brpa_ex107





 







  Exhibit 10.7


 ANNEX A
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

 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
Article I THE
MERGER

	
  

	
 

	
A-2

	
 


	
1.1

	
  

	
The Merger

	
  

	
 

	
A-2

	
 


	
1.2

	
  

	
Governing Documents

	
  

	
 

	
A-2

	
 


	
1.3

	
  

	
Effect on Securities

	
  

	
 

	
A-2

	
 


	
1.4

	
  

	
Exchange Procedures.

	
  

	
 

	
A-5

	
 


	
1.5

	
  

	
The Closing

	
  

	
 

	
A-6

	
 


	
1.6

	
  

	
Deliveries at Closing

	
  

	
 

	
A-6

	
 


	
1.7

	
  

	
Lock-Up
Agreement

	
  

	
 

	
A-6

	
 


	
1.8

	
  

	
Earnout

	
  

	
 

	
A-6

	
 


	
1.9

	
  

	
Sponsor Agreement

	
  

	
 

	
A-7

	
 


	
1.10

	
  

	
Amendment to Stock Escrow Agreement

	
  

	
 

	
A-8

	
 


	
1.11

	
  

	
Amendment to BCMA

	
  

	
 

	
A-8

	
 


	
1.12

	
  

	
Amendment to BRPA Loan Agreements

	
  

	
 

	
A-8

	
 


	
1.13

	
  

	
Registration Rights Agreement

	
  

	
 

	
A-8

	
 


	
1.14

	
  

	
Taking of Necessary Action; Further
Action

	
  

	
 

	
A-8

	
 


	
1.15

	
  

	
Tax Consequences

	
  

	
 

	
A-8

	
 


	
1.16

	
  

	
Payment of Expenses

	
  

	
 

	
A-9

	
 


	
1.17

	
  

	
Dissenting Shares

	
  

	
 

	
A-9

	
 


	
Article II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

	
  

	
 

	
A-9

	
 


	
2.1

	
  

	
Organization and Qualification

	
  

	
 

	
A-10

	
 


	
2.2

	
  

	
Subsidiaries

	
  

	
 

	
A-10

	
 


	
2.3

	
  

	
Capitalization

	
  

	
 

	
A-10

	
 


	
2.4

	
  

	
Authority Relative to this
Agreement

	
  

	
 

	
A-11

	
 


	
2.5

	
  

	
No Conflict; Required Filings and
Consents

	
  

	
 

	
A-12

	
 


	
2.6

	
  

	
Compliance

	
  

	
 

	
A-12

	
 


	
2.7

	
  

	
Permits

	
  

	
 

	
A-13

	
 


	
2.8

	
  

	
Financial Matters

	
  

	
 

	
A-13

	
 


	
2.9

	
  

	
Absence of Certain Developments

	
  

	
 

	
A-14

	
 


	
2.10

	
  

	
Condition and Sufficiency of Assets

	
  

	
 

	
A-14

	
 


	
2.11

	
  

	
Litigation

	
  

	
 

	
A-14

	
 


	
2.12

	
  

	
Employee Benefit Plans

	
  

	
 

	
A-14

	
 


	
2.13

	
  

	
Labor Matters

	
  

	
 

	
A-15

	
 


	
2.14

	
  

	
Restrictions on Business Activities

	
  

	
 

	
A-16

	
 


	
2.15

	
  

	
Title to Property

	
  

	
 

	
A-16

	
 


	
2.16

	
  

	
Taxes

	
  

	
 

	
A-17

	
 


	
2.17

	
  

	
Environmental Matters

	
  

	
 

	
A-17

	
 


	
2.18

	
  

	
Brokers

	
  

	
 

	
A-18

	
 


	
2.19

	
  

	
Intellectual Property

	
  

	
 

	
A-18

	
 


	
2.20

	
  

	
Product Warranties; Product
Liability

	
  

	
 

	
A-20

	
 


	
2.21

	
  

	
Agreements, Contracts and
Commitments

	
  

	
 

	
A-21

	
 


	
2.22

	
  

	
Insurance

	
  

	
 

	
A-22

	
 


	
2.23

	
  

	
Interested Party Transactions

	
  

	
 

	
A-22

	
 


	
2.24

	
  

	
Registration Statement

	
  

	
 

	
A-23

	
 


	
2.25

	
  

	
Certain Business Practices

	
  

	
 

	
A-23

	
 


	
2.26

	
  

	
FDA and EMEA Approval

	
  

	
 

	
A-24

	
 


	
2.27

	
  

	
Health Care Regulatory Compliance

	
  

	
 

	
A-25

	
 


	
2.28

	
  

	
Board Approval

	
  

	
 

	
A-26

	
 


	
2.29

	
  

	
Company Stockholder Approval

	
  

	
 

	
A-26

	
 


	
2.30

	
  

	
No Additional Representations and Warranties; No
Reliance

	
  

	
 

	
A-26

	
 


	
Article III
REPRESENTATIONS AND WARRANTIES OF BRPA AND MERGER SUB

	
  

	
 

	
A-26

	
 






 

A-i



 







 





 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
3.1

	
  

	
Organization and Qualification

	
  

	
 

	
A-27

	
 


	
3.2

	
  

	
Subsidiaries

	
  

	
 

	
A-27

	
 


	
3.3

	
  

	
Capitalization

	
  

	
 

	
A-27

	
 


	
3.4

	
  

	
Authority Relative to this
Agreement

	
  

	
 

	
A-28

	
 


	
3.5

	
  

	
No Conflict; Required Filings and
Consents

	
  

	
 

	
A-29

	
 


	
3.6

	
  

	
Compliance

	
  

	
 

	
A-29

	
 


	
3.7

	
  

	
BRPA SEC Reports and Financial
Statements

	
  

	
 

	
A-30

	
 


	
3.8

	
  

	
No Undisclosed Liabilities

	
  

	
 

	
A-31

	
 


	
3.9

	
  

	
Absence of Certain Developments

	
  

	
 

	
A-31

	
 


	
3.10

	
  

	
Litigation

	
  

	
 

	
A-31

	
 


	
3.11

	
  

	
Employee Benefit Plans

	
  

	
 

	
A-31

	
 


	
3.12

	
  

	
Labor Matters

	
  

	
 

	
A-31

	
 


	
3.13

	
  

	
Business Activities

	
  

	
 

	
A-31

	
 


	
3.14

	
  

	
Title to Property

	
  

	
 

	
A-31

	
 


	
3.15

	
  

	
Intellectual Property

	
  

	
 

	
A-32

	
 


	
3.16

	
  

	
Taxes

	
  

	
 

	
A-32

	
 


	
3.17

	
  

	
Brokers

	
  

	
 

	
A-32

	
 


	
3.18

	
  

	
Agreements, Contracts and
Commitments

	
  

	
 

	
A-32

	
 


	
3.19

	
  

	
Insurance

	
  

	
 

	
A-33

	
 


	
3.20

	
  

	
Interested Party Transactions

	
  

	
 

	
A-33

	
 


	
3.21

	
  

	
BRPA Listing

	
  

	
 

	
A-33

	
 


	
3.22

	
  

	
Trust Fund

	
  

	
 

	
A-33

	
 


