Filing under Rule 425 under
the Securities Act of 1933
and deemed filed under Rule 14a-12
of the Securities Exchange Act of 1934
Filing by: Big Rock Partners Acquisition Corp.
Subject Company: NeuroRx, Inc.
Commission File No. 001-38302
Related Registration Statement File No.: 333-252479
BIG ROCK PARTNERS ACQUISITION CORP.
2645 N. Federal Highway, Suite 230
Delray Beach, FL
(310) 734-2300
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON MAY 24, 2021
*Full Proxy Statement/Prospectus/Consent Solicitation
Statement,
Proxy Card, and Voting Instructions will follow as soon as
available*
Dear Big Rock Partners Acquisition Corp. Stockholders:
You are cordially invited to attend the annual
meeting of stockholders of Big Rock Partners Acquisition Corp.
(“BRPA”)
at 8:30 a.m. eastern time on May 24, 2021. Due to health concerns
stemming from the COVID-19 pandemic, and to support the health and
well-being of our stockholders, the annual meeting will be a
virtual meeting, held solely over the internet by means of a live
audio webcast. You are cordially invited to attend and participate
in the annual meeting by accessing the meeting web portal located
at
https://www.cstproxy.com/bigrockpartners/2021.
As previously disclosed, BRPA entered into an
Agreement and Plan of Merger (as amended, and as may be further
amended and/or restated from time to time, the
“Merger
Agreement”) on
December 13, 2020, with NeuroRx, Inc., a Delaware corporation
(“NeuroRx”),
and Big Rock Merger Corp., a Delaware corporation and wholly-owned,
direct subsidiary of BRPA (“Merger
Sub”), pursuant to which
Merger Sub will merge with and into NeuroRx, with NeuroRx surviving
the merger (“Merger”).
As a result of the Merger, and upon consummation of the Merger and
the other transactions contemplated by the Merger Agreement
(together with the Merger, the “Transactions”),
NeuroRx will become a wholly-owned subsidiary of BRPA. In
connection with the Merger, BRPA will change its name to NRX
Pharmaceuticals, Inc. (“NRX
Pharmaceuticals”), with
stockholders of NeuroRx becoming stockholders of NRX
Pharmaceuticals. NeuroRx is a clinical-stage small molecule
pharmaceutical company which develops novel therapeutics for the
treatment of central nervous system disorders and life-threatening
pulmonary diseases.
In connection with the Merger, on March 12, 2021
BRPA entered into subscription agreements
(“Subscription
Agreements”) with certain
qualified institutional buyers and institutional accredited
investors who are not affiliates of BRPA or NeuroRx (collectively,
the “Investors”),
pursuant to which BRPA will, substantially concurrently with, and
contingent upon, the consummation of the Merger, issue an aggregate
of 1,000,000 shares of Common Stock to the Investors at a price of
$10.00 per share, for aggregate gross proceeds to BRPA of
$10,000,000 (the “PIPE”).
On March 28, 2021, NeuroRx entered into a Common Stock Purchase
Warrant, dated March 28, 2021, for the purchase by GEM Yield
Bahamas Limited (“GEM”) of up to 1,053,738 shares of NeuroRx
Common Stock at an exercise price of $15.84 per share (the
“GEM
Warrant”). In connection
with the issuance of the GEM Warrant, GEM partially exercised the
GEM Warrant to purchase 473,486 shares (the
“Initial Exercised
Shares”) by payment of
funds to NeuroRx on March 30, 2021 of $7,500,018. In addition, GEM
has indicated its intention to exercise its remaining 580,252
warrant shares immediately following the BRPA shareholder vote to
approve the business combination. The exercise of the GEM Warrant
is expected to provide $16,691,210 for NeuroRx to use in its drug
development program in a manner that is non-dilutive to BRPA
stockholders.
At
the annual meeting, BRPA’s stockholders will be asked to
approve the business combination contemplated by the Merger
Agreement and any and all other business that may properly come
before the annual meeting or any continuation, postponement, or
adjournment thereof, as follows:
(1)
Proposal No. 1
— The Business Combination
Proposal — to consider and vote upon a
proposal to approve and adopt the Merger Agreement and the
transactions contemplated therein, including the Merger — we
refer to this proposal as the “business combination
proposal”;
(2)
Proposal No. 2 — The Charter Proposals — to
consider and vote upon separate proposals to approve amendments to
BRPA’s amended and restated certificate of incorporation
(“Charter”), which amendments will be effective
following the consummation of the Transactions and will be embodied
in a second amended and restated certificate of incorporation of
BRPA (the “Proposed Charter”), to: (i) change the
name of BRPA from “Big Rock Partners Acquisition Corp.”
