
2018, “Stock Escrow
Agreement”), providing: (a) for the forfeiture and
cancellation of the Forfeited Shares, (b) that the Sponsor Earnout
Shares shall be subject to escrow pursuant to the Sponsor Agreement
and the terms of Section
1.9(b), (c) that the 40,000 shares of BRPA Common Stock held
by Graubard Miller shall be released from escrow and (d) that all
remaining shares of BRPA Common Stock held in escrow thereunder
will be released from escrow on the earlier of (i) the six-month
anniversary of the Closing Date, (ii) with respect to 50% of the
shares of BRPA Common Stock, the date on which the closing price of
the BRPA Common Stock equals or exceeds $12.00 per share (as
adjusted for stock splits, stock dividends, reorganizations,
recapitalizations and the like) for any 20 trading days within
any 30-trading day period commencing after the Closing Date,
and (iii) the date after the Closing on which BRPA consummates a
liquidation, merger, stock exchange or other similar transaction
which results in all of BRPA’s stockholders having the right
to exchange their BRPA Common Stock for cash, securities or other
property.
1.11 Amendment
to BCMA. On or prior to
the Closing Date, BRPA and EarlyBirdCapital, Inc.
(“EBC”)
shall enter into an amendment
(“BCMA Amendment
Agreement”) to that
certain Business Combination Marketing Agreement, dated as of
November 20, 2017, between BRPA and EBC (“BCMA”).
The BCMA Amendment Agreement will provide that (a)
in lieu of the Fee (as such term is
defined in the BCMA), BRPA shall issue to EBC at the Effective Time
an aggregate of 200,000 shares of BRPA Common Stock and (b) the
BCMA (as amended by the BCMA Amendment Agreement) shall terminate
immediately following the Effective Time.
1.12 Amendment
to BRPA Loan Agreements. On or prior to
the Closing Date, BRPA, Sponsor, and the BRPA Lenders shall enter
into an omnibus amendment to each outstanding promissory note or
other BRPA Borrowing with BRPA as maker (including, for the
avoidance of doubt, BRPA Borrowings entered into during the Interim
Period in accordance with Section 5.12) in a form and on
terms and conditions reasonably acceptable to the Company
(“Note
Amendment”), providing that the outstanding principal
and accrued unpaid interest pursuant to such promissory notes,
after any repayments permitted pursuant to Section 5.13(e), shall be
converted into convertible notes of BRPA with an aggregate
principal amount of no more than $3,000,000, which bear interest at
three percent (3%) per annum, may be converted from time to time,
at the holder’s option, into shares of BRPA Common Stock at a
price of $10.00 per share, and which mature on the date that is
twenty-four (24) months after the Closing Date. The maximum amount
of all BRPA Borrowings outstanding as of the Closing Date
(including for the avoidance of doubt borrowings pursuant to
Section 5.12) shall
not exceed $3,000,000 and all such BRPA Borrowings in excess of
$3,000,000 will be forgiven or discharged prior to the Closing
Date.
1.13 Registration
Rights Agreement. On or prior to the Closing Date, BRPA,
the Company, certain BRPA Stockholders and certain Company
Stockholders who will receive BRPA Common Stock pursuant to Article
I, shall enter into a registration rights agreement to be mutually
agreed to between the parties thereto (the “Registration Rights
Agreement”).
10
1.14 Taking
of Necessary Action; Further Action. If, at any time
after the Closing, any further action is necessary or desirable to
carry out the purposes of this Agreement, the officers and
directors of BRPA and the Surviving Corporation shall take all such
lawful and necessary action.
1.15 Tax
Consequences. It is intended by
the Parties that the Merger shall constitute a reorganization
within the meaning of Section 368 of the Code. The Parties adopt
this Agreement as a “plan of reorganization” within the
meaning of U.S. Income Tax Regulations Sections 1.368-2(g) and
1.368-3(a).
1.16 Payment
of Expenses.
(a) No
sooner than five (5) nor later than two (2) Business Days prior to
the Closing Date, the Company shall provide to BRPA a written
report setting forth a list of all of the following fees and
expenses incurred by or on behalf of the Company in connection with
the preparation, negotiation and execution of this Agreement and
the consummation of the Transactions (together with written
invoices and wire transfer instructions for the payment thereof),
solely to the extent such fees and expenses are incurred and
expected to remain unpaid as of the close of business on the
Business Day immediately preceding the Closing Date: (i) the fees
and disbursements of outside counsel to the Company incurred in
connection with the Transactions and (ii) the fees and expenses of
any other agents, advisors, consultants, experts, financial
advisors and other service providers engaged by the Company in
connection with the Transactions (collectively, the
“Outstanding
Company Transaction Expenses”). On the
Closing Date, following the Closing, BRPA shall pay or cause to be
paid, by wire transfer of immediately available funds, all such
Outstanding Company Transaction Expenses.
(b) No
sooner than five (5) nor later than two (2) Business Days prior to
the Closing Date, BRPA shall provide to the Company a written
report setting forth a list of all fees, expenses and disbursements
incurred by or on behalf of BRPA or Merger Sub for outside counsel,
agents, advisors, consultants, experts, financial advisors and
other service providers engaged by or on behalf of BRPA or Merger
Sub in connection with the Transactions or otherwise in connection
with BRPA’s operations (together with written invoices and
wire transfer instructions for the payment thereof) (collectively,
the “Outstanding BRPA
Transaction Expenses”).
On the Closing Date, BRPA shall pay or cause to be paid, by wire
transfer of immediately available funds, all such Outstanding BRPA
Transaction Expenses.
1.17 Dissenting
Shares. Notwithstanding
anything in this Agreement to the contrary, shares of Company Stock
outstanding immediately prior to the Effective Time and owned by a
Company Stockholder who is entitled to demand and has properly
demanded appraisal for such shares in accordance with, and who
complies in all respects with, Section 262 of the DGCL (such
shares, “Dissenting
Shares”), shall not be converted into the right to
receive the Per Share Merger Consideration and shall instead
represent the right to receive payment of the fair value of such
Dissenting Shares in accordance with and to the extent provided by
Section 262 of the DGCL. At the Effective Time, (i) all
Dissenting Shares shall be cancelled, extinguished and cease to
exist and (ii) the holders of Dissenting Shares shall be entitled
to only such rights as may be granted to him, her or it under the
DGCL. If any such Company Stockholder fails to perfect or otherwise
waives, withdraws or loses such Company Stockholder’s right
to appraisal under Section 262 of the DGCL or other applicable
Legal Requirements, then the right of such holder to be paid the
fair value of such Dissenting Shares shall cease and such
Dissenting Shares shall be deemed to have been converted, as of the
Effective Time, into and shall be exchangeable solely for the right
to receive the Per Share Merger Consideration in accordance with
this Article I. The Company shall give BRPA prompt notice (and in
any event within two (2) Business Days) of any demands received by
the Company for appraisal of shares of Company Stock, attempted
withdrawals of such demands and any other instruments served
pursuant to the DGCL and received by the Company relating to rights
to be paid the fair value of Dissenting Shares, and BRPA shall have
the right to participate in and direct all negotiations and
proceedings with respect to such demands. Prior to the Effective
Time, the Company shall not, except with the prior written consent
of BRPA, make any payment with respect to, or settle or compromise
or offer to settle or compromise, any such demands or waive any
failure to timely deliver a written demand for appraisal or
otherwise comply with the provisions under Section 262 of the
DGCL, or agree or commit to do any of the foregoing.
11
ARTICLE II
Except
as set forth in the Company’s disclosure letter delivered by
the Company to BRPA and Merger Sub in connection with this
Agreement (the “Company Schedules”) (each
Schedule of which qualifies (a) the correspondingly numbered
representation, warranty or covenant specified therein and (b) such
other representations, warranties or covenants where its relevance
as an exception to (or disclosure for purposes of) such other
representation, warranty or covenant is reasonably apparent on its
face or cross-referenced), the Company hereby represents and
warrants to BRPA as follows:
(a) The
Company is a corporation, duly incorporated validly existing and in
good standing under the laws of the State of Delaware, and has the
requisite corporate power and authority to own, lease, and operate
its assets and properties and to carry on its business as it is now
being conducted. The Company is in possession of all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates, approvals and orders of or from any Governmental
Entity (“Approvals”)
necessary to own, lease, and operate the properties it purports to
own, operate, or lease and to carry on its business as it is now
being conducted. Complete and correct copies of the Charter
Documents of the Company, as amended and currently in effect, have
been made available to BRPA or BRPA’s
counsel.
(b) The
Company is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction where the
character of the properties owned, leased, or operated by it or the
nature of its activities makes such qualification or licensing
necessary. Each jurisdiction in which the Company is so qualified
or licensed is listed in Schedule
2.1(b)
of the Company
Schedules.
(a) The
Company has no direct or indirect Subsidiaries other than those
listed in Schedule
2.2
of the Company Schedules. Except as
set forth in Schedule
2.2
of the Company Schedules, the Company
owns all of the outstanding equity securities of the Subsidiaries,
free and clear of all Liens other than Permitted Liens, either
directly or indirectly through one or more other Subsidiaries.
Except with respect to the Subsidiaries, the Company does not own,
directly or indirectly, any equity or voting interest in any Person
and does not have any agreement or commitment to purchase any such
interest, and has not agreed and is not obligated to make nor is
bound by any written or oral agreement, contract, subcontract,
lease, binding understanding, instrument, note, option, warranty,
purchase order, license, sublicense, insurance policy, benefit
plan, commitment or undertaking of any nature, as of the date
hereof or as may hereafter be in effect, under which it may become
obligated to make any future investment in or capital contribution
to any other entity.
12
(b) Each
Subsidiary that is a corporation is duly incorporated, validly
existing and in good standing (or the equivalent thereof) under the
laws of its jurisdiction of incorporation (as listed in
Schedule
2.2
of the Company Schedules) and has the
requisite corporate power and authority to own, lease, and operate
its assets and properties and to carry on its business as it is now
being conducted. Each Subsidiary that is a limited liability
company is duly organized or formed, validly existing, and in good
standing (or the equivalent thereof) under the laws of its
jurisdiction of organization or formation (as listed in
Schedule
2.2
of the Company Schedules) and has the
requisite limited liability company power and authority to own,
lease and operate its assets and properties and to carry on its
business as it is now being conducted. Each Subsidiary is in
possession of all Approvals necessary to own, lease, and operate
the properties it purports to own, operate, or lease and to carry
on its business as it is now being conducted. Complete and correct
copies of the Charter Documents of each Subsidiary, as amended and
currently in effect, have been made available to BRPA or
BRPA’s counsel.
(c) Each
Subsidiary is duly qualified or licensed to do business as a
foreign corporation or foreign limited liability company and is in
good standing in each jurisdiction where the character of the
properties owned, leased, or operated by it or the nature of its
activities makes such qualification or licensing
necessary.
(a) The
authorized capital stock of the Company as of the date of this
Agreement is as set forth on Schedule 2.3(a)
of the Company Schedules.
Schedule
2.3(a) of the Company Schedules
sets forth the issued and outstanding Company Common Stock, Company
Preferred Stock, Company Warrants, and Company Stock Options, each
holder thereof and the number and type of securities beneficially
held by each such Person, and each option, warrant, purchase right,
conversion, right, exchange right, or other Company Contract
exercisable for, exchangeable for, or convertible into capital
stock of the Company and the holders thereof as of the date of this
Agreement. All of the foregoing issued and outstanding equity
interests of the Company have been duly authorized, are validly
issued, free and clear of all Liens, in compliance in all respects
with all Legal Requirements, fully paid and non-assessable, have
not been issued in violation of any preemptive or subscription
rights, and are not subject to any preemptive or subscription
rights that will survive the Closing Date. As of the date of this
Agreement, the Company has no issued or outstanding equity
interests other than the equity interests that are set forth
on Schedule 2.3(a)
of the Company Schedules, and the
Company does not hold any equity interests in its treasury. All
shares of Company Common Stock subject to issuance, upon issuance
on the terms and conditions specified in the instrument pursuant to
which they are issuable, will be duly authorized, validly issued,
fully paid, and nonassessable, free and clear of all Liens, and
will have not been issued in violation of any preemptive or
subscription rights, and are not subject to any preemptive or
subscription rights that will survive the Closing Date. All
outstanding shares of Company Common Stock, Company Preferred Stock
and Company Warrants have been issued and granted in compliance
with (x) all applicable securities laws and (in all material
respects) other applicable Legal Requirements, and (y) all
requirements set forth in any applicable Company Contracts and
Charter Documents.
13
(b) The
shares of Company Common Stock and Company Preferred Stock are the
only outstanding classes of voting equity of the Company. The
Company Stockholders hold all of the outstanding Company Common
Stock and Company Preferred Stock.
(c) Except
as provided for in this Agreement or as set forth on
Schedule
2.3(c) of the Company
Schedules, there are no subscriptions, options, warrants,
convertible notes, derivative securities, equity securities, or
other ownership interests, calls, rights (including preemptive
rights), commitments or agreements of any character to which the
Company is a party or by which it is bound obligating the Company
to issue, deliver, or sell, or cause to be issued, delivered, or
sold, or repurchase, redeem, or otherwise acquire, or cause the
repurchase, redemption, or acquisition of, any shares of capital
stock or other ownership interests of the Company or obligating the
Company to grant, extend, accelerate the vesting of, or enter into
any such subscription, option, warrant, equity security, call,
right, commitment or agreement.
(d) Except
as set forth on Schedule 2.3(d)
of the Company Schedules, neither the
Company nor any Subsidiary has any outstanding bonds, debentures,
notes or other obligations the holders of which have the right to
vote (or which are convertible into or exercisable or exchangeable
for securities having the right to vote) with the Company
Stockholders on any matter.
(e) Except
as contemplated by this Agreement or as set forth on
Schedule
2.3(e) of the Company
Schedules, there are no registration rights, and there is no voting
trust, proxy, rights plan, anti-takeover plan, or other agreements
or understandings, to which the Company is a party or by which the
Company is bound with respect to any equity security of the
Company.
(f) Except
as contemplated by this Agreement, as a result of the consummation
of the Transactions, no shares of capital stock, warrants, options,
or other securities of the Company are issuable and no rights in
connection with any shares, warrants, options or other securities
of the Company accelerate or otherwise become triggered (whether as
to vesting, exercisability, convertibility, or
otherwise).
(g) Other
than unvested Company Stock Options, no outstanding securities of
the Company are unvested or subjected to a repurchase option, risk
of forfeiture, or other condition under any applicable agreement
with the Company. Each outstanding Company Stock Option was granted
at fair market value on the date of grant.
2.4 Authority
Relative to this Agreement. The Company has
all requisite power and authority to enter into this Agreement and
each Ancillary Agreement to which the Company is (or with respect
to Ancillary Agreements to be entered into at or prior to the
Closing, will be) a party and, subject to the receipt of the
Company Stockholder Approval, to consummate the Merger. The
execution and delivery of this Agreement and each Ancillary
Agreement by the Company has been (or with respect to Ancillary
Agreements to be entered into at the Closing, will be) duly
authorized by all necessary corporate action on the part of the
Company, subject to the receipt of the Company Stockholder
Approval. This Agreement and each Ancillary Agreement to which the
Company is (or with respect to Ancillary Agreements to be entered
into at or prior to the Closing, will be) a party (a) has been (or,
in the case of Ancillary Agreements to be entered into at or prior
to the Closing, will be when executed and delivered) duly executed
and delivered by the Company and (b) assuming due authorization,
execution and delivery thereof by each other party hereto and
thereto, is (or, in the case of Ancillary Agreements to be entered
into at the Closing, will be when executed and delivered)
enforceable against the Company in accordance with its terms,
except as may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting the enforcement of creditors’
rights generally and by general principles of equity.
14
2.5 No
Conflict; Required Filings and Consents. Except as set
forth in Schedule
2.5
of the Company
Schedules:
(a) The
execution and delivery of this Agreement by the Company do not, and
the performance of this Agreement by the Company shall not,
(i) conflict with or violate the
Charter Documents of the Company or any of its Subsidiaries, or any
of the Company Stockholder Agreements, (ii) to the knowledge of the
Company, conflict with or violate any applicable Legal
Requirements, (iii) result in any breach of or constitute a default
(or an event that with notice or lapse of time or both would become
a default) under, or materially impair the Company’s or any
of its Subsidiaries’ rights or alter the rights or
obligations of any third party under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the properties or assets
of the Company or any of its Subsidiaries (other than Permitted
Liens) pursuant to, any Company Contracts, or (iv) result in the
triggering, acceleration or increase of any payment to any Person
pursuant to any Company Contract, including any “change in
control” or similar provision of any Company Contract;
except, with respect to clauses (ii), (iii) and (iv),
for any such conflicts, violations, breaches, defaults,
impairments, alterations, triggerings, accelerations, increases or
other occurrences that would not, individually or in the aggregate,
have a Company Material Adverse Effect.
(b) The
execution and delivery of this Agreement by the Company does not,
and the performance of its obligations hereunder will not, require
any consent, approval, authorization or permit of, or filing with
or notification to, any Governmental Entity or other third party
(including, without limitation, lenders and lessors), except (i)
the filing of any notifications required under the HSR Act and the
expiration of the required waiting period thereunder, (ii)
applicable requirements of the Securities Act, Exchange Act, state
securities laws, or Nasdaq, and the rules and regulations
thereunder, (iii) the consents,
approvals, authorizations, and permits described in
Schedule
2.5(b)
of the Company Schedules, and (iv)
where the failure to obtain such consents, approvals,
authorizations, or permits, or to make such filings or
notifications, would not prevent the consummation of the Merger or
otherwise prevent the Company from performing its material
obligations under this Agreement on a timely
basis.
(c) No
“fair price,” “moratorium,” “control
share acquisition,” “supermajority,”
“affiliate transactions,” “business
combination,” or other similar anti-takeover statute or
regulation enacted under any federal, state, local, or foreign laws
applicable to the Company is applicable to this Agreement, the
Merger, or any of the other Transactions.
2.6 Compliance.
To the knowledge of the Company, the Company and each of its
Subsidiaries has materially complied with all, and is not in
material violation of any, and is conducting its business in
material compliance with all, applicable Legal Requirements.
Neither the Company nor any of its Subsidiaries is in default or
violation of any term, condition or provision of any applicable
Charter Documents. No written notice of non-compliance with any
applicable Legal Requirements has been received by the Company or
any of its Subsidiaries (and the Company has no knowledge of any
such notice delivered to any other Person).
15
2.7 Permits. (i)
To the knowledge of the Company, the Company and each
Subsidiary, as applicable, collectively hold all permits necessary
to lawfully conduct the business of the Company and each Subsidiary
as presently conducted, or as currently contemplated, and to own,
lease and operate its assets and properties, including permits,
approvals, clearances, registrations, and listings required by any
Governmental Entity, including the FDA, or pursuant to any Health
Care Regulatory Law (collectively, the “Permits”), (ii) all such
Permits are in full force and effect, and no suspension or
cancellation of any of the Permits is pending or, to the
Company’s knowledge, threatened, and (iii) all Permits are
renewable by their terms in the ordinary course of business. The
Company has made available to BRPA or BRPA’s counsel true,
correct and complete copies of all material Permits. Neither the
Company nor any Subsidiary, as applicable, is in material violation
of the terms of any Permit. To the knowledge of the Company, no
event has occurred and is continuing which requires or permits, or
after notice or lapse of time or both would require or permit, any
modification or termination of any such Permits.
2.8 Financial
Matters.
(a) Financial
Statements. BRPA or its counsel
has been furnished with each of the following:
(i) the
audited and consolidated balance sheets of the Company as of
December 31, 2018 and 2019 and the related audited consolidated
statements of income, cash flow and changes in stockholders’
equity of the Company for the fiscal years then ended, accompanied
by any notes thereto (collectively, the “Company Annual Financial
Statements”); and
(ii)
the unaudited consolidated balance sheet of the Company for the
three and nine month period ended as of September 30, 2020 (the
“Most Recent Balance
Sheet” and the date thereof, the “Most Recent Balance Sheet
Date”) and the related unaudited consolidated
statement of income of the Company for the quarter then ended (the
“Company Interim
Financial Statements” and, together with the Company
Annual Financial Statements, the “Company Financial
Statements”).
(b) Compliance
with U.S. GAAP. The Company
Financial Statements (including any notes thereto) (i)
accurately reflect in all material respects, (ii) have been
prepared, in all material respects, in accordance with U.S. GAAP
consistently applied, and (iii) fairly present, in all
material respects, the consolidated financial position and results
of operations of the Company and each of its Subsidiaries on the
dates and for the periods specified therein, all in accordance with
U.S. GAAP (subject, in the case of the Company Interim Financial
Statements, to the absence of statements of cash flows and
shareholders’ equity and footnotes and, in each case, to
normal year-end audit adjustments which are not expected to be
material). The Company and its Subsidiaries have never been subject
to the reporting requirements of Sections 13(a) and 15(d) of the
Securities Exchange Act of 1934, as amended
(“Exchange
Act”).
16
(c) Absence
of Undisclosed Liabilities.
There is no liability, debt or obligation against the Company or
its Subsidiaries that would be required to be set forth or reserved
for on a balance sheet of the Company and its Subsidiaries (and the
notes thereto) prepared in accordance with U.S. GAAP and in
accordance with past practice, except for liabilities and
obligations (i) reflected or reserved for Most Recent Balance Sheet
or disclosed in the notes thereto, (ii) that have arisen since the
date of the Most Recent Balance Sheet in the ordinary course of the
operation of business of the Company and its Subsidiaries, (iii)
disclosed in the Company Schedules (including
Section 2.8(c)
of the Company Schedules), (iv)
arising under this Agreement or the performance by the Company of
its obligations hereunder, or (v) that would not, individually or
in the aggregate, reasonably be expected to be material to the
Company and its Subsidiaries, taken as a whole.
(d) Controls.
The Company has established and maintained a system of internal
accounting controls. Such internal controls are sufficient to
provide reasonable assurance regarding the reliability of the
Company’s financial reporting and the preparation of the
Company Financial Statements for external purposes in accordance
with U.S. GAAP.
(e) Auditor.
To the Company’s knowledge, the auditor engaged by the
Company with respect to the Company Financial Statements has at all
required times since the date of the Sarbanes-Oxley Act been: (i) a
registered public accounting firm (as defined in Section 2(a)(12)
of the Sarbanes-Oxley Act); (ii) “independent” with
respect to the Company within the meaning of Regulation S-X under
the Exchange Act; and (iii) in compliance with subsections (g)
through (l) of Section 10A of the Exchange Act and the rules and
regulations promulgated by the SEC and the Public Company
Accounting Oversight Board thereunder.
(f) CARES
Act. Schedule 2.8(f)
of the Company Schedules sets forth
all Coronavirus Aid, Relief, and Economic Security Act (the
“CARES
Act”) stimulus fund
programs in which the Company or its Subsidiaries are participating
and the amount of funds received and/or requested for each such
program (the “Stimulus
Funds”). The Company and
each Subsidiary have maintained accounting records associated with
the Stimulus Funds in compliance with applicable Legal Requirements
and related guidance. The Company and each Subsidiary have used
reasonable best efforts to utilize all such Stimulus Funds received
in accordance with all applicable Legal
Requirements.
(g) Off-Balance
Sheet Arrangements. Except as
set forth in Schedule 2.8(g)
of the Company Schedules, neither the
Company nor any Subsidiary has entered into any material
off-balance sheet transactions.
2.9 Absence
of Certain Developments. From the Most
Recent Balance Sheet Date to the date hereof, (a) there has not
been a Company Material Adverse Effect, (b) the business of the
Company and its Subsidiaries has been conducted in the ordinary
course of business (aside from steps taken in contemplation of the
Merger), and (c) neither the Company nor its Subsidiaries has taken
any action that would have required the prior written consent of
BRPA under Section
4.1 if such action had been taken during the Interim
Period.
17
2.10 Condition
and Sufficiency of Assets. The Company or
one of its Subsidiaries has good and valid title to, or a valid
leasehold interest in, or adequate rights to use, all buildings,
machinery, equipment, and other tangible assets which are necessary
for the conduct of its or their business as currently conducted and
are shown on the Interim Financial Statement or acquired after the
Most Recent Balance Sheet Date (the “Assets”). The Assets are
free and clear of all Liens, except for Permitted Liens, except for
Assets disposed of in the ordinary course of business since the
Most Recent Balance Sheet Date and except in the case of any
non-owned Asset, for Liens contained in the Company Contract to use
such Asset. Each Asset has been maintained in the ordinary course
of business, is in good operating condition, subject to normal wear
and tear, and is suitable for the purposes for which it is
currently used.
2.11 Litigation.
Except as set forth in Schedule 2.11 of the Company
Schedules, there are no claims, suits, actions or proceedings
pending or, to the Company’s knowledge, threatened against
the Company or any of its Subsidiaries before any court,
governmental department, commission, agency, instrumentality or
authority, or any arbitrator, in each case that would, individually
or in the aggregate, reasonably be expected to have a Company
Material Adverse Effect.
2.12 Employee
Benefit Plans.
(a) Schedule
2.12(a) of the Company
Schedules lists all material Plans. “Plan”
means any “employee benefit plan” as defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended (“ERISA”),
any plan, fund (including any superannuation fund, or other similar
program or arrangement established or maintained outside of the
United States primarily for the benefit of employees residing
outside of the United States), and any other material employee
compensation, deferred compensation, incentive, severance, change
in control, retirement, death, disability, medical, or employee
benefit plan, program, policy or other arrangement covering any
active or former employee, director or consultant of the Company or
any Subsidiary, in each case, with respect to which the Company or
any Subsidiary has liability, other than (i) standard employment or consulting
agreements that can be terminated at any time without severance or
termination pay and upon notice of not more than 60 calendar days
or such longer period as may be required by Legal Requirements,
(ii) any plan, program, policy or other arrangement that is
sponsored or maintained by a Governmental Entity or (iii) any plan,
program, policy or other arrangement that covers only former
directors, officers, employees, independent contractors and service
providers and with respect to which the Company and the
Subsidiaries have no remaining liabilities. All Plans have been
maintained and administered in all material respects in compliance
with their respective terms and with the Legal Requirements which
are applicable to such Plans, and all contributions required to be
made with respect to the Plans as of the date of this Agreement
have been made or, if not yet due, are reflected in the Company
Financial Statements. Except as would not, individually or in the
aggregate, be material to the Company and its Subsidiaries, taken
as a whole, (x) no suit, action
or other litigation (excluding claims for benefits incurred in the
ordinary course) has been brought, or, to the knowledge of the
Company, is threatened, against or with respect to any Plan and (y)
there are no audits, inquiries or proceedings pending or, to the
knowledge of the Company, threatened by any Governmental Entity
with respect to any Plan. Except as disclosed in
Schedule
2.12(a) of the Company
Schedules, each Plan can be amended, terminated or otherwise
discontinued after the Closing in accordance with its terms,
without material liability to BRPA (other than ordinary
administration expenses and amounts payable for benefits accrued
but not yet paid).
18
(b) Except
as disclosed in Schedule
2.12(b) of the Company
Schedules, neither the execution and delivery of this Agreement nor
the consummation of the Transactions will (i) result in any payment
(including severance, bonus or otherwise) becoming due to any
shareholder, director, officer or employee of the Company or any
Subsidiary under any Plan or otherwise, (ii) materially increase
any benefits otherwise payable under any Plan, or (iii) result in
the acceleration of the time of payment or vesting of any such
benefits.
(c) None
of the Company, the Subsidiary, or any other Person that would be
considered a single employer with the Company or a Subsidiary under
the Code or ERISA sponsors or maintains a plan subject to Title IV
of ERISA or Code Section 412, or contributes to or is obligated to
contribute to a “multiemployer plan” as defined in
Section 4001(a)(3) of ERISA
2.13 Labor
Matters.