	
3.23

	
  

	
Registration Statement

	
  

	
 

	
A-33

	
 


	
3.24

	
  

	
No Additional Representations and Warranties; No
Reliance

	
  

	
 

	
A-34

	
 


	
Article IV CONDUCT
PRIOR TO CLOSING

	
  

	
 

	
A-34

	
 


	
4.1

	
  

	
Conduct of Business by the Company

	
  

	
 

	
A-34

	
 


	
4.2

	
  

	
Conduct of Business by BRPA and Merger
Sub

	
  

	
 

	
A-37

	
 


	
4.3

	
  

	
Confidentiality; Access to
Information

	
  

	
 

	
A-38

	
 


	
4.4

	
  

	
Exclusivity

	
  

	
 

	
A-39

	
 


	
4.5

	
  

	
Reasonable Best Efforts

	
  

	
 

	
A-41

	
 


	
Article V
ADDITIONAL AGREEMENTS

	
  

	
 

	
A-41

	
 


	
5.1

	
  

	
Registration Statement; BRPA Special
Meeting

	
  

	
 

	
A-41

	
 


	
5.2

	
  

	
Directors and Officers of BRPA After
Transactions

	
  

	
 

	
A-43

	
 


	
5.3

	
  

	
HSR Act

	
  

	
 

	
A-43

	
 


	
5.4

	
  

	
Public Announcements

	
  

	
 

	
A-44

	
 


	
5.5

	
  

	
Required Information

	
  

	
 

	
A-44

	
 


	
5.6

	
  

	
No Securities Transactions

	
  

	
 

	
A-45

	
 


	
5.7

	
  

	
No Claim Against Trust Fund

	
  

	
 

	
A-45

	
 


	
5.8

	
  

	
Disclosure of Certain Matters

	
  

	
 

	
A-45

	
 


	
5.9

	
  

	
Securities Listing

	
  

	
 

	
A-45

	
 


	
5.10

	
  

	
Charter Protections; Directors’ and
Officers’ Liability Insurance

	
  

	
 

	
A-45

	
 


	
5.11

	
  

	
Insider Loans

	
  

	
 

	
A-46

	
 


	
5.12

	
  

	
BRPA Borrowings

	
  

	
 

	
A-46

	
 


	
5.13

	
  

	
Trust Fund Disbursement

	
  

	
 

	
A-47

	
 


	
5.14

	
  

	
Tax Matters

	
  

	
 

	
A-47

	
 


	
5.15

	
  

	
Incentive Equity Plan

	
  

	
 

	
A-47

	
 


	
5.16

	
  

	
Company Stockholder Approval

	
  

	
 

	
A-48

	
 


	
5.17

	
  

	
Third Party Consents

	
  

	
 

	
A-48

	
 


	
5.18

	
  

	
BRPA Financing

	
  

	
 

	
A-48

	
 


	
5.19

	
  

	
Employment Agreements

	
  

	
 

	
A-49

	
 


	
5.20

	
  

	
Termination of Company Stockholder
Agreements

	
  

	
 

	
A-49

	
 


	
5.21

	
  

	
Section 16 of the Exchange Act

	
  

	
 

	
A-49

	
 






 

A-ii



 







 





 


	
 

	
 

	
 

	
 

	
 

	
 

	
 


	
5.22

	
  

	
Extension

	
  

	
 

	
A-49

	
 


	
5.23

	
  

	
Company Support Agreements

	
  

	
 

	
A-49

	
 


	
Article VI
CONDITIONS TO THE TRANSACTION

	
  

	
 

	
A-49

	
 


	
6.1

	
  

	
Conditions to Obligations of Each Party to
Effect the Merger

	
  

	
 

	
A-49

	
 


	
6.2

	
  

	
Additional Conditions to Obligations of the
Company

	
  

	
 

	
A-50

	
 


	
6.3

	
  

	
Additional Conditions to the Obligations of
BRPA

	
  

	
 

	
A-51

	
 


	
Article VII
TERMINATION

	
  

	
 

	
A-52

	
 


	
7.1

	
  

	
Termination

	
  

	
 

	
A-52

	
 


	
7.2

	
  

	
Notice of Termination; Effect of
Termination

	
  

	
 

	
A-53

	
 


	
7.3

	
  

	
Fees and Expenses

	
  

	
 

	
A-54

	
 


	
Article VIII
GENERAL PROVISIONS

	
  

	
 

	
A-54

	
 


	
8.1

	
  

	
Notices

	
  

	
 

	
A-54

	
 


	
8.2

	
  

	
Interpretation

	
  

	
 

	
A-55

	
 


	
8.3

	
  

	
Counterparts; Electronic Delivery

	
  

	
 

	
A-55

	
 


	
8.4

	
  

	
Entire Agreement; Third Party
Beneficiaries

	
  

	
 

	
A-55

	
 


	
8.5

	
  

	
Severability

	
  

	
 

	
A-55

	
 


	
8.6

	
  

	
Other Remedies; Specific
Performance

	
  

	
 

	
A-55

	
 


	
8.7

	
  

	
Governing Law

	
  

	
 

	
A-56

	
 


	
8.8

	
  

	
Consent to Jurisdiction; WAIVER OF TRIAL BY
JURY

	
  

	
 

	
A-56

	
 


	
8.9

	
  

	
Rules of Construction

	
  

	
 

	
A-56

	
 


	
8.10

	
  

	
Assignment

	
  

	
 

	
A-56

	
 


	
8.11

	
  

	
Amendment

	
  

	
 

	
A-56

	
 


	
8.12

	
  

	
Extension; Waiver

	
  

	
 

	
A-56

	
 


	
8.13

	
  

	
Currency

	
  

	
 

	
A-57

	
 


	
8.14

	
  

	
Schedules

	
  

	
 

	
A-57

	
 


	
8.15

	
  

	
Nonsurvival of Representations, Warranties and
Covenants

	
  

	
 

	
A-57

	
 


	
8.16

	
  

	
Non-Recourse

	
  

	
 

	
A-57

	
 






Exhibits

Exhibit A –
Certain Definitions

Exhibit B –
Form of Voting and Support Agreement

 

A-iii



 







 





 

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


	
BRPA
Warrants

	
  

	
Exhibit
A


	
Business
Combination

	
  

	
Exhibit
A


	
Business
Day

	
  

	
Exhibit
A


	
CARES
Act

	
  

	
2.8(f)


	
Cash and Cash
Equivalents

	
  

	
Exhibit
A






 

A-iv



 







 





 


	
 

	
 

	
 


	
Term

	
  

	
Section


	
 

	
 


	
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


	
 

	
 


	
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)






 

A-v



 







 





 


	
 

	
 

	
 


	
Term

	
  

	
Section


	
 

	
 


	
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)


	
 

	
 


	
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)






 

A-vi



 







 





 


	
 

	
 

	
 


	
Term

	
  

	
Section


	
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


	
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


	
Trust
Fund

	
  

	
3.22


	
U.S.
GAAP

	
  

	
Exhibit
A


	
Written
Consent

	
  

	
5.16






 

A-vii



 







 





 

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:

 

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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.

(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.

 

A-2



 







 





 

(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.

