Attached files
Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BIG ROCK PARTNERS
ACQUISITION CORP.
_________, 2017
Big
Rock Partners Acquisition Corp., a corporation organized and
existing under the laws of the State of Delaware (the
“Corporation”), DOES HEREBY CERTIFY AS
FOLLOWS:
1. The
name of the Corporation is “Big Rock Partners Acquisition
Corp.” The original certificate of incorporation of the
Corporation was filed with the Secretary of State of the State of
Delaware (the “Secretary of State”) on September 18,
2017 (the “Original Certificate”).
2. This
Amended and Restated Certificate of Incorporation (the
“Amended and Restated Certificate”), which both
restates and amends the provisions of the Original Certificate, as
amended, was duly adopted in accordance with Sections 242 and 245
of the General Corporation Law of the State of Delaware and by
written consent of the Corporation’s stockholders in
accordance with Section 228 of the General Corporation Law of the
State of Delaware (the “DGCL”).
3. The
text of the Original Certificate, as amended, is hereby restated
and amended in its entirety to read as follows:
ARTICLE I
NAME
The
name of the corporation is Big Rock Partners Acquisition Corp. (the
“Corporation”).
ARTICLE II
PURPOSE
The
purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL. In
addition to the powers and privileges conferred upon the
Corporation by law and those incidental thereto, the Corporation
shall possess and may exercise all the powers and privileges that
are necessary or convenient to the conduct, promotion or attainment
of the business or purposes of the Corporation, including, but not
limited to, effecting a merger, capital stock exchange, asset
acquisition, stock purchase, recapitalization, reorganization or
similar business combination, involving the Corporation and one or
more businesses or entities (a “Business
Combination”).
ARTICLE III
REGISTERED AGENT
The
street address of the registered office of the Corporation in the
State of Delaware is 1209 Orange Street, Wilmington, County of New
Castle, State of Delaware 19801, and the name of the
Corporation’s registered agent at such address is The
Corporation Trust Company.
CAPITALIZATION
Section
4.1
Authorized Capital Stock. The total number of shares of all classes
of capital stock, each with a par value of $0.001 per share, which
the Corporation is authorized to issue is 101,000,000 shares,
consisting of (a) 100,000,000 shares of common stock, par value
$0.001 per share (the “Common Stock”), and (b)
1,000,000 shares of preferred stock, par value $0.001 per share
(the “Preferred Stock”).
Section
4.2
Preferred Stock. Subject to Article IX of this Amended and Restated
Certificate, the Board of Directors of the Corporation (the
“Board”) is hereby expressly authorized to provide out
of the unissued shares of the Preferred Stock for one or more
series of Preferred Stock and to establish from time to time the
number of shares to be included in each such series and to fix the
voting rights, if any, designations, powers, preferences and
relative, participating, optional, special and other rights, if
any, of each such series and any qualifications, limitations and
restrictions thereof, as shall be stated in the resolution or
resolutions adopted by the Board providing for the issuance of such
series and included in a certificate of designation (a
“Preferred Stock Designation”) filed pursuant to the
DGCL, and the Board is hereby expressly vested with the authority
to the full extent provided by law, now or hereafter, to adopt any
such resolution or resolutions.
Section
4.3
Common Stock.
(a) Except
as otherwise required by law or this Amended and Restated
Certificate (including any Preferred Stock Designation), the
holders of shares of Common Stock shall be entitled to one vote for
each such share on each matter properly submitted to the
stockholders on which the stockholders generally are entitled to
vote.
(b) Except
as otherwise required by law or this Amended and Restated
Certificate (including any Preferred Stock Designation), at any
annual or special meeting of the stockholders of the Corporation,
the holders of the Common Stock shall have the exclusive right to
vote for the election of directors and on all other matters
properly submitted to a vote of the stockholders, and no holder of
any series of Preferred Stock, as such, shall be entitled to any
voting powers in respect thereof. Notwithstanding the foregoing,
except as otherwise required by law or this Amended and Restated
Certificate (including a Preferred Stock Designation), the holders
of the Common Stock shall not be entitled to vote on any amendment
to this Amended and Restated Certificate (including any amendment
to any Preferred Stock Designation) that relates solely to the
terms of one or more outstanding series of the Preferred Stock if
the holders of such affected series are entitled, either separately
or together with the holders of one or more other such series, to
vote thereon pursuant to this Amended and Restated Certificate
(including any Preferred Stock Designation) or the
DGCL.
