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AMENDED AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BIG
ROCK PARTNERS ACQUISITION CORP.
November 20, 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 Corporation Trust Center, 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.
ARTICLE IV
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.
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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.
(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.
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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.
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(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.
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(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 funds equal to one percent (1%) of
the gross proceeds of the Offering (including such proceeds from
the exercise of the underwriters’ over-allotment option, if
exercised) per extension in exchange for a non-interest bearing,
unsecured promissory note, for maximum aggregate proceeds to the
Corporation of two percent (2%) of the gross proceeds of the
Offering (including such proceeds from the exercise of the
underwriters’ over-allotment option, if exercised) 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 Offering 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.
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Section
9.7 Distributions from the Trust
Account. A holder of Offering Shares shall be entitled to
receive distributions from the Trust Account 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 Account.
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.
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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]
8
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.
BIG
ROCK PARTNERS ACQUISITION CORP.
By: /s/ Richard
Ackerman
Name:
Richard Ackerman
Title:
Chief Executive Officer
[Signature Page to
Amended and Restated Certificate of Incorporation]