(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 Shares 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

 

A-3



 







 





 

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).

(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

 

A-4



 







 





 

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.

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).

(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

 

A-5



 







 





 

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.

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”),

 

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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”).

(c) BRPA’s
obligation to issue the Earnout Shares is solely conditioned upon
and contingent on the occurrence of the Earnout Shares 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 Shares 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.

 

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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”).

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).

 

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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.

ARTICLE
II

REPRESENTATIONS AND WARRANTIES OF THE
COMPANY

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)

 

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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:

2.1 Organization and
Qualification.

(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.

2.2 Subsidiaries.

(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.

(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.

2.3 Capitalization.

(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

 

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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.

(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

 

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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.

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).

 

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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”).

(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

 

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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.

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,

 

A-14



 







 





 

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).

(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

 

A-15



 







 





 

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.

(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

 

A-16



 







 





 

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.

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.

 

A-17



 







 





 

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.

2.19 Intellectual
Property.

(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.

(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

 

A-18



 







 





 

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.

(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,

 

A-19



 







 





 

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.

(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.

 

A-20



 







 





 

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;

(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;

(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;

 

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(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.

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,

 

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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.

(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

 

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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.

(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

 

A-24



 







 





 

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.

(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.).

 

A-25



 







 





 

(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.

ARTICLE
III

REPRESENTATIONS AND WARRANTIES OF BRPA
AND MERGER SUB

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

 

A-26



 







 





 

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:

3.1 Organization and
Qualification.

(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.

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

 

A-27



 







 





 

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).

(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.

3.4 Authority Relative to this
Agreement.

(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

 

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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.

(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.

3.6 Compliance. 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

 

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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).

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.

(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

 

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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.

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.

 

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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.

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.

3.18 Agreements, Contracts and
Commitments.

(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

 

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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.

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.

 

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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.

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;

 

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(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;

(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;

(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

 

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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;

(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.

 

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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;

(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,

 

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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;

(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.

 

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(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.

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,

 

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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.

(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.

 

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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.

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

 

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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.

(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

 

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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.

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

 

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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.

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”).

5.5 Required
Information.

(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,

 

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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.

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.

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

 

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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.

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

 

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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).

(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

 

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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.

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

 

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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”).

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

CONDITIONS TO THE
TRANSACTION

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.

 

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(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.

(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.

(d) No BRPA Material Adverse
Effect. No BRPA Material Adverse Effect shall have occurred
since the date of this Agreement.

 

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(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.

(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.

 

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(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

7.1 Termination. This Agreement may
be terminated at any time prior to the Closing:

(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);

(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

 

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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.

7.2 Notice of Termination; Effect of
Termination.

(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.

(b) Termination Fee.

(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.

(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.

 

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(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:

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

 

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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.

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

 

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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.

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,

 

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(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.

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.

 

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IN WITNESS WHEREOF,
the Parties have caused this Agreement to be executed as of the
date first written above.

 


	
 

	
 

	
 

	
 

	
 


	
BIG ROCK PARTNERS ACQUISITION CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard Ackerman


	
 

	
 

	
Name:

	
 

	
Richard Ackerman


	
 

	
 

	
Title:

	
 

	
Chief Executive Officer


	
 


	
NEURORX, INC.


	
 

	
 


	
By:

	
 

	
/s/ Jonathan Javitt


	
 

	
 

	
Name:

	
 

	
Jonathan Javitt


	
 

	
 

	
Title:

	
 

	
Chief Executive Officer


	
 


	
BIG ROCK MERGER CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard Ackerman


	
 

	
 

	
Name:

	
 

	
Richard Ackerman


	
 

	
 

	
Title:

	
 

	
Chief Executive Officer






 

A-58



 







 





 

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

 

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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.

“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.

“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.

 

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“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.

“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.

 

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“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.

“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

 

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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.

“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.

 

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“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).

“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

 

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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.

“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.

 

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“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.

“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.

 

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Exhibit B

Form of Voting and
Support Agreement

[See
attached]

 

A-67



 







 





 

Exhibit B

Agreed Form

VOTING AND SUPPORT
AGREEMENT

This Voting and
Support Agreement (this “Agreement”), dated as of
[                ],
20[    ], is entered into by and among Big Rock
Partners Acquisition Corp., a Delaware corporation
(“BRPA”), Big Rock Merger
Corp., a Delaware corporation and wholly owned subsidiary of BRPA
(“Merger
Sub”), and [●], a [●] (the
“Stockholder”).

RECITALS

WHEREAS, BRPA,
NeuroRx, Inc., a Delaware corporation (the “Company”), and Merger Sub
have entered into that certain Agreement and Plan of Merger, dated
as of December 13, 2020 (as amended, supplemented, restated or
otherwise modified from time to time, the “Merger Agreement”;
capitalized terms used but not otherwise defined in this Agreement
shall have the meanings ascribed to them in the Merger Agreement),
pursuant to which (and subject to the terms and conditions set
forth therein) Merger Sub will merge with and into the Company,
with the Company surviving the merger (the “Merger”);

WHEREAS, as of the
date hereof, the Stockholder is the record and “beneficial
owner” (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934, as amended (together with the rules and regulations
promulgated thereunder, the “Exchange Act”)) of and is
entitled to dispose of and vote [[●] shares of Company Common
Stock] [and] [[●] shares of Company Series A Preferred Stock]
[and] [[●] shares of Company Series B-1 Preferred Stock] [and] [[●]
shares of Company Series B-1A Preferred Stock] [and] [[●]
shares of Company Series B-2 Preferred Stock] (collectively,
the “Owned
Shares” and, together with any additional shares of
Company Stock (or any securities convertible into or exercisable or
exchangeable for Company Stock) in which the Stockholder acquires
record and beneficial ownership after the date hereof, including by
purchase, as a result of a stock dividend, stock split,
recapitalization, combination, reclassification, exchange or change
of such shares, or upon exercise or conversion of any securities,
the “Covered
Shares”);

WHEREAS, as a
condition and inducement to the willingness of BRPA and Merger Sub
to enter into the Merger Agreement, the Stockholder is entering
into this Agreement.

AGREEMENT

NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, BRPA, Merger Sub and the Stockholder hereby agree as
follows:

1.    Agreement
to Vote.

(a)    Subject
to the earlier termination of this Agreement in accordance with
Section 3 and Section 1(b), the Stockholder, in
its capacity as a stockholder of the Company, irrevocably and
unconditionally agrees that it shall, and shall cause any other
holder of record of any of the Stockholder’s Covered Shares
to, validly execute and deliver to the Company, on (or effective as
of) the tenth (10th) day following the date that the Consent
Solicitation Statement included in the Registration Statement is
disseminated by the Company to the Company’s stockholders
(following the SEC Approval Date), the written consent in the form
attached hereto as Exhibit
A in respect of all of the Stockholder’s Covered
Shares. In addition, subject to Section 1(b), prior to the
Termination Date (as defined herein), the Stockholder, in its
capacity as a stockholder of the Company,

 

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irrevocably and
unconditionally agrees that, at any other meeting of the
stockholders of the Company (whether annual or special and whether
or not an adjourned or postponed meeting, however called and
including any adjournment or postponement thereof) and in
connection with any written consent of stockholders of the Company,
the Stockholder shall, and shall cause any other holder of record
of any of the Stockholder’s Covered Shares to:

