EARLYBIRDCAPITAL, INC. New York, New York 10017 November 20, 2017
Exhibit 1.2
EARLYBIRDCAPITAL, INC.
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November
20, 2017
c/o Big
Rock Partners Sponsor, LLC
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Suite
230
Delray
Beach, Florida 33483
Attn:
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Ladies
and Gentlemen:
This is
to confirm our agreement whereby Big Rock Partners Acquisition
Corp., a Delaware corporation (“Company”), has requested
EarlyBirdCapital, Inc. (the “Advisor”) to assist it in
connection with the Company merging with, acquiring, engaging in a
share exchange, share reconstruction and amalgamation, purchasing
all or substantially all of the assets of, entering into
contractual arrangements, or engaging in any other similar business
combination (in each case, a “Business Combination”) with one or
more businesses or entities (each a “Target”) as described in the
Company’s Registration Statement on Form S-1 (File No.
333-220947) filed with the Securities and Exchange Commission
(“Registration
Statement”) in connection with its initial public
offering (“IPO”).
1. Services
and Fees.
(a) The
Advisor will:
(i)
Hold meetings with
Company stockholders to discuss the Business Combination and the
Target’s attributes;
(ii)
Introduce the
Company to potential investors to purchase the Company’s
securities in connection with the Business
Combination;
(iii)
Assist the Company
in trying to obtain stockholder approval for the Business
Combination, including assistance with the Company’s proxy
statement or tender offer materials; and
(iv)
Assist the Company
with any press releases and filings related to the Business
Combination or the Target.
(b) As
compensation for the foregoing services, the Company will pay the
Advisor a cash fee equal to 4% of the gross proceeds received by
the Company in the IPO (“Fee”). The Fee shall be payable in
cash and is due and payable to the Advisor by wire transfer at the
closing of the Business Combination (“Closing”). If a proposed Business
Combination is not consummated for any reason, no Fee shall be due
or payable to the Advisor hereunder. The Fee shall be exclusive of
any finder’s fees which may become payable to the Advisor
pursuant to any other agreement between the Advisor and the Company
or the Target.
2. Expenses.
At the
Closing, the Company shall reimburse the Advisor for all reasonable
costs and expenses incurred by the Advisor (including reasonable
fees and disbursements of counsel) in connection with the
performance of its services hereunder; provided, however, all
expenses in excess of $5,000 in the aggregate shall be subject to
the Company’s prior written approval, which approval shall
not be unreasonably withheld.
3. Company
Cooperation.
The
Company will provide full cooperation to the Advisor as may be
necessary for the efficient performance by the Advisor of its
obligations hereunder, including, but not limited to, providing to
the Advisor and its counsel, on a timely basis, all documents and
information regarding the Company and Target that the Advisor may
reasonably request or that are otherwise relevant to the
Advisor’s performance of its obligations hereunder
(collectively, the “Information”); making the
Company’s management, auditors, suppliers, customers,
consultants and advisors available to the Advisor; and, using
commercially reasonable efforts to provide the Advisor with
reasonable access to the management, auditors, suppliers,
customers, consultants and advisors of Target. The Company will
promptly notify the Advisor of any change in facts or circumstances
or new developments affecting the Company or Target or that might
reasonably be considered material to the Advisor’s engagement
hereunder.
4. Representations;
Warranties and Covenants.
The
Company represents, warrants and covenants to the Advisor that all
Information it makes available to the Advisor by or on behalf of
the Company in connection with the performance of its obligations
hereunder will not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make
statements made, in light of the circumstances under which they
were made, not misleading as of the date thereof and as of the
consummation of the Business Combination.
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5. Indemnity.
The
Company shall indemnify the Advisor and its affiliates and
directors, officers, employees, shareholders, representatives and
agents in accordance with the indemnification provisions set forth
in Annex I hereto, all of which are incorporated herein by
reference.
Notwithstanding the
foregoing and Annex 1, the Advisor agrees, if there is no Closing,
(i) that it does not have any right, title, interest or claim of
any kind in or to any monies in the Company’s trust account
(“Trust
Account”) established in connection with the IPO with
respect to the Fee (each, a “Claim”); (ii) to waive any Claim
it may have in the future as a result of, or arising out of, any
services provided to the Company hereunder; and (iii) to not seek
recourse against the Trust Account with respect to the
Fee.
6. Use
of Name and Reports.
Without
the Advisor’s prior written consent, neither the Company nor
any of its affiliates (nor any director, officer, manager, partner,
member, employee or agent thereof) shall quote or refer to (i) the
Advisor’s name or (ii) any advice rendered by the Advisor to
the Company or any communication from the Advisor in connection
with performance of their services hereunder, except as required by
applicable federal or state law, regulation or securities exchange
rule.