(c) Subject
to applicable law, the rights, if any, of the holders of any
outstanding series of the Preferred Stock and the provisions of
Article IX hereof, the holders of the Common Stock shall be
entitled to receive such dividends and other distributions (payable
in cash, property or capital stock of the Corporation) when, as and
if declared thereon by the Board from time to time out of any
assets or funds of the Corporation legally available therefor, and
shall share equally on a per share basis in such dividends and
distributions.
(d) Subject
to applicable law, the rights, if any, of the holders of any
outstanding series of the Preferred Stock and the provisions of
Article IX hereof, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after
payment or provision for payment of the debts and other liabilities
of the Corporation, the holders of the Common Stock shall be
entitled to receive all the remaining assets of the Corporation
available for distribution to its stockholders, ratably in
proportion to the number of shares of the Common Stock held by
them.
Section
4.4
Rights and Options. The Corporation has the authority to create and
issue rights, warrants and options entitling the holders thereof to
acquire from the Corporation any shares of its capital stock of any
class or classes, with such rights, warrants and options to be
evidenced by or in instrument(s) approved by the Board. The Board
is empowered to set the exercise price, duration, times for
exercise and other terms and conditions of such rights, warrants or
options; provided , however , that the consideration to be received
for any shares of capital stock issuable upon exercise thereof may
not be less than the par value thereof.
ARTICLE V
BOARD OF
DIRECTORS
Section
5.1
Board Powers. The business and affairs of the Corporation shall be
managed by, or under the direction of, the Board. In addition to
the powers and authority expressly conferred upon the Board by
statute, this Amended and Restated Certificate or the Bylaws of the
Corporation (“Bylaws”), the Board is hereby empowered
to exercise all such powers and do all such acts and things as may
be exercised or done by the Corporation, subject, nevertheless, to
the provisions of the DGCL, this Amended and Restated Certificate,
and the Bylaws.
Section
5.2
Number, Election and Term.
(a) The
number of directors of the Corporation shall be fixed from time to
time in the manner provided in the Bylaws.
(b) Subject
to Section 5.5 hereof, the Board shall be divided into two classes,
as nearly equal in number as possible and designated Class I and
Class II. The Board is authorized to assign members of the Board
already in office to Class I or Class II. The term of the initial
Class I Directors shall expire at the first annual meeting of the
stockholders of the Corporation following the effectiveness of this
Amended and Restated Certificate; the term of the initial Class II
Directors shall expire at the second annual meeting of the
stockholders of the Corporation following the effectiveness of this
Amended and Restated Certificate. At each succeeding annual meeting
of the stockholders of the Corporation, beginning with the first
annual meeting of the stockholders of the Corporation following the
effectiveness of this Amended and Restated Certificate, successors
to the class of directors whose term expires at that annual meeting
shall be elected for a two-year term or until the election and
qualification of their respective successors in office, subject to
their earlier death, resignation or removal. Subject to Section 5.5
hereof, if the number of directors is changed, any increase or
decrease shall be apportioned by the Board among the classes so as
to maintain the number of directors in each class as nearly equal
as possible, but in no case shall a decrease in the number of
directors shorten the term of any incumbent director. The Board is
hereby expressly authorized, by resolution or resolutions thereof,
to assign members of the Board already in office to the aforesaid
classes at the time this Amended and Restated Certificate (and
therefore such classification) becomes effective in accordance with
the DGCL.
(c) Subject
to Section 5.5 hereof, a director shall hold office until the
annual meeting for the year in which his or her term expires and
until his or her successor has been elected and qualified, subject,
however, to such director’s earlier death, resignation,
retirement, disqualification or removal.