(i)    if
and when such meeting is held, appear at such meeting or otherwise
cause the Stockholder’s Covered Shares to be counted as
present thereat for the purpose of establishing a
quorum;

(ii)    vote
(or execute and return an action by written consent), or cause to
be voted at such meeting (or validly execute and return and cause
such consent to be granted with respect to), all of the
Stockholder’s Covered Shares owned as of the record date for
such meeting (or the date that any written consent is executed by
the Stockholder) in favor of the Merger and the adoption of the
Merger Agreement and any other matters necessary or reasonably
requested by the Company for consummation of the Merger and the
other Transactions, [(including the conversion of the
Stockholder’s Company Preferred Stock immediately prior to
the Effective Time pursuant to the terms of the Merger Agreement,
and pursuant to Article B, Section 4, of the 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 (the “Company Preferred Stock
Conversion”))]1; and

(iii)    vote
(or execute and return an action by written consent), or cause to
be voted at such meeting, or validly execute and return and cause
such consent to be granted with respect to, all of the
Stockholder’s Covered Shares against any Acquisition Proposal
and any other action that would reasonably be expected to
materially impede, interfere with, delay, postpone or adversely
affect the Merger or any of the other Transactions or result in a
breach of any covenant, representation or warranty or other
obligation or agreement of the Company under the Merger Agreement
that would result in the failure of any condition set forth in
Section 6.1, Section 6.2 or Section 6.3 of the
Merger Agreement to be satisfied or result in a breach of any
covenant, representation or warranty or other obligation or
agreement of the Stockholder contained in this
Agreement.

(b)    The
obligations of the Stockholder specified in this Section 1 shall apply whether or
not the Merger or any action described above is recommended by the
Company Board or whether or not the Company Board has
(x) changed, withdrawn, withheld, qualified or modified, or
publicly proposed to change, withdraw, withhold, qualify or modify,
the Company Board Recommendation or (y) approved, recommended
or declared advisable, or proposed publicly to approve, recommend
or declare advisable, any Acquisition Proposal (any action
described in clause (x) or (y), a “Company Change in
Recommendation”); provided, however, that in the event the
Company Board effects a Company Change in Recommendation: (i) [(A)
subject to clause (B)]2, the number of
shares of Company Stock that the Stockholder shall be committed to
vote (or execute a written consent in respect to) in accordance
with the preceding provisions of this Section 1 [(other than solely
with respect to the Company Preferred Stock
Conversion)]3
shall be modified to be only such number that, when aggregated with
the number of shares of Company Stock that other stockholders of
the Company are obligated to vote (or execute a written consent in
respect to) pursuant to voting and support agreements entered into,
whether before, on or after the date hereof, in connection with the
Transactions, shall not exceed thirty-five percent (35.00%) of the
total number of outstanding shares of Company Stock (on an
“as converted basis”)[, and (B) solely with
respect to the vote (or written consent) with respect to the
approval of the Company Preferred Stock Conversion, (I) the
number of shares of Company Series A Preferred Stock that the
Stockholder shall be committed to vote (or execute a written
consent in respect to) in accordance with the preceding provisions
of this Section 1 shall be modified to be
only such number that, when aggregated with the number of shares of
Company Series A Preferred Stock that other stockholders of the
Company are obligated to vote (or execute a written

 


	
1 

	
NTD: To be included if the Stockholder
holds Company Preferred Stock.







	
2 

	
NTD: To be included if the Stockholder
holds Company Preferred Stock.







	
3 

	
NTD: To be included if the Stockholder
holds Company Preferred Stock.






 

A-69



 







 





 

consent in respect
to) in connection with the Company Preferred Stock Conversion
pursuant to voting and support agreements entered into, whether
before, on or after the date hereof, in connection with the
Transactions, shall not exceed thirty-five percent (35.00%) of the
total number of outstanding shares of Company Series A Preferred
Stock, and (II) the number of shares of Company Series B
Preferred Stock that the Stockholder shall be committed to vote (or
execute a written consent in respect to) in accordance with the
preceding provisions of this Section 1 shall be modified to be
only such number that, when aggregated with the number of shares of
Company Series B Preferred Stock that other stockholders of the
Company are obligated to vote (or execute a written consent in
respect to) in connection with the Company Preferred Stock
Conversion pursuant to voting and support agreements entered into,
whether before, on or after the date hereof, in connection with the
Transactions, shall not exceed thirty-five percent (35.00%) of the
total number of outstanding shares of Company Series B Preferred
Stock]4
(the shares in this clause (i), the “Lock-Up Covered Shares”),
such that the Stockholder shall only be obligated to execute a
written consent with respect to, or otherwise vote, its pro rata
portion of the Lock-Up
Covered Shares in the manner set forth in this Section 1 and (ii) the
Stockholder shall be entitled (in its sole discretion) to vote any
shares of Company Stock that it is entitled to vote, other than the
Lock-Up Covered Shares, in
any manner.

2.    No
Inconsistent Agreements. The Stockholder hereby covenants
and agrees that the Stockholder shall not, at any time prior to the
Termination Date, (i) enter into any voting agreement or
voting trust with respect to any of the Stockholder’s Covered
Shares that is inconsistent with the Stockholder’s
obligations pursuant to this Agreement, (ii) grant a proxy or
power of attorney with respect to any of the Stockholder’s
Covered Shares that is inconsistent with the Stockholder’s
obligations pursuant to this Agreement, or (iii) enter into
any agreement or undertaking that is otherwise inconsistent with,
or would interfere with, or prohibit or prevent it from satisfying,
its obligations pursuant to this Agreement.

3.    Termination.
This Agreement shall terminate, and no party shall have any further
obligations or liabilities under this Agreement, upon the earliest
of (i) the Effective Time, (ii) the termination of the
Merger Agreement in accordance with its terms, (iii) the time
this Agreement is terminated upon the mutual written agreement of
BRPA, Merger Sub and the Stockholder, or (iv) the election of
the Stockholder in its sole discretion to terminate this Agreement
following any modification or amendment to, or the waiver of any
provision of, the Merger Agreement, as in effect on the date
hereof, that reduces the amount or changes the form of
consideration payable to the Stockholder (the earliest such date
under clause (i), (ii), (iii) and (iv) being referred to
herein as the “Termination Date”);
provided, that the
provisions set forth in Sections 9 to 23 shall survive the
termination of this Agreement; provided further, that termination of
this Agreement shall not relieve any party hereto from any
liability for any intentional and willful breach of, or actual
fraud in connection with, this Agreement prior to such
termination.

4.    Representations
and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to BRPA as to itself as
follows:

(a)    The
Stockholder is the only record and a beneficial owner (within the
meaning of Rule 13d-3
under the Exchange Act) of, and has good, valid and marketable
title to, the Covered Shares, free and clear of Liens other than as
created by this Agreement and Permitted Liens. As of the date
hereof, other than the Owned Shares, the Stockholder does not own
beneficially or of record any shares of capital stock of the
Company (or any securities convertible into shares of capital stock
of the Company).