to “NRX Pharmaceuticals, Inc.”; (ii) increase the
number of authorized shares of Common Stock from 100,000,000 shares
to 500,000,000 shares; (iii) increase the authorized shares of
preferred stock from 1,000,000 to 50,000,000, (iv) require an
affirmative vote of holders of at least two-thirds (66
2/3%) of the voting power of all of the then outstanding shares of
voting stock of NRX Pharmaceuticals following the consummation of
the Transactions, voting together as a single class, to amend,
alter, repeal or rescind certain provisions of the Proposed Charter
relating to the authorization and issuance of preferred stock, the
board of directors, stockholder actions, liability of directors,
indemnification of directors and officers, forum selection and
amendments to the Proposed Charter, (v) provide for the
removal of directors with cause only by stockholders voting at
least three-quarters (75%) of the voting power of all of the then
outstanding shares of voting stock of NRX Pharmaceuticals entitled
to vote at an election of directors, and (vi) remove the
various provisions applicable only to special purpose acquisition
companies that will no longer be applicable to BRPA after the
consummation of the Transactions — we refer to these
proposals as the “charter proposals”;
(3)
Proposal No. 3 — The Bylaws Proposal — to
consider and vote upon a proposal to approve amendments to
BRPA’s amended and restated bylaws (“Bylaws”),
which amendments will be effective following the consummation of
the Transactions and be embodied in a second amended and restated
bylaws of BRPA (the “ (the “Proposed Bylaws”),
including to no longer require the affirmative vote of the holders
of at least 66.7% of the issued and outstanding capital stock of
BRPA to amend certain provision of the Proposed Bylaws and provide
that the board of directors of NRX Pharmaceuticals be expressly
empowered to adopt, amend or repeal the bylaws of NRX
Pharmaceuticals — we refer to this proposal as the
“bylaws proposal”;
(4)
Proposal No. 4 — The
Nasdaq Proposals — to consider and vote upon separate
proposals, as required by the rules of the Nasdaq Stock Market, to
approve (a) the issuance of an aggregate of 75,200,000 shares of
Common Stock to the securityholders of NeuroRx and to EBC in the
Transactions (consisting of the Closing Consideration, the Earnout
Shares and the shares of Common Stock issuable pursuant to the BCMA
Amendment Agreement), representing the issuance of 20% or more of
the shares of Common Stock or voting power outstanding before such
issuance, (b) the issuance of Common Stock to the securityholders
of NeuroRx resulting in a change of control of BRPA and, (c) the
issuance of an aggregate of 1,000,000 shares of Common Stock to the
Investors in the PIPE, representing the issuance of 20% or more of
the shares of Common Stock or voting power outstanding before such
issuance at a price less than the Market Price (as defined by
Nasdaq Listing Rules), all in accordance with Nasdaq Listing Rule
5635 — we refer to these proposals as the “Nasdaq
proposals”;
(5)
Proposal No. 5 — The Director Proposal — to
consider and vote upon a proposal to elect six (6) directors
to the board of directors of BRPA to serve following the
consummation of the Transactions until their successors are duly
elected and qualified — we refer to this proposal as the
“director proposal”;
(6)
Proposal No. 6 — The Plan Proposal — to consider
and vote upon a proposal to approve the adoption of the 2021
Long-Term Incentive Equity Plan (the “2021 Plan”)
— we refer to this proposal as the “plan
proposal”; and
(7)
Proposal No. 7 — The Adjournment Proposal — to consider and vote upon a
proposal to adjourn the annual meeting to a later date or dates, if
necessary, to permit further solicitation of proxies because there
are not sufficient votes to approve and adopt any of the foregoing
proposals or if BRPA and NeuroRx mutually determine that the Merger
cannot be consummated for any reason. We refer to this proposal as
the “adjournment proposal.”
A summary of key highlights of the Transactions is
attached to this notice as Annex A. Only holders of record of Common Stock at the
close of business on April 23, 2021 (the “record
date”) are entitled to
notice of the annual meeting and to vote and have their votes
counted at the annual meeting and any adjournments or postponements
of the annual meeting.
The current holders of shares of Common Stock
issued prior to BRPA’s initial public offering
(“insider
shares”) and each officer
and director of BRPA have agreed to vote all shares of Common Stock
held by them in favor of the business combination proposal. The
holders of insider shares, officers, directors and their affiliates
have also indicated that they intend to vote their shares of Common
Stock in favor of all other proposals being presented by BRPA at
the annual meeting. As of the record date for the annual meeting,
these holders together beneficially owned and were entitled to vote
an aggregate of 2,067,500 shares of Common Stock, which currently
constitutes approximately 76.9% of the outstanding shares of Common
Stock. Accordingly, each of the proposals being submitted to BRPA
stockholders hereunder can be approved even if every holder of
outstanding shares of Common Stock sold in BRPA’s initial
public offering (“Public
Shares”) votes against
such proposals.
After careful consideration, BRPA’s board of directors has
determined that each of the proposals outlined above is fair to and
in the best interests of BRPA and its stockholders and unanimously
recommends that you vote or give instruction to vote
“FOR” the business combination proposal,
“FOR” each of the charter proposals, “FOR”
the bylaws proposal, “FOR” each of the Nasdaq
proposals, “FOR” the election of all of the persons
nominated by management for election as directors under each
director proposal, “FOR” the plan proposal, and
“FOR” the adjournment proposal, if presented.
Consummation of the Transactions is conditioned on approval of each
of (i) the business combination proposal, (ii) the
charter proposals, (iii) the Nasdaq proposals, and
(iv) the plan proposal, among other closing conditions to be
described in the proxy statement/prospectus/consent solicitation
statement that will be sent to you.
