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As filed with the Securities and Exchange Commission on April 16, 2021

Registration No. 333-252479

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 1

to

FORM S-4

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

BIG ROCK PARTNERS ACQUISITION CORP.

(Exact Name of Each Registrant as Specified in its Charter)

 

 

 

Delaware   6770   82-2844431

(State or other jurisdiction of

Incorporation or organization)

 

(Primary standard industrial

classification code number)

 

(I.R.S. Employer

Identification Number)

2645 N. Federal Highway, Suite 230

Delray Beach, FL 33483

(310) 734-2300

(Address, including zip code, and telephone number, including area code, of each registrant’s principal executive offices)

 

 

Richard Ackerman

Big Rock Partners Acquisition Corp.

2645 N. Federal Highway, Suite 230

Delray Beach, FL 33483

(310) 734-2300

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

Copies to:

 

David Alan Miller, Esq.

Jeffrey M. Gallant, Esq.
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 818-8800

 

David S. Huntington, Esq.
David A. Curtiss, Esq.

Paul, Weiss, Rifkind, Wharton & Garrison LLP

1285 Avenue of the Americas

New York, NY 10019

Telephone: 212-373-3000

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective and all other conditions to the transactions contemplated by the Merger Agreement, described in the included proxy statement / prospectus / consent solicitation statement, have been satisfied or waived.

If any of the securities being registered on this form are to be offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box:  ☐

If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer      Accelerated filer  
Non-accelerated filer      Smaller reporting company  
     Emerging growth company  

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:

Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer)  ☐

Exchange Act Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)  ☐

 

 

CALCULATION OF REGISTRATION FEE

 

 

Title of each Class of

Security being registered (5)

 

Amount

being

Registered

 

Proposed

Maximum

Offering Price

Per Security (1)

 

Proposed

Maximum
Aggregate

Offering Price (1)

  Amount of
Registration Fee

Common Stock, par value $0.001 per share (2)

  50,000,000   $35.57   $1,778,250,000.00   $194,007.08

Common Stock, par value $0.001 per share (3)

  25,000,000   $35.57   $889,125,000.00   $97,003.54

Common Stock, par value $0.001 per share (4)

  200,000   $35.57   $7,113,000.00   $776.03

Total

          $2,674,488,000.00   $291,786.64(6)

 

 

(1)

Estimated solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the shares of common stock of Big Rock Partners Acquisition Corp. (“BRPA”) on the Capital Market of The Nasdaq Stock Market LLC on January 26, 2021, in accordance with Rule 457(f)(1) under the Securities Act of 1933, as amended.

(2)

Represents shares of common stock of BRPA, par value $0.001 per share (“Common Stock”), to be issued to the stockholders of NeuroRx, Inc. (“NeuroRx”) upon consummation of the business combination among BRPA and NeuroRx, as described in the proxy statement / prospectus / consent solicitation statement forming a part of this registration statement.

(3)

Represents shares of Common Stock to be issued to the stockholders of NeuroRx upon achievement of certain earnout conditions as described in the proxy statement / prospectus / consent solicitation statement forming a part of this registration statement.

(4)

Represents shares of Common Stock issuable to EarlyBirdCapital, Inc. (“EBC”), the representative of the underwriters of BRPA’s initial public offering, in lieu of the cash fee due to EBC upon the consummation of the business combination.

(5)

Pursuant to Rule 416(a) under the Securities Act, there are also being registered an indeterminable number of additional shares of Common Stock as may be issued to prevent dilution resulting from stock splits, stock dividends, or similar transactions.

(6)

Previously paid.

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


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The information in this preliminary proxy statement / prospectus / consent solicitation statement is not complete and may be changed. We may not issue these securities until the registration statement filed with the Securities and Exchange Commission is effective. This proxy statement / prospectus / consent solicitation statement is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.

 

PRELIMINARY — SUBJECT TO COMPLETION, DATED APRIL 16, 2021

PROXY STATEMENT FOR ANNUAL MEETING OF STOCKHOLDERS

OF

BIG ROCK PARTNERS ACQUISITION CORP.

 

 

PROSPECTUS FOR UP TO 75,200,000 SHARES OF COMMON STOCK

 

 

Big Rock Partners Acquisition Corp., a Delaware corporation (“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. 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”).

Pursuant to the Merger Agreement, the aggregate consideration payable to stockholders of NeuroRx at the effective time of the Merger (the “Effective Time”) consists of 50,000,000 shares (“Closing Consideration”) of BRPA common stock, par value $0.001 per share (“Common Stock”). In addition, the securityholders of NeuroRx (including option holders and warrant holders) who own NeuroRx securities immediately prior to the Closing will receive the contingent right to receive the Earnout Shares and Earnout Cash (each as defined below). At the Effective Time, each outstanding share of NeuroRx common stock, par value $0.001 (“NeuroRx Common Stock”), including shares of NeuroRx Common Stock resulting from the conversion of outstanding shares of NeuroRx preferred stock, par value $0.001 (each, a share of “NeuroRx Preferred Stock”) (as calculated pursuant to the NeuroRx certificate of incorporation), 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 NRX Pharmaceuticals 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.

Pursuant to the terms of the Merger Agreement, NeuroRx’s securityholders (including option holders and warrant holders) who own NeuroRx securities immediately prior to the closing of the Transactions (“Closing”) will have the contingent right to receive their pro rata portion of (i) an aggregate of 25,000,000 shares of Common Stock (“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 (“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”).

Additionally, pursuant to the Merger Agreement, BRPA and EarlyBirdCapital, Inc., the representative of the underwriters of BRPA’s initial public offering (“EBC”), will 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 will 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) will terminate immediately following the Effective Time.


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Accordingly, this proxy statement / prospectus / consent solicitation statement covers an aggregate of 75,200,000 shares of Common Stock issuable to the securityholders of NeuroRx and to EBC as a result of the Transactions.

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 contemplated in this proxy statement / prospectus / consent solicitation statement. 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.

Immediately after the closing of the Merger, NeuroRx’s stockholders will hold approximately 93% of the issued and outstanding shares of Common Stock, the current BRPA stockholders will hold approximately 5% of the issued and outstanding Common Stock, and 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 the BCMA Amendment Agreement, (ii) takes into effect the exchange of each outstanding Right 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 prior to the Closing.

Proposals to approve the Merger Agreement and the other matters discussed in this proxy statement / prospectus / consent solicitation statement will be presented at the annual meeting of BRPA stockholders scheduled to be held on                 , 2021.

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 there can be no assurance such listing condition will be met and we may not receive official notice of approval from Nasdaq prior to the date of the annual meeting of BRPA stockholders. If such listing condition is not met, the Merger will not be consummated unless the listing condition set forth in the Merger Agreement is waived by the parties to the Merger Agreement.

BRPA is an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012, and is therefore eligible to take advantage of certain reduced reporting requirements otherwise applicable to other public companies.

This proxy statement / prospectus / consent solicitation statement provides you with detailed information about the Merger Agreement, the Transactions, and other matters to be considered at the annual meeting of BRPA’s stockholders. We encourage you to carefully read this entire document. You should also carefully consider the risk factors described in the section of this proxy statement / prospectus / consent solicitation statement titled “Risk Factors.”

Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this proxy statement / prospectus / consent solicitation statement. Any representation to the contrary is a criminal offense.

This proxy statement / prospectus / consent solicitation statement is dated                 , 2021 and is first being mailed to BRPA’s stockholders on or about                 , 2021.


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PRELIMINARY — SUBJECT TO COMPLETION, DATED APRIL 16, 2021

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                 , 2021

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 10:00 a.m. local time on                 , 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.             .com/         .

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. 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”).

Further, 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 contemplated in this proxy statement / prospectus / consent solicitation statement. 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.


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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, a copy of which is attached to this proxy statement / prospectus / consent solicitation statement as Annex A, 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.” A copy of the Proposed Charter effectuating the foregoing amendments is attached to this proxy statement / prospectus / consent solicitation statement as Annex B;

 

  (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.” A copy of the Proposed Bylaws effectuating the foregoing amendments is attached to this proxy statement / prospectus / consent solicitation statement as Annex C;

 

  (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.” A copy of the 2021 Plan is attached to this proxy statement / prospectus / consent solicitation statement as Annex D; and


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  (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.

These items of business are described in the attached proxy statement / prospectus / consent solicitation statement, which we encourage you to read in its entirety before voting. Only holders of record of Common Stock at the close of business on                 , 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 described herein.

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 enclosed proxy card 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 will be available for ten days before the annual meeting 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 enclosed proxy card as soon as possible in the envelope provided. 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.

 

By Order of the Board of Directors

/s/ Richard Ackerman

Richard Ackerman
Chairman, President and Chief Executive Officer


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IF YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU WISH TO VOTE, YOUR SHARES WILL BE VOTED IN FAVOR OF EACH OF THE PROPOSALS. 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. SEE “ANNUAL MEETING OF BRPA STOCKHOLDERS — CONVERSION RIGHTS” FOR MORE SPECIFIC INSTRUCTIONS.

This proxy statement / prospectus / consent solicitation statement is dated                 , 2021 and is first being mailed to BRPA’s stockholders on or about                 , 2021.

Important Notice Regarding the Availability of Proxy Materials for the Stockholder Meeting to Be Held on                 , 2021: the proxy statement / prospectus / consent solicitation statement is available at                 .


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LOGO

NeuroRx, Inc.

1201 North Market Street, Suite 111

Wilmington, DE 19801

NOTICE OF SOLICITATION OF WRITTEN CONSENT

To Stockholders of NeuroRx, Inc.:

Pursuant to an Agreement and Plan of Merger, dated as of December 13, 2020 (as it may be amended and/or restated from time to time, the “Merger Agreement”), by and among Big Rock Partners Acquisition Corp., a Delaware corporation (“BRPA”), Big Rock Merger Corp., a Delaware corporation and wholly-owned, direct subsidiary of BRPA (“Merger Sub”), and NeuroRx, Inc. (“NeuroRx”), Merger Sub will merge with and into NeuroRx, with NeuroRx surviving the merger as a wholly owned subsidiary of BRPA (the “Business Combination”).

The accompanying proxy statement / prospectus / consent solicitation statement is being delivered to you on behalf of the NeuroRx board of directors to request that NeuroRx stockholders as of the record date of                 , 2021 (the “NeuroRx Record Date”) approve the adoption of the Merger Agreement and the Business Combination by executing and returning the written consent furnished with the accompanying proxy statement / prospectus / consent solicitation statement (the “NeuroRx Merger Proposal”).

The accompanying proxy statement / prospectus / consent solicitation statement describes the Merger Agreement, the Business Combination and the actions to be taken in connection with the Business Combination and provides additional information about the parties involved. Please give this information your careful attention. A copy of the Merger Agreement is attached as Annex A to the accompanying proxy statement / prospectus / consent solicitation statement.

A summary of the appraisal that may be available to you is described in “Appraisal Rights” beginning on page 286 of the accompanying proxy statement / prospectus / consent solicitation statement. Please note that if you wish to exercise appraisal rights you must not sign and return a written consent approving the adoption of the Merger Agreement and the Business Combination. However, so long as you do not return a written consent at all, it is not necessary to affirmatively vote against or disapprove the adoption of the Merger Agreement or the Business Combination. In addition, you must take all other steps necessary to perfect your appraisal rights.

The NeuroRx board of directors has considered the Business Combination and the terms of the Merger Agreement and unanimously approved and declared advisable the Merger Agreement and the Business Combination, upon the terms and conditions set forth in the Merger Agreement, and unanimously determined that the Merger Agreement and the Business Combination are in the best interests of NeuroRx and its stockholders.

Please complete, date and sign the written consent furnished with the accompanying proxy statement / prospectus / consent solicitation statement and return it promptly to NeuroRx by one of the means described in “NeuroRx’s Solicitation of Written Consents” beginning on page 97 of the accompanying proxy statement / prospectus / consent solicitation statement.

 

By Order of the Board of Directors,

/s/ Jonathan Javitt

Jonathan C. Javitt, MD, MPH

Chairman of the Board of Directors and Chief Executive Officer


Table of Contents

TABLE OF CONTENTS

 

BASIS OF PRESENTATION AND GLOSSARY

     1  

TRADEMARKS, TRADE NAMES AND SERVICE MARKS

     3  

SUMMARY OF THE MATERIAL TERMS OF THE TRANSACTIONS

     4  

QUESTIONS AND ANSWERS ABOUT THE PROPOSALS

     8  

SUMMARY OF THE PROXY STATEMENT / PROSPECTUS / CONSENT SOLICITATION STATEMENT

     22  

SUMMARY HISTORICAL FINANCIAL INFORMATION

     38  

SUMMARY UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

     40  

COMPARATIVE PER SHARE INFORMATION

     41  

RISK FACTORS

     42  

CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

     90  

ANNUAL MEETING OF BRPA STOCKHOLDERS

     91  

NEURORX’S SOLICITATION OF WRITTEN CONSENTS

     97  

PROPOSAL NO. 1 — THE BUSINESS COMBINATION PROPOSAL

     102  

THE MERGER AGREEMENT

     117  

UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

     137  

PROPOSAL NO. 2 — THE CHARTER PROPOSALS

     147  

PROPOSAL NO. 3  BYLAWS PROPOSAL

     150  

PROPOSAL NO. 4 — THE NASDAQ PROPOSALS

     151  

PROPOSAL NO. 5  THE DIRECTOR PROPOSAL

     153  

PROPOSAL NO. 6  THE PLAN PROPOSAL

     156  

PROPOSAL NO. 7  THE ADJOURNMENT PROPOSAL

     162  

OTHER INFORMATION RELATED TO BRPA

     163  

BRPA’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     173  

BENEFICIAL OWNERSHIP OF SECURITIES OF BRPA AND NRX PHARMACEUTICALS

     176  

BUSINESS OF NEURORX

     179  

MANAGEMENT OF NEURORX

     231  

SELECTED HISTORICAL CONSOLIDATED FINANCIAL INFORMATION OF NEURORX

     239  

NEURORX’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

     240  

BENEFICIAL OWNERSHIP OF SECURITIES OF NEURORX

     249  

MANAGEMENT OF NRX PHARMACEUTICALS FOLLOWING THE BUSINESS COMBINATION

     252  

CERTAIN RELATIONSHIPS AND RELATED PARTY TRANSACTIONS

     256  

MATERIAL U.S. FEDERAL INCOME TAX CONSEQUENCES

     261  

COMPARISON OF STOCKHOLDERS’ RIGHTS

     269  

DESCRIPTION OF CAPITAL STOCK OF NRX PHARMACEUTICALS

     281  

APPRAISAL RIGHTS

     286  

STOCKHOLDER PROPOSALS

     290  

 

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OTHER STOCKHOLDER COMMUNICATIONS

     290  

LEGAL MATTERS

     290  

EXPERTS

     290  

DELIVERY OF DOCUMENTS TO STOCKHOLDERS

     291  

WHERE YOU CAN FIND MORE INFORMATION

     291  

INDEX TO FINANCIAL STATEMENTS

     F-1  

 

Annexes

Annex A: Agreement and Plan of Merger

Annex B: Second Amended and Restated Certificate of Incorporation

Annex C: Second Amended and Restated Bylaws

Annex D: 2021 Plan

Annex E: DGCL Section 262

 

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BASIS OF PRESENTATION AND GLOSSARY

As used in this proxy statement / prospectus / consent solicitation statement, unless otherwise noted or the context otherwise requires, references to:

BRAC” are to BRAC Lending Group LLC;

BRPA IPO” are to the initial public offering by BRPA which closed on November 22, 2017;

cGMP” are to current Good Manufacturing Practices;

Code” are to the Internal Revenue Code of 1986, as amended;

Common Stock” are, prior to the completion of the Transactions, to BRPA’s common stock, par value $0.001 per share, and, following completion of the Transactions, to NRX Pharmaceuticals’ common stock, par value $0.001 per share;

DGCL” are to the Delaware General Corporation Law, as amended;

Earnout Cash Milestone” are to the earlier occurrence, in each case prior to December 31, 2022, of (1) FDA approval of the NeuroRx COVID-19 Drug (i.e., ZYESAMI) and the listing of the NeuroRx COVID-19 Drug (i.e., ZYESAMI) in the FDA’s “Orange Book” and (2) 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”;

Earnout Shares Milestone” are to the occurrence, prior to December 31, 2022, of (1) the NeuroRx COVID-19 Drug (i.e., ZYESAMI) receiving emergency use authorization by the FDA and (2) NeuroRx submitting and FDA filing for review a new drug application for the NeuroRx COVID-19 Drug (i.e., ZYESAMI);

Exchange Act” are to the Securities Exchange Act of 1934, as amended;

Fast Track” are to a process designed to facilitate the development, and expedite the review, of drugs to treat serious conditions and fill an unmet medical need under Section 506 of the Federal Food, Drug, and Cosmetic Act;

Founder Shares” are to the shares of Common Stock issued to the Initial Stockholders prior to the BRPA IPO;

GAAP” are to generally accepted accounting principles historically and consistently applied in the United States and as in effect from time to time;

Initial Stockholders” are to the Sponsor and certain officers and directors of BRPA who hold Founder Shares as of the date of this proxy statement / prospectus / consent solicitation statement;

NeuroRx Antidepressant Drug Regimen” are to NRX-100/NRX-101, a single infusion of NRX-100 (ketamine) followed by sequential weeks of daily oral treatment with NRX-101, a proprietary, oral fixed-dose combination capsule of D-cycloserine (“DCS”) and lurasidone;

NeuroRx Common Stock” means the common stock of NeuroRx, par value $0.001 per share;

NeuroRx COVID-19 Drug” refers to ZYESAMI (aviptadil acetate), a reformulation of a drug previously identified as RLF-100 for the treatment of critical COVID-19 with respiratory failure (or similar);

NeuroRx Preferred Stock” means the NeuroRx Series A Preferred Stock, NeuroRx Series B-1 Preferred Stock, NeuroRx Series B-1A Preferred Stock, and NeuroRx Series B-2 Preferred Stock;

NeuroRx Series A Preferred Stock” means the Series A preferred stock of NeuroRx, par value $0.001 per share;

NeuroRx Series B Preferred Stock” means, collectively, the NeuroRx Series B-1 Preferred Stock, the NeuroRx Series B-1A Preferred Stock and the NeuroRx Series B-2 Preferred Stock;

 

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NeuroRx Series B-1 Preferred Stock” means the Series B-1 preferred stock of NeuroRx, par value $0.001 per share;

NeuroRx Series B-1A Preferred Stock” means the Series B-1A preferred stock of NeuroRx, par value $0.001 per share;

NeuroRx Series B-2 Preferred Stock” means the Series B-2 preferred stock of NeuroRx, par value $0.001 per share;

NRX Pharmaceuticals” are to NRX Pharmaceuticals, Inc., a Delaware corporation, which is the same corporate entity as BRPA following the name change occurring as part of the Transactions;

private placement Units” are to BRPA’s Units issued to the Sponsor in a private placement simultaneously with the closing of the BRPA IPO;

Public Shares” are to shares of Common Stock sold as part of the units in the BRPA IPO (whether they were purchased in the BRPA IPO or thereafter in the open market);

public stockholders” are to the holders of BRPA’s Public Shares, not including the holders of Founders Shares;

public warrants” are to BRPA’s warrants sold as part of the units in the BRPA IPO (whether they were purchased in the BRPA IPO or thereafter in the open market);

Rights” are to the rights, each exchangeable for one-tenth of one share of Common Stock following the consummation of the Business Combination;

SEC” are to the Securities and Exchange Commission;

Securities Act” are to the Securities Act of 1933, as amended;

Sponsor” are to Big Rock Partners Sponsor, LLC, a Delaware limited liability company;

Sponsor Agreement” are to the Sponsor Agreement, to be entered into on or prior to the Closing Date by and among BRPA, the Sponsor, and BRAC; and

Warrants” are to the warrants exercisable to purchase Common Stock;

Unless specified otherwise, amounts in this proxy statement / prospectus / consent solicitation statement are presented in U.S. dollars.

Defined terms in the financial statements contained in this proxy statement / prospectus / consent solicitation statement have the meanings ascribed to them in the financial statements.

 

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TRADEMARKS, TRADE NAMES AND SERVICE MARKS

BRPA, NeuroRx and their respective subsidiaries own or have rights to, and NRX Pharmaceuticals will own or have rights to, trademarks, trade names and service marks, including ZYESAMI and RLF-100, that they use in connection with the operation of their business. In addition, their names, logos and website names and addresses are their trademarks or service marks. Other trademarks, trade names and service marks appearing in this proxy statement / prospectus / consent solicitation statement are the property of their respective owners. Solely for convenience, in some cases, the trademarks, trade names and service marks referred to in this proxy statement / prospectus / consent solicitation statement are listed without the applicable ®, and SM symbols, but they will assert, to the fullest extent under applicable law, their rights to these trademarks, trade names and service marks.

 

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SUMMARY OF THE MATERIAL TERMS OF THE TRANSACTIONS

 

   

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. See the section titled “The Merger Agreement” for more information.

 

   

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 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 the NeuroRx Antidepressant Drug Regimen, an FDA Breakthrough Therapy-designated, investigational, precommercial drug for treating bipolar depression in patients with acute suicidal ideation and behavior.

 

   

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 at the Closing, before satisfaction of the Earnout Milestones. 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. 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 the Earnout Shares Milestone is met prior to December 31, 2022, and (ii) an aggregate of $100,000,000 in cash (the “Earnout Cash”) if the Earnout Cash Milestone is met prior to December 31, 2022. 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 (collectively, the “Merger Consideration”). 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. See the section titled “The Business Combination Proposal — Structure of the Transactions” for more information.

 

   

Immediately after the Closing, NeuroRx’s stockholders will hold approximately 93% of the issued and outstanding Common Stock, the current stockholders of BRPA will hold approximately 5% of the issued and outstanding Common Stock, and 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 the BCMA Amendment Agreement, (ii) takes into effect the exchange of each outstanding Right 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. See the section titled “The Business Combination Proposal — Structure of the Transactions” for more information.

 

   

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

 

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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 the NeuroRx Stockholder Approval in order to enter into a definitive agreement with respect to a Superior Proposal (as defined herein), 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. See the section titled “The Merger Agreement — Termination” for more information.

 

   

In connection with the Merger, on March 12, 2021 BRPA entered into Subscription Agreements with 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. See the sections titled “The Business Combination Proposal – Ancillary Agreements” and “The Nasdaq Proposals” for more information.

 

   

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 contemplated in this proxy statement / prospectus / consent solicitation statement. 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. See the section titled “The Business Combination Proposal—Structure of the Transactions—GEM Share Subscription Facility and Warrant.”

 

   

In addition to voting on the business combination proposal, the stockholders of BRPA will vote on the charter proposals, the bylaws proposal, the Nasdaq proposals, the director proposal, the plan proposal and, if necessary, the adjournment proposal. See the sections titled “The Charter Proposals,” “The Bylaws Proposal,” “The Nasdaq Proposals,” “The Director Proposal,” ”The Plan Proposal” and ”The Adjournment Proposal.”

 

   

Upon the completion of the Transactions, the current directors of BRPA will resign from such positions and, pursuant to the terms of the Merger Agreement, BRPA has agreed to nominate the following persons to serve as the initial directors of NRX Pharmaceuticals upon the consummation of the Transactions: Jonathan C. Javitt (NeuroRx’s founder, Chairman and Chief Executive Officer, who will serve as Chairman of the Board of directors following consummation of the Transactions), Daniel E. Troy, Patrick Flynn, Aaron Gorovitz, Hon. Sherry Glied and Chaim Hurvitz, each current directors of NeuroRx (collectively, the “director nominees”). See the section titled “The Director Proposal” for more information.

 

   

Upon the completion of the Transactions, the current officers of BRPA will resign from such positions and the executive officers of NRX Pharmaceuticals following the consummation of the Transactions will include Jonathan C. Javitt as Chief Executive Officer, William Fricker as Chief Financial Officer and Treasurer, Robert Besthof as Chief Commercial and Patient Officer and Head of Operations, and Alessandra Daigneault as General Counsel and Secretary, as further described under “The Director Proposal — Director Nominees” and “Management of NeuroRx— Executive Officers and Directors.”

 

   

Pursuant to the Merger Agreement, stockholders of NeuroRx holding an aggregate of approximately 63% of NeuroRx’s outstanding common stock will enter into a lock-up agreement with BRPA with respect to the Closing Consideration issuable to them in the Transactions. The Merger Agreement provides that such shares of Common Stock will be subject to transfer restrictions 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

 

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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. See “The Business Combination Proposal — Ancillary Agreements.

 

   

On or prior to the Closing Date, 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. See “The Business Combination Proposal — Ancillary Agreements.

 

   

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. See “The Business Combination Proposal — Ancillary Agreements.

 

   

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 NRX Pharmaceuticals 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. See “The Business Combination Proposal — Ancillary Agreements.

 

   

On or prior to the Closing Date, BRPA, NeuroRx, certain BRPA stockholders and certain NeuroRx stockholders will enter into a registration rights agreement (the “Registration Rights Agreement”), pursuant to which they will be granted certain rights to have registered, in certain circumstances, the resale under the Securities Act, of their securities of BRPA, subject to certain conditions set forth therein. See “The Business Combination Proposal — Ancillary Agreements.

 

   

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

 

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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. See “Risk Factors—Risks Related to the Business Combination—BRPA’s securities may be delisted prior to the consummation of the business combination.”

 

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QUESTIONS AND ANSWERS ABOUT THE PROPOSALS

 

Q.   Why am I receiving this proxy statement / prospectus / consent solicitation statement?

  

A. BRPA and NeuroRx have agreed to a business combination under the terms of the Merger Agreement that is described in this proxy statement / prospectus / consent solicitation statement. A copy of the Merger Agreement is attached to this proxy statement / prospectus / consent solicitation statement as Annex A, and BRPA and NeuroRx encourage their respective stockholders to read it in its entirety.

 

BRPA’s stockholders are being asked to consider and vote upon the matters to be considered at the annual meeting, which consist of the business combination proposal, the charter proposals, the bylaws proposal, the Nasdaq proposals, the director proposal, the plan proposal and, if necessary, the adjournment proposal:

 

•  The Business Combination Proposal — a proposal to approve and adopt the Merger Agreement, a copy of which is attached to this proxy statement / prospectus / consent solicitation statement as Annex A, and the transactions contemplated therein, including the Merger. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposal.

 

•  The Charter Proposals — a series of proposals to approve amendments to the Charter, which amendments will be effective following the consummation of the Transactions and are 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. A copy of the Proposed Charter is attached hereto as Annex B. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Charter Proposals.

 

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•  The Bylaws Proposal — a proposal to approve amendments to the 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. A copy of the Proposed Bylaws effectuating the foregoing amendments is attached to this proxy statement / prospectus / consent solicitation statement as Annex C. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Bylaws Proposal.

 

•  The Nasdaq Proposals — 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. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Nasdaq Proposals.

 

•  The Director Proposal — 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. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Director Proposal.

 

•  The Plan Proposal — a proposal to approve the adoption of the 2021 Plan. A copy of the 2021 Plan is attached hereto as Annex D. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Plan Proposal.

 

•  The Adjournment Proposal — 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. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Adjournment Proposal.

 

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BRPA will hold the annual meeting of its stockholders to consider and vote upon the foregoing proposals. The vote of BRPA stockholders is important. BRPA stockholders are encouraged to vote as soon as possible after carefully reviewing this proxy statement / prospectus / consent solicitation statement.

  

 

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 described herein.

 

NeuroRx is also providing these consent solicitation materials to the holders of NeuroRx Common Stock and NeuroRx Preferred Stock in order to approve the adoption of the Merger Agreement and approve the Merger and the other Transactions contemplated by the Merger Agreement by executing and returning the written consent furnished with the accompanying proxy statement / prospectus / consent solicitation statement.

 

  

 

 

Stockholders of NeuroRx are entitled to sign and return the NeuroRx written consent to adopt the Merger Agreement and approve the Merger and the other Transactions contemplated by the Merger Agreement. This document serves as a consent solicitation statement of NeuroRx used to solicit the written consent of NeuroRx stockholders.

 

Q.   Why is BRPA proposing the business combination?

  

A. BRPA was organized to effect a merger, capital stock exchange, asset acquisition or other similar business combination with one or more businesses or entities.

 

On November 22, 2017, BRPA consummated its initial public offering of 6,000,000 units (“Units”), each Unit consisting of one share of Common Stock, one right (“Right”) entitling the holder thereof to receive one-tenth (1/10) of one share of Common Stock upon the consummation of an initial business combination, and one-half of one warrant (“Warrant”), each whole Warrant exercisable to purchase one share of Common Stock at an exercise price of $11.50 per share. On November 28, 2017, the underwriters of BRPA’s initial public offering exercised their over-allotment option in full and on November 28, 2017, BRPA consummated the sale of an additional 900,000 Units. Simultaneously with the closing of the initial public offering and the over-allotment option, BRPA consummated the private placement of an aggregate of 272,500 Units. A total of $69,000,000 of the net proceeds from the initial public offering and private placement was deposited in a trust account established for the benefit of BRPA’s public stockholders. Since the completion of the initial public offering, BRPA’s activity has been limited to the evaluation of business combination candidates.

 

Like most blank check companies, BRPA’s Charter provided for the return of the proceeds of BRPA’s initial public offering held in the trust account to the holders of Public Shares if there was no

 

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qualifying business combination(s) consummated on or before a certain date (in BRPA’s case, May 22, 2019).

 

BRPA was unable to complete its initial business combination by the May 22, 2019 deadline. As a result, BRPA sought a series of amendments to the Charter to extend the time within which BRPA would have to complete its initial business combination. Accordingly, BRPA’s Charter, as amended, currently provides that it will have until April 23, 2021 to complete a business combination. On April 1, 2021, BRPA filed a definitive proxy statement seeking approval

  

from its stockholders at a special meeting to be held on April 21, 2021 to extend the date by which BRPA is required to complete its initial business combination to May 24, 2021. In connection with these amendments, BRPA offered public stockholders the right to have their Public Shares converted into a pro rata portion of the trust account. Accordingly, as of the record date, BRPA has approximately $6.0 million of cash in the trust account.

 

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 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 the NeuroRx Antidepressant Drug Regimen. Based on its due diligence investigations of NeuroRx, including the financial and other information provided by NeuroRx in the course of their negotiations, BRPA believes that a business combination with NeuroRx will provide several significant benefits to both BRPA and NeuroRx. However, there is no assurance of this. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposal BRPA’s Board of Directors’ Reasons for Approval of the Transactions.”

 

Q.   I hold BRPA Warrants. Why am I receiving this proxy statement / prospectus / consent solicitation statement?

  

A. As a holder of Warrants, upon consummation of the Transactions, you will be entitled to purchase one share of Common Stock at a purchase price of $11.50 per share. This proxy statement / prospectus / consent solicitation statement includes important information about NeuroRx and the business of BRPA and NeuroRx following consummation of the Transactions. Since holders of Warrants may exercise these Warrants and become holders of Common Stock after the consummation of the Transactions, we urge you to read the information contained in this proxy statement / prospectus / consent solicitation statement carefully.

 

 

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Q.   I hold BRPA Rights. Why am I receiving this proxy statement / prospectus / consent solicitation statement?

  

A. Each outstanding Right will be exchanged for one-tenth of one share of Common Stock upon consummation of the Transactions. This proxy statement / prospectus / consent solicitation statement includes important information about NeuroRx and the business of BRPA and NeuroRx following consummation of the Transactions. Since holders of Rights will become holders of Common Stock after the consummation of the Transactions, we urge you to read the information contained in this proxy statement / prospectus / consent solicitation statement carefully.

 

Q.   I am a BRPA stockholder. Do I have conversion rights?

  

A. If you are a holder of Public Shares, you have the right to demand that BRPA convert such shares into cash notwithstanding whether you vote for or against the business combination proposal or do not vote at all or whether you are a stockholder of record on the record date. We sometimes refer to these rights to demand conversion of the Public Shares into a pro rata portion of the cash held in BRPA’s trust account as “conversion rights.”

 

Under the Charter, the Transactions may only be consummated if BRPA has at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act). If the exercise by public stockholders of their conversion rights would cause BRPA to fail to meet this net tangible assets test, then the Transactions would not be consummated. This condition to closing 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. See NeuroRx’s pro forma combined financial information included elsewhere in this proxy statement / prospectus / consent solicitation statement.

 

Q.   How do I exercise my conversion rights as a BRPA stockholder?

  

A. If you are a holder of Public Shares and wish to exercise your conversion rights, you must demand that BRPA convert your shares to cash and deliver your shares to BRPA’s transfer agent physically or electronically using Depository Trust Company’s DWAC (Deposit Withdrawal at Custodian) System no later than two business days prior to the vote at the meeting. Any holder of Public Shares will be entitled to demand that his, her, or its shares be converted for a full pro rata portion of the amount then in the trust account (which was approximately $6.0 million, or approximately $         per share, as of                 , 2021, the record date), regardless of whether such holder votes in connection with the business combination proposal or is a holder of record on the record date. Such amount, less any owed but unpaid taxes on the funds in the trust account, will be paid promptly after consummation of the Transactions.

 

Any request for conversion, once made by a holder of Public Shares, may be withdrawn at any time up to the closing of the business combination. If you deliver your shares for conversion to BRPA’s transfer agent and later decide prior to the closing of the business combination not to elect conversion, you may request that BRPA’s transfer agent return the shares (physically or

 

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electronically). You may make such request by contacting BRPA’s transfer agent at the address listed at the end of this section.

 

If a holder of Public Shares properly demands conversion as described above, then, if the Transactions are consummated, BRPA will convert these shares into a pro rata portion of funds deposited in the trust account. If you exercise your conversion rights, then you will be exchanging your Common Stock for cash and will no longer be a common stockholder of BRPA upon consummation of the Transactions.

 

If you are a holder of Public Shares and you exercise your conversion rights, it will not result in the loss of any Warrants or Rights that you may hold.

 

Q.   What happens to the funds deposited in the trust account after consummation of the Transactions?

  

A. After consummation of the Transactions, the funds then held in the trust account will be released and distributed as follows: (i) first, to pay holders of the Public Shares who exercise conversion rights, (ii) second, to pay tax obligations that BRPA incurred prior to Closing, (iii) third, to repay certain transaction expenses of BRPA and NeuroRx, (iv) fourth, to reimburse expenses paid by directors, officers and stockholders of BRPA, (v) fifth, to repay certain loans made to BRPA if the amount of available funds after payment to converting stockholders exceeds $5,000,001, and (vi) sixth, to NRX Pharmaceuticals the remaining balance of the assets in the trust account, if any, after payment of the amounts required under the foregoing clauses (i) — (v). Additionally, NRX Pharmaceuticals will receive the net proceeds of the PIPE and any other financing of BRPA or for the benefit of BRPA.

 

Q.   What happens if a substantial number of public stockholders vote in favor of the business combination proposal and exercise their conversion rights?

  

A. BRPA’s public stockholders may vote in favor of the business combination and still exercise their conversion rights. Accordingly, the business combination may be consummated even though the funds available from the trust account and the number of public

stockholders are substantially reduced as a result of conversions by public stockholders. With fewer Public Shares and public stockholders, the trading market for the Common Stock after the Transactions may be less liquid than the market for the Common Stock was prior to the Transactions and BRPA may not be able to meet Nasdaq’s listing standards. In addition, with fewer funds available from the trust account, the working capital infusion from the trust account into NeuroRx’s business will be reduced. See “Risk Factors” for more details.

 

Q.   What happens if the Transactions are not consummated?

  

A. If BRPA does not complete the Transactions with NeuroRx or consummate another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension), it will trigger BRPA’s automatic winding up, dissolution and liquidation pursuant to the terms of the Charter. There is no limit on the number of extensions of time to complete a business combination that BRPA may take (although NeuroRx would have the right to terminate the Merger Agreement if the Transactions are not consummated on or before May 24, 2021).

 

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At the BRPA stockholder meeting held on December 18, 2020, BRPA’s stockholders approved an early termination proposal. Accordingly, if BRPA does not complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, the board of directors will be able to determine in its sole discretion to cease efforts to consummate an initial business combination and to instead proceed to redeem 100% of the outstanding Public Shares and liquidate and dissolve BRPA.

 

Q.   Do I have appraisal’s rights if I object to the proposed Transactions?

  

A. BRPA stockholders, warrant holders, and right holders do not have appraisal rights in connection with the Transactions under the General Corporation Law of the State of Delaware (“DGCL”).

 

The NeuroRx stockholders are entitled to appraisal rights in connection with the Merger under the DGCL. For more information about such rights, see the section titled “Appraisal Rights.”

 

Q.   When do you expect the Transactions to be completed?

  

 

A. It is currently anticipated that the Transactions will be consummated promptly following the completion of the annual meeting, which is scheduled for                 , 2021, and any postponements or adjournments thereof. For a description of the conditions for the completion of the Transactions, see the section of this proxy statement / prospectus / consent solicitation statement titled “The Merger Agreement — Conditions to Closing.”

 

Q.   Why is BRPA proposing the Nasdaq proposals?

  

A. BRPA is seeking stockholder approval of a series of 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 order to comply with Nasdaq Listing Rule 5635. See “The Nasdaq Proposals” for more information.

 

Q.   What do I need to do now?

  

A. BRPA and NeuroRx urge you to read carefully and consider the information contained in this proxy statement / prospectus / consent solicitation statement, including the annexes, and to consider how the Transactions will affect you as a holder of Common Stock, Rights, and/or Warrants of BRPA or as a securityholder of NeuroRx, as applicable.

 

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If you are a BRPA stockholder, you should then vote as soon as possible in accordance with the instructions provided in this proxy statement / prospectus / consent solicitation statement and on the enclosed proxy card.

 

If you are a NeuroRx stockholder, you should execute and return your written consent to NeuroRx as soon as possible in accordance with the instructions provided herewith.

 

Q.   I am a BRPA stockholder.
How do I vote my shares of Common Stock?

  

A. If you are a holder of record of shares of Common Stock on the record date, you may vote virtually via the live audio webcast of the annual meeting or by submitting a proxy for the annual meeting. You may submit your proxy by completing, signing, dating and returning the enclosed proxy card in the accompanying pre-addressed postage paid envelope. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or nominee, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the broker, bank or nominee with instructions on how to vote your shares or, if you wish to attend the meeting and vote during the webcast, obtain a proxy from your broker, bank or nominee.

 

Q.   If my shares of Common Stock are held in “street name,” will my broker, bank or nominee automatically vote my shares for me?

  

A. Your broker, bank or nominee can vote your shares without receiving your instructions on “routine” proposals only. Your broker, bank or nominee cannot vote your shares with respect to “non-routine” proposals unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank or nominee.

 

The adjournment proposal and the charter proposal to change the name of BRPA from “Big Rock Partners Acquisition Corp.” to “NRX Pharmaceuticals, Inc.” are each considered a routine proposal. Accordingly, your broker, bank or nominee may vote your shares with respect to such proposals without receiving voting instructions.

 

The business combination proposal, each other charter proposal, the bylaws proposal, each of the Nasdaq proposals and the director proposal are non-routine proposals. Accordingly, your broker, bank or nominee may not vote your shares with respect to these proposals unless you provide voting instructions.

 

Q.   I am a BRPA stockholder.
May I change my vote after I have mailed my signed proxy card or given instructions to my broker, bank or other nominee?

  

A. Yes. Stockholders of record may send a later-dated, signed proxy card to BRPA’s secretary at the address set forth below so that it is received prior to the vote at the annual meeting or attend the annual meeting and vote during the live audio webcast. Stockholders of record also may revoke their proxy by sending a notice of revocation to BRPA’s secretary, which must be received by BRPA’s secretary prior to the vote at the annual meeting. Stockholders who hold their shares in “street name” must follow the instructions provided by their broker, bank or other nominee in order to change or revoke their voting instructions.

 

 

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Q.   I am a BRPA stockholder. When and where will the annual meeting take place?

  

A. The annual meeting will be held on             , 2021, at          eastern time, solely over the internet by means of a live audio webcast. You may attend and participate in the annual meeting webcast by accessing the meeting web portal located at https://www.            .com/         and following the instructions set forth below. Stockholders participating in the annual meeting will be able to listen only and will not be able to speak during the annual meeting webcast. However, in order to maintain the interactive nature of the annual meeting, virtual attendees will be able to:

 

•  vote via the meeting web portal during the annual meeting webcast; and

 

•  submit questions to BRPA’s directors and officers during the annual meeting via the web portal.