(b)    The
Stockholder (i) except as provided in this Agreement, has full
voting power, full power of disposition and full power to issue
instructions with respect to the matters set forth herein, in each
case, with respect to the Stockholder’s Covered Shares,
(ii) has not entered into any voting agreement or voting trust
with respect to any of the Stockholder’s Covered Shares that
is inconsistent with the Stockholder’s obligations pursuant
to this Agreement, (iii) has not granted a proxy or power of
attorney with respect to any of the Stockholder’s Covered
Shares that is inconsistent with the Stockholder’s
obligations pursuant to this

 


	
4 

	
NTD: To be included if the Stockholder
holds Company Preferred Stock.






 

A-70



 







 





 

Agreement and
(iv) has not entered into any agreement or undertaking that is
otherwise inconsistent with, or would interfere with, or prohibit
or prevent it from satisfying, its obligations pursuant to this
Agreement.

(c)    [The
Stockholder (i) is a legal entity duly organized, validly
existing and, to the extent such concept is applicable, in good
standing under the laws of the jurisdiction of its organization,
and (ii) has all requisite corporate or other power and
authority and has taken all corporate or other action necessary in
order to, execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated
hereby.]5 This Agreement has
been duly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of the Stockholder enforceable
against the Stockholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting
creditors’ rights generally and subject, as to
enforceability, to general principles of equity.

(d)    Other
than the filings, notices and reports pursuant to, in compliance
with or required to be made under the Exchange Act, no filings,
notices, reports, consents, registrations, approvals, permits,
waivers, expirations of waiting periods or authorizations are
required to be obtained by the Stockholder from, or to be given by
the Stockholder to, or be made by the Stockholder with, any
Governmental Entity in connection with the execution, delivery and
performance by the Stockholder of this Agreement, the consummation
of the transactions contemplated hereby or the Merger and the other
Transactions.

(e)    The
execution, delivery and performance of this Agreement by the
Stockholder do not, and the consummation of the transactions
contemplated hereby or the Merger and the other Transactions will
not, constitute or result in [(i) a breach or violation of, or a
default under, the limited liability company agreement or similar
governing documents of the Stockholder,]6 (ii) with or
without notice, lapse of time or both, a breach or violation of, a
termination (or right of termination) of or a default under, the
loss of any benefit under, the creation, modification or
acceleration of any obligations under or the creation of a Lien on
any of the properties, rights or assets of the Stockholder pursuant
to any Contract binding upon the Stockholder or, assuming (solely
with respect to performance of this Agreement and the transactions
contemplated hereby), compliance with the matters referred to in
Section 4(d), under any applicable law to which the
Stockholder is subject or (iii) any change in the rights or
obligations of any party under any Contract legally binding upon
the Stockholder, except, in the case of clause (ii) or (iii)
directly above, for any such breach, violation, termination,
default, creation, acceleration or change that would not,
individually or in the aggregate, reasonably be expected to prevent
or materially delay or impair the Stockholder’s ability to
perform its obligations hereunder or to consummate the transactions
contemplated hereby, the consummation of the Merger or the other
Transactions.

(f)    As
of the date of this Agreement, there is no action, proceeding or
investigation pending against the Stockholder or, to the knowledge
of the Stockholder, threatened against the Stockholder that
questions the beneficial or record ownership of the
Stockholder’s Owned Shares, the validity of this Agreement or
the performance by the Stockholder of its obligations under this
Agreement.

(g)    The
Stockholder understands and acknowledges that BRPA is entering into
the Merger Agreement in reliance upon the Stockholder’s
execution and delivery of this Agreement and the representations,
warranties, covenants and other agreements of the Stockholder
contained herein.

(h)    No
investment banker, broker, finder or other intermediary is entitled
to any broker’s, finder’s, financial advisor’s or
other similar fee or commission for which BRPA or the Company is or
will be liable in connection with the transactions contemplated
hereby based upon arrangements made by or, to the knowledge of the
Stockholder, on behalf of the Stockholder.

 

 


	
5 

	
NTD: To be included if the Stockholder
is an entity







	
6 

	
NTD: To be included if the Stockholder
is an entity






 

A-71



 







 





 

5.    Certain
Covenants of the Stockholder. Except in accordance with the
terms of this Agreement, the Stockholder hereby covenants and
agrees as follows:

(a)    No
Solicitation. Prior to the Termination Date, the Stockholder
shall not, [shall cause its Subsidiaries not to,]7 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, any Company Competing
Transaction. In addition, the Stockholder will[, and will cause its
Subsidiaries]8 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 Stockholder will promptly (and in any event within
two (2) Business Days) notify BRPA if the Stockholder [or any
of its Subsidiaries,]9 or, to the
Stockholder’s knowledge, any of the Stockholder’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.

Notwithstanding
anything in this Agreement to the contrary, (i) the
Stockholder shall not be responsible for the actions of the Company
or the Company Board (or any committee thereof), any Subsidiary of
the Company, or any officers, directors (in their capacity as
such), employees and professional advisors of any of the foregoing
(the “Company
Related Parties”), including with respect to any of
the matters contemplated by this Section 5(a), (ii) the
Stockholder makes no representations or warranties with respect to
the actions of any of the Company Related Parties, (iii) any
breach by the Company of its obligations under Section 4.4(b)
of the Merger Agreement shall not be considered a breach of this
Section 5(a) (it being understood
for the avoidance of doubt that the Stockholder shall remain
responsible for any breach by it[, its Subsidiaries]10 or its
Representatives (other than any such [Subsidiary or]11 Representative
that is a Company Related Party) of this Section 5(a)) and (iv) to
the extent the Company complies with its obligations under
Section 4.4 of the Merger Agreement and participates in
discussions or negotiations with a Person regarding an Acquisition
Proposal, the Stockholder and/or any of its [Subsidiaries
or]12
Representatives may engage in discussions or negotiations with such
Person to the extent that the Company can act under
Section 4.4 of the Merger Agreement.

(b)    The
Stockholder hereby agrees not to, directly or indirectly, prior to
the Termination Date, except in connection with the consummation of
the Merger and the Company Preferred Stock Conversion,
(i) sell, transfer, pledge, encumber, assign, hedge, swap,
convert or otherwise dispose of (including by merger (including by
conversion into securities or other consideration), by tendering
into any tender or exchange offer, by testamentary disposition, by
operation of law or otherwise), either voluntarily or involuntarily
(collectively, “Transfer”), or enter into
any legally binding contract or option with respect to the Transfer
of any of the Stockholder’s Covered Shares, or (ii) take
any action that would make any representation or warranty of the
Stockholder contained herein untrue or incorrect or have the effect
of preventing or disabling the Stockholder from performing its
obligations under this Agreement; provided, however, that nothing herein
shall prohibit a Transfer to an Affiliate of the Stockholder (a
“Permitted
Transfer”); provided, further, that any Permitted
Transfer shall be permitted only if, as a precondition to such
Transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to BRPA, to assume all of the
obligations of the Stockholder under, and be bound by all of the
terms of, this Agreement; provided, further, that any Transfer
permitted under this Section 5(b) shall not relieve
the Stockholder of its obligations under this Agreement. Any
Transfer in violation

 


	
7 

	
NTD: To be included if the Stockholder
is an entity







	
8 

	
NTD: To be included if the Stockholder
is an entity







	
9 

	
NTD: To be included if the Stockholder
is an entity







	
10 

	
NTD: To be included if the Stockholder
is an entity







	
11 

	
NTD: To be included if the Stockholder
is an entity







	
12 

	
NTD: To be included if the Stockholder
is an entity






 

A-72



 







 





 

of this
Section 5(b) with respect to the
Stockholder’s Covered Shares shall be null and void. Nothing
in this Agreement shall prohibit direct or indirect transfers of
equity or other interests in a Stockholder.

