brpa_ex48





 







Exhibit 4.8



 



 



DESCRIPTION OF REGISTRANT'S SECURITIES



 


The
following is a description of the material terms of the common
stock of Big Rock Partners Acquisition Corp. (the
“Company,” “we,” “us” or
“our”), as well as other material terms of the
Company’s Amended and Restated Certificate of Incorporation,
as amended (“Charter”), the Company’s Amended and
Restated Bylaws, as amended (“Bylaws”), and the
applicable provisions of Delaware law. This description is only a
summary. You should read it together with the Charter and Bylaws,
which are included as exhibits to the Company’s Annual Report
on Form 10-K for the year ended December 31, 2020 and incorporated
by reference herein.



 



General



 


We
are authorized to issue 100,000,000 shares of common stock, par
value $0.001, and 1,000,000 shares of preferred stock, par value
$0.001.



 



Units



 


Composition.
Each unit consists of one share of
common stock one right and one-half of one
warrant.


 


Listing. The units are listed on the Nasdaq Capital Market
under the symbol “BRPAU.”



  



Common Stock



 


Authorization. The
outstanding shares of the Company’s common stock are duly
authorized, validly issued, fully paid and
nonassessable.


 


Listing. The
Company’s common stock is listed on the Nasdaq Capital Market
under the symbol “BRPA.”


 


Voting
Rights. Our stockholders
of record are entitled to one vote for each share held on all
matters to be voted on by stockholders. In connection with any vote
held to approve our initial business combination, our sponsor,
initial stockholders, as well as all of our officers and directors,
have agreed to vote their respective shares of common stock owned
by them immediately prior to the initial public offering and any
shares purchased in the initial public offering or following the
initial public offering in the open market in favor of the proposed
business combination.


 


Conversion
Rights. Holders of common
stock issued in the Company’s initial public offering (which
we refer to as “public shares”) have the right to
demand that the Company convert such shares into a pro rata portion
of the Company’s trust account upon the consummation of our
initial business combination, either in connection with a
stockholder meeting called to approve the business combination or
by means of a tender offer.



 


The
decision as to whether we will seek stockholder approval of a
proposed business combination or conduct a tender offer will be
made by us, solely in our discretion, and will be based on a
variety of factors such as the timing of the transaction and
whether the terms of the transaction would require us to seek
stockholder approval under the law or stock exchange listing
requirement. We intend to conduct redemptions without a stockholder
vote pursuant to the tender offer rules of the Securities and
Exchange Commission (“SEC”) unless stockholder approval
is required by law or stock exchange listing requirement or we
choose to seek stockholder approval for business or other legal
reasons.


 


If
a stockholder vote is not required and we do not decide to hold a
stockholder vote for business or other legal reasons, we will,
pursuant to our Charter, conduct the redemptions pursuant to the
tender offer rules of the SEC, and file tender offer documents with
the SEC prior to consummating our initial business combination. Our
Charter requires these tender offer documents to contain
substantially the same financial and other information about the
initial business combination and the redemption rights as is
required under the SEC’s proxy rules. If, however,
stockholder approval of the transaction is required by law or
Nasdaq, or we decide to obtain stockholder approval for business or
other reasons, we will, like many blank check companies, offer to
redeem shares in conjunction with a proxy solicitation pursuant to
the proxy rules and not pursuant to the tender offer rules. If we
seek stockholder approval, we will consummate our initial business
combination only if a majority of the outstanding shares of common
stock voted are voted in favor of the business
combination.


 



 







 






 


Outside
Date. Pursuant to our Charter,
if we do not consummate an initial business combination by April
30, 2021 (unless such date is extended by our stockholders pursuant
to an amendment to our Charter), our corporate existence will cease
except for the purposes of winding up our affairs and liquidating
and we will redeem 100% of our outstanding public shares for a pro
rata portion of the funds held in the trust account, equal to the
aggregate amount then on deposit in the trust account including
interest earned on the funds held in the trust account and not
previously released to us, divided by the number of then
outstanding public shares, subject to applicable law and as further
described herein. Our Sponsor, officers and directors have agreed
to waive their rights to participate in any liquidation
distribution from the trust account occurring upon our failure to
consummate an initial business combination with respect to the
founder’s common stock. Our Sponsor, officers and directors
will therefore not participate in any liquidation distribution from
the trust account with respect to such shares. They will, however,
participate in any liquidation distribution from the trust account
with respect to any shares of common stock acquired after our
IPO.