 

Q.   I am a BRPA stockholder.
How do I attend the annual meeting in person?

  

A. 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. Any stockholder wishing to attend the annual meeting through the meeting web portal must register in advance. To register for and attend the annual meeting, please follow these instructions as applicable to the nature of your ownership of Common Stock:

 

•  Shares Held of Record. If you are a record holder, and you wish to attend the virtual annual meeting, go to https://www.            .com/         , enter the control number you received on your proxy card or notice of the meeting and click on the “Click here to preregister for the online meeting” link at the top of the page. Immediately prior to the start of the annual meeting, you will need to log back into the meeting site using your control number. You must register before the meeting starts.

 

•  Shares Held in Street Name. If you hold your shares in “street” name, which means your shares are held of record by a broker, bank or nominee, and you who wish to attend the virtual annual meeting, you must obtain a legal proxy from the stockholder of record and e-mail a copy (a legible photograph is sufficient) of your proxy to proxy@continentalstock.com. Holders should contact their bank, broker or other nominee for instructions regarding obtaining a proxy. Holders who e-mail a valid legal proxy will be issued a meeting control number that will allow them to register to attend and participate in the annual meeting. You will receive an e-mail prior to the meeting with a link and instructions for entering the annual meeting. “Street” name holders should contact Continental Stock Transfer on or before          , 2021.

 

Q.   I am a BRPA securityholder.
What happens if I fail to take any action with respect to the annual meeting?

  

A. If you are a BRPA securityholder and you fail to take any action with respect to the annual meeting and the Transactions are approved by BRPA’s stockholders and consummated, you will continue to hold shares of Common Stock and/or Warrants of BRPA and any Rights you hold will automatically be exchanged for shares of Common Stock in accordance with their terms. As a corollary, failure to deliver your

 

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stock certificate(s) to BRPA’s transfer agent (either physically or electronically) no later than two (2) business days prior to the annual meeting means you will not have any right in connection with the Transactions to exchange your shares for a pro rata share of the funds held in BRPA’s trust account. If you fail to take any action with respect to the meeting and the Transactions are not approved, you will continue to be a securityholder of BRPA.

 

Q.   I am a BRPA securityholder.
What should I do with my Common Stock, Warrant, or Rights certificates?

  

A. Holders of BRPA Warrants and Rights, and those holders of Common Stock who do not wish to exercise their conversion rights do not need to submit their certificates. BRPA public stockholders who exercise their conversion rights must deliver their Common Stock certificates to BRPA’s transfer agent (either physically or electronically) no later than two (2) business days prior to the annual meeting in order to properly demand conversion rights.

 

Q.   I am a BRPA stockholder.
What should I do if I receive more than one set of voting materials?

  

A. BRPA stockholders may receive more than one set of voting materials, including multiple copies of this proxy statement / prospectus / consent solicitation statement. For example, if you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. If you hold your shares in more than one brokerage account, you will receive voting materials for each brokerage account in which you hold shares. Please complete, sign, date and return each proxy card you receive and provide instructions on how to vote your shares with respect to each brokerage account for which you receive proxy materials, in order to be sure you cast a vote with respect to all of your Common Stock.

 

Q.   I am a NeuroRx stockholder. What am I being asked to approve?

  

A. Holders of NeuroRx Common Stock, holders of NeuroRx Series A Preferred Stock and holders of NeuroRx Series B Preferred Stock are being asked to adopt and approve the Merger Agreement and the transactions contemplated thereby (the “NeuroRx Merger Proposal”)

 

Q.   I am a NeuroRx stockholder. What consideration will I receive in the Transactions?

  

A. 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. See “The Business Combination Proposal — Structure of the Transactions” for a more complete description of the consideration that the NeuroRx securityholders will receive in the Transactions.

 

 

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Q.   I am a NeuroRx stockholder. How does the board of directors of NeuroRx recommend that I vote?

 

  

A. After careful consideration, the NeuroRx board of directors unanimously recommends that the NeuroRx stockholders approve the NeuroRx Merger Proposal.

 

Q.   I am a NeuroRx stockholder. Do any of NeuroRx’s directors or officers have an interest in the business combination that may differ from or be in addition to the interests of NeuroRx stockholders?

  

A. Yes. NeuroRx stockholders should be aware that some of NeuroRx’s directors and executive officers have interests in the transaction that may be different from, or in addition to, the interests of NeuroRx’s stockholders generally. The NeuroRx board of directors was aware of and considered these interests, among other matters, in deciding to approve the terms of the Merger Agreement and the Business Combination. See “The Business Combination — Interests of NeuroRx’s Directors and Executive Officers in the Transactions.”

 

Q.   Who is entitled to give a written consent for NeuroRx?

  

A. The record date for determining the holders of NeuroRx capital stock entitled to execute and deliver written consents with respect to this solicitation is                     , 2021 (the “NeuroRx Record Date”).

Holders of NeuroRx capital stock on the NeuroRx Record Date will be entitled to give or withhold a consent using the written consent furnished with this proxy statement / prospectus / consent solicitation statement.

 

Q.   What approval is required by NeuroRx stockholders to adopt the Merger Agreement?

  

A. The approval of the NeuroRx Merger Proposal requires the affirmative vote or consent of (a) the holders of a majority of the voting power of the outstanding shares of NeuroRx Common Stock and NeuroRx Preferred Stock (on an as-converted to NeuroRx Common Stock basis) voting together as a single class, (b) two-thirds of the voting power of the outstanding shares of NeuroRx Series A Preferred Stock, voting as a separate class and (c) two-thirds of the voting power of the outstanding shares of NeuroRx Series B Preferred Stock, voting as a separate class (the “NeuroRx Stockholder Approval”).

 

On or prior to January 14, 2021, the Supporting NeuroRx Stockholders (as defined herein), BRPA and Merger Sub entered into the Support Agreements (as defined herein). Each Support Agreement provides, among other things, that on (or effective as of) the tenth calendar day following the date that this 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 Business Combination. The shares of NeuroRx capital stock that are owned by the Supporting NeuroRx Stockholders and subject to the Support Agreements represent approximately     % of the outstanding shares of NeuroRx Common Stock and approximately     % 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

 

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NeuroRx Stockholders will constitute the NeuroRx Stockholder Approval at the time of such delivery.

 

Q.   I am a NeuroRx stockholder. How can I return my written consent?

  

A. If you hold shares of NeuroRx capital stock as of the close of business on the NeuroRx Record Date and you wish to give your written consent, you must fill out the enclosed written consent, date and sign it, and promptly return it to NeuroRx. Once you have completed, dated and signed the written consent, you may deliver it to NeuroRx by emailing a .pdf copy to investor@nrxpharma.com or by mailing your written consent to NeuroRx, Inc., 1201 North Market Street, Suite 111 in Wilmington, Delaware 19801, Attention: Corporate Secretary (however, in light of the ongoing COVID-19 pandemic, delivery via email is preferable). NeuroRx will not call or convene any meeting of its stockholders in connection with the approval of the NeuroRx Merger Proposal. NeuroRx stockholders should not send stock certificates with their written consents.

 

Q.   I am a NeuroRx stockholder. What happens if I do not return my written consent?

  

A. If you hold shares of NeuroRx capital stock as of the NeuroRx Record Date and you do not return your written consent, it will have the same effect as a vote against the NeuroRx Merger Proposal. However, each Support Agreement provides, among other things, that on (or effective as of) the tenth calendar day following the date that this 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 Business Combination. 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. Therefore, a failure of any other NeuroRx stockholder to deliver a written consent is not expected to have any effect on the approval of the NeuroRx Merger Proposal.

 

Q.   I am a NeuroRx stockholder. What happens if I return my written consent but I do not indicate a decision with respect to the proposals?

 

  

A. If you hold shares of NeuroRx capital stock as of the NeuroRx Record Date and you return a signed written consent without indicating your decision on the NeuroRx Merger Proposal, you will have given your consent to approve such proposal.

 

Q.   I am a NeuroRx stockholder. What is the deadline for returning my written consent?

  

A. The NeuroRx board of directors has set         as the targeted final date for receipt of written consents (such date, as it may be extended in accordance with the next sentence, the “consent deadline”). NeuroRx reserves the right to extend the consent deadline beyond         . Any such extension may be made without notice to NeuroRx stockholders.

 

Q.   I am a NeuroRx stockholder. Can I change or revoke my written consent?

  

A. Yes. You may change or revoke your consent to either of the proposals at any time before the consent deadline; however, such change or revocation is not expected to have any effect, as the delivery of the written consents contemplated by the Support

 

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Agreement will constitute the NeuroRx Stockholder Approval at the time of such delivery. If you wish to change or revoke your consent before the consent deadline, you may do so by sending in a new written consent with a later date by one of the means described in the section entitled “NeuroRx’s Solicitation of Written Consents — Submission of Written Consents.”

 

Q.   I am a NeuroRx securityholder. What do I need to do now?

  

A. NeuroRx urges you to read carefully and consider the information contained in this proxy statement / prospectus / consent solicitation statement, including the Annexes and the other documents referred to herein, and to consider how the Business Combination will affect you as a stockholder of NeuroRx. Once the registration statement of which this proxy statement / prospectus / consent solicitation statement forms a part has been declared effective by the SEC, NeuroRx will solicit your written consent. The NeuroRx board of directors unanimously recommends that all NeuroRx stockholders approve the NeuroRx Merger Proposal by executing and returning to NeuroRx the written consent furnished with this proxy statement

/ prospectus / consent solicitation statement as soon as possible and no later than the consent deadline.

 

Q.   I am a NeuroRx stockholder. What will happen to my existing shares of NeuroRx capital stock in the business combination?

  

A. At the effective time of the Business Combination, your shares of NeuroRx capital stock will no longer represent an ownership interest in NeuroRx. Each share of NeuroRx Series A Preferred Stock and NeuroRx Series B Preferred Stock will be converted into a number of shares of NeuroRx Common Stock at the then-effective conversion rate (as calculated pursuant to the NeuroRx certificate of incorporation) in accordance with the NeuroRx certificate of incorporation, and then each share of NeuroRx Common Stock issued and outstanding immediately prior to the effective time (including the shares issued upon conversion of the Series A Preferred Stock and NeuroRx Series B Preferred Stock described above, but in each case other than any cancelled shares or dissenting shares) will be cancelled and automatically converted into the right to receive the applicable portion of the Merger Consideration and any dividends or other distributions on shares of Common Stock payable in accordance with the applicable provisions of the Merger Agreement. See “The Merger Agreement — Merger Consideration.”

 

Q.   I am a NeuroRx stockholder. Do I have appraisal rights if I object to the proposed business combination?

 

  

A. Yes. NeuroRx stockholders have appraisal rights in connection with the Business Combination under the DGCL. See the section entitled “Appraisal Rights.”

 

Q.   I am a NeuroRx securityholder. What are the U.S. federal income tax consequence of the business combination to U.S. holders of NeuroRx capital stock?

 

  

A. For general information on the material U.S. Federal Income Tax consequences of the Business Combination to holders of NeuroRx capital stock, see the section entitled “Material U.S. Federal Income Tax Consequences — Material Tax Consequences of the Merger to U.S. Holders of NeuroRx Capital Stock.”

 

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Q.   Who can help answer my questions?

  

A. If you are a BRPA stockholder and you have questions about the Transactions or if you need additional copies of the proxy statement / prospectus / consent solicitation statement or the enclosed proxy card, you should contact:

 

Big Rock Partners Acquisition Corp.
2645 N. Federal Highway, Suite 230
Delray Beach, Florida 33483
Attn: Richard Ackerman
Telephone: (310) 734-2300

 

or:

 

Advantage Proxy, Inc.
P.O. Box 13581 Des Moines, WA 98198
Toll Free Telephone: 877-870-8565
Main Telephone: 206-870-8565
E-mail: ksmith@advantageproxy.com

 

You may also obtain additional information about BRPA from documents filed with the SEC by following the instructions in the section of this proxy statement/prospectus/consent solicitation statement titled “Where You Can Find More Information.”

  

 

If you are a holder of BRPA Public Shares and you intend to seek conversion of your shares, you will need to deliver your shares (either physically or electronically) to BRPA’s transfer agent at the address below at least two (2) business days prior to the vote at the annual meeting. If you have questions regarding the certification of your position or delivery of your stock, please contact:

 

Mr. Mark Zimkind
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
E-mail: mzimkind@continentalstock.com

 

If you are a NeuroRx stockholder and you have questions about the Merger Agreement or the Transactions, including the procedures for voting your shares, or if you would like additional copies, without charge, of this proxy statement / prospectus / consent solicitation statement, you should contact:

 

Alessandra Daigneault
Corporate Secretary
NeuroRx, Inc.
1201 N. Market Street, Suite 111
Wilmington, Delaware 19801
E-mail: investor@nrxpharma.com

 

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SUMMARY OF THE PROXY STATEMENT / PROSPECTUS /

CONSENT SOLICITATION STATEMENT

This summary highlights selected information from this proxy statement / prospectus / consent solicitation statement and does not contain all of the information that may be important to you. To better understand the proposals to be submitted for a vote at the BRPA annual meeting and the NeuroRx stockholder actions that are the subject of the written consent, including the Transactions, you should read this entire document carefully, including the Merger Agreement attached as Annex A hereto. The Merger Agreement is the legal document that governs the Merger and the other transactions that will be undertaken in connection with the Merger. It is also described in detail in this proxy statement / prospectus / consent solicitation statement in the section titled “The Merger Agreement.”

The Parties

BRPA

BRPA is a Delaware corporation incorporated on September 18, 2017 for the purpose of entering into a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses or entities.

On November 22, 2017, BRPA consummated its initial public offering of 6,000,000 Units, each Unit consisting of one share of Common Stock, one Right, and one half of one Warrant. On November 28, 2017, the underwriters of BRPA’s initial public offering exercised their over-allotment option in full and on November 28, 2017, BRPA consummated the sale of an additional 900,000 Units. Simultaneously with the closing of the initial public offering and the over-allotment option, BRPA consummated the private placement of an aggregate of 272,500 Units. A total of $69,000,000 of the net proceeds from the initial public offering and private placement was deposited in a trust account established for the benefit of BRPA’s public stockholders. Since the completion of the initial public offering, BRPA’s activity has been limited to the evaluation of business combination candidates.

The prospectus for BRPA’s initial public offering and its Charter originally provided that BRPA had only until May 22, 2019 to complete a business combination (after giving effect to the two three-month extensions previously obtained pursuant to the Charter). BRPA was not able to consummate an initial business combination by such date and on each of May 21, 2019, August 21, 2019, November 21, 2019, March 23, 2020, July 23, 2020, and December 18, 2020, BRPA’s stockholders approved an amendment to the Charter extending the amount of time that BRPA would have to consummate its initial business combination. As a result, BRPA’s Charter, as amended, currently provides that it will have until April 23, 2021 to complete a business combination. On April 1, 2021, BRPA filed a definitive proxy statement seeking approval from its stockholders at a special meeting to be held on April 21, 2021 to extend the date by which BRPA is required to complete its initial business combination to May 24, 2021. In connection with these amendments, BRPA offered public stockholders the right to have their Public Shares converted into a pro rata portion of the trust account and holders of Public Shares representing approximately $63 million originally held in the trust account exercised such conversion rights. Accordingly, as of the record date, BRPA has approximately $6.0 million of cash in the trust account.

BRPA’s Units, Common Stock, Rights and Warrants are listed on Nasdaq under the symbols “BRPAU,” “BRPA,” “BRPAR,” and “BRPAW,” respectively.

BRPA’s principal executive office is located at 2645 N. Federal Highway, Suite 230, Delray Beach, Florida 33483, and its telephone number is (310) 734-2300. After consummation of the Transactions, BRPA’s address and telephone number will be that of NeuroRx.



 

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Merger Sub

Merger Sub is Delaware corporation incorporated on January 22, 2019. Merger Sub is a wholly-owned subsidiary of BRPA formed solely for the purpose of effecting a business combination. Merger Sub has not engaged in any business activity other than serving as a subsidiary for BRPA in connection with potential business combination opportunities. Merger Sub’s principal executive office is located at 2645 N. Federal Highway, Suite 230, Delray Beach, Florida 33483, and its telephone number is (310) 734-2300. After consummation of the Transactions, it will cease to exist.

NeuroRx

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 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 the NeuroRx Antidepressant Drug Regimen.

NeuroRx was incorporated in Delaware on May 20, 2015.

NeuroRx’s principal executive office is located at 1201 N. Market Street, Suite 111, Wilmington, Delaware 19801 and its telephone number is 484-254-6134.

Emerging Growth Company

BRPA is an “emerging growth company,” as defined in the Jumpstart Our Business Startups Act (“JOBS Act”). As an emerging growth company, BRPA is eligible, and has elected, to take advantage of certain exemptions from various reporting requirements that are applicable to other public companies that are not emerging growth companies. These include, but are not limited to, not being required to comply with the auditor attestation requirements of Section 404 of the Sarbanes-Oxley Act of 2002 and reduced disclosure obligations regarding executive compensation.

BRPA could remain an emerging growth company until the last day of BRPA’s fiscal year following the fifth anniversary of BRPA’s initial public offering. However, if BRPA’s annual gross revenue is $1.07 billion or more, if its non-convertible debt issued within a three year period exceeds $1 billion, or if the market value of its shares of Common Stock that are held by non-affiliates exceeds $700 million on the last day of the second fiscal quarter of any given fiscal year, BRPA would cease to be an emerging growth company as of the following fiscal year.

Controlled Company

Immediately following the completion of the merger, Jonathan Javitt and Daniel Javitt will control a majority of the voting power of the Common Stock. As a result, NRX Pharmaceuticals will be a “controlled company” within the meaning of the corporate governance standards of the Nasdaq. Under these rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including:

 

   

the requirement that a majority of NRX Pharmaceuticals’ board of directors consist of “independent directors” as defined under the rules of the Nasdaq;

 

   

the requirement that NRX Pharmaceuticals have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities;



 

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the requirement that NRX Pharmaceuticals have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and

 

   

the requirement for an annual performance evaluation of the compensation and nominating and corporate governance committees.

Following the merger, NRX Pharmaceuticals intends to utilize some or all of these exemptions. As a result, NRX Pharmaceuticals’ nominating and corporate governance committee and compensation committee may not consist entirely of independent directors and such committees will not be subject to annual performance evaluations. Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of Nasdaq.

The Merger Agreement

The Merger Agreement provides for the Merger of Merger Sub with and into NeuroRx, with NeuroRx surviving as a wholly-owned subsidiary of BRPA and the securityholders of NeuroRx becoming securityholders of BRPA.

After consideration of the factors identified and discussed in the section entitled “The Business Combination Proposal — BRPA’s Board of Directors’ Reasons for Approval of the Business Combination,” BRPA’s board of directors concluded that the Merger met all of the requirements disclosed in the prospectus for its initial public offering, including that NeuroRx has a fair market value equal to at least 80% of the balance of the funds in the trust account (excluding taxes payable) at the time of the execution of the Merger Agreement. See the section entitled “The Business Combination Proposal — Structure of the Transactions” for more information.

Merger Consideration

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. 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) the Earnout Shares if the Earnout Shares Milestone is met prior to December 31, 2022 and (ii) the Earnout Cash if the Earnout Cash Milestone is met prior to December 31, 2022. 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. See the sections titled “The Business Combination Proposal — Subscription Agreements for PIPE” and “The Nasdaq Proposals” for more information.

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



 

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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 contemplated in this proxy statement / prospectus / consent solicitation statement. 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. See the section titled “The Business Combination Proposal—Structure of the Transactions—GEM Share Subscription Facility and Warrant.”

Pro Forma Ownership of BRPA Upon Closing

Immediately after the Closing, NeuroRx’s stockholders will hold approximately 93% of the issued and outstanding Common Stock, the current stockholders of BRPA will hold approximately 5% of the issued and outstanding Common Stock, and 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 the BCMA Amendment Agreement, (ii) takes into effect the exchange of each outstanding Right 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.

The Business Combination Proposal

The BRPA stockholders will vote on a proposal to approve and adopt the Merger Agreement, a copy of which is attached to this proxy statement / prospectus / consent solicitation statement as Annex A, and the Transactions contemplated therein, including the Merger. See “The Business Combination Proposal” for more information.

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. A copy of the Proposed Charter effectuating the foregoing amendments is attached to this proxy statement / prospectus / consent solicitation statement as Annex B. See “The Charter Proposals” for more information.



 

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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. A copy of the Proposed Bylaws effectuating the foregoing amendments is attached to this proxy statement / prospectus / consent solicitation statement as Annex C. See “The Bylaws Proposal” for more information.

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. See “The Nasdaq Proposals” for more information.

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. See the section titled “The Director Proposal” for more information.

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. A copy of the 2021 Plan is attached as Annex D to this proxy statement / prospectus / consent solicitation statement. You are encouraged to read the 2021 Plan in its entirety. See the section titled “The Plan Proposal” for more information.

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. See the section titled “The Adjournment Proposal” for more information.



 

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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.

Pursuant to the Merger Agreement, BRPA will enter into the Sponsor Agreement with the Sponsor and BRAC providing that (a) the Sponsor and BRAC will forfeit, and BRPA will terminate and cancel the Forfeited Shares, as follows: (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, and (b) the Sponsor Earnout Shares will be subject to escrow, which 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. See “The Business Combination Proposal — Ancillary Agreements —Sponsor Agreement.”

On or prior to the Closing Date, BRPA, Sponsor, BRAC, Graubard Miller, the Initial Stockholders and Continental will enter into 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 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 (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. See “The Business Combination Proposal — Ancillary Agreements — Stock Escrow Amendment.”

Date, Time and Place of Annual Meeting of BRPA’s Stockholders

The annual meeting of the stockholders of BRPA will be held at 10:00 a.m. local time on                 , 2021, solely over the internet by means of a live audio webcast. You may attend and participate in the annual meeting by accessing the meeting web portal located at https://www.         .com/         . See “Questions and Answers about the Proposals — How do I attend the annual meeting?” for more information.

Voting Power; Record Date

BRPA Stockholders will be entitled to vote or direct votes to be cast at the annual meeting if they owned shares of Common Stock at the close of business on                 , 2021, which is the record date for the annual meeting. Stockholders will have one vote for each share of Common Stock owned at the close of business on the record date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker, bank or nominee to ensure that votes related to the shares you beneficially own are properly counted. BRPA’s Rights and Warrants do not have voting rights. On the record date, there were 2,688,242 shares of Common Stock outstanding, including 552,742 Public Shares.



 

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Quorum and Vote of BRPA Stockholders

A quorum of BRPA stockholders is necessary to hold a valid meeting. A quorum will be present at the BRPA annual meeting if a majority of the issued and outstanding shares of Common Stock on the record date that are entitled to vote at the annual meeting are represented by stockholders present at the annual meeting in person (which would include presence at the virtual meeting) or by proxy. Abstentions will be counted towards the quorum requirement. Broker non-votes will not be counted towards the quorum requirement. If there is no quorum, a majority of the votes present at the annual meeting may adjourn the annual meeting to another date.

The proposals to be presented at the annual meeting will require the following votes:

 

   

Business Combination Proposal — The approval of the business combination proposal will require the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock present and entitled to vote at the annual meeting. Abstentions will have the same effect as a vote “against” the business combination proposal. Brokers are not entitled to vote on the business combination proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the business combination proposal. The Transactions will not be consummated if BRPA has less than $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act) upon consummation of the Transactions.

 

   

Charter Proposals — The approval of each of the charter proposals will require the affirmative vote of the holders of a majority of the issued and outstanding Common Stock on the record date. Abstentions will have the same effect as a vote “against” the charter proposals. The charter proposal to change the name of BRPA from “Big Rock Partners Acquisition Corp.” to “NRX Pharmaceuticals, Inc.” is a routine proposal and, accordingly, your broker, bank or nominee may vote your shares with respect to such proposal without receiving voting instructions. Consequently, there should be no broker non-votes with respect to the charter proposal to change the name of BRPA to “NRX Pharmaceuticals, Inc.” Each other charter proposal is considered a non-routine proposal, and, accordingly, brokers are not entitled to vote on those proposals without receiving voting instructions, and broker non-votes will have the same effect as a vote “against” such proposals.

 

   

Bylaws Proposal — The approval of the bylaws proposal will require the affirmative vote of the holders of at least 66.7% of the issued and outstanding capital stock of BRPA on the record date. Abstentions will have the same effect as a vote “against” the bylaws proposal. Brokers are not entitled to vote on the bylaws proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have the same effect as a vote “against” the bylaws proposal.

 

   

Nasdaq Proposals — The approval of each of the Nasdaq proposals will require the affirmative vote of the holders of a majority of the votes cast by the stockholders present in person (which would include presence at the virtual meeting) or represented by proxy at the annual meeting. Abstentions are not considered “votes cast” and accordingly will have no outcome on the vote. Brokers are not entitled to vote on the Nasdaq proposals absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the Nasdaq proposals.

 

   

Director Proposal — The election of directors requires a plurality of the votes cast. “Plurality” means that the individuals who receive the largest number of votes cast “FOR” will be elected as directors (even if they receive less than a majority of the votes cast). Consequently, because this is an uncontested election, any director nominee who receives at least one vote “FOR” will be elected as a director. Abstentions will have no effect on the director proposal because an abstention is not a vote cast with respect to the proposal. Brokers are not entitled to vote on the director proposal absent voting instructions from the beneficial holder because the director proposal is considered “non-routine.” Consequently, broker non-votes will have no effect with respect to the director proposal.

 

   

Plan Proposal — The approval of the plan proposal will require the affirmative vote of the holders of a majority of the votes cast by the stockholders present in person (which would include presence at the



 

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virtual meeting) or represented by proxy at the annual meeting. Abstentions are not considered “votes cast” and accordingly will have no outcome on the vote. Brokers are not entitled to vote on the plan proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the plan proposal.

 

   

Adjournment Proposal — The approval of the adjournment proposal will require the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock present and entitled to vote at the annual meeting. Abstentions will have the same effect as a vote “against” the adjournment proposal. Brokers are entitled to vote on the adjournment proposal absent voting instructions from the beneficial holder because the proposal is considered “routine.” Consequently, there should be no broker non-votes with respect to the adjournment proposal.

As previously indicated herein, 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.

Under the Merger Agreement, the approval of (i) the business combination proposal, (ii) the charter proposals, (iii) the Nasdaq proposals, and (iv) the plan proposal is a condition to the consummation of the Transactions (collectively, the “BRPA Stockholder Approval”).

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. See NeuroRx’s pro forma combined financial information included elsewhere in this proxy statement / prospectus / consent solicitation statement.

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 $             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. See the section of this proxy statement / prospectus / consent solicitation statement titled “Annual Meeting of BRPA Stockholders Conversion Rights” for a detailed description of the procedures to be followed if you wish to convert your shares into cash.

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Appraisal Rights

BRPA stockholders and holders of BRPA Rights and Warrants do not have appraisal rights in connection with the Transactions under the DGCL.

The NeuroRx stockholders are entitled to appraisal rights in connection with the Merger under the DGCL. For more information about such rights, see the section titled “Appraisal Rights.”

Proxy Solicitation

Proxies may be solicited by mail, telephone or in person. BRPA has engaged Advantage Proxy, Inc. to assist in the solicitation of proxies.

If a BRPA stockholder grants a proxy, it may still vote its shares of Common Stock during the live webcast of the annual meeting if it revokes its proxy before the annual meeting. A BRPA stockholder may also change its vote by submitting a later-dated proxy as described in the section entitled “Annual Meeting of BRPA Stockholders — Revoking Your Proxy.”

Interests of BRPA’s Directors and Officers in the Transactions

When you consider the recommendation of BRPA’s board of directors in favor of approval of the business combination proposal and other proposals being presented at the annual meeting, you should keep in mind that the directors and officers of BRPA have interests in such proposals that are different from, or in addition to, your interests as a stockholder of BRPA. These interests include, among other things:

 

   

If the business combination with NeuroRx or another business combination is not consummated by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension), it will trigger BRPA’s automatic winding up, dissolution and liquidation pursuant to the terms of the Charter. Further, if BRPA does not complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, the board of directors will be able to determine in its sole discretion to cease efforts to consummate an initial business combination and to instead proceed to redeem 100% of the outstanding Public Shares and liquidate and dissolve BRPA. In either such event, the 272,500 insider shares, which include shares of Common Stock held by the Sponsor, an entity controlled by Richard Ackerman, BRPA’s Chairman, President and Chief Executive Officer, and in which certain of BRPA’s officers and directors have economic interests, which shares were acquired for a purchase price of approximately $0.01 per share prior to BRPA’s initial public offering, would be worthless because the Sponsor is not entitled to participate in any redemption or distribution from the trust account with respect to such shares. Such shares had an aggregate market value of $             based upon the closing price of $             per share on Nasdaq on the record date.

 

   

The Sponsor purchased an aggregate of 272,500 Units in a private placement that occurred simultaneously with the closing of BRPA’s initial public offering for an aggregate purchase price of $2,725,000 (or $10.00 per Unit). All of the proceeds BRPA received from the purchase of these Units were placed in the trust account. If BRPA does not consummate a business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) or if BRPA does not complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, BRPA will begin the process of winding up, dissolving, and liquidating pursuant to the Charter. In such event, the Warrants and Rights underlying the private placement Units will expire and the shares of Common Stock underlying the private placement Units will be worthless



 

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because the Sponsor is not entitled to participate in any redemption or distribution from the trust account with respect to such shares. Such Units had an aggregate market value of $             based upon the closing price of $             per Unit on Nasdaq on the record date.

 

   

Since BRPA’s inception, entities affiliated with BRPA’s officers and directors have made loans from time to time to BRPA to fund certain capital requirements. Pursuant to the Merger Agreement, these working capital loans may be repaid upon the closing of the Transactions if the amount remaining in the trust account after taking into account conversions by BRPA public stockholders, plus any amounts raised in a financing, exceeds $5,000,000; amounts not repaid will be converted into two-year convertible promissory notes of BRPA with a principal amount of no more than $2,708,213.36, which bear interest at three percent (3%) per annum. However, if the Transactions are not consummated and BRPA does not consummate another business combination within the required time period, the loans will not be repaid and will be forgiven unless BRPA has funds outside of the trust account then available to it to repay such notes. As of the record date, an aggregate of approximately $             principal amount of such loans is outstanding.

 

   

A/Z Property Partners, LLC (“A/Z Partners”), an affiliate of Richard Ackerman, has agreed that if a business combination is not consummated and BRPA liquidates, it will be liable under certain circumstances to ensure that the proceeds in the trust account are not reduced by certain claims of target businesses or vendors or other entities that are owed money by BRPA for services rendered, contracted for or products sold to BRPA.

 

   

If BRPA is unable to complete a business combination within the required time period, it will pay the costs of any subsequent liquidation from its remaining assets outside of the trust account. If such funds are insufficient, A/Z Partners has agreed to pay the funds necessary to complete such liquidation (currently anticipated to be no more than approximately $15,000) and has agreed not to seek repayment for such expenses.

 

   

BRPA’s Charter currently provides for BRPA’s officers and directors to be indemnified by BRPA, and the officers and directors to be exculpated from monetary liability with respect to prior acts or omissions. Additionally, the Merger Agreement requires BRPA to maintain in effect “tail” directors’ and officers’ liability insurance covering BRPA’s outgoing officers and directors with respect to such acts or omissions. If the business combination is not consummated and BRPA liquidates, BRPA may not be able to perform its obligations to its officers and directors.

 

   

BRPA’s officers, directors and their affiliates are entitled to reimbursement of out-of-pocket expenses incurred by them in connection with certain activities on BRPA’s behalf, such as identifying and investigating possible business targets and business combinations. If a business combination is not consummated, these out-of-pocket expenses will not be repaid. As of the record date, an aggregate of approximately $             of reimbursable expenses is outstanding.

In addition to the foregoing, at any time prior to the annual meeting, during a period when they are not then aware of any material nonpublic information regarding BRPA or its securities, BRPA’s officers and directors, the holders of insider shares, NeuroRx, the NeuroRx officers and directors and/or their respective affiliates may purchase Common Stock from institutional and other investors who vote, or indicate an intention to vote, against the business combination proposal, or execute agreements to purchase such shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire shares of Common Stock or vote their shares of Common Stock in favor of the business combination proposal. The purpose of such purchases and other transactions would be to ensure that BRPA has in excess of $5,000,001 of net tangible assets to consummate the Transactions where it appears that such requirement would otherwise not be met. While the exact nature of any such incentives has not been determined as of the date of this proxy statement / prospectus / consent solicitation statement, they might include, without limitation,



 

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arrangements to protect such investors or holders against potential loss in value of their shares, including the granting of put options and the transfer to such investors or holders of shares owned by the Sponsor for nominal value.

Entering into any such arrangements may have a depressive effect on the Common Stock. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares of Common Stock at a price lower than market and may therefore be more likely to sell the Common Stock he owns, either prior to or immediately after the annual meeting.

As of the date of this proxy statement / prospectus / consent solicitation statement, there have been no such discussions and no agreements to such effect have been entered into with any such investor. BRPA will file a Current Report on Form 8-K to disclose any arrangements entered into or significant purchases made by any of the aforementioned persons that would affect the vote on the business combination proposal or the satisfaction of any closing conditions. Any such report will include descriptions of any arrangements entered into or significant purchases by any of the aforementioned persons.

Interests of NeuroRx’s Directors and Executive Officers in the Transactions

In considering the recommendation of the NeuroRx board of directors with respect to approving the Merger Agreement and Transactions by written consent, the NeuroRx stockholders should be aware that certain members of the board of directors and executive officers of NeuroRx have interests in the Transactions that may be different from, or in addition to, your interests as a stockholder. For example, some of NeuroRx’s executive officers are expected to become executive officers of NRX Pharmaceuticals upon the closing of the Transactions. Specifically, Jonathan Javitt, who is a director and officer of NeuroRx and William Fricker, Robert Besthof and Alessandra Daigneault, who are each officers of NeuroRx, are expected to become executive officers of NRX Pharmaceuticals upon the Closing, with Dr. Javitt becoming the Chairman of the Board and Chief Executive Officer, Mr. Fricker becoming the Chief Financial Officer and Treasurer, Robert Besthof becoming Chief Commercial and Patient Officer and Head of Operations and Ms. Daigneault becoming the General Counsel and Secretary. Additionally, certain current directors of NeuroRx, including Dr. Javitt, Daniel Troy, Patrick Flynn, Aaron Gorovitz, Sherry Glied and Chaim Hurvitz, are expected to become directors of NRX Pharmaceuticals following the Closing.

Recommendation to BRPA Stockholders

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 BRPA stockholders 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, “FOR” the plan proposal, and “FOR” the adjournment proposal, if presented.

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 this 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



 

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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 herein) 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     % of the outstanding shares of NeuroRx Common Stock and approximately     % 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 herein). See “The Business Combination Proposal — Ancillary Agreements — Support Agreements” for more information.

NeuroRx Solicitation of Written Consents

Within ten calendar days following the dissemination of this proxy statement / prospectus / consent solicitation statement to the NeuroRx stockholders, the Supporting NeuroRx Stockholders will each execute an action by written consent of the NeuroRx stockholders adopting the Merger Agreement and approving the Transactions (including conversion of any shares of NeuroRx Preferred Stock held by such Supporting NeuroRx Stockholders). Therefore, it is expected that holders of a sufficient number of shares of NeuroRx Common Stock and NeuroRx Preferred Stock required to adopt the Merger Agreement and approve the Transactions will adopt the Merger Agreement and approve the Transactions, and no meeting of NeuroRx stockholders will be held. Nevertheless, all NeuroRx stockholders will have the opportunity to approve the Merger Agreement and Transactions by signing and returning to NeuroRx a written consent.

The adoption of the Merger Agreement and the approval of the Transactions requires the affirmative vote of (i) the holders of a majority of the outstanding shares of NeuroRx Common Stock and NeuroRx Preferred Stock, voting together as a single class on an “as-converted” to NeuroRx Common Stock basis, (ii) two-thirds of the outstanding shares of NeuroRx Series A Preferred Stock, voting as a separate class and (iii) two-thirds of the outstanding shares of NeuroRx Series B Preferred Stock, voting as a separate class, in each case, given in writing or at a meeting in accordance with the NeuroRx certificate of incorporation. In addition to the requirement of obtaining such stockholder approval, each of the other closing conditions set forth in the Merger Agreement must be satisfied or waived.

Recommendation to NeuroRx Stockholders

NeuroRx’s board of directors has determined that the Merger Agreement and the Transactions are fair to and in the best interests of NeuroRx and its stockholders and unanimously recommends that NeuroRx stockholders approve by written consent NeuroRx entering into the Merger Agreement and consummating the Transactions.

Conditions to Closing

Mutual Conditions

The consummation of the Transactions is conditioned upon the following, among other things:

 

   

receipt of the BRPA Stockholder Approval and the NeuroRx Stockholder Approval;



 

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BRPA shall have at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act);

 

   

all specified waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (“HSR Act”) shall have expired, and no order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority or statute, rule or regulation that is in effect and prohibits or enjoins the consummation of the Transactions;

 

   

the registration statement, of which this proxy statement / prospectus / consent solicitation statement forms a part, shall have become effective in accordance with the provisions of the Securities Act, no stop order shall have been issued by the SEC that remains in effect with respect to the registration statement, and no proceeding seeking such a stop order shall have been threatened or initiated by the SEC which remains pending;

 

   

each ancillary agreement required to be executed by the Merger Agreement shall have been executed and delivered by the parties thereto;

 

   

BRPA shall be and remain listed on Nasdaq and BRPA’s application to list the shares of Common Stock to be issued in connection with the Transactions (including the Earnout Shares) shall have been approved by Nasdaq, subject to official notice thereof and public holder requirements; and

 

   

the holders of Common Stock issued in BRPA’s initial public offering shall have had the opportunity to convert such shares into a pro rata portion of BRPA’s trust account in connection with the BRPA Stockholder Approval, and all such conversions shall have been completed.

Other Conditions to NeuroRx’s Obligations

The obligations of NeuroRx to consummate the Transactions are also conditioned upon, among other things:

 

   

the accuracy of the representations and warranties of BRPA (subject to certain bring-down standards);

 

   

performance in all material respects of the covenants of BRPA required by the Merger Agreement to be performed on or prior to the consummation of the Transactions;

 

   

no material adverse effect with respect to BRPA shall have occurred between the date of the Merger Agreement and the consummation of the Transactions;

 

   

BRPA being in compliance with the reporting requirements under the Securities Act and Exchange Act;

 

   

BRPA having delivered certain customary officer’s and secretary’s certificates;

 

   

NeuroRx having received an opinion from Tax Opinion Counsel (as defined in the Merger Agreement) that the Merger will qualify as a tax-free reorganization within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as amended;

 

   

the resignation of each officer and director of BRPA as of the Effective Time;

 

   

the adoption of an amended and restated certificate of incorporation of BRPA, in form and substance reasonably satisfactory to BRPA and NeuroRx;

 

   

BRPA shall have obtained approval from its stockholders to extend the deadline for BRPA to consummate its initial business combination from December 23, 2020 to April 23, 2021 (which has been obtained as of the date of this proxy statement / prospectus / consent solicitation statement); and

 

   

the outstanding loans to and borrowings by BRPA shall not exceed $2,708,213.36.



 

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Other Conditions to BRPA’s and Merger Sub’s Obligations

The obligations of BRPA and Merger Sub to consummate the Transactions are also conditioned upon, among other things:

 

   

the accuracy of the representations and warranties of NeuroRx (subject to certain bring-down standards);

 

   

performance in all material respects of the covenants of NeuroRx required by the Merger Agreement to be performed on or prior to the consummation of the Transactions;

 

   

no material adverse effect with respect to NeuroRx shall have occurred between the date of the Merger Agreement and the consummation of the Transactions;

 

   

all outstanding loans or other indebtedness owed to NeuroRx by any insider shall have been repaid in full; and

 

   

NeuroRx having delivered certain customary officer’s and secretary’s certificates.

Waivers

Either BRPA or NeuroRx may waive any inaccuracies in the representations and warranties made to such party contained in the Merger Agreement or in any document delivered pursuant to the Merger Agreement and waive compliance with any agreements or conditions for the benefit of itself or such party contained in the Merger Agreement or in any document delivered pursuant to the Merger Agreement. Notwithstanding the foregoing, pursuant to BRPA’s Charter, BRPA cannot consummate the proposed business combination if it has less than $5,000,001 of net tangible assets remaining upon consummation of the Transactions, after taking into account the holders of Public Shares that properly demanded that BRPA convert their Public Shares for their pro rata share of the trust account.