(c)    The
Stockholder hereby authorizes the Company to maintain a copy of
this Agreement at either the executive office or the registered
office of the Company.

6.    Further
Assurances. From time to time, at BRPA’s request and
without further consideration, the Stockholder shall execute and
deliver such additional documents and take all such further action
as may be reasonably necessary or reasonably requested to effect
the actions and consummate the transactions contemplated by this
Agreement. The Stockholder further agrees not to commence or
participate in, and to take all actions necessary to opt out of any
class action with respect to, any action or claim, derivative or
otherwise, against BRPA, BRPA’s Affiliates, the Sponsors,
Merger Sub, the Company or any of their respective successors and
assigns relating to the negotiation, execution or delivery of this
Agreement, the Merger Agreement (including the Per Share Merger
Consideration and Company Preferred Stock Conversion) or the
consummation of the transactions contemplated hereby and
thereby.

7.    Disclosure.
The Stockholder hereby authorizes the Company and BRPA to publish
and disclose in any announcement or disclosure required by the SEC
or Nasdaq, or to include in any document or information required to
be filed with or furnished to the SEC or Nasdaq, the
Stockholder’s identity and ownership of the Covered Shares
and the nature of the Stockholder’s obligations under this
Agreement, in each case, if the publication or disclosure of such
information (the Stockholder’s identity and ownership of the
Covered Shares and the nature of the Stockholder’s
obligations under this Agreement) is required by the SEC or Nasdaq
to be so published or disclosed; provided, that prior to any
such publication or disclosure, the Company and BRPA have provided
the Stockholder with an opportunity to review and comment upon such
announcement or disclosure, which comments the Company and BRPA
will consider in good faith.

8.    Changes
in Capital Stock. In the event of a stock split, stock
dividend or distribution, or any change in the Company’s
capital stock by reason of any split-up, reverse stock split,
recapitalization, combination, reclassification, exchange of shares
or the like, the terms “Owned Shares” and
“Covered Shares” shall be deemed to refer to and
include such shares as well as all such stock dividends and
distributions and any securities into which or for which any or all
of such shares may be changed or exchanged or which are received in
such transaction.

9.    Amendment
and Modification. This Agreement may not be amended,
modified or supplemented in any manner, whether by course of
conduct or otherwise, except by an instrument in writing signed by
BRPA, Merger Sub, the Stockholder and the Company.

10.    Waiver.
Any party to this Agreement may, at any time prior to the
Termination Date, waive any of the terms or conditions of this
Agreement, or agree to an amendment or modification to this
Agreement in the manner contemplated by Section 9 and by an agreement in
writing executed in the same manner (but not necessarily by the
same Persons) as this Agreement.

11.    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:

if to BRPA, to it
at:

Big Rock Partners
Acquisition Corp.

2645 N. Federal
Highway, Suite 230

Delray Beach, FL
33483

Attn: Richard
Ackerman

Email:
rackerman@bigrockpartners.com

 

A-73



 







 





 

with a copy (which
shall not constitute notice) 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
Stockholder, to such address indicated on the Company’s
records with respect to the Stockholder or to such other address or
addresses as the Stockholder may from time to time designate in
writing.

12.    No
Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in BRPA any direct or indirect ownership or
incidence of ownership of or with respect to the Covered Shares of
the Stockholder. All rights, ownership and economic benefits of and
relating to the Covered Shares of the Stockholder shall remain
vested in and belong to the Stockholder, and BRPA shall have no
authority to manage, direct, restrict, regulate, govern or
administer any of the policies or operations of Company or exercise
any power or authority to direct the Stockholder in the voting or
disposition of any of the Stockholder’s Covered Shares,
except as otherwise provided herein.

13.    Entire
Agreement. This Agreement and the Merger Agreement
constitute the entire agreement among the parties relating to the
subject matter hereof and supersede any other agreements and
understandings, whether written or oral, that may have been made or
entered into by or among any of the parties hereto or any of their
respective subsidiaries relating to the transactions contemplated
hereby. No representations, warranties, covenants, understandings,
agreements, oral or otherwise, relating to the matters contemplated
by this Agreement exist between the parties except as expressly set
forth or referenced in this Agreement and the Merger
Agreement.

14.    No
Third-Party Beneficiaries. The Stockholder hereby agrees
that its representations, warranties and covenants set forth herein
are solely for the benefit of BRPA in accordance with and subject
to the terms of this Agreement, and this Agreement is not intended
to, and does not, confer upon any Person other than the parties
hereto any rights or remedies hereunder, including the right to
rely upon the representations and warranties set forth herein, and
the parties hereto hereby further agree that this Agreement may
only be enforced against, and any Action that may be based upon,
arise out of or relate to this Agreement, or the negotiation,
execution or performance of this Agreement may only be made
against, the Persons expressly named as parties hereto;
provided, that the
Company shall be an express third party beneficiary with respect to
Section 4, Section 5(b), Section 7 and Section 9 hereof.

15.    Governing
Law and Venue; Service of Process; Waiver of Jury
Trial.

(a)    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.

(b)    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

 

A-74



 







 





 

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.

(c)    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.

16.    Assignment;
Successors. 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 16, this Agreement shall
be binding upon and shall inure to the benefit of the parties and
their respective successors and permitted assigns.

17.    Trust
Account Waiver. Notwithstanding anything else in this
Agreement, the Stockholder 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 Stockholder 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
Stockholder, for itself and its [stockholders, directors, officers,
employees,]13 Representatives[,
Subsidiaries]14 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 Stockholder 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.

18.    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 contemplated hereby 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

 


	
13 

	
NTD: To be included if the Stockholder
is an entity







	
14 

	
NTD: To be included if the Stockholder
is an entity






 

A-75



 







 





 

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 Stockholder, 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.

19.    Enforcement.
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 19 shall not be required
to provide any bond or other security in connection with any such
injunction.

20.    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.

21.    Counterparts.
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.

22.    Interpretation
and Construction. The words “hereof,”
“herein” and “hereunder” and words of like
import used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The
descriptive headings used herein are inserted for convenience of
reference only and are not intended to be part of or to affect the
meaning or interpretation of this Agreement. References to Sections
are to Sections of this Agreement unless otherwise specified. Any
singular term in this Agreement shall be deemed to include the
plural, and any plural term the singular. The definitions contained
in this Agreement are applicable to the masculine as well as to the
feminine and neuter genders of such term. Whenever the words
“include,” “includes” or
“including” are used in this Agreement, they shall be
deemed to be followed by the words “without
limitation,” whether or not they are in fact followed by
those words or words of like import. “Writing,”
“written” and comparable terms refer to printing,
typing and other means of reproducing words (including electronic
media) in a visible form. References to any statute shall be deemed
to refer to such statute and to any rules or regulations
promulgated thereunder. References to any person include the
successors and permitted assigns of that person. References from or
through any date mean, unless otherwise specified, from and
including such date or through and including such date,
respectively. In the event an ambiguity or question of intent or
interpretation

 

A-76



 







 





 

arises, this
Agreement will be construed as if drafted jointly by the Parties,
and no presumption or burden of proof will arise favoring or
disfavoring any Party by virtue of the authorship of any of the
provisions of this Agreement.