 


If
we seek to amend any provisions of our Charter that would affect
our public stockholders’ ability to convert their shares in
connection with a business combination or affect the substance or
timing of our obligation to redeem 100% of our public shares if we
do not complete a business combination by the required date set
forth in our Charter, we will provide public stockholders with the
opportunity to convert their public shares in connection with any
such vote. This conversion right shall apply in the event of the
approval of any such amendment, whether proposed by our Sponsor,
any executive officer, director or director nominee, or any other
person. 



 


Preemptive
Rights. Our stockholders
have no conversion, preemptive or other subscription rights and
there are no sinking fund or redemption provisions applicable to
the shares of common stock, except that public stockholders have
the right to sell their shares to us in a tender offer or have
their shares of common stock converted to cash equal to their pro
rata share of the trust account if they vote on the proposed
business combination in connection with such business combination
and the business combination is completed. Public stockholders who
sell or convert their stock into their share of the trust account
still have the right to exercise the warrants that they received as
part of the units.


 


Dividends. We have not paid any cash dividends on our
shares of common stock to date and do not intend to pay cash
dividends prior to the completion of a business combination. The
payment of cash dividends in the future will be dependent upon our
revenues and earnings, if any, capital requirements and general
financial condition subsequent to completion of a business
combination. The payment of any dividends subsequent to a business
combination will be within the discretion of our then board of
directors. It is the present intention of our board of directors to
retain all earnings, if any, for use in our business operations
and, accordingly, our board does not anticipate declaring any
dividends in the foreseeable future.


 



Founder’s Shares



 


Our
sponsor has agreed (i) that such shares are subject to certain
transfer restrictions, as described in more detail below and (ii)
(A) to waive its redemption rights with respect to the
founder’s shares and public shares in connection with the
completion of our business combination and (B) to waive its rights
to liquidating distributions from the trust account with respect to
the founder’s shares if we fail to complete our business
combination by July 23, 2020, or later if additional extensions are
approved, although our sponsor (or any of our executive officers,
directors or affiliates) will be entitled to liquidating
distributions from the trust account with respect to any public
shares acquired if we fail to complete our initial business
combination by April 30, 2021, or later if additional extensions
are approved. If we submit our business combination to our public
stockholders for a vote, our initial stockholder has agreed to vote
its founder’s shares and any public shares purchased during
or after the initial public offering in favor of our initial
business combination and our executive officers, directors and
director nominees have also agreed to vote any public shares
purchased during or after the offering in favor of our initial
business combination. Permitted transferees of our sponsor will be
subject to the same obligations of our sponsor.



 


Subject
to certain limited exceptions, these shares will not be
transferred, assigned, sold or released from escrow until one year
after the date of the consummation of our initial business
combination, or earlier with respect to fifty percent (50%) of such
shares if, subsequent to our business combination, the last sales
price of our common stock equals or exceeds $12.50 per share (as
adjusted for stock splits, stock dividends, reorganizations and
recapitalizations) for any 20 trading days within any 30-trading
day period following the consummation of our initial business
combination.



 



Preferred Stock



 


There
are no shares of preferred stock outstanding. Our Charter
authorizes the issuance of 1,000,000 shares of preferred stock with
such designation, rights and preferences as may be determined from
time to time by our board of directors. No shares of preferred
stock are being issued or registered in the initial public
offering. Accordingly, our board of directors is empowered, without
stockholder approval, to issue preferred stock with dividend,
liquidation, conversion, voting or other rights which could
adversely affect the voting power or other rights of the holders of
common stock. However, the underwriting agreement prohibits us,
prior to a business combination, from issuing preferred stock which
participates in any manner in the proceeds of the trust account, or
which votes as a class with the common stock on a business
combination. We may issue some or all of the preferred stock to
effect a business combination. In addition, the preferred stock
could be utilized as a method of discouraging, delaying or
preventing a change in control of us. Although we do not currently
intend to issue any shares of preferred stock, we cannot assure you
that we will not do so in the future.