Termination

The Merger Agreement may be terminated at any time prior to the Closing as follows:

 

   

by mutual written consent of BRPA and NeuroRx;

 

   

by written notice from either BRPA or NeuroRx if the other party has breached any of its covenants or representations and warranties such that the party’s closing conditions would not be satisfied at the closing of the Merger (subject to a thirty-day cure period);

 

   

by written notice from either BRPA or NeuroRx if the transactions are not consummated on or before May 24, 2021;

 

   

by written notice from either BRPA or NeuroRx if a governmental entity shall have issued a final, non-appealable governmental order, rule or regulation permanently enjoining or prohibiting the consummation of the Merger;

 

   

by written notice from either BRPA or NeuroRx if either the BRPA Stockholder Approval or the NeuroRx Stockholder Approval is not obtained in the time periods described in the Merger Agreement;

 

   

by written notice from NeuroRx prior to obtaining the NeuroRx Stockholder Approval in order to enter into a definitive agreement with respect to a Superior Proposal (as defined herein), if NeuroRx’s board of directors determines in good faith, after consultation with its outside legal counsel, that the failure to take such action would be inconsistent with its fiduciary duties under applicable law; or

 

   

by written notice from either BRPA or NeuroRx if the shares of Common Stock are delisted from Nasdaq.



 

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In the event that NeuroRx terminates the Merger Agreement in order to enter into a definitive agreement with respect to a 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 the notice of such termination.

Anticipated Material Tax Consequences of the Transactions

It is the opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to NeuroRx, that for U.S. federal income tax purposes, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is a condition to NeuroRx’s obligation to consummate the Merger that NeuroRx receive an opinion from Paul, Weiss, Rifkind, Wharton & Garrison LLP, dated as of the closing date, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. On the basis of such opinion, a U.S. Holder (as defined in “Material U.S. Federal Income Tax Consequences” beginning on page 261) of NeuroRx Common Stock (including the shares of NeuroRx Common Stock received upon the Preferred Stock Conversion) generally will not recognize any gain or loss upon the receipt of shares of BRPA capital stock in the Merger (including any Earnout Shares), but may recognize gain with respect to such U.S. Holder’s contingent right to a pro rata portion of the Earnout Cash. However, the timing and character of such gain (if any) will depend, in part, on whether such U.S. Holder reports such gain under the installment sale method. NeuroRx stockholders are urged to consult their tax advisors to understand fully the consequences to them of the transactions in their specific circumstances. For more information, see “Material U.S. Federal Income Tax Consequences — Material Tax Consequences of the Merger to U.S. Holders of NeuroRx Capital Stock” beginning on page 262.

Anticipated Accounting Treatment of the Transactions

It is anticipated that the business combination will be accounted for as a reverse recapitalization in accordance with U.S. generally accepted accounting principles (“GAAP”). Under this method of accounting, BRPA will be treated as the acquired company and NeuroRx will be treated as the acquirer for financial reporting purposes.

Regulatory Matters

The Transactions are not subject to any additional federal or state regulatory requirement or approval, except for the filing of required notifications and the expiration or termination of the required waiting periods under the HSR Act and filings with the State of Delaware necessary to effectuate the Merger.

Summary of Risk Factors

In evaluating the proposals to be presented at the annual meeting, a stockholder should carefully read this proxy statement / prospectus / consent solicitation and especially consider the factors discussed in the section entitled “Risk Factors.”

Some of the risks related NeuroRx’s business and industry are summarized below. Such risks include, but are not limited to:

 

   

Risks relating to NeuroRx’s business and industry, including that:

 

   

NeuroRx is an early-stage company with a history of losses and may not achieve or maintain profitability in the future;

 

   

NeuroRx’s limited operating history makes evaluating its business and future prospects difficult;

 

   

NeuroRx’s will need to raise additional capital to operate its business;



 

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NeuroRx’s product candidates are in Phase IIb/III of clinical testing and have never been formulated or manufactured to the standards that will be required for sustained sales;

 

   

NeuroRx’s product candidates are subject to various regulatory approvals and regulators may impose limitations on approvals for the use or marketing of such product candidates;

 

   

NeuroRx may not be able to obtain or maintain exclusivity for its product candidates; and

 

   

NeuroRx depends on certain intellectual property licensed to it by third parties.

 

   

Risks relating to the business combination, including that:

 

   

The market price of shares of NRX Pharmaceuticals’ common stock after the business combination may be affected by factors different from those currently affecting the prices of shares of BRPA’s Common Stock;

 

   

BRPA did not obtain a third-party fairness opinion, and consequently, there is no assurance from an independent source that the merger consideration is fair to its stockholders from a financial point of view;

 

   

NeuroRx’s directors and officers may have interests in the business combination different from the interests of NeuroRx’s stockholders, and BRPA’s directors and officers may have interests in the business combination different from the interests of BRPA stockholders; and

 

   

The unaudited pro forma condensed combined financial information included in this proxy statement / prospectus / consent solicitation statement is preliminary and the actual financial condition and results of operations after the business combination may differ materially.

 

   

Risks relating to ownership of NRX Pharmaceuticals’ common stock following the business combination, including that:

 

   

Because the market price of shares of Common Stock will fluctuate, NeuroRx’s stockholders cannot be sure of the value of the merger consideration they will receive;

 

   

NRX Pharmaceuticals does not intend to pay dividends on the Common Stock for the foreseeable future.

 

   

Risks relating to the redemption of Public Shares, including that:

 

   

There is no guarantee that a BRPA stockholder’s decision whether to redeem its Public Shares will put such stockholder in a better future economic position; and

 

   

The ability of BRPA stockholders to exercise redemption rights with respect to a large number of shares could increase the probability that the business combination would be unsuccessful and that stockholders would have to wait for liquidation in order to redeem their stock.



 

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SUMMARY HISTORICAL FINANCIAL INFORMATION

BRPA and NeuroRx are providing the following summary historical financial information to assist you in your analysis of the financial aspects of the Transactions.

BRPA

BRPA’s balance sheet data as of December 31, 2020 and 2019 and income statement data for the years ended December 31, 2020 and 2019 are derived from BRPA’s audited financial statements included elsewhere in this proxy statement / prospectus / consent solicitation statement.

The summary information in the following tables should be read in conjunction with the sections entitled “Other Information Related to BRPA,” and “BRPA’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and BRPA’s historical financial statements and the notes and schedules related thereto included elsewhere in this proxy statement / prospectus / consent solicitation statement.

 

     As of December 31,  
     2020      2019  

Balance Sheet Data:

     

Total assets

   $ 6,050,405      $ 32,074,694  

Total liabilities

   $ 3,281,546      $ 2,574,205  

Common stock subject to possible redemption, 0 and 2,305,335, shares at redemption value as of December 31, 2020 and December 31, 2019, respectively

   $ —        $ 24,500,488  
  

 

 

    

 

 

 

Total stockholders’ equity

   $ 2,768,859      $ 5,000,001  
  

 

 

    

 

 

 

 

     For the year ended December 31,  
     2020     2019  

Statement of Operations Data:

    

Loss from operations

   $ (907,406   $ (713,187

Interest income

   $ 138,764     $ 1,205,820  

Income before income taxes

   $ (416,571   $ 492,633  

Provision for income taxes

   $ (17,841   $ (84,206

Net income (loss)

   $ (434,412   $ 408,427  

Weighted average shares outstanding, basic and diluted (1)

     2,736,258       2,783,021  

Basic and diluted net income (loss) per common share (2)

   $ (0.16   $ (0.11

Statement of Cash Flows Data:

    

Net cash used in operating activities

   $ (598,617   $ (792,731

Net cash provided by investing activities

   $ 26,176,022     $ 40,246,581  

Net cash provided by (used in) financing activities

   $ (25,579,945   $ (39,464,923

 

(1)

Excludes an aggregate of up to 0 and 2,305,335 shares subject to possible redemption at December 31, 2020 and 2019, respectively.

(2)

Net loss per common share — basic and diluted excludes income attributable to common stock subject to possible redemption of $0 and $703,894 for the years ended December 31, 2020 and 2019, respectively.

NeuroRx

The summary historical consolidated financial information for NeuroRx presented below for the years ended December 31, 2020 and 2019, and the summary consolidated balance sheet as of December 31, 2020 and 2019



 

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have been derived from NeuroRx’s audited consolidated financial statements included elsewhere in this proxy statement / prospectus / consent solicitation statement.

The summary information in the following tables should be read in conjunction with “Selected Historical Consolidated Financial Information of NeuroRx,” “NeuroRx’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and NeuroRx’s consolidated financial statements and related notes thereto included elsewhere in this proxy statement / prospectus / consent solicitation statement.

 

     For the Years Ended
December 31,
 
     2020     2019  

Statement of Operating Data:

    

Operating expenses:

    

Research and development

   $ 10,625,032     $ 3,495,648  

General and administrative

     11,435,658       2,767,590  

Settlement expense

     39,486,139       —    

Reimbursement of expenses from Relief Therapeutics

     (10,160,421     —    
  

 

 

   

 

 

 

Total operating expenses

     51,386,408       6,263,238  
  

 

 

   

 

 

 

Loss from operations

   $ (51,386,408   $ (6,263,238
  

 

 

   

 

 

 

Other expenses:

    

Loss on conversion of convertible notes payable

   $ 306,641     $ —    

Interest expense

     56,695       303,057  

Change in fair value of embedded put

     27,160       162,866  
  

 

 

   

 

 

 

Total other expenses

     (390,496     (465,923
  

 

 

   

 

 

 

Loss before tax

     (51,776,904     (6,729,161
  

 

 

   

 

 

 

Tax expense

     —         —    

Net loss

   $ (51,776,904   $ (6,729,161
  

 

 

   

 

 

 

Balance Sheet Data:

    

Cash and cash equivalents

   $ 1,858,513     $ 877,421  

Total assets

     2,941,169       985,936  

Total liabilities

     46,719,641       5,836,886  

Total stockholders’ deficit

     (43,778,472     (4,850,950

Statement of Cash Flow Data:

    

Net cash used in operating activities

   $ (2,266,367   $ (5,542,325

Net cash used in investing activities

   $ (1,501   $ (3,552

Net cash provided by financing activities

   $ 3,248,960     $ 5,802,002  


 

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SUMMARY UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION

The following summary unaudited pro forma condensed combined financial data (the “summary pro forma data”) gives effect to the Transactions. The Business Combination will be accounted for as a reverse recapitalization, in accordance with GAAP.

The summary pro forma data have been derived from, and should be read in conjunction with, the more detailed unaudited pro forma condensed combined financial information (the “pro forma financial statements”) of BRPA appearing elsewhere in this proxy statement / prospectus / consent solicitation statement and the accompanying notes to the pro forma financial statements. The pro forma financial statements are based upon, and should be read in conjunction with, the historical consolidated financial statements and related notes of BRPA and NeuroRx for the applicable periods included in this proxy statement / prospectus / consent solicitation statement.

The summary pro forma data have been presented for informational purposes only and are not necessarily indicative of what BRPA’s and NeuroRx’s financial position or results of operations actually would have been had the Transactions been completed as of the dates indicated. In addition, the summary pro forma data do not purport to project the future financial position or operating results of BRPA or NeuroRx.

The unaudited pro forma condensed combined financial information has been prepared using the assumptions below with respect to the potential redemption into cash of Common Stock:

 

   

Assuming Minimum Redemptions: This presentation assumes that no public stockholders of BRPA exercise redemption rights with respect to their Public Shares for a pro rata share of the funds in the Trust Account.

 

   

Assuming Maximum Redemptions: This presentation assumes that stockholders holding 552,742 Public Shares will exercise their redemption rights for their pro rata share (approximately $10.00 per share) of the funds in the Trust Account. This scenario gives effect to Public Share redemptions for aggregate redemption payments of $5,527,420 using a $10.00 per share redemption price. The Merger Agreement includes as a condition to closing the Business Combination that, at the closing, BRPA will have a minimum of $5,000,001 of net tangible assets. Additionally, this presentation also contemplates that BRPA’s Initial Stockholders have agreed to waive their redemption rights with respect to their Founder Shares, Private Shares and Public Shares in connection with the completion of a Business Combination. This scenario includes all adjustments contained in the “minimum redemptions” scenario and presents additional adjustments to reflect the effect of the maximum redemptions.

 

     Pro Forma Combined  
     Assuming
Minimum
Redemption
    Assuming
Maximum
Redemption
 

Summary Unaudited Pro Forma Condensed Combined Statement of Operations Data

    

Year ended December 31, 2020

    

Net Loss

   $ (54,785,228   $ (54,785,228

Net loss per share (basic and diluted) attributable to common stockholders

   $ (1.02   $ (1.04

Weighted average shares outstanding of common stock

     53,730,492       52,877,750  

Summary Unaudited Pro Forma Condensed Combined Balance Sheet Data

    

As of December 31, 2020

    

Total assets

   $ 30,556,825     $ 25,029,405  

Total liabilities

   $ 7,835,422     $ 7,835,422  

Total stockholders’ equity

   $ 22,721,403     $ 17,193,983  


 

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COMPARATIVE PER SHARE INFORMATION

The following table sets forth summary historical comparative share and unit information for BRPA and NeuroRx and unaudited pro forma condensed combined per share information of BRPA after giving effect to the Transactions, assuming two redemption scenarios as follows:

 

   

Assuming Minimum Redemptions: This presentation assumes that no public stockholders of BRPA exercise redemption rights with respect to their Public Shares for a pro rata share of the funds in the Trust Account.

 

   

Assuming Maximum Redemptions: This presentation assumes that stockholders holding 552,742 Public Shares will exercise their redemption rights for their pro rata share (approximately $10.00 per share) of the funds in the Trust Account. This scenario gives effect to Public Share redemptions for aggregate redemption payments of $5,527,420 using a $10.00 per share redemption price. The Merger Agreement includes as a condition to closing the Business Combination that, at the closing, BRPA will have a minimum of $5,000,001 of net tangible assets. Additionally, this presentation also contemplates that BRPA’s Initial Stockholders have agreed to waive their redemption rights with respect to their Founder Shares, Private Shares and Public Shares in connection with the completion of a Business Combination. This scenario includes all adjustments contained in the “minimum redemptions” scenario and presents additional adjustments to reflect the effect of the maximum redemptions.

The unaudited pro forma book value information reflects the Transactions as if they had occurred on December 31, 2020. The weighted average shares outstanding and net earnings per share information reflect the Transactions as if they had occurred on January 1, 2020.

This information is only a summary and should be read together with the summary historical financial information included elsewhere in this proxy statement / prospectus / consent solicitation statement, and the historical financial statements of BRPA and NeuroRx and related notes that are included elsewhere in this proxy statement / prospectus / consent solicitation statement. The unaudited pro forma combined per share information of BRPA and NeuroRx is derived from, and should be read in conjunction with, the unaudited pro forma condensed combined financial statements and related notes included elsewhere in this proxy statement / prospectus / consent solicitation statement.

The unaudited pro forma combined earnings per share information below does not purport to represent the earnings per share which would have occurred had the companies been combined during the periods presented, nor earnings per share for any future date or period. The unaudited pro forma combined book value per share information below does not purport to represent what the value of BRPA and NeuroRx would have been had the companies been combined during the periods presented.

 

                Pro Forma Combined     NeuroRx
Equivalent Pro
Forma Per
Share Data (2)
 
    BRPA     NeuroRx     Assuming
Minimum
Redemption
    Assuming
Maximum
Redemption
 

As of and For the Year Ended December 31, 2020

         

Book Value per share (1)

  $ 0.84     $ (4.04   $ 0.42     $ 0.33     $ (1.22

Weighted average shares outstanding of common stock

    3,291,003       10,845,240       53,730,492       52,877,750       35,789,292  

Net loss per share (basic and diluted) attributable to common stockholders

  $ (0.24   $ (4.77   $ (1.02   $ (1.04   $ (1.45

 

(1)

Book value per share means Total stockholders’ equity (deficit) divided by weighted average common shares outstanding.

(2)

The equivalent pro forma basic and diluted per share data for NeuroRx is calculated based on an expected exchange ratio of 3.3 under both the minimum and maximum redemption scenarios in the Business Combination.



 

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RISK FACTORS

You should carefully consider the following risk factors and all of the information contained in this proxy statement / prospectus / consent solicitation statement, including but not limited to, the matters addressed in the “Cautionary Statement Regarding Forward-Looking Statements”, and the financial information with respect to BRPA and NeuroRx before you decide whether to vote or instruct your vote to be cast to approve the proposals described in this proxy statement / prospectus / consent solicitation statement. Additional risks and uncertainties not currently known to BRPA or NeuroRx or that BRPA and NeuroRx currently do not consider to be material may also materially and adversely affect BRPA’s business, financial condition or results of operations following the consummation of the Transactions. Unless expressly indicated or the context requires otherwise, as used in this section, the terms “we,” “us,” and “our” refer to NeuroRx in the present tense or NRX Pharmaceuticals from and after the Business Combination.

Risks Related to an Early-Stage Company

We are an early-stage company with a history of losses. We have not been profitable historically and may not achieve or maintain profitability in the future.

We experienced net losses in each year since inception, including net losses of $6.7 million and $51.8 million for the years ended, December 31, 2019 and 2020, respectively. We believe we will continue to incur operating losses and negative cash flow in the near-term as we continue to invest significantly in our business, in particular across our research and development efforts, clinical trial programs and sales and marketing efforts.

These investments may not result in increased revenue or growth in our business. In addition, as a newly-public company, we will incur significant additional legal, accounting and other expenses that we did not incur as a private company. These increased expenditures may make it harder for us to achieve and maintain future profitability. Until we have a product candidate approved by the FDA, which could take several years, revenue growth will not be possible, and we are unlikely to achieve or maintain profitability. Further, there can be no assurance that the products under development by us will be approved for sales in the US or elsewhere.

We expect a substantial portion of our revenue going forward to be generated from the sale and distribution of our product candidates, but until one of our product candidates is approved for sale, it is difficult for us to predict our future operating results. Even if we succeed in developing and commercializing one or more of our product candidates, we expect to incur substantial net losses and negative cash flows for the foreseeable future due in part to increasing research and development expenses, including clinical trials, and increasing expenses from leasing additional facilities and hiring additional personnel. As a result, we will need to generate significant revenues in order to achieve and maintain profitability. We may not be able to generate these revenues or achieve profitability in the future. Even if we do achieve profitability, we may not be able to sustain or increase profitability.

We may incur significant losses in the future for a number of reasons, including due to the other risks described in this proxy statement / prospectus / consent solicitation statement, and we may encounter unforeseen expenses, difficulties, complications and delays and other unknown events. As a result, our losses may be larger than anticipated, we may incur significant losses for the foreseeable future, and we may not achieve profitability when expected, or at all, and even if we do, we may not be able to maintain or increase profitability. Furthermore, if our future growth and operating performance fail to meet investor or analyst expectations, or if we have future negative cash flow or losses resulting from our investment in acquiring customers or expanding our operations, this could have a material adverse effect on our business, financial condition and results of operations.

Our operating results and financial condition may fluctuate from period to period.

If and when any of our product candidates are successfully commercialized, we anticipate that our operating results and financial condition will fluctuate from quarter-to-quarter and year-to-year due to a number of factors,

 

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many of which will not be within our control. Both our business and the pharmaceutical industry are changing and evolving rapidly, and our operating results in any given year may not be useful in predicting our future operating results. If our operating results do not meet the guidance that we provide to the marketplace or the expectations of securities analysts or investors, the market price of our common stock will likely decline. Fluctuations in our future operating results and financial condition may be due to a number of factors, including:

 

   

our ability to manufacture our products in sufficient quantities with Chemical Manufacturing Controls that meet governmental regulatory standards;

 

   

the degree of acceptance of our products and services in the broader healthcare industry;

 

   

our ability to compete with competitors and new entrants into our markets;

 

   

the products and services that we are able to sell during any period;

 

   

the timing of our sales and distribution of our products to customers;

 

   

the geographic distribution of our sales;

 

   

changes in our pricing policies or those of our competitors, including our response to price competition;

 

   

changes in the amount that we spend to research and develop new products or technologies;

 

   

expenses and/or liabilities resulting from litigation;

 

   

delays between our expenditures to research and develop new or enhanced products or technologies, the necessary regulatory approvals and the generation of revenue from those products or technologies;

 

   

unforeseen liabilities or difficulties in integrating any businesses that we choose to acquire;

 

   

disruptions to our information technology systems or our third-party contract manufacturers;

 

   

general economic and or other conditions that affect customer demand;

 

   

the impact of the COVID-19 pandemic on customers, suppliers, manufacturers and operations; and

 

   

changes in accounting rules and tax laws.

We have a limited operating history upon which to base an investment decision.

Our limited operating history may hinder your ability to evaluate our prospects due to a lack of historical financial data and our unproven potential to generate profits. You should evaluate the likelihood of financial and operational success in light of the risks, uncertainties, expenses and difficulties associated with an early-stage business, many of which may be beyond our control, including:

 

   

our potential inability to continue to undertake preclinical studies, pharmaceutical development and clinical trials,

 

   

our potential inability to obtain regulatory approvals, and

 

   

our potential inability to manufacture, sell and market our products.

Our operations have been limited to organizing and staffing our company, acquiring, developing and securing our proprietary technology and intellectual property and undertaking preclinical studies and early-stage clinical trials of our principal product candidates. These operations provide a limited basis for you to assess our ability to commercialize our product candidates and the advisability of voting in favor of the Business Combination.

Further, we have no history of operating as a combined company with BRPA. The pro forma condensed combined financial information included in this proxy statement / prospectus / consent solicitation statement may

 

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not be a good prediction of our results of operations and financial condition following the business combination. See “Risk Factors — BRPA and NeuroRx have no history operating as a combined company. The unaudited pro forma condensed combined financial information may not be an indication of BRPA’s financial condition or results of operations following the business combination, and accordingly, you have limited financial information on which to evaluate BRPA and your investment decision.”

We need to raise additional capital to operate our business. If we fail to obtain the capital necessary to fund our operations, we will be unable to continue or complete our product development and you will likely lose the entire amount you had invested in BRPA or NeuroRx prior to the Business Combination.

We are a company focused on product development and have not generated any product revenues to date. Until, and if, we receive approval from the FDA and other regulatory authorities for our product candidates, we cannot sell our drugs and will not have product revenues. NeuroRx had cash and cash equivalents of approximately $1.9 million as of December 31, 2020, and we will need to continue to seek capital from time to time to continue to capitalize the development and commercialization of our product candidates and to acquire and develop other product candidates. Accordingly, we believe that we may need to raise substantial additional capital to fund our continuing operations and the development and commercialization of our product candidates before the end of calendar year 2021. We may raise capital through future share offerings, including the Share Subscription Facility with GEM, the issuance of debt instruments and grant monies. Our actual capital requirements will depend on many factors. For instance, our business or operations may change in a manner that would consume available funds more rapidly than anticipated and substantial additional funding may be required to maintain operations, fund expansion, develop new or enhanced products, acquire complementary products, business or technologies or otherwise respond to competitive pressures and opportunities, such as a change in the regulatory environment or a change in preferred depression treatment or COVID-19 treatment modalities. If we experience unanticipated cash requirements, we may need to seek additional sources of financing, which may not be available on favorable terms, if at all.

However, we may not be able to secure funding when we need it or on favorable terms. If we cannot raise adequate funds to satisfy our capital requirements, we will have to delay, scale-back or eliminate our research and development activities, clinical studies or future operations, we may be unable to complete planned nonclinical studies and clinical trials or obtain approval of our product candidates from the FDA and other regulatory authorities. In addition, we could be forced to discontinue product development, reduce or forego sales and marketing efforts and attractive business opportunities, reduce overhead, or discontinue operations. We may also be required to obtain funds through arrangements with collaborators, which arrangements may require us to relinquish rights to certain technologies or products that we otherwise would not consider relinquishing, including rights to future product candidates or certain major geographic markets. We may further have to license our technology to others. This could result in sharing revenues which we might otherwise retain for ourselves. Any of these actions may harm our business, financial condition and results of operations.

The amount of capital we may need depends on many factors, including the progress, timing and scope of our product development programs; the progress, timing and scope of our nonclinical studies and clinical trials; the time and cost necessary to obtain regulatory approvals; the time and cost necessary to further develop manufacturing processes and arrange for contract manufacturing; our ability to enter into and maintain collaborative, licensing and other commercial relationships; and our partners’ commitment of time and resources to the development and commercialization of our products.

We may be unable to access the capital markets and even if we can raise additional funding, we may be required to do so on terms that are dilutive to you.

The capital markets have been unpredictable in the recent past for unprofitable companies such as ours. In addition, it is generally difficult for companies to raise capital under current market conditions. The amount of capital that a company such as ours is able to raise often depends on variables that are beyond our control. While

 

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we have the ability under the Share Subscription Facility to require GEM to purchase up to approximately $96.4 million (based on an exchange rate of HKD$7.7776 to USD$1 as of April 9, 2021) of shares of Common Stock at a 10% discount to our market trading price, such prices may not be attractive to us and/or issuances may not be sufficient to satisfy our capital needs. As a result, we cannot assure you that we will be able to secure financing on terms attractive to us, or at all. If we are able to consummate a financing arrangement, the amount raised may not be sufficient to meet our future needs. If adequate funds are not available on acceptable terms, or at all, our business, results of operations, financial condition and our continued viability will be materially adversely affected.

It is not possible to predict the actual number of shares of Common Stock that we will sell under the Share Subscription Facility with GEM, or the gross proceeds resulting from those sales.

Subject to certain limitations in the Share Subscription Facility and compliance with applicable law, we have the discretion to deliver a placement notice to GEM at any time until October 18, 2022, the three year anniversary of the Share Subscription Facility agreement. The number of shares of Common Stock that are sold to GEM will fluctuate based on the market price of the Common Stock during the sales period. There is no minimum or maximum price of our Common Stock that we may sell to GEM. Because the price per share of each share sold will fluctuate during the sales period, it is not possible to predict the number of shares that will be sold or the gross proceeds we will raise in connection with those sales.

We will have broad discretion in using the proceeds of shares sold to GEM under the Share Subscription Facility, and we may not effectively spend the proceeds.

We are not limited in the use of proceeds of shares sold to GEM under the Share Subscription Facility. We may use such proceeds for working capital and general corporate purposes to support our growth, to pay dividends on our outstanding securities, or for acquisitions or other strategic investments. We have not allocated such funds to any particular purpose, and our management will have the discretion to allocate the proceeds as it determines. We may not apply the proceeds effectively.

Risks Related to NeuroRx’s Business and Industry

Our product candidates are in Phase IIb/III of clinical testing.

Our product candidates are in the IIb/III Phase of clinical testing and FDA approval requires that a drug candidate complete a Phase III study program, which tests the safety and efficacy of the drug candidate on a large sample of patients. We will need to commit substantial time and additional resources to conducting further nonclinical studies and clinical trials before we can submit an NDA (as defined herein) with respect to our product candidates. We cannot predict with any certainty if or when we might submit an NDA for regulatory approval of any of our product candidates.

Our product candidates have never been formulated or manufactured to the standards that will be required for sustained sales.

Our product candidates for clinical testing have been manufactured only in prototype manufacturing facilities. These facilities do not manufacture under the degree of Chemical Manufacturing Controls (“CMC”) required for marketing of a shelf-stable drug. Long-term (i.e., four year) stability has been achieved for our solid dose formulation of NRX-101. However, a long-term stable formulation of aviptadil for intravenous or inhaled use has not been yet been achieved by us or, to our knowledge, by any pharmaceutical manufacturer. We may fail to achieve a long-term shelf-stable formulation of ZYESAMI and may be forced to supply material to the marketplace with only short-term (e.g., 90 day) stability, which would substantially increase our supply chain costs and make our product less attractive to end-users.

 

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Funding of clinical development costs and formulation costs of Aviptadil may lead to a dispute with Relief Therapeutics.

When NeuroRx entered into the Relief Agreement (as defined below) 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 unexpectedly required 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. As of April 9, 2021, Relief Therapeutics has not funded the costs of re-formulation of aviptadil into a shelf stable product, which has required NeuroRx to deploy capital from alternative investors. 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.

If we fail to obtain or maintain necessary FDA clearances for our products, or if such clearances are delayed, we will be unable to commercially distribute and market our products.

Our products are subject to rigorous regulation by the FDA and numerous other federal, state and foreign governmental authorities. The process of seeking regulatory clearance or approval to market a drug product is expensive and time consuming and, notwithstanding the effort and expense incurred, clearance or approval is never guaranteed. If we are not successful in obtaining timely clearance or approval of our products from the FDA, we may never be able to generate significant revenue and may be forced to cease operations. In particular, the FDA permits commercial distribution of a new drug product only after the product has received approval of a New Drug Application (“NDA”) filed with the FDA pursuant to 21 C.F.R. § 314, seeking permission to market the product in interstate commerce in the United States. The NDA process is costly, lengthy and uncertain. Any NDA application filed by NeuroRx will have to be supported by extensive data, including, but not limited to, technical, nonclinical, clinical trial, manufacturing and labelling data, to demonstrate to the FDA’s satisfaction the safety and efficacy of the product for its intended use.

Obtaining clearances or approvals from the FDA and from the regulatory agencies in other countries could result in unexpected and significant costs for us and consume management’s time and other resources. The FDA and other agencies could ask us to supplement our submissions, collect non-clinical data, conduct additional clinical trials or engage in other time-consuming actions, or they could simply deny our applications. In addition, even if we obtain an NDA approval or pre-market approvals in other countries, the approval could be revoked or other restrictions imposed if post-market data demonstrates safety issues or lack of effectiveness. We cannot predict with certainty how, or when, the FDA will act. If we are unable to obtain the necessary regulatory approvals, our financial condition and cash flow may be adversely affected, and our ability to grow domestically and internationally may be limited. Additionally, even if cleared or approved, NeuroRx’s products may not be approved for the specific indications that are most necessary or desirable for successful commercialization or profitability.

Our revenue stream will depend upon third party reimbursement.

Once our product candidates are cleared or approved by the FDA or from the regulatory agencies in other countries, the commercial success of our products in both domestic and international markets will be substantially dependent on whether third-party coverage and reimbursement is available for patients that use our

 

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products. However, the availability of insurance coverage and reimbursement for newly approved drugs is uncertain, and therefore, third-party coverage may be particularly difficult to obtain even if our products are approved by the FDA as safe and efficacious. Many patients using existing approved therapies are generally reimbursed all or part of the product cost by Medicare or other third-party payors. Medicare, Medicaid, health maintenance organizations and other third-party payors are increasingly attempting to contain healthcare costs by limiting both coverage and the level of reimbursement of new drugs, and, as a result, they may not cover or provide adequate payment for these products. Submission of applications for reimbursement approval generally does not occur prior to the filing of an NDA for that product and may not be granted for as long as many months after NDA approval. In order to obtain reimbursement arrangements for these products, we or our commercialization partners may have to agree to a net sales price lower than the net sales price we might charge in other sales channels. The continuing efforts of government and third-party payors to contain or reduce the costs of healthcare may limit our revenue. Initial dependence on the commercial success of our products may make our revenues particularly susceptible to any cost containment or reduction efforts.

We may have conflicts with our partners that could delay or prevent the development or commercialization of our product candidates.

We may have commercial conflicts with our partners, such as the interpretation of contractual obligations, payments for services, development obligations or the ownership of intellectual property developed during our collaboration. If any conflicts arise with any of our partners, such partner may act in a manner that is adverse to our best interests. Any such disagreement could result in one or more of the following, each of which could delay or prevent the development or commercialization of our product candidates, and in turn prevent us from generating revenues: unwillingness on the part of a partner to pay us a share in profits that we believe are due to us under a collaboration; uncertainty regarding ownership of intellectual property rights arising from our collaborative activities, which could prevent us from entering into additional collaborations; unwillingness on the part of a partner to keep us informed regarding the progress of its development and commercialization activities or to permit public disclosure of the results of those activities; initiating of litigation or alternative dispute resolution options by either party to resolve the dispute; or attempts by either party to terminate the agreement.

Our products will face significant competition in the markets for such products, and if they are unable to compete successfully, our business will suffer.

Our products candidates face, and will continue to face, intense competition from large pharmaceutical companies, specialty pharmaceutical and biotechnology companies as well as academic and research institutions. We compete in an industry that is characterized by: (i) rapid technological change, (ii) evolving industry standards, (iii) emerging competition and (iv) new product introductions. Our competitors have existing products and technologies that will compete with our products and technologies and may develop and commercialize additional products and technologies that will compete with our products and technologies. Because several competing companies and institutions have greater financial resources than us, they may be able to: (i) provide broader services and product lines, (ii) make greater investments in research and development, and (iii) carry on larger R&D initiatives. Our competitors also have greater development capabilities than we do and have substantially greater experience in undertaking nonclinical and clinical testing of products, obtaining regulatory approvals, and manufacturing and marketing pharmaceutical products. They also have greater name recognition and better access to customers than us. Our chief competitors in the psychiatry area include companies such as Johnson and Johnson, Pfizer, Eli Lilly, Sage Therapeutics, Axsome, and Relmada, among others. We are not aware of any other investigational COVID-19 therapeutics that address ZYESAMI’s unique mechanism of action. Furthermore, in our many interactions with the U.S Department of Health and Human Services, Operation Warp Speed and the National Institutes of Health, no direct competitor has been identified.

 

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We are faced with intense competition and rapid technological change, which may make it more difficult for us to achieve significant market penetration. If we cannot compete successfully for market share against other drug companies, we may not achieve sufficient product revenues and our business will suffer.

The market for our product candidates is characterized by intense competition and rapid technological advances. If our product candidates receive FDA approval, they will compete with a number of existing and future drugs and therapies developed, manufactured and marketed by others. If our competitors’ existing products or new products are more effective than or considered superior to our future products, the commercial opportunity for our product candidates will be reduced or eliminated. Existing or future competing products may provide greater therapeutic convenience or clinical or other benefits for a specific indication than our products, or may offer comparable performance at a lower cost. We face competition from fully integrated pharmaceutical companies and smaller companies that are collaborating with larger pharmaceutical companies, academic institutions, government agencies and other public and private research organizations. If we are successful in penetrating the relevant markets for treatment with our product candidates, other companies may be attracted to the market. Many of our competitors have products already approved or in development. In addition, many of these competitors, either alone or together with their collaborative partners, are larger than we are and have substantially greater financial, technical, research, marketing, sales, distribution and other resources than we do. Our competitors may develop or market products that are more effective or commercially attractive than any that we are developing or marketing. Our competitors may obtain regulatory approvals, and introduce and commercialize products before we do. These developments could have a significant negative effect on our financial condition. Even if we are able to compete successfully, we may not be able to do so in a profitable manner.

Future products may never achieve market acceptance.

Future products that we may develop may never gain market acceptance among physicians, patients and the medical community. The degree of market acceptance of any of our products will depend on a number of factors, including the actual and perceived effectiveness and reliability of our products; the results of any long-term clinical trials relating to use of our products; the availability, relative cost and perceived advantages and disadvantages of alternative technologies; the degree to which treatments using our products are approved for reimbursement by public and private insurers; the strength of our marketing and distribution infrastructure; and the level of education and awareness among physicians and hospitals concerning our products. Failure of any of our products to significantly penetrate current or new markets would negatively impact our business, financial condition and results of operations.

To be commercially successful, physicians must be persuaded that using our products are effective alternatives to existing therapies and treatments.

We believe that doctors and other physicians will not widely adopt our products unless they determine, based on experience, clinical data, and published peer reviewed journal articles, that the use of our products provides an effective alternative to other therapies and treatments. Patient studies or clinical experience may indicate that treatment with our products does not provide patients with sufficient benefits and/or improvement in quality of life. We believe that recommendations and support for the use of our products from influential physicians will be essential for widespread market acceptance. Our products are still in the development stage and it is premature to attempt to gain support from physicians at this time. We can provide no assurance that such support will ever be obtained. If our products do not receive such support from these physicians and from long-term data, physicians may not use or continue to use, and hospitals may not purchase or continue to purchase, our products.

We may incur substantial liabilities and may be required to limit commercialization of our products in response to product liability lawsuits.

The testing and marketing of medical products entail an inherent risk of product liability. We may be held liable if serious adverse reactions from the use of our product candidates occur. If we cannot successfully defend

 

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ourselves against product liability claims, we may incur substantial liabilities or be required to limit commercialization of our product candidates. Our inability to obtain sufficient product liability insurance at an acceptable cost to protect against potential product liability claims could prevent or inhibit the commercialization of pharmaceutical products we develop, alone or with corporate collaborators. We currently carry clinical trials liability insurance, but we do not currently carry product liability insurance. While we plan to obtain product liability insurance as we near commercialization, we, or any corporate collaborators, may not be able to obtain insurance at a reasonable cost, if at all. Even if our agreements with any future corporate collaborators entitle us to indemnification against losses, such indemnification may not be available or adequate if any claim arises.

We do not anticipate maintaining orphan drug protection for the treatment of COVID-19.

The Orphan Drug Act provides incentives for the development of drugs intended to treat rare diseases or conditions, which generally are diseases or conditions affecting less than 200,000 individuals annually in the United States, or affecting more than 200,000 in the United States and for which there is no reasonable expectation that the cost of developing and making the drug available in the United States will be recovered from United States sales. Orphan drug designation entitles a party to financial incentives such as opportunities for grant funding towards clinical study costs, tax advantages, and user-fee waivers. Further, if a product that has orphan drug designation subsequently receives FDA approval for the indication for which it has such designation, the product is entitled to orphan exclusivity, i.e., for seven years, the FDA may not approve any other applications to market the same drug for the same indication, except in very limited circumstances, including if a competitive product is shown to be clinically superior to the product that was granted orphan exclusivity.

The FDA Office of Orphan Products (“OOPD”) granted orphan drug designation for RLF-100, for use in Acute Respiratory Distress Syndrome (“ARDS”), to the State University of New York at Stony Brook. The designation was subsequently transferred to Mondo Biotech (now Relief Therapeutics). NeuroRx secured rights to the orphan drug designation from both the State University of New York at Stony Brook and Relief Therapeutics. The FDA has advised that the orphan drug designation issued for RLF-100 for use in ARDS, which was caused by sepsis at the time of original application, may not apply to respiratory distress caused by COVID-19. We have also received orphan drug designation covering NRX-101, a component of the NeuroRx Antidepressant Drug Regimen. We may be unable to obtain orphan drug designations for any additional product candidates or orphan exclusivity for any of our product candidates, or our potential competitors may obtain orphan drug exclusivity for products competitive with our product candidates before we do, in which case we may be excluded from that market for the exclusivity period. Even if we obtain orphan drug exclusivity for any of our product candidates, we may not be able to maintain it if a competitive product is shown to be clinically superior to our product. Although obtaining FDA approval to market a product with orphan exclusivity can be advantageous, there can be no assurance that it would provide us with a significant commercial advantage.

We may not be able to obtain Hatch-Waxman Act marketing exclusivity or equivalent regulatory data exclusivity protection in other jurisdictions for our products.

We intend to rely, in part, on Hatch-Waxman exclusivity for the commercialization of our products in the United States. The Hatch-Waxman Act provides marketing exclusivity to the first applicant to gain approval of an NDA under specific provisions of the Food, Drug and Cosmetic Act for a product using an active ingredient that the FDA has not previously approved (five years) or for a new dosage form, route or indication (three years). This market exclusivity will not prevent the FDA from approving a competitor’s NDA if the competitor’s NDA is based on studies it has performed and not on our studies. However, there can be no assurance that we will obtain Hatch-Waxman exclusivity for our products or that such exclusivity, if obtained, will protect us from direct competition.

Similarly, in the European Union, new products authorized for marketing (i.e., reference products) qualify for eight years of data exclusivity and an additional two years of market exclusivity upon marketing

 

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authorization, which, if obtained, would prevent generic applicants from relying on our preclinical and clinical trial data. However, there can be no assurance that European authorities will grant data exclusivity for our products. Even if European data exclusivity is granted for our products, that may not protect us from direct competition. A competitor with a generic version of our products may be able to obtain approval of their product during our product’s period of data exclusivity by submitting a marketing authorization application (MAA) with a less than full package of nonclinical and clinical data.

We intend to undertake international operations, which will subject us to risks inherent with operations outside of the United States.

Although we do not have any foreign operations at this time, we intend to seek to obtain market clearances in foreign markets that we deem to generate significant opportunities. However, even with the cooperation of a commercialization partner, conducting drug development in foreign countries involves inherent risks, including, but not limited to: difficulties in staffing, funding and managing foreign operations; unexpected changes in regulatory requirements; export restrictions; tariffs and other trade barriers; difficulties in protecting, acquiring, enforcing and litigating intellectual property rights; fluctuations in currency exchange rates; and potentially adverse tax consequences.

