Amendment to the Stock Escrow Agreement, dated May 24, 2021, among BRPA, Continental Stock Transfer & Trust Company, and the stockholder parties thereto
STOCK ESCROW AGREEMENT
This Amendment to the Stock Escrow Agreement (this Amendment), dated as of May 24, 2021, is by and among Big Rock Partners Acquisition Corp., a Delaware corporation (to be renamed NRX Pharmaceuticals, Inc. the Company), Big Rock Partners Sponsor, LLC, a Delaware limited liability company (Sponsor), BRAC Lending Group LLC, a Delaware limited liability company (BRAC), Graubard Miller, and Continental Stock Transfer & Trust Company (the Escrow Agent).
WHEREAS, in connection with the initial public offering of units of the Company, the Sponsor agreed to deposit all of the shares of the Companys common stock, par value $0.001 per share (BRPA Common Stock), owned by it into escrow pursuant to the terms and conditions of that certain Stock Escrow Agreement dated as of November 20, 2017 by and among the Company, Sponsor, and the Escrow Agent (the Escrow Agreement);
WHEREAS, on November 18, 2018, the Company, Sponsor, BRAC, and Continental entered into a letter agreement providing for the transfer of 1,500,000 shares of BRPA Common Stock from Sponsor to BRAC, for aggregate consideration of $1.00, which shares of BRPA Common Stock would remain in escrow pursuant to the terms of the Escrow Agreement;
WHEREAS, the Company has entered into an Agreement and Plan of Merger, dated as of December 13, 2020 (as amended, the Merger Agreement) by and among the Company, Big Rock Merger Corp., a Delaware corporation and wholly-owned subsidiary of the Company, and NeuroRx, Inc., a Delaware corporation (NeuroRx), and pursuant to Sections 1.9 and 1.10 of the Merger Agreement, that certain Sponsor Forfeiture Agreement among Sponsor, BRAC, and the Company dated on or about the date hereof (the Sponsor Agreement), and Section 4.3(vi) of the Escrow Agreement, the Sponsor and BRAC have instructed the Escrow Agent to release from escrow an aggregate of 875,000 shares of BRPA Common Stock (the Forfeited Shares) for the forfeiture and cancellation of such Forfeited Shares;
WHEREAS, pursuant to Sections 1.9 and 1.10 of the Merger Agreement and the Sponsor Forfeiture Agreement, Sponsor agreed that 125,000 shares of BRPA Common Stock owned by Sponsor (the Sponsor Earnout Shares), which Sponsor Earnout Shares are being held in escrow, shall either be released from escrow to the Sponsor upon the achievement of the Earnout Shares Milestone (as such term is defined in the Merger Agreement) or terminated and cancelled by BRPA on December 31, 2022 in the event that the Earnout Shares Milestone is not achieved;
WHEREAS, pursuant to Section 1.10 of the Merger Agreement, the Company and NeuroRx agreed that the 40,000 shares of BRPA Common Stock held by Graubard Miller should be released from escrow;
WHEREAS, pursuant to Section 1.10 of the Merger Agreement, the Company and NeuroRx agreed to shorten the Escrow Period (as defined in the Escrow Agreement); and
WHEREAS, it is a condition to the consummation of the transactions contemplated by the Merger Agreement that the parties hereto enter into this Amendment;
WHEREAS, EarlyBirdCapital, Inc. (the Representative) has consented to the this Amendment pursuant to Section 6.8 of the Escrow Agreement; and
WHEREAS, each of Sponsor, BRAC, and Graubard Miller are referred to herein as Initial Stockholders and each of the Initial Stockholders, the Company, and the Escrow Agent, are referred to herein, individually, as a Party and, collectively, as the Parties.
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. Amendments to Escrow Agreement.