BRPA
will send you the proxy statement/prospectus/consent solicitation
statement containing additional information about the proposals to
be presented for a vote at the annual meeting, along with a proxy
card and instructions on how to submit a proxy. When available, we
urge you to read the proxy statement/prospectus/consent
solicitation statement, proxy card, and instructions
carefully.
All
BRPA stockholders are cordially invited to attend the annual
meeting via the live webcast. To ensure your representation at the
annual meeting, however, you are urged to complete, sign, date and
return the proxy card that will be sent to you as soon as possible.
If you are a holder of record of Common Stock, you may also cast
your vote virtually at the annual meeting. If your shares are held
in an account at a brokerage firm or bank, you must instruct your
broker or bank on how to vote your shares or, if you wish to attend
the annual meeting and vote via the live webcast, obtain a proxy
from your broker or bank.
A
complete list of BRPA stockholders of record entitled to vote at
the annual meeting is available at the principal executive offices
of BRPA for inspection by stockholders during ordinary business
hours for any purpose germane to the annual meeting.
Your vote is important regardless of the number of shares you own.
Whether you plan to attend the annual meeting or not, please sign,
date and return the proxy card that will be sent to you as soon as
possible. If your shares are held in “street name” or
are in a margin or similar account, you should contact your broker
to ensure that votes related to the shares you beneficially own are
properly counted.
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By
Order of the Board of Directors
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/s/ Richard Ackerman
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Richard
Ackerman
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Chairman,
President and Chief Executive Officer
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May 14, 2021
ALL BRPA PUBLIC STOCKHOLDERS HAVE THE RIGHT TO HAVE THEIR SHARES OF
COMMON STOCK CONVERTED INTO CASH IN CONNECTION WITH THE PROPOSED
BUSINESS COMBINATION. PUBLIC STOCKHOLDERS ARE NOT REQUIRED TO
AFFIRMATIVELY VOTE FOR OR AGAINST THE BUSINESS COMBINATION PROPOSAL
OR AT ALL OR TO BE A HOLDER OF RECORD ON THE RECORD DATE IN ORDER
TO HAVE THEIR SHARES CONVERTED INTO CASH. THIS MEANS THAT ANY
PUBLIC STOCKHOLDER HOLDING SHARES OF COMMON STOCK MAY EXERCISE
CONVERSION RIGHTS REGARDLESS OF WHETHER THEY VOTE ON THE BUSINESS
COMBINATION PROPOSAL OR IF THEY ARE A HOLDER OF RECORD ON THE
RECORD DATE. TO EXERCISE CONVERSION RIGHTS, STOCKHOLDERS MUST
TENDER THEIR SHARES TO CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, BRPA’S TRANSFER AGENT, NO LATER THAN TWO
(2) BUSINESS DAYS PRIOR TO THE ANNUAL MEETING. YOU MAY TENDER
YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE
TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING
CONTINENTAL STOCK TRANSFER & TRUST COMPANY’S DWAC
(DEPOSIT WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE TRANSACTIONS ARE
NOT COMPLETED, THEN THESE SHARES WILL NOT BE CONVERTED INTO CASH.
IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT
THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES
FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR CONVERSION
RIGHTS.
Annex A
SUMMARY OF THE MATERIAL TERMS OF THE TRANSACTIONS
The following summary highlights some of the
information regarding the proposals to be presented at the annual
meeting. It does not contain all of the information that you should
consider before deciding how to vote on any of the proposals
described herein. You should read carefully the more detailed
information that will be set forth in the definitive proxy
statement/prospectus/consent solicitation statement that will be
delivered to you, including the information set forth under the
caption “Risk
Factors,” included
therein in order to make a decision as to how to vote on each
proposal.
Parties
The
parties to the Merger Agreement are BRPA, NeuroRx and Merger Sub.
Pursuant to the Merger Agreement, Merger Sub will merge with and
into NeuroRx, with NeuroRx surviving as a wholly-owned subsidiary
of BRPA.
NeuroRx
is a clinical-stage small molecule pharmaceutical company which
develops novel therapeutics for the treatment of central nervous
system disorders and life-threatening pulmonary diseases. On
September 21, 2020, NeuroRx announced a commercial partnership
with Relief Therapeutics Holding AG for global commercialization of
RLF-100 (aviptadil acetate) (now
reformulated as ZYESAMITM),
an FDA Fast Track-designated, investigational, precommercial drug
for COVID-19 related respiratory failure (the
“NeuroRx COVID-19 Drug”).
The partnership affords Relief Therapeutics the right to fund all
formulations and clinical development of aviptadil for treatment of
respiratory disease, in exchange for a predetermined share of
profits. NeuroRx is also developing NRX-100/101, an FDA Breakthrough
Therapy-designated, investigational, precommercial drug for
treating bipolar depression in patients with acute suicidal
ideation and behavior (the “NeuroRx Antidepressant
Drug Regimen”).