7. Status
as Independent Contractor.
The
Advisor shall perform its services as an independent contractor and
not as an employee of the Company or affiliate thereof. It is
expressly understood and agreed to by the parties that the Advisor
shall have no authority to act for, represent or bind the Company
or any affiliate thereof in any manner, except as may be expressly
agreed to by the Company in writing. In rendering such services,
the Advisor will be acting solely pursuant to a contractual
relationship on an arm’s-length basis. This Agreement is not
intended to create a fiduciary relationship between the parties and
neither the Advisor nor any of the Advisor’s officers,
directors or personnel will owe any fiduciary duty to the Company
or any other person in connection with any of the matters
contemplated by this Agreement.
8. Potential
Conflicts.
The
Company acknowledges that the Advisor is a full-service securities
firm engaged in securities trading and brokerage activities and
providing investment banking and advisory services from which
conflicting interests may arise. In the ordinary course of
business, the Advisor and its affiliates may at any time hold long
or short positions, and may trade or otherwise effect transactions,
for their own account or the accounts of customers, in debt or
equity securities of the Company, its affiliates or other entities
that may be involved in the transactions contemplated hereby.
Nothing in this Agreement shall be construed to limit or restrict
the Advisor or any of its affiliates in conducting such
business.
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9. Entire
Agreement.
This
Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior
agreements and understandings, oral or written, with respect
thereto. This Agreement may not be modified or terminated orally or
in any manner other than by an agreement in writing signed by the
parties hereto.
10. Notices.
Any
notices required or permitted to be given hereunder shall be in
writing and shall be deemed given when mailed by certified mail or
private courier service, return receipt requested, addressed to
each party at its respective addresses set forth above, or such
other address as may be given by a party in a notice given pursuant
to this Section.
11. Successors
and Assigns.
This
Agreement may not be assigned by either party without the written
consent of the other. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and, except where
prohibited, to their successors and assigns.
12. Non-Exclusivity.
Nothing
herein shall be deemed to restrict or prohibit the engagement by
the Company of other consultants providing the same or similar
services or the payment by the Company of fees to such parties. The
Company’s engagement of any other consultant(s) shall not
affect the Advisor’s right to receive the Fee and
reimbursement of expenses pursuant to this Agreement.
13. Applicable
Law; Venue.
This
Agreement shall be construed and enforced in accordance with the
laws of the State of New York without giving effect to conflict of
laws.
In the
event of any dispute under this Agreement, then and in such event,
each party hereto agrees that the dispute shall be brought and
enforced in the courts of the State of New York, County of New York
under the accelerated adjudication procedures of the Commercial
Division, or the United States District Court for the Southern
District of New York, in each event at the discretion of the party
initiating the dispute. Each party irrevocably submits to such
jurisdiction, which jurisdiction shall be exclusive. Each party
hereby waives any objection to such exclusive jurisdiction and that
such courts represent an inconvenient forum. Any such process or
summons to be served upon a party may be served by transmitting a
copy thereof by registered or certified mail, postage prepaid,
addressed to such party at the address set forth at the beginning
of this Agreement. Such mailing shall be deemed personal service
and shall be legal and binding upon the party being served in any
action, proceeding or claim. The parties agree that the prevailing
party(ies) in any such action shall be entitled to recover from the
other party(ies) all of its reasonable attorneys’ fees and
expenses relating to such action or proceeding and/or incurred in
connection with the preparation therefor.
14. Counterparts.
This
Agreement may be executed in several original or facsimile
counterparts, each one of which shall constitute an original, and
together shall constitute but one instrument.
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If the
foregoing correctly sets forth the understanding between the
Advisor and the Company with respect to the foregoing, please so
indicate your agreement by signing in the place provided below, at
which time this letter shall become a binding
contract.
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EARLYBIRDCAPITAL, INC. |
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By:
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Name: |
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Title: |
CEO
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AGREED
AND ACCEPTED BY:
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By: /s/
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Name: ▇▇▇▇▇▇▇
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Title:
Chairman, President and Chief Executive
Officer
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[Signature
Page to Business Combination Marketing Agreement]
5
ANNEX
I
Indemnification
In
connection with the Company's engagement of EarlyBirdCapital, Inc.