 



 







 






 



Rights


 


Listing.
Our rights are listed on the Nasdaq Capital Market under the symbol
“BRPAR.”


 



Public Stockholders’ Rights



 


 Each
holder of a right will receive one-tenth (1/10) of one share of
common stock upon consummation of our initial business combination,
even if the holder of such right redeemed all shares of common
stock held by it in connection with the initial business
combination. No additional consideration will be required to be
paid by a holder of rights in order to receive its additional
shares upon consummation of an initial business combination, as the
consideration related thereto has been included in the unit
purchase price paid for by investors in the initial public
offering. If we enter into a definitive agreement for a business
combination in which we will not be the surviving entity, the
definitive agreement will provide for the holders of rights to
receive the same per share consideration the holders of the common
stock will receive in the transaction on an as-converted into
common stock basis, and each holder of a right will be required to
affirmatively convert its rights in order to receive the 1/10 share
underlying each right (without paying any additional consideration)
upon consummation of the business combination. More specifically,
the right holder will be required to indicate its election to
convert the rights into underlying shares as well as to return the
original rights certificates to us.



 



If we are unable to complete an initial business combination within
the required time period and we liquidate the funds held in the
trust account, holders of rights will not receive any such funds
with respect to their rights, nor will they receive any
distribution from our assets held outside of the trust account with
respect to such rights, and the rights will expire
worthless.



 



As soon as practicable upon the consummation of our initial
business combination, we will direct registered holders of the
rights to return their rights to our rights agent. Upon receipt of
the rights, the rights agent will issue to the registered holder of
such rights the number of full shares of common stock to which it
is entitled. We will notify registered holders of the rights to
deliver their rights to the rights agent promptly upon consummation
of such business combination and have been informed by the rights
agent that the process of exchanging their rights for shares of
common stock should take no more than a matter of days. The
foregoing exchange of rights is solely ministerial in nature and is
not intended to provide us with any means of avoiding our
obligation to issue the shares underlying the rights upon
consummation of our initial business combination. Other than
confirming that the right delivered by a registered holder are
valid, we will have no ability to avoid delivery of the shares
underlying the rights. Nevertheless, there are no contractual
penalties for failure to deliver securities to the holders of the
rights upon consummation of an initial business combination.
Additionally, in no event will we be required to net cash settle
the rights. Accordingly, you might not receive the shares of common
stock underlying the rights.



 


 The shares issuable
upon conversion of the rights will be freely tradable (except to
the extent held by affiliates of ours). We will not issue
fractional shares upon conversion of the rights. If, upon
conversion of the rights, a holder would be entitled to receive a
fractional interest in a share, we will, upon conversion, comply
with Section 155 of the Delaware General Corporation Law (which
provides that Delaware companies shall either (1) arrange for the
disposition of fractional interests by those entitled thereto, (2)
pay in cash the fair value of fractions of a share as of the time
when those entitled to receive such fractions are determined or (3)
issue scrip or warrants in registered form (either represented by a
certificate or uncertificated) or in bearer form (represented by a
certificate) which shall entitle the holder to receive a full share
upon the surrender of such scrip or warrants aggregating a full
share). We will make the determination of how we are treating
fractional shares at the time of our initial business combination
and will include such determination in the proxy materials we will
send to stockholders for their consideration of such initial
business combination.



 



Rights contained in the Private Placement Units



 


The
rights contained in the private placement units have the same terms
as the public stockholders' rights. See "Rights- Public
Stockholders' Rights" above.



 



Warrants



 


Listing.
Our rights are listed on the Nasdaq Capital Market under the symbol
“BRPAW.”


 



Public Stockholders’ Warrants



 


Exercisability.
Each whole warrant entitles the registered holder to purchase one
share of common stock at a price of $11.50 per share, subject to
adjustment as discussed below, at any time after the completion of
an initial business combination.