When
NeuroRx entered into the collaboration agreement with Relief
Therapeutics, the expectation was that clinical success of
aviptadil for treatment of COVID-19 Respiratory Failure could be
demonstrated in a clinical trial of 144 patients over 28 days. In
fact, the clinical trial required 196 patients and the FDA amended
its guidance to provide for a 60-day observation period to
demonstrate success. The additional costs of the increased patient
trial population and increased time frame from 28 days to 60 days
has been borne by NeuroRx as Relief Therapeutics has, to date, not
funded these additional costs. In addition, NeuroRx discovered that
the formulation and stability data provided by Relief Therapeutics
in its Investigational Medicinal Products Dossier
(“IMPD”), which Relief Therapeutics submitted to
European Regulators was non-reproducible. The IMPD data documented
18 months or longer shelf stability for aviptadil acetate in
saline, a product that is designated as RLF-100 in the Relief
Agreement. NeuroRx advised Relief Therapeutics in January 2021 that
the formulation documented in the IMPD yielded only 60-day
stability and began developing a longer stability product, ZYESAMI,
aiming for a shelf life of at least one year. Under the Relief
Agreement, all costs of formulation and Chemical Manufacturing
Controls (CMC) are the obligation of Relief Therapeutics. As of May
10, 2021, Relief Therapeutics has not funded the costs of
reformulation of aviptadil into a shelf stable product, which has
required NeuroRx to deploy capital from alternative investors.
NeuroRx reaffirms its commitment to honoring its collaboration
agreement with Relief Therapeutics and is committed to resolving
these issues with Relief Therapeutics in an amicable manner,
although these circumstances may lead to a dispute with Relief
Therapeutics regarding what share of profits Relief Therapeutics
should be entitled to receive based upon its reduced participation
in the project.
Merger Consideration
The
BRPA Board determined that the valuation of NeuroRx should
correspond to the valuation of its two product candidates, the
NeuroRx COVID-19 Drug and the NeuroRx Antidepressant Drug Regimen.
To value the NeuroRx COVID-19 Drug, the BRPA Board gave
considerable weight to the valuation of Relief Therapeutics, which
is traded on the Swiss stock market. Based on the valuation of
Relief Therapeutics, the BRPA Board determined that the valuation
of the NeuroRx COVID-19 Drug would be $500 million upon the
consummation of the Transactions (“Closing”), before
satisfaction of any of the earnout milestones set forth in the
Merger Agreement. The BRPA Board believed that the NeuroRx
Antidepressant Drug Regimen may add additional value to the
post-business combination company. Accordingly, pursuant to the
Merger Agreement, the aggregate consideration payable to
stockholders of NeuroRx at the Effective Time consists of an
aggregate of 50,000,000 shares of newly issued common stock of
NeuroRx (“Common
Stock”). In addition, the NeuroRx securityholders
(including option holders and warrant holders) who own NeuroRx
securities immediately prior to the Closing will receive the
contingent right to receive their pro rata portion of (i) an
aggregate of 25,000,000 shares of Common Stock (the
“Earnout
Shares”) if, prior to December 31, 2022, the
NeuroRx COVID-19 Drug (i.e., ZYESAMI) receives
emergency use authorization by the Food and Drug Administration
(“FDA”)
and NeuroRx submits and the FDA files for review a new drug
application for the NeuroRx COVID-19 Drug
(i.e., ZYESAMI) (the occurrence of the foregoing, the
“Earnout Shares
Milestone”), and (ii) an aggregate of $100,000,000 in
cash (the “Earnout
Cash”) upon the earlier to occur of (x) FDA
approval of the NeuroRx COVID-19 Drug (i.e., ZYESAMI) and
the listing of the NeuroRx COVID-19 Drug in the
FDA’s “Orange Book” and (y) FDA approval of
the NeuroRx Antidepressant Drug Regimen (i.e., NRX-100/101) and the
listing of the NeuroRx Antidepressant Drug Regimen (i.e.,
NRX-100/101) in the FDA’s “Orange Book,” in each
case prior to December 31, 2022 (the occurrence of either of
clauses (x) or (y), the “Earnout Cash Milestone”).
If the Earnout Shares Milestone is achieved, the Earnout Shares
will be issued within five (5) Business Days after the occurrence
of the Earnout Shares Milestone. If the Earnout Cash Milestone is
achieved, the Merger Agreement does not require the Earnout Cash to
be delivered to NeuroRx securityholders within any specified period
of time, and the board of directors of NRX Pharmaceuticals will use
its good faith judgment to determine the date to pay the Earnout
Cash.
At the
Effective Time, each outstanding share of NeuroRx Common Stock
(including shares of NeuroRx Common Stock resulting from the
conversion of NeuroRx Preferred Stock immediately prior to the
Effective Time) will be converted into the right to receive a pro
rata portion of the Closing Consideration and the contingent right
to receive a pro rata portion of the Earnout Shares and Earnout
Cash. Each option and warrant of NeuroRx that is outstanding and
unexercised immediately prior to the Effective Time will be assumed
by BRPA and will represent the right to acquire an adjusted number
of shares of Common Stock at an adjusted exercise price, in each
case, pursuant to the terms of the Merger Agreement.
PIPE Transaction
In
connection with the Merger Agreement, on March 12, 2021, BRPA
entered into Subscription Agreements with the Investors, pursuant
to which such Investors have agreed to purchase an aggregate of
1,000,000 shares of Common Stock in the PIPE at a price of $10.00
per share for aggregate gross proceeds to BRPA of $10,000,000. The
Subscription Agreements are subject to certain conditions,
including the consummation of the Merger.