(a) Except
as set forth in Schedule
2.13(a) of the Company
Schedules, neither the Company nor any Subsidiary is a party to any
collective bargaining agreement or other labor union contract
applicable to individuals employed by the Company or the
Subsidiary, as applicable, nor does the Company have knowledge of
any activities or proceedings of any labor union to organize any
such employees. There are no material pending grievances or similar
proceedings involving the Company or its Subsidiaries and any of
its employees subject to a collective bargaining agreement or other
labor union contract, or any continuing obligations of the Company
or any Subsidiary pursuant to the resolution of any such proceeding
that is no longer pending. No work stoppage, slowdown, strike, or
lockout with respect to any employees of the Company or its
Subsidiaries has occurred, is pending, or, to the knowledge of the
Company, is threatened.
(b) Other
than as set forth in Schedule
2.13(b) of the Company
Schedules, each employee of the Company and its Subsidiaries is
terminable “at will” subject to applicable severance
entitlements or notice periods as set forth by applicable Legal
Requirement or in any applicable employment agreement, and there
are no agreements between the Company or any Subsidiary and any of
its employees that their employment will be for any particular
period.
(c) To
the knowledge of the Company, none of the officers of the Company
or any of its Subsidiaries presently intends to terminate his or
her employment with the Company. The Company and its Subsidiaries
are in compliance in all material respects and, to the
Company’s knowledge, each of its employees and consultants is
in compliance in all material respects, with the terms of the
respective employment and consulting agreements between the Company
or Subsidiary, as applicable, and such
individuals.
(d) To
the knowledge of the Company, the Company and each of its
Subsidiaries is in compliance in all material respects with all
Legal Requirements applicable to its employees, respecting hiring,
employment, termination of employment, employment practices, terms
and conditions of employment, employment discrimination,
harassment, retaliation, reasonable accommodation, wages and hours,
and employee health and safety and is not liable for any arrears of
wages or penalties with respect thereto. All amounts that the
Company or any Subsidiary is legally or contractually required
either (x) to deduct from its
employees’ salaries or to transfer to such employees’
pension or provident, life insurance, incapacity insurance,
continuing education fund or other similar funds or
(y) to withhold from its
employees’ salaries and benefits and to pay to any
Governmental Entity as required by applicable Legal Requirements
have, in each case, been duly deducted, transferred, withheld and
paid, and neither the Company nor any Subsidiary have any material
outstanding obligation to make any such deduction, transfer,
withholding or payment. There are no pending, or to the
Company’s knowledge, threatened material claims or actions
against the Company or the Subsidiary by any employee in connection
with such employee’s employment or termination of employment
by the Company or any Subsidiary.
19
(e) Except
as would not, individually or in the aggregate, be material to the
Company and its Subsidiaries, taken as a whole, no employee or
former employee of the Company or any Subsidiary is owed any wages,
benefits or other compensation for past services that has not yet
been paid or reimbursed (other than wages, benefits and
compensation accrued in the ordinary course of business during the
current pay period and any accrued benefits for services, which by
their terms or under applicable Legal Requirements, are payable in
the future, such as accrued vacation, recreation leave and
severance pay).
2.14 Restrictions
on Business Activities. Except as
disclosed in Schedule 2.14 of the
Company Schedules, there is no agreement, commitment, exclusive
license, judgment, injunction, order or decree binding upon the
Company or its Subsidiaries or their respective assets or to which
the Company or any of its Subsidiaries is a party which has had or
would reasonably be expected to have the effect of prohibiting or
materially impairing any business practice of the Company or its
Subsidiaries, any acquisition of property by the Company or its
Subsidiaries or the conduct of business by the Company or its
Subsidiaries as currently conducted.
2.15 Title
to Property.
(a) Except
as set forth in Schedule
2.15(a) of the Company
Schedules, neither the Company nor any Subsidiary owns or leases
any real property and there are no options or other contracts under
which the Company or any Subsidiary has a right or obligation to
acquire or lease any interest in real property.
(b) All
material personal property and other material property and assets
of the Company and its Subsidiaries owned, used or held for use in
connection with the business of the Company and its Subsidiaries
(the “Personal
Property”), are shown or
reflected on the Most Recent Balance Sheet, to the extent required
by U.S. GAAP applied on a consistent basis in accordance with past
practice, other than those entered into or acquired on or after the
Most Recent Balance Sheet Date in the ordinary course of business.
The Company and its Subsidiaries have good and marketable title to
the Personal Property owned by them, and all such Personal Property
is in each case held free and clear of all Liens, except for
Permitted Liens. The Personal Property is structurally sound, in
good operating condition, ordinary wear and tear excepted, and is
suitable for the uses to which it is being put.
(c) All
material leases pursuant to which the Company and/or one of its
Subsidiaries leases from others real property or Personal Property
are valid and effective in accordance with their respective terms,
and there is not, under any of such leases, any existing material
default or event of default of the Company or its Subsidiaries or,
to the Company’s knowledge, any other party (or any event
which with notice or lapse of time, or both, would constitute a
material default).
(d) Each
of the Company and its Subsidiaries is in possession of, or has
good and valid title to, or a valid leasehold interest in, or
adequate rights to, all properties, assets and rights (other than
Intellectual Property Rights, which are governed exclusively
by Section
2.19)
which are necessary for the effective conduct of its business, as
it is currently operated and expected to be operated in the future.
Each such property, asset, and right is shown on the Most Recent
Balance Sheet, has been maintained in the ordinary course of
business, is in good operating condition subject to normal wear and
tear, and is suitable for the purposes for which it is currently
used.
20
2.16 Taxes.
Except as set forth in Schedule
2.16 of the
Company Schedules:
(a) The
Company and its Subsidiaries have timely filed all material
returns, estimates, information statements and reports relating to
Taxes (“Returns”)
required to be filed by them with any Tax authority prior to the
date hereof (after giving effect to any valid extensions of time in
which to make such filings). All such Returns are true, correct and
complete in all material respects. The Company and its Subsidiaries
have paid all material amounts of Taxes shown to be due and payable
on such Returns.
(b) All
material amounts of Taxes that the Company and its Subsidiaries are
required by applicable Legal Requirements to withhold or collect
have been duly withheld or collected and have been timely paid over
to the proper Governmental Entity to the extent due and
payable.
(c) The
Company and its Subsidiaries have not been delinquent in the
payment of any material amount of Tax nor is there any material Tax
deficiency outstanding, proposed or assessed by a taxing authority
against the Company or any of its Subsidiaries (other than any
deficiencies that have since been resolved), nor has the Company or
any of its Subsidiaries executed any unexpired waiver of any
statute of limitations on or extending the period for the
assessment or collection of any material amount of
Tax.
(d) No
material audit or other examination of any Return of the Company or
any of its Subsidiaries by any Tax authority is presently in
progress, nor has the Company or any of its Subsidiaries been
notified of any request for such an audit or other
examination.
(e) No
material adjustment relating to any Returns filed by the Company or
any of its Subsidiaries has been formally proposed by any Tax
authority to the Company or any of its Subsidiaries or any
representative thereof.
(f) Neither
the Company nor any of its Subsidiaries has taken any action or is
aware of any fact or circumstance that, to the Company’s
knowledge, would reasonably be expected to prevent or impede, the
Merger from qualifying as a reorganization governed by Section 368
of the Code.
(h) Schedule
2.16(h) of the Company Schedules sets forth the total amount
of Taxes the payment of which has been deferred under the authority
of Section 2302 of the CARES Act.
2.17 Environmental
Matters. Except as would
not reasonably be expected, individually or in the aggregate, to
result in a material liability of the Company and its Subsidiaries,
taken as a whole: (i) the Company and its Subsidiaries have
complied with applicable Environmental Laws; (ii) none of the
Company or its Subsidiaries or, the knowledge of the Company, any
third party has caused any properties currently owned, leased or
operated by the Company or its Subsidiaries to be contaminated with
any Hazardous Substances; (iii) the properties formerly owned,
leased or operated by the Company or its Subsidiaries were not
contaminated with Hazardous Substances during the period of
ownership, leasing or operation by the Company or its Subsidiaries;
(iv) as of the date hereof, none of the Company or its Subsidiaries
has received notice that it is potentially liable for any Hazardous
Substance disposal or contamination on any third party or public
property (whether above, on or below ground or in the atmosphere or
water); (v) as of the date hereof, none of the Company or its
Subsidiaries has received any written notice, demand, letter, claim
or request for information alleging that the Company or any
Subsidiary may be in material violation of or have material
liability under any Environmental Law; and (vi) none of the Company
or its Subsidiaries is subject to any orders, decrees, injunctions
or other arrangements with any Governmental Entity or subject to
any contractual indemnity or other agreement with any third party
relating to a material liability under any Environmental Law,
including in relation to Hazardous Substances.
21
2.18 Brokers.
Except as set forth in Schedule 2.18 of the
Company Schedules, neither the Company nor any of its Subsidiaries
has incurred, nor will it incur, and has not entered into any
contract, agreement, understanding, arrangement, or commitment
pursuant to which BRPA or the Surviving Corporation, or any of its
or their direct or in indirect Subsidiaries, could incur, directly
or indirectly, any liability for brokerage, finders’ fees,
agent’s commissions, or any similar charges in connection
with this Agreement or the Transactions.
(a) Non-Infringement.
Except as set forth on Schedule 2.19(a) of the Company
Schedules: (i) the use, practice or other exploitation of the
Company Intellectual Property owned, used, practiced or otherwise
commercially exploited by the Company or any Subsidiary, (ii) the
development, manufacturing, licensing, sublicensing, marketing,
importation, offer for sale, sale or use of any Company Product as
conducted and as proposed to be conducted, and (iii) any of the
Company’s or its Subsidiaries’ business practices and
methods and proposed business practices and methods, in each case,
to the knowledge of the Company, (A) have not infringed upon,
misappropriated or otherwise constituted an unauthorized use of or
otherwise violated the Intellectual Property Rights of any Person,
(B) do not infringe upon, misappropriate, constitute an
unauthorized use of or otherwise violate the Intellectual Property
Rights of any Person, and (C) if any Company Products in
development were to be manufactured, licensed, marketed, imported,
offered for sale, sold or used as of the date hereof, would not
infringe upon, misappropriate, constitute an unauthorized use of or
otherwise violate the Intellectual Property Rights of any Person.
Neither the Company nor any Subsidiary has received any charge,
complaint, claim, demand or notice alleging any infringement,
misappropriation, or violation of the Intellectual Property Rights
of any Person. Except as set forth on Schedule 2.19(a) of the Company
Schedules, (x) the Company IP Registrations are not the subject of
any challenge and (y) to the Company’s knowledge, no Person
is materially infringing upon any of the Company Intellectual
Property.
(b) Scheduled
Intellectual Property Rights. Schedule 2.19(b) of the Company
Schedules identifies all registered patents, trademarks, and
copyrights, and all applications, certificates, filings,
provisionals, or other documents relating to patents, trademarks,
or copyrights, and domain names owned by the Company or any
Subsidiary (collectively, the “Company IP
Registrations”). Each of the Company IP Registrations
is valid and subsisting. The Company or one of its Subsidiaries
exclusively owns and possesses all right, title and interest in and
to the Company IP Registrations, free and clear of all Liens. All
necessary fees and filings with respect to any Company IP
Registrations have been timely submitted to the relevant
intellectual property office or Governmental Entity and Internet
domain name registrars to maintain such Company IP Registration in
full force and effect. No issuance or registration obtained and no
application filed by the Company for any Company IP Registration
has been cancelled, abandoned, allowed to lapse or not renewed,
except where the Company has, in its reasonable business judgment,
decided to cancel, abandon, allow to lapse or not renew such
issuance, registration or application and where such decision would
not have a Company Material Adverse Effect. There are no pending
proceedings by or before any Governmental Entity that relate to the
validity or enforceability of any of the Company IP Registrations
and, to the Company’s knowledge, no such proceedings are
threatened by any Person. To the Company’s knowledge, no
current or former officer, employee, or contractor of the Company
or any Subsidiary has misrepresented, or failed to disclose, and
there have not been any misrepresentations of or failures to
disclose, any facts or circumstances in any patent application for
any Company IP Registrations that would constitute fraud or a
misrepresentation with respect to such patent application, or that
would otherwise affect the validity or enforceability of any
Company IP Registrations.
22
(c) IP
Contracts. Schedule
2.19(c) of the Company Schedules lists each Company Contract
(i) under which the Company or any of its Subsidiaries uses or
licenses Intellectual Property Rights that any third-party owns,
other than off-the-shelf software (the “Inbound IP Contracts”)
and (ii) under which the Company or any Subsidiary has granted to
any Person any right or interest in any Company Intellectual
Property, including settlement agreements and covenants not to sue
(the “Outbound IP
Contracts”, and together with the Inbound IP
Contracts, the “IP
Contracts”). Except as set forth in Schedule 2.19(c) of the Company
Schedules, neither the Company nor any Subsidiary is (and with the
passage of time, the giving of notice or both, will be) required or
obligated to make any payments by way of royalties, fees or
otherwise or provide any other consideration of any kind, to any
owner or licensor of, or other claimant to, any Intellectual
Property Rights, or any other Person, with respect to the use
thereof or in connection with the conduct of the business of the
Company and its Subsidiaries as conducted or proposed to be
conducted (including the development, manufacturing, licensing,
sublicensing, marketing, importation, sale, offer for sale or use,
and future manufacturing, licensing, sublicensing, marketing,
importation, sale, offer for sale or use, of any Company Products,
including Company Products in development).
(d) Company
IP. Except as set forth on Schedule 2.19(d) of the Company
Schedules, the Company Intellectual Property includes all of the
Intellectual Property Rights used by the Company and each
Subsidiary to conduct its business and, to the Company’s
knowledge, includes all of the Intellectual Property Rights used by
the Company or any Subsidiary to conduct its business in the manner
proposed to be conducted (including the research, manufacturing,
licensing, marketing, importation, sale, offer for sale or use and
future research, manufacturing, licensing, marketing, importation,
sale, offer for sale or use, of any Company Product in
development). Except as set forth on Schedule 2.19(d) of the Company
Schedules, the Company or a Subsidiary (i) is the sole and
exclusive owner of all right, title and interest in and to or (ii)
has valid, exclusive and continuing rights to develop, manufacture,
license, sublicense, market, import, sell, offer or use as the case
may be, the Company Intellectual Property, in each case, free and
clear of all Liens (other than Permitted Liens). No Company
Intellectual Property is subject to (i) any judicial or
administrative action, suit, litigation, arbitration, proceeding,
Company Contract, or order of a Governmental Entity that restricts
the use, transfer or licensing thereof by the Company or its
Subsidiaries (other than restrictions contained in the IP Contracts
disclosed in Schedule
2.19(c) of the Company Schedules), or (ii) which may affect
the validity, use or enforceability of such Company Intellectual
Property.
(e) Know-how.
The Company and each Subsidiary, as appropriate, has used
reasonable best efforts to protect the secrecy and confidentiality
of all know-how included in the Intellectual Property Rights of the
Company or Subsidiary. To the Company’s knowledge, neither
the Company nor any of its Subsidiaries has disclosed to any Person
(including any employees, contractors, and consultants) any such
know-how except under a confidentiality agreement or other legally
binding confidentiality obligation, and to the Company’s
knowledge, there has not been any breach by any party to any such
confidentiality agreement. The Company and each Subsidiary has
required all Persons (including any current or former employees,
contractors, and consultants) who create or develop or have created
or developed any material registered or applied for Intellectual
Property Rights for the benefit of the Company or such Subsidiary
to assign, and all such Persons have assigned, to the Company or
Subsidiary, as applicable, (by present assignment) all of such
Person's rights in such registered or applied for Intellectual
Property Rights.
23
(f) No
Government or University Funding. Except as set forth in
Schedule 2.19(f) of
the Company Schedules, no (i) government funding or governmental
grants; (ii) facilities of a university, college, other educational
institution or research center; or (iii) funding from any Person
was used in the development of the Company Intellectual Property.
Except as set forth in Schedule 2.19(f) of the Company
Schedules, to the knowledge of the Company, no employee, consultant
or independent contractor of the Company who was involved in, or
who contributed to, the creation or development of any of the
Company Intellectual Property, has performed services for or
otherwise was under restrictions resulting from his/her relations
with any government, university, college or other educational
institution or research center during a period of time during which
any of the Company Intellectual Property were created or during
such time that such employee, consultant or independent contractor
was also performing services for or for the benefit of the Company,
nor has any such person created or developed any of the Company
Intellectual Property with any governmental grant.
(g) Data
Privacy.
(i) To
the Company’s knowledge, there has not been any “data
breach” (as defined by applicable Information Privacy and
Security Laws), security breach, “security incident” or
“breach of unprotected health information” (as such
terms are defined by HIPAA), or material unauthorized access, use,
loss, disclosure, or publication of any Personal Confidential
Information or Protected Health Information owned, used,
maintained, received, or controlled by or on behalf of the Company
or any Subsidiary, including any unauthorized access, use,
disclosure, or publication of Personal Confidential Information or
Protected Health Information that would constitute a breach for
which notification to individuals and/or Governmental Entities is
required under any applicable Information Privacy and Security Laws
to which the Company or such Subsidiary is subject.
(ii) The
collection, maintenance, transmission, transfer, use, disclosure,
storage, disposal, and security of Personal Confidential
Information and Protected Health Information by the Company and
each Subsidiary has complied in all material respects with (i)
HIPAA, (ii) applicable Information Privacy and Security Laws, (iii)
Material Company Contracts that govern Personal Confidential
Information or Protected Health Information, and (iv) applicable
privacy policies of the Company and each Subsidiary. No
judicial or administrative action,
suit, litigation, arbitration, proceeding is pending or, to
the Company’s knowledge, threatened in writing against the
Company or a Subsidiary relating to the Company’s or
Subsidiary’s non-compliance with Information Privacy and
Security Laws or laws concerning Protected Health
Information.
2.20 Product
Warranties; Product Liability.
(a) Neither
the Company, any Subsidiary, nor, to the Company’s knowledge,
any of its or their licensees, partners, collaborators or joint
venturers has developed, manufactured, commercialized, produced,
formulated, propagated, modified, customized, processed,
distributed or sold any Company Product that did not comply with
any express or implied warranty regarding such Company Product or
that contained any unintended Hazardous Substance or that was
otherwise adulterated, contaminated, mislabeled, defective,
off-specification or improperly packaged or
transported.
24
(b) To
the extent any warranties are implied or imposed by any Legal
Requirements, no Company Product sold, distributed, delivered or
licensed by the Company, any Subsidiary, or any of its or their
licensees, partners, collaborators or joint venturers is subject to
any guaranty or warranty from or on behalf of the Company or any
Subsidiary. No claim has been made, or to the knowledge of the
Company, threatened against the Company or any Subsidiary by a
customer or any other Person alleging that (i) such Company Product
(A) did not comply with any express or implied warranty regarding
such Company Product, (B) contained an unintended Hazardous
Substance, or (C) was otherwise contaminated, adulterated,
mislabeled, defective or improperly packaged or transported, or
(ii) the Company, any Subsidiary, or any licensee, partner,
collaborator, joint venturer, supplier, warehouse, distributor or
seller of any Company Product breached any duty to warn, test,
inspect or instruct of the risks, limitations, precautions or
dangers related to the use, application, or transport of any such
Company Product.
(c) Except
as set forth in Schedule
2.20(c) of the Company
Schedules, there have been no recalls, market withdrawals or
replacements (voluntary or involuntary) with respect to any Company
Product or any similar actions, investigations, notices or
threatened recalls by any Governmental Entity with respect to any
Company Product and, to the knowledge of the Company, no facts or
circumstances exist that are reasonably likely to (i) result in the
recall, market withdrawal or replacement of any Company Product
sold or intended to be sold, or (ii) cause, as a result of any
regulatory action by any Governmental Entity, (y) a material change
in the labeling or packaging of any Company Product or (z) a
termination or suspension of the marketing, distribution or sale of
any Company Product.
(d) Except
as set forth in Schedule
2.20(d) of the Company
Schedules, no Person has claimed that the Company or any Subsidiary
has committed any act, or failed to commit any act, which would
result in, and there has been no occurrence which would reasonably
give rise to, or form the basis of, whether or not covered by
insurance, any (i) product liability, (ii) liability for injuries
or damage to individuals or property (including without limitation
any crops, animals or livestock) or (iii) liability for economic
damages or losses.
2.21 Agreements,
Contracts and Commitments.
(a) Schedule
2.21 of the Company Schedules
sets forth a complete and accurate list of all Material Company
Contracts in effect on the date of this Agreement, specifying the
parties thereto. As used herein, the term
“Company
Contracts” means all
legally binding contracts, agreements, leases, mortgages,
indentures, notes, and bonds, whether written or oral, to which the
Company or any of its Subsidiaries is a party or by or to which any
of the properties or assets of the Company or any of its
Subsidiaries may be bound (including without limitation notes for
borrowed money payable to the Company or any of its Subsidiaries),
and the term “Material Company
Contracts” means each of
the following Company Contracts:
(i) any
Company Contract (or group of related Company Contracts) for the
sale of Company Products or for the purchase of products or
services of at least $1,000,000 per year or $1,000,000 in the
aggregate;
25
(ii)
any Company Contract with respect to a dealer, distributor,
referral, or similar agreement, or any Company Contract providing
for the grant by the Company of rights to market or sell Company
Products on behalf of the Company to any other Person;
(iii)
any Company Contract pursuant to which a partnership or joint
venture was established.
(iv)
any Company Contract made other than in the ordinary course of
business (x) providing for the grant of any preferential rights of
first offer or first refusal to purchase or lease any Asset or (y)
providing for any exclusive right to sell or distribute, or
otherwise relating to the sale or distribution of, any Company
Product, or (z) pursuant to which any other Person is granted
“most favored nations” pricing or customer status or
similar with respect to any Company Product;
(v)
any Company Contract under which clinical or non-clinical data is
generated that would need to be included in any regulatory approval
(or filing or application therefor);
(vi)
any Company Contract (other than “shrink wrap” and
similar generally available commercial end user licenses to
software that have an individual acquisition cost of $100,000 or
less per year) pursuant to which the Company or any Subsidiary
licenses any Intellectual Property Rights used in the development,
manufacturing, sale, or licensing of the Company Products, in each
case, that is material to the business of the Company and its
Subsidiaries, taken as a whole;
(vii)
any Company Contract providing for outsourced development or joint
development of any of the Company Intellectual
Property;
(viii)
any Company Contract that (A) purports to limit either the type of
business in which the Company or any Subsidiary (or, after the
Closing, BRPA) may engage, the geographic area in which any of them
may engage in business, the solicitation of them of the employment
of any Person or the ability of any of them to sell or purchase
from any Person, or (B) would require the disposition of any Assets
of the Company or any Subsidiary (or, after the Closing,
BRPA);
(ix)
any Company Contract containing any indemnification, warranty,
support, maintenance, or service that represents a material
obligation of the Company or any Subsidiary;
(x)
any Company Contract under which the Company or a Subsidiary has
permitted any Asset to become, or to become subject to, a Lien
(other than a Permitted Lien);
(xi)
any Company Contract providing for the employment or consultancy of
any Person on a full-time, part-time, consulting or other basis or
otherwise providing compensation or other benefits equal to or in
excess of $250,000 per year;
(xii)
any collective bargaining agreement with any labor
union;
26
(xiii)
any Company Contract that involves any joint venture, profit
sharing, partnership, limited liability company or similar
agreement or arrangement relating to the formation, creation,
operation, management, or control of any such partnership or joint
venture;
(xiv)
any Company Contract that evidences indebtedness, whether incurred,
assumed, guaranteed, or secured by any asset, of the Company or any
Subsidiary, having an outstanding principal amount in excess of
$1,000,000;
(xv)
any Company Contract relating to the issuance of any capital stock
or other securities convertible into or exchangeable for capital
stock, or subscriptions, rights, warrants, or options to acquire
any capital stock or any securities convertible into or
exchangeable for capital stock;
(xvi)
any Company Contract that involves the acquisition or disposition,
directly or indirectly, by merger or otherwise, of assets with an
aggregate value in excess of $1,000,000, other than in the ordinary
course of business consistent with past practice, or shares or
other equity interests of any other Person;
(xvii)
any outstanding general or special powers of attorney executed by
or on behalf of the Company or a Subsidiary;
(xviii)
any Company Contract under which the Company or a Subsidiary has
advanced or loaned an amount to, or received a loan, note, or other
instrument, agreement, or arrangement for or relating to the
borrowing of money from, any of its Affiliates, shareholders,
members, officers, managers, members of the board of directors or
board of managers, or employees, other than in the ordinary course
of business;
(xix)
any guaranty by the Company, a Subsidiary, or any Affiliate of the
foregoing, of any obligation of a third party in excess of
$500,000;
(xx)
any obligation to register any securities of the Company with any
Governmental Entity; and
(xxi)
any Company Contract which is a “material contract,” as
such term is defined in Item 601(b)(10) of Regulation S-K
promulgated by the SEC.
(b) The
Company has made available to BRPA copies of each Material Company
Contract that are accurate and complete, in each case, as amended
or otherwise modified and in effect.
(c) Each
Material Company Contract is in full force and effect and is
enforceable against each party to such Material Company Contract,
except insofar as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting creditors’ rights generally or by principles
governing the availability of equitable remedies. Neither the
Company, a Subsidiary, nor, to the Company’s knowledge, any
other party to any Material Company Contract is in material breach
or violation of, or default under, or has repudiated any provision
of, any Material Company Contract and no event has occurred which,
with notice or lapse of time or both, would become a breach or
default under a Material Company Contract.
27
2.22 Insurance.
Schedule 2.22 of
the Company Schedules sets forth the Company’s and its
Subsidiaries’ material Insurance Policies. With respect to
each such Insurance Policy required to be listed on Schedule 2.22 of the Company
Schedules: (i) all premiums due have been paid, (ii) the policy is
legal, valid, binding and enforceable in accordance with its terms
and, except for policies that have expired under their terms in the
ordinary course, is in full force and effect, (iii) neither the
Company nor its Subsidiaries is in material breach or default
(including any such breach or default with respect to the payment
of premiums or the giving of notice), and, to the Company’s
knowledge, no event has occurred which, with notice or the lapse of
time or both, would constitute such a material breach or default,
or permit termination or modification, under the policy, and to the
knowledge of the Company, no such action has been threatened, and
(iv) no written notice of cancellation, non-renewal, disallowance
or reduction in coverage or claim or termination has been received
other than in connection with ordinary renewals. The coverages
provided by such Insurance Policies are believed by the Company to
be reasonably adequate in amount and scope for the Company’s
and its Subsidiaries’ business and operations
2.23 Interested
Party Transactions. Except as set
forth in the Schedule 2.23 of the
Company Schedules, (a) no Insider or a member of his or her
immediate family is indebted to the Company or any of its
Subsidiaries, nor is the Company or any of its Subsidiaries
indebted (or committed to make loans or extend or guarantee credit)
to any of such Persons, other than (i) for payment of salary for
services rendered, (ii) advances or reimbursement for reasonable
expenses incurred on behalf of the Company or any of its
Subsidiaries, (iii) for other employee benefits made generally
available to all employees, or (iv) arms’ length
relationships between the Company or any of its Subsidiaries, on
the one hand, and an Affiliate of an Insider, on the other hand and
(b) to the Company’s knowledge, no Insider has a beneficial
interest in any Company Contracts (other than such contracts as
relate to the acquisition of capital stock or other securities of
the Company or any Company Contract of employment).
2.24 Registration
Statement. None of the
information relating to the Company or its Subsidiaries to be
supplied by the Company, or by any other Person acting on behalf of
the Company at its direction, in writing specifically for inclusion
in the Registration Statement will, as of the date the Registration
Statement (or any amendment or supplement thereto) is first mailed
to the BRPA Stockholders, at the time of the BRPA Special Meeting,
or at the Effective Time, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, notwithstanding the
foregoing provisions of this Section 2.24, no
representation or warranty is made by the Company with respect to
information or statements made or incorporated by reference in the
Registration Statement that were not supplied by or on behalf of
the Company for use therein.