3
(d) Unless
and except to the extent that the Bylaws shall so require, the
election of directors need not be by written ballot.
Section
5.3
Newly Created Directorships and Vacancies. Subject to Section 5.5
hereof, newly created directorships resulting from an increase in
the number of directors and any vacancies on the Board resulting
from death, resignation, retirement, disqualification, removal or
other cause may be filled solely and exclusively by a majority vote
of the remaining directors then in office, even if less than a
quorum, or by a sole remaining director (and not by stockholders),
and any director so chosen shall hold office for the remainder of
the full term of the class of directors to which the new
directorship was added or in which the vacancy occurred and until
his or her successor has been elected and qualified, subject,
however, to such director’s earlier death, resignation,
retirement, disqualification or removal.
Section
5.4
Removal. Subject to Section 5.5 hereof, any or all of the directors
may be removed from office at any time with cause and only by the
affirmative vote of holders of a majority of the voting power of
all then outstanding shares of capital stock of the Corporation
entitled to vote generally in the election of directors, voting
together as a single class.
Section
5.5
Preferred Stock - Directors. Notwithstanding any other provision of
this Article V, and except as otherwise required by law, whenever
the holders of one or more series of the Preferred Stock shall have
the right, voting separately by class or series, to elect one or
more directors, the term of office, the filling of vacancies, the
removal from office and other features of such directorships shall
be governed by the terms of such series of the Preferred Stock as
set forth in this Amended and Restated Certificate (including any
Preferred Stock Designation) and such directors shall not be
included in any of the classes created pursuant to this Article V
unless expressly provided by such terms.
ARTICLE VI
BYLAWS
In
furtherance and not in limitation of the powers conferred upon it
by law, the Board shall have the power and is expressly authorized
to adopt, amend, alter or repeal the Bylaws. The affirmative vote
of a majority of the Board shall be required to adopt, amend, alter
or repeal the Bylaws. The Bylaws also may be adopted, amended,
altered or repealed by the stockholders; provided, however, that in
addition to any vote of the holders of any class or series of
capital stock of the Corporation required by law or by this Amended
and Restated Certificate (including any Preferred Stock
Designation), the affirmative vote of the holders of at least a
majority of the voting power of all then outstanding shares of
capital stock of the Corporation entitled to vote generally in the
election of directors, voting together as a single class, shall be
required for the stockholders to adopt, amend, alter or repeal the
Bylaws; and provided further, however, that no Bylaws hereafter
adopted by the stockholders shall invalidate any prior act of the
Board that would have been valid if such Bylaws had not been
adopted.
ARTICLE VII
MEETINGS OF
STOCKHOLDERS; ADVANCE NOTICE
Section
7.1
Meetings. Subject to the rights, if any, of the holders of any
outstanding series of the Preferred Stock, and to the requirements
of applicable law, special meetings of stockholders of the
Corporation may be called only by the Chairman of the Board, Chief
Executive Officer of the Corporation, or the Board pursuant to a
resolution adopted by a majority of the Board, and the ability of
the stockholders to call a special meeting is hereby specifically
denied. Except as provided in the foregoing sentence, special
meetings of stockholders may not be called by another person or
persons.
Section
7.2
Advance Notice. Advance notice of stockholder nominations for the
election of directors and of business to be brought by stockholders
before any meeting of the stockholders of the Corporation shall be
given in the manner provided in the Bylaws.
ARTICLE VIII
LIMITED LIABILITY;
INDEMNIFICATION
Section
8.1
Limitation of Director Liability. A director of the Corporation
shall not be personally liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent such exemption from liability or
limitation thereof is not permitted under the DGCL as the same
exists or may hereafter be amended unless they violated their duty
of loyalty to the Company or its stockholders, acted in bad faith,
knowingly or intentionally violated the law, authorized unlawful
payments of dividends, unlawful stock purchases or unlawful
redemptions, or derived improper personal benefit from their
actions as directors. Any amendment, modification or repeal of the
foregoing sentence shall not adversely affect any right or
protection of a director of the Corporation hereunder in respect of
any act or omission occurring prior to the time of such amendment,
modification or repeal.