 


No
warrants will be exercisable for cash unless we have an effective
and current registration statement covering the shares of common
stock issuable upon exercise of the warrants and a current
prospectus relating to such shares of common stock. Notwithstanding
the foregoing, if a registration statement covering the shares of
common stock issuable upon exercise of the public warrants is not
effective within a specified period following the consummation of
our initial business combination, warrant holders may, until such
time as there is an effective registration statement and during any
period when we shall have failed to maintain an effective
registration statement, exercise warrants on a cashless basis
pursuant to the exemption provided by Section 3(a)(9) of the
Securities Act, provided that such exemption is available. If that
exemption, or another exemption, is not available, holders will not
be able to exercise their warrants on a cashless basis. In such
event, each holder would pay the exercise price by surrendering the
warrants for that number of shares of common stock equal to the
quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the
difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair
market value. The “fair market value” for this purpose
will mean the average reported last sale price of the shares of
common stock for the 5 trading days ending on the trading day prior
to the date of exercise. The warrants will expire on the fifth
anniversary of our completion of an initial business combination,
at 5:00 p.m., New York City time, or earlier upon redemption or
liquidation.


 



 







 






 


Warrant
holders may elect to be subject to a restriction on the exercise of
their warrants such that an electing warrant holder would not be
able to exercise their warrants to the extent that, after giving
effect to such exercise, such holder would beneficially own in
excess of 9.8% of the shares of common stock
outstanding.



 


Redemption.
We may call the warrants for
redemption (excluding the warrants contained in the private
placement units and any warrants included in additional private
units issued to our sponsor, officers or directors in payment of
working capital loans made to us, but including any outstanding
warrants issued upon exercise of the unit purchase option issued to
EarlyBirdCapital and/or its designees), in whole and not in part,
at a price of $0.01 per warrant,



 


 




●

at
any time during the exercise period;








●

upon
not less than 30 days’ prior written notice of redemption to
each warrant holder;








●

if,
and only if, the reported last sale price of the shares of common
stock equals or exceeds $21.00 per share (as adjusted for stock
splits, stock dividends, reorganizations and recapitalizations),
for any 20 trading days within a 30 trading day period ending on
the third business day prior to the notice of redemption to warrant
holders; and








●

if,
and only if, there is a current registration statement in effect
with respect to the shares of common stock underlying such
warrants.







 


The
right to exercise will be forfeited unless the warrants are
exercised prior to the date specified in the notice of redemption.
On and after the redemption date, a record holder of a warrant will
have no further rights except to receive the redemption price for
such holder’s warrant upon surrender of such
warrant.



 


The
redemption criteria for our warrants have been established at a
price which is intended to provide warrant holders a reasonable
premium to the initial exercise price and provide a sufficient
differential between the then-prevailing share price and the
warrant exercise price so that if the share price declines as a
result of our redemption call, the redemption will not cause the
share price to drop below the exercise price of the
warrants.



 


If
we call the warrants for redemption as described above, our
management will have the option to require all holders that wish to
exercise warrants to do so on a “cashless basis.” In
such event, each holder would pay the exercise price by
surrendering the warrants for that number of shares of common stock
equal to the quotient obtained by dividing (x) the product of the
number of shares of common stock underlying the warrants,
multiplied by the difference between the exercise price of the
warrants and the “fair market value” (defined below) by
(y) the fair market value. The “fair market value”
shall mean the average reported last sale price of the shares of
common stock for the 5 trading days ending on the third trading day
prior to the date on which the notice of redemption is sent to the
holders of warrants.



 


Amendments,
Adjustments. The warrants will
be issued in registered form under a warrant agreement between
Continental Stock Transfer & Trust Company, as warrant agent,
and us. The warrant agreement provides that the terms of the
warrants may be amended without the consent of any holder to cure
any ambiguity or correct any defective provision, but requires the
approval, by written consent or vote, of the holders of at least
50% of the then outstanding warrants in order to make any change
that adversely affects the interests of the registered
holders.