2.25 Certain
Business Practices.
(a) Neither
the Company nor any of its Subsidiaries or Affiliates acting on its
behalf has (i) used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political
activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees, to foreign or domestic political
parties or campaigns or violated any provision of the Foreign
Corrupt Practices Act of 1977 or similar anti-corruption or bribery
law of any other jurisdiction, or (iii) directly or indirectly
given or agreed to give any unlawful gift or similar benefit in any
material amount to any customer, supplier, government employee or
other Person who is or may be in a position to help or hinder the
Company or any Subsidiary or assist the Company or any Subsidiary
in connection with any actual or proposed transaction.
28
(b) The
operations of the Company and each Subsidiary are and have been
conducted at all times in compliance with money laundering statutes
in all applicable jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any Governmental
Entity in all material respects, and no action involving the
Company with respect to the any of the foregoing is pending or, to
the knowledge of the Company, threatened.
(c) Neither
the Company, any Subsidiary, nor any of its or their directors or
officers, or, to the knowledge of the Company, any other Person
acting on behalf of the Company, (i) is currently identified on the
specially designated nationals or other blocked person list or
otherwise currently subject to any U.S. sanctions administered by
or enforced by the United States (including any administered or
enforced by the Office of Foreign Assets Control of the U.S.
Department of the Treasury, the U.S. Department of State, or the
Bureau of Industry and Security of the U.S. Department of
Commerce), the United Nations Security Council, the European Union
or any member state of the European Union (collectively,
“Sanctions”), (ii) is
located, organized, or resident in a country or territory that is,
or whose government is, the subject of Sanctions that broadly
prohibit dealings with that country or territory, (iii) has in the
last five years, directly or indirectly, used any funds or loaned,
contributed, or otherwise made available such funds to any Person
in connection with any sales or operations in any country targeted
under Sanctions (including, but not limited to, the Crimea region
of Ukraine, Cuba, Iran, North Korea, and Syria), or for the purpose
of financing the activities of any Person the subject of or
otherwise in violation of, any Sanctions, in each case in violation
of applicable Sanctions.
(d) The
Company is currently in compliance with, and has complied with, all
Export Control Laws applicable to it. Without limiting the
foregoing: (i) the Company has obtained all material export
licenses and other material approvals required for its exports of
products required by any Export Control Law and all such approvals
and licenses are in full force and effect; (ii) the Company is in
compliance with the terms of such applicable export licenses or
other approvals; and (ii) there are no claims pending or threatened
in writing against the Company with respect to such export licenses
or other approvals.
2.26 FDA
and EMEA Approval.
(a) Schedule
2.26(a) of the Company Schedules sets forth the development
and testing phase for each Company Product. To the Company’s
knowledge, all Company Products are being and have been researched,
developed, designed, manufactured, tested, prepared, assembled,
packaged, labeled, stored, processed, distributed, and marketed in
material compliance with all applicable Health Care Regulatory
Laws, including those rules and regulations enacted by any federal,
state, or foreign Governmental Entity relating to investigational
use, premarket clearance or approval, good laboratory practice,
good tissue practice, good clinical practice, good manufacturing
practice, labeling, advertising, promotion, recordkeeping, filing
of reports, and security.
29
(b) To
the Company’s knowledge, the preclinical and clinical
testing, manufacture, labeling, distribution, promotion and sale of
the Company Products, whether conducted by or on behalf of the
Company, or sponsored by the Company, are and were in material
compliance with all Legal Requirements including, but not limited
to, FDA’s good laboratory practice regulations at 21 C.F.R.
Part 58 and good clinical practice regulations at 21 C.F.R. Parts
50, 54, 56, 11, 312, and 314. The descriptions of the results of
such tests and trials provided to BRPA or BRPA’s counsel are
complete and accurate in all material respects. The Company is not
aware of any studies, tests, or trials the results of which
reasonably call into question the results of the tests and trials
conducted by or on behalf of the Company. There have been no
serious or unanticipated adverse effects associated with the
Company Products during clinical studies that have not been
reported to the applicable Governmental Entity as required by
applicable Legal Requirements. The Company has not received notice
of adverse finding, warning letter, or clinical hold notice from an
IRB, IEC, FDA, EMEA, or similar Governmental Entity, or any
untitled letter or other correspondence or notice from the FDA or
any other Governmental Entity or any institutional or ethical
review board alleging or asserting noncompliance with any Health
Care Regulatory Laws applicable in any jurisdiction. No human
clinical trial conducted or sponsored by or on behalf of the
Company or on the Company Products has been terminated or suspended
by an IRB or IEC, FDA, EMEA, or any other applicable Governmental
Entity or any review board.
(c) Neither
the Company, any Subsidiary, or, to the Company’s knowledge,
any officer, director, employee or contractor thereof has made any
untrue statement of a material fact, or failed to disclose a
material fact required to be disclosed, to the FDA, EMEA, or other
similar Governmental Entity.
(d) Except
as set forth in Schedule
2.26(d) of the Company Schedules, the Company has not
received any written notices or statements from the FDA, the EMEA,
or any other Governmental Entity, and otherwise has no knowledge or
reason to believe, that (i) any Company Product is reasonably
likely to be rejected or determined to be non-approvable; (ii) a
delay in time for review or approval of a marketing authorization
application or marketing approval application in any jurisdiction
for any Company Product is reasonably likely to be required,
requested or being implemented; or (iii) any license, approval,
permit or authorization to conduct any clinical trial of, or
market, any product or Company Product has been or is reasonably
likely to be suspended, revoked, modified or limited.
(e) There
are no citations, decisions, adjudications or statements, in each
case issued in writing, by any Governmental Entity, and neither the
Company nor any Subsidiary is subject to any order asserting that
any Company Product is defective or unsafe in any material respect,
resulting from design defects or otherwise, or fails in any
material respect to meet any standards promulgated by any rule or
regulation promulgated by any Governmental Entity.
(f) Except
as set forth in Schedule
2.26(f) of the Company Schedules, the Company has not,
either voluntarily or involuntarily, initiated, conducted or
issued, or caused to be initiated, conducted or issued, any recall,
field correction, market withdrawal or replacement, safety alert,
warning or “dear doctor” letter, investigator notice,
or other notice or action relating to an alleged or potential lack
of safety or efficacy of any Company Product, any alleged product
defect in any Company Product, or any violation of any Legal
Requirements or any clinical trial or marketing Permit for any
Company Product, and the Company is not aware of any facts or
information that would cause it to initiate any such notice or
action and has no knowledge or reason to believe that the FDA, the
EMEA or any other Governmental Entity or any IRB or IEC or other
non-governmental authority intends to impose, require, request or
suggest such notice or action.
30
(g) Neither
the Company nor any of its Subsidiaries is the subject of any
pending or, to the knowledge of the Company, threatened
investigation in respect of its business or products by the FDA
pursuant to its “Fraud, Untrue Statements of Material Facts,
Bribery, and Illegal Gratuities” Final Policy set forth in 56
Fed. Reg. 46191 (September 10, 1991) and any amendments
thereto. Neither the Company nor any of its Subsidiaries has
committed any acts, made any statement, or failed to make any
statement, in each case in respect of its business or products that
would violate the FDA’s “Fraud, Untrue Statements of
Material Facts, Bribery, and Illegal Gratuities” Final
Policy, and any amendments thereto. None of the Company, any of its
Subsidiaries or, to the knowledge of the Company, any of their
respective officers, employees or agents has been convicted of any
crime or engaged in any conduct that (i) could result in a
debarment or exclusion under 21 U.S.C. § 335a,
(ii) could result in disqualification under FDA investigator
disqualification proceedings, (iii) is subject to FDA’s
Application Integrity Policy, (iv) is subject to any enforcement
proceeding arising from material false statements to FDA pursuant
to 18 U.S.C. § 1001, or (v) any similar applicable Legal
Requirements. To the knowledge of the Company, no debarment or
exclusionary claims, actions, proceedings or investigations in
respect of their business or products are pending or threatened
against the Company, any of its Subsidiaries or any of their
respective officers, employees or agents.
2.27 Health
Care Regulatory Compliance.
(a) Except
as set forth in Schedule
2.27(a) of the Company Schedules, the Company and each
Subsidiary is operating and has operated in material compliance
with the Health Care Regulatory Laws. Except as set forth in
Schedule 2.27(a) of
the Company Schedules, neither the Company, any Subsidiary, or any
Affiliate thereof has received any written or oral notice or
complaint from a Governmental Entity or any other Person, that
allege that the Company or such Subsidiary is not in compliance
with any such Health Care Regulatory Laws and that have not been
addressed to the satisfaction of such Governmental Entity or
complainant.
(b) Neither
the Company nor any Subsidiary, or its or their officers or
directors, nor, to the Company’s knowledge, any employees or
independent contractors of the Company or the Subsidiary, has been
excluded, debarred, or suspended from, or otherwise determined to
be or identified as ineligible to participate in, any Health Care
Program, or convicted of any crime relating to any Health Care
Program, and the Company has not received, and to the
Company’s knowledge, no officer, director, employee, or
independent contractor of the Company has received, any written
notice that the Company or such Subsidiary is the subject of any
investigation or review regarding its participation in any Health
Care Program. Neither the Company nor any Subsidiary, or its or
their officers or directors, nor, to the Company’s knowledge,
any employees or independent contractors of the Company or such
Subsidiary is listed on the Office of Inspector General’s
exclusion list, the General Services Administration’s Lists
of Parties Excluded from Federal Procurement and Non-procurement
Programs, any state Medicaid exclusion list, or similar lists in
any jurisdiction in which the Company or a Subsidiary
operates.
(c) Neither
the Company nor any Subsidiary has been the subject of or received,
or has knowledge of any pending or, to the Company’s
knowledge, threatened: (i) compliance, disciplinary or enforcement
action from any Governmental Entity; (ii) any written notice of
noncompliance with or alleged violation of any Health Care
Regulatory Laws; or (iii) material finding from an inspection by a
Governmental Entity. No Person has filed or, to the Company’s
knowledge, has threatened to file against the Company or any
Subsidiary any claim under any federal or state whistleblower
statute, including without limitation, the Federal False Claims Act
(31 U.S.C. §§ 3729 et seq.).
31
(d) Neither
the Company nor any Subsidiary has offered, paid, solicited, or
received remuneration in return for referring an individual to or
from any customer for the furnishing of any item or service
reimbursed under Health Care Programs, subject to applicable safe
harbors. All discounts or rebates provided to customers satisfy the
requirements of the safe harbor to the Anti-Kickback Statute, 42
C.F.R. § 1001.952(h).
2.28 Board
Approval. The board of
directors of the Company (the “Company Board”)
(including any required committee or subgroup thereof), by
resolutions duly adopted, has (a) determined that this Agreement
and the Transactions are advisable and in the best interest of the
Company and the Company Stockholders, (b) approved this Agreement
and the Transactions in accordance with the Company Certificate of
Incorporation and declared their advisability, and (c) resolved to
recommend that the stockholders of the Company approve and adopt
each of the matters requiring Company Stockholder Approval and
directed that this Agreement and the Transactions be submitted for
consideration by the Company Stockholders in accordance with
Section
5.16.
2.29 Company
Stockholder Approval. The approval and
adoption of this Agreement and the approval of the Transactions by
the Company Stockholders requires the affirmative vote of (i) the
holders of a majority of the outstanding shares of Company Common
Stock and Company Preferred Stock, voting together as a single
class on an “as-converted” to Company Common Stock
basis , (ii) two-thirds of the outstanding shares of Company Series
A Preferred Stock, voting as a separate class and (iii) a
two-thirds of the outstanding shares of Company Series B Preferred
Stock, voting as a separate class, in each case, given in writing
or at a meeting in accordance with the Company Certificate of
Incorporation (collectively, the “Company Stockholder
Approval”). The Company Stockholder Approval is the
only vote of holders of securities of the Company necessary to
approve the Merger.
2.30 No
Additional Representations and Warranties; No
Reliance. Except as
provided in this Article
II (as modified by the Company Schedules), neither the
Company, any Subsidiary, any of their respective Affiliates, nor
any of their respective directors, officers, employees,
shareholders, or representatives has made, or is making, any
representation or warranty whatsoever to BRPA or its Affiliates,
and no such Party shall be liable in respect of the accuracy or
completeness of any information provided to BRPA or its Affiliates.
Without limiting the generality of the foregoing, except as
expressly set forth in this Agreement (as modified by the Company
Schedules), neither the Company nor any other person on behalf of
the Company has made or makes, any representation or warranty,
whether express or implied, with respect to any projections,
forecasts, estimates or budgets made available to BRPA, its
Affiliates or any of their respective Representatives of future
revenues, future results of operations (or any component thereof),
future cash flows or future financial condition (or any component
thereof) of the Company (including the reasonableness of the
assumptions underlying any of the foregoing), whether or not
included in any management presentation or in any other information
made available to BRPA, its Affiliates or any of their respective
Representatives or any other person, and any such representations
or warranties are expressly disclaimed. The Company acknowledges
and agrees (on its own behalf and on behalf of its Affiliates and
its Representatives) that: (i) it has conducted its own independent
investigation of the financial condition, results of operations,
assets, liabilities, properties and projected operations of BRPA;
(ii) it has been afforded satisfactory access to the books and
records, facilities and personnel of BRPA for purposes of
conducting such investigation; and (iii) except for the
representations and warranties set forth in Article III (as modified by the
BRPA Schedules), it is not relying on any representations and
warranties from any Person in connection with the Transactions.
Neither BRPA nor Merger Sub nor any of its or their respective
stockholders, Affiliates or Representatives shall have any
liability to the Company or any of its stockholders, Affiliates or
Representatives resulting from the use of any information,
documents or materials made available to the Company or any of its
Representatives, whether orally or in writing, in any confidential
information memoranda, “data rooms,” management
presentations, due diligence discussions or in any other form in
expectation of the Transactions except as set forth in this
Agreement and the Ancillary Agreements.
32
ARTICLE III
Except
as set forth in the BRPA’s disclosure letter delivered by
BRPA to the Company in connection with this Agreement (the
“BRPA
Schedules”) (each Schedule of which qualifies (a)
the correspondingly numbered representation, warranty or covenant
specified therein and (b) such other representations, warranties or
covenants where its relevance as an exception to (or disclosure for
purposes of) such other representation, warranty or covenant is
reasonably apparent on its face or cross-referenced), each of BRPA
and Merger Sub hereby represents and warrants to the Company as
follows:
(a) Each
of BRPA and Merger Sub (i) is a corporation duly incorporated,
validly existing and in good standing under the laws of the State
of Delaware and has the requisite corporate power and authority to
own, lease and operate its assets and properties and to carry on
its business as it is now being conducted; and (ii) is in
possession of all Approvals necessary to own, lease and operate the
properties it purports to own, operate or lease and to carry on its
business as it is now being conducted. Complete and correct copies
of the Charter Documents of BRPA and Merger Sub, as amended and
currently in effect, have been made available to the Company or
Company’s counsel.
(b) BRPA
is duly qualified or licensed to do business as a foreign
corporation and is in good standing in each jurisdiction where the
character of the properties owned, leased, or operated by it or the
nature of its activities makes such qualification or licensing
necessary. Each jurisdiction in which BRPA is so qualified or
licensed is listed in Schedule 3.1(b)
of the BRPA
Schedules.
3.2 Subsidiaries.
Other than as set forth in Schedule 3.2 of the BRPA
Schedules, BRPA has no direct or indirect Subsidiaries or
participations in joint ventures or other entities. BRPA does not
own, directly or indirectly, any equity or voting interest in any
Person or has any agreement or commitment to purchase any such
interest, and has not agreed and is not obligated to make nor is
bound by any written or oral agreement, contract, subcontract,
lease, binding understanding, instrument, note, option, warranty,
purchase order, license, sublicense, insurance policy, benefit
plan, commitment or undertaking of any nature, as of the date
hereof or as may hereafter be in effect under which it may become
obligated to make, any future investment in or capital contribution
to any other Person.
33
3.3 Capitalization.
(a) The
authorized capital stock of BRPA as of the date of this Agreement
consists of 100,000,000 shares of BRPA Common Stock and 1,000,000
shares of BRPA Preferred Stock. No BRPA Preferred Stock is issued
and outstanding. Schedule 3.3(a)
of the BRPA Schedules sets forth the
issued and outstanding BRPA Common Stock, BRPA Rights, BRPA
Warrants, BRPA Units, and BRPA unit purchase options and each other
option, warrant, purchase right, conversion, right, exchange right,
or other BRPA Contract exercisable for, exchangeable for, or
convertible into capital stock of BRPA as of the date of this
Agreement. All of the foregoing issued and outstanding equity
interests of BRPA have been duly authorized, are validly issued,
free and clear of all Liens, in compliance in all respects with all
Legal Requirements, fully paid and non-assessable, have not been
issued in violation of any preemptive or subscription rights, and
are not subject to any preemptive or subscription rights that will
survive the Closing Date. BRPA has no issued or outstanding equity
interests other than the equity interests that are that set forth
on Schedule 3.3(a)
of the BRPA Schedules. All shares of
BRPA Common Stock subject to issuance, upon issuance on the terms
and conditions specified in the instrument pursuant to which they
are issuable, will be duly authorized, validly issued, fully paid,
and nonassessable, free and clear of all Liens, and will have not
been issued in violation of any preemptive or subscription rights,
and are not subject to any preemptive or subscription rights that
will survive the Closing Date. All outstanding shares of BRPA
Common Stock, BRPA Warrants, and BRPA Rights have been issued and
granted in compliance with (x)
all applicable securities laws and (in all material respects) other
applicable Legal Requirements, and (y) all requirements set forth in any applicable
BRPA Contracts and Charter Documents.
(b) Except
as provided for in this Agreement or as set forth in
Schedule
3.3(b)
of the BRPA Schedules, there are no
subscriptions, options, warrants, convertible notes, derivative
securities, equity securities, or other ownership interests, calls,
rights (including preemptive rights), commitments or agreements of
any character to which BRPA is a party or by which it is bound
obligating BRPA to issue, deliver or sell, or cause to be issued,
delivered or sold, or repurchase, redeem or otherwise acquire, or
cause the repurchase, redemption or acquisition of, any shares of
capital stock or other ownership interests of BRPA or obligating
BRPA to grant, extend, accelerate the vesting of or enter into any
such subscription, option, warrant, equity security, call, right,
commitment, or agreement. BRPA does not have any outstanding bonds,
debentures, notes or other obligations the holders of which have or
upon the happening of certain events would have the right to vote
(or which are convertible into or exercisable or exchangeable for
securities having the right to vote) with the BRPA Stockholders on
any matter.
(c) Except
as set forth in Schedule
3.3(c)
of the BRPA Schedules or as
contemplated by this Agreement, there are no registration rights,
and there is no voting trust, proxy, rights plan, anti-takeover
plan, or other agreements or understandings to which BRPA or Merger
Sub is a party or by which BRPA or Merger Sub is bound with respect
to any BRPA Securities.
(d) Except
as provided for in this Agreement or as set forth in
Schedule 3.3(d)
of the BRPA Schedules, as a result of
the consummation of the Merger, no shares of capital stock,
warrants, options, or other securities of BRPA or Merger Sub are
issuable and no rights in connection with any shares, warrants,
options, or other securities of BRPA or Merger Sub accelerate or
otherwise become triggered (whether as to vesting, exercisability,
convertibility or otherwise).
34
(e) Except
as provided for in this Agreement or as set forth in
Schedule 3.3(e)
of the BRPA Schedules, no outstanding
BRPA Securities are unvested or subjected to a repurchase option,
risk of forfeiture, or other condition under any applicable
agreement with BRPA.
(f) The
authorized and outstanding capital stock of Merger Sub is 1,000
shares of common stock, par value $0.0001 per share. BRPA owns all
of the outstanding common stock of Merger Sub, free and clear of
all Liens.
(a) Each
of BRPA and Merger Sub has all requisite power and authority to
enter into this Agreement and each Ancillary Agreement to which
BRPA or Merger Sub, respectively is (or with respect to Ancillary
Agreements to be entered into at or prior to the Closing, will be)
a party and, subject to the receipt of the BRPA Stockholder
Approval, to consummate the Merger. The execution and delivery of
this Agreement and each Ancillary Agreement by BRPA and Merger Sub,
respectively, has been (or with respect to Ancillary Agreements to
be entered into at the Closing, will be) duly authorized by all
necessary corporate action on the part of BRPA and Merger Sub,
subject to the receipt of the BRPA Stockholder Approval. This
Agreement and each Ancillary Agreement to which BRPA or Merger Sub,
respectively, is (or with respect to Ancillary Agreements to be
entered into at or prior to the Closing, will be) a party (i) has
been (or, in the case of Ancillary Agreements to be entered into at
or prior to the Closing, will be when executed and delivered) duly
executed and delivered by BRPA and Merger Sub and (ii) assuming due
authorization, execution and delivery thereof by each other party
hereto and thereto, is (or, in the case of Ancillary Agreements to
be entered into at the Closing, will be when executed and
delivered) enforceable against BRPA and Merger Sub in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of
creditors’ rights generally and by general principles of
equity.
(b) The
board of directors of BRPA (the “BRPA
Board”) has, as of the
date of this Agreement, unanimously (i) determined that this
Agreement and the Transactions are advisable and in the best
interests of BRPA and its stockholders, (ii) approved this
Agreement and the Transactions in accordance with the Charter
Documents of BRPA and declared their advisability, (iii) approved
the Transactions as a Business Combination, (iv) determined that
the fair market value of the Company is equal to at least 80% of
the balance held in the Trust Fund (excluding taxes payable on the
income earned on the Trust Fund) as of the date hereof, and
(v) resolved to recommend
that the stockholders of BRPA approve each of the matters requiring
BRPA Stockholder Approval and directed that this Agreement and the
Transactions, be submitted for consideration by the stockholders of
BRPA at the BRPA Special Meeting.
(c) The
board of directors of Merger Sub has approved and declared
advisable, this Agreement and the Transactions, and BRPA, in its
capacity as the sole stockholder of Merger Sub shall approve and
adopt this Agreement by written consent immediately following its
execution.
35
(d) The
affirmative vote of (i) holders of a majority of the outstanding
shares of BRPA Common Stock present and entitled to vote at the
BRPA Special Meeting shall be required to approve the Transaction
Proposal, (ii) holders of a majority of the outstanding shares of
BRPA Common Stock cast at the BRPA Special Meeting shall be
required to approve the Nasdaq Proposal and the BRPA Plan Proposal
and (iii) holders of a majority of the outstanding shares of BRPA
Common Stock shall be required to approve the A&R Charter
Proposal, in each case, assuming a quorum is present, are the only
votes of any of BRPA’s capital stock necessary in connection
with the entry into this Agreement by BRPA, and the consummation of
the Transactions, including the Merger (the approval by BRPA
Stockholders of all of the foregoing, collectively, the
“BRPA Stockholder
Approval”)
3.5 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement and each Ancillary
Agreement to which BRPA and Merger Sub are party by BRPA and Merger
Sub does not and will not, and the consummation by BRPA and Merger
Sub of the transactions contemplated hereby and thereby does not
and will not, and the performance of this Agreement and each such
Ancillary Agreements by BRPA and Merger Sub shall not:
(i) conflict with or violate their
respective Charter Documents, (ii) conflict with or violate any
applicable Legal Requirements, (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or materially impair
BRPA’s or Merger Sub’s rights or alter the rights or
obligations of any third party under, or give to others any rights
of termination, amendment, acceleration or cancellation of, or
result in the creation of a Lien on any of the properties or assets
of BRPA or Merger Sub (other than Permitted Liens) pursuant to, any
BRPA Contracts or (iv) result in the triggering, acceleration or
increase of any payment to any Person pursuant to any BRPA
Contract, including any “change in control” or similar
provision of any BRPA Contract, except, with respect to clauses
(ii), (iii) and (iv), for any such conflicts, violations, breaches,
defaults, impairments, alterations triggerings, accelerations,
increases or other occurrences that would not, individually and in
the aggregate, have a BRPA Material Adverse
Effect.
(b) The
execution and delivery of this Agreement and each Ancillary
Agreement by BRPA and Merger Sub do not and will not, and the
performance of their respective obligations hereunder and
thereunder will not, require any consent, approval, authorization
or permit of, or filing with or notification to, any Governmental
Entity or other third party (including, without limitation, lenders
and lessors), except (i) for
applicable requirements, if any, of the Securities Act, the
Exchange Act, state securities laws, and the rules and regulations
thereunder, and appropriate documents with the relevant authorities
of other jurisdictions in which BRPA or Merger Sub is qualified to
do business, (ii) the filing of any notifications required under
the HSR Act and the expiration of the required waiting period
thereunder, and (iii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, would not, individually or in the aggregate,
reasonably be expected to prevent the consummation of the Merger or
otherwise prevent BRPA or Merger Sub from performing its material
obligations under this Agreement on a timely
basis.
.
Except as set forth in Schedule 3.6 of the BRPA
Schedules, each of BRPA and Merger Sub has complied with all, and
is not in violation of any, applicable Legal Requirements with
respect to the conduct of its business, or the ownership or
operation of its business. The businesses and activities of BRPA
and Merger Sub have not been and are not being conducted in
violation of any applicable Legal Requirements. Neither BRPA nor
Merger Sub is in default or violation in any material respect of
any term, condition or provision of any applicable Charter
Documents. Except as set forth in Schedule 3.6 of the BRPA
Schedules, no written notice of non-compliance with any applicable
Legal Requirements has been received by BRPA or Merger Sub (and
BRPA has no knowledge of any such notice delivered to any other
Person).
36
3.7 BRPA
SEC Reports and Financial Statements.
(a) Except
as set forth in Schedule 3.7(a)
of the BRPA Schedules, BRPA has timely
filed all required registration statements, reports, schedules,
forms, statements and other documents filed by BRPA with the SEC
since its formation (collectively, as they have been amended since
the time of their filing and including all exhibits thereto, the
“BRPA SEC
Reports”). None of the
BRPA SEC Reports, as of their respective dates (or, if amended or
superseded by a filing prior to the date of this Agreement or the
Closing Date, then on the date of such filing), contained any
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading. As of the date hereof, there are no
outstanding or unresolved comments in comment letters from the SEC
staff with respect to BRPA or the BRPA SEC Reports. To the
knowledge of BRPA, as of the date hereof, (i) none of the BRPA SEC
Reports is the subject of ongoing SEC review or outstanding SEC
comment and (ii) neither the SEC nor any other Governmental Entity
is conducting any investigation or review of any BRPA SEC
Report.
(b) The
audited financial statements of BRPA (“BRPA Audited Financial
Statements”) and
unaudited interim financial statements of BRPA
(“BRPA Unaudited
Financial Statements”
and, together with the BRPA Audited Financial Statements, the
“BRPA Financial
Statements”) (including,
in each case, the notes and schedules thereto) included in the BRPA
SEC Reports complied as to form in all material respects with the
published rules and regulations of the SEC with respect thereto,
were prepared in accordance with U.S. GAAP applied on a consistent
basis in accordance with past practice during the periods involved
(except as may be indicated therein or in the notes thereto and
except with respect to unaudited statements as permitted by Form
10-Q of the SEC) and Regulation S-X or Regulation S-K, as
applicable, and fairly present (subject, in the case of the
unaudited interim financial statements included therein, to normal
year-end adjustments, the effect of which are not, individually or
in the aggregate, material, and the absence of complete footnotes
to the extent permitted by Regulation S-X or Regulation S-K, as
applicable) in all material respects the financial position of BRPA
as of the respective dates thereof and the results of their
operations and cash flows for the respective periods then
ended.
(c) BRPA
has established and maintains disclosure controls and procedures
(as defined in Rule 13a-15 or 15d-15(e) under the Exchange
Act). Such disclosure controls and procedures are designed to
ensure that material information relating to BRPA is made known to
BRPA’s principal executive officer and its principal
financial officer, particularly during the periods in which the
periodic reports required under the Exchange Act are being
prepared. To BRPA’s knowledge, such disclosure controls and
procedures are effective in timely alerting BRPA’s principal
executive officer and principal financial officer to material
information required to be included in BRPA’s periodic
reports required under the Exchange Act.