23.    Capacity
as a Stockholder. Notwithstanding anything herein to the
contrary, the Stockholder signs this Agreement solely in the
Stockholder’s capacity as a stockholder of the Company, and
not in any other capacity and this Agreement shall not limit or
otherwise affect the actions of any affiliate, employee or designee
of the Stockholder or any of its affiliates in his or her capacity,
if applicable, as an officer or director of the Company or any
other Person.

[The remainder of this page is intentionally
left blank.]

 

A-77



 







 





 

IN WITNESS WHEREOF,
the parties hereto have caused this Agreement to be executed (where
applicable, by their respective officers or other authorized
Persons thereunto duly authorized) as of the date first written
above.

 


	
 

	
 

	
 


	
Big Rock Partners
Acquisition Corp.


	
 

	
 


	
By:

	
 

	
 


	
 

	
 

	
Name:


	
 

	
 

	
Title:


	
 


	
Big Rock Merger
Corp.


	
 

	
 


	
By:

	
 

	
 


	
 

	
 

	
Name:


	
 

	
 

	
Title:






[Signature Page to
Voting and Support Agreement]

 

A-78



 







 





 


	
 

	
 

	
 


	
[STOCKHOLDER]


	
 

	
 


	
By:

	
 

	
 


	
 

	
 

	
Name:


	
 

	
 

	
Title:






[Signature Page to
Voting and Support Agreement]

 

A-79



 







 





 

Exhibit A

WRITTEN CONSENT

IN LIEU OF A

MEETING OF STOCKHOLDERS

OF

NEURORX, INC.

 

 

[●]

 

 

The undersigned
(the “Stockholder”), being the
holder of shares of [[●] shares of Company Common Stock]
[and] [[●] shares of Company Series A Preferred Stock] [and]
[[●] shares of Company Series B-1 Preferred Stock] [and] [[●]
shares of Company Series B-1A Preferred Stock] [and] [[●]
shares of Company Series B-2 Preferred Stock] of NeuroRx, Inc.,
a Delaware corporation, (the “Company”), acting
pursuant to Section 228(a) and Section 251 of the General
Corporation Law of the State of Delaware (the “DGCL”), does hereby
irrevocably consent to the adoption of the following resolutions in
lieu of a meeting with respect to [all of the shares of Company
Common Stock] [and] [Company Series A Preferred Stock] [and]
[Company Series B-1
Preferred Stock] [and] [Company Series B-1A Preferred Stock] [and] [Company
Series B-2 Preferred
Stock] of the Company held by the Stockholder][only a number of
shares of [Company Common Stock] [and] [Company Series A Preferred
Stock] [and] [Company Series B-1 Preferred Stock] [and] [Company
Series B-1A Preferred
Stock] [and] [Company Series B-2 Preferred Stock] of the Company
held by the Stockholder equal to a total of [●]% of the
issued and outstanding shares of Company Stock (treated as Company
Common Stock on an “as converted basis”) [and
[●]% of the issued and outstanding shares of Company Common
Stock] [and [●]% of the issued and outstanding shares of
Company Series A Preferred Stock] [and [●]% of the issued and
outstanding shares of Company Series B Preferred Stock]], effective
as of the date set forth opposite the Stockholder’s name on
the signature page hereto:

MERGER AGREEMENT

WHEREAS, the
Company has entered into an Agreement and Plan of Merger, dated as
of December 13, 2020 (the “Merger Agreement”), by
and among the Company, Big Rock Partners Acquisition Corp., a
Delaware corporation (“BRPA”), and Big Rock
Merger Corp., a Delaware corporation and wholly owned subsidiary of
BRPA (“Merger
Sub”), a copy of which has been provided to the
undersigned Stockholder (capitalized terms used herein without
definition shall have the respective meaning ascribed to them in
the Merger Agreement);

WHEREAS, pursuant
to the Merger Agreement, Merger Sub will be merged with and into
the Company (the “Merger”), with the
Company continuing as the surviving corporation of the Merger, upon
the terms and subject to the conditions set forth in the Merger
Agreement;

WHEREAS, the
Company Board has (i) declared the form, terms and provisions
of the Merger Agreement and the Transactions, including the Merger,
advisable and in the best interests of the Company and its
stockholders, (ii) approved the Merger Agreement and the
execution, delivery and performance thereof and the consummation of
the Transactions, including the Merger, upon the terms and subject
to the conditions set forth in the Merger Agreement, and
(iii) subject to Section 4.4 of the Merger Agreement,
authorized the officers of the Company to submit the Merger
Agreement to the Company’s stockholders for purposes of
obtaining the approval of the Company’s stockholders and to
take all action deemed necessary or appropriate to solicit the
consent of the stockholders of the Company with respect thereto;
and

 

A-80



 







 





 

WHEREAS,
(i) the affirmative vote in favor of the adoption of the
Merger Agreement by a holders of a majority of the voting power of
the outstanding shares of Company Stock and Preferred Stock
(treated as Company Common Stock on an “as converted
basis”), voting together as a single class, is required
pursuant to Section 251 of the DGCL, (ii) the affirmative
vote of two-thirds of the
outstanding shares of Company Series A Preferred Stock, voting as a
separate class and (iii) 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, is
required pursuant to the Company Certificate of Incorporation, upon
the terms and subject to the conditions set forth in the Merger
Agreement; now, therefore, be it

RESOLVED, that the
Merger Agreement and the Transactions, including the Merger [and
the conversion of the undersigned Stockholder’s Company
Preferred Stock immediately prior to the Effective Time pursuant to
the terms of the Merger Agreement and pursuant to Article B,
Section 4, of the 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 (the
“Company Preferred
Stock Conversion”)]15, are hereby
adopted and approved in all respects, and the undersigned
Stockholder hereby votes [all of the shares of Company Common
Stock] [and] [Company Series A Preferred Stock] [and] [Company
Series B-1 Preferred
Stock] [and] [Company Series B-1A Preferred Stock] [and] [Company
Series B-2 Preferred
Stock] of the Company held by the Stockholder][only a number of
shares of [Company Common Stock] [and] [Company Series A Preferred
Stock] [and] [Company Series B-1 Preferred Stock] [and] [Company
Series B-1A Preferred
Stock] [and] [Company Series B-2 Preferred Stock] of the Company
held by the Stockholder equal to a total of [●]% of the
issued and outstanding shares of Company Stock (treated as Company
Common Stock on an “as converted basis”) [and
[●]% of the issued and outstanding shares of Company Common
Stock] [and [●]% of the issued and outstanding shares of
Company Series A Preferred Stock] [and [●]% of the issued and
outstanding shares of Company Series B Preferred Stock]] in favor
of the adoption and approval of the Merger Agreement and the
Transactions, including the Merger and Company Preferred Stock
Conversion; and

FURTHER RESOLVED,
that the undersigned Stockholder hereby waives any and all
irregularities of notice, with respect to the time and place of
meeting, and consents to the transaction of all business
represented by this written consent.