GEM Warrant
On
March 28, 2021, NeuroRx entered into the GEM Warrant, for the
purchase by GEM of up to 1,053,738 shares of NeuroRx Common Stock
at an exercise price of $15.84 per share. In connection with the
issuance of the GEM Warrant, GEM partially exercised the GEM
Warrant to purchase 473,486 shares by payment of funds to NeuroRx
on March 30, 2021 of $7,500,018. In addition, GEM has indicated its
intention to exercise its remaining 580,252 warrant shares
immediately following the BRPA shareholder vote. The exercise of
the GEM Warrant is expected to provide $16,691,210 for NeuroRx to
use in its drug development program in a manner that is
non-dilutive to BRPA shareholders.
Pro Forma Ownership of BRPA Upon Closing
Immediately after
the Closing: (1) NeuroRx’s stockholders will hold
approximately 93% of the issued and outstanding Common Stock, (2)
the current public stockholders of BRPA will hold approximately 2%
of the issued and outstanding Common Stock, (3) collectively, Big
Rock Partners Sponsor, LLC (“Sponsor”), BRAC Lending
Group LLC (“BRAC”), an affiliate of
EarlyBirdCapital, Inc. (“EBC”), the representative
of the underwriters of the BRPA initial public offering, and EBC
will collectively hold approximately 3% of the issued and
outstanding Common Stock, and (4) the Investors will hold
approximately 2% of the issued and outstanding Common Stock, which
pro forma ownership (i) takes into effect the forfeiture,
termination and cancellation of 875,000 shares of Common Stock by
the Sponsor and BRAC pursuant to the Merger Agreement, and the
issuance to EBC of 200,000 shares of Common Stock pursuant to an
amendment to an existing agreement between BRPA and EBC,
(ii) takes into effect the exchange of each outstanding right
of BRPA for one-tenth of one share of Common Stock
pursuant to the terms of the rights, (iii) assumes no holder
of BRPA Public Shares exercises its conversion rights,
(iv) includes the issuance of 1,000,000 shares of Common Stock
to the Investors in the PIPE but does not include the effect of any
other financing of BRPA or NeuroRx (including any additional shares
(other than the Initial Exercised Shares already issued and
therefore already included) issuable pursuant to any further
exercise by GEM of the GEM Warrant) and (v) assumes the
Earnout Shares Milestone is not satisfied immediately prior to the
Closing.
Termination of the Merger Agreement
The
Merger Agreement provides that either BRPA or NeuroRx may terminate
the Merger Agreement if the Transactions are not consummated on or
before May 24, 2021, provided that such right to terminate the
Merger Agreement shall not be available to any party whose failure
to fulfill any obligation under the Merger Agreement has been the
primary cause of, or primarily resulted in, the failure of the
Closing to occur on or before such date. Additionally, the Merger
Agreement may be terminated, among other reasons, by either BRPA or
NeuroRx upon material breach of the other party if not cured within
the time period specified within the Merger Agreement, or by
written notice from NeuroRx prior to obtaining approval of the
NeuroRx stockholders in order to enter into a definitive agreement
with respect to a Superior Proposal (as defined in the Merger
Agreement), if NeuroRx’s board of directors determines in
good faith, in consultation with its outside legal counsel, that
the failure to take such action would be inconsistent with its
fiduciary duties under applicable law. If NeuroRx terminates the
Merger Agreement in order to enter into another definitive
agreement with respect to such Superior Proposal, NeuroRx is
obligated to pay to BRPA a termination fee in the amount of
$10,000,000 within three (3) business days of such
termination.
Nasdaq Listing
BRPA’s units,
Common Stock, rights, and warrants are currently listed on the
Capital Market of The Nasdaq Stock Market LLC (“Nasdaq”) under the
symbols “BRPAU,” “BRPA,”
“BRPAR,” and “BRPAW,” respectively. BRPA
has applied for listing, to be effective at the consummation of the
Transactions, of the Closing Consideration and Earnout Shares,
together with the Common Stock previously issued to BRPA
stockholders (including the Common Stock underlying the units,
warrants, and rights issued in BRPA’s initial public offering
and simultaneous private placement) and the warrants issued in
BRPA’s initial public offering and simultaneous private
placement, and the Common Stock to be issued to the Investors in
the PIPE and to GEM pursuant to the GEM Warrant, on Nasdaq under
the proposed symbols NRXP and NRXPW, respectively. BRPA will not
have units or rights traded on Nasdaq following consummation of the
Transactions. It is a condition of the consummation of the
Transactions that the Common Stock is approved for listing on
Nasdaq (subject only to official notice of issuance thereof and
round lot holder requirements), but such condition can be waived by
the parties. Accordingly,
there can be no assurance such listing condition will be met and,
at the time you are asked to vote on the Transactions, you will
have no assurance that the Common Stock and Warrants will be listed
on a national securities exchange following the completion of the
business combination.