(d) BRPA
has established and maintained a system of internal accounting
controls. To BRPA’s knowledge, such internal accounting
controls are effective and sufficient to provide reasonable
assurance regarding the reliability of BRPA’s financial
reporting and the preparation of the BRPA Financial Statements for
external purposes in accordance with U.S. GAAP.
37
(e) There
are no outstanding loans or other extensions of credit made by BRPA
to any executive officer (as defined in Rule 3b-7 under the
Exchange Act) or director of BRPA. BRPA has not taken any action
prohibited by Section 402 of the Sarbanes-Oxley
Act.
(f) Except
as otherwise noted in the BRPA Financial Statements, the accounts
and notes receivable of BRPA reflected in the BRPA Financial
Statements: (i) arose from
bona fide sales transactions in the ordinary course of business and
are payable on ordinary trade terms, (ii) are legal, valid and
binding obligations of the respective debtors enforceable in
accordance with their terms, except as such may be limited by
bankruptcy, insolvency, reorganization, or other similar laws
affecting creditors’ rights generally, and by general
equitable principles, (iii) are not subject to any valid set-off or
counterclaim to which BRPA has been notified in writing as of the
date hereof except to the extent set forth in such balance sheet
contained therein, and (iv) are not the subject of any actions or
proceedings brought by or on behalf of BRPA as of the date
hereof.
3.8 No
Undisclosed Liabilities. There is no
liability, debt or obligation against BRPA or its Subsidiaries that
would be required to be set forth or reserved for on a balance
sheet of BRPA and its Subsidiaries (and the notes thereto) prepared
in accordance with U.S. GAAP and in accordance with past practice,
except for liabilities and obligations (a) reflected or reserved
for on the BRPA Financial Statements or disclosed in the notes
thereto, (b) that have arisen since the date of the BRPA Financial
Statements in the ordinary course of the operation of business of
BRPA and its Subsidiaries, (c) disclosed in the BRPA
Schedules (including Section 3.8 of the BRPA
Schedules, (d) arising under this Agreement or the performance by
BRPA of its obligations hereunder, or (e) that would not,
individually or in the aggregate, reasonably be expected to be
material to BRPA and its Subsidiaries, taken as a
whole.
3.9 Absence
of Certain Developments. Except as
contemplated by this Agreement, since the date of the most recent
BRPA Financial Statement to the date of this Agreement, there has
not been a BRPA Material Adverse Effect, the business of BRPA has
been conducted in the ordinary course of business, and BRPA has not
taken any action that would have required the prior written consent
of the Company under Section 4.2 if such action had
been taken during the Interim Period.
3.10 Litigation.
Except as set forth in Schedule 3.10 of the BRPA
Schedules, there are no, and have never been any, claims, suits,
actions or proceedings pending or, to BRPA’s knowledge,
threatened against BRPA or Merger Sub before any court,
governmental department, commission, agency, instrumentality or
authority, or any arbitrator.
3.11 Employee
Benefit Plans. Neither BRPA nor
Merger Sub maintains, and neither have any liability under, any
Plan, and neither the execution and delivery of this Agreement nor
the consummation of the Merger will (i) result in any payment
(including severance, unemployment compensation, golden parachute,
bonus, or otherwise) becoming due to any shareholder, director, or
employee of BRPA or Merger Sub, or (ii) result in the acceleration
of the time of payment or vesting of any such
benefits.
3.12 Labor
Matters. Neither BRPA nor
Merger Sub is a party to any collective bargaining agreement or
other labor union contract applicable to persons employed by BRPA
or Merger Sub and BRPA does not know of any activities or
proceedings of any labor union to organize any such employees.
Other than as described in the BRPA SEC Reports, neither BRPA nor
Merger Sub has ever had any employees.
38
3.13 Business
Activities. Since its
organization, BRPA has not conducted any business activities other
than activities directed toward the accomplishment of a Business
Combination. Except as set forth in the BRPA Charter Documents,
there is no agreement, commitment, exclusive license, judgment,
injunction, order, or decree binding upon BRPA or to which BRPA is
a party which has or would reasonably be expected to have the
effect of prohibiting or materially impairing any business practice
of BRPA, any acquisition of property by BRPA, or the conduct of
business by BRPA. Since its organization, Merger Sub has not
conducted any business activities other than in connection with
this Agreement. In addition, none of BRPA or Merger Sub or any of
their respective Subsidiaries or Associates has an interest of five
percent (5%) or greater in an entity that operate in the same
industries as or compete with the Company or any of its
Subsidiaries. For purposes of this Section 3.13,
“Associate” is defined pursuant to 16 C.F.R. §
801.1(d)(2).
3.14 Title
to Property. Neither BRPA nor
Merger Sub owns or leases any real property or personal property.
Except as set forth in Schedule 3.14 of the
BRPA Schedules, there are no options or other contracts under which
BRPA or Merger Sub has a right or obligation to acquire or lease
any interest in real property or personal property.
3.15 Intellectual
Property. Neither BRPA nor
Merger Sub owns, licenses, or otherwise has any right, title or
interest in any material Intellectual Property Rights.
3.16 Taxes.
Except as set forth in Schedule 3.16 of the BRPA
Schedules:
(a) BRPA
has timely filed all material Returns required to be filed by BRPA
with any Tax authority prior to the date hereof (after giving
effect to any valid extensions of time in which to make such
filings). All such Returns are true, correct, and complete in all
material respects. BRPA has paid all material amounts of Taxes
shown to be due and payable on such Returns.
(b) All
material amounts of Taxes that BRPA is required by applicable Legal
Requirements to withhold or collect have been duly withheld or
collected and have been timely paid over to the proper Governmental
Entity to the extent due and payable.
(c) BRPA
has not been delinquent in the payment of any material amount of
Tax, nor is there any material Tax deficiency outstanding, proposed
or assessed by a taxing authority against BRPA (other than any
deficiencies that have since been resolved), nor has BRPA executed
any unexpired waiver of any statute of limitations on or extending
the period for the assessment or collection of any material amount
of Tax.
(d) No
material audit or other examination of any Return of BRPA by any
Tax authority is presently in progress, nor has BRPA been notified
of any request for such an audit or other
examination.
(e) No
material adjustment relating to any Returns filed by BRPA has been
formally proposed by any Tax authority to BRPA or any
representative thereof.
(f) BRPA
has not taken any action, nor is it aware of any fact or
circumstance that would reasonably be expected to prevent or
impede, the Merger from qualifying as a reorganization governed by
Section 368 of the Code.
39
3.17 Brokers.
Except as set forth in Schedule 3.17 of the BRPA
Schedules, neither
BRPA nor Merger Sub has incurred liability for or is obligated to
make any payments with respect to, and neither BRPA nor Merger Sub
will incur liability for or will be obligated to make any payments
with respect to, any brokerage, investment banking fees or
finders’ fees or agent’s commissions or any similar
charges in connection with this Agreement or any of the
Transactions. Except as set forth in Schedule 3.17 of the BRPA Schedules,
neither BRPA nor Merger Sub has entered into any contract,
agreement, understanding, arrangement or commitment of any sort
pursuant to which BRPA or the Surviving Corporation or any of its
direct or indirect Subsidiaries could, directly or indirectly,
incur any liability for or be obligated to make any payments with
respect to, any brokerage, investment banking fees or
finders’ fees or agent’s commissions or any similar
charges in connection with this Agreement or any of the
Transactions.
(a) Except
as set forth in the BRPA SEC Reports filed prior to the date of
this Agreement or as set forth on Schedule
3.18(a)
of the BRPA Schedules, other than
confidentiality and non-disclosure agreements, there are no
contracts, agreements, leases, mortgages, indentures, notes, bonds,
Liens, license, permit, franchise, purchase orders, sales orders or
other understandings, commitments or obligations (including without
limitation outstanding offers or proposals) of any kind, whether
written or oral, to which BRPA or Merger Sub is a party or by or to
which any of the properties or assets of BRPA or Merger Sub may be
bound, subject or affected, which may not be cancelled without
penalty or liability by BRPA on less than 30 days’ or less
prior notice (“BRPA
Contracts”). All BRPA
Contracts are listed in Schedule
3.18(a)
of the BRPA Schedules other than those
that are exhibits to the BRPA SEC Reports.
(b) Except
as set forth in the BRPA SEC Reports filed prior to the date of
this Agreement, each BRPA Contract was entered into at arms’
length and in the ordinary course, is in full force and effect, and
is valid and binding upon and enforceable against each of the
parties thereto, except insofar as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or
similar laws affecting creditors’ rights generally or by
principles governing the availability of equitable remedies. True,
correct, and complete copies of all BRPA Contracts (or written
summaries in the case of oral BRPA Contracts) have been made
available to the Company or Company counsel.
(c) Neither
BRPA, Merger Sub, nor, to the knowledge of BRPA, any other party
thereto is in breach of or in default under, and no event has
occurred which with notice or lapse of time or both would become a
breach of or default under, any BRPA Contract, and no party to any
BRPA Contract has given any written notice of any claim of any such
breach, default or event under a BRPA Contract.
3.19 Insurance.
Except for directors’ and officers’ liability
insurance, neither BRPA nor Merger Sub maintains any Insurance
Policy.
40
3.20 Interested
Party Transactions. Except as set
forth on Schedule 3.20 of the BRPA
Schedules or in the BRPA SEC Reports, none of BRPA or its
Subsidiaries is a party to any transaction, agreement, arrangement
or understanding with any (i) present or former executive officer
or director of any of BRPA or its Subsidiaries, (ii) beneficial
owner (within the meaning of Section 13(d) of the Exchange
Act) of 5% or more of the capital stock or equity interests of any
of BRPA or its Subsidiaries or (iii) Affiliate,
“associate” or member of the “immediate
family” (as such terms are respectively defined in Rules
12b-2 and 16a-1 of the Exchange Act) of any of the foregoing (each
of the foregoing, an “BRPA Affiliate
Agreement”).
3.21 BRPA
Listing. The BRPA Common
Stock, BRPA Warrants, BRPA Rights, and BRPA Units are listed for
trading on the Nasdaq Capital Market (“Nasdaq”). Except as set
forth in the BRPA SEC Reports or Schedule 3.21 of the BRPA
Schedules, there is no, and there has not been any, action or
proceeding pending or, to BRPA’s knowledge, threatened
against BRPA by Nasdaq with respect to any intention by such entity
to prohibit or terminate the listing of BRPA Common Stock on
Nasdaq. None of BRPA, Merger Sub, or any of its or their Affiliates
has taken any action in an attempt to terminate the registration of
the BRPA Common Stock under the Exchange Act.
3.22 Trust
Fund. As of the date
hereof, BRPA has no less than five million nine hundred thousand
dollars ($5,900,000) in a trust account administered by
Continental, such monies being invested in United States Government
securities or money market funds meeting the conditions under Rule
2a-7(d) promulgated under the Investment Company Act of 1940, as
amended (the “Trust
Fund”), held in trust pursuant to that certain
Investment Management Trust Agreement, dated as of November 20,
2017, between BRPA and Continental (the “Trust Agreement”). The
Trust Agreement is valid and in full force and effect and
enforceable in accordance with its terms and has not been amended
or modified. There are no separate contracts, side letters or other
arrangements or understandings (whether written or unwritten,
express or implied) that would cause the description of the Trust
Agreement in the BRPA SEC Reports to be inaccurate or that would
entitle any Person (other than pursuant to valid redemptions by
BRPA Stockholders) to any portion of the proceeds in the Trust
Fund. There are no proceedings pending or, to the knowledge of
BRPA, threatened with respect to the Trust Fund. The Trust Fund
will be utilized in accordance with Section 5.13.
3.23 Registration
Statement. None of the
information relating to BRPA and Merger Sub to be included in the
Registration Statement will, as of the date the Registration
Statement (or any amendment or supplement thereto) is first mailed
to the BRPA Stockholders, at the time of the BRPA Special Meeting,
or at the Effective Time, contain any untrue statement of a
material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, notwithstanding the
foregoing provisions of this Section 3.23, no
representation or warranty is made by BRPA with respect to
information or statements made or incorporated by reference in the
Registration Statement that were not supplied by or on behalf of
BRPA for use therein.
3.24 No
Additional Representations and Warranties; No
Reliance. Except as
provided in this Article
III (as modified by the BRPA Schedules), neither BRPA,
Merger Sub, any of its or their Affiliates, nor any of their
respective directors, officers, employees, shareholders, partners,
members or representatives has made, or is making, any
representation or warranty whatsoever to the Company, any
Subsidiary, or their Affiliates, and no such Party shall be liable
in respect of the accuracy or completeness of any information
provided to the Company, any Subsidiary or their Affiliates. BRPA
and Merger Sub each acknowledges and agrees (on its own behalf and
on behalf of its Affiliates and its respective Representatives)
that: (i) it has conducted its own independent investigation of the
financial condition, results of operations, assets, liabilities,
properties and projected operations of the Company and its
Subsidiaries; (ii) it has been afforded satisfactory access to the
books and records, facilities and personnel of the Company and its
Subsidiaries for purposes of conducting such investigation; (iii)
except for the representations and warranties set forth in
Article II (as
modified by the Company Schedules), it is not relying on any
representations and warranties from any Person in connection with
the Transactions, and (iv) neither the Company nor any of its
stockholders, Affiliates or Representatives is making, directly or
indirectly, any representation or warranty with respect to any
estimates, projections or forecasts involving the Company. Neither
the Company nor any of its stockholders, Affiliates or
Representatives shall have any liability to BRPA or Merger Sub or
any of their respective stockholders, Affiliates or Representatives
resulting from the use of any information, documents or materials
made available to BRPA, Merger Sub or any of their Representatives,
whether orally or in writing, in any confidential information
memoranda, “data rooms,” management presentations, due
diligence discussions or in any other form in expectation of the
Transactions except as set forth in this Agreement and the
Ancillary Agreements.
41
ARTICLE IV
CONDUCT
PRIOR TO CLOSING
4.1 Conduct
of Business by the Company. During the period
from the date of this Agreement and continuing until the earlier of
the termination of this Agreement pursuant to its terms and the
Closing (the “Interim Period”), each of
the Company and the Company’s Subsidiaries shall, except to
the extent that BRPA shall otherwise consent in writing (which
consent shall not be unreasonably withheld, conditioned or delayed)
or as set forth in Schedule 4.1 of the
Company Schedules or as contemplated by this Agreement, carry on
its business in the usual, regular and ordinary course consistent
with past practices, in substantially the same manner as heretofore
conducted and in compliance with all applicable Legal Requirements
(except as expressly contemplated by Schedule 4.1 of the
Company Schedules) and use its commercially reasonable efforts
consistent with past practices and policies to (i) preserve
substantially intact its present business organization, (ii) keep
available the services of its present key officers and employees,
and (iii) preserve its relationships with key customers, suppliers,
distributors, licensors, licensees, and others with which it has
significant business dealings; provided, that, in the case of
each of the preceding clauses (i)-(iii), during any period of full
or partial suspension of operations related to COVID-19 or
SARS-CoV-2 virus (or any mutation or variation thereof), the
Company may, in connection with the COVID-19 pandemic (or any
mutation or variation thereof), take such actions as are reasonably
necessary (A) to protect the health and safety of the
Company’s or its Subsidiaries’ employees and other
individuals having business dealings with the Company or its
Subsidiaries or (B) to reasonably respond to third-party supply or
service disruptions caused by the COVID-19 pandemic, COVID-19 or
SARS-CoV-2 virus (or any mutation or variation thereof), shall
provide prompt notice to BRPA of the taking of any action permitted
by this proviso. In addition, except as required or permitted or
contemplated by the terms of this Agreement or as set forth in
Schedule
4.1
of the Company Schedules, without the prior written consent of
BRPA, which consent shall not be unreasonably withheld, conditioned
or delayed, during the Interim Period, the Company and the
Company’s Subsidiaries shall not do any of the
following:
(a) Waive
any stock repurchase rights, accelerate, amend or (except as
specifically provided for herein) change the period of
exercisability of options or restricted stock, or reprice options
granted under any Plan or authorize cash payments in exchange for
any options granted under any Plan;
(b) Grant
any material severance or termination pay to (i) any officer or (ii) any employee, except
pursuant to applicable Legal Requirements, written agreements
outstanding, or Plans or policies existing on the date hereof and
as previously or concurrently disclosed or made available to the
other Party, or in the case of the Company and its Subsidiaries
except in connection with the promotion, hiring or firing of any
employee in the ordinary course of business consistent with past
practice;
(c) Abandon,
dispose of, allow to lapse, transfer, sell, assign, or exclusively
license to any Person or otherwise extend, amend or modify any
existing or future Intellectual Property
Rights;
42
(d) Fail
to pay its accounts payable or collect its accounts receivable in
accordance with past practices;
(e) Declare,
set aside or pay any dividends on or make any other distributions
(whether in cash, stock, equity securities or property) in respect
of any capital stock or other equity securities (other than any
such dividend or distribution by a Subsidiary of the Company to the
Company or another such Subsidiary), or split, combine or
reclassify any capital stock or other equity securities or issue or
authorize the issuance of any other securities in respect of, in
lieu of or in substitution for any capital
stock;
(f) Purchase,
redeem or otherwise acquire, directly or indirectly, any shares of
capital stock or other equity securities or ownership
interests;
(g) Issue,
deliver, sell, authorize, pledge or otherwise encumber, or agree to
any of the foregoing with respect to, any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or ownership interests, or subscriptions,
rights, warrants or options to acquire any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or other ownership interests, or enter into
other agreements or commitments of any character obligating it to
issue any such shares, equity securities or other ownership
interests or convertible or exchangeable securities at an implied
equity valuation of the Company of less than $500,000,000;
provided
that this clause (g) shall not
prohibit the issuances of shares in respect of any exercise of
Company Stock Options, which shares, for the avoidance of doubt,
will be converted into the Per Share Merger Consideration pursuant
to Section
1.3(b); provided,
further,
that the Company may grant equity compensation awards in respect of
shares of Company Common Stock in connection with the hiring of new
employees or promotions of employees or pursuant to Plans existing
as of the date hereof, which equity awards shall be treated for all
purposes of this Agreement as Company Stock
Options;
(h) Amend
its Charter Documents in any material respect;
(i) Acquire
or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a material portion of the
assets of, or by any other manner, any business or any corporation,
partnership, association, or other business organization or
division thereof, or otherwise acquire or agree to acquire outside
the ordinary course of business any assets which are material,
individually or in the aggregate, to the business of such Party or
enter into any joint ventures, strategic partnerships or alliances,
or other arrangements that provide for exclusivity of territory or
otherwise restrict such Party’s ability to compete or to
offer or sell any products or services to other Persons. For
purposes of this paragraph, “material” includes the
requirement that, as a result of such transaction, financial
statements of the acquired, merged, or consolidated entity be
included in the Registration Statement;
(j) Sell,
lease, license, encumber or otherwise dispose of any properties or
assets, except the sale, lease or disposition of property or assets
in the ordinary course of business consistent with past practices
that are not material, individually or in the aggregate, to the
business of the Company;
43
(k) Except
as contemplated by Section 5.15
hereunder, or as otherwise required by
applicable Legal Requirements or pursuant to an existing Plan,
policy or Company Contract, (i)
adopt or materially amend any Plan (including any Plan that
provides for severance) or collective bargaining agreement (in each
case, other than in the ordinary course of business consistent with
past practice), (ii) pay any special bonus or special remuneration
to any director or employee, except in the ordinary course of
business consistent with past practices, or (iii) materially
increase the salaries or wage rates or fringe benefits (including
rights to severance or indemnification) of its directors, officers,
employees or consultants, except in the ordinary course of business
consistent with past practices;
(l) (i)
Pay, discharge, settle or satisfy any material claims, liabilities
or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), or litigation (whether or not commenced
prior to the date of this Agreement) other than the payment,
discharge, settlement or satisfaction of any claims, liabilities or
obligations in the ordinary course of business consistent with past
practices or in accordance with their terms, or recognized or
disclosed in the most recent Company Financial Statements, as
applicable, or incurred since the date of such financial
statements, (ii) settle any material litigation where the
consideration given by the Party is other than monetary or to which
an officer, director or employee of such Person is a party in his
or her capacity as such, or (iii) waive the benefits of, agree to
modify in any material manner, terminate, release any Person from
or knowingly fail to enforce any material confidentiality or
similar agreement to which the Company or any of its Subsidiaries
is a party or of which the Company any of its Subsidiaries is a
beneficiary (other than with customers and other counterparties in
the ordinary course of business consistent with past
practices);
(m) Except
in the ordinary course of business consistent with past practices,
modify in any material respect or terminate (other than in
accordance with its terms) any Material Company Contract or waive,
delay the exercise of, release or assign any material rights or
claims thereunder;
(n) Except
as required by law or U.S. GAAP, revalue any of its assets in any
manner or make any change in accounting methods, principles or
practices;
(o) Except
(i) in the ordinary course of business consistent with past
practices, or (ii) in connection with the promotion, hiring or
firing of any employee, incur or enter into any agreement, contract
or commitment requiring such Party to pay in excess of $500,000 in
any 12-month period;
(p) Make,
revoke, amend, or rescind any material Tax elections that,
individually or in the aggregate, would be reasonably likely to
adversely affect the Tax liability or Tax attributes of such Party,
settle or compromise any material income Tax liability outside the
ordinary course of business or, except as required
by applicable Legal
Requirements, change any
material method of accounting for Tax purposes or prepare or file
any material Return in a manner inconsistent with past
practice;
(q) Form
or establish any Subsidiary except in the ordinary course of
business consistent with prior practice or as contemplated by this
Agreement;
44
(r) Make
capital expenditures in excess of $500,000;
(s) Enter
into any material transaction with or distribute or advance any
assets or property to any of its officers, directors, partners,
stockholders, managers, members or other Affiliates other
than (i) the payment of salary
and benefits and the advancement of expenses in the ordinary course
of business consistent with prior practice or (ii) such
distributions or advancements by a Subsidiary of the Company to the
Company or another such Subsidiary;
(t) Close
any facility or discontinue any material line of business or any
material business operations; or
(u) Agree
in writing or otherwise agree or commit to take any of the actions
described in Section
4.1(a)
through (t)
above.
4.2 Conduct
of Business by BRPA and Merger Sub. During the Interim
Period, each of BRPA and Merger Sub shall, except to the extent
that the Company shall otherwise consent in writing (which consent
shall not be unreasonably withheld, conditioned or delayed) or as
set forth in
Schedule 4.2 of the BRPA Schedules
or as contemplated by this Agreement, carry on its business in the
usual, regular and ordinary course consistent with past practices,
in substantially the same manner as heretofore conducted and in
compliance with all applicable Legal Requirements (except as
expressly contemplated by
Schedule 4.2 of the BRPA Schedules)
and use its reasonable best efforts consistent with past practices
and policies to (i) preserve substantially intact its present
business organization and (ii) keep available the services of its
present key officers. In addition, except as required or permitted
or contemplated by the terms of this Agreement or as set forth
in
Schedule 4.2 of the BRPA Schedules,
without the prior written consent of the Company, which consent
shall not be unreasonably withheld, conditioned or delayed, during
the Interim Period, BRPA and Merger Sub shall not do any of the
following:
(a) Waive
any stock repurchase rights;
(b) Grant
any severance or termination pay to, or hire, any (i) officer or
(ii) any employee;
(c) Abandon,
dispose of, allow to lapse, transfer, sell, assign, or exclusively
license to any Person or otherwise extend, amend or modify any
existing or future Intellectual Property
Rights;
(d) Fail
to pay its accounts payable or collect its accounts receivable in
accordance with past practices;
(e) Declare,
set aside or pay any dividends on or make any other distributions
(whether in cash, stock, equity securities or property) in respect
of any capital stock or other equity securities, or split, combine
or reclassify any capital stock or other equity securities or issue
or authorize the issuance of any other securities in respect of, in
lieu of or in substitution for any capital
stock;
45
(f) Purchase,
redeem or otherwise acquire, directly or indirectly, any shares of
capital stock or other equity securities or ownership interests,
except with respect to redemptions of BRPA Common Stock by BRPA
Stockholders in connection with the Offer;
(g) Issue,
deliver, sell, authorize, pledge or otherwise encumber, or agree to
any of the foregoing with respect to, any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or ownership interests, or subscriptions,
rights, warrants or options to acquire any shares of capital stock
or other equity securities or ownership interests or any securities
convertible into or exchangeable for shares of capital stock or
other equity securities or other ownership interests, or enter into
other agreements or commitments of any character obligating it to
issue any such shares, equity securities or other ownership
interests or convertible or exchangeable
securities;
(h) Amend
its Charter Documents in any respect, other than (1) to effectuate
the BRPA A&R Charter and the BRPA A&R Bylaws or (2) make
any necessary amendments to the BRPA’s Amended and Restated
Certificate of Incorporation solely in connection with the
Extension;
(i) Acquire
or agree to acquire by merging or consolidating with, or by
purchasing any equity interest in or a portion of the assets of, or
by any other manner, any business or any corporation, partnership,
association, or other business organization or division thereof, or
otherwise acquire or agree to acquire any assets or enter into any
joint ventures, strategic partnerships or alliances, or other
arrangements that provide for exclusivity of territory or otherwise
restrict such Party’s ability to compete or to offer or sell
any products or services to other Persons;
(j) Sell,
lease, license, encumber or otherwise dispose of any properties or
assets;
(k) Except
for BRPA Borrowings, incur any indebtedness for borrowed money or
guarantee any such indebtedness of another Person or Persons (other
than Affiliates), issue or sell any debt securities or options,
warrants, calls or other rights to acquire any debt securities,
enter into any “keep well” or other agreement to
maintain any financial statement condition or enter into any
arrangement having the economic effect of any of the
foregoing;
(l) (i)
Adopt or materially amend any Plan (including any Plan that
provides for severance), or enter into any employment contract or
collective bargaining agreement (other than in the ordinary course
of business consistent with past practice), (ii) pay any special
bonus or special remuneration to any director or employee, or (iii)
increase the salaries or wage rates or fringe benefits (including
rights to severance or indemnification) of its directors, officers,
employees or consultants;
(m) (i)
Pay, discharge, settle or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent
or otherwise), or litigation (whether or not commenced prior to the
date of this Agreement), or (ii) waive the benefits of, agree to
modify in any material manner, terminate, release any Person from
or knowingly fail to enforce any material confidentiality or
similar agreement to which the BRPA or any of its Subsidiaries is a
party or of which BRPA or any of its Subsidiaries is a
beneficiary;
46
(n) Except
in the ordinary course of business consistent with past practices,
modify in any respect or terminate (other than in accordance with
its terms) any BRPA Contract, as applicable, or waive, delay the
exercise of, release or assign any material rights or claims
thereunder;
(o) Except
as required by law or U.S. GAAP, revalue any of its assets in any
manner or make any change in accounting methods, principles or
practices;
(p) Incur
or enter into any agreement, contract or commitment requiring such
Party to pay in excess of $10,000 in any 12-month
period;
(q) Make,
revoke, amend, or rescind any Tax elections that, individually or
in the aggregate, would be reasonably likely to adversely affect
the Tax liability or Tax attributes of such Party, settle or
compromise any income Tax liability outside the ordinary course of
business or, except as required
by applicable Legal
Requirements, change any method
of accounting for Tax purposes or prepare or file any Return in a
manner inconsistent with past practice;
(r) Form
or establish any Subsidiary except as contemplated by this
Agreement;
(s) Make
capital expenditures;
(t) Enter
into any transaction with or distribute or advance any assets or
property to any of its officers, directors, partners, stockholders,
managers, members or other Affiliates;
(u) enter
into, renew or amend in any material respect, any BRPA Affiliate
Agreement (or any contract, that if existing on the date hereof,
would have constitute an BRPA Affiliate Agreement);
or
(v) Agree
in writing or otherwise agree or commit to take any of the actions
described in Section 4.2(a)
through (v)
above.