We will need to obtain approvals from the appropriate regulatory, pricing and reimbursement authorities to market any of our proposed products internationally, and we may be unable to obtain foreign regulatory approvals. Pursuing foreign regulatory approvals will be time-consuming and expensive. The regulations can vary among countries and foreign regulatory authorities may require different or additional clinical trials than the trials we conducted to obtain FDA approval for our product candidates. In addition, adverse clinical trial results in such countries, such as death or injury due to side effects, could jeopardize not only regulatory approval, but if approval is granted, may also lead to marketing restrictions. Our product candidates may also face foreign regulatory requirements applicable to controlled substances.

If we were to experience any of the difficulties listed above, or any other difficulties, any international development activities and our overall financial condition may suffer and cause us to reduce or discontinue our international development and registration efforts.

International commercialization of our product candidates requires successful collaborations.

We plan to commercialize some of our products internationally through collaborative relationships with foreign partners. We have limited foreign regulatory, clinical and commercial resources. Future partners are critical to our international success. However, we may not be able to enter into collaboration agreements with appropriate partners for important foreign markets on acceptable terms, or at all. Future collaborations with foreign partners may not be effective or profitable for us.

Our business activities have been disrupted due to the outbreak of the COVID-19 pandemic.

We face various risks and uncertainties related to the global outbreak of a new strain of coronavirus, COVID-19. In recent months, the continued spread of COVID-19 has led to disruption and volatility in the global economy and capital markets, which increases the cost of capital and adversely impacts access to capital. Government-enforced travel bans, business closures, and work-from-home or shelter-in-place orders around the world have significantly impacted our ability to conduct clinical trials, obtain supplies of needed materials and, in general, further the development of our business. It has, and may continue to, disrupt our third-party contract manufacturers and supply chain. We have also incurred increased overhead costs associated with the COVID-19 pandemic, including costs arising from protocols intended to reduce the risk of transmission among our employees and business partners. Furthermore, if significant portions of our workforce are unable to work effectively, including because of illness, quarantines, safety considerations, government actions, facility closures, remote working or other restrictions in connection with the COVID-19 pandemic, our operations will likely be adversely impacted.

 

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Further, the COVID-19 pandemic, and the volatile global economic conditions stemming from the pandemic, could precipitate or amplify the other risks that we identify in this “Risk Factors” section.

We are continuing to monitor the latest developments regarding the COVID-19 pandemic on our business, operations and financial condition and results, and have made certain assumptions regarding the pandemic for purposes of our operational planning and financial projections, including assumptions regarding the duration and severity of the pandemic and the global macroeconomic impact of the pandemic. Despite careful tracking and planning, however, we are unable to accurately predict the extent of the impact of the pandemic on our business, operations and financial condition and results due to the uncertainty of future developments. If the COVID-19 pandemic continues for a prolonged duration, the research and development of our products will be delayed and we may be unable to perform fully on our contracts, which will likely result in increases in costs and reduction in revenue. These cost increases may not be fully recoverable or adequately covered by insurance. The long-term effects of COVID-19 to the global economy and to us are difficult to assess or predict and may include a decline in the market prices of our products, risks to employee health and safety, risks for the deployment of our products and services and reduced sales in geographic locations impacted. Any prolonged restrictive measures put in place in order to control COVID-19 or other adverse public health developments in any of our targeted markets may have a material and adverse effect on our business operations and results of operations.

For additional information on how the COVID-19 pandemic has already impacted our business, operations and financial condition and results, see our historical consolidated financial statements, presented elsewhere in this proxy statement / prospectus / consent solicitation statement.

Global economic, political and social conditions and uncertainties in the market that we serve may adversely impact our business.

Our performance depends on the financial health and strength of our customers, which in turn is dependent on the economic conditions of the markets in which we and our customers operate. The recent declines in the global economy, difficulties in the financial services sector and credit markets, continuing geopolitical uncertainties and other macroeconomic factors all affect the spending behavior of potential customers. The economic uncertainty in Europe, the United States, India, China and other countries may cause end-users to further delay or reduce technology purchases.

We also face risks from financial difficulties or other uncertainties experienced by our suppliers, distributors or other third parties on which we rely. If third parties are unable to supply us with required materials or components or otherwise assist us in operating our business, our business could be harmed.

For example, the possibility of an ongoing trade war between the United States and China may impact the cost of raw materials, finished products or components used in our products and our ability to sell our products in markets controlled or heavily influenced by China. Other changes in U.S. social, political, regulatory and economic conditions or in laws and policies governing foreign trade, manufacturing, development and investment could also adversely affect our business. In addition, the ongoing negotiations about transitioning the United Kingdom from the European Union following its formal exit on January 31, 2020 may result in the imposition of tariffs that could have an adverse impact on our results of operation. Additionally, there also is a risk that other countries may decide to leave the European Union. This uncertainty surrounding this transition not only potentially affects our business opportunities in the United Kingdom and the European Union, but also may have an effect on global economic conditions and the stability of global financial markets, which in turn could have a material adverse effect on our business, financial condition and results of operations. In extreme cases, we could experience interruptions in production due to the processing of customs formalities or reduced customer spending in the wake of weaker economic performance. If global economic conditions remain volatile for a prolonged period or if European economies experience further disruptions, our results of operations could be adversely affected.

We may not be successful in hiring and retaining key employees.

Our future operations and successes depend in large part upon the continued service of key members of our senior management team whom we are highly dependent upon to manage our business, specifically Dr. Jonathan

 

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Javitt, our Chief Executive Officer. If he terminates employment with us, such a departure would have a material adverse effect on our business.

Our future success also depends on our ability to identify, attract, hire or engage, retain and motivate other well-qualified managerial, technical, clinical and regulatory personnel. We will need to hire additional qualified personnel with expertise in nonclinical pharmacology and toxicology, pharmaceutical development, clinical research, regulatory affairs, manufacturing, sales and marketing. We compete for qualified individuals with numerous biopharmaceutical companies, universities and other research institutions. Competition for such individuals, particularly in the United States, is intense, and we may not be able to hire sufficient personnel to support our efforts. There can be no assurance that these professionals will be available in the market, or that we will be able to retain existing professionals or to meet or to continue to meet their compensation requirements. Furthermore, the cost base in relation to such compensation, which may include equity compensation, may increase significantly, which could have a material adverse effect on us. Failure to establish and maintain an effective management team and work force could adversely affect our ability to operate, grow and manage our business.

Our employees may engage in misconduct or other improper activities, including noncompliance with regulatory standards and requirements.

We are exposed to the risk of employee fraud or other misconduct. Misconduct by employees could include intentional failures to:

 

   

comply with FDA regulations or similar regulations of comparable foreign regulatory authorities; provide accurate information to the FDA or comparable foreign regulatory authorities;

 

   

comply with federal and state healthcare fraud and abuse laws and regulations and similar laws and regulations established and enforced by comparable foreign regulatory authorities;

 

   

report financial information or data accurately; or

 

   

disclose unauthorized activities to us.

In particular, sales, marketing and business arrangements in the healthcare industry are subject to extensive laws and regulations intended to prevent fraud, kickbacks, self- dealing and other abusive practices. These laws and regulations may restrict or prohibit a wide range of pricing, discounting, marketing and promotion, sales commission, customer incentive programs and other business arrangements. Employee misconduct could also involve the improper use of information obtained in the course of clinical trials, which could result in regulatory sanctions and serious harm to our reputation. We have adopted a Business Code of Conduct, but it is not always possible to identify and deter employee misconduct, and the precautions we take to detect and prevent this activity may not be effective in controlling unknown or unmanaged risks or losses or in protecting us from governmental investigations or other actions or lawsuits stemming from a failure to be in compliance with such laws or regulations. If any such actions are instituted against us, and we are not successful in defending ourselves or asserting our rights, those actions could have a significant impact on our business and results of operations, including the imposition of significant fines or other sanctions.

Our relationships with customers and payors will be subject to applicable anti-kickback, fraud and abuse, transparency, and other healthcare laws and regulations, which could expose us to criminal sanctions, civil penalties, contractual damages, reputational harm, administrative burdens, and diminished profits and future earnings.

Healthcare providers, physicians and payors play a primary role in the recommendation and prescription of any product candidates for which we may obtain marketing approval. Our arrangements with payors and customers may expose us to broadly applicable fraud and abuse and other healthcare laws and regulations that may constrain the business or financial arrangements and relationships through which we market, sell and

 

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distribute any product candidates for which we may obtain marketing approval. Restrictions under applicable federal, state and foreign healthcare laws and regulations may affect our ability to operate, including:

 

   

the federal Anti-Kickback Statute, which prohibits, among other things, knowingly and willfully soliciting, offering, receiving or providing remuneration, directly or indirectly, in cash or in kind, to induce or reward either the referral of an individual for, or the purchase, order or recommendation of, any good or service, for which payment may be made under federal and state healthcare programs such as Medicare and Medicaid;

 

   

the federal False Claims Act, which imposes criminal and civil penalties, including through civil whistleblower or qui tam actions, against individuals or entities for knowingly presenting, or causing to be presented, to the federal government, claims for payment that are false or fraudulent or making a false statement to avoid, decrease or conceal an obligation to pay money to the federal government;

 

   

state and foreign anti-kickback and false claims laws, which may apply to sales or marketing arrangements and claims involving healthcare items or services reimbursed by non-governmental payors, including private insurers;

 

   

the federal Health Insurance Portability and Accountability Act of 1996, or HIPAA, which imposes criminal and civil liability for executing a scheme to defraud any healthcare benefit program or making false statements relating to healthcare matters;

 

   

HIPAA, as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 and its implementing regulations, which also imposes obligations on certain covered entity healthcare providers, health plans, and healthcare clearinghouses as well as their business associates that perform certain services involving the use or disclosure of individually identifiable health information, including mandatory contractual terms, with respect to safeguarding the privacy, security and transmission of individually identifiable health information;

 

   

laws which require pharmaceutical companies to comply with the pharmaceutical industry’s voluntary compliance guidelines and the relevant compliance guidance promulgated by the federal government or otherwise restricting payments that may be made to healthcare providers; and

 

   

federal laws requiring drug manufacturers to report information related to payments and other transfers of value made to physicians and other healthcare providers, as well as ownership or investment interests held by physicians and their immediate family members, including under the federal open payments program, as well as other state and foreign laws regulating marketing activities.

Managing our growth as we expand operations may strain our resources and we may not successfully manage our growth.

We expect to need to grow rapidly in order to support additional, larger, and potentially international, pivotal clinical trials of our drug candidates, which will place a significant strain on our financial, managerial and operational resources. In order to achieve and manage growth effectively, we must continue to improve and expand our operational and financial management capabilities. Moreover, we will need to increase staffing and to train, motivate and manage our employees. All of these activities will increase our expenses and may require us to raise additional capital sooner than expected. If we grow significantly, such growth will place a significant strain on our management and on our administrative, operational and financial resources. To manage this growth, we must expand our facilities, augment our operational, financial and management systems, internal controls and infrastructure and hire and train additional qualified personnel. Our future success is heavily dependent upon growth and acceptance of our future products. If we are unable to scale our business appropriately or otherwise adapt to anticipated growth and new product introduction, our business and financial condition will be harmed.

 

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We may expand our business through the acquisition of rights to new drug candidates that could disrupt our business, harm our financial condition and may also dilute current stockholders’ ownership interests in our company.

Our business strategy includes expanding our products and capabilities, and we may seek acquisitions of drug candidates or technologies to do so. Acquisitions involve numerous risks, including substantial cash expenditures; potentially dilutive issuances of equity securities; incurrence of debt and contingent liabilities, some of which may be difficult or impossible to identify at the time of acquisition; difficulties in assimilating the acquired technologies or the operations of the acquired companies; diverting our management’s attention away from other business concerns; risks of entering markets in which we have limited or no direct experience; and the potential loss of our key employees or key employees of the acquired companies.

We cannot assure you that any acquisition will result in short-term or long-term benefits to us. We may incorrectly judge the value or worth of an acquired product, company or business. Any such transaction could also result in impairment of goodwill and other intangibles, write-offs and other related expenses. In addition, our future success would depend in part on our ability to manage the rapid growth associated with some of these acquisitions. We cannot assure you that we will be able to make the combination of our business with that of acquired products, businesses or companies work or be successful. Furthermore, the development or expansion of our business or any acquired products, business or companies may require a substantial capital investment by us. We may not have these necessary funds or they might not be available to us on acceptable terms or at all. We may also seek to raise funds by selling shares of our preferred or common stock, which could dilute each current stockholder’s ownership interest in NRX Pharmaceuticals.

If we cannot compete successfully for market share against other drug companies, we may not achieve sufficient product revenues and our business will suffer.

The market for our drug candidates is characterized by intense competition and rapid technological advances. If our drug candidates receive FDA approval, they will compete with a number of existing and future drugs and therapies developed, manufactured and marketed by others. Existing or future competing products may provide greater therapeutic convenience or clinical or other benefits for a specific indication than our products, or may offer comparable performance at a lower cost. If our products are unable to capture and maintain market share, we may not achieve sufficient product revenues and our business will suffer.

We and our collaborators will compete for market share against fully integrated pharmaceutical companies or other companies that are collaborating with larger pharmaceutical companies, academic institutions, government agencies and other public and private research organizations. Many of these competitors have drugs already approved or drug candidates in development that will or may compete against our approved drug candidates. In addition, many of these competitors, either alone or together with their collaborative partners, operate larger research and development programs and have substantially greater financial resources than we do, as well as significantly greater experience in:

 

   

developing drugs;

 

   

conducting preclinical testing and human clinical trials;

 

   

obtaining FDA and other regulatory approvals of drugs;

 

   

formulating and manufacturing drugs; and

 

   

launching, marketing, distributing and selling drugs.

Government agencies, professional and medical societies, and other groups may establish usage guidelines that apply to our Law enforcement concerns over diversion of opioids and social issues around abuse of opioids may make the regulatory approval process and commercialization of our drug candidates very difficult.

 

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Media stories regarding the diversion of opioids and other controlled substances are commonplace. Law enforcement agencies or regulatory agencies may apply policies that seek to limit the availability of opioids. Such efforts may adversely affect the regulatory approval and commercialization of our drug candidates.

Developments by competitors may render our products or technologies obsolete or non-competitive.

Alternative technologies and products are being developed to treat depression and some may target suicidal bipolar depression and PTSD. Numerous sponsors are attempting to develop drugs to treat critical COVID-19. Many of these organizations competing with us have substantially greater capital resources, larger research and development staffs and facilities, greater experience in drug development and in obtaining regulatory approvals and greater manufacturing and marketing capabilities than we do. Our competitors may market less expensive or more effective drugs that would compete with our drug candidates or reach market with competing drugs before we are able to reach market with our drug candidates. These organizations also compete with us to attract qualified personnel and partners for acquisitions, joint ventures or other collaborations.

Business interruptions could limit our ability to operate our business.

Our operations as well as those of our collaborators on which we depend are vulnerable to damage or interruption from computer viruses, human error, natural disasters, electrical and telecommunication failures, international acts of terror and similar events. We have not established a formal disaster recovery plan and our back-up operations and our business interruption insurance may not be adequate to compensate us for losses we may suffer. A significant business interruption could result in losses or damages incurred by us and require us to cease or curtail our operations.

Cyber security attacks, internal system or service failures may adversely impact our business and operations.

Any system or service disruptions, including those caused by projects to improve our information technology systems, if not anticipated and appropriately mitigated, could disrupt our business and impair our ability to effectively provide products and related services to our customers and could have a material adverse effect on our business. We could also be subject to systems failures, including network, software or hardware failures, whether caused by us, third-party service providers, intruders or hackers, computer viruses, natural disasters, power shortages or terrorist attacks. Cyber security threats are evolving and include, but are not limited to, malicious software, phishing and other unauthorized attempts to gain access to sensitive, confidential or otherwise protected information related to us or our products, customers or suppliers, or other acts that could lead to disruptions in our business. The COVID-19 pandemic has forced many of our employees to shift to work-from-home arrangements, which increases our vulnerability to email phishing, social engineering or “hacking” through our remote networks, and similar cyber-attacks aimed at employees working remotely. Because the techniques used by cyber-attackers to access or sabotage networks change frequently and may not be recognized until launched against a target, we may be unable to anticipate these tactics. Any such failures to prevent or mitigate cyber-attacks could cause loss of data and interruptions or delays in our business, cause us to incur remediation costs or subject us to claims and damage our reputation. In addition, the failure or disruption of our communications or utilities could cause us to interrupt or suspend our operations or otherwise adversely affect our business. Although we utilize various procedures and controls to monitor and mitigate the risk of these threats, including contracting with an outside cyber security firm to provide constant monitoring of our systems, and training our employees to recognize attacks, there can be no assurance that these procedures and controls will be sufficient. Our property and business interruption insurance may be inadequate to compensate us for all losses that may occur as a result of any system or operational failure or disruption which would adversely affect our business, results of operations and financial condition. Moreover, expenditures incurred in implementing cyber security and other procedures and controls could adversely affect our results of operations and financial condition.

 

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Our internal controls over financial reporting currently do not meet all of the standards contemplated by Section 404 of Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), and failure to achieve and maintain effective internal controls over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act could impair our ability to produce timely and accurate financial statements or comply with applicable regulations and have a material adverse effect on our business.

We have been operating as a private company. Following the Business Combination, our management will have significant requirements for enhanced financial reporting and internal controls as a public company. The process of designing and implementing effective internal controls is a continuous effort that will require us to anticipate and react to changes in our business and the economic and regulatory environments and to expend significant resources to maintain a system of internal controls that is adequate to satisfy our reporting obligations as a public company. If we are unable to establish or maintain appropriate internal financial reporting controls and procedures, it could cause us to fail to meet our reporting obligations on a timely basis or result in material misstatements in our consolidated financial statements, which could harm our operating results. In addition, we will be required, pursuant to Section 404 of the Sarbanes-Oxley Act, to furnish a report by management on, among other things, the effectiveness of our internal control over financial reporting. This assessment will need to include disclosure of any material weaknesses identified by our management in our internal control over financial reporting. The rules governing the standards that must be met for our management to assess our internal control over financial reporting are complex and require significant documentation, testing, and possible remediation. Testing and maintaining internal controls may divert management’s attention from other matters that are important to our business. Our independent registered public accounting firm will be required to attest to the effectiveness of our internal control over financial reporting on an annual basis. However, while we remain an emerging growth company, we will not be required to include an attestation report on internal control over financial reporting issued by our independent registered public accounting firm. If we are not able to complete our initial assessment of our internal controls and otherwise implement the requirements of Section 404 of the Sarbanes-Oxley Act in a timely manner or with adequate compliance, our independent registered public accounting firm may not be able to certify as to the adequacy of our internal controls over financial reporting.

Matters impacting our internal controls may cause us to be unable to report our financial information on a timely basis and thereby subject us to adverse regulatory consequences, including sanctions by the SEC or violations of applicable stock exchange listing rules, which may result in a breach of the covenants under existing or future financing arrangements. There also could be a negative reaction in the financial markets due to a loss of investor confidence in us and the reliability of our financial statements. Confidence in the reliability of our financial statements also could suffer if we or our independent registered public accounting firm continue to report a material weakness in our internal controls over financial reporting. This could materially adversely affect us and lead to a decline in the market price of our common stock.

Risks Related to Clinical and Regulatory Matters

If we fail to obtain the necessary regulatory approvals, or if such approvals are limited, we will not be allowed to commercialize our drug candidates, and we will not generate product revenues.

Satisfaction of all regulatory requirements for commercialization of a drug candidate typically takes many years, is dependent upon the type, complexity and novelty of the product candidate, and requires the expenditure of substantial resources for research and development. Our research and clinical approaches may not lead to drugs that the FDA considers safe for humans and effective for indicated uses we are studying. The FDA may require additional studies, in which case we and any product collaborators would have to expend additional time and resources and would likely delay the date of potentially receiving regulatory approval. The approval process may also be delayed by changes in government regulation, future legislation or administrative action or changes in FDA policy that occur prior to or during our regulatory review.

Delays in obtaining regulatory approvals would:

 

   

delay commercialization of, and product revenues from, our product candidates; and

 

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diminish the competitive advantages that we may have otherwise enjoyed, which would have an adverse effect on our operating results and financial condition.

Even if we comply with all FDA regulatory requirements, our product candidates may never obtain regulatory approval. If we fail to obtain regulatory approval for any of our product candidates we will have fewer commercial products, if any, and corresponding lower product revenues, if any.

In jurisdictions outside the United States, we and any local collaborators we work with must receive marketing authorizations from the appropriate regulatory authorities before commercializing our drugs. Regulatory approval processes outside the United States generally include all of the aforementioned requirements and risks associated with FDA approval, and may impose different or additional steps not required by the FDA.

Even if a drug product is approved, the FDA may impose limitations on the use or marketing of such product.

Even if our product candidates receive regulatory approval from the FDA, the FDA may limit the approved indications for use of the product, require that contraindications, warnings or precautions be included in the product labeling, including a black boxed warning. The FDA may also require us or our collaborators to commit to perform lengthy Phase 4 post-approval clinical efficacy or safety studies, require testing and surveillance programs to monitor the product after commercialization, or impose other conditions, including distribution restrictions or other risk management mechanisms that could materially affect the potential market and profitability of the product. Our expending of additional resources on such trials or programs would have an adverse effect on our operating results and financial condition.

After approval, certain circumstances may require additional FDA notification, review, or approval, as well as further testing. These may include some types of changes to the approved product, such as adding new indications, manufacturing changes, and additional labeling claims, or new safety information.

After approval, later discovery of previously unknown problems with a product will have adverse consequences for us.

Later discovery of previously unknown problems with a product, including adverse events of unanticipated severity or frequency, or with manufacturing processes, or failure to comply with regulatory requirements, may result in mandatory revisions to the approved labeling to add new safety information; imposition of post-market studies or clinical trials to assess new safety risks; or imposition of distribution or other restrictions under a Risk Evaluation and Mitigation Strategies (“REMS”) program. Other potential consequences include, among other things:

 

   

restrictions on the marketing or manufacturing of the product, complete withdrawal of the product from the market or product recalls;

 

   

fines, Warning Letters or Untitled Letters, holds or termination of post-approval clinical trials or FDA debarment;

 

   

delay or refusal of the FDA to approve pending NDAs or supplements to approved NDAs, or suspension or revocation of product license approvals;

 

   

regulatory authority, including the FDA, issued safety alerts, Dear Healthcare Provider letters, press releases or other communications containing warnings about such products;

 

   

mandated modifications to promotional material or issuance of corrective information;

 

   

product seizure or detention, or refusal to permit the import or export of products; or

 

   

injunctions or the imposition of civil or criminal penalties, including imprisonment, disgorgement and restitution, as well as consent decrees, corporate integrity agreements, deferred prosecution agreements and exclusion from federal healthcare programs.

 

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If we are unable to design, conduct and complete clinical trials successfully, our drug candidates will not be able to receive regulatory approval.

In order to obtain FDA approval for any of our drug candidates, we must submit to the FDA an NDA that demonstrates with substantive evidence that the drug candidate is both safe and effective in humans for its intended use. This demonstration requires significant research and animal tests, which are referred to as preclinical studies, as well as human tests, which are referred to as clinical trials.

Results from Phase 1 clinical programs may not support moving a drug candidate to Phase 2 or Phase 3 clinical trials. Phase 3 clinical trials may not demonstrate the safety or efficacy of our drug candidates. Success in preclinical studies and early clinical trials does not ensure that later clinical trials will be successful. Results of later clinical trials may not replicate the results of prior clinical trials and preclinical studies. Even if the results of Phase 3 clinical trials are positive, we may have to commit substantial time and additional resources to conducting further preclinical studies and clinical trials before obtaining FDA approval for any of our drug candidates.

Clinical trials are very expensive and difficult to design and implement, in part because they are subject to rigorous requirements. The clinical trial process also consumes a significant amount of time. Furthermore, if participating patients in clinical trials suffer drug-related adverse reactions during the course of such clinical trials, or if we or the FDA believe that participating patients are being exposed to unacceptable health risks, such clinical trials will have to be suspended or terminated. Failure can occur at any stage of the clinical trials, and we could encounter problems that cause abandonment or repetition of clinical trials. The success in clinical trials depends on reaching statistically significant changes in patients’ symptoms based on clinician-rated scales. Due in part to a lack of consensus on standardized processes for assessing clinical outcomes, these scores may or may not be reliable, useful or acceptable to regulatory agencies.

We do not know whether any of our planned clinical trials will result in marketable drugs. In addition, completion of clinical trials can be delayed by numerous factors, including:

 

   

delays in identifying and agreeing on acceptable terms with prospective clinical trial sites;

 

   

slower than expected rates of patient recruitment and enrollment;

 

   

unanticipated patient dropout rates; and

 

   

increases in time required to complete monitoring of patients during or after participation in a clinical trial.

Any of these delays could significantly impact the timing, approval and commercialization of our drug candidates and could significantly increase our overall costs of drug development.

Even if clinical trials are completed as planned, their results may not support expectations or intended marketing claims. The clinical trials process may fail to demonstrate that our drug candidates are safe and effective for indicated uses. Such failure would cause us to abandon a drug candidate and could delay development of other drug candidates.

We cannot predict whether regulatory agencies will determine that the data from our clinical trials of our product candidates supports marketing approval.

The FDA’s and other regulatory agencies’ decision to approve our drug candidates will depend on our ability to demonstrate with substantial clinical evidence through well-controlled clinical trials, that the product candidates are effective, as measured statistically by comparing the overall improvement in actively-treated patients against improvement in the control group (usually a placebo control). However, there is a possibility that our data may fail to show a statistically significant difference from the placebo-control or the active control.

 

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Alternatively, there is a possibility that our data may be statistically significant, but that the actual clinical benefit of the product candidates may not be considered to be clinically significant, clinically relevant or clinically meaningful. Consequently, we believe that the FDA may consider additional data, such as a “responder” analysis, secondary efficacy endpoints and safety when evaluating whether our product candidates can be approved. We cannot predict whether the regulatory agencies will find that our clinical trial results provide compelling “responder” or other secondary endpoint data. Even if we believe that the data from our trials will support marketing approval in the United States or in Europe, we cannot predict whether the agencies will agree with our analysis and approve our applications.

There is no guarantee that the FDA will grant NDA approval of our current or future product candidates and failure to obtain necessary clearances or approvals for our current and future product candidates would adversely affect our ability to grow our business.

We are currently conducting a Phase IIb/III clinical trial for ZYESAMI, the NeuroRx COVID-19 Drug, and in the future expect to submit an NDA to the FDA for approval of ZYESAMI for the treatment of COVID-19.

NeuroRx initiated a Phase IIb/III clinical research program of NRX-101 during the second half of 2017 under an FDA Investigational New Drug (“IND”) application that was granted Fast Track designation by the FDA in August 2017 and was granted Breakthrough Therapy designation by the FDA in November 2018. In April 2018, the FDA granted a Special Protocol Agreement. We successfully completed a Phase II clinical trial of NRX-101 in patients with Severe Bipolar Depression and Acute Suicidal Ideation following stabilization with a single dose of ketamine and saw a statistically significant reduction in depression (P=0.04) and suicidal ideation (P=0.02) compared to lurasidone alone over 42 days of treatment. No Serious Adverse Events or dose-limiting adverse events were seen in the NRX-101 group. If this statistically-significant advantage is replicated in the Phase III clinical trial, under the terms agreed to with the FDA in our Special Protocol Agreement, we aim to submit an NDA to the FDA for the regulatory approval and commercialization of NRX-101 in the United States by year end 2021 and marketing authorization applications (“MAAs”) with the European Medicines Agency (“EMA”) by 2022.

However, we cannot assure you that the FDA will approve or clear ZYESAMI, NRX-101, or other product candidates for the indications that are necessary or desirable for successful commercialization. Indeed, the FDA may refuse our requests for NDA market approval of new products, new intended uses or indications to existing or future products. Failure to receive approval for our new products would have an adverse effect on our ability to expand our business.

With respect to clinical trials, discussions and guidance are not binding obligations on the part of regulatory authorities.

Regulatory authorities may revise previous guidance or decide to ignore previous guidance at any time during the course of our clinical activities or after the completion of our clinical trials. Even with successful clinical safety and efficacy data, including such data from a clinical trial conducted pursuant to a special protocol agreement, we may be required to conduct additional, expensive clinical trials to obtain regulatory approval.

The results of our current or future clinical trials may not support our product candidate claims or may result in the discovery of unexpected adverse side effects.

Even if our clinical trials are completed as planned, we cannot be certain that their results will support our drug candidates’ claims or that the FDA or foreign authorities will agree with our conclusions regarding them. Success in pre-clinical studies and early clinical trials does not ensure that later clinical trials will be successful, and we cannot be sure that the later trials will replicate the results of prior trials and pre-clinical studies. In particular, our clinical trials performed until now involve a relatively small patient population. Because of the small sample size, their results may not be indicative of future results. It is also possible that patients enrolled in clinical trials will experience adverse side effects that are not currently part of the product candidate’s profile. Accordingly, the clinical trial process may fail to demonstrate that our drug candidates are safe and effective for the proposed indicated uses. If FDA concludes that the clinical trials for any of our products for which we might

 

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seek clearance have failed to demonstrate safety and effectiveness, we would not receive FDA clearance to market that product in the United States for the indications sought. In addition, such an outcome could cause us to abandon the product candidate and might delay development of others. Any delay or termination of our clinical trials will delay the filing of any product submissions with the FDA or foreign authorities and, ultimately, our ability to commercialize our product candidates and generate revenues.

Delays in the commencement or completion of pharmaceutical development, manufacturing or clinical efficacy and safety testing could result in increased costs to us and delay our ability to generate revenues.

We do not know whether our pharmaceutical development, manufacturing or clinical efficacy and safety testing will begin on time or be completed on schedule, if at all. For example, we may encounter delays during the manufacture of pilot scale batches including delays with our contract development or manufacturing organization, sourcing satisfactory quantities of active pharmaceutical ingredient, narcotic import and export permits, sourcing of excipients, contract disputes with our third-party vendors and manufacturers, or failure of the product to meet specification.

The commencement and completion of clinical trials can be disrupted for a variety of reasons, including difficulties in:

 

   

recruiting and enrolling patients to participate in a clinical trial;

 

   

obtaining regulatory approval to commence a clinical trial;

 

   

reaching agreement on acceptable terms with prospective clinical research organizations and trial sites;

 

   

manufacturing sufficient quantities of a product candidate;

 

   

investigator fraud, including data fabrication by clinical trial personnel;

 

   

diversion of controlled substances by clinical trial personnel; and

 

   

A clinical trial may also be suspended or terminated by us, the FDA or other regulatory authorities due to a number of factors, including:

 

   

failure to conduct the clinical trial in accordance with regulatory requirements or in accordance with our clinical protocols;

 

   

inspection of the clinical trial operations or trial site by the FDA or other regulatory authorities resulting in the imposition of a clinical hold;

 

   

unforeseen safety issues; or

 

   

inadequate patient enrollment or lack of adequate funding to continue the clinical trial.

In addition, changes in regulatory requirements and guidance may occur and we may need to amend clinical trial protocols to reflect these changes, which could impact the cost, timing or successful completion of a clinical trial. If we experience delays in the commencement or completion of our clinical trials, the commercial prospects for our product candidates will be harmed, and our ability to generate product revenues will be delayed. Many of the factors that cause, or lead to, a delay in the commencement or completion of clinical trials may also lead to the denial of regulatory approval of a product candidate.

Conducting successful clinical studies may require the enrollment of large numbers of patients, and suitable patients may be difficult to identify and recruit.

Patient enrollment in clinical trials and completion of patient participation and follow-up depends on many factors, including the size of the patient population; the nature of the trial protocol; the attractiveness of, or the discomforts and risks associated with, the treatments received by enrolled subjects; the availability of appropriate clinical trial investigators; support staff; the number of ongoing clinical trials in the same indication that compete for

 

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the same patients; and proximity of patients to clinical sites and ability to comply with the eligibility and exclusion criteria for participation in the clinical trial and patient compliance. For example, patients may be discouraged from enrolling in our clinical trials if the trial protocol requires them to undergo extensive post-treatment procedures or follow-up to assess the safety and effectiveness of our products or if they determine that the treatments received under the trial protocols are not attractive or involve unacceptable risks or discomforts. Patients may also not participate in our clinical trials if they choose to participate in contemporaneous clinical trials of competitive products.

Development of sufficient and appropriate clinical protocols to demonstrate safety and efficacy are required and we may not adequately develop such protocols to support clearance and approval.

The FDA may require us to submit data on a greater number of patients than we originally anticipated and/or for a longer follow-up period or change the data collection requirements or data analysis applicable to our clinical trials. They may also require additional data on certain categories of patients, should it emerge during the conduct of our clinical trials that certain categories of patients are likely to be affected in different and/or additional manner than most of the patients. In addition to FDA requirements, our clinical trial requires the approval of the institutional review board, or IRB, at each site selected for participation in our clinical trial.

Additional delays to the completion of clinical studies may result from modifications being made to the protocol during the clinical trial, if such modifications are warranted and/or required by the occurrences in the given trial.

We may choose to make modifications to a clinical trial protocol during the clinical trial if such modifications are warranted and/or required by the occurrences in the trial. Each of such modifications has to be submitted to the FDA. This could result in the delay or halt of a clinical trial while the modification is evaluated. In addition, depending on the magnitude and nature of the changes made, the FDA could take the position that the data generated by the clinical trial cannot be pooled because the same protocol was not used throughout the trial. This might require the enrollment of additional subjects, which could result in the extension of the clinical trial and the FDA delaying clearance or approval of a product.

There can be no assurance that the data generated using modified protocols will be acceptable to the FDA.

There can be no assurance that the data generated using modified protocols will be acceptable to the FDA or that if future modifications during the trial are necessary, any such modifications will be acceptable to the FDA. If the FDA believes that its prior approval is required for a particular modification, it can delay or halt a clinical trial while it evaluates additional information regarding the change.

If an adverse event occurs during a clinical trial, the FDA or an IRB may delay or terminate the trial, which could adversely affect our business and prospects.

Serious injury or death resulting from a failure of one of our drug candidates during current or future clinical trials could result in the FDA delaying our clinical trials or denying or delaying clearance or approval of a product. Even though an adverse event may not be the result of the failure of our drug candidate, the FDA or an IRB could delay or halt a clinical trial for an indefinite period of time while an adverse event is reviewed, and likely would do so in the event of multiple such events.

Any delay or termination of our current or future clinical trials as a result of the risks summarized above, including delays in obtaining or maintaining required approvals from IRBs, delays in patient enrollment, the failure of patients to continue to participate in a clinical trial, and delays or termination of clinical trials as a result of protocol modifications or adverse events during the trials, may cause an increase in costs and delays in the filing of any product submissions with the FDA, delay the approval and commercialization of our products or result in the failure of the clinical trial, which could adversely affect our business, operating results and prospects. Lengthy delays in the completion of clinical trials of our products would adversely affect our business and prospects and could cause us to cease operations.

 

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Developments by competitors may establish standards of care that affect our ability to conduct our clinical trials as planned.

Changes in standards related to clinical trial design could affect our ability to design and conduct clinical trials as planned. For example, regulatory authorities may not allow us to compare our drug candidates to placebo in a particular clinical indication where approved products are available. In that case, both the cost and the amount of time required to conduct a clinical trial could increase.

Even if our products are approved by regulatory authorities, if we or our suppliers fail to comply with ongoing FDA regulation or if we experience unanticipated problems with our products, these products could be subject to restrictions or withdrawal from the market.

Any product for which we obtain clearance or approval, and the manufacturing processes, reporting requirements, post-approval clinical data and promotional activities for such product, will be subject to continued regulatory review, oversight and periodic inspections by the FDA. In particular, we and our suppliers are required to comply with the FDA’s Quality System Regulations, or QSR, and International Standards Organization, or ISO, regulations for the manufacture of our products and other regulations which cover the methods and documentation of the design, testing, production, control, quality assurance, labeling, packaging, storage and shipping of any product for which we obtain clearance or approval. Regulatory bodies, such as the FDA, enforce these regulations through periodic inspections. The failure by us or one of our suppliers to comply with applicable statutes and regulations administered by the FDA and other regulatory bodies, or the failure to timely and adequately respond to any adverse inspectional observations or product safety issues could result in, among other things, enforcement actions by the FDA.

If any of these actions were to occur it would harm our reputation and cause our product sales and profitability to suffer and may prevent us from generating revenue. Furthermore, our key component suppliers may not currently be or may not continue to be in compliance with all applicable regulatory requirements which could result in our failure to produce our products on a timely basis and in the required quantities, if at all.

Even if regulatory clearance or approval of a product is granted, such clearance or approval may be subject to limitations on the intended uses for which the product may be marketed and reduce the potential to successfully commercialize the product and generate revenue from the product. If the FDA determines that the product promotional materials, labeling, training or other marketing or educational activities constitute promotion of an unapproved use, it could request that we or our commercialization partners cease or modify our training or promotional materials or subject us to regulatory enforcement actions. It is also possible that other federal, state or foreign enforcement authorities might take action if they consider such training or other promotional materials to constitute promotion of an unapproved use, which could result in significant fines or penalties under other statutory authorities, such as laws prohibiting false claims for reimbursement.

In addition, we may be required to conduct costly post-market testing and surveillance to monitor the safety or effectiveness of our products, and we must comply with adverse event and pharmacovigilance reporting requirements, including the reporting of adverse events which occur in connection with, and whether or not directly related to, our products. Later discovery of previously unknown problems with our products, including unanticipated adverse events or adverse events of unanticipated severity or frequency, manufacturing problems, or failure to comply with regulatory requirements, may result in changes to labeling, restrictions on such products or manufacturing processes, withdrawal of the products from the market, voluntary or mandatory recalls, a requirement to recall, replace or refund the cost of any product we manufacture or distribute, fines, suspension of regulatory approvals, product seizures, injunctions or the imposition of civil or criminal penalties which would adversely affect our business, operating results and prospects.

Future government regulation may affect the commercialization of our product candidate.

We cannot predict the likelihood, nature or extent of adverse government regulation that may arise from future legislation or administrative action, either in the United States or abroad. If we are not able to maintain regulatory

 

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compliance, we may be subject to fines, suspension or withdrawal of regulatory approvals, product recalls, seizure of products, operating restrictions and criminal prosecution. Any of these events could prevent us from marketing our drugs and our business could suffer. If time and resources devoted are limited or there is a failure to fund the continued development of our drug candidates or there is otherwise a failure to perform as we expect to do, we may not achieve clinical and regulatory milestones and regulatory submissions and related product introductions may be delayed or prevented, and revenues that we would receive from these activities will be less than expected.

Conducting clinical trials of our drug candidates or commercial sales of a drug candidate may expose us to expensive product liability claims and we may not be able to maintain product liability insurance on reasonable terms or at all.

The risk of product liability is inherent in the testing of pharmaceutical products. If we cannot successfully defend ourselves against product liability claims, we may incur substantial liabilities or be required to limit or terminate testing of one or more of our drug candidates. Our inability to obtain sufficient product liability insurance at an acceptable cost to protect against product liability claims could prevent or inhibit the commercialization of our drug candidates. We currently carry clinical trial insurance but do not carry product liability insurance. If we successfully commercialize one or more of our drug candidates, we may face product liability claims, regardless of FDA approval for commercial manufacturing and sale. We may not be able to obtain such insurance at a reasonable cost, if at all. Even if our agreements with any current or future corporate collaborators entitle us to indemnification against product liability losses, such indemnification may not be available or adequate should any claim arise.

The use of a controlled substance in our NRX-100 drug candidate subjects us to DEA scrutiny and compliance, which may result in additional expense and clinical delays.

The U.S. Drug Enforcement Administration, or DEA, regulates chemical compounds as Schedule I, II, III, IV or V substances, with Schedule I substances considered to present the highest risk of substance abuse and Schedule V substances the lowest risk. One of the ingredients in the NeuroRx Antidepressant Drug Regimen, NRX-100, is ketamine, a Schedule III controlled substance with high abuse potential. Consequently, the manufacture, research, shipment, storage, sale and use of this drug candidate is subject to a high degree of oversight and regulation. None of our other drugs currently under development, including NRX-101 and ZYESAMI, include a scheduled chemical compound.