In
November 2020, BRPA received a notice from the Listing
Qualifications Department of The Nasdaq Stock Market LLC stating
that, as of November 20, 2020, BRPA was not in compliance with
Listing Rule IM-5101-2, which requires that a special purpose
acquisition company complete one or more business combinations
within 36 months of the effectiveness of the registration statement
filed in connection with its initial public offering, among other
rules. In January 2021, BRPA attended a hearing before the Nasdaq
Hearings Panel and requested an extension through May 24, 2021 to
regain compliance with the Nasdaq listing rules. On January 15,
2021, BRPA received notice from Nasdaq that Nasdaq had granted
BRPA’s request to continue its listing on Nasdaq through May
24, 2021. Nasdaq’s decision is subject to certain conditions,
including that BRPA will have completed the Merger with NeuroRx on
or before such date and that NRX Pharmaceuticals will have
demonstrated compliance with all requirements for initial listing
on Nasdaq. BRPA has applied for initial listing of NRX
Pharmaceuticals’ common stock and warrants following
consummation of the Transactions, which is a condition to the
consummation of the Merger. While BRPA expects Nasdaq to approve
the initial listing of its securities and expects to complete the
Merger by May 24, 2021, there can be no assurance that it will be
able to do so. Further, BRPA may not receive official notice of
approval from Nasdaq prior to the annual meeting and, accordingly,
BRPA stockholders may be asked to approve the Transactions without
knowing whether their securities will remain listed on
Nasdaq.
Proposals to be Considered at the Annual Meeting
The Business Combination Proposal
The
BRPA stockholders will vote on a proposal to approve and adopt the
Merger Agreement and the Transactions contemplated therein,
including the Merger. If the business combination proposal is not
approved by BRPA’s stockholders at the annual meeting, the
charter proposals, the bylaws proposal, Nasdaq proposals, director
proposal and plan proposal will not be presented at the annual
meeting for a vote of stockholders.
The Charter Proposals
The
BRPA stockholders will also vote on separate proposals to approve
amendments to BRPA’s Charter, which amendments will be
effective following the consummation of the Transactions and be
embodied in the Proposed Charter, to: (i) change the name of
BRPA from “Big Rock Partners Acquisition Corp.” to
“NRX Pharmaceuticals, Inc.”; (ii) increase the number
of authorized shares of Common Stock from 100,000,000 shares to
500,000,000 shares; (iii) increase the number of authorized
shares of preferred stock from 1,000,000 shares to 50,000,000
shares, (iv) require an affirmative vote of holders of at
least two-thirds (66-2/3%) of the voting power of all of
the then outstanding shares of NRX Pharmaceuticals, voting together
as a single class, to amend, alter, repeal or rescind certain
provisions of the Proposed Charter relating to the authorization
and issuance of preferred stock, the board of directors,
stockholder actions, liability of directors, indemnification of
directors and officers, forum selection and amendments to the
Proposed Charter, (v) provide for the removal of directors
with cause only by stockholders voting at least three-quarters
(75%) of the voting power of all of the then outstanding shares of
voting stock of NRX Pharmaceuticals entitled to vote at an election
of directors, and (vi) remove the various provisions
applicable only to special purpose acquisition companies that will
no longer be applicable to BRPA after the consummation of the
Transactions.
The Bylaws Proposal
The
BRPA stockholders will also vote on a proposal to approve
amendments to BRPA’s Bylaws, which amendments will be
effective following the consummation of the Transactions and are
embodied in the Proposed Bylaws, including to no longer require the
affirmative vote of the holders of at least 66.7% of the issued and
outstanding capital stock of BRPA to amend certain provision of the
Proposed Bylaws and provide that the board of directors of NRX
Pharmaceuticals be expressly empowered to adopt, amend or repeal
the bylaws of NRX Pharmaceuticals.
The Nasdaq Proposals
The
BRPA stockholders will also vote on a series of proposals to
approve (a) the issuance of an aggregate of 75,200,000 shares of
Common Stock to the securityholders of NeuroRx and to EBC in the
Transactions (consisting of the Closing Consideration, the Earnout
Shares and the shares of Common Stock issuable pursuant to the BCMA
Amendment Agreement), representing the issuance of 20% or more of
the shares of Common Stock or voting power outstanding before such
issuance, (b) the issuance of Common Stock to the securityholders
of NeuroRx resulting in a change of control of BRPA and, (c) the
issuance of an aggregate of 1,000,000 shares of Common Stock to the
Investors in the PIPE, representing the issuance of 20% or more of
the shares of Common Stock or voting power outstanding before such
issuance at a price less than the Market Price (as defined by
Nasdaq Listing Rules), all in accordance with Nasdaq Listing Rule
5635.
The Director Proposal
The
BRPA stockholders will also vote upon a proposal to elect six
(6) directors to the board of directors of BRPA to serve
following the consummation of the Transactions and until their
successors are duly elected and qualified. If BRPA’s nominees
are elected, the directors of NRX Pharmaceuticals following the
Transactions will be Jonathan C. Javitt (NeuroRx’s founder,
Chairman of the Board and Chief Executive Officer, who will serve
as Chairman of the Board following consummation of the
Transactions), Daniel E. Troy, Patrick Flynn, Aaron Gorovitz, Hon.
Sherry Glied and Chaim Hurvitz, each current directors of
NeuroRx.