4.3 Confidentiality;
Access to Information.
(a) Confidentiality.
BRPA acknowledges that the information being provided to it in
connection with this Agreement and the consummation of the
Transactions is subject to the terms of the Confidentiality
Agreement, the terms of which are incorporated herein by reference.
At the Effective Time, the Confidentiality Agreement shall
terminate with respect to information relating to the Company and
its Subsidiaries.
47
(b) Access
to Information.
(i) Subject
to the terms of the Confidentiality Agreement and any other
confidentiality obligations and similar restrictions that may be
applicable to information furnished to the Company or its
Subsidiaries by third parties that may be in the Company’s or
its Subsidiaries’ possession from time to time, and except
for any information which (x) in the opinion of legal counsel of
the Company would result in the loss of attorney-client privilege
or other privilege from disclosure or would conflict with any
applicable law, or (y) relates to interactions with prospective
buyers of the Company or the negotiation of this Agreement and the
Transactions, the Company will afford BRPA and its Representatives
(subject to the execution of customary access letters) reasonable
access during normal business hours, upon reasonable notice, in
such manner as to not interfere with the normal operation of the
Company and its Subsidiaries, to the properties, books, records and
management personnel of the Company during the Interim Period to
obtain all information concerning the business, including the
status of business development efforts, properties, results of
operations and personnel of the Company, as BRPA may reasonably
request; provided, that such access shall not include any invasive
or intrusive investigations or other testing, sampling or analysis
of any properties, facilities or equipment of the Company or its
Subsidiaries without the prior written consent of the Company. The
Parties shall use reasonable best efforts to make alternative
arrangements for such disclosure where the restrictions in the
preceding sentence apply. No information or knowledge obtained by
BRPA in any investigation pursuant to this Section
4.3(b)(i)
will affect or be deemed to modify any
representation or warranty contained herein or the conditions to
the obligations of the Parties to consummate the
Merger.
(ii) Subject
to the terms of the Confidentiality Agreement and any other
confidentiality obligations and similar restrictions that may be
applicable to information furnished to BRPA by third parties that
may be in BRPA’s possession from time to time, and except for
any information which (x) in the opinion of legal counsel of BRPA
would result in the loss of attorney-client privilege or other
privilege from disclosure or would conflict with any applicable
law, or (y) relates to interactions with prospective targets for a
Business Combination or the negotiation of this Agreement and the
Transactions, BRPA will afford the Company and its Representatives
(subject to the execution of customary access letters) reasonable
access during normal business hours, upon reasonable notice, in
such manner as to not interfere with the normal operation of BRPA,
to the properties, books, records and personnel of BRPA during the
Interim Period to obtain all information concerning the business,
including properties, results of operations and personnel of BRPA,
as the Company may reasonably request. The Parties shall use
reasonable best efforts to make alternative arrangements for such
disclosure where the restrictions in the preceding sentence apply.
No information or knowledge obtained by the Company in any
investigation pursuant to this Section
4.3(b)(ii)
will affect or be deemed to modify any
representation or warranty contained herein or the conditions to
the obligations of the Parties to consummate the
Merger.
48
4.4 Exclusivity.
(a) During
the Interim Period, to the extent not inconsistent with the
fiduciary duties of the BRPA Board, BRPA shall not, shall cause its
Subsidiaries not to, and shall use its reasonable best efforts to
cause its and their Representatives not to, directly or indirectly,
solicit, initiate, enter into, or continue discussions,
negotiations, or transactions with, or encourage or respond to any
inquiries or proposals by, or provide any information to any Person
relating to, or enter into or consummate any transaction relating
to, (i) any Business Combination, merger, or sale of ownership
interests or material assets of BRPA, or a recapitalization, share
exchange, or similar transaction with respect to BRPA or any of its
Subsidiaries or (ii) any financing, investment, acquisition,
purchase, merger, sale or any other similar transaction that would
restrict, prohibit or inhibit the Company’s or BRPA’s
ability to consummate the Merger and the other Transactions, in
each case, other than the Merger and the other Transactions (the
transactions in subsections (i) and (ii), collectively
“BRPA Competing
Transactions”). In
addition, BRPA will, and will cause its Subsidiaries and use
reasonable best efforts to cause its and their Representatives to,
promptly cease any and all existing discussions or negotiations
with any Person conducted heretofore with respect to any BRPA
Competing Transaction. BRPA will promptly (and in any event within
two (2) Business Days) notify the Company if BRPA or any of its
Subsidiaries, or, to BRPA’s knowledge, any of BRPA’s
Representatives receives any inquiry, proposal, offer or submission
with respect to a BRPA Competing Transaction (including the
identity of the Person making such inquiry or submitting such
proposal, offer or submission), after the execution and delivery of
this Agreement, and will provide the Company with a copy of such
inquiry, proposal, offer or submission.
(b) During
the Interim Period, to the extent not inconsistent with the
fiduciary duties of the Company Board, the Company shall not, shall
cause its Subsidiaries not to, and shall use its reasonable best
efforts to cause its and their Representatives not to, directly or
indirectly, solicit, initiate, enter into, or continue discussions,
negotiations, or transactions with, or encourage or respond to any
inquiries or proposals by, or provide any information to any Person
relating to, or enter into or consummate any transaction relating
to, (i) any merger or sale of ownership interests or material
assets of the Company, or a recapitalization, share exchange, or
similar transaction with respect to the Company or any of its
Subsidiaries or (ii) any financing, investment, acquisition,
purchase, merger, sale or any other similar transaction that would
restrict, prohibit or inhibit the Company’s or BRPA’s
ability to consummate the Merger and the other Transactions, in
each case, other than the Merger and the other Transactions (the
transactions in subsections (i) and (ii), collectively
“Company Competing
Transactions”). In
addition, the Company will, and will cause its Subsidiaries and use
reasonable best efforts to cause its and their Representatives to,
promptly cease any and all existing discussions or negotiations
with any Person conducted heretofore with respect to any Company
Competing Transaction. The Company will promptly (and in any event
within two (2) Business Days) notify BRPA if the Company or any of
its Subsidiaries, or, to the Company’s knowledge, any of the
Company’s Representatives receives any inquiry, proposal,
offer or submission with respect to a Company Competing Transaction
(including the identity of the Person making such inquiry or
submitting such proposal, offer or submission), after the execution
and delivery of this Agreement, and will provide BRPA with a copy
of such inquiry, proposal, offer or submission.
49
(c) Notwithstanding
anything in this Agreement to the contrary, nothing contained in
this Agreement shall restrict or limit the ability of the Company
Board or the BRPA Board from exercising or acting in accordance
with their respective fiduciary duties under applicable law. The
Parties agree that the rights and remedies for noncompliance with
this Section 4.4
include specific performance, it being
acknowledged and agreed that any breach or threatened breach will
cause irreparable injury to the non-breaching Party and that money
damages would not provide an adequate remedy for such
injury.
(d) Notwithstanding
anything in this Agreement to the contrary, if, at any time prior
to obtaining the Company Stockholder Approval, the Company Board
determines in good faith, after consultation with its outside legal
counsel, in response to any proposal or offer from any Person or
“group” (as defined in the Exchange Act) to the Company
or the Company Board with respect to a Company Competing
Transaction (such proposal or offer, an “Acquisition
Proposal”) that such
Acquisition Proposal constitutes a Superior Proposal and that the
failure to terminate this Agreement pursuant to Section 7.1(h)
to enter into a definitive agreement
with respect to such Superior Proposal would be inconsistent with
its fiduciary duties under applicable law, the Company or the
Company Board may, prior to obtaining the Company Stockholder
Approval, terminate this Agreement pursuant to Section 7.1(h)
to enter into a definitive agreement
with respect to such Superior Proposal; provided,
that the Company pays to BRPA the Termination Fee required to be
paid pursuant Section
7.2(b)(i) at or after the time
of such termination in accordance with Section
7.2(b)(i); provided, further,
that the Company will not be entitled to terminate this Agreement
in accordance with Section 7.1(h) unless
the Company delivers to BRPA a written notice advising BRPA that
the Company Board proposes to take such action. For purposes of this Agreement,
“Superior
Proposal” means a bona
fide and written Acquisition Proposal made after the date hereof
that the Company Board in good faith determines (after consultation
with its outside legal counsel) is reasonably likely to be
consummated in accordance with its terms and would, if consummated,
result in a transaction that is more favorable from a financial
point of view to the stockholders of the Company (solely in their
capacity as such) than the transactions contemplated hereby after
taking into account all such factors and matters deemed relevant in
good faith by the Company Board, including legal, financial
(including the financing terms of any such proposal), regulatory,
timing or other aspects of such proposal and this Agreement and the
transactions contemplated hereby.
4.5 Reasonable
Best Efforts. Upon the terms
and subject to the conditions set forth in this Agreement, each of
the Parties agrees to use its reasonable best efforts to take, or
cause to be taken, all actions, and to do, or cause to be done, and
to assist and cooperate with the other parties in doing, all things
reasonably necessary, proper or advisable to consummate and make
effective, in the most expeditious manner practicable, the Merger,
including using reasonable best efforts to accomplish the
following: (i) the taking of such reasonable acts necessary to
cause the conditions precedent set forth in Article VI to
be satisfied, (ii) the obtaining of such reasonably necessary
actions, waivers, consents, approvals, orders and authorizations
from Governmental Entities and the making of such reasonably
necessary registrations, declarations and filings (including
registrations, declarations and filings with Governmental Entities,
if any) and the taking of such reasonable steps as may be
reasonably necessary to avoid any suit, claim, action,
investigation or proceeding by any Governmental Entity, (iii) the
obtaining of such material consents, approvals or waivers from
third parties required as a result of the Merger, including the
consents referred to in Schedule 2.5 of the
Company Schedules, (iv) the defending of any suits, claims,
actions, investigations or proceedings, whether judicial or
administrative, challenging this Agreement or the consummation of
the Merger, including seeking to have any stay or temporary
restraining order entered by any court or other Governmental Entity
vacated or reversed, and (v) the execution or delivery of any
additional instruments reasonably necessary to consummate the
transactions contemplated by, and to fully carry out the purposes
of, this Agreement. Notwithstanding anything herein to the
contrary, nothing in this Agreement shall be deemed to require BRPA
or the Company to agree to any divestiture by itself or any of its
Affiliates of shares of capital stock or of any business, assets or
property, or the imposition of any material limitation on the
ability of any of them to conduct their business or to own or
exercise control of such assets, properties and stock.
50
ARTICLE V
ADDITIONAL
AGREEMENTS
5.1 Registration
Statement; BRPA Special Meeting.
(a) As
promptly as practicable after the execution of this Agreement, BRPA
(with the assistance and cooperation of the Company as reasonably
requested by BRPA) shall use reasonable best efforts to prepare and
file with the SEC a registration statement on Form S-4 (as amended
or supplemented from time to time, and including the Proxy
Statement and the Consent Solicitation Statement contained therein,
the “Registration
Statement”) in connection
with the registration under the Securities Act of the BRPA Common
Stock to be issued under this Agreement, which Registration
Statement will also contain the Proxy Statement and the Consent
Solicitation Statement. The Registration Statement shall include
for registration all shares of BRPA Common Stock issued under this
Agreement, including the Earnout Shares.
(b) BRPA
agrees to include provisions in the Proxy Statement and to take
reasonable action related thereto, with respect to (i) the approval
of the Business Combination and the adoption and approval of this
Agreement (the “Transaction
Proposal”), (ii) the
approval of the BRPA A&R Charter (the
“A&R
Charter Proposal”) and
each change to the BRPA A&R Charter that is required to be
separately approved, (iii) the approval of amended and restated
bylaws of BRPA (“A&R Bylaws
Proposal”); (iv) to the
extent required by the Nasdaq listing rules, the approval of the
issuance of the aggregate Per Share Merger Consideration, the
Earnout Shares, and any BRPA Common Stock issued in a Financing, if
any (the “Nasdaq
Proposal”), (v) the
approval of the election of each of the directors nominated to
comprise the board of directors of BRPA (the
“Election of Directors
Proposal”), (vi) the
approval and adoption of the BRPA Plan (the
“BRPA Plan
Proposal”), (vii)
adjournment of the BRPA Special Meeting, if necessary, to permit
further solicitation of proxies because there are not sufficient
votes to approve and adopt any of the foregoing proposals or if
BRPA and the Company mutually determine that the Merger cannot be
consummated for any reason, and (viii) the approval of any other
proposals reasonably agreed by BRPA and the Company to be necessary
or appropriate in connection with the transaction contemplated
hereby (the “Additional
Proposal” and together
with the Transaction Proposal, the A&R Charter Proposal, the
A&R Bylaws Proposal, the Nasdaq Proposal, the Election of
Directors Proposal and the BRPA Plan Proposal, the
“BRPA Stockholder
Matters”). Without the
prior written consent of the Company, the BRPA Stockholder Matters
shall be the only matters (other than procedural matters) that BRPA
shall propose to be acted on by BRPA’s stockholders at the
BRPA Special Meeting.
(c) The
Company shall provide to BRPA all financial and other information
relating to the Company as BRPA may reasonably request for the
preparation of the Registration Statement. BRPA, with the
assistance of the Company, shall promptly respond to any SEC
comments on the Registration Statement and shall otherwise use
reasonable best efforts to cause the Registration Statement to be
approved by the SEC as promptly as practicable. BRPA shall also
take any and all actions required to satisfy the requirements of
the Securities Act and the Exchange Act. BRPA will advise the
Company promptly after it receives notice of: (i) the time when the
preliminary Registration Statement has been filed; (ii) in the
event the preliminary Registration Statement is not reviewed by the
SEC, the expiration of the waiting period in Rule 14a-6(a) under
the Exchange Act; (iii) in the event the preliminary Registration
Statement is reviewed by the SEC, receipt of oral or written
notification of the completion of the review by the SEC; (iv) the
filing of any supplement or amendment to the Registration
Statement; (v) any request by the SEC for amendment of the
Registration Statement; (vi) any comments from the SEC relating to
the Registration Statement and responses thereto; and (vii)
requests by the SEC for additional information.
51
(d) As
soon as practicable following the SEC declaring the Registration
Statement effective (the “SEC Approval
Date”), (x) BRPA shall
(i) distribute the Registration Statement to the BRPA Stockholders,
(ii) having, prior to the SEC Approval Date, established the record
date therefor (which record date shall be mutually agreed with the
Company), duly call, give notice of, convene and hold the BRPA
Special Meeting in accordance with the DGCL and subject to the
other provisions of this Agreement, and (iii) subject to the other
provisions of this Agreement, solicit proxies from such holders to
vote in favor of the BRPA Stockholder Matters in compliance with
the DGCL and (y) the Company shall distribute the Consent
Solicitation Statement to the Company Stockholders in accordance
with Section 5.16.
Notwithstanding the foregoing provisions of this
Section 5.1(d),
if on a date for which the BRPA Special Meeting is scheduled, BRPA
and the Company mutually determine that the Merger cannot be
consummated for any reason, BRPA shall have the right (subject to
obtaining the Company’s prior written consent, which shall
not be unreasonably withheld, conditioned, or delayed) to make one
or more successive postponements or adjournments of the BRPA
Special Meeting, provided that BRPA continues to satisfy its
obligations under Section 5.1(f)
below.
(e) BRPA
and the Company shall each use their reasonable best efforts to
comply with all applicable provisions of and rules under the
Securities Act, Exchange Act, all applicable provisions of the
DGCL, as applicable, in the preparation, filing and distribution of
the Registration Statement. BRPA shall use its reasonable best
efforts to comply with all applicable provisions of and rules under
the Securities Act, Exchange Act, all applicable provisions of the
DGCL, as applicable, in the solicitation of proxies thereunder, and
the calling and holding of the BRPA Special Meeting. Without
limiting the foregoing, BRPA and the Company shall each use their
reasonable best efforts to cause the Registration Statement when
filed with the SEC to comply in all material respects with all
Legal Requirements applicable thereto and to not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements made in light of the
circumstances under which they were made, not misleading (provided
that no Party shall be responsible for the accuracy or completeness
of any information relating to another Party or any other
information furnished by another Party for inclusion in the
Registration Statement).
(f) BRPA,
acting through the BRPA Board, shall recommend to its stockholders
that they approve the BRPA Stockholder Matters (the
“BRPA Board
Recommendation”) and shall include the BRPA Board
Recommendation in the Proxy Statement, subject to the provisions of
this Section 5.1(f).
Neither the BRPA Board nor
any committee or agent or representative thereof shall withhold,
withdraw or modify, or publicly propose or resolve to withhold,
withdraw or modify in a manner adverse to the Company the BRPA
Board Recommendation (any such event, a “BRPA Change
in Recommendation”); provided, that the BRPA Board
may make a BRPA Change in Recommendation if it determines in good
faith, after consultation with its outside legal counsel, that a
failure to make a BRPA Change in Recommendation would be
inconsistent with its fiduciary duties under applicable Legal
Requirements.
5.2 Directors
and Officers of BRPA After Transactions. The Parties shall
take all necessary action so that the persons listed on
Schedule 5.2 of the
Company Schedules are elected and appointed to the positions of
officers and directors of BRPA as set forth therein, to serve in
such positions effective immediately after the Closing. If any
Person listed on Schedule
5.2 of the Company Schedules is unable to serve, the Party
appointing such Person shall designate a successor. Except as
otherwise agreed in writing by the Company and BRPA prior to the
Closing, the Parties shall take all necessary action so that all of
the members of the board of directors of BRPA and all officers of
BRPA resign effective as of the Closing unless such member or
officer is included on Schedule 5.2 of the Company
Schedules.
52
5.3 HSR
Act.
(a) If
required pursuant to the HSR Act, as promptly as practicable, BRPA
and the Company shall use reasonable best efforts to (a) each
prepare and file the notification required of it thereunder in
connection with the Merger as soon as reasonably practicable but no
later than twenty (20) Business Days following January 14, 2021,
(b) promptly and in good faith respond to all information requested
of it by the Federal Trade Commission and Department of Justice in
connection with such notification and otherwise cooperate in good
faith with each other and such Governmental Entities, (c) each
request early termination of any waiting period under the HSR Act,
and (d) submit, as soon as practicable, any other required
applications or filings pursuant to any Antitrust Laws and furnish
to the other Party as promptly as reasonably practicable all
information required for any application or other filing required
to be made pursuant to any Antitrust Law. BRPA and the Company
shall substantially comply with any information or document
requests by the Federal Trade Commission or the Department of
Justice in connection with the Merger. BRPA and the Company shall
(i) promptly inform the other of any substantive communication to
or from the Federal Trade Commission, the Department of Justice or
any other Governmental Entity regarding the Merger and permit
counsel to the other Party an opportunity to review in advance, and
each Party shall consider in good faith the views of such counsel
in connection with, any proposed written communications by such
Party to any Governmental Entity concerning the Merger, (ii) give
the other prompt notice of the commencement of any judicial or
administrative action, suit, litigation, arbitration, proceeding by
or before any Governmental Entity with respect to such
transactions, and (iii) keep the other reasonably informed as to
the status of any such action. Each Party agrees to provide, to the
extent permitted by the applicable Governmental Entity, the other
Party and its counsel the opportunity, on reasonable advance
notice, to participate in any substantive meetings or discussions,
either in person or by telephone, between such Party and/or any of
its Affiliates, agents or advisors, on the one hand, and any
Governmental Entity, on the other hand, concerning or in connection
with the Merger; provided, neither Party shall extend any waiting
period or comparable period under the HSR Act or enter into any
agreement with any Governmental Entity without the written consent
of the other Party. Any materials exchanged in connection with
this Section 5.3
may be redacted or withheld as
necessary to address reasonable privilege or confidentiality
concerns of legal counsel of the Company, and to remove references
concerning the valuation of the Company or other competitively
sensitive material; provided,
that the Company may, as it deems advisable and necessary,
designate any materials provided to the BRPA under this
Section 5.3
as “outside counsel only.”
Filing fees with respect to the notifications required under the
HSR Act shall be paid by the Company.
(b) BRPA
shall not, and shall cause its Subsidiaries not to, acquire or
agree to acquire, by merging with or into or consolidating with, or
by purchasing a portion of the assets of or equity in, or by any
other manner, any business or any corporation, partnership,
association or other business organization or division thereof, or
otherwise acquire or agree to acquire any assets, or take any other
action, if the entering into of a definitive agreement relating to,
or the consummation of such acquisition, merger or consolidation,
or the taking of any other action, would reasonably be expected to
(i) impose any material delay in the obtaining of, or materially
increase the risk of not obtaining, any authorizations, consents,
orders or declarations of any Governmental Entities or the
expiration or termination of any applicable waiting period; (ii)
materially increase the risk of any Governmental Entity entering an
order prohibiting the consummation of the transaction contemplated
hereby; (iii) materially increase the risk of not being able to
remove any such order on appeal or otherwise; or (iv) materially
delay or prevent the consummation of the transactions contemplated
hereby. Notwithstanding anything in this Agreement to the contrary,
the restrictions and obligations set forth in this
Section 5.3(b)
shall not apply to or be binding upon
BRPA’s Affiliates, the Sponsor, their respective Affiliates
or any investment funds or investment vehicles affiliated with, or
managed or advised by, BRPA’s Affiliates, the Sponsor, or any
portfolio company (as such term is commonly understood in the
private equity industry) or investment of BRPA’s Affiliates,
the Sponsor, or of any such investment fund or investment
vehicle.
53
5.4 Public
Announcements. Promptly after
the execution of this Agreement, BRPA and the Company shall issue a
joint press release announcing the execution of this Agreement, the
text of which has been agreed to by each of BRPA and the Company
(the “Signing Press
Release”). Prior to Closing, BRPA and the Company
shall prepare a press release announcing the consummation of the
Merger hereunder (“Closing Press
Release”).
(a) In
connection with the preparation of the Registration Statement, the
Signing Press Release, the Closing Press Release, each Current
Report on Form 8-K proposed to be filed or furnished by BRPA under
the Exchange Act relating to or in connection with the
Transactions, each document required to be filed with the SEC
pursuant to Rule 425 promulgated under the Securities Act or Rule
14a-12 promulgated under the Exchange Act, or any other statement,
filing, notice, or application (other than pursuant to the HSR Act,
for which Section 5.3
applies) made by or on behalf of BRPA
or the Company to any Governmental Entity or other third party in
connection with Merger or otherwise, or any press release or Form
8-K relating to the business or financial condition of BRPA or the
Company (other than regularly released factual, non-forward-looking
business information of the Company) (each, a
“Reviewable
Document”), each of BRPA
and the Company shall, upon request by the other, use reasonable
best efforts (subject to applicable Legal Requirements and
contractual restrictions) to promptly furnish the other with all
information concerning themselves, their Subsidiaries, and each of
their and their Subsidiaries’ respective directors, officers,
and stockholders (including the directors of BRPA to be elected
effective as of the Closing pursuant to Section 5.1(f)
hereof) and such other matters as may
be reasonably necessary or advisable in connection with the Merger
and the preparation of such Reviewable
Document.
(b) At
a reasonable time prior to the filing, furnishing, issuance, or
other submission or public disclosure of a Reviewable Document by
BRPA or the Company, the other Parties shall each be given a
reasonable opportunity to review and comment upon such Reviewable
Document and give its consent to the form thereof, such consent not
to be unreasonably withheld, conditioned, or delayed, and each
Party shall accept and incorporate all reasonable comments from the
other Party to any such Reviewable Document prior to filing,
furnishing, issuance, submission or disclosure
thereof.
(c) Any
language included in a Reviewable Document that reflects the
comments of the reviewing Party, as well as any text as to which
the reviewing Party has not commented upon after being given a
reasonable opportunity to comment, shall be deemed to have been
approved by the reviewing Party and may henceforth be used by the
other Party in other Reviewable Documents and in other documents
distributed by the other Party in connection with the Merger
without further review or consent of the reviewing
Party.
(d) Prior
to the Closing Date, the Company and BRPA shall notify each other
as promptly as reasonably practicable (i) upon becoming aware of any event or
circumstance which should be described in an amendment of, or
supplement to, a Reviewable Document that has been filed with or
submitted to any Governmental Entity, and (ii) after the receipt by
it of any written or oral comments of any Governmental Entity on,
or of any written or oral request by any Governmental Entity for
amendments or supplements to, any such Reviewable Document, and
shall promptly supply the other with copies of all correspondence
between it or any of its representatives and such Governmental
Entity with respect to any of the foregoing filings or submissions,
in each case, to the extent permitted by applicable Legal
Requirements. BRPA and the Company shall use their respective
reasonable best efforts, after consultation with each other, to
resolve all such requests or comments with respect to any
Reviewable Document as promptly as reasonably practicable after
receipt of any comments of any Governmental Entity. All
correspondence and communications to any Governmental Entity made
by BRPA or the Company with respect to the Merger or any agreement
ancillary hereto shall, to extent permitted by applicable Legal
Requirements, be considered to be Reviewable Documents subject to
the provisions of this Section
5.5.
54
5.6 No
Securities Transactions. Neither the
Company nor any of its Affiliates, directly or indirectly, shall
engage in any purchases or sales of the securities of BRPA prior to
the Effective Time without the consent of BRPA, except as
contemplated by this Agreement.
5.7 No
Claim Against Trust Fund. Notwithstanding
anything else in this Agreement, the Company acknowledges that it
has read BRPA’s final prospectus dated November 20, 2017 and
understands that BRPA has established the Trust Fund for the
benefit of BRPA’s public shareholders and that BRPA may
disburse monies from the Trust Fund only (a) to BRPA’s
public shareholders in the event they elect to convert their shares
into cash in accordance with BRPA’s Charter Documents and/or
the liquidation of BRPA or (b) to BRPA after, or concurrently with,
or in connection with the consummation of a Business Combination.
The Company further acknowledges that, if the Merger, or, upon
termination of this Agreement, another Business Combination, is not
consummated by December 23, 2020, or such later date as shall be
set forth in an amendment to BRPA’s Amended and Restated
Certificate of Incorporation for the purpose of extending the date
by which BRPA must complete a Business Combination, BRPA will be
obligated to return to its shareholders the amounts being held in
the Trust Fund. Accordingly, the Company, for itself and the
Company Stockholders, directors, officers, employees,
Representatives, Subsidiaries, and Affiliates, hereby waives all
rights, title, interest or claim of any kind against BRPA to
collect from the Trust Fund any monies that may be owed to them by
BRPA for any reason whatsoever, including but not limited to a
breach of this Agreement by BRPA or any negotiations, agreements or
understandings with BRPA (whether in the past, present or future),
and will not seek recourse against the Trust Fund at any time for
any reason whatsoever; provided that nothing herein shall amend,
limit, alter, change, supersede or otherwise modify the right of
the Company to bring any action or
actions for specific performance, injunctive and/or other equitable
relief (including, without limitation, the right to compel specific
performance by BRPA and Merger Sub of their respective obligations
under this Agreement). This paragraph will survive this
Agreement and will not expire and will not be altered in any way
without the express written consent of BRPA.
5.8 Disclosure
of Certain Matters. Each of BRPA and
the Company will provide the other with prompt written notice of
any event, development or condition of which it obtains knowledge
during the Interim Period that (a) gives such Party any reasonable
basis to believe that any of the conditions to the obligations of
the other Party set forth in Article VI will not be
satisfied;
provided,
however, that no such notice
shall be deemed to cure breach of this Agreement or (b)
would require any amendment or supplement to the Registration
Statement.
5.9 Securities
Listing. BRPA shall use
its reasonable best efforts to keep the BRPA Common Stock listed
for trading on Nasdaq from the date hereof and through the
Closing. BRPA shall use its reasonable
best efforts to cause the BRPA Common Stock to be issued in
connection with the Transactions (including the Earnout Shares) to
have been approved for listing on Nasdaq as promptly as practicable
following the issuance thereof, subject only to official notice of
issuance thereof and the requirement to have a sufficient number of
round lot holders, prior to the Closing Date.