DEA oversight and regulation can have the following impact on our efforts to develop new drug candidates:

 

   

interference with, or limits on, the supply of the drugs used in clinical trials for our product candidates, and, in the future, the ability to produce and distribute our products in the volume needed to meet commercial demand;

 

   

the FDA provides recommendations to DEA as to whether a drug should be scheduled as a controlled substance and the appropriate level of control; if DEA scheduling is required, a drug product may not be marketed until the scheduling process is completed, which could delay the launch of the product;

 

   

depending on the Schedule, drug products may be subject to registration, security, recordkeeping, reporting, storage, distribution, importation, exportation, inventory, quota and other requirements administered by the DEA, which are directly applicable to product applicants, contract manufacturers, distributors, prescribers and dispensers of controlled substances.

 

   

the DEA regulates the handling of controlled substances through a closed chain of distribution. This control extends to the equipment and raw materials used in their manufacture and packaging in order to prevent loss and diversion into illicit channels of commerce, which limits our ability to increase the availability of any controlled substances needed for clinical trials or commercial manufacturing.

Annual registration is required for any facility that manufactures, distributes, dispenses, imports or exports any controlled substance. The registration is specific to the particular location, activity and controlled substance

 

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schedule. For example, separate registrations are needed for import and manufacturing, and each registration will specify which schedules of controlled substances are authorized. Similarly, separate registrations are also required for separate facilities.

There are substantial penalties for failing to comply with DEA regulations.

The DEA typically inspects a facility to review its security measures prior to issuing a registration and on a periodic basis. Security requirements vary by controlled substance schedule, with the most stringent requirements applying to Schedule I and Schedule II substances. However, records must be maintained for the handling of all controlled substances, and periodic reports may be required to made to the DEA for the distribution of certain controlled substances. Reports must also be made for thefts or significant losses of any controlled substance. To enforce these requirements, the DEA conducts periodic inspections of registered establishments that handle controlled substances. Failure to maintain compliance with applicable requirements, particularly as manifested in loss or diversion, can result in administrative, civil or criminal enforcement. The DEA may seek civil penalties, refuse to renew necessary registrations, or initiate administrative proceedings to revoke those registrations. In some circumstances, violations could result in criminal proceedings or consent decrees. Individual states also independently regulate controlled substances.

There are limitations on the availability of controlled substances used in NRX-100 that may limit the availability of the active ingredients in certain of the NeuroRx Antidepressant Drug Regimen.

The DEA limits the availability and production of all scheduled substances, including ketamine, through a quota system. The DEA requires substantial evidence and documentation of expected legitimate medical and scientific needs before assigning quotas to manufacturers. In future years, we may need greater amounts of controlled substances to sustain our Phase IIb/III development program for the NeuroRx Antidepressant Drug Regimen, and we will need significantly greater amounts to implement our commercialization plans if the FDA approves our proposed formulations. Any delay or refusal by the DEA in establishing the procurement quota or a reduction in our quota for scheduled controlled substances or a failure to increase it over time as we anticipate could delay or stop the clinical development or commercial sale of some of our products or product candidates. This could have a material adverse effect on our business, results of operations, financial condition and prospects.

We may not be able to demonstrate the reduced risk we believe is applicable.

Schedule III drugs have lower abuse potential than Schedule I and II drugs. However, despite the foregoing reduced risk of abuse from Schedule III drugs, when compared to Schedule II drugs, there is no assurance that such reduced risk can be demonstrated in well controlled non-clinical and/or clinical studies in models of physical dependence, psychic dependence, addiction or precipitated withdrawal, or in studies of addiction or abuse liability in addicts, ex-addicts or recreational drug users. In the event that a reduced risk of abuse from Schedule III drugs, when compared to Schedule II drugs, is demonstrated in well controlled non-clinical and/or clinical studies, there is no assurance that the FDA will agree to incorporation of such favorable language in the products prescribing information.

The use of controlled substances in our product candidates may generate controversy.

Products containing controlled substances may generate public controversy. Opponents of these products may seek restrictions on marketing and withdrawal of any regulatory approvals. In addition, these opponents may seek to generate negative publicity in an effort to persuade the medical community to reject these products. Political pressures and adverse publicity could lead to delays in, and increased expenses for, and limit or restrict the introduction and marketing of, our product candidates.

We may need to focus our future efforts in new therapeutic areas where we have little or no experience.

Although our primary strategic interests are in the areas of depression and COVID-19 therapies, ZYESAMI and NRX-101 have potential benefits in other therapeutic areas. If our drug development efforts in bipolar

 

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depression fails, or if the competitive landscape or investment climate for antidepressant drug development or COVID-19 therapies is less attractive, we may need to change our strategic focus to include development of our product candidates, or of newly acquired product candidates, for therapeutic areas other than depression and COVID-19. We have very limited drug development experience in other therapeutic areas and we may be unsuccessful in making this change to a company with a focus in areas other than depression and COVID-19 or a company with a focus in multiple therapeutic areas including depression and COVID-19.

Some of our products for clinical trials may be manufactured outside the United States.

There is no guarantee that we will secure a supply agreement with a manufacturer based in the United States. Switching or adding manufacturing capability outside the United States can involve substantial cost and require extensive management time and focus, additional regulatory filings and compliance with import/export regulations. In addition, there is a natural transition period when a new manufacturing facility commences work. As a result, delays may occur, which can materially impact our ability to meet our desired timelines, thereby increasing our costs and reducing our ability to generate revenue.

Modifications to our products may require new NDA approvals.

Once a particular company product receives FDA approval or clearance, expanded uses or uses in new indications of our products may require additional human clinical trials and new regulatory approvals or clearances, including additional IND and NDA submissions and premarket approvals before we can begin clinical development, and/or prior to marketing and sales. If the FDA requires new clearances or approvals for a particular use or indication, we may be required to conduct additional clinical studies, which would require additional expenditures and negatively impact our operating results. If the products are already being used for these new indications, we may also be subject to significant enforcement actions.

Conducting clinical trials and obtaining clearances and approvals can be a time-consuming process, and delays in obtaining required future clearances or approvals could adversely affect our ability to introduce new or enhanced products in a timely manner, which in turn would harm our future growth.

Some of our other product candidates will require Risk Evaluation and Mitigation Strategies (REMS).

The FDA Amendments Act of 2007 implemented safety-related changes to product labeling and requires the adoption of REMS. Some of our product candidates, including the controlled substance-based products and potentially others, will require REMS. The REMS may include requirements for special labeling or medication guides for patients, special communication plans to health care professionals and restrictions on distribution and use. We cannot predict the specific REMS to be required as part of the FDA’s approval of any of our products. Depending on the extent of the REMS requirements, our costs to commercialize our products may increase significantly. Furthermore, controlled substances risks that are not adequately addressed through proposed REMS for our product candidates may also prevent or delay their approval for commercialization.

We are reliant on third party manufacturers to produce controlled substances that conform to our specifications and the FDA’s strict regulatory requirements.

The facilities of any of our future manufacturers of controlled substances must be approved by the FDA after we submit our NDA and before approval. We are dependent on the continued adherence of third party manufacturers to cGMP manufacturing. If our manufacturers cannot successfully produce material that conforms to our specifications and the FDA’s strict regulatory requirements, they will not be able to secure FDA approval for their manufacturing facilities. If the FDA does not approve these facilities for the commercial manufacture, we will need to find alternative suppliers, which would result in significant delays in obtaining FDA approvals. These challenges may have a material adverse impact on our business, results of operations, financial condition and prospects.

 

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Risks Related to Intellectual Property

Our business relies on certain licensing rights that can be terminated in certain circumstances.

Our ability to continue to develop our product candidates is dependent on the use of certain intellectual property that is licensed to us, or in the process of being licensed to us, by third parties. These licenses are granted, or being granted, pursuant to agreements setting forth certain terms and condition for maintaining such licenses. In the event that the terms and conditions are not met, the licenses are at risk of being revoked and the granting process may be terminated. The primary license agreements include the Glytech License, the Herzog License, the SUNY License and the Collaboration Agreement with Relief Therapeutics. See “Business of NeuroRx — Summary of NeuroRx Material In-Licensing Obligations.”

We may require additional licensing rights in the future, which may not be attainable.

Our ability to fully develop the full commercial potential of our product candidates may require NeuroRx to acquire additional licensing rights from third parties in the future. There are no assurances that such rights will be available in the market when required, or that an agreement could be reached to license such rights from a third party on terms acceptable to NeuroRx.

We may not succeed at in-licensing drug candidates or technologies to expand our product pipeline.

We may not be able to successfully in-license (i.e., licensing of patent technology or know-how developed by a third party in lieu of developing the technology ourselves) drug candidates or technologies to expand our product pipeline. The number of such candidates and technologies is limited. Competition among large pharmaceutical companies and biopharmaceutical companies for promising drug candidates and technologies is intense because such companies generally desire to expand their product pipelines through in-licensing. If we are unable to carry out such in-licensing and expand our product pipeline, our potential future revenues may suffer.

Our business depends upon securing and protecting critical intellectual property.

Our commercial success will depend in part on our obtaining and maintaining patent, trade secret, copyright and trademark protection of our technologies in the United States and other jurisdictions as well as successfully enforcing this intellectual property and defending this intellectual property against third-party challenges. We will only be able to protect our technologies from unauthorized use by third parties to the extent that valid and enforceable intellectual property protection, such as patents or trade secrets, cover them. In particular, we place considerable emphasis on obtaining patent and trade secret protection for significant new technologies, products and processes. Furthermore, the degree of future protection of our proprietary rights is uncertain because legal means afford only limited protection and may not adequately protect our rights or permit us to gain or keep our competitive advantage. Moreover, the degree of future protection of our proprietary rights is uncertain for products that are currently in the early stages of development because we cannot predict which of these products will ultimately reach the commercial market or whether the commercial versions of these products will incorporate proprietary technologies.

Our patent position is highly uncertain and involves complex legal and factual questions.

Our patent position is highly uncertain and involves complex legal and factual questions. Accordingly, we cannot predict the breadth of claims that may be allowed or enforced in our patents or in third-party patents. For example, we or our licensors might not have been the first to make the inventions covered by each of our pending patent applications and issued patents; we or our licensors might not have been the first to file patent applications for these inventions; others may independently develop similar or alternative technologies or duplicate any of our technologies; it is possible that none of our pending patent applications or the pending patent applications of our licensors will result in issued patents; our issued patents and issued patents of our licensors may not provide a basis for commercially viable technologies, or may not provide us with any competitive advantages, or may be challenged and invalidated by third parties; and, we may not develop additional proprietary technologies that are patentable.

 

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As a result, the validity of our owned and licensed patents may be challenged and we may not be able to obtain and enforce patents and to maintain trade secret protection for the full commercial extent of our technology. The extent to which we are unable to do so could materially harm our business.

We or our licensors have applied for and will continue to apply for patents for certain products. Such applications may not result in the issuance of any patents, and any patents now held or that may be issued may not provide us with adequate protection from competition. Furthermore, it is possible that patents issued or licensed to us may be challenged successfully. In that event, if we have a preferred competitive position because of such patents, any preferred position held by us would be lost. If we are unable to secure or to continue to maintain a preferred position, we could become subject to competition from the sale of generic products. Failure to receive, inability to protect, or expiration of our patents would adversely affect our business and operations.

Patents issued or licensed to us may be infringed by the products or processes of others. The cost of enforcing our patent rights against infringers, if such enforcement is required, could be significant, and NeuroRx does not currently have the financial resources to fund such litigation. Further, such litigation can go on for years and the time demands could interfere with our normal operations and may absorb significant management time. There has been substantial litigation and other proceedings regarding patent and other intellectual property rights in the pharmaceutical industry. We may become a party to patent litigation and other proceedings. The cost to us of any patent litigation, even if resolved in our favor, could be substantial. Some of our competitors may be able to sustain the costs of such litigation more effectively than we can because of their substantially greater financial resources.

Unpatented trade secrets, improvements, confidential know-how and continuing technological innovation are important to our scientific and commercial success. Although we attempt to and will continue to attempt to protect our proprietary information through reliance on trade secret laws and the use of confidentiality agreements with our corporate partners, collaborators, employees and consultants and other appropriate means, these measures may not effectively prevent disclosure of our proprietary information, and, in any event, others may develop independently, or obtain access to, the same or similar information.

If we are found to be infringing on patents or trade secrets owned by others, we may be forced to cease or alter our product development efforts, obtain a license to continue the development or sale of our products, and/or pay damages.

Our manufacturing processes and potential products may violate proprietary rights of patents that have been or may be granted to competitors, universities or others, or the trade secrets of those persons and entities. As the pharmaceutical industry expands and more patents are issued, the risk increases that our processes and potential products may give rise to claims that they infringe the patents or trade secrets of others. These other persons could bring legal actions against us claiming damages and seeking to enjoin clinical testing, manufacturing and marketing of the affected product or process. If any of these actions are successful, in addition to any potential liability for damages, we could be required to obtain a license in order to continue to conduct clinical tests, manufacture or market the affected product or use the affected process. Required licenses may not be available on acceptable terms, if at all, and the results of litigation are uncertain. If we become involved in litigation or other proceedings, it could consume a substantial portion of our financial resources and the efforts of our personnel.

Our ability to protect and enforce our patents does not guaranty that we will secure the right to commercialize our patents.

A patent is a limited monopoly right conferred upon an inventor, and his successors in title, in return for the making and disclosing of a new and non-obvious invention. This monopoly is of limited duration but, while in force, allows the patent holder to prevent others from making and/or using his invention. While a patent gives the holder this right to exclude others, it is not an authorization to commercialize the invention, where other

 

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permissions may be required for permissible commercialization to occur. For example, a drug cannot be marketed without the appropriate authorization from the FDA, regardless of the existence of a patent covering the product. Further, the invention, even if patented itself, may not be able to be successfully commercialized if it infringes the valid patent rights of another party.

We rely on confidentiality agreements to protect our trade secrets. If these agreements are breached by our employees or other parties, our trade secrets may become known to our competitors.

We rely on trade secrets that we seek to protect through confidentiality agreements with our employees and other parties. If these agreements are breached, our competitors may obtain and use our trade secrets to gain a competitive advantage over us. We may not have any remedies against our competitors and any remedies that may be available to us may not be adequate to protect our business or compensate us for the damaging disclosure. In addition, we may have to expend resources to protect our interests from possible infringement by others.

If we are unable to obtain the statutory patent extension related to the review time in the United States, we may need to rely on the 3-year Hatch-Waxman Act marketing exclusivity, the six month pediatric exclusivity, any approved 7- year Orphan Drug exclusivities, potential future formulation patents and up to ten years of data exclusivity in Europe. See “Risks Related to Clinical and Regulatory Matters — We may not be able to obtain Hatch-Waxman Act marketing exclusivity or equivalent regulatory data exclusivity protection in other jurisdictions for our products.”

We may not receive royalty or milestone revenue relating to our product candidates under our collaboration and future license agreements for several years, or at all.

We expect that our future collaboration agreements and future license agreements relating to our product candidates will provide for payments on achievement of development or commercialization milestones and for royalties on product sales. However, because none of our drug candidates has been approved for commercial sale, many of our drug candidates are at early stages of development and drug development entails a high risk of failure, we may never realize much of the milestone revenue provided for in our future collaboration and future license agreements and we do not expect to receive any royalty revenue for several years, if at all. Similarly, drugs we select to commercialize ourselves, or partner for later stage co-development and commercialization, may not generate revenue for several years, or at all.

Risks Related to Our Reliance on Third Parties

We do not have direct control of third parties performing preclinical and clinical trials.

We may depend on independent investigators and collaborators, such as universities and medical institutions, to conduct our preclinical and clinical trials under agreements with us. These investigators and collaborators are not our employees and we cannot control the amount or timing of resources that they devote to our programs. They may not assign as great a priority to our programs or pursue them as diligently as we would if we were undertaking such activities ourselves. If these investigators or collaborators fail to devote sufficient time and resources to our drug development programs, or if their performance is substandard, the approval of our regulatory submissions and our introductions of new drugs will be delayed or prevented.

Our potential collaborators may also have relationships with other commercial entities, some of which may compete with us. If outside collaborators assist our competitors to our detriment, the approval of our regulatory submissions will be delayed and the sales from our products, if any are commercialized, will be less than expected.

 

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If the third parties on which we rely to conduct our clinical trials and to assist us with pre-clinical development do not perform as contractually required or expected, we may not be able to obtain regulatory approval for or commercialize our products.

We do not have the ability to independently conduct all the pre-clinical and clinical trials for our products and we must rely on third parties, such as contract research organizations, medical institutions, clinical investigators and contract laboratories to conduct such trials. If these third parties do not successfully carry out their contractual duties or regulatory obligations or meet expected deadlines, if these third parties need to be replaced, or if the quality or accuracy of the data they obtain is compromised due to the failure to adhere to our clinical protocols or regulatory requirements or for other reasons, our pre-clinical development activities or clinical trials may be extended, delayed, suspended or terminated, and we may not be able to obtain regulatory approval for, or successfully commercialize, our products on a timely basis, if at all, and our business, operating results and prospects may be adversely affected. Furthermore, our third-party clinical trial investigators may be delayed in conducting our clinical trials for reasons outside of their control.

We have no manufacturing capabilities and depend on other parties for our manufacturing operations. If these manufacturers fail to meet our requirements and strict regulatory requirements, our product development and commercialization efforts may be materially harmed.

We currently depend on contract manufacturers. We plan to enter into long-term commercial supply agreements for our product candidates. If any manufacturer is unable to produce required quantities on a timely basis or at all, our operations would be delayed and our business harmed. Our reliance on contract manufacturers exposes us to additional risks, including:

 

   

failure of our future manufacturers to comply with strictly-enforced regulatory requirements;

 

   

failure to manufacture to our specifications, or to deliver sufficient quantities in a timely manner;

 

   

the possibility that we may terminate a contract manufacturer and need to engage a replacement;

 

   

the possibility that our future manufacturers may not be able to manufacture our product candidates and products without infringing the intellectual property rights of others;

 

   

the possibility that our future manufacturers may not have adequate intellectual property rights to provide for exclusivity and prevent competition; and

 

   

insufficiency of intellectual property rights to any improvements in the manufacturing processes or new manufacturing processes for our products.

Any of these factors could result in significant delay or suspension of our clinical trials, regulatory submissions, receipt of required approvals or commercialization of our products and harm our business. If we are not able to secure favorable arrangements with such third parties, our business and financial condition could be harmed.

We must enter into agreements with, and depend upon, one or more partners to assist us in commercializing our product candidates.

Because of our limited financial and other resources, we must actively seek and enter into a collaboration with one or more partners to assist us in our product launch, if marketing approval is granted. Our ability to commercialize does not depend upon future performance by Relief Therapeutics. However, it does depend upon continued ability to purchase raw materials from suppliers, our ability to arrange manufacture at contract manufacturers, our ability to deploy commercial sales force via third party partnerships, and our ability to manage shipping and logistics. Any collaboration agreement we enter into may contain unfavorable terms, for example, with respect to product candidates covered, control over decisions and responsibilities, termination rights, payment, and other significant terms.

 

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Our ability to receive any significant revenue from our product candidates covered by the collaboration agreement will be dependent on the efforts of our collaboration partner and may result in lower levels of income to us than if we marketed our product candidates entirely on our own. The collaboration partner may not fulfil its obligations or commercialize our product candidates as quickly as we would like. Even if the collaboration partner performs well, there is no assurance that our proposed products will achieve acceptance by patients, health care providers and insurance companies.

We could also become involved in disputes with our partner, which could lead to delays in or termination of our commercialization programs and time-consuming and expensive litigation or arbitration. If a collaboration partner terminates or breaches its agreement with us, or otherwise fails to complete its obligations in a timely manner, the chances of successfully developing or commercializing our product candidates would be materially and adversely affected.

Additionally, depending upon the collaboration partner that we choose, other companies that might otherwise be interested in developing products with us could be less inclined to do so because of our relationship with the collaboration partner. If our ability to work with present or future strategic partners or collaborators is adversely affected as a result of our collaboration agreement, our business prospects may be limited and our financial condition may be adversely affected.

Upon commercialization of our products, we may be dependent on third parties to market, distribute and sell our products. If we are not successful in contracting with third parties for these services on favorable terms, or at all, our product revenues could be disappointing.

We have no experience selling, marketing or distributing products and no internal capability to do so. In order to commercialize our products, if any are approved by the FDA, we will either have to develop such capabilities internally or collaborate with third parties who can perform these services for us. If we decide to commercialize any of our drugs ourselves, we may not be able to hire the necessary experienced personnel and build sales, marketing and distribution operations which are capable of successfully launching new drugs and generating sufficient product revenues. In addition, establishing such operations will take time and involve significant expense.

If we decide to enter into new co-promotion or other licensing arrangements with third parties, we may be unable to locate acceptable collaborators because the number of potential collaborators is limited and because of competition from others for similar alliances with potential collaborators. Even if we are able to identify one or more acceptable new collaborators, we may not be able to enter into any collaborative arrangements on favorable terms, or at all.

In addition, any revenues we receive would depend upon our collaborators’ efforts which may not be adequate due to lack of attention or resource commitments, management turnover, change of strategic focus, business combinations or other factors outside of our control. Depending upon the terms of our collaboration, the remedies we have against an under-performing collaborator may be limited. If we were to terminate the relationship, it may be difficult or impossible to find a replacement collaborator on acceptable terms, or at all.

Risks Related to the Business Combination

BRPA may not have sufficient funds to consummate the business combination.

As of December 31, 2020, BRPA had approximately $446 available to it outside the trust account to fund its working capital requirements and approximately $6.0 million in the trust account. If these amounts prove to be insufficient to consummate an initial business combination, we will be required to seek additional financing. Such financing may not be available on acceptable terms, if at all. To the extent that additional financing proves to be unavailable when needed to consummate the proposed business combination with NeuroRx, BRPA would

 

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be compelled to either restructure the transaction or abandon it. If BRPA is unable to consummate the business combination because it does not have sufficient funds available, BRPA will be forced to cease operations and liquidate the trust account. Consequently, BRPA’s public stockholders may only receive $                 per share and their Warrants and Rights will expire worthless.

If BRPA’s stockholders fail to properly demand conversion rights, they will not be entitled to convert their Common Stock into a pro rata portion of the trust account.

BRPA stockholders holding Public Shares may demand that BRPA convert their Public Shares into a pro rata portion of the trust account, calculated as of two (2) business days prior to the annual meeting. To demand conversion rights, BRPA stockholders must deliver their shares (either physically or electronically) to BRPA’s transfer agent no later than two (2) business days prior to the annual meeting. Any stockholder who fails to properly demand conversion rights by delivering his, her, or its shares will not be entitled to convert his, her, or its shares into a pro rata portion of the trust account for conversion of his shares. See the section of this proxy statement / prospectus / consent solicitation statement titled “Annual Meeting of BRPA Stockholders — Conversion Rights” for the procedures to be followed if you wish to convert your shares to cash.

The business combination remains subject to conditions that BRPA cannot control and if such conditions are not satisfied or waived, the business combination may not be consummated.

The business combination is subject to a number of conditions, including the condition that BRPA have at least $5,000,0001 of net tangible assets (as determined in accordance with Rule 3a51-5(g)(1) of the Exchange Act), the condition that there is no legal prohibition against consummation of the business combination, that BRPA’s securities remain listed on Nasdaq through the closing and the shares of Common Stock to be issued in connection with the Transactions (including the Earnout Shares) be approved for listing on Nasdaq subject only to official notice of issuance thereof and the requirement to have a sufficient number of round lot holders, receipt of the BRPA Stockholder Approval, receipt of the NeuroRx Stockholder Approval, continued effectiveness of the registration statement of which this proxy statement / prospectus / consent solicitation statement is a part, the truth and accuracy of BRPA’s and NeuroRx’s representations and warranties made in the Merger Agreement, the non-termination of the Merger Agreement, and consummation of certain ancillary agreements. There are no assurances that all conditions to the business combination will be satisfied or that the conditions will be satisfied in the time frame expected. If the conditions to the business combination are not met (and are not waived, to the extent waivable), then either BRPA or NeuroRx may, subject to the terms and conditions of the Merger Agreement, terminate the Merger Agreement. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Merger Agreement — Waivers” and “—Termination.”

BRPA’s securities may be delisted prior to the consummation of the business combination.

On November 23, 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. Since BRPA’s registration statement became effective on November 20, 2017, it was required to complete an initial business combination by no later than November 20, 2020. The Rule also provides that failure to comply with this requirement will result in the Listing Qualifications Department issuing a Staff Delisting Determination under Rule 5810 to delist BRPA’s securities. The Listing Qualifications Department had advised BRPA that its securities would be subject to delisting unless it timely requested a hearing before an independent Hearings Panel. BRPA appealed the ruling and Nasdaq scheduled the appeal for January 14, 2021 (the “Nasdaq Appeal”). On January 4, 2021, BRPA received an additional notice from Nasdaq stating that BRPA’s failure to hold an annual stockholder meeting for the fiscal year ended December 31, 2019 by December 31, 2020, as required by Nasdaq Listing Rule 5820, could serve as an additional basis for delisting BRPA’s securities from Nasdaq, BRPA requested that this issue be added to the Nasdaq Appeal.

 

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On January 14, 2021, BRPA attended a hearing before the Nasdaq Hearings Panel with respect to the November 23, 2020 and January 2, 2021 delisting notices. During the hearing, BRPA 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 (“Extended Date”). Nasdaq’s decision is subject to certain conditions, including that BRPA will have completed the Merger with NeuroRx on or before the Extended Date and that NRX Pharmaceuticals will have demonstrated compliance with all requirements for initial listing on Nasdaq. While BRPA expects to complete the Merger by the Extended Date, there can be no assurance that it will be able to do so. As disclosed elsewhere in this proxy statement / prospectus / consent solicitation statement, the consummation of the Merger is subject to certain closing conditions and may be terminated prior to closing by the parties in certain circumstances, including in the event that the Merger is not consummated by May 24, 2021.

The Common Stock and Warrants may not be listed on a national securities exchange after the business combination, which could limit investors’ ability to make transactions in such securities and subject BRPA to additional trading restrictions.

BRPA has applied to have the Common Stock and Warrants listed on Nasdaq after the consummation of the business combination. BRPA will be required to meet the initial listing requirements to be listed, including having a minimum number of round lot stockholders. 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. Further, BRPA may not be able to meet the initial listing requirements in connection with the Transactions. Further, even if the Common Stock and Warrants are so listed, BRPA may be unable to maintain the listing of such securities in the future. If BRPA fails to meet the initial listing requirements and Nasdaq does not list the Common Stock or Warrants (and the related closing condition with respect to the listing of the Common Stock is waived by the parties), BRPA could face significant material adverse consequences, including:

 

   

a limited availability of market quotations for the Common Stock and Warrants;

 

   

a reduced level of trading activity in the secondary trading market for the Common Stock and Warrants;

 

   

a limited amount of news and analyst coverage for BRPA;

 

   

a decreased ability to issue additional securities or obtain additional financing in the future; and

 

   

BRPA’s securities would not be “covered securities” under the National Securities Markets Improvement Act of 1996, which is a federal statute that prevents or pre-empts the states from regulating the sale of certain securities, including securities listed on Nasdaq, in which case BRPA’s securities would be subject to regulation in each state where BRPA offers and sells securities.

Although publicly traded, the trading market in the Common Stock and Warrants may become substantially less liquid than the average trading market for a stock quoted on Nasdaq following the consummation of the business combination, and this low trading volume may adversely affect the price of the Common Stock and Warrants.

The trading volume of the Common Stock after consummation of the business combination may substantially decrease compared to other companies listed on Nasdaq due to the fact that there are a limited number of Public Shares currently trading and shares issued in the business combination will be subject to certain trading restrictions as described herein. Limited trading volume in the Common Stock will subject both the Common Stock and the Warrants to greater price volatility and may make it difficult for you to sell your Common Stock and Warrants at a price that is attractive to you. Limited trading volume in the Common Stock and Warrants may also result in BRPA’s failure to continue to meet the listing standards for Nasdaq.

 

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The exercise of BRPA’s directors’ and officers’ discretion in agreeing to changes or waivers in the terms of the business combination may result in a conflict of interest when determining whether such changes to the terms of the business combination or waivers of conditions are appropriate and in BRPA’s stockholders’ best interest.

In the period leading up to the closing of the business combination, events may occur that, pursuant to the Merger Agreement, would require BRPA to agree to amend the Merger Agreement, to consent to certain actions taken by NeuroRx or to waive rights that BRPA is entitled to under the Merger Agreement. Waivers may arise because of changes in the course of NeuroRx’s business, a request by NeuroRx to undertake actions that would otherwise be prohibited by the terms of the Merger Agreement or the occurrence of other events that would have a material adverse effect on NeuroRx’s business and would entitle BRPA to terminate the Merger Agreement. In any of such circumstances, it would be at BRPA’s discretion, acting through its board of directors, to grant its consent or waive those rights. The existence of the financial and personal interests of the directors and officers described in the following risk factors may result in a conflict of interest on the part of one or more of the directors or officers between what he, she, or they may believe is best for BRPA and what he, she or they may believe is best for himself, herself or themselves in determining whether or not to take the requested action. As of the date of this proxy statement / prospectus / consent solicitation statement, BRPA does not believe there will be any changes or waivers that BRPA’s directors and officers would be likely to make after stockholder approval of the business combination proposal has been obtained. While certain changes could be made without further stockholder approval, BRPA will circulate a new or amended proxy statement / prospectus / consent solicitation statement and resolicit BRPA’s stockholders if changes to the terms of the business combination would have a material impact on its stockholders or represent a fundamental change in the proposals being voted upon.

BRPA may issue additional Common Stock or other equity securities without seeking approval of the BRPA stockholders, which would dilute your ownership interests and may depress the market price of the Common Stock.

Upon consummation of the business combination, each of BRPA’s outstanding Rights will be exchanged for one-tenth of one share of Common Stock, for an aggregate of 717,250 shares of Common Stock. BRPA will have warrants outstanding to purchase up to an aggregate of 3,586,250 shares Common Stock and will have unit purchase options outstanding to purchase up to 600,000 Units (which Units will consist of an aggregate of 660,000 shares of Common Stock and 300,000 Warrants). Assuming the Earnout Shares Milestone is satisfied, BRPA will be required to issue an additional 25,000,000 shares of Common Stock to the NeuroRx Stockholders. Further, BRPA and NeuroRx may choose to seek third party financing to provide additional working capital for the NeuroRx business, in which event BRPA may issue additional equity securities. Following the consummation of the business combination, BRPA may also issue additional shares of Common Stock or other equity securities of equal or senior rank in the future for any reason or in connection with, among other things, future acquisitions, the redemption of outstanding Warrants, or repayment of outstanding indebtedness, without stockholder approval, in a number of circumstances.

BRPA’s issuance of additional shares of Common Stock or other equity securities of equal or senior rank would have the following effects:

 

   

BRPA’s existing stockholders’ proportionate ownership interest in BRPA will decrease;

 

   

the amount of cash available per share, including for payment of dividends in the future, may decrease;

 

   

the relative voting strength of each previously outstanding share of Common Stock may be diminished; and

 

   

the market price of the Common Stock may decline.

 

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The BRPA board of directors did not obtain a third-party fairness opinion in determining whether or not to proceed with the Transactions.

BRPA’s board of directors did not obtain a third-party fairness opinion in connection with their determination to approve the Transactions. In analyzing the business combination, BRPA’s board and management conducted due diligence on NeuroRx and researched the industry in which NeuroRx operates and concluded that the business combination was fair to and in the best interest of BRPA and its stockholders. The lack of a third-party fairness opinion may lead an increased number of stockholders to vote against the proposed Transactions or demand redemption of their shares for cash, which could potentially impact BRPA’s ability to consummate the Transactions or adversely affect BRPA’s liquidity following the consummation of the Transactions.

BRPA’s current directors and executive officers and their affiliates own shares of Common Stock and private placement Units that will be worthless if the business combination is not approved. Such interests may have influenced their decision to approve the business combination with NeuroRx.

BRPA’s officers and directors and/or their affiliates beneficially own shares of Common Stock and private placement Units that they purchased prior to, or simultaneously with, BRPA’s initial public offering. BRPA’s officers, directors and their affiliates have no redemption rights with respect to their shares of Common Stock and such shares of Common Stock and their private placement Units will be worthless in the event a business combination with NeuroRx or another target is not effected in the required time period. These financial interests may have influenced the decision of BRPA’s directors and officers to approve the business combination with NeuroRx and to continue to pursue such business combination. In considering the recommendations of BRPA’s board of directors to vote for the business combination proposals and other proposals, its stockholders should consider these interests. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposals — Interests of BRPA’s Directors and Officers in the Transactions.”

A/Z Partners, an affiliate of Richard Ackerman, BRPA’s Chairman, President and Chief Executive Officer, is liable to ensure that proceeds of the trust are not reduced by vendor claims in the event the business combination is not consummated. Such liability may have influenced Mr. Ackerman’s decision to pursue the business combination with NeuroRx and the board’s decision to approve it.

If the business combination with NeuroRx or another business combination is not consummated by NeuroRx on or before April 23, 2021(or May 24, 2021, if BRPA’s stockholders approve the proposed extension), A/Z Partners, an affiliate of Richard Ackerman, BRPA’s Chairman, President and Chief Executive Officer, will be liable to ensure that the proceeds in the trust account are not reduced by the claims of target businesses or claims of vendors or other entities that are owed money by BRPA for services rendered or contracted for or products sold to BRPA, but only if such a vendor or target business has not executed a waiver agreement. If BRPA consummates a business combination, on the other hand, BRPA will be liable for all such claims. BRPA has no reason to believe that A/Z Partners will not be able to fulfill its indemnity obligations to BRPA.

These obligations of A/Z Partners may have influenced Mr. Ackerman’s decision to pursue the business combination with NeuroRx or BRPA’s board of director’s decision to approve the business combination. In considering the recommendations of BRPA’s board of directors to vote for the business combination proposals and other proposals, BRPA’s stockholders should consider these interests. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposals — Interests of BRPA’s Directors and Officers in the Transactions.”

BRPA’s directors may decide not to enforce the indemnification obligations of A/Z Partners, resulting in a reduction in the amount of funds in the trust account available for distribution to BRPA’s public stockholders.

If proceeds in the trust account are reduced below $10.00 per Public Share and A/Z Partners asserts that it is unable to satisfy its obligations or that it has no indemnification obligations related to a particular claim, BRPA’s

 

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independent directors would determine whether to take legal action against A/Z Partners to enforce its indemnification obligations. While BRPA currently expects that its independent directors would take legal action on BRPA’s behalf against A/Z Partners to enforce A/Z Partners’ indemnification obligations to BRPA, it is possible that BRPA’s independent directors in exercising their business judgment may choose not to do so in any particular instance. If BRPA’s independent directors choose not to enforce these indemnification obligations, the amount of funds in the trust account available for distribution to BRPA’s public stockholders may be reduced below $10.00 per share.

Some of BRPA’s directors and executive officers may have financial interests in the business combination that are different from or are in addition to those of BRPA stockholders generally.

Some of BRPA’s directors and executive officers may have financial interests in the business combination that are different from, or are in addition to, those of BRPA stockholders generally. These interests could have affected their decision to support or approve the business combination. Such interests, among others, have been included in the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposals — Interests of BRPA’s Directors and Officers in the Transactions.”

Activities taken by existing BRPA stockholders to increase the likelihood of approval of the business combination proposals and other proposals could have a depressive effect on BRPA’s Common Stock.

At any time prior to the annual meeting, during a period when they are not then aware of any material nonpublic information regarding BRPA or its securities, BRPA, the holders of insider shares, NeuroRx, the NeuroRx officers and directors and/or their respective affiliates may purchase Common Stock from institutional and other investors who vote, or indicate an intention to vote, against the business combination proposal, or execute agreements to purchase such shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire shares of Common Stock or vote their shares of Common Stock in favor of the business combination proposal. The purpose of such purchases and other transactions would be to ensure that BRPA has in excess of $5,000,001 of net tangible assets to consummate the Transactions where it appears that such requirement would otherwise not be met. While the exact nature of any such incentives has not been determined as of the date of this proxy statement / prospectus / consent solicitation statement, they might include, without limitation, arrangements to protect such investors or holders against potential loss in value of their shares, including the granting of put options and the transfer to such investors or holders of shares owned by the Sponsor for nominal value. Entering into any such arrangements may have a depressive effect on the Common Stock. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares of Common Stock at a price lower than market and may therefore be more likely to sell the Common Stock he, she or they own, either prior to or immediately after the annual meeting.

The business combination may be completed even though material adverse effects may result from the announcement of the business combination, industry-wide changes and other causes.

In general, either BRPA or NeuroRx can refuse to complete the business combination if there is a material adverse effect affecting the other party between the signing date of the Merger Agreement and the planned closing. However, certain types of changes do not permit either party to refuse to complete the business combination, even if such change could be said to have a material adverse effect on NeuroRx or BRPA, including the following events (except, in some cases, where the change has a disproportionate effect on a party):

 

   

changes or developments in general U.S. or global economic conditions, including changes in interest rates or economic, political, business, financial, commodity, currency or market conditions generally;

 

   

changes in applicable Legal Requirements (as defined in the Merger Agreement), U.S. GAAP, or authoritative interpretations thereof;

 

   

any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism, cyberterrorism, civil unrest, military actions, natural or man-made disasters, weather conditions, epidemics, pandemics

 

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(including COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof)) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing);

 

   

any change, event, occurrence, effect, circumstance or development attributable to the announcement, pendency, negotiation or consummation of the Merger or any other Transactions or the execution or performance of the Merger Agreement, including, with respect to NeuroRx, the impact thereof on relationships, contractual or otherwise, with customers, suppliers, licensors, distributors, partners, providers and employees of NeuroRx or any of its subsidiaries;

 

   

any action taken or omitted to be taken by a party at the other party’s direction or written request, any action required or permitted to be taken or omitted to be taken by the Merger Agreement or any Ancillary Agreement (as defined in the Merger Agreement) or any action to which the other party has consented in writing;

 

   

any change generally affecting any of the industries or markets in which the applicable party operates or the economy as a whole; or

 

   

the failure, in and of itself, to meet, or changes to, any budget, projection, forecast, estimate, or prediction.

Furthermore, BRPA or NeuroRx may waive the occurrence of a material adverse effect affecting the other party. If a material adverse effect occurs and the parties still complete the business combination, BRPA’s stock price may suffer.

The business combination may be completed even if every public stockholder votes against the business combination proposal.

As previously indicated herein, 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.

BRPA and NeuroRx have no history operating as a combined company. The unaudited pro forma condensed combined financial information may not be an indication of BRPA’s financial condition or results of operations following the business combination, and accordingly, you have limited financial information on which to evaluate BRPA and your investment decision.

NeuroRx has a limited operating history and NeuroRx and BRPA have no prior history as a combined entity and their operations have not been previously managed on a combined basis. The unaudited pro forma condensed combined financial information contained in this proxy statement / prospectus / consent solicitation statement has been prepared using the consolidated historical financial statements of BRPA and NeuroRx, and is presented for illustrative purposes only and should not be considered to be an indication of the results of operations including, without limitation, future revenue, or financial condition of NRX Pharmaceuticals following the business combination. Certain adjustments and assumptions have been made regarding BRPA after giving effect to the business combination. NeuroRx and BRPA believe these assumptions are reasonable, however, the information upon which these adjustments and assumptions have been made is preliminary, and these kinds of adjustments are difficult to make with accuracy. These assumptions may not prove to be accurate, and other factors may affect BRPA’s results of operations or financial condition following the business combination. For these and other reasons, the historical and pro forma condensed combined financial information included in this proxy

 

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statement / prospectus / consent solicitation statement does not necessarily reflect NRX Pharmaceuticals’ results of operations and financial condition and the actual financial condition and results of operations of NRX Pharmaceuticals following the business combination may not be consistent with, or evident from, this pro forma financial information.

Failure to effectively retain, attract and motivate key employees could diminish the anticipated benefits of the business combination.

The success of the acquisition of NeuroRx will depend in part on the attraction, retention and motivation of executive personnel critical to the business and operations of NeuroRx. Executives may experience uncertainty about their future roles with BRPA and NeuroRx during the pendency of the business combination or after its completion. In addition, competitors may recruit NeuroRx management. If BRPA is unable to attract, retain and motivate executive personnel that are critical to the successful operations of the combined business, NeuroRx could face disruptions in its operations, strategic relationships, key information, expertise or know-how and unanticipated recruitment and onboarding costs. In addition, the loss of key personnel could diminish the anticipated benefits of the acquisition of NeuroRx by BRPA.

BRPA is an “emerging growth company” and it cannot be certain if the reduced disclosure requirements applicable to emerging growth companies will make the Common Stock less attractive to investors.