The Plan Proposal
The
BRPA stockholders will also vote upon a proposal to approve the
adoption of the 2021 Plan. The 2021 Plan will reserve for issuance
an aggregate number of shares of Common Stock equal to 10% of the
outstanding shares of Common Stock on the Closing Date. The purpose
of the 2021 Plan is to assist in attracting, retaining, motivating,
and rewarding employees, officers, directors and consultants of
BRPA and NeuroRx and their affiliates after the Closing and
promoting the creation of long-term value for BRPA stockholders by
closely aligning the interests of such individuals with those of
BRPA’s stockholders. The 2021 Plan authorizes the award of
share-based incentives to encourage eligible employees, officers,
directors and consultants to expend maximum effort in the creation
of stockholder value.
The Adjournment Proposal
If
it is determined that additional time is necessary to permit
further solicitation of proxies because there are not sufficient
votes to approve and adopt any of the foregoing proposals or if
BRPA and NeuroRx mutually determine that the Merger cannot be
consummated for any reason, BRPA’s board of directors may
submit a proposal to adjourn the annual meeting to a later date or
dates.
BRPA Initial Stockholders
The
holders of insider shares, officers, directors and affiliates of
BRPA have agreed to vote all shares of Common Stock held by them in
favor of the business combination proposal and indicated they
intend to vote their shares of Common Stock in favor of all other
proposals being presented by BRPA at the annual meeting. As a
result, as of the record date for the annual meeting, the holders
of an aggregate of 2,067,500 shares of Common Stock, which
currently constitutes approximately 76.9% of the outstanding shares
of Common Stock, have agreed to vote in favor of the business
combination proposal and intend to vote such shares in favor of the
other proposals. Accordingly, each of the proposals being submitted
to BRPA stockholders hereunder can be approved even if every holder
of Public Shares votes against such proposals.
Ancillary Agreements
Support Agreements
Pursuant to the Merger Agreement, on or prior to
January 14, 2021, certain NeuroRx stockholders
(“Supporting NeuroRx
Stockholders”) who
beneficially hold a sufficient number of shares of NeuroRx Common
Stock and NeuroRx Preferred Stock to approve and adopt the Merger
Agreement and to approve the consummation of the Transactions,
entered into support agreements (“Support
Agreements”) whereby such
stockholders have agreed that, on or effective as of the tenth
calendar day following the date that the proxy statement /
prospectus / consent solicitation statement is disseminated to
NeuroRx’s stockholders, each Supporting NeuroRx Stockholder
will execute and deliver a written consent with respect to
outstanding shares of NeuroRx Common Stock and NeuroRx Preferred
Stock held by such Supporting NeuroRx Stockholder adopting the
Merger Agreement and approving the Transactions (including
conversion of any shares of NeuroRx Preferred Stock held by such
stockholder). The Supporting NeuroRx Stockholders also vote against
any Acquisition Proposal (as defined in the Merger Agreement) and
any other action that would reasonably be expected to materially
impede, interfere with, delay, postpone or adversely affect the
Merger or any of the other Transactions or result in a breach of
any covenant, representation or warranty or other obligation or
agreement of NeuroRx under the Merger Agreement that would result
in the failure of any condition of the Merger Agreement to be
satisfied or result in a breach of any covenant, representation or
warranty or other obligation or agreement of such Supporting
NeuroRx Stockholder contained in the Support Agreement. The shares
of NeuroRx capital stock that are owned by the Supporting NeuroRx
Stockholders and subject to the Support Agreements represent
approximately 88.7% of the outstanding shares of NeuroRx Common
Stock and approximately 84.4% of the outstanding shares of NeuroRx
Preferred Stock, in each case as of the NeuroRx Record Date. The
execution and delivery of written consents by all of the Supporting
NeuroRx Stockholders will constitute the NeuroRx Stockholder
Approval at the time of such delivery. The voting obligations set
forth in the Support Agreements are subject to
certain cut-backs in the event that the NeuroRx board
changes its recommendation in order to enter into a definitive
agreement with respect to a Superior Proposal (as defined in the
Merger Agreement).
Lock-Up
At the Closing, certain stockholders of NeuroRx
will enter into a lock-up agreement
(“Lock-Up Agreement”)
with BRPA with respect to the Closing Consideration issuable to
them in the Transactions, pursuant to which they will agree not to
transfer the shares of Common Stock received as Closing
Consideration for the Merger, except to certain permitted
transferees, until the earlier of
(a) the six-month anniversary of the Closing,
(b) with respect to 50% of the shares of Common Stock issued
to such persons, the date on which the closing price of the 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, and (c) the date after the Closing on which BRPA
consummates a liquidation, merger, stock or other similar
transaction which results in all of BRPA’s stockholders
having the right to exchange their Common Stock for cash,
securities or other property.
Sponsor Agreement
Pursuant to the Merger Agreement, on or prior to
the Closing, BRPA will enter into an agreement (the
“Sponsor
Agreement”) with the Sponsor and BRAC providing that
(a) the Sponsor and BRAC will forfeit, and BRPA will terminate
and cancel: (x) an aggregate of 875,000 shares of Common Stock
and (y) one share of Common Stock for each Public Share
validly redeemed by public stockholders in connection with the
business combination proposal, up to a maximum of 300,000 shares of
Common Stock (clauses (x) and (y), collectively, the
“Forfeited
Shares”), and (b) 125,000 shares of Common Stock owned
by the Sponsor will be subject to escrow (the “Sponsor Earnout Shares”),
which Sponsor Earnout Shares will either be released from escrow to
the Sponsor upon the achievement of the Earnout Shares Milestone or
terminated and canceled by BRPA on December 31, 2022, in the
event that the Earnout Shares Milestone is not achieved.