55
5.10 Charter
Protections; Directors’ and Officers’ Liability
Insurance.
(a) From
and after the Effective Time, BRPA and the Surviving Corporation
shall indemnify and hold harmless each present and former director
and officer of BRPA, the Company and each of the Company’s
Subsidiaries against any costs or expenses (including reasonable
attorneys’ fees), judgments, fines, losses, claims, damages
or liabilities incurred in connection with any Action, whether
civil, criminal, administrative or investigative, arising out of or
pertaining to matters existing or occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after
the Effective Time, to the fullest extent that BRPA, the Company or
its Subsidiaries, as the case may be, would have been permitted
under applicable Legal Requirements and its Charter Documents in
effect on the date of this Agreement to indemnify such Person
(including the advancing of expenses as incurred to the fullest
extent permitted under applicable Legal
Requirements).
(b) For
a period of six (6) years from the Effective Time, BRPA shall, or
shall cause one or more of its Subsidiaries to, maintain in effect
directors’ and officers’ liability insurance covering
those Persons who are currently covered by BRPA’s, on the one
hand, and the Company’s or its Subsidiaries’, on the
other hand, directors’ and officers’ liability
insurance policies on terms not less favorable than the terms of
such current insurance coverage, except that in no event shall BRPA
or its Subsidiaries be required to pay an annual premium for such
insurance in excess of 300% of the aggregate annual premium payable
by the Company and its Subsidiaries for such insurance policy for
the year ended December 31, 2019;
provided,
however, that (i) BRPA may
cause coverage to be extended under the current directors’
and officers’ liability insurance by obtaining a six-year
“tail” policy containing terms not materially less
favorable than the terms of such current insurance coverage with
respect to claims existing or occurring at or prior to the
Effective Time and (ii) if any claim is asserted or made within
such six-year period, any insurance required to be maintained under
this
Section 5.10 shall be continued in
respect of such claim until the final disposition
thereof.
(c) Prior
to the Closing, BRPA shall obtain directors’ and
officers’ liability insurance that shall be effective as of
Closing and will cover those Persons who will be the directors and
officers of BRPA and its Subsidiaries (including the directors and
officers of the Company and its Subsidiaries) at and after the
Closing on terms not less favorable than the better of (i) the
terms of the current directors’ and officers’ liability
insurance in place for the Company’s and its
Subsidiaries’ directors and officers and (ii) the terms of a
typical directors’ and officers’ liability insurance
policy for a company whose equity is listed on Nasdaq which policy
has a scope and amount of coverage that is reasonably appropriate
for a company of similar characteristics (including the line of
business and revenues) as BRPA and its Subsidiaries (including the
Company and its Subsidiaries).
(d) Notwithstanding
anything contained in this Agreement to the contrary, this
Section 5.10 shall survive the
consummation of the Merger indefinitely and shall be binding,
jointly and severally, on BRPA and the Surviving Corporation and
all successors and assigns of BRPA and the Surviving Corporation.
In the event that BRPA, the Surviving Corporation or any of their
respective successors or assigns consolidates with or merges into
any other Person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or transfers
or conveys all or substantially all of its properties and assets to
any Person, then, and in each such case, BRPA and the Surviving
Corporation shall ensure that proper provision shall be made so
that the successors and assigns of BRPA or the Surviving
Corporation, as the case may be, shall succeed to the obligations
set forth in this
Section 5.10. The obligations of
BRPA and the Surviving Corporation under this
Section 5.10 shall not be terminated
or modified in such a manner as to materially and adversely affect
any present and former director and officer of BRPA, the Company
and each of the Company’s Subsidiaries to whom this
Section 5.10 applies without the
consent of the affected Person.
56
5.11 Insider
Loans. The Company shall
cause each Insider of the Company or its Subsidiaries to, at or
prior to Closing (i) repay to the Company any loan by the Company
to such Insider and any other amount owed by such Insider to the
Company; and (ii) cause any guaranty or similar arrangement
pursuant to which the Company has guaranteed the payment or
performance of any obligations of such Insider to a third party to
be terminated.
5.12 BRPA
Borrowings. Until the
Closing, BRPA shall be allowed to borrow funds from the BRPA
Lenders, the Sponsor, its directors, officers, shareholders, and
each of their Affiliates to meet its reasonable capital
requirements, with any such loans to be made only as reasonably
required by the operation of BRPA in due course on a non-interest
bearing basis (such aggregate amount of outstanding borrowings, the
“BRPA
Borrowings”). Schedule 5.12 of the BRPA
Schedules sets forth the amount of BRPA Borrowings outstanding as
of the date hereof. At the Closing, the outstanding principal and
unpaid accrued interest on BRPA Borrowings shall be repaid pursuant
to Section 5.13(e),
with all amounts not so repaid to be converted or forgiven and
discharged in accordance with Section 1.12.
5.13 Trust
Fund Disbursement. Upon satisfaction
or waiver of the conditions set forth in Article VI and provision of
notice to Continental in accordance with the Trust Agreement, at
the Closing, BRPA shall instruct Continental to distribute the
Trust Fund as follows: (a) first, for the redemption of any shares
of BRPA Common Stock by BRPA Stockholders in connection with the
Offer, (b) second, for income Tax or other Tax obligations of BRPA
prior to Closing, (c) third, for the payment of the Outstanding
Company Transaction Expenses and the Outstanding BRPA Transaction
Expenses pursuant to Section 1.16, (d) fourth, in
reimbursement of expenses paid by directors, officers, and
stockholders of BRPA, (e) fifth, to the extent the sum of (x) the
amount remaining in of the Trust Fund after the disbursement
provided by Section
5.13(a) plus (y) the Financing, if any, exceeds $5,000,000,
for the payment of BRPA Borrowings, and (f) sixth, to distribute to
BRPA the balance of the assets in the Trust Fund and net proceeds
of any financing of BRPA or for the benefit of BRPA, if any, after
payment of the amounts required under the foregoing clauses (a)
through (e).
5.14 Tax
Matters.
(a) It
is intended by the Parties that the Merger shall constitute a
reorganization within the meaning of Section 368 of the Code.
The Parties adopt this Agreement as a “plan of
reorganization” within the meaning of U.S. Income Tax
Regulations Sections 1.368-2(g) and 1.368-3(a).
(b) On
or after the date hereof, none of the Parties shall take any
action, or fail to take any action, and following the Merger, BRPA
shall prevent the Surviving Corporation from taking any action or
failing to take any action, which action or failure to act would
reasonably be expected to prevent or impede the Merger from
qualifying as a reorganization governed by Section 368 of the
Code. The Parties will in all Returns report the Merger in a manner
consistent with such tax treatment, and no Party will take a
position inconsistent with that treatment, unless required to do
otherwise pursuant to a final determination as defined in
Section 1313(a) of the Code (or pursuant to any similar
provision of applicable state, local or foreign Legal
Requirements).
57
(c) Each
of BRPA and the Company shall, and BRPA shall cause the Surviving
Corporation to, use their respective reasonable best efforts and
cooperate with one another and Tax Opinion Counsel in order for (i)
the Company to obtain the Tax Opinion and (ii) any Tax opinions
required to be filed with the SEC in connection with the
Registration Statement to be obtained. Each of BRPA and the Company
shall use reasonable best efforts to deliver to Tax Opinion Counsel
customary representation letters, in form and substance reasonably
acceptable to Tax Opinion Counsel, dated as of the Closing Date or
such time or times as may be reasonably requested by Tax Opinion
Counsel. The Company shall
reasonably promptly notify BRPA if the Company becomes aware of any
fact or circumstance indicating that Tax Opinion Counsel will not deliver the
Tax Opinion. If Tax Opinion Counsel will not deliver the Tax
Opinion, the Company and BRPA shall cooperate and use good faith
efforts to consider and negotiate such amendments to this Agreement
as may be reasonably required in order for Tax Opinion Counsel to
deliver the Tax Opinion (it being understood that no party shall be
required to agree to any such amendment which, in the good faith
judgment of such party, would subject it to any material
economic, legal, regulatory, reputational or other cost or
detriment).
(d) On
or prior to the Closing Date, the Company shall deliver to BRPA a
certificate or certificates, duly executed and acknowledged,
certifying certain facts reasonably sufficient to establish that
the Merger is not subject to withholding under Section 1445 of
the Code.
5.15 Incentive
Equity Plan. Prior to the
Closing Date, BRPA shall cause to be adopted an equity incentive
plan (the “BRPA
Plan”), the proposed form and terms of which shall be
prepared and delivered by the Company and which shall be reasonably
acceptable to BRPA. The BRPA Plan shall provide for the reservation
by BRPA for the issuance pursuant to the BRPA Plan of a number of
shares of BRPA Common Stock as mutually agreed by BRPA and the
Company and set forth on Schedule 5.15 of the BRPA
Schedules. BRPA shall file with the SEC a registration statement on
Form S-8 (or any successor form or comparable form in another
relevant jurisdiction) relating to BRPA Common Stock issuable
pursuant to the BRPA Plan. Such registration statement shall be
filed no later than sixty (60) days after the date of the Closing
Form 8-K (or as soon as reasonably practicable after the expiration
of such sixty (60)-day period that registration of shares on Form
S-8 (or any successor form or comparable form in another relevant
jurisdiction) first becomes available to BRPA), and BRPA shall use
reasonable best efforts to maintain the effectiveness of such
registration statement for so long as any awards issued under the
BRPA Plan remain outstanding.
5.16 Company
Stockholder Approval. As promptly as
practicable after the SEC Approval Date, the Company shall (i) seek
the Company Stockholder Approval via written consent (the
“Written
Consent”) and (ii) in the event the Company determines
it is not able to obtain the Written Consent, the Company shall
call and hold a meeting of holders of Company Common Stock and
Company Preferred Stock for the purpose of voting solely upon the
Company Stockholder Approval (the “Company Stockholders
Meeting”) as soon as reasonably practicable after the
SEC Approval Date, provided that the Company Stockholders Meeting
will occur no later than the date of the BRPA Special Meeting. In
connection therewith, the Company shall use reasonable best efforts
to, as promptly as practicable, (A) establish the record date
(which record date shall be mutually agreed with BRPA) for
determining the Company Stockholders entitled to provide such
Written Consent or vote in such Company Stockholders Meeting, (B)
cause the Consent Solicitation Statement to be disseminated to the
Company Stockholders in compliance with applicable Legal
Requirements and (C) solicit written consents or votes or proxies
for use at the Company Stockholders Meeting, as applicable, from
the Company Stockholders to give the Company Stockholder Approval.
The Company, acting through the Company Board, shall recommend that
the Company Stockholders approve and adopt this Agreement and the
Transactions, including the Merger (the “Company Board
Recommendation”) and shall include the Company Board
Recommendation in the Consent Solicitation Statement, subject to
the Company Board’s compliance with its fiduciary duties
under applicable law. If the Company Stockholder Approval is
obtained by written consent, then promptly following the receipt of
the Written Consent, the Company will prepare and deliver to its
stockholders who have not consented the notice required by
Section 228(e) of the DGCL.
58
5.17 Third
Party Consents. Each Party shall,
and shall cause its Subsidiaries and Affiliates to (a) use
reasonable best efforts to assemble, prepare, and file any
information (and, as needed, to supplement such information) as may
be reasonably necessary to obtain as promptly as practicable all
governmental and regulatory consent required to be obtained in
connection with the Merger, (b) use reasonable best efforts to
obtain all consents and approvals of third parties that such Party
or its Subsidiaries or Affiliates is required to obtain in order to
consummate the Merger, and (c) take such other action as may
reasonably be necessary or as the other Party may reasonably
request to satisfy the conditions set forth in Article VI or otherwise to
comply with this Agreement and to consummate the Merger as soon as
practicable.
5.18 BRPA
Financing. If the BRPA Board
determines it is reasonably necessary solely to meet Nasdaq listing
standards or the SEC net tangible asset test (as determined in
accordance with Rule 3a51-1(g)(1) of the Exchange Act), BRPA may,
upon the written consent of the Company (such consent not to be
unreasonably withheld, conditioned, or delayed), arrange and obtain
up to a maximum of Ten Million Dollars ($10,000,000) in financing
from the sale of BRPA Common Stock at a price per share of no less
than $10.00 (“Financing”). Such
Financing may be made contingent upon Closing. If BRPA elects to
arrange and obtain Financing, upon reasonable advance notice to the
Company, the Company shall (i) furnish, or cause to be furnished,
to any Financing sources such information regarding the Company as
may be reasonably requested, (ii) cause the Company’s
management team, with appropriate seniority and expertise, to
participate in meetings, presentations, due diligence sessions,
drafting sessions, road shows and meetings with prospective
Financing sources, (iii) prepare offering documents and other
marketing materials of a type customarily used for the type of
financing proposed and cooperate with marketing efforts for the
Financing as reasonably requested, and (iv) execute and deliver
definitive documents related to the Financing; provided, in each
case in clauses (i) through (iv) above, that nothing in
this Section
5.18 shall require any efforts to the extent that such
efforts would reasonably be expected to conflict with or violate
any Legal Requirement, or result in the material contravention of,
or result in a material violation or breach of, or material default
under, any Material Company Contract.
5.19 Employment
Agreements. Prior to the
Closing, BRPA shall enter into employment agreements with the
Company executives listed on Schedule 5.19 of the Company
Schedules, in a form which is reasonably acceptable to the Company
and such executives.
5.20 Termination
of Company Stockholder Agreements. Prior to the
Closing, the Company shall terminate each Company Stockholder
Agreement.
5.21 Section
16 of the Exchange Act. Prior to the
Closing, the BRPA Board or an appropriate committee thereof shall
take all such steps as may be required to adopt a resolution
consistent with the interpretive guidance of the SEC so that the
acquisition of BRPA Common Stock pursuant to this Agreement by any
officer or director of BRPA or any person who is expected to become
a director or officer (as defined under Rule 16a-1(f) of the
Exchange Act) of BRPA for purposes of Section 16 of the Exchange
Act and the rules and regulations thereunder will be an exempt
transaction under such rules and regulations.
5.22 Extension.
BRPA shall take all actions
necessary to obtain the approval of the BRPA Stockholders to extend
the deadline for BRPA to consummate its initial Business
Combination beyond December 23, 2020 to April 23, 2021 (such
extension, the “Extension”,
and such approval of the BRPA Stockholders of the Extension, the
“Extension
Approval”).
59
5.23 Company
Support Agreements. On or before the earlier to occur of
(x) one day prior to the date the Registration Statement is filed
with the SEC or (y) January 14, 2021, the Company shall deliver to
BRPA the Support Agreements, pursuant to which each of the
Supporting Stockholders party thereto has agreed to, among other
things, vote all of the shares of Company Stock beneficially owned
by such Supporting Stockholder in favor of the Merger and the other
Transactions including the conversion of the Supporting
Stockholder’s Company Preferred Stock, if any, contemplated
by Section
1.3(a) (which vote
may be accomplished by executing a written consent) (all of the
Supporting Stockholders that are party to the Support Agreements
delivered in accordance with this Section
5.23, the
“Requisite
Stockholders”). The affirmative vote of the
Requisite Stockholders to approve and adopt this Agreement and to
approve the Transactions will be sufficient to obtain the Company
Stockholder Approval.
ARTICLE VI
6.1 Conditions
to Obligations of Each Party to Effect the
Merger. The respective
obligations of each Party to this Agreement to effect the Merger
shall be subject to the satisfaction as of the Closing Date of the
following conditions, any one or more of which may be waived (if
legally permitted) in writing by all of such parties:
(a) BRPA
Stockholder Approval. The BRPA
Stockholder Approval shall have been obtained.
(b) BRPA
Net Tangible Assets. BRPA shall
have at least $5,000,001 of net tangible assets (as determined in
accordance with Rule 3a51-1(g)(1) of the Exchange Act) remaining
after the Offer.
(c) HSR
Act; No Order. All specified
waiting periods (or any extensions thereof) under the HSR Act shall
have expired and no Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation,
executive order, decree, injunction or other order (whether
temporary, preliminary or permanent) which is in effect and which
has the effect of making the Merger illegal or otherwise
prohibiting consummation of the Merger, substantially on the terms
contemplated by this Agreement.
(d) Registration
Statement. The Registration
Statement shall have become effective in accordance with the
provisions of the Securities Act, no stop order shall have been
issued by the SEC which remains in effect with respect to the
Registration Statement, and no proceeding seeking such a stop order
shall have been threatened or initiated by the SEC which remains
pending.
(e) Company
Stockholder Approval. The
Company Stockholder Approval shall have been
obtained.
(f) Closing
Ancillary Agreements. Each
Closing Ancillary Agreement shall have been executed and delivered
by the parties thereto and shall be in full force and
effect.
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(g) Nasdaq
Listing. BRPA shall be and
remain listed on Nasdaq, and the shares of BRPA Common Stock to be
issued in connection with the Transactions (including the Earnout
Shares) shall have been approved for listing on Nasdaq, subject
only to official notice of issuance thereof and the requirement to
have a sufficient number of round lot holders.
(h) Offer
Completion. The Offer shall
have been completed in accordance with the terms hereof and the
Proxy Statement.
6.2 Additional
Conditions to Obligations of the Company. The obligations
of the Company to consummate and effect the Merger shall be subject
to the satisfaction as of the Closing Date of each of the following
conditions, any of which may be waived, in writing, exclusively by
the Company:
(a) Representations
and Warranties.
(i) Each
representation and warranty of BRPA contained in
Section 3.1
(Organization and
Qualification),
Section 3.4
(Authority Relative to this
Agreement) and
Section 3.17
(Brokers), in each case, shall be true and correct in all
respects as of the date of this Agreement and as of the Closing
Date, as if made anew at and as of that time (except to the extent
such representation and warranty expressly relates to an earlier
date, and in such case, shall be true and correct as of such
date).
(ii) Each
of the representations and warranties of BRPA contained in
Section 3.3
(Capitalization)
shall be true and correct other than de minimis inaccuracies, as of the date hereof and as of the
Closing Date, as if made anew at and as of that time (except to the
extent such representation and warranty expressly relates to an
earlier date, and in such case, shall be true and correct as of
such date).
(iii) Each
representation and warranty of BRPA contained in this Agreement
(other than the representations and warranties of BRPA described
in Section 6.2(a)(i)
and Section 6.2(a)(ii)),
shall be true and correct (without giving any effect to any
limitation as to “materiality” or “BRPA Material
Adverse Effect” or any similar limitation set forth therein)
in all material respects as of the date hereof and as of the
Closing Date, as if made anew at and as of that time (except to the
extent such representation and warranty expressly relates to an
earlier date, and in such case, shall be true and correct as of
such date).
(b) Agreements
and Covenants. BRPA shall have
performed or complied with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior
to the Closing Date in all material respects.
(c) Secretary
Certificate. The Company shall
have received a certificate of the secretary or equivalent officer
of BRPA certifying that attached thereto are true and complete
copies of all resolutions adopted by the BRPA Board authorizing the
execution, delivery, and performance of this Agreement and the
Transactions, and that all such resolutions are in full force and
effect.
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(d) No
BRPA Material Adverse Effect.
No BRPA Material Adverse Effect shall have occurred since the date
of this Agreement.
(e) SEC
Compliance. Immediately prior
to Closing, BRPA shall be in compliance with the reporting
requirements under the Securities Act and Exchange
Act.
(f) BRPA
Closing Certificate. BRPA shall
have delivered to the Company a certificate signed by an authorized
officer of BRPA, dated the Closing Date, certifying as to the
satisfaction of the conditions specified in Sections
6.2(a)(i),
6.2(a)(ii),
6.2(a)(iii),
6.2(b),
6.2(d)
and (e).
(g) Tax
Opinion. The Company shall have
received the Tax Opinion.
(h) Resignations.
The directors and executive officers of BRPA listed on
Schedule 6.2(g)
of the BRPA Schedules shall have been
removed from their respective positions or tendered their
irrevocable resignations, in each case effective as of the
Effective Time.
(i) BRPA
A&R Charter. BRPA shall have
adopted the BRPA A&R Charter.
(j) Extension
Approval. The Extension
Approval shall have been obtained.
(k) BRPA
Borrowings. The amount of all
BRPA Borrowings outstanding (including, for the avoidance of doubt,
borrowings pursuant to Section
5.12) that are due and payable
as of the Closing Date or at any time after the Closing, shall not
exceed, in the aggregate, three million dollars
($3,000,000).
6.3 Additional
Conditions to the Obligations of BRPA. The obligations
of BRPA to consummate and effect the Merger shall be subject to the
satisfaction as of the Closing Date of each of the following
conditions, any of which may be waived, in writing, exclusively by
BRPA:
(a) Representations
and Warranties.
(i) Each
representation and warranty of the Company contained in
Section 2.1
(Organization and
Qualification),
Section 2.4
(Authority Relative to this
Agreement) and
Section 2.18
(Brokers), in each case, shall be true and correct in all
respects as of the date hereof and as of the Closing Date, as if
made anew at and as of such time (except to the extent such
representation and warranty expressly relates to an earlier date,
and in such case, shall be true and correct as of such
date).
(ii) The
representations and warranties of the Company contained in
Section 2.3
(Capitalization)
shall be true and correct other than de minimis inaccuracies as of the date hereof and as of the
Closing Date, as if made anew at and as of that time (except to the
extent such representation and warranty expressly relates to an
earlier date, and in such case, shall be true and correct as of
such date).
(iii) Each
representation and warranty of the Company contained in this
Agreement (other than the representations and warranties of the
Company described in Section 6.3(a)(i) and Section 6.3(a)(ii)), shall be true and
correct (without giving any effect to any limitation as to
“materiality” or “Company Material Adverse
Effect” or any similar limitation set forth therein) shall be
true and correct (without giving any effect to any limitation as to
“materiality” or “Company Material Adverse
Effect” or any similar limitation set forth therein) as of
the date hereof and as of the Closing Date, as if made anew at and
as of that time (except to the extent such representations and
warranties expressly relate to an earlier date, and in such case,
shall be true and correct on and as of such earlier date), except,
in either case, where the failure of such representations and
warranties to be so true and correct, individually or in the
aggregate, has not had, and would not reasonably be expected to
result in, a Company Material Adverse Effect.
62
(b) Agreements
and Covenants. The Company
shall have performed or complied with all agreements and covenants
required by this Agreement to be performed or complied with by it
at or prior to the Closing Date in all material
respects.
(c) Secretary
Certificate. BRPA shall have
received a certificate of the secretary or equivalent officer of
the Company certifying that attached thereto are true and complete
copies of all resolutions adopted by the Company Board authorizing
the execution, delivery, and performance of this Agreement and the
Transactions, and that all such resolutions are in full force and
effect.
(d) No
Company Material Adverse Effect. No Company Material Adverse Effect shall have
occurred since the date of this Agreement.
(e) Insider
Loans. All outstanding loans or
other indebtedness by the Company to any Insider shall have been
repaid in full and all outstanding guaranties and similar
arrangements pursuant to which the Company has guaranteed the
payment or performance of any obligations of any Insider to a third
party shall have been terminated.
(f) Company
Closing Certificate. The
Company shall have delivered to BRPA a certificate signed by an
authorized officer of the Company, dated the Closing Date,
certifying as to the satisfaction of the conditions specified
in Sections
6.3(a)(i),
6.3(a)(ii),
6.3(a)(iii),
6.3(b)
and 6.3(d).
ARTICLE VII
TERMINATION
(a) by
mutual written agreement of BRPA and the Company at any
time;
(b) by
written notice from either BRPA or the Company to the other if the
Merger shall not have been consummated by April 23, 2021 (the
“Outside
Date”); provided,
however, that the right to terminate this Agreement under
this Section 7.1(b)
shall not be available to any Party
whose failure to fulfill any obligation under this Agreement has
been the primary cause of, or primarily resulted in, the failure of
the Closing to occur on or before such date;
(c) by
written notice from either BRPA or the Company to the other if a
Governmental Entity shall have issued an order, decree, judgment or
ruling or taken any other action, in any case having the effect of
permanently restraining, enjoining or otherwise prohibiting the
Merger, which order, decree, ruling or other action is final and
nonappealable;
(d) by
written notice from the Company to BRPA if there is any breach of
any representation, warranty, covenant or agreement on the part of
BRPA set forth in this Agreement, such that the conditions set
forth in Section 6.02(a)
and Section 6.02(b)
would not be satisfied at the Closing
(a “Terminating BRPA
Breach”), except that, if
any such Terminating BRPA Breach is curable by BRPA through the
exercise of its commercially reasonable efforts, then, for a period
of up to 30 days (or any shorter period of the time that remains
between the date the Company provides written notice of such
violation or breach and the Outside Date) after receipt by BRPA of
notice from the Company of such breach, but only as long as BRPA
continues to exercise such commercially reasonable efforts to cure
such Terminating Company Breach (the “BRPA Cure
Period”), such
termination shall not be effective, and such termination shall
become effective only if the Terminating BRPA Breach is not cured
within the BRPA Cure Period (it being understood that the Company
may not terminate this Agreement pursuant to this
Section
7.1(d) if it shall have
materially breached this Agreement or if such Terminating BRPA
Breach is cured during such thirty (30)-day
period);
63
(e) by
written notice from BRPA to the Company if there is any breach of
any representation, warranty, covenant or agreement on the part of
the Company set forth in this Agreement, such that the conditions
set forth in Section 6.03(a)
and Section 6.03(b)
would not be satisfied at the Closing
(a “Terminating Company
Breach”), except that, if
any such Terminating Company Breach is curable by the Company
through the exercise of its commercially reasonable efforts, then,
for a period of up to 30 days (or any shorter period of the time
that remains between the date the Company provides written notice
of such violation or breach and the Outside Date) after receipt by
the Company of notice from BRPA of such breach, but only as long as
the Company continues to exercise such commercially reasonable
efforts to cure such Terminating Company Breach (the
“Company Cure
Period”), such
termination shall not be effective, and such termination shall
become effective only if the Terminating Company Breach is not
cured within the Company Cure Period (it being understood that BRPA
may not terminate this Agreement pursuant to this
Section
7.1(e) if it shall have
materially breached this Agreement or if such Terminating Company
Breach is cured during such thirty (30)-day
period);
(f) by
written notice from either BRPA or the Company to the other, if the
BRPA Stockholder Approval is not obtained at the BRPA Special
Meeting (including any adjournments thereof);
(g) by
written notice from either BRPA or the Company to the other if the
Company Stockholder Approval has not been obtained within thirty
(30) days following the date that the Consent Solicitation
Statement is disseminated to the Company Stockholders pursuant
to Section
5.16;
(h) by
written notice from the Company to BRPA prior to obtaining the
Company Stockholder Approval, in order to enter into a definitive
agreement with respect to a Superior Proposal, subject to the terms
and conditions of Section 4.4(d);
(i) by
written notice from the Company to BRPA if the Extension Approval
is not obtained by December 24, 2020; or
(j) by
written notice from either BRPA or the Company to the other if the
shares of BRPA Common Stock are delisted from
Nasdaq.
(a) Any
termination of this Agreement under Section
7.1
above will be effective immediately
upon (or, if the termination is pursuant to Section 7.1(d)
or Section 7.1(e)
in accordance with the terms thereof)
the delivery of written notice of the terminating Party to the
other Parties.
(i) In
the event that this Agreement is validly terminated by the Company
pursuant to Section
7.1(h), then the Company shall
pay, within three (3) Business Day of the notice of such
termination of this Agreement, a termination fee to BRPA in an
amount equal to Ten Million Dollars ($10,000,000)
(“Termination
Fee”) in immediately
available funds as liquidated damages and not as a
penalty.
