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, the Company’s Amended and Restated Bylaws, as
amended and the applicable provisions of Delaware law. This
description is only a summary. You should read it together with the
Company Certificate and Bylaws, which are included as exhibits to
the Company’s Annual Report on Form 10-K for the year ended
December 31, 2019 and incorporated by reference
herein.


 



General



 


As
of December 31, 2019, 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. As of December 31, 2019,
5,149,749 shares of common stock were issued and outstanding. No
shares of preferred stock were outstanding as of December 31, 2019.
As of December 31, 2019, there were 7,172,500 rights and 3,586,250
warrants outstanding.


 



Units



 


Each unit consists of one share of common stock
one right and one-half of one warrant. Each right entitles the
holder thereof to receive one-tenth (1/10) of one share of common
stock on the consummation of an initial business
combination. Each whole
warrant entitles the holder to purchase one share of common
stock. Pursuant to the warrant agreement, a warrant holder may
exercise his, her or its warrants only for a whole number of shares
of common stock. This means that only a whole warrant may be
exercised at any given time by a warrant holder. No fractional
warrants will be issued upon separation of the units and only whole
warrants will trade. Accordingly, unless you purchase at least two
units, you will not be able to receive or trade a whole
warrant.



  



Common Stock



 


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, 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.



 


We
will consummate our initial business combination only if we have
net tangible assets of at least $5,000,001 upon such consummation
and, solely if a vote is held to approve a business combination, a
majority of the outstanding shares of common stock voted are voted
in favor of the business combination.



 


Our
board of directors is divided into two classes, each of which will
generally serve for a term of two years with only one class of
directors being elected in each year. There is no cumulative voting
with respect to the election of directors, with the result that the
holders of more than 50% of the shares eligible to vote for the
election of directors can elect all of the directors.



 


Our
amended and restated certificate of incorporation, as amended
provides that we will have until July 23, 2020 to complete an
initial business combination. If we have not completed an initial
business combination by such date, we will (i) cease all operations
except for the purpose of winding up, (ii) as promptly as
reasonably possible but not more than ten business days thereafter,
redeem 100% of the outstanding public shares, at a per-share price,
payable in cash, equal to the aggregate amount then on deposit in
the trust account, including any interest earned on the funds held
in the trust account net of interest that may be used by us to pay
our franchise and income taxes payable, divided by the number of
then outstanding public shares, which redemption will completely
extinguish public stockholders’ rights as stockholders
(including the right to receive further liquidation distributions,
if any), subject to applicable law, and (iii) as promptly as
reasonably possible following such redemption, subject to the
approval of our remaining stockholders and our board of directors,
dissolve and liquidate, subject (in the case of (ii) and (iii)
above) to our obligations under Delaware law to provide for claims
of creditors and the requirements of other applicable law. Our
sponsor, officers and directors have agreed to waive their rights
to participate in any liquidation distribution occurring upon our
failure to consummate an initial business combination with respect
to the founder’s shares. Our sponsor, officers and directors
will therefore not participate in any liquidation distribution with
respect to such shares. They will, however, participate in any
liquidation distribution with respect to any shares of common stock
acquired in connection with or following the initial public
offering.



 


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 convert their rights or
exercise the warrants that they received as part of the
units.



 


 




 








 






 

 


 



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 July 23, 2020, 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



 


As
of December 31, 2019, there were no shares of preferred stock
outstanding. Our amended and restated certificate of incorporation
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


 



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



 



Public Stockholders’ Warrants



 


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 later of the
completion of an initial business combination and July 23, 2020. 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.



 


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.



 


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.



 


The
warrants may be exercised upon surrender of the warrant certificate
on or prior to the expiration date at the offices of the warrant
agent, with the exercise form on the reverse side of the warrant
certificate completed and executed as indicated, accompanied by
full payment of the exercise price, by certified or official bank
check payable to us, for the number of warrants being exercised.
The warrant holders do not have the rights or privileges of holders
of shares of common stock and any voting rights until they exercise
their warrants and receive shares of common stock. After the
issuance of shares of common stock upon exercise of the warrants,
each holder will be entitled to one vote for each share held of
record on all matters to be voted on by stockholders.



 


Under
the terms of the warrant agreement, we agreed to use our best
efforts to have declared effective a prospectus relating to the
shares of common stock issuable upon exercise of the warrants and
keep such prospectus current until the expiration of the warrants.
However, we cannot assure you that we will be able to do so and, if
we do not maintain a current prospectus relating to the shares of
common stock issuable upon exercise of the warrants, holders will
be unable to exercise their warrants for cash and we will not be
required to net cash settle or cash settle the warrant
exercise.



 


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.



 


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. 



 


 




 








 






 

 


 



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.



 



Our Transfer Agent, Rights Agent and Warrant Agent



 


The
transfer agent for our securities, rights agent for our rights and
warrant agent for our warrants is Continental Stock Transfer &
Trust Company, One State Street Plaza, New York, New York
10004.



 



Listing of our Securities



 


Our
units, common stock, warrants and rights are each traded on the
NASDAQ Capital Market under the symbols “BRPAU,”
“BRPA,” “BRPAW” and “BRPAR,”
respectively. Our units commenced public trading on November 20,
2017, and our common stock, rights and warrants commenced public
trading on December 1, 2017.


 



Certain Anti-Takeover Provisions of Delaware Law and our Amended
and Restated Certificate of Incorporation and By-Laws



 



Staggered board of directors



 


Our
amended and restated certificate of incorporation 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
amended and restated certificate of incorporation 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
amended and restated certificate of incorporation 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 amended and restated
certificate of incorporation 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.