BRPA is an “emerging growth company” as defined in the JOBS Act. As an emerging growth company, BRPA is only required to provide two years of audited financial statements and only two years of related selected financial data and management discussion and analysis of financial condition and results of operations disclosure. In addition, BRPA is not required to obtain auditor attestation of its reporting on internal control over financial reporting, has reduced disclosure obligations regarding executive compensation and is not required to hold non-binding advisory votes on executive compensation. In addition, the JOBS Act provides that an emerging growth company can take advantage of an extended transition period for complying with new or revised accounting standards. This allows an emerging growth company to delay the adoption of these accounting standards until they would otherwise apply to private companies. BRPA has elected to take advantage of such extended transition period. BRPA cannot predict whether investors will find the Common Stock to be less attractive as a result of its reliance on these exemptions. If some investors find the Common Stock to be less attractive as a result, there may be a less active trading market for the Common Stock and the price of the Common Stock may be more volatile.

BRPA will remain an emerging growth company until the earliest of: (i) the end of the fiscal year in which BRPA has total annual gross revenue of $1.07 billion; (ii) the last day of BRPA’s fiscal year following the fifth anniversary of the date on which BRPA consummated its initial public offering (or December 31, 2022); (iii) the date on which BRPA issues more than $1.0 billion in non-convertible debt during the preceding three-year period; or (iv) the end of the fiscal year in which the market value of the Common Stock held by non-affiliates exceeds $700 million as of the last business day of its most recently completed second fiscal quarter.

Further, there is no guarantee that the exemptions available to BRPA under the JOBS Act will result in significant savings. To the extent that BRPA chooses not to use exemptions from various reporting requirements under the JOBS Act, it will incur additional compliance costs, which may impact BRPA’s financial condition.

BRPA may need additional capital in the future to meet its financial obligations and to pursue its business objectives. Additional capital may not be available on favorable terms, or at all, which could compromise BRPA’s ability to meet its financial obligations and grow its business.

While NeuroRx’s management anticipates that the funds made available from BRPA’s trust fund will be sufficient to fund NeuroRx’s operations for at least the next 12 months, BRPA may need to raise additional capital to fund operations in the future or finance future acquisitions.

 

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If BRPA seeks to raise additional capital in order to meet various objectives, including developing existing or future therapeutics and solutions, increasing working capital, and responding to competitive pressures, capital may not be available on favorable terms or may not be available at all. Lack of sufficient capital resources could significantly limit BRPA’s ability to take advantage of business and strategic opportunities. Any additional capital raised through the sale of equity or debt securities with an equity component would dilute stock ownership. If adequate additional funds are not available, NeuroRx may be required to delay, reduce the scope of, or eliminate material part of its business strategy.

An active trading market of the Common Stock and Warrants may not be sustained and investors may not be able to resell their Common Stock and Warrants at or above the price for which they purchased such securities.

An active trading market for the Common Stock and Warrants may not be achieved or sustained. In the absence of an active trading market for the Common Stock and/or Warrants, investors may not be able to sell their Common Stock or Warrants, respectively, at or above the price they paid at the time that they would like to sell. In addition, an inactive market may impair BRPA’s ability to raise capital by selling shares or equity securities and may impair its ability to acquire business partners by using the Common Stock as consideration, which, in turn, could harm BRPA’s business.

If BRPA is unable to complete the business combination with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension), BRPA will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares and, subject to the approval of its remaining stockholders and its board of directors, dissolving and liquidating. In such event, third parties may bring claims against BRPA and, as a result, the proceeds held in the trust account could be reduced and the per-share liquidation price received by stockholders could be less than $10.57 per share.

Under the terms of BRPA’s Charter, BRPA must complete the business combination with NeuroRx or another business combination by April 23, 2021 (unless such date is extended by BRPA’s stockholders) or BRPA must cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares and, subject to the approval of its remaining stockholders and its board of directors, dissolving and liquidating. Further, at the BRPA stockholder meeting held on December 18, 2020, BRPA’s stockholders approved an early termination proposal. Accordingly, if BRPA does not complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, the board of directors will be able to determine in its sole discretion to cease efforts to consummate an initial business combination and to instead proceed to redeem 100% of the outstanding Public Shares and liquidate and dissolve BRPA.

In such event, third parties may bring claims against BRPA. Although BRPA has obtained waiver agreements from certain vendors and service providers it has engaged and owes money to, and the prospective target businesses it has negotiated with, whereby such parties have waived any right, title, interest or claim of any kind they may have in or to any monies held in the trust account, there is no guarantee that they or other vendors who did not execute such waivers will not seek recourse against the trust account notwithstanding such agreements. Furthermore, there is no guarantee that a court will uphold the validity of such agreements. Accordingly, the proceeds held in the trust account could be subject to claims which could take priority over those of BRPA’s public stockholders. If BRPA is unable to complete a business combination within the required time period, A/Z Partners, an affiliate of Richard Ackerman, has agreed that it will be liable to BRPA if and to the extent any claims by a vendor for services rendered or products sold to it, or a prospective target business with which it has discussed entering into a transaction agreement, reduces the amount of funds in the trust account to below $10.00 per Public Share, except as to any claims by a third party who executed a waiver of any and all rights to seek access to the trust account and except as to any claims under BRPA’s indemnity of the underwriters of the initial public offering against certain liabilities, including liabilities under the Securities Act.

 

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Moreover, in the event that an executed waiver is deemed to be unenforceable against a third party, A/Z Partners will not be responsible to the extent of any liability for such third party claims. Furthermore, A/Z Partners will not be liable to public stockholders and instead will only have liability to BRPA. BRPA has not independently verified whether A/Z Partners has sufficient funds to satisfy its indemnity obligations and, therefore, A/Z Partners may not be able to satisfy those obligations. BRPA has not asked A/Z Partners to reserve for such eventuality. Therefore, the per-share distribution from the trust account in such a situation may be less than the approximately $                 estimated to be in the trust as of two business days prior to the annual meeting date, due to such claims.

Additionally, if BRPA is forced to file a bankruptcy case or an involuntary bankruptcy case is filed against it which is not dismissed, any distributions received by stockholders could be viewed under applicable debtor/creditor and/or bankruptcy laws as either a “preferential transfer” or a “fraudulent conveyance.” As a result, a bankruptcy court could seek to recover all amounts received by BRPA’s stockholders. Because BRPA intends to distribute the proceeds held in the trust account to its public stockholders promptly after the expiration of the time period to complete a business combination, this may be viewed or interpreted as giving preference to its public stockholders over any potential creditors with respect to access to or distributions from its assets. Furthermore, BRPA’s board may be viewed as having breached their fiduciary duties to its creditors and/or may have acted in bad faith, and thereby exposing itself and BRPA to claims of punitive damages, by paying public stockholders from the trust account prior to addressing the claims of creditors. BRPA cannot assure you that claims will not be brought against it for these reasons.

BRPA’s stockholders may be held liable for claims by third parties against BRPA to the extent of distributions received by them.

If BRPA is unable to complete the business combination with NeuroRx or another business combination within the required time period, BRPA will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem 100% of the outstanding Public Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the trust account, including any amounts representing interest earned on the trust account, less any interest released to BRPA to pay BRPA’s income taxes and to pay dissolution expenses, which redemption will completely extinguish public stockholders’ 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 the approval of its remaining stockholders and its board of directors, dissolve and liquidate, subject (in the case of (ii) and (iii) above) to its obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law. BRPA cannot assure you that it will properly assess all claims that may be potentially brought against BRPA. As such, BRPA’s stockholders could potentially be liable for any claims to the extent of distributions received by them (but no more) and any liability of its stockholders may extend well beyond the third anniversary of the date of distribution. Accordingly, BRPA cannot assure you that third parties will not seek to recover from its stockholders amounts owed to them by BRPA.

BRPA may be a target of securities class action and derivative lawsuits which could result in substantial costs and may delay or prevent the Transaction from being completed.

Securities class action lawsuits and derivative lawsuits are often brought against companies that have entered into merger agreements. Even if the lawsuits are without merit, defending against these claims can result in substantial costs and divert management time and resources. An adverse judgment could result in monetary damages, which could have a negative impact on BRPA’s liquidity and financial condition. Additionally, if a plaintiff is successful in obtaining an injunction prohibiting consummation of the Transactions, then that injunction may delay or prevent the Transactions from being completed. Currently, BRPA is not aware of any securities class action lawsuits or derivative lawsuits being filed in connection with the Transaction.

 

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The ongoing COVID-19 pandemic may adversely affect BRPA’s and NeuroRx’s ability to consummate the Transactions.

The COVID-19 pandemic has resulted in governmental authorities worldwide implementing numerous measures to contain the virus, including travel restrictions, quarantines, shelter-in-place orders, and business limitations and shutdowns. More generally, the pandemic raises the possibility of an extended global economic downturn and has caused volatility in financial markets. The pandemic may also amplify many of the other risks described in this proxy statement / prospectus / consent solicitation statement.

BRPA and NeuroRx may be unable to complete the Transactions if continued concerns relating to COVID-19 restrict travel and limit the ability to have meetings with potential investors or the NeuroRx personnel. The extent to which COVID-19 impacts BRPA’s and NeuroRx’s ability to consummate the Transactions will depend on future developments, which are highly uncertain and cannot be predicted, including new information which may emerge concerning the severity of COVID-19 and the actions to contain COVID-19 or treat its impact, among others. If the disruptions posed by COVID-19 or other matters of global concern continue for an extended period of time, BRPA’s and NeuroRx’s ability to consummate the Transactions may be materially adversely affected.

Risks Related to Ownership of Our Common Stock Following the Business Combination

Our Common Stock price may be volatile or may decline regardless of our operating performance. You may lose some or all of your investment.

The trading price of our Common Stock following the Business Combination is likely to be volatile. The stock market recently has experienced extreme volatility. This volatility often has been unrelated or disproportionate to the operating performance of particular companies. You may not be able to resell your shares at an attractive price due to a number of factors such as those listed in “—Risks Related to NeuroRx’s Business and Industry” and the following:

 

   

the impact of the COVID-19 pandemic on our financial condition and the results of operations;

 

   

our operating and financial performance and prospects;

 

   

our quarterly or annual earnings or those of other companies in our industry compared to market expectations;

 

   

conditions that impact demand for our products;

 

   

future announcements concerning our business, our product users’ businesses or our competitors’ businesses;

 

   

the public’s reaction to our press releases, other public announcements and filings with the SEC;

 

   

the market’s reaction to our reduced disclosure and other requirements as a result of being an “emerging growth company” under the JOBS Act and a “controlled company” under the rules of Nasdaq;

 

   

the size of our public float;

 

   

coverage by or changes in financial estimates by securities analysts or failure to meet their expectations;

 

   

market and industry perception of our success, or lack thereof, in pursuing our growth strategy;

 

   

strategic actions by us or our competitors, such as acquisitions or restructurings;

 

   

changes in laws or regulations which adversely affect our industry or us;

 

   

changes in accounting standards, policies, guidance, interpretations or principles;

 

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changes in senior management or key personnel;

 

   

issuances, exchanges or sales, or expected issuances, exchanges or sales of our capital stock;

 

   

changes in our dividend policy;

 

   

adverse resolution of new or pending litigation against us; and

 

   

changes in general market, economic and political conditions in the United States and global economies or financial markets, including those resulting from natural disasters, terrorist attacks, acts of war and responses to such events.

These broad market and industry factors may materially reduce the market price of our Common Stock, regardless of our operating performance. In addition, price volatility may be greater if the public float and trading volume of our Common Stock is low. As a result, you may suffer a loss on your investment.

In the past, following periods of market volatility, stockholders have instituted securities class action litigation. If we were involved in securities litigation, it could have a substantial cost and divert resources and the attention of executive management from our business regardless of the outcome of such litigation.

We do not intend to pay dividends on our Common Stock for the foreseeable future.

We currently intend to retain all available funds and any future earnings to fund the development and growth of our business. As a result, we do not anticipate declaring or paying any cash dividends on our Common Stock in the foreseeable future. Any decision to declare and pay dividends in the future will be made at the discretion of our board of directors and will depend on, among other things, our business prospects, results of operations, financial condition, cash requirements and availability, legal requirements, certain restrictions related to our indebtedness, industry trends and other factors that our board of directors may deem relevant. Any such decision will also be subject to compliance with contractual restrictions and covenants in the agreements governing our current and future indebtedness. In addition, we may incur additional indebtedness, the terms of which may further restrict or prevent us from paying dividends on our common stock. As a result, you may have to sell some or all of your common stock after price appreciation in order to generate cash flow from your investment, which you may not be able to do. Our inability or decision not to pay dividends, particularly when others in our industry have elected to do so, could also adversely affect the market price of our Common Stock.

If securities analysts do not publish research or reports about us, or if they issue unfavorable commentary about us or our industry or downgrade our Common Stock, the price of our Common Stock could decline.

The trading market for our Common Stock will depend in part on the research and reports that third-party securities analysts publish about us and the industries in which we operate. We may be unable or slow to attract research coverage and if one or more analysts cease coverage of us, the price and trading volume of our securities would likely be negatively impacted. If any of the analysts that may cover us change their recommendation regarding our securities adversely, or provide more favorable relative recommendations about our competitors, the price of our securities would likely decline. If any analyst that may cover us ceases covering us or fails to regularly publish reports on us, we could lose visibility in the financial markets, which could cause the price or trading volume of our securities to decline. Moreover, if one or more of the analysts who cover us downgrades our common stock, or if our reporting results do not meet their expectations, the market price of our Common Stock could decline.

Our issuance of additional shares of Common Stock or convertible securities could make it difficult for another company to acquire us, may dilute your ownership of us and could adversely affect our stock price.

Following the proposed Business Combination, we intend to file a registration statement with the SEC on Form S-8 providing for the registration of shares of our Common Stock issued or reserved for issuance under the

 

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Incentive Plan. Subject to the satisfaction of vesting conditions and the expiration of lockup agreements, shares registered under the registration statement on Form S-8 will be available for resale immediately in the public market without restriction. From time to time in the future, we may also issue additional shares of our Common Stock or securities convertible into Common Stock pursuant to a variety of transactions, including acquisitions. The issuance by us of additional shares of our Common Stock or securities convertible into our Common Stock would dilute your ownership of us and the sale of a significant amount of such shares in the public market could adversely affect prevailing market prices of our Common Stock.

In the future, we expect to obtain financing or to further increase our capital resources by issuing additional shares of our capital stock or offering debt or other equity securities, including senior or subordinated notes, debt securities convertible into equity, or shares of preferred stock. Issuing additional shares of our capital stock, other equity securities, or securities convertible into equity may dilute the economic and voting rights of our existing stockholders, reduce the market price of our Common Stock, or both. Debt securities convertible into equity could be subject to adjustments in the conversion ratio pursuant to which certain events may increase the number of equity securities issuable upon conversion. Preferred stock, if issued, could have a preference with respect to liquidating distributions or a preference with respect to dividend payments that could limit our ability to pay dividends to the holders of our Common Stock. Our decision to issue securities in any future offering will depend on market conditions and other factors beyond our control, which may adversely affect the amount, timing or nature of our future offerings. As a result, holders of our common stock bear the risk that our future offerings may reduce the market price of our Common Stock and dilute their percentage ownership. See “Description of Capital Stock of NRX Pharmaceuticals.”

Future sales, or the perception of future sales, of our Common Stock by us or our existing stockholders in the public market following the closing of the Business Combination could cause the market price for our Common Stock to decline.

The sale of substantial amounts of shares of our Common Stock in the public market, or the perception that such sales could occur, could harm the prevailing market price of shares of our Common Stock. These sales, or the possibility that these sales may occur, also might make it more difficult for us to sell equity securities in the future at a time and at a price that we deem appropriate.

Upon consummation of the Merger, we will have 53,730,492 shares of Common Stock outstanding, consisting of (i) 50,000,000 shares issued to holders of shares of NeuroRx Common Stock (including option holders and warrant holders) and holders of shares of NeuroRx preferred stock, (ii) 1,000,000 shares held by the Investors in the PIPE, (iii) 552,742 shares held by BRPA’s public stockholders (assuming no redemptions by such public stockholders), (iv) 717,250 shares held by BRPA’s rights holders following the exchange of each outstanding Right for one-tenth of one share of Common Stock pursuant to the terms of the Rights, and (v) 1,460,500 shares held by the Initial Stockholders and EBC (of which 125,000 Sponsor Earnout Shares will be subject to escrow), which takes into effect (x) the forfeiture, termination and cancellation of 875,000 shares of Common Stock by the Sponsor and BRAC pursuant to the Merger Agreement but not the forfeiture of up to an additional 300,000 shares of Common Stock which may be forfeited pursuant to the Merger Agreement, and (y) the issuance to EBC of 200,000 shares of Common Stock in accordance with the BCMA Amendment Agreement. We will also have an aggregate of 3,586,250 shares of Common Stock issuable upon exercise of outstanding Warrants, and will have unit purchase options outstanding to purchase up to 600,000 Units (which Units will consist of an aggregate of 660,000 shares of Common Stock and 300,000 Warrants).

All shares issued as Merger Consideration in the Business Combination will be freely tradable without registration under the Securities Act and without restriction by persons other than our “affiliates” (as defined under Rule 144 of the Securities Act, referred to herein as “Rule 144”), including our directors, executive officers and other affiliates. In addition, each holder of NeuroRx Common Stock will have a contingent right to receive a pro rata portion of 25,000,000 Earnout Shares upon achievement of the Earnout Shares Milestone.

 

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NeuroRx stockholders holding an aggregate of approximately 63% of NeuroRx’s outstanding common stock will enter into a lock-up agreement with BRPA with respect to the Closing Consideration issuable to them in the Transactions. The Merger Agreement provides that such shares of Common Stock will be subject to transfer restrictions 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 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. See “The Business Combination Proposal — Ancillary Agreements.”

On or prior to the Closing Date, BRPA, Sponsor, BRAC, Graubard Miller, the Initial Stockholders and Continental will enter into 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 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 (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. See “The Business Combination Proposal — Ancillary Agreements — Stock Escrow Amendment.”

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. See the section of this proxy statement / prospectus / consent solicitation statement titled “The Business Combination Proposal — Ancillary Agreements — Registration Rights Agreement.”

In addition, the shares of Common Stock reserved for future issuance under the Incentive Plan will become eligible for sale in the public market once those shares are issued, subject to provisions relating to various vesting agreements, lock-up agreements and, in some cases, limitations on volume and manner of sale applicable to affiliates under Rule 144, as applicable. The number of shares to be reserved for future issuance under the Incentive Plan is expected to equal 10% of the total outstanding shares of Common Stock on a fully diluted basis immediately after the closing of the Business Combination. In addition, the Incentive Plan is expected to include an evergreen feature that will allow our board of directors, in its sole discretion, to reserve additional shares of Common Stock for future issuance under the Incentive Plan each calendar year, beginning January 1, 2022 and ending on and including January 1, 2031, equal to the lesser of (A) 1% of the shares of Common Stock outstanding on the final day of the immediately preceding calendar year or (B) a smaller number of shares determined by the board of directors. We expect to file one or more registration statements on Form S-8 under the Securities Act to register shares of our Common Stock or securities convertible into or exchangeable for shares of our Common Stock issued pursuant to our equity incentive plans. Any such Form S-8 registration statements will automatically become effective upon filing. Accordingly, shares registered under such registration statements will be available for sale in the open market. The initial registration statement on Form S-8 is expected to cover approximately                  million shares of our Common Stock.

Accordingly, following the Closing, the NeuroRx stockholders and the holders of insider shares may sell large amounts of Common Stock or Warrants in the open market or in privately negotiated transactions when permitted, which could have the effect of increasing the volatility in the trading price of the Common Stock or the Warrants or putting significant downward pressure on the price of the Common Stock or the Warrants.

 

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NRX Pharmaceuticals will also have the ability under the Share Subscription Facility to require GEM to purchase up to approximately $96.4 million (based on an exchange rate of HKD$7.7776 to USD$1 as of April 9, 2021) of shares of Common Stock at a 10% discount to our market trading price.

Downward pressure on the market price of the Common Stock or the Warrants likely will result from sales of Common Stock issued in connection with the exercise of Warrants or the GEM Warrant, or sales of Common Stock to GEM pursuant to the Share Subscription Facility. Further, sales of Common Stock or Warrants upon expiration of any applicable lockup periods could encourage short sales of Common Stock or the Warrants by market participants. Generally, short selling means selling a security, contract or commodity not owned by the seller. The seller is committed to eventually purchase the financial instrument previously sold. Short sales are used to capitalize on an expected decline in the security’s price. Short sales of Common Stock or Warrants could have a tendency to depress the price of the Common Stock or the Warrants, respectively, which could increase the potential for short sales.

We cannot predict the size of future issuances of Common Stock or Warrants or the effect, if any, that future issuances and sales of shares of Common Stock or Warrants will have on the market price of the Common Stock or the Warrants. Sales of substantial amounts of Common Stock (including those shares issued in connection with the business combination), or the perception that such sales could occur, may adversely affect prevailing market prices of Common Stock or Warrants.

The obligations associated with being a public company will involve significant expenses and will require significant resources and management attention, which may divert from our business operations.

As a result of the Business Combination, we will become subject to the reporting requirements of the Exchange Act and the Sarbanes-Oxley Act. The Exchange Act requires that we file annual, quarterly and current reports with respect to our business and financial condition. The Sarbanes-Oxley Act requires, among other things, that we establish and maintain effective internal control over financial reporting. As a result, we will incur significant legal, accounting and other expenses that we did not previously incur. Our entire management team and many of our other employees will need to devote substantial time to compliance and may not effectively or efficiently manage our transition into a public company.

In addition, the need to establish the corporate infrastructure demanded of a public company may also divert management’s attention from implementing our business strategy, which could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal control over financial reporting, including IT controls, and procedures for financial reporting and accounting systems to meet our reporting obligations as a public company. However, the measures we take may not be sufficient to satisfy our obligations as a public company. If we do not continue to develop and implement the right processes and tools to manage our changing enterprise and maintain our culture, our ability to compete successfully and achieve our business objectives could be impaired, which could negatively impact our business, financial condition and results of operations. In addition, we cannot predict or estimate the amount of additional costs we may incur to comply with these requirements. We anticipate that these costs will materially increase our general and administrative expenses.

These rules and regulations result in our incurring legal and financial compliance costs and will make some activities more time-consuming and costly. For example, we expect these rules and regulations to make it more difficult and more expensive for us to obtain director and officer liability insurance, and we may be required to accept reduced policy limits and coverage or incur substantially higher costs to obtain the same or similar coverage. As a result, it may be more difficult for us to attract and retain qualified people to serve on our board of directors, our board committees or as executive officers.

 

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As a public reporting company, we will be subject to rules and regulations established from time to time by the SEC regarding our internal control over financial reporting. If we fail to establish and maintain effective internal control over financial reporting and disclosure controls and procedures, we may not be able to accurately report our financial results or report them in a timely manner.

Upon consummation of the Business Combination, we will become a public reporting company subject to the rules and regulations established from time to time by the SEC and Nasdaq. These rules and regulations will require, among other things that we establish and periodically evaluate procedures with respect to our internal control over financial reporting. Reporting obligations as a public company are likely to place a considerable strain on our financial and management systems, processes and controls, as well as on our personnel.

In addition, as a public company, we will be required to document and test our internal control over financial reporting pursuant to Section 404 of the Sarbanes-Oxley Act so that our management can certify as to the effectiveness of our internal control over financial reporting. As an emerging growth company, we will not be required to comply with the auditor attestation requirements of Section 4040 of the Sarbanes-Oxley Act. For additional information related to the risks and uncertainties of our compliance with the Sarbanes-Oxley Act, see “Risk Related to NeuroRx and its Business Our internal controls over financial reporting currently do not meet all of the standards contemplated by Section 404 of the Sarbanes-Oxley Act, and failure to achieve and maintain effective internal controls over financial reporting in accordance with Section 404 of the Sarbanes-Oxley Act could impair our ability to produce timely and accurate financial statements or comply with applicable regulations and have a material adverse effect on our business.”

NRX Pharmaceuticals will qualify as an “emerging growth company” as well as a “smaller reporting company” within the meaning of the Securities Act, and if NRX Pharmaceuticals takes advantage of certain exemptions from disclosure requirements available to emerging growth companies or smaller reporting companies, it could make NRX Pharmaceuticals’ securities less attractive to investors and may make it more difficult to compare NRX Pharmaceuticals’ performance to the performance of other public companies.

NRX Pharmaceuticals will qualify as an “emerging growth company” as defined in Section 2(a)(19) of the Securities Act, as modified by the JOBS Act. As such, NRX Pharmaceuticals will be eligible for and intends to take advantage of certain exemptions from various reporting requirements applicable to other public companies that are not emerging growth companies for as long as it continues to be an emerging growth company, including (a) the exemption from the auditor attestation requirements with respect to internal control over financial reporting under Section 404(b) of the Sarbanes-Oxley Act, (b) the exemptions from say-on-pay, say-on-frequency and say-on-golden parachute voting requirements and (c) reduced disclosure obligations regarding executive compensation in its periodic reports and proxy statements. NRX Pharmaceuticals will remain an emerging growth company until the earliest of (i) the last day of the fiscal year in which the market value of NRX Pharmaceuticals’ common stock that are held by non-affiliates exceeds $700 million as of June 30 of that fiscal year, (ii) the last day of the fiscal year in which it has total annual gross revenue of $1.07 billion or more during such fiscal year (as indexed for inflation), (iii) the date on which it has issued more than $1 billion in non-convertible debt in the prior three-year period or (iv) the last day of the fiscal year following the fifth anniversary of the date of the first sale of Common Stock in the BRPA IPO. In addition, Section 107 of the JOBS Act also provides that an emerging growth company can take advantage of the exemption from complying with new or revised accounting standards provided in Section 7(a)(2)(B) of the Securities Act as long as NRX Pharmaceuticals is an emerging growth company. An emerging growth company can therefore delay the adoption of certain accounting standards until those standards would otherwise apply to private companies. We have elected not to opt out of such extended transition period and, therefore, NRX Pharmaceuticals may not be subject to the same new or revised accounting standards as other public companies that are not emerging growth companies. Investors may find Common Stock less attractive because NRX Pharmaceuticals will rely on these exemptions, which may result in a less active trading market for the Common Stock and its price may be more volatile.

Additionally, NRX Pharmaceuticals will qualify as a “smaller reporting company” as defined in Item 10(f)(1) of Regulation S-K. Smaller reporting companies may take advantage of certain reduced disclosure

 

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obligations, including, among other things, providing only two years of audited financial statements. NRX Pharmaceuticals will remain a smaller reporting company until the last day of the fiscal year in which (i) the market value of NRX Pharmaceuticals’ common stock held by non-affiliates exceeds $250 million as of the end of that year’s second fiscal quarter, or (ii) its annual revenues exceeded $100 million during such completed fiscal year and the market value of NRX Pharmaceuticals’ common stock held by non-affiliates exceeds $700 million as of the end of that year’s second fiscal quarter. To the extent NRX Pharmaceuticals takes advantage of such reduced disclosure obligations, it may also make comparison of its financial statements with other public companies difficult or impossible.

Anti-takeover provisions in our governing documents and under Delaware law could make an acquisition of us more difficult, limit attempts by our stockholders to replace or remove our current management and limit the market price of our common stock.

The Proposed Charter, the Proposed Bylaws and Delaware law contain or will contain provisions that could have the effect of rendering more difficult, delaying, or preventing an acquisition deemed undesirable by our board of directors. Among other things, the Proposed Charter and/or the Proposed Bylaws will include the following provisions:

 

   

a staggered board, which means that our board of directors is classified into three classes of directors with staggered three-year terms and directors are only able to be removed from office for cause;

 

   

limitations on convening special stockholder meetings, which could make it difficult for our stockholders to adopt desired governance changes;

 

   

a prohibition on stockholder action by written consent, which means that our stockholders will only be able to take action at a meeting of stockholders and will not be able to take action by written consent for any matter from and after the first date on which Jonathan Javitt and Daniel Javitt cease to beneficially own more than fifty percent (50%) of the outstanding shares of Common Stock;

 

   

a forum selection clause, which means certain litigation against us can only be brought in Delaware;

 

   

the authorization of undesignated preferred stock, the terms of which may be established and shares of which may be issued without further action by our stockholders; and

 

   

advance notice procedures, which apply for stockholders to nominate candidates for election as directors or to bring matters before an annual meeting of stockholders.

These provisions, alone or together, could delay or prevent hostile takeovers and changes in control or changes in our management. We have elected in the Proposed Charter not to be subject to Section 203 of the DGCL, which prevents interested stockholders, such as certain stockholders holding more than 15% of our outstanding common stock, from engaging in certain business combinations unless (i) prior to the time such stockholder became an interested stockholder, the board of directors approved the transaction that resulted in such stockholder becoming an interested stockholder, (ii) upon consummation of the transaction that resulted in such stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the common stock, or (iii) following board approval, such business combination receives the approval of the holders of at least two-thirds of our outstanding common stock not held by such interested stockholder at an annual or special meeting of stockholders. However, the Proposed Charter contains provisions that have the same effect as Section 203 of the DGCL, except they provide that Jonathan Javitt and Daniel Javitt and their respective affiliates will not be deemed to be “interested stockholders” regardless of the percentage of Common Stock owned by them and, accordingly, will not be subject to such restrictions.

Any provision of the Proposed Charter, the Proposed Bylaws or Delaware law that has the effect of delaying, preventing or deterring a change in control could limit the opportunity for our stockholders to receive a premium for their shares of our common stock and could also affect the price that some investors are willing to pay for our common stock.

 

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The Proposed Charter and the Proposed Bylaws will provide that the Court of Chancery of the State of Delaware will be the sole and exclusive forum for substantially all disputes between us and our stockholders, which could limit our stockholders’ ability to obtain a favorable judicial forum for disputes with us or our directors, officers, or employees.

The Proposed Charter and the Proposed Bylaws, each of which will become effective prior to the completion of the Business Combination, will provide that, unless we consent in writing to the selection of an alternative forum, the (a) Court of Chancery (the “Chancery Court”) of the State of Delaware (or, in the event that the Chancery Court does not have jurisdiction, the federal district court for the District of Delaware or other state courts of the State of Delaware) shall, to the fullest extent permitted by law, be the sole and exclusive forum for: (i) any derivative action, suit or proceeding brought on our behalf; (ii) any action, suit or proceeding asserting a claim of breach of fiduciary duty owed by any of our directors, officers, or stockholders to us or to our stockholders; (iii) any action, suit or proceeding asserting a claim arising pursuant to the DGCL, the Proposed Charter or the Proposed Bylaws; or (iv) any action, suit or proceeding asserting a claim governed by the internal affairs doctrine; and (b) subject to the foregoing, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. Notwithstanding the foregoing, such forum selection provisions shall not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts of the United States have exclusive jurisdiction. The choice of forum provision may limit a stockholder’s ability to bring a claim in a judicial forum that it finds favorable for disputes with us or our directors, officers, or other employees, which may discourage such lawsuits against us and our directors, officers, and other employees. Alternatively, if a court were to find the choice of forum provision contained in the Proposed Charter to be inapplicable or unenforceable in an action, we may incur additional costs associated with resolving such action in other jurisdictions, which could harm our business, results of operations, and financial condition.

Additionally, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. As noted above, the Proposed Charter and the Proposed Bylaws will provide that the federal district courts of the United States of America shall have jurisdiction over any action arising under the Securities Act. Accordingly, there is uncertainty as to whether a court would enforce such provision. Our stockholders will not be deemed to have waived our compliance with the federal securities laws and the rules and regulations thereunder.

Certain NeuroRx stockholders will control NRX Pharmaceuticals, and their interests may conflict with NRX Pharmaceuticals’ or yours in the future.

Immediately following the closing of the Business Combination, Jonathan Javitt and Daniel Javitt will beneficially own approximately 28.8% and 27.2% of the outstanding shares of Common Stock, respectively. For so long as Jonathan Javitt and Daniel Javitt continue to own a significant percentage of Common Stock, Jonathan Javitt and Daniel Javitt will still be able to significantly influence the composition of NRX Pharmaceuticals’ board of directors and the approval of actions requiring stockholder approval. Accordingly, for such period of time, Jonathan Javitt and Daniel Javitt will have significant influence with respect to NRX Pharmaceuticals’ management, business plans and policies. In particular, for so long as Jonathan Javitt and Daniel Javitt continue to own a significant percentage of Common Stock, Jonathan Javitt and Daniel Javitt will be able to cause or prevent a change of control of NRX Pharmaceuticals or a change in the composition of NRX Pharmaceuticals’ board of directors and could preclude any unsolicited acquisition of NRX Pharmaceuticals. The concentration of ownership could deprive you of an opportunity to receive a premium for your shares of common stock as part of a sale of NRX Pharmaceuticals and ultimately might affect the market price of Common Stock. In addition, Jonathan Javitt and Daniel Javitt may have an interest in pursuing acquisitions, divestitures and other transactions that, in its judgment, could enhance its investment, even though such transactions might involve risks to you. For example, Jonathan Javitt and Daniel Javitt could cause NRX Pharmaceuticals to make acquisitions that increase NRX Pharmaceuticals’ indebtedness or cause NRX Pharmaceuticals to sell revenue-generating assets. In certain circumstances, acquisitions of debt at a discount by purchasers that are related to a

 

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debtor can give rise to cancellation of indebtedness income to such debtor for U.S. federal income tax purposes. So long as Jonathan Javitt and Daniel Javitt continue to own a significant amount of NRX Pharmaceuticals’ combined voting power, even if such amount is less than 50%, Jonathan Javitt and Daniel Javitt will continue to be able to strongly influence or effectively control NRX Pharmaceuticals’ decisions.

Notwithstanding Jonathan Javitt’s and Daniel Javitt’s control of or substantial influence over NRX Pharmaceuticals, NRX Pharmaceuticals may from time to time enter into transactions with Jonathan Javitt and Daniel Javitt and their respective affiliates, or enter into transactions in which Jonathan Javitt and Daniel Javitt or their respective affiliates otherwise have a direct or indirect material interest. In connection with the merger, NRX Pharmaceuticals expects to adopt a formal written policy for the review and approval of transactions with related persons. A description of certain transactions BRPA entered into with Jonathan Javitt and Daniel Javitt and their respective affiliates in connection with the execution of the Merger Agreement, as well as a description of the policy NRX Pharmaceuticals expects to adopt with respect to the approval or ratification of transactions in which related persons, such as Jonathan Javitt and Daniel Javitt and their respective affiliates, have a direct or indirect material interest is included in this proxy statement / prospectus / consent solicitation statement. For more information, see “Certain Relationships and Related Party Transactions.”

Our Proposed Charter will not prevent Jonathan Javitt and Daniel Javitt and their respective affiliates from engaging in business activities which compete with NRX Pharmaceuticals or otherwise conflict with NRX Pharmaceuticals’ interests.

Although Jonathan Javitt and Daniel Javitt are precluded from engaging, directly or indirectly, in the same business activities or similar business activities or lines of business in which NRX Pharmaceuticals operates based on Jonathan Javitt’s employment contract with NRX Pharmaceutical and the Glytech Agreement, respectively, NRX Pharmaceuticals’ amended and restated certificate of incorporation will provide that none of Jonathan Javitt and Daniel Javitt or their respective affiliates will have any duty to refrain from engaging, directly or indirectly, in the same business activities or similar business activities or lines of business in which NRX Pharmaceuticals operates. The Stockholder Parties also may pursue corporate opportunities that may be complementary to NRX Pharmaceuticals’ business and, as a result, those corporate opportunities may not be available to NRX Pharmaceuticals.

NRX Pharmaceuticals will be a “controlled company” within the meaning of the rules of Nasdaq and the rules of the SEC. As a result, NRX Pharmaceuticals will qualify for, and intend to rely on, exemptions from certain corporate governance requirements that would otherwise provide protection to stockholders of other companies.

Immediately following the completion of the merger, Jonathan Javitt and Daniel Javitt will control a majority of the voting power of the Common Stock. As a result, NRX Pharmaceuticals will be a “controlled company” within the meaning of the corporate governance standards of the Nasdaq. Under these rules, a company of which more than 50% of the voting power is held by an individual, group or another company is a “controlled company” and may elect not to comply with certain corporate governance requirements, including:

 

   

the requirement that a majority of NRX Pharmaceuticals’ board of directors consist of “independent directors” as defined under the rules of the Nasdaq;

 

   

the requirement that NRX Pharmaceuticals have a compensation committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities;

 

   

the requirement that NRX Pharmaceuticals have a nominating and corporate governance committee that is composed entirely of independent directors with a written charter addressing the committee’s purpose and responsibilities; and

 

   

the requirement for an annual performance evaluation of the compensation and nominating and corporate governance committees.

 

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Following the merger, NRX Pharmaceuticals intends to utilize some or all of these exemptions. As a result, NRX Pharmaceuticals’ nominating and corporate governance committee and compensation committee may not consist entirely of independent directors and such committees will not be subject to annual performance evaluations. Accordingly, you may not have the same protections afforded to stockholders of companies that are subject to all of the corporate governance requirements of Nasdaq.

In addition, on June 20, 2012, the SEC passed final rules implementing provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 pertaining to compensation committee independence and the role and disclosure of compensation consultants and other advisers to the compensation committee. The SEC’s rules direct each of the national securities exchanges (including Nasdaq on which NRX Pharmaceuticals intends to list its common stock) to develop listing standards requiring, among other things, that:

 

   

compensation committees be composed of fully independent directors, as determined pursuant to new independence requirements;

 

   

compensation committees be explicitly charged with hiring and overseeing compensation consultants, legal counsel and other committee advisors; and

 

   

compensation committees be required to consider, when engaging compensation consultants, legal counsel or other advisors, certain independence factors, including factors that examine the relationship between the consultant or advisor’s employer and NRX Pharmaceuticals.

As a “controlled company”, NRX Pharmaceuticals will not be subject to these compensation committee independence requirements.

Risks If the Adjournment Proposal Is Not Approved

If the adjournment proposal is not approved, BRPA’s board of directors will not have the ability to adjourn the annual meeting to a later date.

If, at the annual meeting, the chairman presiding over the annual meeting determines that it would be in the best interests of BRPA to adjourn the annual meeting to give BRPA more time to consummate the business combination for whatever reason (such as if the business combination proposals are not approved, or if BRPA would have net tangible assets of less than $5,000,001 upon the consummation of the Transactions), the chairman presiding over the annual meeting will seek approval to adjourn the annual meeting to a later date or dates. If the adjournment proposal is not approved, the chairman will not have the ability to adjourn the annual meeting to a later date. In such event, the business combination would not be completed and, if another business combination is not consummated as permitted by BRPA’s stockholders, BRPA will cease all operations except for the purpose of winding up, redeeming 100% of the outstanding Public Shares for cash and, subject to the approval of its remaining stockholders and its board of directors, dissolving and liquidating.

 

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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS

BRPA and NeuroRx believe that some of the information in this proxy statement / prospectus / consent solicitation statement constitutes forward-looking statements within the definition of the Private Securities Litigation Reform Act of 1995. However, because BRPA is a “blank check” company, the safe-harbor provisions of that act do not apply to statements made in this proxy statement / prospectus / consent solicitation statement. You can identify these statements by forward-looking words such as “may,” “expect,” “anticipate,” “contemplate,” “believe,” “estimate,” “intends,” and “continue” or similar words. You should read statements that contain these words carefully because they:

 

   

discuss future expectations;

 

   

contain projections of future results of operations or financial condition; or

 

   

state other “forward-looking” information.

BRPA and NeuroRx believe it is important to communicate expectations to their respective securityholders. However, there may be events in the future that BRPA and NeuroRx are not able to predict accurately or over which they have no control. The risk factors and cautionary language discussed in this proxy statement / prospectus / consent solicitation statement provide examples of risks, uncertainties and events that may cause actual results to differ materially from the expectations described by BRPA and NeuroRx in such forward-looking statements, including among other things:

 

   

the number and percentage of BRPA Public Shareholders voting against the business combination proposal and/or seeking conversion;

 

   

the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement;

 

   

the ability to maintain the listing of BRPA’s securities on Nasdaq prior to or following the business combination;

 

   

changes adversely affecting the business in which NeuroRx is engaged;

 

   

management of growth;

 

   

general economic conditions;

 

   

NeuroRx’s business strategy and plans; and

 

   

the result of future financing efforts.

You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date of this proxy statement / prospectus / consent solicitation statement.

All forward-looking statements included herein attributable to any of BRPA, NeuroRx, or any person acting on either party’s behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this section. Except to the extent required by applicable laws and regulations, BRPA and NeuroRx undertake no obligations to update these forward-looking statements to reflect events or circumstances after the date of this proxy statement / prospectus / consent solicitation statement or to reflect the occurrence of unanticipated events.