(the “Advisor”)
pursuant to that certain letter agreement (“Agreement”) of which this Annex
forms a part, Big Rock Partners Acquisition Corp. (the
“Company”)
hereby agrees, subject to the second paragraph of Section 5 of the
Agreement, to indemnify and hold harmless the Advisor and its
affiliates and its respective directors, officers, shareholders,
agents and employees of any of the foregoing (collectively the
“Indemnified
Persons”), from and against any and all claims,
actions, suits, proceedings (including those of stockholders),
damages, liabilities and expenses incurred by any of them
(including the reasonable fees and expenses of counsel), as
incurred, (collectively a “Claim”), that (A) are related to
or arise out of (i) any actions taken or omitted to be taken
(including any untrue statements made or any statements omitted to
be made) by the Company, or (ii) any actions taken or omitted to be
taken by any Indemnified Person in connection with the Company's
engagement of the Advisor, or (B) otherwise relate to or arise out
of the Advisor's activities on the Company's behalf under the
Advisor's engagement, and the Company shall reimburse any
Indemnified Person for all expenses (including the reasonable fees
and expenses of counsel) as incurred by such Indemnified Person in
connection with investigating, preparing or defending any such
claim, action, suit or proceeding, whether or not in connection
with pending or threatened litigation in which any Indemnified
Person is a party. The Company will not, however, be responsible
for any Claim that is finally judicially determined to have
resulted from the gross negligence or willful misconduct of any
person seeking indemnification for such Claim. The Company further
agrees that no Indemnified Person shall have any liability to the
Company for or in connection with the Company's engagement of the
Advisor except for any Claim incurred by the Company as a result of
such Indemnified Person's gross negligence or willful
misconduct.
The
Company further agrees that it will not, without the prior written
consent of the Advisor, settle, compromise or consent to the entry
of any judgment in any pending or threatened Claim in respect of
which indemnification may be sought hereunder (whether or not any
Indemnified Person is an actual or potential party to such Claim),
unless such settlement, compromise or consent includes an
unconditional, irrevocable release of each Indemnified Person from
any and all liability arising out of such Claim.
Promptly upon
receipt by an Indemnified Person of notice of any complaint or the
assertion or institution of any Claim with respect to which
indemnification is being sought hereunder, such Indemnified Person
shall notify the Company in writing of such complaint or of such
assertion or institution but failure to so notify the Company shall
not relieve the Company from any obligation it may have hereunder,
except and only to the extent such failure results in the
forfeiture by the Company of substantial rights and defenses. If
the Company so elects or is requested by such Indemnified Person,
the Company will assume the defense of such Claim, including the
employment of counsel reasonably satisfactory to such Indemnified
Person and the payment of the fees and expenses of such counsel. In
the event, however, that legal counsel to such Indemnified Person
reasonably determines that having common counsel would present such
counsel with a conflict of interest or if the defendant in, or
target of, any such Claim, includes an Indemnified Person and the
Company, and legal counsel to such Indemnified Person reasonably
concludes that there may be legal defenses available to it or other
Indemnified Persons different from or in addition to those
available to the Company, then such Indemnified Person may employ
its own separate counsel to represent or defend him, her or it in
any such Claim and the Company shall pay the reasonable fees and
expenses of such counsel. Notwithstanding anything herein to the
contrary, if the Company fails timely or diligently to defend,
contest, or otherwise protect against any Claim, the relevant
Indemnified Party shall have the right, but not the obligation, to
defend, contest, compromise, settle, assert crossclaims, or
counterclaims or otherwise protect against the same, and shall be
fully indemnified by the Company therefor, including without
limitation, for the reasonable fees and expenses of its counsel and
all amounts paid as a result of such Claim or the compromise or
settlement thereof.
In
addition, with respect to any Claim in which the Company assumes
the defense, the Indemnified Person shall have the right to
participate in such Claim and to retain his, her or its own counsel
therefor at his, her or its own expense.
The
Company agrees that if any indemnity sought by an Indemnified
Person hereunder is held by a court to be unavailable for any
reason then (whether or not the Advisor is an Indemnified Person),
the Company and the Advisor shall contribute to the Claim for which
such indemnity is held unavailable in such proportion as is
appropriate to reflect the relative benefits to the Company, on the
one hand, and the Advisor on the other, in connection with the
Advisor's engagement referred to above, subject to the limitation
that in no event shall the amount of the Advisor's contribution to
such Claim exceed the amount of fees actually received by the
Advisor from the Company pursuant to the Advisor's engagement. The
Company hereby agrees that the relative benefits to the Company, on
the one hand, and the Advisor on the other, with respect to the
Advisor's engagement shall be deemed to be in the same proportion
as (a) the total value paid or proposed to be paid or received by
the Company or its stockholders as the case may be, pursuant to the
transaction (whether or not consummated) for which the Advisor is
engaged to render services bears to (b) the fee paid or proposed to
be paid to the Advisor in connection with such
engagement.
The
Company's indemnity, reimbursement and contribution obligations
under this Agreement (a) shall be in addition to, and shall in no
way limit or otherwise adversely affect any rights that any
Indemnified Party may have at law or at equity and (b) shall be
effective whether or not the Company is at fault in any
way.
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