Section
8.2
Indemnification and Advancement of Expenses.
(a) To
the fullest extent permitted by applicable law, as the same exists
or may hereafter be amended, the Corporation shall indemnify and
hold harmless each person who is or was made a party or is
threatened to be made a party to or is otherwise involved in any
threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (a
“proceeding”) by reason of the fact that he or she is
or was a director or officer of the Corporation or, while a
director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (an “indemnitee”),
whether the basis of such proceeding is alleged action in an
official capacity as a director, officer, employee or agent, or in
any other capacity while serving as a director, officer, employee
or agent, against all liability and loss suffered and expenses
(including, without limitation, attorneys’ fees, judgments,
fines, ERISA excise taxes and penalties and amounts paid in
settlement) reasonably incurred by such indemnitee in connection
with such proceeding. The Corporation shall to the fullest extent
not prohibited by applicable law pay the expenses (including
attorneys’ fees) incurred by an indemnitee in defending or
otherwise participating in any proceeding in advance of its final
disposition; provided , however , that, to the extent required by
applicable law, such payment of expenses in advance of the final
disposition of the proceeding shall be made only upon receipt of an
undertaking, by or on behalf of the indemnitee, to repay all
amounts so advanced if it shall ultimately be determined that the
indemnitee is not entitled to be indemnified under this Section 8.2
or otherwise. The rights to indemnification and advancement of
expenses conferred by this Section 8.2 shall be contract rights and
such rights shall continue as to an indemnitee who has ceased to be
a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators.
Notwithstanding the foregoing provisions of this Section 8.2(a),
except for proceedings to enforce rights to indemnification and
advancement of expenses, the Corporation shall indemnify and
advance expenses to an indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such
proceeding (or part thereof) was authorized by the
Board.
(b) The
rights to indemnification and advancement of expenses conferred on
any indemnitee by this Section 8.2 shall not be exclusive of any
other rights that any indemnitee may have or hereafter acquire
under law, this Amended and Restated Certificate, the Bylaws, an
agreement, vote of stockholders or disinterested directors, or
otherwise.
(c) Any
repeal or amendment of this Section 8.2 by the stockholders of the
Corporation or by changes in law, or the adoption of any other
provision of this Amended and Restated Certificate inconsistent
with this Section 8.2, shall, unless otherwise required by law, be
prospective only (except to the extent such amendment or change in
law permits the Corporation to provide broader indemnification
rights on a retroactive basis than permitted prior thereto), and
shall not in any way diminish or adversely affect any right or
protection existing at the time of such repeal or amendment or
adoption of such inconsistent provision in respect of any
proceeding (regardless of when such proceeding is first threatened,
commenced or completed) arising out of, or related to, any act or
omission occurring prior to such repeal or amendment or adoption of
such inconsistent provision.
(d) This
Section 8.2 shall not limit the right of the Corporation, to the
extent and in the manner authorized or permitted by law, to
indemnify and to advance expenses to persons other than
indemnitees.
ARTICLE IX
BUSINESS
COMBINATION REQUIREMENTS; EXISTENCE
Section
9.1
General. The provisions of this Article IX shall apply during the
period commencing upon the effectiveness of this Amended and
Restated Certificate of Incorporation and terminating upon the
consummation of the Corporation’s initial Business
Combination and may not be amended unless the Corporation provides
dissenting holders of Offering Shares (defined below) with the
opportunity to convert their Offering Shares to cash in accordance
with Section 9.3(b). The target business or target businesses
acquired in the Corporation’s initial Business Combination
must together have a fair market value of at least 80% of the
assets held in the Trust Account (defined below), excluding taxes
payable on the income earned on the Trust Account, at the time of
the signing of the definitive agreement governing the terms of the
initial Business Combination. If the Corporation acquires less than
100% of the equity interests or assets of a Target Business, the
portion of such Target Business that the Corporation acquires is
what will be valued for purposes of the 80% fair market value
test.