Before a shareholder grants its proxy or instructs how its vote should be cast or vote on the business combination proposal, charter proposals, bylaws proposal, Nasdaq proposals, director proposal, charter plan proposal, or the adjournment proposal, it should be aware that the occurrence of the events described in the “Risk Factors” section and elsewhere in this proxy statement / prospectus / consent solicitation statement may adversely affect BRPA and/or NeuroRx.

 

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ANNUAL MEETING OF BRPA STOCKHOLDERS

General

BRPA is furnishing this proxy statement / prospectus / consent solicitation statement to its stockholders as part of the solicitation of proxies by its board of directors for use at the annual meeting of BRPA stockholders and at any adjournment or postponement thereof. This proxy statement / prospectus / consent solicitation statement provides you with information you need to know to be able to vote or instruct your vote to be cast at the annual meeting.

Date, Time and Place

The annual meeting of BRPA stockholders will be held on                 , 2021 at 10:00 a.m., eastern time, held solely over the internet by means of a live audio webcast. You may attend and participate in the annual meeting by accessing the meeting web portal located at https://www.             .com/. See “Questions and Answers about the Proposals — How do I attend the annual meeting?” for more information.

Purpose of the Annual Meeting

At the annual meeting, BRPA is asking holders of its Common Stock:

 

   

to consider and vote upon a separate proposal to adopt the Merger Agreement and approve the Transactions (the business combination proposal);

 

   

to consider and vote upon separate proposals to approve amendments to BRPA’s Charter, which amendments will be effective following the consummation of the Transactions and are 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 charter proposals);

 

   

to consider and vote upon 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 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 bylaws proposal);

 

   

to consider and vote upon 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

 

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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 Nasdaq proposals);

 

   

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 (the director proposal);

 

   

to consider and vote upon a proposal to approve the adoption of the 2021 Plan (the plan proposal); and

 

   

to consider and vote upon a proposal to approve a proposal to adjourn annual meeting to a later date or dates, if necessary, 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 (the adjournment proposal).

Recommendation of BRPA Board of Directors

BRPA’s board of directors has unanimously determined that the business combination proposal, the charter proposals, the bylaws proposal, the Nasdaq proposals, the director proposal, the plan proposal, and the adjournment proposal are 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 BRPA’s management for election as directors, “FOR” the plan proposal, and “FOR” the adjournment proposal, if presented.

Voting Power; Record Date

BRPA Stockholders will be entitled to vote or direct votes to be cast at the annual meeting if they owned shares of Common Stock at the close of business on                 , 2021, which is the record date for the annual meeting. Stockholders will have one vote for each share of Common Stock owned at the close of business on the record date. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker, bank or nominee to ensure that votes related to the shares you beneficially own are properly counted. BRPA’s Rights and Warrants do not have voting rights. On the record date, there were 2,688,242 shares of Common Stock outstanding, of which 552,742 were Public Shares.

Quorum and Vote of BRPA Stockholders

A quorum of BRPA stockholders is necessary to hold a valid meeting. A quorum will be present at the BRPA annual meeting if a majority of the issued and outstanding shares of Common Stock on the record date that are entitled to vote at the annual meeting are represented by stockholders present at the annual meeting in person (which would include presence at the virtual meeting) or by proxy. Abstentions will be counted towards the quorum requirement. Broker non-votes will not be counted towards the quorum requirement. If there is no quorum, a majority of the votes present at the annual meeting may adjourn the annual meeting to another date.

The proposals to be presented at the annual meeting will require the following votes:

 

   

Business Combination Proposal — The approval of the business combination proposal will require the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock present and entitled to vote at the annual meeting. Abstentions will have the same effect as a vote “against” the business combination proposal. Brokers are not entitled to vote on the business combination proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the business combination proposal. The Transactions will not be

 

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consummated if BRPA has less than $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act) upon consummation of the Transactions. 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. See NeuroRx’s pro forma combined financial information included elsewhere in this proxy statement / prospectus / consent solicitation statement.

 

   

Charter Proposals — The approval of each of the charter proposals will require the affirmative vote of the holders of a majority of the issued and outstanding Common Stock on the record date. Abstentions will have the same effect as a vote “against” the charter proposals. The charter proposal to change the name of BRPA from “Big Rock Partners Acquisition Corp.” to “NRX Pharmaceuticals, Inc.” is a routine proposal and, accordingly, your broker, bank or nominee may vote your shares with respect to such proposal without receiving voting instructions. Consequently, there should be no broker non-votes with respect to the charter proposal to change the name of BRPA to “NRX Pharmaceuticals, Inc.” Each other charter proposal is considered a non-routine proposal, and, accordingly, brokers are not entitled to vote on those proposals without receiving voting instructions, and broker non-votes will have the same effect as a vote “against” such proposals.

 

   

Bylaws Proposal — The approval of the bylaws proposal will require the affirmative vote of the holders of at least 66.7% of the issued and outstanding capital stock of BRPA on the record date. Abstentions will have the same effect as a vote “against” the bylaws proposal. Brokers are not entitled to vote on the bylaws proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have the same effect as a vote “against” the bylaws proposal.

 

   

Nasdaq Proposals — The approval of each of the Nasdaq proposals will require the affirmative vote of the holders of a majority of the votes cast by the stockholders present in person (which would include presence at the virtual meeting) or represented by proxy at the annual meeting. Abstentions are not considered “votes cast” and accordingly will have no outcome on the vote. Brokers are not entitled to vote on the Nasdaq proposals absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the Nasdaq proposals.

 

   

Director Proposal — The election of directors requires a plurality of the votes cast. “Plurality” means that the individuals who receive the largest number of votes cast “FOR” will be elected as directors (even if they receive less than a majority of the votes cast). Consequently, because this is an uncontested election, any director nominee who receives at least one vote “FOR” will be elected as a director. Abstentions will have no effect on the director proposal because an abstention is not a vote cast with respect to the proposal. Brokers are not entitled to vote on the director proposal absent voting instructions from the beneficial holder because the director proposal is considered “non-routine.” Consequently, broker non-votes will have no effect with respect to the director proposal.

 

   

Plan Proposal — The approval of the plan proposal will require the affirmative vote of the holders of a majority of the votes cast by the stockholders present in person (which would include presence at the virtual meeting) or represented by proxy at the annual meeting. Abstentions are not considered “votes cast” and accordingly will have no outcome on the vote. Brokers are not entitled to vote on the plan proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the plan proposal.

 

   

Adjournment Proposal — The approval of the adjournment proposal will require the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock present and entitled to vote at the annual meeting. Abstentions will have the same effect as a vote “against” the adjournment proposal. Brokers are entitled to vote on the adjournment proposal absent voting instructions from the beneficial holder because the proposal is considered “routine.” Consequently, there should be no broker non-votes with respect to the adjournment proposal.

As previously indicated herein, 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

 

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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.

Under the Merger Agreement, the approval of (i) the business combination proposal, (ii) the charter proposals, (iii) the Nasdaq proposals, and (iv) the plan proposal is a condition to the consummation of the Transactions (collectively, the BRPA Stockholder Approval).

Voting Your Shares

If you are a holder of record of Common Stock, there are two ways to vote your shares of Common Stock at the annual meeting:

 

   

By Mail. You may vote by proxy by completing the enclosed proxy card and returning it in the postage-paid return envelope. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return the proxy card but do not give instructions on how to vote your shares, your shares will be voted “FOR” all of the proposals in accordance with the recommendation of the BRPA board of directors. Proxy cards received after a matter has been voted upon at the annual meeting will not be counted.

 

   

At the Virtual Meeting. You can attend the annual meeting and vote virtually even if you have previously voted by submitting a proxy pursuant to any of the methods noted above. You will be given a ballot when you log in. However, if your shares of Common Stock are held in the name of your broker, bank or other nominee, you must get a proxy from the broker, bank or other nominee. That is the only way BRPA can be sure that the broker, bank or nominee has not already voted your shares of Common Stock. See “Questions and Answers about the Proposals – How do I attend the annual meeting?” for more information.

If you hold your Common Stock in “street name,” you should follow the instructions sent to you by your bank, broker or other nominee in order to vote your shares. If you wish to vote shares held in “street name” virtually at the annual meeting, you must contact your bank, broker or other nominee and request a document called a “legal proxy.” Requesting a legal proxy will automatically cancel any voting directions previously given to such bank, broker or other nominee.

If you do not give instructions to such bank, broker or other nominee, such bank, broker or other nominee can vote your Common Stock with respect to “discretionary” items but not with respect to “non-discretionary” items. Discretionary items are proposals considered routine under the rules of FINRA Rule 2251 or NYSE Rule 452, as applicable, for which your broker or other agent may vote shares held in “street name” in the absence of your voting instructions. On non-discretionary items for which you do not give your broker or other agent instructions, your broker will not be able to vote (“broker non-vote”). It is anticipated that all proposals other than the adjournment proposal and the charter proposal to approve the change of BRPA’s name from “Big Rock Partners Acquisition Corp.” to “NRX Pharmaceuticals, Inc.” will be non-discretionary items.

You may receive more than one set of voting materials. For example, if you are a holder of record and your shares are registered in more than one name, you will receive more than one proxy card. If you hold your shares in “street name” in more than one brokerage account, you will receive voting materials for each brokerage account in which you hold shares. Please complete, sign, date and return each proxy card you receive and provide instructions on how to vote your shares with respect to each brokerage account for which you receive proxy materials, in order to be sure you cast a vote with respect to all of your shares of Common Stock.

 

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Revoking Your Proxy

If you are a holder of record of Common Stock and you give a proxy, you may revoke it at any time before it is exercised by doing any one of the following:

 

   

you may send another proxy card to BRPA’s secretary with a later date so that it is received prior to the vote at the annual meeting or attend the annual general meeting and vote during the live webcast;

 

   

you may notify BRPA’s secretary in writing, prior to the vote at the annual meeting, that you have revoked your proxy; or

 

   

you may attend the annual meeting and vote or revoke your proxy during the live webcast, although your attendance alone will not revoke any proxy that you have previously given.

If you hold your Common Stock in “street name,” you may submit new instructions on how to vote your shares by contacting your broker, bank or other nominee.

Who Can Answer Your Questions About Voting Your Shares

If you are a shareholder and have any questions about how to vote or direct a vote in respect of your shares, you may call Advantage Proxy, BRPA’s proxy solicitor, at (877) 870-8565.

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. Such condition cannot be waived by either 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. See NeuroRx’s pro forma combined financial information included elsewhere in this proxy statement / prospectus / consent solicitation statement.

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 $         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.

The NeuroRx stockholders are entitled to appraisal rights in connection with the Merger under the DGCL. For more information about such rights, see the section titled “Appraisal Rights.”

Proxy Solicitation

Proxies may be solicited by mail, telephone or in person. BRPA has engaged Advantage Proxy, Inc. to assist in the solicitation of proxies. BRPA has agreed to pay Advantage Proxy an aggregate of $5,500 for the foregoing

 

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services. Advantage Proxy previously assisted BRPA in soliciting votes in connection with stockholder meetings held for the purpose of approving an amendment to the Charter to extend the time during which BRPA had to complete an initial business combination.

If a BRPA stockholder grants a proxy, it may still vote its shares of Common Stock during the annual meeting webcast if it revokes its proxy before the annual meeting. A BRPA stockholder may also change its vote by submitting a later-dated proxy as described in the section entitled “Annual Meeting of BRPA Stockholders — Revoking Your Proxy.”

Other Matters

As of the date of this proxy statement / prospectus / consent solicitation statement, the BRPA board of directors does not know of any business to be presented at the annual meeting other than as set forth in the notice accompanying this proxy statement / prospectus / consent solicitation statement. If any other matters should properly come before the annual meeting, it is intended that the shares represented by proxies will be voted with respect to such matters in accordance with the judgment of the persons voting the proxies.

 

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NEURORX’S SOLICITATION OF WRITTEN CONSENTS

Purpose of the Consent Solicitation; Recommendation of the NeuroRx Board of Directors

The NeuroRx board of directors is providing this proxy statement / prospectus / consent solicitation statement to NeuroRx stockholders. NeuroRx stockholders are being asked to adopt and approve the NeuroRx Merger Proposal by executing and delivering the written consent furnished with this proxy statement / prospectus / consent solicitation statement.

After consideration, the NeuroRx board of directors unanimously approved and declared advisable the Merger Agreement and the Business Combination and the other transactions contemplated by the Merger Agreement, upon the terms and conditions set forth in the Merger Agreement, and unanimously determined that the Merger Agreement and the Transactions are in the best interests of NeuroRx and its stockholders. The NeuroRx board of directors unanimously recommends that NeuroRx stockholders approve the NeuroRx Merger Proposal, by executing and delivering the written consent furnished with this proxy statement / prospectus / consent solicitation statement.

In reaching its decision to adopt and approve, and declare advisable, the Merger Agreement and resolving to recommend that NeuroRx stockholders adopt and approve the Merger Agreement and thereby approve the NeuroRx Merger Proposal, the NeuroRx board of directors consulted with NeuroRx’s management, as well as its financial and legal advisors, and considered a number of factors, including its knowledge of NeuroRx’s business, operations, financial condition, earnings and prospects, and its knowledge of the financial and capital markets and the risks associated with pursuing an initial public offering (“IPO”) of NeuroRx. Among the various factors that the NeuroRx board of directors considered in favor of its decision are:

 

   

Other Alternatives. It is the belief of the NeuroRx board of directors, after review of alternative strategic opportunities from time to time, that the proposed Business Combination represents the best potential transaction for NeuroRx to create greater value for NeuroRx’s stockholders, while also providing greater liquidity by owning stock in a public company.

 

   

Advantages Over a Traditional IPO. Prior to executing the Merger Agreement, the NeuroRx board of directors considered the alternative of a traditional IPO. The NeuroRx board of directors considered that the Business Combination provided certain advantages over a traditional IPO. In particular, the NeuroRx board of directors considered that, based on available information at the time, including with respect to the conditions of the IPO market for companies of a similar size and industry as NeuroRx, the Business Combination with BRPA was likely to provide for a more time-and cost-effective means to access capital with a higher likelihood of completion in light of the committed equity investments, greater valuation certainty and less dilution to NeuroRx’s existing stockholders and would provide potential investors with more extensive information about the prospects of NeuroRx.

 

   

Terms of the Merger Agreement. The NeuroRx board of directors considered the terms and conditions of the Merger Agreement, including but not limited to the nature and scope of the closing conditions and the likelihood of obtaining any necessary regulatory approvals, in addition to the transactions contemplated thereby, including the Business Combination.

 

   

Access to Capital. The NeuroRx board of directors expects that the Business Combination will be a more time- and cost-effective means to access capital than other options considered, including an IPO.

 

   

Benefit from Being a Public Company. The NeuroRx board of directors believes that under new public ownership NeuroRx will have the flexibility and financial resources to pursue and execute a growth strategy to increase revenues and stockholder value and will benefit from being publicly traded, and can effectively utilize the broader access to capital and public profile that are associated with being a publicly traded company.

 

   

Support Agreements. The NeuroRx board of directors considered that, pursuant to the Merger Agreement, the Supporting NeuroRx Stockholders entered into Support Agreements whereby such

 

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Supporting NeuroRx Stockholders have agreed that, on or effective as of the tenth calendar day following the date that this 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 shares of NeuroRx capital stock that are owned by the Supporting NeuroRx Stockholders and subject to the Support Agreements represent approximately     % of the outstanding shares of NeuroRx Common Stock and approximately     % 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. See “The Business Combination Proposal—Ancillary Agreements—Support Agreements.”

 

   

Lock-Up Agreement. The NeuroRx board of directors considered that, in connection with the execution of the Merger Agreement, certain NeuroRx stockholders will enter into a lock-up agreement with BRPA with respect to the Closing Consideration issuable to them in the Transactions. The Merger Agreement provides that such shares of Common Stock will be subject to transfer restrictions 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 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. See “The Business Combination Proposal—Ancillary Agreements—Lock-Up.”

 

   

Sponsor Agreement. The NeuroRx board of directors considered that, in connection with the execution of the Merger Agreement, BRPA will enter into 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, and (b) 125,000 shares of Common Stock owned by the Sponsor will be subject to escrow, 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. See “The Business Combination Proposal—Ancillary Agreements—Sponsor Agreement.”

 

   

Registration Rights Agreement. The NeuroRx board of directors also considered that, in connection with the execution of the Merger Agreement, BRPA and certain stockholders of NeuroRx and BRPA 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. See “The Business Combination Proposal—Ancillary Agreements—Registration Rights Agreement.”

The NeuroRx board of directors also considered the following negative factors:

 

   

Risk that Business Combination may not be completed. The NeuroRx board of directors considered the risk that the Business Combination might not be consummated in a timely manner, or at all, due to a lack of stockholder approval or failure to satisfy various conditions to Closing.

 

   

Impact on reputation and business if the Business Combination is not completed. The NeuroRx board of directors considered the possibility that the Business Combination might not be completed and that there may be an adverse effect of the public announcement of the Business Combination on NeuroRx’s reputation and business in the event the Business Combination is not completed.

 

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Expenses and challenges. The NeuroRx board of directors considered the expenses to be incurred in connection with the Business Combination and related administrative challenges associated with combining the companies.

 

   

Costs of being a public company. The NeuroRx board of directors considered the additional public company expenses and obligations that NeuroRx’s business will be subject to following the Business Combination that it has not previously been subject to.

 

   

Restrictions on operation of NeuroRx’s business. The NeuroRx board of directors considered the fact that, although NeuroRx will continue to exercise, consistent with the terms and conditions of the Merger Agreement, control and supervision over its operations prior to the completion of the Business Combination, the Merger Agreement generally obligates NeuroRx, subject to BRPA’s prior consent (which consent may not be unreasonably withheld, delayed or conditioned), to conduct its business in the ordinary course of business consistent with past practice and in accordance with specified restrictions, which might delay or prevent NeuroRx from undertaking certain business opportunities that might arise pending completion of the Business Combination.

 

   

Interests of NeuroRx executive officers and directors. The NeuroRx board of directors considered the fact that certain executive officers and directors of NeuroRx have interests in the Business Combination that may be different from, or in addition to, the interests of NeuroRx stockholders generally, including the manner in which they would be affected by the Business Combination and the other matters disclosed under “—Interests of NeuroRx’s Directors and Executive Officers in the Transactions.”

 

   

Other risks. The NeuroRx board of directors considered various other risks associated with the combined organization and the Business Combination, including the risks described in the section titled “Risk Factors.”

The foregoing discussion of the factors considered by the NeuroRx board of directors is not intended to be exhaustive, but, rather, includes the material factors considered by the NeuroRx board of directors. In reaching its decision to adopt and approve, and declare advisable, the Merger Agreement, the Business Combination and the other transactions contemplated by the Merger Agreement, the NeuroRx board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. The NeuroRx board of directors considered all these factors as a whole, including discussions with, and questioning of, NeuroRx’s management and financial and legal advisors, and, overall, considered these factors to be favorable to, and to support, its determination.

The NeuroRx board of directors concluded that the potentially negative factors associated with the Business Combination were outweighed by the potential benefits that it expected NeuroRx stockholders would receive as a result of the Business Combination, including the belief of the NeuroRx board of directors that the Business Combination would maximize the immediate value of shares of NeuroRx Common Stock and preferred stock and eliminate the risk and uncertainty affecting the future prospects of NeuroRx, including the potential execution risks associated with an IPO of NeuroRx Common Stock and preferred stock and pursuing its business plan as a public company. Accordingly, the NeuroRx board of directors determined that the Business Combination and the other transactions contemplated by the Merger Agreement are advisable to, and in the best interests of, NeuroRx and its stockholders, and adopted and approved, and declared advisable, the Merger Agreement, the Business Combination and the other transactions contemplated by the Merger Agreement. The NeuroRx board of directors recommends that NeuroRx stockholders consent to the NeuroRx Merger Proposal.

NeuroRx Stockholders Entitled to Consent

Only NeuroRx stockholders of record as of the close of business on                 , the NeuroRx Record Date, will be entitled to execute and deliver a written consent. As of the close of business on the NeuroRx Record Date,

 

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there were                  shares of NeuroRx Common Stock outstanding and                  shares of NeuroRx Preferred Stock outstanding, consisting of                  shares of NeuroRx Series A Preferred Stock,                  shares of NeuroRx Series B-1 Preferred Stock and                  shares of NeuroRx Series B-1A Preferred Stock, in each case entitled to execute and deliver written consents with respect to the NeuroRx Merger Agreement Proposal. Each holder of NeuroRx Common Stock is entitled to one vote for each share of NeuroRx Common Stock held as of the NeuroRx Record Date. Each holder of NeuroRx Preferred Stock is entitled to a number of votes equal to the number of shares of NeuroRx Common Stock into which the shares of NeuroRx Preferred Stock held by such holder could be converted as of the NeuroRx Record Date.

Written Consents; Required Written Consents

The approval of the NeuroRx Merger Proposal requires the affirmative vote or consent of (a) the holders of a majority of the voting power of the outstanding shares of NeuroRx Common Stock and NeuroRx Preferred Stock (on an as-converted to NeuroRx Common Stock basis) voting together as a single class, (b) two-thirds of the voting power of the outstanding shares of NeuroRx Series A Preferred Stock, voting as a separate class and (c) two-thirds of the voting power of the outstanding shares of NeuroRx Series B Preferred Stock, voting as a separate class.

On or prior to January 14, 2021, BRPA, Merger Sub and the Supporting NeuroRx Stockholders entered into the Support Agreements. Each Support Agreement provides, among other things, that on (or effective as of) the tenth calendar day following the date that this 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). As of the record date, the shares of NeuroRx capital stock that are owned by the Supporting NeuroRx Stockholders and subject to the Support Agreements represent approximately         % of the outstanding shares of NeuroRx Common Stock and approximately         % 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.

Submission of Written Consents

You may consent to the NeuroRx Merger Proposal with respect to your shares of NeuroRx capital stock by completing, dating and signing the written consent enclosed with this proxy statement / prospectus / consent solicitation statement and returning it to NeuroRx by the consent deadline.

If you hold shares of NeuroRx capital stock as of the close of business on the NeuroRx Record Date and you wish to give your written consent, you must fill out the enclosed written consent, date and sign it, and promptly return it to NeuroRx. Once you have completed, dated and signed the written consent, you may deliver it to NeuroRx by emailing a .pdf copy to investor@nrxpharma.com or by mailing your written consent to NeuroRx, Inc., 1201 N. Market Street, Suite 111, Wilmington, DE 19801, Attention: Corporate Secretary (however, in light of the ongoing COVID-19 pandemic, delivery via email is preferable).

The NeuroRx board of directors has set                  as the consent deadline. NeuroRx reserves the right to extend the consent deadline beyond                 . Any such extension may be made without notice to NeuroRx stockholders.

NeuroRx stockholders should not send stock certificates with their written consents. After the transaction is completed, a letter of transmittal and written instructions for the surrender of NeuroRx stock certificates or electronic certificates, as applicable, will be mailed to NeuroRx stockholders. Do not send in your certificates now.

 

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Executing Written Consents; Revocation of Written Consents

You may execute a written consent to approve the NeuroRx Merger Proposal (which is equivalent to a vote for such proposal), or disapprove, or abstain from consenting with respect to, the NeuroRx Merger Proposal (which is equivalent to a vote against such proposal). If you do not return your written consent, it will have the same effect as a vote against the NeuroRx Merger Proposal. If you are a record holder of shares of NeuroRx Common Stock and/or NeuroRx Preferred Stock and you return a signed written consent without indicating your decision on the NeuroRx Merger Proposal, you will have given your consent to approve such proposal.

Your consent to the NeuroRx Merger Proposal may be changed or revoked at any time before the consent deadline; however, such change or revocation is not expected to have any effect, as the delivery of the written consents contemplated by the Support Agreements will constitute the NeuroRx Stockholder Approval at the time of such delivery. If you wish to change or revoke your consent before the consent deadline, you may do so by sending a new written consent with a later date or by delivering a notice of revocation, in either case by emailing a .pdf copy to investor@nrxpharma.com or by mailing your written consent to NeuroRx, Inc., 1201 N. Market Street, Suite 111, Wilmington, DE 19801, Attention: Corporate Secretary (however, in light of the ongoing COVID-19 pandemic, delivery via email is preferable).

Due to the obligations of the Supporting NeuroRx Stockholders under the Support Agreements, a failure of any other NeuroRx stockholder to deliver a written consent, or any change or revocation of a previously delivered written consent by any other NeuroRx stockholder, is not expected to have any effect on the approval of the NeuroRx Merger Proposal.

Solicitation of Written Consents; Expenses

The expense of preparing, printing and mailing these consent solicitation materials is being borne by NeuroRx. Officers and employees of NeuroRx may solicit consents by telephone and personally, in addition to solicitation by mail. These persons will receive their regular compensation but no special compensation for soliciting consents.

 

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PROPOSAL NO. 1—THE BUSINESS COMBINATION PROPOSAL

The discussion in this proxy statement / prospectus / consent solicitation statement of the Transactions and the principal terms of the Merger Agreement is subject to, and is qualified in its entirety by reference to, the Merger Agreement. A copy of the Merger Agreement is attached as Annex A hereto.

Structure of the Transactions

The Merger Agreement provides for the Merger of Merger Sub with and into NeuroRx, with NeuroRx surviving as a wholly-owned subsidiary of BRPA and the securityholders of NeuroRx becoming securityholders of BRPA.

Merger Consideration

Closing Consideration

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. 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) the Earnout Shares if the Earnout Shares Milestone is met prior to December 31, 2022 and (ii) the Earnout Cash if the Earnout Cash Milestone is met prior to December 31, 2022.

Pursuant to the Merger Agreement, NeuroRx shall take all actions necessary to cause each share of NeuroRx Preferred Stock that is issued and outstanding immediately prior to the Effective Time to be converted immediately prior to the Effective Time into a number of shares of NeuroRx Common Stock at the then-effective conversion rate (as calculated pursuant to NeuroRx’s certificate of incorporation) in accordance with the certificate of incorporation (such conversion, the “Preferred Stock Conversion”).

Pursuant to the Merger Agreement, at the Effective Time, each share of NeuroRx Common Stock (including shares of NeuroRx Common Stock resulting from the Preferred Stock Conversion) that is issued and outstanding immediately prior to the Effective Time will be converted into the right to receive a number of shares of Common Stock equal to the quotient of (i) 50,000,000 divided by (ii) the total number of issued and outstanding shares of NeuroRx Common Stock and the NeuroRx Preferred Stock (on an “as-converted” to NeuroRx Common Stock basis) on a fully diluted basis as of the Closing Date using the treasury method of accounting, including, without duplication, the number of shares of NeuroRx Common Stock issuable pursuant to the conversions or exercises of convertible securities pursuant to the Merger Agreement, the number of shares of NeuroRx Common Stock issued or issuable upon the exercise of all stock options of NeuroRx and the shares of NeuroRx Common Stock underlying the warrants of NeuroRx (collectively, the “Exchange Ratio”) and (ii) a contingent right to receive a number or an amount, as applicable, of Earnout Shares and Earnout Cash, if any, issuable and payable pursuant to the terms of the Merger Agreement.

Each option of NeuroRx that is outstanding and unexercised immediately prior to the Closing (whether vested or unvested) will be assumed by BRPA and converted into an option to acquire an adjusted number of shares of Common Stock at an adjusted exercise price per share, and will continue to be governed by substantially the same terms and conditions, including vesting, as were applicable to the former option. Each warrant of NeuroRx that is outstanding and unexercised immediately prior to the Closing will be assumed by BRPA and treated as if such warrant were an option of NeuroRx in accordance with the terms of the Merger Agreement.

Earnout

NeuroRx’s securityholders (including option holders and warrant holders) who own NeuroRx securities immediately prior to the Closing will have the contingent right to receive their pro rata portion of (i) an aggregate

 

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of 25,000,000 shares of Common Stock (which we refer to as the Earnout Shares) if, prior to December 31, 2022, the NeuroRx COVID-19 Drug (i.e., ZYESAMI) receives emergency use authorization by the 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 is referred to herein as the Earnout Shares Milestone), and (ii) an aggregate of $100,000,000 in cash (which we refer to as 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 (i.e., ZYESAMI) 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),is referred to herein as the Earnout Cash Milestone).

If the Earnout Shares Milestone is achieved, within five (5) Business Days after the occurrence of the Earnout Shares Milestone, BRPA shall deliver the Earnout Shares to Continental Stock Transfer & Trust Company, as exchange agent, for distribution to NeuroRx securityholders that are entitled to receive the Earnout Shares, which shall be distributed promptly to such NeuroRx securityholders with no action required on the part of the NeuroRx securityholders.

If the Earnout Cash Milestone is achieved, following the occurrence of the Earnout Cash Milestone and on a date that the board of directors of NRX Pharmaceuticals reasonably determines in good faith to pay the Earnout Cash, NRX Pharmaceuticals shall deliver the Earnout Cash to Continental Stock Transfer & Trust Company, as exchange agent, for distribution to the NeuroRx securityholders entitled to receive the Earnout Cash, which shall be distributed promptly to such NeuroRx securityholders with no action required on the part of the NeuroRx securityholders. If the Earnout Cash Milestone is achieved, we expect the board of directors of NRX Pharmaceuticals to take into consideration the cash on NRX Pharmaceuticals’ balance sheet and its ability to raise additional capital in determining the date on which the Earnout Cash will be paid.

PIPE Transaction

In connection with the Merger, on March 12, 2021 BRPA entered into Subscription Agreements with the Investors, pursuant to which the Investors have agreed to purchase an aggregate of 1,000,000 shares of Common Stock at a price of $10.00 per share for aggregate gross proceeds of $10,000,000. The closing of the PIPE is expected to take place concurrently with the consummation of the Merger.

GEM Share Subscription Facility and Warrant

NeuroRx previously entered into a share subscription facility agreement (the “Share Subscription Facility”) with GEM Global Yield LLC SCS and GEM with a three-year term. Subject to the successful listing of the shares of NeuroRx on a nationally recognized stock exchange or exchange platform (an “Exchange”), GEM granted NeuroRx an option to require GEM to subscribe for shares in NeuroRx for up to an aggregate value of HKD$750,000,000 Hong Kong Dollars (approximately $96.4 million based on an exchange rate of HKD$7.7776 to USD$1 as of April 9, 2021). Under this agreement, upon a successful listing of NeuroRx or a private sale, NeuroRx would have provided GEM a warrant and commitment fee.

In 2020, GEM introduced NeuroRx to Relief Therapeutics and played an active role in encouraging the collaboration agreement between NeuroRx and Relief Therapeutics. In November 2020, GEM introduced NeuroRx to BRPA. In order to further support the merger transaction, GEM and NeuroRx agreed to enter into warrant for 1,053,738 shares with an exercise price of $15.84. The warrant was issued on March 28, 2021 and GEM agreed to immediately exercise 473,486 of its warrant shares (the “Initial Exercised Shares”) for US$7.5 million on March 28, 2021. The proceeds of this exercise appear in the pro-forma included in this proxy statement / prospectus / consent solicitation statement. In addition, GEM has indicated its intention to exercise its remaining 580,252 warrant shares immediately following the BRPA shareholder vote contemplated in this proxy statement / prospectus / consent solicitation statement. This modification to the Share Subscription Facility and the exercise of the GEM Warrant is expected to provide $16,691,210 for NeuroRx to use in its drug development

 

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program in a manner that is non-dilutive to BRPA shareholders. In addition, NeuroRx and GEM have agreed to use their good faith efforts to amend the Share Subscription Facility to meet U.S. requirements to issue registered shares. The GEM Warrant is not conditional upon any further events or completion of the merger.

The contingent liability at December 31, 2020, as shown in NeuroRx’s financial statement for the period ended December 31, 2020 was due to the appreciation in NeuroRx shares between November 2019 and December 31, 2020. As the amount was deemed probable and estimable by NeuroRx at December 31, 2020, NeuroRx recorded a liability of $39,486,139 to reflect the fair value of the GEM Warrant.

This liability will be converted to equity upon issuance of the warrant in NeuroRx’s financial statements for the three months ended March 31, 2021. The GEM Warrant does not increase the consideration paid by BRPA to NeuroRx in the Merger Transaction. The Initial Exercised Shares and the remaining shares that are expected to be exercised will be treated the same as other outstanding shares of NeuroRx Common Stock for purposes of the Transactions, and will be converted into Common Stock in BRPA at the Exchange Ratio. Accordingly, the shares of Common Stock issuable upon conversion of the Initial Exercised Shares are included within the Closing Consideration and not in addition to it. Similarly, the Exchange Ratio takes into account the issuance of shares of Common Stock after the Closing to GEM upon any further exercise of the GEM Warrant.

Under the terms of the GEM Warrant, NeuroRx is required to register the Initial Exercised Shares on (a) the same registration statement on Form S-4 (or such other registration statement, if changed) in connection with transactions contemplated by the Merger Agreement, or (b) such other registration statement in connection with any other transaction which results in a public listing of NeuroRx. In addition, no later than 90 days following the consummation of the Business Combination, NeuroRx is required to file with the SEC a registration statement to register under the Securities Act the resale by GEM of all shares issuable under the GEM Warrant other than the Initial Exercised Shares (which shares are included in the 50 million shares of Common Stock registered hereby). The GEM Warrant also includes “piggyback” registration rights.

Pro Forma Ownership of BRPA Upon Closing

Immediately after the Closing, NeuroRx’s stockholders will hold approximately 93% of the issued and outstanding Common Stock, the current stockholders of BRPA will hold approximately 5% of the issued and outstanding Common Stock, and 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 Sponsor and BRAC pursuant to the Merger Agreement and the issuance to EBC of 200,000 shares of Common Stock pursuant to the BCMA Amendment Agreement, (ii) takes into effect the exchange of each outstanding Right 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.

Ancillary Agreements

Support Agreements

Pursuant to the Merger Agreement, on or prior to January 14, 2021, the Supporting NeuroRx Stockholders entered into Support Agreements whereby such Supporting NeuroRx Stockholders have agreed that, on or effective as of the tenth calendar day following the date that this 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

 

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herein) 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                 % of the outstanding shares of NeuroRx Common Stock and approximately                 % 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 herein).

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 the Sponsor Agreement with the Sponsor and BRAC providing that (a) the Sponsor and BRAC will forfeit, and BRPA will terminate and cancel the Forfeited Shares, as follows: (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, and (b) the Sponsor Earnout Shares will be subject to escrow, which 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, Sponsor, BRAC, Graubard Miller, the Initial Stockholders and Continental will enter into 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 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 (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.

 

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BCMA Amendment

Pursuant to the Merger Agreement, on or prior to the Closing, BRPA and EBC shall enter into the BCMA Amendment Agreement, which 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.

Subscription Agreements for PIPE

On March 12, 2021, BRPA entered into Subscription Agreements with 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 Investors are qualified institutional buyers or institutional accredited investors who are not affiliates of BRPA or NeuroRx.

The closing of the PIPE is conditioned upon, among other things, (i) the substantially concurrent consummation of the Merger, (ii) the accuracy of all representations and warranties of BRPA and the Investors in the Subscription Agreements, and the performance of all covenants of BRPA and the Investors under the Subscription Agreements, (iii) the shares of Common Stock shall have been approved for listing on the Nasdaq, subject to official notice of issuance, and (iv) the Merger Agreement shall not have been terminated or rescinded, and no amendment, waiver or modification shall have occurred thereunder that would materially adversely affect the economic benefits that the Investor would reasonably expect to receive under the Subscription Agreement without having received the Investor’s prior written consent (not to be unreasonably withheld, conditioned, or delayed).

BRPA has agreed that, as soon as reasonably practicable, but in no event later than 45 calendar days following the closing date of the Merger, it shall file a registration statement with the SEC covering the resale by the Investors of the shares of Common Stock issued to them in the PIPE and use its best efforts to have such registration statement declared effective as promptly as practicable thereafter, but in no event later than the earlier of 60 calendar days after filing (or 90 calendar days in the event the SEC issues written comments) or the 10th business day after BRPA is notified that the registration statement will not be subject to review or further review.

 

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The shares of Common Stock were offered and sold to the Investors in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, based on the fact that the sale will have been made without any general solicitation or advertising and based on representations from each Investor that (a) it was a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) or an institutional “accredited investor” (within the meaning of Rule 501(a) under the Securities Act), (b) it was purchasing the shares of Common Stock for its own account investment, and not with a view to distribution, (c) it had been given full and complete access to information regarding BRPA, NeuroRx, and the Merger, and (d) it understood that the offer and sale of the shares of Common Stock was not registered and the shares may not be publicly sold or otherwise disposed of without registration under the Securities Act of 1933, as amended, or an applicable exemption therefrom.

The Subscription Agreements will terminate and be of no further force and effect upon the earliest to occur of: (a) such date and time as the Merger Agreement is terminated in accordance with its terms, (b) May 24, 2021, and (c) upon the mutual written agreement of the parties to such Subscription Agreement.

Headquarters; Trading Symbol

After completion of the Transactions:

 

   

the corporate headquarters and principal executive offices of BRPA will be located at 1201 N. Market Street, Suite 111, Wilmington, DE 19801; and

 

   

if BRPA’s application for listing is approved, the Common Stock and Warrants will be traded on Nasdaq under the symbols “NRXP” and “NRXPW”, respectively.

Background of the Transactions

On November 20, 2017, BRPA consummated its initial public offering and simultaneous private placement of securities. Prior to the consummation of the initial public offering, neither BRPA, nor anyone on its behalf, had contacted any prospective target business or had any substantive discussions, formal or otherwise, with respect to a transaction with BRPA. After the initial public offering, BRPA conducted an active search for potential target companies with the objective of consummating a business combination. Management and board members of BRPA contacted, and were contacted by, individuals and entities with respect to acquisition and merger opportunities, including companies and financial advisors both within and outside the senior housing and management businesses. BRPA compiled a pipeline of high priority potential targets and continuously updated this pipeline to reflect new information as it emerged. Starting in the fourth quarter of 2017, BRPA had discussions with over 50 potential acquisition and merger targets. These included established businesses with proven track records, experienced management teams and strong competitive positions, as well as earlier-stage businesses with the potential for revenue and earnings growth based upon proven disruptive or emerging products and/or technologies. BRPA focused on companies that management believed had the potential for long term revenue and earnings growth and attractive cash flow generation. In addition, BRPA focused on companies that had management ready to lead a public company and which would benefit from being publicly held. Since the completion of the initial public offering, BRPA executed letters of intent with eleven target companies, including NeuroRx.

Description of negotiation process with candidates BRPA signed letters of intent with other than NeuroRx:

From December of 2017 through the second quarter of 2018, management engaged with a senior housing company for a potential business combination. The target was a regional owner and operator of senior housing properties in the Midwest United States. After discussing internally, BRPA decided that the target did not represent the best opportunity for a successful business combination due to unrealistic valuation expectations, the complexity of the transaction, and the long lead time to cash flows. The discussions ended with the target in mid-2018.

 

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In the fourth quarter of 2018, BRPA began discussions with a target company in the transportation industry, introduced to BRPA by EBC. BRPA moved quickly to in-depth meetings and diligence with the company and a letter of intent was signed with the company in November 2018. The target company was a well-established company in the transport of new cars from rail and dock to dealership. Its balance sheet was complex with a substantial amount of debt that created difficulties for BRPA to determine how to address. Merger discussions ultimately failed due to the complexities of the balance sheet and other disagreements on certain transaction terms.

In December 2018, BRPA signed a letter of intent with a company in the micro-battery industry. This company had two primary products — a small hearing aid and a new product to be used to help with sleep. BRPA met the company’s management and had a number of discussions with management on the products, technology, manufacturing and sales contracts and projections. Definitive transaction documents and other transactional matters were negotiated. However, during this process, BRPA was informed by the target that sales from a key new customer would fall far below the indicated projections. Due to the lack of sales and resulting drop in valuation, the merger discussions were terminated.

In the second quarter of 2019, EBC introduced BRPA to a company in the streaming video space. A letter of intent was executed with the company in May 2019. The company’s business was centered around providing streaming services specifically geared towards mobile platforms primarily in the developing world. The company had several data storage facilities around the world that helped to keep costs low. BRPA started to work through due diligence including meeting with executive management. However, the target company did not provide audited financials as required and discussions were terminated.

In third quarter of 2019, BRPA executed a letter of intent with a company involved in the production of various products used in smoking cannabis as well as in marketing cannabis companies and consulting. At about the same time, BRPA signed a letter of intent with a company that produced and sold various products with cannabis and held an annual cannabis marketing event. BRPA began discussions with both companies, requesting various due diligence materials, which both companies were slow to produce. As a result, the discussions with both companies were terminated.