Stock Escrow Amendment
Pursuant to the Merger Agreement, on or
prior to the Closing Date, BRPA, the Sponsor, BRAC, Graubard
Miller, the Initial Stockholders and Continental Stock
Transfer & Trust Company (“Continental”) will enter
into an amendment to the existing stock escrow agreement (the
“Stock Escrow
Amendment”) providing: (a) for the forfeiture and
cancellation of the Forfeited Shares, (b) that the Sponsor
Earnout Shares will be subject to escrow pursuant to the Sponsor
Agreement and in accordance with the terms of the Merger Agreement,
(c) that the 40,000 shares of Common Stock held by Graubard
Miller will be released from escrow and (d) that all remaining
shares of Common Stock held in escrow thereunder will be released
from escrow on the earlier of (i)
the six-month anniversary of the Closing, (ii) with
respect to 50% of the shares of Common Stock, the date on which the
closing price of the 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, and (iii) the date after the Closing on which BRPA
consummates a liquidation, merger, stock exchange or other similar
transaction which results in all of BRPA’s stockholders
having the right to exchange their Common Stock for cash,
securities or other property.
BCMA Amendment
Pursuant to the Merger Agreement, on or prior to
the Closing, BRPA and EBC shall enter into an amendment
(“BCMA
Amendment Agreement”)
to the Business Combination Marketing Agreement, dated as of
November 20, 2017 (“BCMA”),
by and between BRPA and EBC. The BCMA Amendment Agreement will
provide that, in lieu of the cash fee payable to EBC pursuant to
the BCMA, BRPA shall issue to EBC at the Effective Time an
aggregate of 200,000 shares of Common Stock and the BCMA (as
amended by the BCMA Amendment Agreement) shall terminate
immediately following the Effective Time.
Note Amendment
The
Merger Agreement provides that, if the amount remaining in
BRPA’s trust fund, after disbursements made to redeeming
stockholders and including the proceeds of any potential financing
undertaken in connection with the Transactions, exceeds $5,000,001,
then any of the BRPA outstanding promissory notes payable to
certain BRPA insiders will be repaid from such excess, up to a
maximum of $2,708,213.36.
On
or prior to the Closing Date, BRPA, the Sponsor and BRPA’s
lenders will enter into an omnibus amendment to each outstanding
promissory note or other borrowing with BRPA as the maker providing
that the outstanding principal and accrued unpaid interest pursuant
to such promissory notes, after any repayments permitted pursuant
to the terms of the Merger Agreement, will be converted into
convertible notes of BRPA with an aggregate principal amount of no
more than $2,708,213.36, which bear interest at three percent (3%)
per annum, and may be converted from time to time, at the
holder’s option, into shares of Common Stock at a price of
$10.00 per share, and which mature on the date that is twenty-four
(24) months after the date of Closing.
Registration Rights Agreement
Pursuant
to the Merger Agreement, on or prior to the Closing Date, BRPA,
NeuroRx, certain stockholders of BRPA and certain stockholders of
NeuroRx will enter into a registration rights agreement, pursuant
to which such persons will be granted rights to have registered, in
certain circumstances, the resale under the Securities Act, of the
Common Stock held by them.
Conversion Rights
Pursuant
to BRPA’s Charter, a holder of Public Shares may demand that
BRPA convert such shares into cash if the business combination is
consummated; provided that BRPA may not consummate the business
combination if it has less than $5,000,001 of net tangible assets
upon consummation of the business combination. This condition
cannot be waived by BRPA or NeuroRx. Assuming the PIPE is
consummated substantially simultaneously with the consummation of
the Merger, BRPA is expected to meet the net tangible assets test
even if all public stockholders exercise their conversion
rights.
Holders
of Public Shares will be entitled to receive cash for these shares
only if they properly demand conversion and deliver their shares to
BRPA’s transfer agent no later than two (2) business
days prior to the annual meeting. Holders of Public Shares do not
need to affirmatively vote on the business combination proposal or
be a holder of such Public Shares as of the record date to exercise
conversion rights. If the Transactions are not consummated, these
shares will not be converted into cash. If a holder of Public
Shares properly demands conversion, delivers his, her or its shares
to BRPA’s transfer agent as described above, and the
Transactions are consummated, BRPA will convert each Public Share
into a full pro rata portion of the trust account, calculated as of
two (2) business days prior to the date of the annual meeting.
It is anticipated that this would amount to approximately $10.80
per share. If a holder of Public Shares exercises his, her or its
conversion rights, then it will be exchanging its shares of Common
Stock for cash and will no longer own the shares.
Holders
of BRPA rights and warrants do not have conversion rights with
respect to such securities.
Appraisal Rights
BRPA
stockholders and holders of BRPA rights and warrants do not have
appraisal rights in connection with the Transactions under the
DGCL.
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