64
(ii) The
Parties acknowledge and hereby agree that the Termination Fee, if,
as and when required pursuant to Section
7.2(b),
shall not constitute a penalty but will be liquidated damages, in a
reasonable amount that will compensate BRPA in the circumstances in
which it is payable for the efforts and resources expended and
opportunities foregone while negotiating this Agreement and in
reliance on this Agreement and on the expectation of the
consummation of the Merger, which amount would otherwise be
impossible to calculate with precision. The Parties acknowledge and
hereby agree that in no event shall the Company be required to pay
the Termination Fee on more than one (1) occasion. Each of the
Company, BRPA and Merger Sub acknowledges that the agreements
contained in this Section
7.2
are an integral part of the
transactions contemplated by this Agreement and that, without these
agreements, the parties hereto would not enter into this
Agreement.
(iii) Notwithstanding
anything to the contrary in this Agreement, in any circumstance in
which this Agreement is terminated and BRPA is paid the Termination
Fee pursuant to this Section
7.2(b),
the Termination Fee shall be the sole and exclusive monetary remedy
of BRPA, Merger Sub or any of the BRPA Related Parties against the
Company or any other Company Related Party for any loss or damage
suffered as a result of the failure of the Merger and the other
transactions contemplated by this Agreement to be consummated or
for a breach of, or failure to perform under, this Agreement or any
certificate or other document delivered in connection herewith or
otherwise or in respect of any oral representation made or alleged
to have been made in connection herewith or therewith, and upon
payment of such amounts, none of the Company Related Parties shall
have any further liability or obligation relating to or arising out
of this Agreement or in respect of representations made or alleged
to be made in connection herewith, whether in equity or at law, in
contract, in tort or otherwise.
(c) In
the event of the termination of this Agreement as provided
in Section 7.1,
this Agreement shall be of no further force or effect and the
Merger shall be abandoned, except for and subject to the
following: (i)
Sections
4.3(a),
5.7, 7.2
and 7.3, and Article
VIII, shall survive the
termination of this Agreement, and (ii) nothing herein shall
relieve any Party from liability for any intentional and willful
breach of this Agreement by such Party occurring prior to such
termination.
7.3 Fees
and Expenses. Except as
otherwise set forth herein, all fees and expenses incurred in
connection with this Agreement and the transactions contemplated
hereby shall be paid by the Party incurring such
expenses.
ARTICLE VIII
GENERAL
PROVISIONS
8.1 Notices.
All notices and other communications among the Parties shall be in
writing and shall be deemed to have been duly given (i) when
delivered in person, (ii) when delivered after posting in the
United States mail having been sent registered or certified mail
return receipt requested, postage prepaid, (iii) when delivered by
FedEx or other nationally recognized overnight delivery service or
(iv) when e-mailed during normal business hours (and otherwise as
of the immediately following Business Day), addressed as
follows:
65
if to
BRPA, to:
Big
Rock Partners Acquisition Corp.
2645 N.
Federal Highway, Suite 230
Delray
Beach, FL 33483
Attn:
Richard Ackerman
Email:
rackerman@bigrockpartners.com
with a
copy to:
Graubard
Miller
The
Chrysler Building
405
Lexington Avenue, 11th Floor
New
York, New York 10174
Attention: David
Alan Miller / Jeffrey M. Gallant
Email:
dmiller@graubard.com / jgallant@graubard.com
if to
the Company to:
NeuroRx,
Inc.
1201 N.
Market Street, Suite 111
Wilmington,
Delaware 19801
Attention: Jonathan
Javitt
Email:
jjavitt@neurorxpharma.com
with a
copy to:
Alessandra
Daigneault
Email:
adaigneault@neurorxpharma.com
8.2 Interpretation.
The definitions of the terms herein shall apply equally to the
singular and plural forms of the terms defined. Whenever the
context shall require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. When a reference is made in
this Agreement to an Exhibit or Schedule, such reference shall be
to an Exhibit or Schedule to this Agreement unless otherwise
indicated. When a reference is made in this Agreement to Sections
or subsections, such reference shall be to a Section or subsection
of this Agreement. Unless otherwise indicated the words
“include,” “includes” and
“including” when used herein shall be deemed in each
case to be followed by the words “without limitation.”
The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Reference to the
Subsidiaries of an entity shall be deemed to include all direct and
indirect Subsidiaries of such entity.
8.3 Counterparts;
Electronic Delivery. This Agreement
and each other document executed in connection with the Merger, and
the consummation thereof, may be executed in one or more
counterparts, all of which shall be considered one and the same
document and shall become effective when one or more counterparts
have been signed by each of the Parties and delivered to the other
Parties, it being understood that all Parties need not sign the
same counterpart. Delivery by electronic transmission to counsel
for the other Party of a counterpart executed by a Party shall be
deemed to meet the requirements of the previous
sentence.
66
8.4 Entire
Agreement; Third Party Beneficiaries. This Agreement
and the documents and instruments and other agreements among the
Parties as contemplated by or referred to herein, including the
Ancillary Agreements and the Exhibits and Schedules hereto, and the
Confidentiality Agreement (which will terminate at the Closing) (a)
constitute the entire agreement among the Parties with respect to
the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the Parties and any of
their respective Affiliates with respect to the Merger; and (b) are
not intended to confer upon any other Person any rights or remedies
hereunder (except as specifically provided in this Agreement,
including Section
5.10). No
representations, warranties, covenants, understandings, agreements,
oral or otherwise, relating to the Merger exist between the Parties
except as expressly set forth or referenced in this Agreement, the
Ancillary Agreements, and the Confidentiality
Agreement.
8.5 Severability.
In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the
application of such provision to other Persons or circumstances
will be interpreted so as reasonably to effect the intent of the
Parties. The Parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible,
the economic, business and other purposes of such void or
unenforceable provision.
8.6 Other
Remedies; Specific Performance. Except as
otherwise provided herein, any and all remedies herein expressly
conferred upon a Party will be deemed cumulative with and not
exclusive of any other remedy conferred hereby, or by law or equity
upon such Party, and the exercise by a Party of any one remedy will
not preclude the exercise of any other remedy. The Parties agree
that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached. It is accordingly
agreed that the Parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or
in equity. Each Party agrees that it will not oppose the granting
of specific performance and other equitable relief on the basis
that the other parties have an adequate remedy at law or that an
award of specific performance is not an appropriate remedy for any
reason at law or equity. The Parties acknowledge and agree that any
Party seeking an injunction to prevent breaches of this Agreement
and to enforce specifically the terms and provisions of this
Agreement in accordance with this Section 8.6 shall not be required to
provide any bond or other security in connection with any such
injunction.
8.7 Governing
Law. This Agreement,
and all claims or causes of action based upon, arising out of, or
related to this Agreement or the transactions contemplated hereby,
shall be governed by, and construed in accordance with, the laws of
the State of Delaware, without giving effect to principles or rules
of conflict of laws to the extent such principles or rules would
require or permit the application of laws of another
jurisdiction.
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8.8 Consent
to Jurisdiction; WAIVER OF TRIAL BY JURY. Any Action based upon, arising out of or related
to this Agreement, or the transactions contemplated hereby, shall
be brought in the Court of Chancery of the State of
Delaware; provided, that if
jurisdiction is not then available in the Delaware Chancery Court,
then any such legal Action may be brought in any federal court
located in the State of Delaware or any other Delaware state court.
The parties hereto hereby (a) irrevocably submit to the exclusive
jurisdiction of the aforesaid courts for themselves and with
respect to their respective properties for the purpose of any
Action arising out of or relating to this Agreement brought by any
party hereto, and (b) agree not to commence any Action relating
thereto except in the courts described above in Delaware, other
than Actions in any court of competent jurisdiction to enforce any
judgment, decree or award rendered by any such court in Delaware as
described herein. Each of the parties further agrees that notice as
provided herein shall constitute sufficient service of process and
the parties further waive any argument that such service is
insufficient. Each of the parties hereby irrevocably and
unconditionally waives, and agrees not to assert, by way of motion
or as a defense, counterclaim or otherwise, in any Action arising
out of or relating to this Agreement or the transactions
contemplated hereby, (i) any claim that it is not personally
subject to the jurisdiction of the courts in Delaware as described
herein for any reason, (ii) that it or its property is exempt or
immune from jurisdiction of any such court or from any legal
process commenced in such courts (whether through service of
notice, attachment prior to judgment, attachment in aid of
execution of judgment, execution of judgment or otherwise) and
(iii) that (A) the Action in any such court is brought in an
inconvenient forum, (B) the venue of such Action is improper or (C)
this Agreement, or the subject matter hereof, may not be enforced
in or by such courts. EACH OF THE PARTIES IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON,
ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE MERGER, OR THE
OTHER TRANSACTIONS CONTEMPLATED HEREBY.
8.9 Rules
of Construction. The Parties agree
that they have been represented by counsel during the negotiation
and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction
providing that ambiguities in an agreement or other document will
be construed against the Party drafting such agreement or
document.
8.10 Assignment.
No Party may assign either this Agreement or any of its rights,
interests, or obligations hereunder without the prior written
approval of the other Parties. Subject to the first sentence of
this Section
8.10, this
Agreement shall be binding upon and shall inure to the benefit of
the Parties and their respective successors and permitted
assigns.
8.11 Amendment.
This Agreement and, prior to the Closing, each of the Ancillary
Agreements, may be amended by the Parties at any time only by
execution of an instrument in writing signed on behalf of each of
the Parties. The approval of this Agreement by the shareholders of
any Party shall not restrict the ability of the board of directors
of such Party to terminate this Agreement in accordance with
Section
7.1 or to cause
such Party to enter into an amendment to this Agreement pursuant to
this Section
8.11.
8.12 Extension;
Waiver. At any time prior
to the Closing, any party hereto may, to the extent legally
allowed, (i) extend the time for the performance of any of the
obligations or other acts of the other Parties, (ii) waive any
inaccuracies in the representations and warranties made to such
Party contained herein or in any document delivered pursuant hereto
and (iii) waive compliance with any of the agreements or conditions
for the benefit of such Party contained herein. Any agreement on
the part of a Party to any such extension or waiver shall be valid
only if set forth in an instrument in writing signed on behalf of
such Party. Delay in exercising any right under this Agreement
shall not constitute a waiver of such right.
68
8.13 Currency.
Unless otherwise specified, all references to currency amounts in
this Agreement shall mean United States dollars.
8.14 Schedules.
The information furnished in the Schedules is arranged in sections
corresponding to the Sections of this Agreement, and the
disclosures in any section of the Schedules shall qualify (a) the
corresponding Section of this Agreement and (b) other Sections of
this Agreement to the extent (notwithstanding the absence of a
specific cross-reference), that it is reasonably apparent on its
face that such disclosure is also applicable to such other Sections
of this Agreement. The Schedules and the information and
disclosures contained in such Schedules are intended only to
qualify and limit the representations and warranties of the parties
contained in this Agreement and shall not be deemed to expand in
any way the scope of any such representation or warranty. The
inclusion of any information in the Schedules shall not be deemed
to be an admission or acknowledgment that such information is
material or outside the ordinary course of business. The inclusion
of any fact or information in a Schedule is not intended to be
construed as an admission or concession as to the legal effect of
any such fact or information in any proceeding between any party
and any Person who is not a party.
8.15 Nonsurvival
of Representations, Warranties and
Covenants. None of the
representations, warranties, covenants, obligations or other
agreements in this Agreement or in any certificate, statement or
instrument delivered pursuant to this Agreement, including any
rights arising out of any breach of such representations,
warranties, covenants, obligations, agreements and other
provisions, shall survive the Closing and shall terminate and
expire upon the occurrence of the Effective Time (and there shall
be no liability after the Closing in respect thereof), except for
(a) those covenants and agreements contained herein that by their
terms expressly apply in whole or in part after the Closing and
then only with respect to any breaches occurring after the Closing
and (b) this Article VIII.
8.16 Non-Recourse.
This Agreement may only be enforced against, and any claim or cause
of action based upon, arising out of, or related to this Agreement
or the Transactions may only be brought against, the entities that
are expressly named as Parties hereto, and then only with respect
to the specific obligations set forth herein with respect to such
Party. Except to the extent a named Party to this Agreement (and
then only to the extent of the specific obligations undertaken by
such named Party in this Agreement), (a) no past, present or future
director, officer, employee, incorporator, member, partner,
stockholder, Affiliate, agent, attorney, advisor or Representative
or Affiliate of any named Party to this Agreement and (b) no past,
present or future director, officer, employee, incorporator,
member, partner, stockholder, Affiliate, agent, attorney, advisor
or Representative or Affiliate of any of the foregoing shall have
any liability (whether in contract, tort, equity or otherwise) for
any one or more of the representations, warranties, covenants,
agreements or other obligations or liabilities of any one or more
of the Company, BRPA or Merger Sub under this Agreement of or for
any claim based on, arising out of, or related to this Agreement or
the transactions contemplated hereby.
69
IN
WITNESS WHEREOF, the Parties have caused this Agreement to be
executed as of the date first written above.
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BIG ROCK PARTNERS
ACQUISITION CORP.
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title: Chief
Executive Officer
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NEURORX,
INC.
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By:
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/s/
Jonathan
Javitt
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Name: Jonathan
Javitt
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Title: Chief
Executive Officer
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BIG
ROCK MERGER CORP.
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By:
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/s/ Richard
Ackerman
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Name: Richard
Ackerman
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Title: Chief
Executive Officer
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Exhibit A
Certain
Definitions
“Action” means any claim, action, suit,
assessment, arbitration or proceeding, in each case that is by or
before any Governmental Entity.
“Affiliate” means, as
applied to any Person, any other Person directly or indirectly
controlling, controlled by or under direct or indirect common
control with, such Person. For purposes of this definition,
“control” (including with correlative meanings, the
terms “controlling,” “controlled by” and
“under common control with”), as applied to any Person,
means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities, by
contract or otherwise.
“Ancillary Agreements”
means the Sponsor Agreement, Support Agreements, BCMA Amendment
Agreement, Note Amendment, Stock Escrow Amendment, and the
Registration Rights Agreement.
“Antitrust Law” means the
HSR Act, the Federal Trade Commission Act, as amended, the Sherman
Act, as amended, the Clayton Act, as amended, and any applicable
foreign antitrust Legal Requirements and all other applicable Legal
Requirements that are designed or intended to prohibit, restrict or
regulate actions having the purpose or effect of monopolization or
restraint of trade or lessening of competition through merger or
acquisition.
“BRPA
Closing Price” means the
closing sale price of BRPA Common Stock on Nasdaq (as reported on
Nasdaq.com) on the last complete trading day immediately prior to
the Effective Time.
“BRPA Common Stock” means
the common stock of BRPA, par value $0.001 per share.
“BRPA Lenders” means BRAC
Lending Group LLC (“BRAC”), A/Z Property Partners, LLC,
and the other lenders to BRPA.
“BRPA Material Adverse
Effect” means any change, event, occurrence, effect,
circumstance or development that has a materially adverse effect on
(x) financial condition, assets, business, or results of operations
of BRPA or (y) the ability of BRPA to timely consummate the Closing
(including the Merger) on the terms set forth in this Agreement;
provided that, in the case of clause (x) only, in no event would
any of the following (or the effect of any of the following), alone
or in combination, be deemed to constitute, or be taken into
account in determining whether there has been or will be, a
“BRPA Material Adverse Effect”: (i) changes or
developments in general U.S. or global economic conditions,
including changes in interest rates or economic, political,
business, financial, commodity, currency or market conditions
generally, (ii) changes in applicable Legal Requirements, U.S.
GAAP, or authoritative interpretations thereof, (iii) any
geopolitical conditions, outbreak of hostilities, acts of war,
sabotage, terrorism, cyberterrorism, civil unrest, military
actions, natural or man-made disasters, weather conditions,
epidemics, pandemics (including COVID-19 or SARS-CoV-2 virus (or
any mutation or variation thereof)) or other outbreaks of illness or public
health events and other force majeure events (including any
escalation or general worsening of any of the foregoing),
(iv) any change, event, occurrence, effect, circumstance or
development attributable to the announcement, pendency, negotiation
or consummation of the Merger or any other Transactions or the
execution or performance of this Agreement, (v) any action taken or
omitted to be taken by BRPA at the Company’s direction or
written request, any action required or permitted to be taken or
omitted to be taken by this Agreement or any Ancillary Agreement or
any action to which the Company has consented in writing, (vi) any
change generally affecting any of the industries or markets in
which BRPA operate or the economy as a whole, or (vii) the failure,
in and of itself, of BRPA to meet, or changes to, any budget,
projection, forecast, estimate, or prediction (it being understood
that the underlying facts and circumstances giving rise to or
contributing to such failure or change may be taken into account in
determining whether there has been a BRPA Material Adverse Effect,
unless such
underlying facts and circumstances would otherwise be excepted from this
definition); provided, however, in the case of each of the
foregoing clauses (i), (ii), (iii) and (vii), in the event that
BRPA is materially and disproportionately affected by such change,
event, occurrence, effect, circumstance or development relative to
other participants in the business and industries in which they
operate, the extent (and only the extent) of such material and
disproportionate affect, relative to such other participants, on
BRPA may be taken into account in determining whether there has
been a BRPA Material Adverse Effect.
A-1
“BRPA Preferred Stock”
means the preferred stock of BRPA, par value $0.001 per
share.
“BRPA Related Parties”
means any of BRPA’s or Merger Sub’s respective former,
current or future general or limited partners, stockholders,
controlling Persons, direct or indirect equityholders, managers,
members, directors, officers, employees, Affiliates, affiliated (or
commonly advised) funds, representatives, agents or any their
respective assignees or successors or any former, current or future
general or limited partner, stockholder, controlling Person, direct
or indirect equityholder, manager, member, director, officer,
employee, Affiliate, affiliated (or commonly advised) fund,
representative, agent, assignee or successor of any of the
foregoing; provided, “BRPA Related
Parties” shall not be deemed to include BRPA or Merger
Sub.
“BRPA Securities” means
the (i) BRPA Common Stock, (ii) warrants, each whole warrant
exercisable for one share of BRPA Common Stock at an exercise price
of $11.50 per share (“BRPA Warrants”), (iii) rights,
exchangeable for one-tenth of one share of BRPA Common Stock upon
the Closing (“BRPA Rights”), (iv) units, each
consisting of one share of BRPA Common Stock, one BRPA Right, and
one-half of one BRPA Warrant (“BRPA Units”), unit
purchase options of BRPA, and each other equity security of BRPA
issued and outstanding immediately prior to the Effective
Time.
“BRPA Special Meeting”
means a meeting of the holders of BRPA Common Stock held for the
purpose of approving the BRPA Stockholder Matters.
“BRPA Stockholders” means
the holders of BRPA Common Stock.
“Business Combination” has
the meaning ascribed to such term in BRPA’s Charter
Documents.
“Business Day” means a day
other than a Saturday, Sunday or other day on which commercial
banks in New York, New York are authorized or required by law to
close.
“Cash and Cash
Equivalents” shall mean the cash and cash equivalents,
including checks, money orders, marketable securities, short-term
instruments, negotiable instruments, funds in time and demand
deposits or similar accounts on hand, in lock boxes, in financial
institutions or elsewhere, together with all accrued but unpaid
interest thereon, and all bank, brokerage or other similar
accounts.
“Charter Documents” means
the certificate of incorporation, bylaws, memorandum and articles
of association, articles of organization, other comparable
governing instruments with different names.
“Closing Ancillary
Agreements” means the Ancillary Agreements other than
the Support Agreements.
“Company Antidepressant Drug
Regimen” means NRX-100/NRX-101, a single infusion of
NRX-100 (ketamine) followed by sequential weeks of daily oral
treatment with NRX-101, a proprietary, oral fixed-dose combination
capsule of d-cycloserine and Lurasidone.
A-2
“Company Certificate of
Incorporation” means that certain Second Amended and
Restated Certificate of Incorporation of the Company, filed with
the Secretary of State of the State of Delaware on October 20,
2016, as amended.
“Company Common Stock”
means the common stock of the Company, par value $0.001 per
share.
“Company COVID-19 Drug”
means RLF-100 for the treatment of critical COVID-19 with
respiratory failure (or similar).
“Company Intellectual
Property” means any Intellectual Property Rights owned
by the Company and/or its Subsidiaries.
“Company Material Adverse
Effect” means any change, event, occurrence, effect,
circumstance or development that has a materially adverse effect on
(x) financial condition, assets, business, or results of operations
of the Company and its Subsidiaries, taken as a whole, or (y) the
ability of the Company and its Subsidiaries to timely consummate
the Closing (including the Merger) on the terms set forth in this
Agreement; provided that, in the case of clause (x) only, in no
event would any of the following (or the effect of any of the
following), alone or in combination, be deemed to constitute, or be
taken into account in determining whether there has been or will
be, a “Company Material Adverse Effect”: (i) changes or
developments in general U.S. or global economic conditions,
including changes in interest rates or economic, political,
business, financial, commodity, currency or market conditions
generally, (ii) changes in applicable Legal Requirements, U.S.
GAAP, or authoritative interpretations thereof, (iii) any
geopolitical conditions, outbreak of hostilities, acts of war,
sabotage, terrorism, cyberterrorism, civil unrest, military
actions, natural or man-made disasters, weather conditions,
epidemics, pandemics (including COVID-19 or SARS-CoV-2 virus (or
any mutation or variation thereof)) or other outbreaks of illness or public
health events and other force majeure events (including any
escalation or general worsening of any of the foregoing),
(iv) any change, event, occurrence, effect, circumstance or
development attributable to the announcement, pendency, negotiation
or consummation of the Merger or any other Transactions or the
execution or performance of this Agreement, including the impact
thereof on relationships, contractual or otherwise, with customers,
suppliers, licensors, distributors, partners, providers and
employees or the Company or any of its Subsidiaries, (vi) any
action taken or omitted to be taken by the Company or its
Subsidiaries at BRPA’s direction or written request, any
action required or permitted to be taken or omitted to be taken by
this Agreement or any Ancillary Agreement or any action to which
BRPA has consented in writing, (vii) any change generally affecting
any of the industries or markets in which the Company or its
Subsidiaries operate or the economy as a whole, or (viii) the
failure, in and of itself, to meet, or changes to, any budget,
projection, forecast, estimate, or prediction (it being understood
that the underlying facts and circumstances giving rise to or
contributing to such failure or change may be taken into account in
determining whether there has been a Company Material Adverse
Effect, unless such
underlying facts and circumstances would otherwise be excepted from this
definition); provided, however, in the case of each of the
foregoing clauses (i), (ii), (iii) and (vii), in the event that the
Company and its Subsidiaries, taken as a whole are materially and
disproportionately affected by such change, event, occurrence,
effect, circumstance or development relative to other participants
in the business and industries in which they operate, the extent
(and only the extent) of such material and disproportionate affect,
relative to such other participants, on the Company and its
Subsidiaries, taken as a whole, may be taken into account in
determining whether there has been a Company Material Adverse
Effect.
A-3
“Company Preferred Stock”
means the Company Series A Preferred Stock, Company Series B-1
Preferred Stock, Company Series B-1A Preferred Stock, and Company
Series B-2 Preferred Stock.
“Company Products” means
all products or service offerings of the Company and its
Subsidiaries, including but not limited to the Company COVID-19
Drug, Company Antidepressant Drug Regimen, and any future product
candidates developed by or on behalf of the Company.
“Company Related Parties”
means the Company, its Subsidiaries and any of their respective
former, current or future general or limited partners,
stockholders, controlling Persons, managers, members, directors,
officers, employees, Affiliates, representatives, agents or any of
their respective assignees or successors or any former, current or
future general or limited partner, stockholder, controlling Person,
manager, member, director, officer, employee, Affiliate,
representative, agent, assignee or successor of any of the
foregoing.
“Company Series A Preferred
Stock” means the Series A preferred stock of the
Company, par value $0.001 per share.
“Company Series B Preferred
Stock” means, collectively, the Company Series B-1
Preferred Stock, the Company Series B-1A Preferred Stock and the
Company Series B-2 Preferred Stock.
“Company Series B-1 Preferred
Stock” means the Series B-1 preferred stock of the
Company, par value $0.001 per share.
“Company Series B-1A Preferred
Stock” means the Series B-1A preferred stock of the
Company, par value $0.001 per share.
“Company Series B-2 Preferred
Stock” means the Series B-2 preferred stock of the
Company, par value $0.001 per share.
“Company Stock” means,
collectively, the Company Common Stock and the Company Preferred
Stock.
“Company Stockholder
Agreements” means the (i) First Refusal and Co-Sale
Agreement dated as of November 10, 2016, among the Company and the
Company Stockholders party thereto, (ii) Voting Agreement dated as
of November 10, 2016, among the Company and the Company
Stockholders party thereto, (iii) Investors’ Rights Agreement
dated as of November 10, 2016, among the Company and the Company
Stockholders party thereto, (iv) Stockholders Agreement dated as of
June 1, 2015, by and among the Company and the Company Stockholders
party thereto, and (v) Registration Rights Agreement dated as of
July 1, 2015, among the Company and the Company Stockholders party
thereto.
“Company Stockholder”
means a holder of Company Common Stock and/or Company Preferred
Stock.
“Company Warrants” means
all warrants to purchase shares of Company Common
Stock.
A-4
“Confidentiality
Agreement” means that
certain Mutual Non-Disclosure Agreement, dated as of December 3,
2020, between BRPA and the Company.
“Consent Solicitation
Statement” means the consent solicitation statement
included as part of the Registration Statement with respect to the
solicitation by the Company of the Company Stockholder
Approval.
“Copyrights” means all
copyrights, copyrights registrations and applications therefor, and
all other rights corresponding thereto throughout the
world.
“Earnout Cash Post-Earnout Share
Equivalent” means the quotient of (i) the aggregate
amount, if any, of the Earnout Cash actually distributed to Company
Stockholders in accordance with Section 1.8 divided by (ii) the
BRPA Closing Price.
“Earnout Cash Share
Equivalent” means the quotient of (i) $100,000,000
divided by (ii) the BRPA Closing Price.
“Earnout Pro Rata Portion”
means, with respect to each
holder of outstanding shares of Company Common Stock as of
immediately prior to the Effective Time (including holders
of shares of Company Common Stock resulting from the Preferred
Stock Conversion), a
fraction expressed as a percentage equal to (i) the number of
shares of BRPA Common Stock into which such holder’s shares
of Company Common Stock are converted into in accordance
with Section
1.3(b) divided
by (ii) the sum
of (x) the total number of shares of BRPA Common Stock into
which all outstanding shares of Company Common Stock
(including all shares of Company Common Stock resulting from the
Preferred Stock Conversion) are converted into in accordance
with Section
3.01(b), plus (y)
total shares of BRPA Common Stock that would have been underlying
the Substitute Options had the number of shares underlying such
Substitute Options been determined pursuant Section
1.3(c)(i) based on
the Exchange Ratio instead of the Option Exchange Ratio (for the
avoidance of doubt, without reflecting any subsequent Option
Post-Earnout Adjustments).
“EMEA” means the European
Medicines Agency.
“Environmental Law” means
any federal, state, local or foreign law, regulation, order,
decree, permit, authorization, opinion, common law or agency
requirement relating to: (i) the protection, investigation or
restoration of the environment, health and safety (in relation to
exposure to Hazardous Substances), or natural resources; (ii) the
handling, use, presence, disposal, release or threatened release of
any Hazardous Substance or (iii) noise, odor, wetlands, pollution,
contamination or any injury or threat of injury to persons or
property, including but not limited to the United States federal
statutes known as the Clean Air Act, Clean Water Act, Comprehensive
Environmental Response, Compensation, and Liability Act, Emergency
Planning and Community Right to Know Act, Endangered Species Act,
Hazardous Materials Transportation Act, Migratory Bird Treaty Act,
National Environmental Policy Act, Operational Safety and Health
Act, Oil Pollution Act of 1990, Resource Conservation and Recovery
Act, Safe Drinking Water Act, Toxic Substances Control Act, or any
similar law in any jurisdiction in which the Company or a
Subsidiary conducts business or provides or offers goods or
services.