The
“fair market value” for purposes of this Article IX
will be determined by the Board based upon one or more standards
generally accepted by the financial community (such as actual and
potential sales, earnings, cash flow and/or book value). If the
Board is unable to independently determine the fair market value of
the target business, the Corporation will obtain an opinion from an
independent investment banking firm, or another independent entity
that commonly renders valuation opinions on the type of target
business the Company is seeking to acquire, with respect to the
satisfaction of such criteria.
Section
9.2
Approval. Prior to the consummation of any Business Combination,
the Corporation shall either (i) submit such Business Combination
to its stockholders for approval (“Proxy Solicitation”)
pursuant to the proxy rules promulgated under the Securities
Exchange Act of 1934, as amended (“Exchange Act”) or
(ii) provide all holders of its Common Stock with the opportunity
to sell their shares to the Corporation, effective upon
consummation of such Business Combination, for cash through a
tender offer (“Tender Offer”) pursuant to the tender
offer rules promulgated under the Exchange Act.
Section
9.3
Proxy Solicitation.
(a) If
the Corporation engages in a Proxy Solicitation in connection with
any proposed Business Combination, the Corporation will consummate
such Business Combination only if a majority of the then
outstanding shares of Common Stock present and entitled to vote at
the meeting to approve the Business Combination are voted for the
approval of such Business Combination.
(b) In
the event that a Business Combination is approved in accordance
with Section 9.3(a) and is consummated by the Corporation, any
holder of shares of Common Stock sold in the Company’s
initial public offering (the “Offering” and the shares
sold in such Offering, the “Offering Shares”) who voted
on the proposal to approve such Business Combination, whether such
holder voted in favor or against such Business Combination, may,
contemporaneously with such vote, demand that the Corporation
convert his Offering Shares into cash. If so demanded, the
Corporation shall, promptly after consummation of the Business
Combination, convert such shares into cash at a per share price
equal to the quotient determined by dividing (i) the amount then
held in the Trust Account including any interest earned on the
funds held in the Trust Account net of interest that may be used by
the Company to pay its franchise and income taxes payable,
calculated as of two business days prior to the consummation of the
Business Combination, by (ii) the total number of Offering Shares
then outstanding (such price being referred to as the
“Conversion Price”). “Trust Account” shall
mean the trust account established by the Corporation at the
consummation of its Offering and into which a certain amount of the
net proceeds of the Offering and a simultaneous private placement
is deposited, all as described in the Registration Statement on
Form S-1 filed with the Securities and Exchange Commission
(“Commission”) in connection with the Offering. The
Corporation may require any holder of Offering Shares who demands
that the Corporation convert such Offering Shares into cash to
either tender such holder’s certificates to the
Corporation’s transfer agent at any time prior to the vote
taken at the stockholder meeting relating to such Business
Combination or to deliver their shares to the transfer agent
electronically using the Depository Trust Company’s DWAC
(Deposit/Withdrawal At Custodian) System at any time prior to the
vote taken at the stockholder meeting relating to such Business
Combination, with the exact timing of the delivery of the Offering
Shares to be set forth in the proxy materials relating to such
Business Combination.
Section
9.4
Tender Offer. If the Corporation engages in a Tender Offer, the
Corporation shall file tender offer documents with the Commission
which will contain substantially the same financial and other
information about the Business Combination as is required under the
proxy rules promulgated under the Exchange Act and that would have
been included in any proxy statement filed with the Commission in
connection with a Proxy Solicitation, even if such information is
not required under the tender offer rules promulgated under the
Exchange Act. The per-share price at which the Corporation will
repurchase the Offering Shares in any such Tender Offer shall be
equal to the Conversion Price. The Corporation shall not purchase
any shares of Common Stock other than Offering Shares in any such
Tender Offer.