[Remainder of
page intentionally left blank.

Signature page
follows.]

  

 


	
15 

	
NTD: To be included if the Stockholder
holds Company Preferred Stock.






 

A-81



 







 





 

AMENDMENT TO

AGREEMENT AND PLAN OF
MERGER

This Amendment to
Agreement and Plan of Merger (this “Amendment”), dated as of
January 27, 2021, is 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”). Each of BRPA, Merger Sub, and the Company, are
referred to herein, individually, as a “Party” and, collectively,
as the “Parties”.

Factual Background

A.    The
Parties entered into an Agreement and Plan of Merger, dated as of
December 13, 2020 (as amended, the “Original
Agreement”).

B.    The
Parties have agreed that the Company will pay the filing fee with
respect to the Registration Statement.

C.    In
connection with the Company’s payment of the filing fee with
respect to the Registration Statement, the Parties desire to amend
the Original Agreement to (i) decrease the aggregate principal
amount available under the Note Amendment pursuant to
Section 1.12 of the Original Agreement from $3,000,000 to
$2,708,213.36, and (ii) modify the condition to Closing
contained in Section 6.2(k) of the Original Agreement to
decrease the maximum amount of all BRPA Borrowings outstanding that
are due and payable as of the Closing Date or at any time after the
Closing from $3,000,000 to $2,708,213.36.

NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as
follows:

1.    Amendment
to BRPA Loan Agreements. Section 1.12 of the Original
Agreement is hereby amended as follows: Each use of the text
“$3,000,000” in Section 1.12 of the Original
Agreement is hereby deleted and the text
“$2,708,213.36” is inserted therefor.

2.    Additional
Conditions to Obligations of the Company.
Section 6.2(k) of the Original Agreement is hereby amended as
follows: The text “three million dollars ($3,000,000)”
in Section 6.2(k) of the Original Agreement is hereby deleted
and the text “two million seven hundred eight thousand two
hundred thirteen dollars and thirty-six cents
($2,708,213.36)” is inserted therefor.

3.    Miscellaneous.

(a)    
Interpretation. Capitalized
terms not defined herein shall have the meaning ascribed to them in
the Original Agreement. On and after the date hereof, each
reference in the Original Agreement to “this
Agreement”, “hereunder”, “hereof”,
“herein” or words of like import referring to the
Original Agreement shall mean and be a reference to the Original
Agreement as amended by this Amendment.

(b)    
No Further Amendments. The
Original Agreement shall remain in full force and effect except as
expressly amended by this Amendment. Upon the execution and
delivery hereof, the Original Agreement shall thereupon be deemed
to be amended as hereinabove set forth as fully and with the same
effect as if the amendments made hereby were originally set forth
in the Original Agreement, and this Amendment and the Original
Agreement shall henceforth be read, taken and construed as one and
the same instrument. Article VIII of the Original Agreement is
hereby incorporated herein, mutatis mutandis.

[Remainder of Page Intentionally Left
Blank]

 

A-82



 







 





 

IN WITNESS WHEREOF,
the Parties have caused this Agreement to be executed as of the
date first written above.

 

 


	
 

	
 

	
 


	
BIG ROCK PARTNERS ACQUISITION CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard
Ackerman


	
Name:

	
 

	
Richard Ackerman


	
Title:

	
 

	
Chief Executive Officer






 


	
 

	
 

	
 


	
NEURORX, INC.


	
 

	
 


	
By:

	
 

	
/s/ Jonathan
Javitt


	
Name:

	
 

	
Jonathan Javitt


	
Title:

	
 

	
Chief Executive Officer






 


	
 

	
 

	
 


	
BIG ROCK MERGER CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard
Ackerman


	
Name:

	
 

	
Richard Ackerman


	
Title:

	
 

	
Chief Executive Officer






[Signature Page to Amendment to Agreement and
Plan of Merger]

 

A-83



 







 





 

SECOND AMENDMENT TO

AGREEMENT AND PLAN OF
MERGER

This Second
Amendment to Agreement and Plan of Merger (this “Amendment”), dated as of
March 19, 2021, is 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”). Each of BRPA, Merger Sub, and the Company, are
referred to herein, individually, as a “Party” and, collectively,
as the “Parties”.

WHEREAS, the
Parties entered into an Agreement and Plan of Merger, dated as of
December 13, 2020 (as amended on January 27, 2021 and as may be
further amended from time to time, the “Original Agreement”),
which, among other things, provides that the Original Agreement may
be terminated by written notice from BRPA or the Company if the
transactions contemplated thereby have not been completed by April
23, 2021 (the “Outside Date”);
and

WHEREAS, the
Parties desire to extend the Outside Date from April 23, 2021 to
May 24, 2021.

NOW, THEREFORE, in
consideration of the mutual covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as
follows:

1.    Amendment
to Original Agreement. Section 7.1(b) of the Original
Agreement is hereby amended as follows: the text “April 23,
2021” in Section 7.1(b) of the Original Agreement is
hereby deleted and the text “May 24, 2021” is inserted
therefor.

2.    Miscellaneous.

(a)    Interpretation.
Capitalized terms not defined herein shall have the meaning
ascribed to them in the Original Agreement. On and after the date
hereof, each reference in the Original Agreement to “this
Agreement”, “hereunder”, “hereof”,
“herein” or words of like import referring to the
Original Agreement shall mean and be a reference to the Original
Agreement as amended by this Amendment.

(b)    No
Further Amendments. The Original Agreement shall remain in
full force and effect except as expressly amended by this
Amendment. Upon the execution and delivery hereof, the Original
Agreement shall be deemed to be amended as fully and with the same
effect as if the amendments made hereby were originally set forth
in the Original Agreement, and this Amendment and the Original
Agreement shall henceforth be read, taken and construed as one and
the same instrument. Article VIII of the Original Agreement is
incorporated herein, mutatis
mutandis.

[Remainder of Page Intentionally Left
Blank]

 

A-84



 







 





 

IN WITNESS WHEREOF,
the Parties have caused this Amendment to be executed as of the
date first written above.

 


	
 

	
 

	
 


	
BIG ROCK PARTNERS ACQUISITION CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard
Ackerman


	
Name:

	
 

	
Richard Ackerman


	
Title:

	
 

	
Chief Executive Officer






 


	
 

	
 

	
 


	
NEURORX, INC.


	
 

	
 


	
By:

	
 

	
/s/ Jonathan
Javitt


	
Name:

	
 

	
Jonathan Javitt


	
Title:

	
 

	
Chief Executive Officer






 


	
 

	
 

	
 


	
BIG ROCK MERGER CORP.


	
 

	
 


	
By:

	
 

	
/s/ Richard
Ackerman


	
Name:

	
 

	
Richard Ackerman


	
Title:

	
 

	
Chief Executive Officer






 

A-85