A-5
“Exchange Ratio” means the
quotient of (i) 50,000,000 divided by (ii) the total number of
issued and outstanding shares of Company Common Stock and the
Company Preferred Stock (on an “as-converted” to
Company Common Stock basis) on a fully diluted basis as of the
Closing Date using the treasury method of accounting, including,
without duplication, the number of shares of Company Common Stock
issuable pursuant to the conversions or exercises provided for in
Section 1.3(a), the
number of shares of Company Common Stock issued or issuable upon
the exercise of all Company Stock Options and the shares of Company
Common Stock underlying the Company Warrants.
“Export Control Laws”
means (i) all U.S. import and export laws, including those laws
under the authority of U.S. Departments of Commerce (Bureau of
Industry and Security) codified at 15 CFR, Parts 700-799; Homeland
Security (Customs and Border Protection) codified at 19 CFR, Parts
1-199; State (Directorate of Defense Trade Controls) codified at 22
CFR, Parts 103, 120-130; and Treasury (Office of Foreign Assets
Control) codified at 31 CFR, Parts 500-599, United States Executive
Order 13224, the Arms Export Control Act, the International Traffic
in Arms Regulations, the Export Administration Act, the
International Emergency Economic Powers Act, the Trading with the
Enemy Act, and (ii) all comparable applicable laws outside the
United States.
“FDA” means the U.S. Food
and Drug Administration.
“Governmental Entity”
means any federal, state, provincial, municipal, foreign, or other
court, judicial body, administrative agency, commission,
governmental or regulatory authority or similar body, including but
not limited to the SEC, the FDA, the Department of Health and Human
Services, the Centers for Medicare & Medicaid Services, the
Department of Veterans Affairs, and the EMEA.
“Governmental Order” means
any order, judgment, injunction, decree, writ, stipulation,
determination or award, in each case, entered by or with any
Governmental Entity.
“Hazardous Substance”
means any substance that is: (i) listed, classified or regulated
pursuant to any Environmental Law; (ii) any petroleum product or
by-product, natural gas, synthetic gas, and any mixtures thereof,
asbestos-containing material, lead-containing paint or plumbing,
polychlorinated biphenyls, radioactive materials, radon, or per-
and polyfluoroalkyl substances; or (iii) any other substance which
is the subject of regulatory action by any Governmental Entity
pursuant to any Environmental Law.
“Health Care Programs”
means the Medicare program, any state Medicaid program, TRICARE,
any heath care program of the Department of Veterans Affairs, the
Maternal and Child Health Services Block Grant Program, any
federally-funded state social services block grant program, the
State Children’s Health Insurance Program, or any similar
U.S. or foreign programs.
“Health Care Regulatory
Laws” means any applicable law relating to healthcare,
including, without limitation the following (as amended from time
to time), (i) the Federal Food, Drug, and Cosmetic Act of 1938, as
amended (21 U.S.C. § 301 et seq.), and (ii) the Public Health
Service Act (42 U.S.C. § 201 et seq.), and all regulations
promulgated thereunder (including, but not limited to, 21 C.F.R.
Part 1271).
A-6
“HIPAA” means the security
and privacy standards adopted pursuant to the Health Insurance
Portability and Accountability Act of 1996 (HIPAA) and the Health
Information Technology for Economic and Clinical Health Act of 2009
(HITECH), as amended, and implementing regulations.
“HSR Act” means the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended.
“IEC” means an independent
ethics committee.
“Information Privacy and Security
Laws” means all applicable laws concerning the
privacy, data protection, transfer, or security of Personal
Confidential Information, including, to the extent applicable, the
Fair Credit Reporting Act, Federal Trade Commission Act, CAN SPAM
Act, Telephone Consumer Protection Act, Telemarketing and Consumer
Fraud and Abuse Prevention Act, Children’s Online Privacy
Protection Act, the Payment Card Industry Data Security Standards,
the guidance of each Governmental Entity that pertains to such
laws, the General Data Protection Regulation (EU), other state, and
federal, data security laws, data breach notification laws, and
consumer protection laws.
“Insider” means any
individual who is an officer, director or employee of the Company
or any of its Subsidiaries.
“Insurance Policies” means
all material insurance policies and material fidelity and surety
bonds covering the assets, business, equipment, properties,
operations, employees, officers and directors.
“Intellectual Property
Rights” means any or all of the following and all
worldwide common law and statutory rights in, arising out of, or
associated therewith: (i) Patents; (ii) inventions (whether
patentable or not), invention disclosures, improvements, trade
secrets, proprietary information, know how, technology, technical
data and customer lists, and all documentation relating to any of
the foregoing; (iii) Copyrights; (iv) software and software
programs; (v) domain names, uniform resource locators and other
names and locators associated with the internet or mobile devices
or platforms; (vi) industrial designs and any registrations and
applications therefor; (vii) Trademarks; (viii) all databases and
data collections and all rights therein; (ix) all moral and
economic rights of authors and inventors, however denominated, (x)
all rights to obtain renewals, continuations, divisions, or other
extensions of legal protections pertaining thereto, and (xi) any
similar or equivalent rights to any of the foregoing (as
applicable).
“IRB” means an
institutional review board.
“knowledge” means actual
knowledge or awareness as to a specified fact or event (i) in the
case of the Company, of Jonathan Javitt or Brian Del Buono, and
(ii) in the case of BRPA or Merger Sub, Richard Ackerman, Bennett
Kim, or Lori Wittman.
“Legal Requirements” means
any federal, state, local, municipal, foreign or other law,
statute, constitution, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, ruling or
requirement issued, enacted, adopted, promulgated, implemented or
otherwise put into effect by or under the authority of any
Governmental Entity, including but not limited to, the Securities
Act, Exchange Act, rules and regulations of the SEC, the
Sarbanes-Oxley Act and rules and regulations thereunder, the Nasdaq
Listing Rules, Health Care Regulatory Laws, and Export Control
Laws, and including any (a) technical or scientific standard to
which adherence is required by any Governmental Entity and (b) any
mandatory rules or policies of non-governmental accreditation or
oversight bodies applicable to the Company Products.
A-7
“Lien” means any mortgage,
pledge, security interest, encumbrance, lien, restriction or charge
of any kind (including, without limitation, any conditional sale or
other title retention agreement or lease in the nature thereof, any
sale with recourse against the seller or any Affiliate of the
seller, or any agreement to give any security
interest).
“Merger Consideration”
means (i) an aggregate of 50,000,000 shares of BRPA Common Stock
and (ii) the Earnout Consideration, if payable in accordance with
Section
1.8.
“OFAC” means the Office of
Foreign Assets Control of the U.S. Department of
Treasury.
“Option Exchange Ratio”
means the Exchange Ratio, but substituting “(i) the sum of
(a) 75,000,000 plus (b) the Earnout Cash Share Equivalent” in
lieu of “(i) 50,000,000”
“Option Post-Earnout Exchange
Ratio” means the Exchange Ratio, but substituting
“(i) the sum of (a) 50,000,000 plus (b) the number of Earnout
Shares actually distributed to Company Shareholders in accordance
with Section 1.8
plus (c) the Earnout Cash Post-Earnout Share Equivalent” in
lieu of “(i) 50,000,000”.
“Patents” means all
patents and applications therefor and all reissues, divisions,
renewals, extensions, provisionals, continuations and
continuations-in-part thereof.
“Permitted Liens” means
(i) statutory Liens for Taxes, assessments or other governmental
charges, in each case, not yet delinquent or the amount or validity
of which is being contested in good faith and for which adequate
reserves have been established in accordance with U.S. GAAP, (ii)
mechanics’, carriers’, workers’, repairers’
and similar Liens arising or incurred in the ordinary course of
business, (iii) zoning, entitlement and other land use and
environmental regulations promulgated by any Governmental Entity,
(iv) covenants, conditions, restrictions, easements, rights of
way, encumbrances, defects, imperfections, irregularities of title
or other Liens, if any, that would not reasonably be expected to
have a Company Material Adverse Effect or BRPA Material Adverse
Effect, as applicable, (v) with respect to any leased real
property, (a) the interests and rights of the respective lessors
with respect thereto and (b) any Lien permitted under the
applicable lease agreement and any ancillary documents thereto,
(vi) Liens created by BRPA or its successors and assigns,
(vii) Liens disclosed in the Company Schedules or the BRPA
Schedules, (viii) Liens (other than monetary liens) incurred in the
ordinary course of business since the date of the most recent
Company Financial Statements or BRPA Financial Statements, as
applicable, (ix) licenses to Intellectual Property Rights granted
in the ordinary course of business, (x) Liens securing the
Company’s and its Subsidiaries’ existing credit
facilities, (xii) statutory or contractual Liens of lessors or
Liens on the lessor’s or prior lessor’s interest, and
(xiii) Liens of public record.
“Permitted Transferee”
means (i) BRPA or an Affiliate of BRPA, (ii) if the transferor is
an entity, (x) its shareholders, partners, or members upon the
transferee’s liquidation or (y) an entity, if such
entity’s equity securities are 100% owned by the transferor
or its shareholders, partners, or members, or (iii) if the
transferor is an individual, (x) a member of the transferor’s
immediate family or a trust, the beneficiary of which is the
transferor or a member of the transferor’s immediate family,
who receives BRPA Common Stock from the transferor by bona fide
gift for estate planning purposes, (y) a Person who receives BRPA
Common Stock from the transferor by virtue of the laws of descent
and distribution upon the death of the transferor, or (z) a Person
who receives BRPA Common Stock from the transferor pursuant to a
qualified domestic relations order binding on the transferor. As
used herein, “immediate family” means a
spouse, parent, lineal descendants, the spouse of any lineal
descendent, brothers or sisters, or a trust, all of whose current
beneficiaries are members of the immediate family of the
transferor.
A-8
“Person” means any
individual, corporation (including any non-profit corporation),
general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any
limited liability company or joint stock company), firm or other
enterprise, association, organization, entity or Governmental
Entity.
“Personal Confidential
Information” means any information, in any form, that
could reasonably be used to identify, contact, or locate a single
person, that is governed, regulated, or protected by one or more
Information Privacy and Security Laws.
“Protected Health
Information” has the definition provided by 45 C.F.R.
160.103.
“Proxy Statement” means
the proxy statement filed by BRPA as part of the Registration
Statement with respect to the BRPA Special Meeting for the purpose
of soliciting proxies from BRPA Stockholders to approve the BRPA
Stockholder Matters (which shall also provide the BRPA Stockholders
with the opportunity to redeem their shares of BRPA Common Stock in
conjunction with a stockholder vote on the Business
Combination).
“Representative” means,
with respect to any Person, any director, officer, employee, agent,
manager, consultant, advisor, or other representative of such
Person, including legal counsel, accountants, and financial
advisors.
“Schedules” means the
Company Schedules and the BRPA Schedules.
“SEC” means the U.S.
Securities and Exchange Commission.
“Securities Act” means the
Securities Act of 1933, as amended.
“Sponsor” means Big Rock
Partners Sponsor, LLC.
“Subsidiary” means, with
respect to any Person, any other Person with respect to which such
first Person (alone or in combination with any of such first
Person’s other Subsidiaries) owns (i) capital stock or other
equity interests having the ordinary voting power to elect a
majority of the board of directors or other governing body of such
Person or (ii) a majority of the outstanding voting securities of
such Person.
“Tax Opinion Counsel”
means the Company’s counsel.
“Tax Opinion” means an
opinion of Tax Opinion Counsel, in form and substance reasonably
satisfactory to the Company, dated as of the Closing Date,
substantially to the effect that, on the basis of facts,
representations and assumptions set forth in such opinion, the
Merger will qualify as a “reorganization” within the
meaning of Section 368(a) of the Code.
“Tax” or
“Taxes”
refers to any and all federal, state, local and foreign taxes,
including, without limitation, gross receipts, income, profits,
sales, use, occupation, value added, ad valorem, transfer,
franchise, withholding, payroll, employment, excise and property
taxes, assessments, governmental charges in the nature of a tax and
duties together with all interest, penalties and additions imposed
with respect to any such amounts, and including (i) any liability
of a predecessor entity for any such amounts and (ii) any such
amounts imposed by contract.
A-9
“Trademarks” means trade
names, logos, common law trademarks and service marks, trademark
and service mark registrations and applications
therefor.
“Transactions” means the
transactions contemplated by this Agreement to occur at or
immediately prior to the Closing, including the
Merger.
“U.S. GAAP” means
generally accepted accounting principles historically and
consistently applied in the United States and as in effect from
time to time.
A-10
Exhibit B
Form of
Voting and Support Agreement
[See
attached]
B-1
Exhibit 99.1
 |
 |
FOR IMMEDIATE RELEASE
BIG ROCK PARTNERS ACQUISITION CORP. ANNOUNCES MERGER WITH NEURORX,
INC.
COMBINED COMPANY TO HAVE AN ESTIMATED POST-TRANSACTION EQUITY VALUE
IN EXCESS OF $500 MILLION (EXCLUDING POTENTIAL EARNOUT PAYMENTS),
ASSUMING A SHARE PRICE OF AT LEAST $10.00 PER SHARE
NeuroRx, Inc. is a clinical stage, small molecule pharmaceutical
company which develops novel therapeutics for the treatment of
COVID-19 (RLF-100 or “ZYESAMI™ (aviptadil)”) and
Bipolar Depression (NRX-100, 101)
Delray Beach, FL – December 14, 2020 – Big Rock
Partners Acquisition Corp. (“Big Rock”) (NASDAQ:
BRPA), a special purpose acquisition company, announces that it has
entered into an Agreement and Plan of Merger with NeuroRx, Inc.
(“NeuroRx”), a clinical stage, small molecule
pharmaceutical company. NeuroRx develops novel therapeutics for the
treatment of COVID-19 (RLF-100 or “ZYESAMI™
(aviptadil)”) and Bipolar Depression (NRX-100, 101). Under
the terms of the transaction, Big Rock and NeuroRx will merge and
the company is expected to continue to trade on the Nasdaq Stock
Market under the symbol “NRXP.” The transaction is
expected to occur in the first or second quarter of 2021. As a
public Nasdaq-listed company, NeuroRx expects to have increased
access to capital to continue development of its innovative drug
pipeline targeting Central Nervous System (CNS)/Psychiatry and
Respiratory Disease.
An Innovator in Mental Health and Respiratory Drug
Development
NeuroRx
is a clinical stage, small molecule pharmaceutical company which
develops novel therapeutics for the treatment of central nervous
system disorders and life-threatening pulmonary disease.
NeuroRx’s two main drugs are “ZYESAMI™ (aviptadil)”
which is an application for COVID-related respiratory failure and
“NRX-101”, which
focuses on suicidal bipolar depression and PTSD. ZYESAMI is a
synthetic human Vasoactive Intestinal Peptide (VIP), a 28
amino-acid natural peptide with 50 years of research evidence led
by the late Prof. Sami Said, documenting protection from Lung
Injury by protecting type II epithelial cells. NRX-101 is a
fixed-dose combination of D-cycloserine and lurasidone that has
advanced to phase 3 with FDA Breakthrough Therapy Designation, a
Special Protocol Agreement, Biomarker Letter of Support, and Fast
Track Designation.
ZYESAMI (aviptadil) – Therapeutic for Respiratory Failure in
COVID-19 and other life-threatening respiratory
conditions
NeuroRx
established a commercial development partnership with Relief
Therapeutics Holding AG (SWX:RLF, OTCQB:RLFTF)
(“Relief”) in March 2020 for global commercialization
of aviptadil which has been the subject of previous press
releases.
NRX 100/101 – Anti-Depressant Drug Regimen
NRX-100/101 is being developed based on Prof. Daniel
Javitt’s (Chair of NeuroRx’s Scientific Advisory Board)
patented discovery that drugs targeting both the NMDA and 5-HT2A
receptors in the brain have the potential to treat both depression
and suicidality without the hallucinations caused by most NMDA
inhibitors and without the potential for suicide attributable to
other 5-HT2A inhibitor drugs:
●
Specific Focus on Suicidal Bipolar
Depression: Over 50% of individuals with Bipolar Disorder
attempt suicide over their lifetime. Competitors’ pipeline
products are focused on Major Depressive Disorder (MDD) and
Treatment Resistant Depression (TRD)
●
Potential Stabilization for acutely suicidal
patients after a single dose of NRX-100 (ketamine): The
sequential drug treatment regimen aspires to maintain remission
from depression and suicidal ideation after a single, initial
administration of NRX-100 (ketamine). In numerous clinical studies,
ketamine has shown rapid-onset, antidepressant/anti-suicidal
effects. Ketamine is well known to have potential for addiction,
hallucination, vomiting, and neurotoxicity with repeated
use.
●
Convenience: In contrast to repeated use
of ketamine, NRX-101 is expected to allow treatment at home after
an initial stabilization with NRX-100 (ketamine) in a clinical
setting
●
NRX-101 Not Expected To Be a Controlled
Substance: Unlike ketamine and its derivatives, the two
active ingredients of NRX-101 are not classified as controlled
substances by the Drug Enforcement Administration
(DEA)
Seasoned Management and Board
NeuroRx’s
management team is comprised of seasoned industry veterans, led by
Founder, Chairman & CEO Jonathan C. Javitt, MD, MPH, Robert
Besthof, MIM (Chief Commercial Officer), William Fricker, MBA, CPA
(Chief Financial Officer) and Alessandra Daigneault, JD (Corporate
Secretary), who are expected to continue to run the combined
company, post-transaction.
All
officers and members of the Board of Directors of Big Rock will
resign in connection with the closing of the transactions. The
Board of Directors of the combined company will initially consist
of seven members, including Prof. Jonathan Javitt.
Management Commentary
Prof.
Javitt stated, “We at NeuroRx are excited to be combining
with Big Rock Partners and its base of dedicated investors. Our
focus from the outset has been to serve patients with
life-threatening conditions who are not served by traditional
pharmaceutical approaches. As we have gotten to know our new
partners at Big Rock Partners, it is clear to us that they share
the same values and commitment to putting the patient
first.”
Summary of Transaction
Under
the terms of the transaction, Big Rock will issue to
NeuroRx’s current equity holders an aggregate of 50 million
shares of Big Rock common stock for their interests in NeuroRx,
representing $500 million of equity consideration, assuming a value
of $10.00 per common share.
Subject
to certain conditions, an aggregate of 25 million additional shares
of Big Rock common stock will be issued to NeuroRx pre-merger
equity holders if, prior to December 31, 2022, (1) RLF-100 receives
emergency use authorization by the FDA and (2) the FDA accepts the
Company’s filing of its application to approve
RLF-100.
In
addition, subject to certain conditions, a $100 million cash
earnout may be payable to NeuroRx pre-merger equity holders if,
prior to December 31, 2022, either (1) FDA approval of the
Company’s COVID-19 Drug is obtained and the Company’s
COVID-19 Drug is listed in the FDA’s “Orange
Book” or (2) FDA approval of the Company’s
Antidepressant Drug Regimen is obtained and the Company’s
Antidepressant Drug Regimen is listed in the FDA’s
“Orange Book”.
The
Boards of Directors of both NeuroRx and Big Rock have unanimously
approved the proposed transaction. Completion of the transaction is
subject to approval by stockholders of NeuroRx and Big Rock and
other customary closing conditions.
For
additional information on the transaction, see Big Rock’s
Current Report on Form 8-K, which will be filed promptly and which
can be obtained, without charge, at the Securities and Exchange
Commission’s internet site (http://www.sec.gov).
EarlyBirdCapital,
Inc. (“EBC”) served as financial advisor to Big Rock.
Graubard Miller acted as
legal advisor to Big Rock and Paul, Weiss, Rifkind, Wharton &
Garrison LLP acted as legal advisor to NeuroRx.
About
Big Rock Partners Acquisition Corp.
Big
Rock Partners Acquisition Corp. is a blank check company formed for
the purpose of entering into a merger, stock exchange, asset
acquisition, stock purchase, recapitalization, reorganization, or
other similar business combination with one or more businesses or
entities. Big Rock’s management team includes Richard
Ackerman, Chairman, President, and Chief Executive Officer, and
Bennett Kim, Chief Financial Officer, Chief Investment Officer,
Corporate Secretary and Director. Big Rock’s common stock,
units, rights and warrants are quoted on the Nasdaq Capital Market
under the ticker symbols BRPA, BRPAU, BRPAR and BRPAW,
respectively.
About NeuroRx
NeuroRx draws upon more than 100 years of collective drug
development experience and is led by former senior executives of
major pharmaceutical companies. In addition to its work on RLF-100,
NeuroRx has been awarded Breakthrough Therapy Designation and a
Special Protocol Agreement to develop NRX-101 in suicidal bipolar
depression and is currently in Phase 3 trials. Its executive team
is led by Prof. Jonathan C. Javitt, MD, MPH, who has served as a
health advisor to four Presidential administrations and worked on
significant drug development projects for major pharmaceutical
companies, together with Robert Besthof, MIM, who served as senior
executive in the neuroscience and pain division of a major
pharmaceutical company. Current directors and advisors of NeuroRx
include Hon. Sherry Glied, former Assistant Secretary, U.S. Dept.
of Health and Human Services; Mr. Chaim Hurvitz, former President
of the Teva International Group, Lt. Gen. HR McMaster, the 23rd
National Security Advisor, Wayne Pines, former Associate
Commissioner of the U.S. Food and Drug Administration, Judge
Abraham Sofaer, and Daniel Troy, former Chief Counsel, U.S. Food
and Drug Administration.
Additional Information and Where to Find It
This
document relates to a proposed transaction between NeuroRx and Big
Rock. This document does not constitute an offer to sell or
exchange, or the solicitation of an offer to buy or exchange, any
securities, nor shall there be any sale of securities in any
jurisdiction in which such offer, sale or exchange would be
unlawful prior to registration or qualification under the
securities laws of any such jurisdiction. Big Rock intends to file
a registration statement on Form S-4 (“Registration
Statement”), which will include a proxy statement for the
solicitation of Big Rock shareholder approval, a prospectus for the
offer and sale of Big Rock securities in the transaction and a
consent solicitation statement of NeuroRx, and other relevant
documents with the Securities and Exchange Commission
(“SEC”). The proxy statement/consent solicitation
statement/prospectus will be mailed to stockholders of Big Rock and
NeuroRx as of a record date to be established for voting on the
proposed business combination. INVESTORS AND SECURITY HOLDERS OF
BIG ROCK AND NEURORX ARE URGED TO READ THE REGISTRATION STATEMENT,
PROXY STATEMENT/CONSENT SOLICITATION STATEMENT/PROSPECTUS AND OTHER
RELEVANT DOCUMENTS THAT WILL BE FILED WITH THE SEC CAREFULLY AND IN
THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN
IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and
security holders will be able to obtain free copies of the
registration statement, proxy statement, prospectus and other
documents containing important information about Big Rock and
NeuroRx once such documents are filed with the SEC, through the
website maintained by the SEC at http://www.sec.gov.
Additional Information Posted to Website
Big Rock will post information regarding the proposed transaction
promptly at
www.bigrockpartners.com. An
investor presentation will also be furnished promptly by Big Rock
to the SEC on a current report on Form 8-K, which can be viewed at
the SEC’s website at www.sec.gov and
www.bigrockpartners.com. Big
Rock intends to use its website as additional means of disclosing
information to investors, the media, and others interested in Big
Rock. It is possible that certain information that Big Rock posts
to its website could be deemed material information, and Big Rock
encourages investors, the media, and others interested in Big Rock
to review the business and financial information that Big Rock
posts on its website as such information could be deemed to be
material information.
Participants in the Solicitation
Big
Rock, NeuroRx and EBC and their respective directors and executive
officers, under SEC rules, may be deemed to be participants in the
solicitation of proxies of Big Rock’s shareholders in
connection with the proposed transaction. Investors and
securityholders may obtain more detailed information regarding the
names and interests in the proposed transaction of Big Rock’s
directors and officers in Big Rock’s filings with the SEC,
including the forthcoming proxy statement/consent solicitation
statement/prospectus statement. You may obtain a free copy of these
documents as described in the preceding paragraph.
No Offer or Solicitation
This
communication shall neither constitute an offer to sell or the
solicitation of an offer to buy any securities, nor shall there be
any sale of securities in any jurisdiction in which the offer,
solicitation or sale would be unlawful prior to the registration or
qualification under the securities laws of any such
jurisdiction.
Cautionary Note Regarding Forward Looking Statements
Neither
Big Rock, NeuroRx nor any of their respective affiliates makes any
representation or warranty as to the accuracy or completeness of
the information contained in this press release. This press release
is not intended to be all-inclusive or to contain all the
information that a person may desire in considering the proposed
transaction discussed herein. It is not intended to form the basis
of any investment decision or any other decision in respect of the
proposed transaction.
This
press release includes “forward-looking statements”
within the meaning of the federal securities laws with respect to
the proposed transaction between NeuroRx, Inc. and Big Rock,
including statements regarding the benefits of the transaction, the
anticipated timing of the transaction, the drugs under development
by NeuroRx and the markets in which it operates. Big Rock’s
and NeuroRx’s actual results may differ from its
expectations, estimates and projections and consequently, you
should not rely on these forward-looking statements as predictions
of future events. These forward-looking statements generally are
identified by the words “aspire,” “expect,”
“estimate,” “project,”
“budget,” “forecast,”
“anticipate,” “intend,” “plan,”
“may,” “will,” “will be,”
“will continue,” “will likely result,”
“could,” “should,”
“believe(s),” “predicts,”
“potential,” “continue,”
“future,” “opportunity,”
“strategy,” and similar expressions are intended to
identify such forward-looking statements. These forward-looking
statements include, without limitation, Big Rock’s and
NeuroRx’s expectations with respect to future performance and
anticipated financial impacts of the proposed
transaction.
These
forward-looking statements involve significant risks and
uncertainties that could cause the actual results to differ
materially from the expected results. Most of these factors are
outside Big Rock’s and NeuroRx’s control and are
difficult to predict. Factors that may cause such differences
include, but are not limited to: (1) the approvals, timing, and
ability to complete the proposed business combination, which may
adversely affect the trading price of Big Rock’s securities;
(2) Big Rock’s ability to remain listed on the Nasdaq Capital
Market prior to the closing of the proposed business combination;
(3) the combined company’s continued listing on the NASDAQ
Capital Market after closing of the proposed business combination;
(4) the benefits of the proposed business combination, including
future financial and operating results of the combined company; (5)
the inherent uncertainty associated with the FDA approval process;
(6) the risk that the proposed transaction disrupts current plans
and operations of NeuroRx as a result of the announcement and
consummation of the transaction described therein and herein; (7)
costs related to the proposed business combination; (8) changes in
applicable laws or regulations; (9) the possibility that the
combined company may be adversely affected by other economic,
business, and/or competitive factors; (10) the impact of COVID-19
or other adverse public health developments; and (11) other risks
and uncertainties that will be detailed in the proxy
statement/consent solicitation statement/prospectus and
registration statement to be filed on Form S-4 with the SEC and as
indicated from time to time in Big Rock’s filings with the
SEC. These filings identify and address other important risks and
uncertainties that could cause actual events and results to differ
materially from those contained in the forward-looking
statements.
Big
Rock and NeuroRX caution that the foregoing list of factors is not
exclusive. Big Rock and NeuroRx caution readers not to place undue
reliance upon any forward-looking statements, which speak only as
of the date made. Neither Big Rock nor NeuroRx undertake or accept
any obligation or undertaking to release publicly any updates or
revisions to any forward-looking statements to reflect any change
in its expectations or any change in events, conditions or
circumstances on which any such statement is based.
CORPORATE CONTACTS
Big Rock Partners
Richard Ackerman
Chief Executive Officer
Big Rock Partners Acquisition Corp.
rackerman@bigrockpartners.com
NeuroRx, Inc.
Jonathan C. Javitt, M.D., MPH
Chief Executive Officer
NeuroRx, Inc.
ceo@neurorxpharma.com
MEDIA CONTACT
NeuroRx (United States):
David Schull
Russo Partners, LLC
david.schull@russopartnersllc.com
858-717-2310
INVESTOR RELATIONS
NeuroRx (United States)
Brian Korb
Solebury Trout
bkorb@troutgroup.com
917-653-5122
Exhibit
99.2