Section
9.5
Minimum Assets. The Corporation will not consummate any Business
Combination unless it has net tangible assets of at least
$5,000,001 upon consummation of such Business
Combination.
Section
9.6
Termination. In the event that the Corporation has not consummated
a Business Combination within 12 months from the consummation of
the Offering, the Board of Directors may extend the period of time
to consummate a Business Combination up to two times (the latest
such date being referred to as the “Termination Date”),
each by an additional three months, for an aggregate of six
additional months, providing that (i) for each such extension the
sponsor (or its designees) must deposit into the Trust Account
$500,000 (or up to $575,000 if the underwriters’
over-allotment option is exercised in full) per extension in
exchange for a non-interest bearing, unsecured promissory note, for
maximum aggregate proceeds to the Corporation of $1,000,000 (or up
to $1,150,000 if the underwriters’ over-allotment option is
exercised in full) if two extensions occur and (ii) the procedures
relating to any such extension, as set forth in the Trust
Agreement, shall have been complied with. The gross proceeds from
the issuance of such promissory notes will be added to the proceeds
from the Offering to be held in the Trust Account and shall be used
to fund the redemption of the IPO Shares in accordance with this
Section 9.6. In the event that the Corporation does not consummate
a Business Combination by the Termination Date, the Corporation
shall (i) cease all operations except for the purposes of winding
up, (ii) as promptly as reasonably possible but not more than ten
(10) business days thereafter, redeem 100% of the Offering Shares
for cash for a redemption price per share equal to the amount then
held in the Trust Account, including the interest earned thereon,
less any income or franchise taxes payable, divided by the total
number of Offering Shares then outstanding (which redemption will
completely extinguish such holders’ 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 approval
of the Corporation’s then stockholders and subject to the
requirements of the DGCL, including the adoption of a resolution by
the Board pursuant to Section 275(a) of the DGCL finding the
dissolution of the Corporation advisable and the provision of such
notices as are required by said Section 275(a) of the DGCL,
dissolve and liquidate the balance of the Corporation’s net
assets to its remaining stockholders, as part of the
Corporation’s plan of dissolution and liquidation, subject
(in the case of clauses (ii) and (iii) above) to the
Corporation’s obligations under the DGCL to provide for
claims of creditors and other requirements of applicable
law.
Section
9.7
Distributions from the Trust Account. A holder of Offering Shares
shall be entitled to receive distributions from the Trust Fund only
in the event (i) he demands conversion of his shares in accordance
with Section 9.3(b) in connection with any Proxy Solicitation, (ii)
he sells his shares to the Corporation in accordance with Section
9.4 in connection with any Tender Offer, (iii) that the Corporation
has not consummated a Business Combination by the Termination Date
or (iv) the Corporation seeks to amend the provisions of this
Article IX prior to the consummation of a Business Combination. In
no other circumstances shall a holder of Offering Shares have any
right or interest of any kind in or to the Trust Fund.
Section
9.8
No Transactions with Other Blank Check Companies. Unless and until
the Corporation has consummated its initial Business Combination as
permitted under this Article IX, the Corporation may not consummate
any other business combination transaction, whether by merger,
capital stock exchange, asset acquisition, stock purchase,
reorganization or other similar business combination, transaction
or otherwise.
Section
9.9
Transactions with Affiliates. The Corporation shall not consummate
a Business Combination with an entity that is affiliated with any
of the Corporation’s officers, directors or sponsors or their
respective affiliates unless the Corporation has obtained an
opinion from an independent investment banking firm or another
independent entity that commonly renders valuation opinions on the
type of target business the Company is seeking to acquire that such
a Business Combination is fair to the Company from a financial
point of view and a majority of the Corporation’s
disinterested independent directors approve such Business
Combination.
Section
9.10 Share
Issuances. Prior to a Business Combination, the Board of Directors
may not issue (i) any shares of Common Stock or any securities
convertible into Common Stock; or (ii) any securities which
participate in or are otherwise entitled in any manner to any of
the proceeds in the Trust Account or which vote as a class with the
Common Stock on a Business Combination.