 


The
exercise price and number of shares of common stock issuable on
exercise of the warrants may be adjusted in certain circumstances
including in the event of a stock dividend, extraordinary dividend
or our recapitalization, reorganization, merger or consolidation.
However, the warrants will not be adjusted for issuances of shares
of common stock at a price below their respective exercise
prices.



 


Fractional
Shares. No fractional shares
will be issued upon exercise of the warrants. If, by reason of any
adjustment made pursuant to the warrant agreement, upon exercise of
the warrants, a holder would be entitled to receive a fractional
interest in a share, we will, upon exercise, round up to the
nearest whole number the number of shares of common stock to be
issued to the warrant holder.



 



Warrants contained in the Private Placement Units



 


The
warrants contained in the private placement units are not be
transferable, assignable or salable until after the completion of
our initial business combination (except, among other limited
exceptions as described under “Principal Stockholders”)
and they are not be redeemable by us and may be exercised on a
cashless basis so long as they are held by our sponsor or its
permitted transferees. Otherwise, the warrants contained in the
private placement units have terms and provisions that are
identical to the public stockholder warrants. If the warrants
contained in the private placement units are held by holders other
than our sponsor or its permitted transferees, the warrants
contained in the private placement units will be redeemable by us
and exercisable by the holders on the same basis as the warrants
included in the units being sold in our initial public
offering.



 


If
holders of the warrants elect to exercise them on a cashless basis,
they would pay the exercise price by surrendering his, her or its
warrants for that number of shares of common stock equal to the
quotient obtained by dividing (x) the product of the number of
shares of common stock underlying the warrants, multiplied by the
difference between the exercise price of the warrants and the
“fair market value” (defined below) by (y) the fair
market value. The “fair market value” shall mean the
average reported last sale price of the common stock for the 10
trading days ending on the third trading day prior to the date on
which the notice of warrant exercise is sent to the warrant agent.
The reason that we have agreed that these warrants may be exercised
on a cashless basis so long as they are held by our sponsor and
permitted transferees is because it is not known at this time
whether they will be affiliated with us following a business
combination. If they remain affiliated with us, their ability to
sell our securities in the open market will be significantly
limited. We expect to have policies in place that prohibit insiders
from selling our securities except during specific periods of time.
Even during such periods of time when insiders will be permitted to
sell our securities, an insider cannot trade in our securities if
he or she is in possession of material non-public information.
Accordingly, unlike public stockholders who could exercise their
warrants and sell the shares of common stock received upon such
exercise freely in the open market in order to recoup the cost of
such exercise, the insiders could be significantly restricted from
selling such securities. As a result, we believe that allowing the
holders to exercise such warrants on a cashless basis is
appropriate. 



 



 







 






 



Certain Anti-Takeover Provisions of Delaware Law and our Charter
and Bylaws



 



Staggered board of directors



 


Our
Charter provides that our board of directors will be classified
into two classes of directors of approximately equal size. As a
result, in most circumstances, a person can gain control of our
board only by successfully engaging in a proxy contest at two or
more annual meetings. Furthermore, because our board is classified,
directors may be removed only with cause by a majority of our
outstanding shares.



 



Special meeting of stockholders



 


Our
bylaws provide that special meetings of our stockholders may be
called only by a majority vote of our board of directors, by our
Chief Executive Officer or by our Chairman.



 



Advance notice requirements for stockholder proposals and director
nominations



 


Our
bylaws provide that stockholders seeking to bring business before
our annual meeting of stockholders, or to nominate candidates for
election as directors at our annual meeting of stockholders, must
provide timely notice of their intent in writing. To be timely, a
stockholder’s notice will need to be received by the company
secretary at our principal executive offices not later than the
close of business on the 90th day nor earlier than the open of
business on the 120th day prior to the anniversary date of the
immediately preceding annual meeting of stockholders. Pursuant to
Rule 14a-8 of the Exchange Act, proposals seeking inclusion in our
annual proxy statement must comply with the notice periods
contained therein. Our bylaws also specify certain requirements as
to the form and content of a stockholders’ meeting. These
provisions may preclude our stockholders from bringing matters
before our annual meeting of stockholders or from making
nominations for directors at our annual meeting of
stockholders.