(a) The recitals of the Escrow Agreement shall be deleted in their entirety and replaced with the recitals of this Amendment;
(b) References to Sponsor in the Escrow Agreement shall be replaced with references to the Initial Stockholders;
(c) References to the Escrow Shares shall mean shares of BRPA Common Stock held by the Initial Stockholders in the amounts as set forth opposite such Initial Stockholders name on Exhibit A hereto;
(d) Section 3 of the Escrow Agreement shall be deleted in its entirety and replaced with the following:
3. Disbursement of the Escrow Shares. The Escrow Agent shall hold the Escrow Shares until the termination of the Escrow Period (as defined below). The Escrow Period shall be the period beginning on the date the certificates repres enting the Escrow Shares are deposited with the Escrow Agent and ending as follows:
(i) with respect to the 40,000 shares of BRPA Common Stock held by Graubard Miller, upon the completion of the transactions contemplated by that certain Agreement and Plan of Merger, dated as of December 13, 2020 by and among the Company, Big Rock Merger Corp., and NeuroRx. (the Closing);
(ii) with respect to the Sponsor Earnout Shares, on the date prior to December 31, 2022 that (1) NeuroRxs COVID-19 drug receives emergency use authorization by the FDA and (2) NeuroRx submits and FDA files for review a new drug application for the NeuroRxs COVID-19 drug (the occurrence of the foregoing, the Earnout Shares Milestone); and
(iii) with respect to all other Escrow Shares, on the earliest of (x) the six-month anniversary of the Closing, (y) with respect to 50% of the Escrow Shares, 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 (z) the date after the Closing on which BRPA consummates a liquidation, merger, stock exchange or other similar transaction which results in all of BRPAs stockholders having the right to exchange their BRPA Common Stock for cash, securities or other property.
On the termination date of the Escrow Period, the Escrow Agent shall, upon written instructions from the Company, disburse the Escrow Shares to the Initial Stockholders; provided that if the Earnout Shares Milestone has not occurred prior to December 31, 2022, on December 31, 2022, the Company shall instruct the Escrow Agent to release the Sponsor Earnout Shares to the Company and the Company shall terminate and cancel the Sponsor Earnout Shares. The Escrow Agent shall have no further duties hereunder after the disbursement of the Escrow Shares in accordance with this Section 3.
(e) Section 4.4 of the Escrow Agreement shall be deleted in its entirety.
(f) Section 5.5 of the Escrow Agreement shall be amended to remove the requirement for the Representative (as defined in the Escrow Agreement) to approve a successor escrow agent.
(g) Section 6.5 of the Escrow Agreement shall be deleted in its entirety and replaced with the following:
6.5 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 in the case of the Initial Stockholders to the addresses listed on Exhibit A attached hereto, and to the other Parties, as follows:
if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
One State Street Plaza, 30th Floor
New York, New York 10004
if to the Company, to:
NRX Pharmaceuticals, Inc.
1201 N. Market Street, Suite 111
Wilmington, Delaware 19801
Attn: Jonathan Javitt
and a copy, which shall not constitute notice, to:
(h) Section 6.8 of the Escrow Agreement shall be deleted in its entirety and Section 6.9 shall be renumbered as Section 6.8.
2. The Escrow Agreement shall remain in full force and effect except as expressly amended by this Amendment. Upon the execution and delivery hereof, the Escrow 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 Escrow Agreement, and this Amendment and the Escrow Agreement shall henceforth be read, taken and construed as one and the same instrument.
4. This Amendment shall be construed and enforced in accordance with the laws of the State of New York without giving effect to the conflict of laws principles thereof.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first written above.
|BIG ROCK PARTNERS ACQUISITION CORP.|
|Name: Richard Ackerman|
|Title: Chief Executive Officer|
|BIG ROCK PARTNERS SPONSOR, LLC|
|Name: Richard Ackerman|
|Title: Managing Member|
|BRAC LENDING GROUP LLC|
|Name: David M. Nussbaum|
|Title: Managing Member|
|Name: Jeffrey Gallant|
|Address: The Chrysler Building|
405 Lexington Avenue, 11th Fl
New York, New York 10174
Attn: David Alan Miller / Jeffrey M. Gallant
Email: ***@*** /
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
|Name: Stacy Aqui|
|Title: Vice President|
|Pre Closing |
Big Rock Partners Sponsor, LLC
BRAC Lending Group LLC
(1) Included within the Post Closing Escrow Shares.