ARTICLE X
FORUM
Section
10.1
Forum. Unless the Corporation consents in writing to the selection
of an alternative forum, the sole and exclusive forum for any
stockholder (including a beneficial owner) to bring (i) any
derivative action or proceeding brought on behalf of the
Corporation, (ii) any action asserting a claim of breach of a
fiduciary duty owed by any director, officer or other employee of
the Corporation to the Corporation or the Corporation’s
stockholders, (iii) any action asserting a claim arising pursuant
to any provision of the DGCL or this Certificate of Incorporation
or the Corporation’s Bylaws, or (iv) any action asserting a
claim governed by the internal affairs doctrine shall be the Court
of Chancery of the State of Delaware (or if the Court of Chancery
does not have jurisdiction, another state court located within the
State of Delaware, or if no state court located within the State of
Delaware has jurisdiction, the federal district court for the
District of Delaware) in all cases subject to the court’s
having personal jurisdiction over the indispensable parties named
as defendants.
Section
10.2
Foreign Action. If any action the subject matter of which is within
the scope of Section 10.1 is filed in a court other than a court
located within the State of Delaware (a “Foreign
Action”) in the name of any stockholder, such stockholder
shall be deemed to have consented to (i) the personal jurisdiction
of the state and federal courts located within the State of
Delaware in connection with any action brought in any such court to
enforce Section 10.1 (an “FSC Enforcement Action”) and
(ii) having service of process made upon such stockholder in any
such FSC Enforcement Action by service upon such
stockholder’s counsel in the Foreign Action as agent for such
stockholder.
Section
10.3
Severability. If any provision or provisions of this Article X
shall be held to be invalid, illegal or unenforceable as applied to
any person or entity or circumstance for any reason whatsoever,
then, to the fullest extent permitted by law, the validity,
legality and enforceability of such provisions in any other
circumstance and of the remaining provisions of this Article X
(including, without limitation, each portion of any sentence of
this Article X containing any such provision held to be invalid,
illegal or unenforceable that is not itself held to be invalid,
illegal or unenforceable) and the application of such provision to
other persons or entities and circumstances shall not in any way be
affected or impaired thereby. Any person or entity purchasing or
otherwise acquiring any interest in shares of capital stock of the
Corporation shall be deemed to have notice of and consented to the
provisions of this Article X.
ARTICLE XI
CORPORATE OPPORTUNITY
The
doctrine of corporate opportunity, or any other analogous doctrine,
shall not apply with respect to the Corporation or any of its
officers or directors, or any of their respective affiliates, in
circumstances where the application of any such doctrine would
conflict with any fiduciary duties or contractual obligations they
may have as of the date of this Amended and Restated Certificate or
in the future.
ARTICLE XII
AMENDMENT
OF AMENDED AND RESTATED
CERTIFICATE OF
INCORPORATION
The
Corporation reserves the right at any time and from time to time to
amend, alter, change or repeal any provision contained in this
Amended and Restated Certificate (including any Preferred Stock
Designation), and other provisions authorized by the laws of the
State of Delaware at the time in force that may be added or
inserted, in the manner now or hereafter prescribed by this Amended
and Restated Certificate and the DGCL; and, except as set forth in
Article VIII, all rights, preferences and privileges of whatever
nature herein conferred upon stockholders, directors or any other
persons by and pursuant to this Amended and Restated Certificate in
its present form or as hereafter amended are granted subject to the
right reserved in this Article XII; provided , however , that
Article IX of this Amended and Restated Certificate may be amended
only as provided therein.
[Signature
Page Follows]
IN
WITNESS WHEREOF, Big Rock Partners Acquisition Corp. has caused
this Amended and Restated Certificate to be duly executed and
acknowledged in its name and on its behalf by an authorized officer
as of the date first set forth above.
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BIG ROCK PARTNERS
ACQUISITION CORP.
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By:
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Name: Richard Ackerman |
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Title:
Chief Executive Officer
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[Signature
Page to Amended and Restated Certificate of
Incorporation]