 



Authorized but unissued shares



 


Our
authorized but unissued common stock and preferred stock are
available for future issuances without stockholder approval and
could be utilized for a variety of corporate purposes, including
future offerings to raise additional capital, acquisitions and
employee benefit plans. The existence of authorized but unissued
and unreserved common stock and preferred stock could render more
difficult or discourage an attempt to obtain control of us by means
of a proxy contest, tender offer, merger or otherwise.



 



Exclusive Forum Selection



 


Our
Charter requires, to the fullest extent permitted by law, that
derivative actions brought in our name, actions against directors,
officers and employees for breach of fiduciary duty and other
similar actions may be brought only in the Court of Chancery in the
State of Delaware and, if brought outside of Delaware, the
stockholder bringing the suit will be deemed to have consented to
service of process on such stockholder’s counsel. Although we
believe this provision benefits our company by providing increased
consistency in the application of Delaware law in the types of
lawsuits to which it applies, the provision may have the effect of
discouraging lawsuits against our directors and
officers.



 



 Section 203 of the Delaware General Corporation
Law



 


We
are subject to the provisions of Section 203 of the Delaware
General Corporation Law regulating corporate takeovers. This
statute prevents certain Delaware corporations, under certain
circumstances, from engaging in a “business
combination” with:



 




●

a
stockholder who owns 15% or more of our outstanding voting stock
(otherwise known as an “interested
stockholder”);








●

an
affiliate of an interested stockholder; or








●

an
associate of an interested stockholder, for three years following
the date that the stockholder became an interested
stockholder.








●

A
“business combination” includes a merger or sale of
more than 10% of our assets. However, the above provisions of
Section 203 do not apply if:








●

our
board of directors approves the transaction that made the
stockholder an “interested stockholder,” prior to the
date of the transaction;








●

after
the completion of the transaction that resulted in the stockholder
becoming an interested stockholder, that stockholder owned at least
85% of our voting stock outstanding at the time the transaction
commenced, other than statutorily excluded shares of common stock;
or








●

on
or subsequent to the date of the transaction, the business
combination is approved by our board of directors and authorized at
a meeting of our stockholders, and not by written consent, by an
affirmative vote of at least two-thirds of the outstanding voting
stock not owned by the interested stockholder.







 



 







 






 



Limitation on Liability and Indemnification of Directors and
Officers



 


Our
Charter provides that our directors and officers will be
indemnified by us to the fullest extent authorized by Delaware law
as it now exists or may in the future be amended. In addition, our
Charter provides that our directors will not be personally liable
for monetary damages to us for breaches of their fiduciary duty as
directors, unless they violated their duty of loyalty to us or our
stockholders, acted in bad faith, knowingly or intentionally
violated the law, authorized unlawful payments of dividends,
unlawful stock purchases or unlawful redemptions, or derived an
improper personal benefit from their actions as
directors.



 


Our
bylaws also permit us to secure insurance on behalf of any officer,
director or employee for any liability arising out of his or her
actions, regardless of whether Delaware law would permit
indemnification. We will purchase a policy of directors’ and
officers’ liability insurance that insures our directors and
officers against the cost of defense, settlement or payment of a
judgment in some circumstances and insures us against our
obligations to indemnify the directors and officers.



 


These
provisions may discourage stockholders from bringing a lawsuit
against our directors for breach of their fiduciary duty. These
provisions also may have the effect of reducing the likelihood of
derivative litigation against directors and officers, even though
such an action, if successful, might otherwise benefit us and our
stockholders. Furthermore, a stockholder’s investment may be
adversely affected to the extent we pay the costs of settlement and
damage awards against directors and officers pursuant to these
indemnification provisions. We believe that these provisions, the
insurance and the indemnity agreements are necessary to attract and
retain talented and experienced directors and
officers.



 


Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to our directors, officers and controlling persons
pursuant to the foregoing provisions, or otherwise, we have been
advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is,
therefore, unenforceable.