In August 2019, BRPA signed a letter of intent with a target company in the vaping business which had a number of retail locations in Canada and was planning a merger with another Canadian company also specializing in the vaping business. The plan was for the two businesses to simultaneously merge into BRPA. However, the Fall of 2019 saw unexplained illness and respiratory distress from vaping as well as a significant collapse in market valuations for cannabis-related companies. The combination of these factors caused the merger discussions to be terminated.

In the fourth quarter of 2019, BRPA was introduced to a medical products and technology company by EBC. The company was a leader in the human and artificial skin market, including the development of a revolutionary product to hold pacemakers which could be inserted into patients with fewer infections. A letter of intent was signed with the company in September of 2019. Merger agreement negotiations were well underway in the first quarter of 2020 when the pandemic became widespread. The shut-down of economic activity, and in particular the stoppage of elective surgeries, caused the target company to pull back and merger discussions were terminated.

BRPA had discussions with many other targets in 2020 and signed letters of intent with three companies in addition to NeuroRx. One company was in the information technology business, one was in the electric vehicle business and one was in the solar installation business. For various reasons, including BRPA focusing on the NeuroRx transaction, discussions with each target were terminated.

Background of Negotiations with NeuroRx

Representatives of BRPA were introduced to representatives of NeuroRx on November 9, 2020 by an investment manager at GEM Yield Bahamas Ltd., which is a significant shareholder of Relief and had a prior

 

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relationship with NeuroRx, and Richard Ackerman, BRPA’s Chairman, President and Chief Executive Officer, had a telephonic meeting with Jonathan Javitt, the Chief Executive Officer of NeuroRx, on that date. On November 11, 2020, Mr. Ackerman and a representative from EBC had a telephonic meeting with Dr. Javitt and Alessandra Daigneault, corporate secretary of NeuroRx, during which Dr. Javitt and Ms. Daigneault provided an overview of NeuroRx’s business and expressed their interest in NeuroRx becoming a Nasdaq-listed company by consummating a transaction with a special purpose acquisition company. During the meeting, Dr. Javitt communicated his belief that the equity valuation of NeuroRx should be at least $750 million based on the valuation of Relief Therapeutics Holding AG (“Relief”), a biopharmaceutical company and NeuroRx’s counterparty to a Cooperation Agreement for commercialization of the NeuroRx COVID-19 Drug. Based on BRPA’s management’s review of the market opportunity for the NeuroRx COVID-19 drug and the NeuroRx Antidepressant Drug Regimen, as well as BRPA’s management’s view of the value that the public equity markets were ascribing solely to the NeuroRx COVID-19 Drug as represented by the $1.5 billion market valuation of Relief (which was entitled to 50% of the profits from sales of the NeuroRx COVID-19 Drug in the United States, Canada, and Israel) , BRPA’s management believed that a $750 million equity value was supportable. Accordingly, BRPA sent NeuroRx a draft letter of intent (the “LOI”) following the November 11, 2020 telephonic meeting which set forth a summary of the material terms of a potential business combination between BRPA and NeuroRx for aggregate consideration that would be based on an equity value of NeuroRx of $750 million. Between November 11 and November 14, Mr. Ackerman, Dr. Javitt, Ms. Daigneault, as well as representatives of EBC held multiple telephonic meetings during which they discussed the equity value of NeuroRx and the other terms of the LOI. During these telephonic meetings, the parties agreed to an equity value of NeuroRx that would be based on aggregate consideration of 50 million shares of Common Stock (assuming a value of $10 per share) and on establishing two potential earnout payments equal to 25 million shares of Common Stock and $100 million in cash in the aggregate (the “earnout consideration”). On November 14, 2020, representatives of BRPA and NeuroRx executed the LOI.

Representatives of BRPA and EBC held a telephonic meeting with Ms. Daigneault on November 16, 2020 to discuss the potential business combination transaction between BRPA and NeuroRx and establish a process for due diligence. BRPA engaged Graubard Miller as its M&A legal counsel. Graubard Miller previously acted as legal counsel for the underwriters for BRPA’s initial public offering and regularly advises special purpose acquisition companies in connection with their business combinations. BRPA also engaged McDermott Will & Emery (“McDermott”) as its regulatory legal counsel. McDermott has extensive experience in FDA pharmaceutical matters and was engaged to assist with the due diligence of technical patent and drug approval issues. BRPA management, EBC and Graubard Miller commenced a review of the documents provided in NeuroRx’s data room on November 14, 2020. On November 17, 2020, Mr. Ackerman and representatives from EBC held follow up telephonic meetings with representatives of NeuroRx’s management to further discuss the potential business combination transaction and diligence process. On November 20, 2020, BRPA had a call with its board of directors (the “BRPA Board”) to brief them on the discussions with NeuroRx to date and the potential business combination transaction in general. The BRPA Board authorized management to negotiate a business combination transaction with NeuroRx. Representatives of Graubard Miller delivered an initial draft of the Merger Agreement to NeuroRx on November 22, 2020.

On November 23, 2020, Mr. Ackerman received a letter from Nasdaq stating that, since BRPA had not completed a business combination within 36 months of its initial public offering, BRPA would be delisted, pending the ability to appeal that ruling. Mr. Ackerman informed the BRPA Board and representatives of NeuroRx of the development. BRPA appealed the ruling and Nasdaq scheduled the Nasdaq Appeal for January 14, 2021.

On November 29, 2020, Dr. Javitt and Ms. Daigneault held a telephonic meeting with members of NeuroRx’s board of directors (the “NeuroRx Board”) during which Dr. Javitt and Ms. Daigneault presented to and discussed with the NeuroRx Board details of the proposed transaction with BPRA and answered questions about the proposed business combination. In addition, certain members of the NeuroRx Board became aware of the transaction discussions and negotiations between NeuroRx and BRPA at various times prior to such

 

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telephonic meeting on November 29, 2020 as a result of communications to such members of the NeuroRx Board from NeuroRx’s management team.

On December 2, 2020, representatives of BRPA, EBC, Graubard Miller, NeuroRx and Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul Weiss”), NeuroRx’s legal counsel, held a telephonic meeting to discuss the draft Merger Agreement. On December 3, 2020, BRPA, EBC, NeuroRx and their respective legal counsel held a telephonic meeting to discuss BRPA’s compliance with Nasdaq rules and the process that BRPA was undertaking with respect to the Nasdaq Appeal. On December 4, 2020, BRPA, EBC, NeuroRx and their respective legal counsel held a follow up telephonic meeting to discuss open issues raised by the draft Merger Agreement, including (i) the solicitation of the approval of NeuroRx stockholders after the execution of the Merger Agreement and the voting and support agreements to be entered into by certain stockholders of NeuroRx following the execution of the Merger Agreement to obtain such approval and (ii) the mechanics of the earnout consideration. From December 4, 2020 through the morning of December 13, 2020, representatives of BRPA, NeuroRx, Graubard Miller and Paul Weiss conducted various telephonic conferences and exchanged drafts of the Merger Agreement and the form of voting and support agreement to be entered into by certain stockholders of NeuroRx following the execution of the Merger Agreement and resolved all open items for consideration which included (i) the mechanics of the milestones and payments related to the earnout consideration, (ii) conditions to closing, (iii) the ability of NeuroRx to terminate the Merger Agreement to accept a Superior Proposal (as defined herein) and a related termination fee payable by NeuroRx, (iv) the interim operating covenants applicable to NeuroRx and BRPA, (v) the termination rights of each of BRPA and NeuroRx and (vi) the representations, warranties and covenants of each of the parties.

On December 10, 2020, representatives of BRPA, EBC, NeuroRx, NeuroRx’s legal counsel and BRPA’s Nasdaq consultant, Donohue Advisory, held a telephonic meeting to discuss the process for the Nasdaq Appeal and potential outcomes.

On December 13, 2020, BRPA Board held a meeting, with representatives from EBC and Graubard Miller attending. Prior to the meeting, the BRPA Board was provided with a copy of the substantially final draft of the Merger Agreement, due diligence memoranda prepared by Graubard Miller and McDermott, and an investor presentation prepared by NeuroRx. The BRPA Board discussed the positive aspects of NeuroRx’s business as well as various risks relating to its business, including the need for FDA review and approval of the NeuroRx COVID-19 Drug and NeuroRx Antidepressant Drug Regimen and the possibility of delays in such process. Representatives of EBC discussed the valuation of NeuroRx, with the BRPA Board, concluding based on this discussion that NeuroRx was being fairly valued and that it satisfied the 80% test. Representatives of Graubard Miller then provided an update on the status of the negotiation of the Merger Agreement, noting that the negotiations were substantially complete. Mr. Ackerman then advised the BRPA Board that he believed that the current draft of the Merger Agreement sufficiently advanced the interests of BRPA’s stockholders such that he could recommend its approval by the BRPA Board. BRPA’s Board then deliberated and voted unanimously to authorize Mr. Ackerman to sign the Merger Agreement on behalf of BRPA.

On December 13, 2020, the NeuroRx Board held a telephonic meeting, which was attended by representatives of the NeuroRx management team and Paul Weiss. Members of management reviewed with the NeuroRx Board the business and economic terms of the proposed transaction. A representative of Paul Weiss reviewed the fiduciary duties of the members of the NeuroRx Board and provided the NeuroRx Board with an overview of the material provisions of the Merger Agreement and the resolutions to be approved by the NeuroRx Board in connection with entering into the Merger Agreement and the transactions contemplated thereby. Following such discussion, the NeuroRx Board unanimously (i) determined that the Merger Agreement and the transactions contemplated thereby were advisable and in the best interest of NeuroRx and the NeuroRx stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared their advisability, (iii) authorized NeuroRx to enter into the Merger Agreement and any other transaction documents and perform each of its obligations thereunder, including the Merger and (iv) resolved to recommend that the stockholders of NeuroRx approve and adopt each of the matters requiring the approval of the NeuroRx

 

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stockholders and authorized the officers of NeuroRx to submit the Merger Agreement to the NeuroRx stockholders for purposes of obtaining the approval of the NeuroRx stockholders and to take all actions deemed necessary or appropriate to solicit the consent of the NeuroRx stockholders with respect thereto pursuant to this proxy statement / prospectus / consent solicitation statement.

Following the meeting of the BRPA Board and the meeting of the NeuroRx Board, the parties executed the Merger Agreement on December 13, 2020.

On the morning of December 14, 2020, prior to the commencement of trading of shares of Common Stock on the Nasdaq, the parties issued a press release announcing the transaction.

On December 18, 2020, BRPA held a stockholder meeting to extend the date by which it had to consummate an initial business combination. At the meeting, BRPA’s stockholders approved extending the date by which BRPA must complete a business combination transaction to April 23, 2021. No BRPA stockholders exercised their conversion rights in connection with such extension.

On January 4, 2021, BRPA received an additional notice from Nasdaq stating that BRPA’s failure to hold an annual stockholder meeting for the fiscal year ended December 31, 2019 by December 31, 2020, as required by Nasdaq Listing Rule 5820, could serve as an additional basis for delisting BRPA’s securities from Nasdaq. BRPA requested that this issue be added to the Nasdaq Appeal.

On January 14, 2021, BRPA attended a hearing before the Nasdaq Hearings Panel with respect to the November 23, 2020 and January 2, 2021 delisting notices. During the hearing, BRPA 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, the Extended Date. Nasdaq’s decision is subject to certain conditions, including that BRPA will have completed the Merger with NeuroRx on or before the Extended Date and that NRX Pharmaceuticals will have demonstrated compliance with all requirements for initial listing on Nasdaq. While BRPA expects to complete the Merger by the Extended Date, there can be no assurance that it will be able to do so. As disclosed elsewhere in this proxy statement / prospectus / consent solicitation statement, the consummation of the Merger is subject to certain closing conditions and may be terminated prior to closing by the parties in certain circumstances.

On January 27, 2021, BRPA and NeuroRx agreed that NeuroRx would fund the filing fees for this registration statement and, in connection therewith, agreed to amend the Merger Agreement to decrease on a dollar-for-dollar basis the maximum amount available under the Note Amendment from $3,000,000 to $2,708,213.36.

On March 12, 2021, BRPA entered into Subscription Agreements with 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.

On March 19, 2021, BRPA and NeuroRx agreed to amend the Merger Agreement to extend the Outside Date from April 23, 2021 to May 24, 2021, which is the Extended Date.

On April 1, 2021, BRPA filed a definitive proxy statement seeking approval from its stockholders at a special meeting to be held on April 21, 2021 to extend the date by which BRPA is required to complete its initial business combination from April 23, 2021 to May 24, 2021.

 

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Big Rock’s Board of Directors’ Reasons for Approval of the Merger Agreement

In evaluating the business combination, BRPA’s Board consulted with management and legal and financial advisors, including Graubard Miller and EBC. The advisors assisted the BRPA Board in reviewing the business of NeuroRx and the proposed terms and conditions of the business combination.

In reaching its unanimous resolution that the terms and conditions of the Merger Agreement, including the proposed business combination, are advisable, fair to, and in the best interests of BRPA and its stockholders and to recommend that the stockholders adopt and approve the Merger Agreement and approve the Transactions contemplated therein, BRPA’s Board considered a range of factors, including but not limited to the factors listed below. In light of the number and wide variety of factors, the BRPA Board did not consider it practicable to and did not attempt to quantify or otherwise assign relative weights to the specific factors it considered in reaching its determination. The BRPA Board based its decision on all of the information available and the factors presented to and considered by it. In addition, individual directors may have given different weight to different factors. This explanation of BRPA’s reasons for the business combination and all other information presented in this section forward-looking in nature and, therefore, should be read in light of the factors discussed under “Forward-Looking Statements.”

In approving the Merger, the BRPA Board determined not to obtain a fairness opinion. The officers and directors of BRPA have substantial experience in evaluating the operating and financial merits of companies from a wide range of industries and concluded that their experience and backgrounds together with the experience of BRPA’s advisors enabled them to make the necessary analyses and determinations regarding the business combination with NeuroRx. BRPA’s management and advisors had several discussions with NeuroRx’s Chief Executive Officer regarding valuation. Further, the BRPA Board sought input from EBC with respect to the business prospects and valuation of NeuroRx in relation to comparable companies whose securities are traded on U.S. stock markets and other markets. Following valuation presentations to the BRPA Board, 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, which is traded on the Swiss stock market. Based on the valuation of Relief, the BRPA Board determined that the valuation of the NeuroRx COVID-19 Drug would be $500 million at the Closing, before satisfaction of the Earnout Milestones. The BRPA Board believed that the NeuroRx Antidepressant Drug Regimen may add additional value to the post-business combination company, based on the market capitalization of several publicly traded companies focusing on psychiatric therapies, including Relief, Relmada Therapeutics, Axsome Therapeutics, Karuna Therapeutics, Sage Therapeutics, and Biohaven Pharmaceuticals.

In considering the business combination, the BRPA Board gave considerable weight to the following factors:

 

   

NeuroRx’s business and growth prospects in light of the potential of its drug in development, the NeuroRx COVID-19 Drug, a drug that has the potential to save lives affected by COVID-19 lung damage. It is being studied by the FDA for Emergency Use Approval. The BRPA Board believed that, if the NeuroRx COVID-19 Drug is approved by the FDA, it should have immediate demand given the state of the COVID-19 crisis and the number of COVID-19 patients in intensive care.

 

   

The agreement that NeuroRx has with Relief that funds all of the development cost and splits the profits in the US, Canada and Israel 50/50. the European Union 15/85, and the rest of the World 20/80.

 

   

The valuation of Relief which is publicly traded and has a market value of $1.5 billion. Relief represents the best valuation comparable for NeuroRx and NeuroRx also has an additional drug in development.

 

   

The potential for the NeuroRx Antidepressant Drug Regimen to meet an unfilled need for those afflicted with depression and suicidal thoughts. The BRPA Board believed that, if NeuroRx’s phase 3

 

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testing of the NeuroRx Antidepressant Drug Regimen meets NeuroRx’s projections, the drug would be in commercial production in 2022.

 

   

The life of NeuroRx’s patents via the license agreements and the ability of NeuroRx to change the formulation of the NeuroRx COVID-19 Drug to allow the filing of new patents. The ability of the drug to be either an inhalant or an injectable.

 

   

The FDA process and the process NeuroRx is going through in terms of testing the drugs. The NeuroRx management team has substantial experience in bringing drugs from experimental phases through to commercialization.

 

   

The NeuroRx management team lead by Dr. Jonathan Javitt. The management team has experience from a variety of different scientific and the pharmaceutical industries including deep experience in the development and commercialization of drugs.

The BRPA Board also considered a variety of uncertainties and risks and other potentially negative factors concerning the business combination, including but not limited to, the following:

 

   

The risks that either or both drugs could have negative testing results and therefore not be approved by the FDA.

 

   

The risk that vaccines for COVID-19 could substantially decrease the need for the NeuroRx COVID-19 Drug and that it may not be approved for the treatment of other lung disease uses.

 

   

Macroeconomic uncertainty and the effects it could have on the combined company’s potential revenues.

 

   

The risk that the potential benefit of the Merger may not be fully achieved or may not be achieved within the expected timeframe.

 

   

Various other risks associated with the business of NeuroRx, as described in the section entitled “Risk Factors” appearing elsewhere in this proxy statement / prospectus / consent solicitation statement.

Notwithstanding the foregoing, the BRPA Board concluded that the potential benefits that it expected BRPA and its stockholders to realize as a result of the Merger outweighed the potentially negative factors associated with the Merger. The BRPA Board considered the opportunity to produce and grow revenues through the FDA approval and commercialization of the NeuroRx COVID-19 Drug, followed by the NeuroRx Antidepressant Drug Regimen, the potential for strong cash flow from the commercialization and sale of those drugs, the experience and motivation of the management team and the competitive position of NeuroRx within the pharmaceutical industry. In particular, the BRPA Board believes the implied valuation of NeuroRx was favorable after investigating other companies with similar products, particularly Relief Therapeutics. BRPA and its advisors did not consider other alternative combination targets to be as compelling when taking the foregoing into consideration. Accordingly, the BRPA Board unanimously determined that the Merger Agreement and the Merger contemplated therein, were advisable, fair to, and in the best interests of BRPA and its stockholders.

Satisfaction of 80% Test

It is a requirement under BRPA’s charter that any business acquired by BRPA has a fair market value equal to at least 80% of the balance of the funds in the trust account (excluding taxes payable on the income earned on the trust account) at the time of the execution of a definitive agreement for an initial business combination. Based on the financial analysis of NeuroRx generally used to approve the business combination described herein, the BRPA Board determined that this requirement was met. In reaching this determination, the BRPA Board concluded that it was appropriate to base such valuation on qualitative factors such as management strength and depth, competitive positioning, and business model as well as quantitative factors such as NeuroRx’s potential for future growth in revenues and profits and comparisons to market values of other public companies.

 

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Interests of BRPA’s Directors and Officers in the Transactions

When you consider the recommendation of BRPA’s Board in favor of approval of the business combination proposal and other proposals being presented at the annual meeting, you should keep in mind that the directors and officers of BRPA have interests in such proposals that are different from, or in addition to, your interests as a stockholder of BRPA. These interests include, among other things:

 

   

If the business combination with NeuroRx or another business combination is not consummated by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension), it will trigger BRPA’s automatic winding up, dissolution and liquidation pursuant to the terms of the Charter. Further, if BRPA’s Board determines that BRPA will not be able to complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, the BRPA Board will be able to determine in its sole discretion to cease efforts to consummate an initial business combination and to instead proceed to redeem 100% of the outstanding Public Shares and liquidate and dissolve BRPA. In either such event, the 272,500 insider shares, which include shares of Common Stock held by the Sponsor, an entity controlled by Richard Ackerman, BRPA’s Chairman, President and Chief Executive Officer, and in which certain of BRPA’s officers and directors have economic interests, which shares were acquired for a purchase price of approximately $0.01 per share prior to BRPA’s initial public offering, would be worthless because the Sponsor is not entitled to participate in any redemption or distribution from the trust account with respect to such shares. Such shares had an aggregate market value of $                 based upon the closing price of $                 per share on Nasdaq on the record date.

 

   

The Sponsor purchased an aggregate of 272,500 Units in a private placement that occurred simultaneously with the closing of BRPA’s initial public offering for an aggregate purchase price of $2,725,000 (or $10.00 per Unit). All of the proceeds BRPA received from the purchase of these Units were placed in the trust account. If BRPA does not complete the Transactions with NeuroRx or another business combination by April 23, 2021 (or May 24, 2021, if BRPA’s stockholders approve the proposed extension) and does not wish to seek an additional extension, BRPA will begin the process of winding up, dissolving, and liquidating pursuant to the Charter. In such event, the Warrants and Rights underlying the private placement Units will expire and the shares of Common Stock underlying the private placement Units will be worthless because the Sponsor is not entitled to participate in any redemption or distribution from the trust account with respect to such shares. Such Units had an aggregate market value of $                 based upon the closing price of $                 per Unit on Nasdaq on the record date.

 

   

Since BRPA’s inception, entities affiliated with BRPA’s officers and directors have made loans from time to time to BRPA to fund certain capital requirements. Pursuant to the Merger Agreement, these working capital loans may be repaid upon the closing of the Transactions if the amount remaining in the trust account after taking into account conversions by BRPA public stockholders, plus any amounts raised in a financing, exceeds $5,000,001; amounts not repaid will be converted into two-year convertible promissory notes of BRPA with a principal amount of no more than $2,708,213.36, which bear interest at three percent (3%) per annum. However, if the Transactions are not consummated and BRPA does not consummate another business combination within the required time period, the loans will not be repaid and will be forgiven unless BRPA has funds outside of the trust account then available to it to repay such notes. As of the record date, an aggregate of approximately $                 principal amount of such loans is outstanding.

 

   

A/Z Partners, an affiliate of Richard Ackerman, has agreed that if a business combination is not consummated and BRPA liquidates, it will be liable under certain circumstances to ensure that the proceeds in the trust account are not reduced by certain claims of target businesses or vendors or other entities that are owed money by BRPA for services rendered, contracted for or products sold to BRPA.

 

   

If BRPA is unable to complete a business combination within the required time period, it will pay the costs of any subsequent liquidation from its remaining assets outside of the trust account. If such funds are insufficient, A/Z Partners has agreed to pay the funds necessary to complete such liquidation (currently anticipated to be no more than approximately $15,000) and has agreed not to seek repayment for such expenses.

 

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BRPA’s Charter currently provides for BRPA’s officers and directors to be indemnified by BRPA, and the officers and directors to be exculpated from monetary liability with respect to prior acts or omissions. Additionally, the Merger Agreement requires BRPA to maintain in effect “tail” directors’ and officers’ liability insurance covering BRPA’s outgoing officers and directors with respect to such acts or omissions. If the business combination is not consummated and BRPA liquidates, BRPA may not be able to perform its obligations to its officers and directors.

 

   

BRPA’s officers, directors and their affiliates are entitled to reimbursement of out-of-pocket expenses incurred by them in connection with certain activities on BRPA’s behalf, such as identifying and investigating possible business targets and business combinations. If a business combination is not consummated, these out-of-pocket expenses will not be repaid. As of the record date, an aggregate of approximately $                 of reimbursable expenses is outstanding.

In addition to the foregoing, at any time prior to the annual meeting, during a period when they are not then aware of any material nonpublic information regarding BRPA or its securities, BRPA’s officers, directors or stockholders, NeuroRx, the NeuroRx officers and directors and/or their respective affiliates may purchase Common Stock from institutional and other investors who vote, or indicate an intention to vote, against the business combination proposal, or execute agreements to purchase such shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire shares of Common Stock or vote their shares of Common Stock in favor of the business combination proposal. The purpose of such purchases and other transactions would be to ensure that BRPA has in excess of $5,000,001 of net tangible assets to consummate the Transactions where it appears that such requirement would otherwise not be met. While the exact nature of any such incentives has not been determined as of the date of this proxy statement / prospectus / consent solicitation statement, they might include, without limitation, arrangements to protect such investors or holders against potential loss in value of their shares, including the granting of put options and the transfer to such investors or holders of shares owned by the Sponsor for nominal value.

Entering into any such arrangements may have a depressive effect on the Common Stock. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares of Common Stock at a price lower than market and may therefore be more likely to sell the Common Stock he owns, either prior to or immediately after the annual meeting.

As of the date of this proxy statement / prospectus / consent solicitation statement, there have been no such discussions and no agreements to such effect have been entered into with any such investor. BRPA will file a Current Report on Form 8-K to disclose any arrangements entered into or significant purchases made by any of the aforementioned persons that would affect the vote on the business combination proposal or the satisfaction of any closing conditions. Any such report will include descriptions of any arrangements entered into or significant purchases by any of the aforementioned persons.

Recommendation to BRPA Stockholders

BRPA’s Board 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 BRPA stockholders 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, “FOR” the plan proposal, and “FOR” the adjournment proposal, if presented.

Material Tax Consequences of the Merger to U.S. Holders of NeuroRx Common Stock

It is the opinion of Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel to NeuroRx, that for U.S. federal income tax purposes, the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. It is a condition to NeuroRx’s obligation to consummate the Merger that NeuroRx receive an opinion from Paul, Weiss, Rifkind, Wharton & Garrison LLP, dated as of the closing date, to the effect that the Merger will qualify as a “reorganization” within the meaning of Section 368(a) of the Code. On the basis of such opinion, a U.S. Holder (as defined in “Material U.S. Federal Income Tax Consequences” beginning on page 261) of NeuroRx Common Stock

 

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(including the shares of NeuroRx Common Stock received upon the Preferred Stock Conversion) generally will not recognize any gain or loss upon the receipt of shares of BRPA capital stock in the Merger (including any Earnout Shares), but may recognize gain with respect to such U.S. Holder’s contingent right to a pro rata portion of the Earnout Cash. However, the timing and character of such gain (if any) will depend, in part, on whether such U.S. Holder reports such gain under the installment sale method. NeuroRx stockholders are urged to consult their tax advisors to understand fully the consequences to them of the transactions in their specific circumstances. For more information, see “Material U.S. Federal Income Tax Consequences — Material Tax Consequences of the Merger to U.S. Holders of NeuroRx Capital Stock” beginning on page 262.

Anticipated Accounting Treatment of the Transactions

It is anticipated that the business combination will be accounted for as a reverse recapitalization in accordance with GAAP. Under this method of accounting, BRPA will be treated as the acquired company and NeuroRx will be treated as the acquirer for financial reporting purposes.

Appraisal Rights

BRPA stockholders and holders of BRPA Rights and Warrants do not have appraisal rights in connection with the Transactions under the DGCL.

The NeuroRx stockholders are entitled to appraisal rights in connection with the Merger under the DGCL. For more information, see the section titled “Appraisal Rights.”

Vote Required for Approval

The approval of the business combination proposal will require the affirmative vote of the holders of a majority of the then outstanding shares of Common Stock present and entitled to vote at the annual meeting. Abstentions will have the same effect as a vote “against” the business combination proposal. Brokers are not entitled to vote on the business combination proposal absent voting instructions from the beneficial holder and, consequently, broker non-votes will have no effect on the business combination proposal. The Transactions will not be consummated if BRPA has less than $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Exchange Act) upon consummation of the Transactions.

The approval of the business combination proposal is a condition to the consummation of the Transactions. If the business combination proposal is not approved, the other proposals (except an adjournment proposal, as described below) will not be presented to the BRPA stockholders for a vote.

The holders of insider shares and each officer and director of BRPA agreed to vote all shares of Common Stock held by them in favor of the business combination proposal. They 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.

Recommendation of the Board of Directors

THE BRPA BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE BRPA STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE BUSINESS COMBINATION PROPOSAL.

 

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THE MERGER AGREEMENT

For a discussion of the structure of the Transactions and the consideration to be paid, see the section titled “The Business Combination Proposal.” Such discussion and the following summary of other material provisions of the Merger Agreement is qualified by reference to the complete text of the Merger Agreement, a copy of which is attached as Annex A to this proxy statement / prospectus / consent solicitation statement. All BRPA stockholders are encouraged to read the Merger Agreement in its entirety for a more complete description of the terms and conditions of the Transactions.

Structure of the Transactions

The Merger Agreement provides for the Merger of Merger Sub with and into NeuroRx, with NeuroRx surviving as a wholly-owned subsidiary of BRPA and the securityholders of NeuroRx becoming securityholders of BRPA.

Closing of the Transactions

The Closing will take place no later than the second business day following the satisfaction or waiver of the conditions described below under the subsection titled “—Conditions to Closing” (other than those conditions which can be satisfied only at the Closing, but subject to the satisfaction or waiver of such conditions at Closing), or at such other time and place as may be agreed to by BRPA and NeuroRx. The Transactions are expected to be consummated as soon as practicable after the annual meeting of BRPA’s shareholders described in this proxy statement / prospectus / consent solicitation statement, assuming the other conditions to the Transactions have been satisfied or waived.

On the Closing Date, BRPA and NeuroRx will effect the Merger by filing a certificate of merger with the Secretary of State of the State of Delaware, and the Merger will become effective at the time the certificate of merger has been duly filed. The time at which the Merger becomes effective is sometimes referred to in this proxy statement / prospectus / consent solicitation statement as the “Effective Time.” In addition, in connection with the Merger, BRPA will change its name to NRX Pharmaceuticals, Inc.

As of the date of this proxy statement / prospectus / consent solicitation statement, the parties expect that the Merger will be effective during the first half of 2021. However, there can be no assurance as to when or if the Merger will occur.

If the Merger is not completed by May 24, 2021 (the “termination date”), the Merger Agreement may be terminated by either BRPA or NeuroRx. A party may not terminate the Merger Agreement pursuant to the provision described in this paragraph if the party seeking to terminate the Merger Agreement is in material breach of its obligations set forth in the Merger Agreement on the termination date. See below under the subsection titled “—Termination.

Merger Consideration

Closing Consideration

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. 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) the Earnout Shares if the Earnout Shares Milestone is met prior to December 31, 2022 and (ii) the Earnout Cash if the Earnout Cash Milestone is met prior to December 31, 2022.

Pursuant to the Merger Agreement, NeuroRx shall take all actions necessary to cause each share of NeuroRx Preferred Stock that is issued and outstanding immediately prior to the Effective Time to be converted

 

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immediately prior to the Effective Time into a number of shares of NeuroRx Common Stock at the then-effective conversion rate (as calculated pursuant to NeuroRx’s certificate of incorporation) in accordance with the certificate of incorporation.

Pursuant to the Merger Agreement, at the Effective Time, each share of NeuroRx Common Stock (including shares of NeuroRx Common Stock resulting from the Preferred Stock Conversion) that is issued and outstanding immediately prior to the Effective Time will be converted into the right to receive a number of shares of Common Stock equal to the quotient of (i) 50,000,000 divided by (ii) the total number of issued and outstanding shares of NeuroRx Common Stock and the NeuroRx Preferred Stock (on an “as-converted” to NeuroRx Common Stock basis) on a fully diluted basis as of the Closing Date using the treasury method of accounting, including, without duplication, the number of shares of NeuroRx Common Stock issuable pursuant to the conversions or exercises of convertible securities pursuant to the Merger Agreement, the number of shares of NeuroRx Common Stock issued or issuable upon the exercise of all stock options of NeuroRx and the shares of NeuroRx Common Stock underlying the warrants of NeuroRx (collectively, the “Exchange Ratio”) and (ii) a contingent right to receive a number or an amount, as applicable, of Earnout Shares and Earnout Cash, if any, issuable and payable pursuant to the terms of the Merger Agreement.

Each option of NeuroRx that is outstanding and unexercised immediately prior to the Closing (whether vested or unvested) will be assumed by BRPA and converted into an option to acquire an adjusted number of shares of Common Stock at an adjusted exercise price per share, and will continue to be governed by substantially the same terms and conditions, including vesting, as were applicable to the former option. Each warrant of NeuroRx that is outstanding and unexercised immediately prior to the Closing will be assumed by BRPA and treated as if such warrant were an option of NeuroRx in accordance with the terms of the Merger Agreement.

Earnout

NeuroRx’s securityholders (including option holders and warrant holders) who own NeuroRx securities immediately prior to the Closing will have the contingent right to receive their pro rata portion of (i) an aggregate of 25,000,000 shares of Common Stock (which we refer to as the Earnout Shares) if, prior to December 31, 2022, the NeuroRx COVID-19 Drug (i.e., ZYESAMI) receives emergency use authorization by the 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 is referred to herein as the Earnout Shares Milestone), and (ii) an aggregate of $100,000,000 in cash (which we refer to as 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 (i.e., ZYESAMI) 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) is referred to herein as the Earnout Cash Milestone).

Treatment of Equity Awards

Assumption of NeuroRx Options

Each option of NeuroRx that is outstanding and unexercised immediately prior to the Closing (whether vested or unvested) will be assumed by BRPA and converted into an option to acquire an adjusted number of shares of Common Stock at an adjusted exercise price per share (the “Substitute Options”), and will continue to be governed by substantially the same terms and conditions, including vesting, as were applicable to the former option, except that (i) each Substitute Option will be exercisable for that number of whole shares of Common Stock equal to the product of the number of shares of NeuroRx Common Stock underlying such NeuroRx option multiplied by the Option Exchange Ratio, rounded down to the nearest whole share and (ii) the per share exercise price of such Substitute Option will be equal to the quotient determined by dividing the exercise price per share of NeuroRx Common Stock by the Option Exchange Ratio, rounded up to the nearest whole cent. The “Option Exchange Ratio” is the same as the Exchange Ratio, except that “(i) the sum of (a) 75,000,000 plus (b) the

 

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Earnout Cash Share Equivalent” is substituted for “(i) 50,000,000.” For purposes of the Option Exchange Ratio definition, the “Earnout Cash Share Equivalent” means the quotient of (i) 100,000,000 divided by (ii) the BRPA Closing Price, and the “BRPA Closing Price” means the closing sale price of Common Stock on Nasdaq on the last complete trading day immediately prior to the Effective Time. The percentage of total shares of Common Stock subject to each Substitute Option that is vested immediately following the Closing will equal the percentage of total shares of NeuroRx Common Stock subject to each NeuroRx option that is vested immediately prior to the Closing.

In the event that either the Earnout Shares Milestone or the Earnout Cash Milestone does not occur prior to December 31, 2022, each Substitute Option will be adjusted such that the number of shares of Common Stock subject to each adjusted Substitute Option, the exercise price per share of each adjusted Substitute Option and the aggregate intrinsic value of each adjusted Substitute Option will equal the respective number of shares, exercise price per share and aggregate intrinsic value that would have resulted following the adjustment of the applicable underlying Substitute Option had the conversion of NeuroRx options into the Substitute Options been applied using the Exchange Ratio with substitution of “(i) the sum of (a) 50,000,000 plus (b) the number of Earnout Shares actually distributed to stockholders plus (c) the quotient of (A) the aggregate amount, if any, of the Earnout Cash actually distributed to stockholders divided by (B) the BRPA Closing Price” in lieu of “(i) 50,000,000”. If neither the Earnout Shares Milestone nor the Earnout Cash Milestone occurs, each Substitute Option will be adjusted based on the Exchange Ratio.

If any Substitute Options are exercised prior to the earlier of (i) the date that both the Earnout Shares Milestone and Earnout Cash Milestone occur and (ii) December 31, 2022, a sufficient number of shares of Common Stock will be held in escrow pending the applicable adjustment to such Substitute Options. Following the determination of that adjustment, NeuroRx will retain any shares forfeited by the optionholder in connection with the adjustment and return any remaining shares to the optionholder.

Assumption of NeuroRx Warrants

Each warrant of NeuroRx that is outstanding and unexercised immediately prior to the Closing will be assumed by BRPA and treated as if such warrant were an option of NeuroRx in accordance with the terms of the Merger Agreement.

Representations and Warranties

Except as limited below, the Merger Agreement contains representations and warranties of NeuroRx and its subsidiaries generally relating, among other things, to:

 

   

proper organization and qualification;

 

   

capitalization;

 

   

the authorization, performance and enforceability of the Merger Agreement;

 

   

governmental actions and filings;

 

   

compliance with laws;

 

   

permits;

 

   

financial statements;

 

   

absence of certain changes;

 

   

condition and sufficiency of NeuroRx’s assets;

 

   

litigation;

 

   

benefit plans;

 

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labor matters;

 

   

restrictions on business activities of NeuroRx;

 

   

real and personal property;

 

   

tax matters;

 

   

environmental matters;

 

   

brokers’ fees;

 

   

intellectual property;

 

   

product warranties and product liability with respect to NeuroRx;

 

   

material contracts;

 

   

insurance;

 

   

transactions with affiliates;

 

   

NeuroRx’s compliance with international trade and anti-corruption laws;

 

   

NeuroRx’s FDA and European Medicines Agency approvals;

 

   

health care regulatory compliance matters with respect to NeuroRx;

 

   

board approval; and

 

   

stockholder approval.

Except as limited below, the Merger Agreement contains representations and warranties of BRPA and Merger Sub generally relating, among other things, to:

 

   

proper organization and qualification;

 

   

capitalization;

 

   

the authorization, performance and enforceability of the Merger Agreement;

 

   

governmental actions and filings;

 

   

reports filed by BRPA with the SEC;

 

   

compliance with laws;

 

   

BRPA’s compliance with the Sarbanes-Oxley Act;

 

   

financial statements;

 

   

absence of undisclosed liabilities;

 

   

absence of certain changes;

 

   

litigation;

 

   

benefit plans;

 

   

labor matters;

 

   

business activities of BRPA;

 

   

real and personal property;

 

   

tax matters;

 

   

brokers’ fees;

 

   

intellectual property;

 

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material contracts;

 

   

insurance;

 

   

transactions with affiliates;

 

   

BRPA’s Nasdaq listing;

 

   

BRPA’s trust account;

 

   

board approval; and

 

   

stockholder approval.

Certain of these representations and warranties are qualified as to “materiality” or “material adverse effect.” For purposes of the Merger Agreement, a “material adverse effect” with respect to NeuroRx means any change, event, occurrence, effect, circumstance or development that has a materially adverse effect on (x) financial condition, assets, business, or results of operations of NeuroRx and its Subsidiaries, taken as a whole, or (y) the ability of NeuroRx and its Subsidiaries to timely consummate the Closing (including the Merger) on the terms set forth in the Merger Agreement; provided that, in the case of clause (x) only, in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “NeuroRx Material Adverse Effect”: (i) changes or developments in general U.S. or global economic conditions, including changes in interest rates or economic, political, business, financial, commodity, currency or market conditions generally, (ii) changes in applicable Legal Requirements, U.S. GAAP, or authoritative interpretations thereof, (iii) any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism, cyberterrorism, civil unrest, military actions, natural or man-made disasters, weather conditions, epidemics, pandemics (including COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof)) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing), (iv) any change, event, occurrence, effect, circumstance or development attributable to the announcement, pendency, negotiation or consummation of the Merger or any other Transactions or the execution or performance of the Merger Agreement, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, licensors, distributors, partners, providers and employees or NeuroRx or any of its Subsidiaries, (vi) any action taken or omitted to be taken by NeuroRx or its Subsidiaries at BRPA’s direction or written request, any action required or permitted to be taken or omitted to be taken by the Merger Agreement or any Ancillary Agreement or any action to which BRPA has consented in writing, (vii) any change generally affecting any of the industries or markets in which NeuroRx or its Subsidiaries operate or the economy as a whole, or (viii) the failure, in and of itself, to meet, or changes to, any budget, projection, forecast, estimate, or prediction (it being understood that the underlying facts and circumstances giving rise to or contributing to such failure or change may be taken into account in determining whether there has been a NeuroRx Material Adverse Effect, unless such underlying facts and circumstances would otherwise be excepted from this definition); provided, however, in the case of each of the foregoing clauses (i), (ii), (iii) and (vii), in the event that NeuroRx and its Subsidiaries, taken as a whole are materially and disproportionately affected by such change, event, occurrence, effect, circumstance or development relative to other participants in the business and industries in which they operate, the extent (and only the extent) of such material and disproportionate affect, relative to such other participants, on NeuroRx and its Subsidiaries, taken as a whole, may be taken into account in determining whether there has been a NeuroRx Material Adverse Effect.

For purposes of the Merger Agreement, a “material adverse effect” with respect to BRPA means any change, event, occurrence, effect, circumstance or development that has a materially adverse effect on (x) financial condition, assets, business, or results of operations of BRPA or (y) the ability of BRPA to timely consummate the Closing (including the Merger) on the terms set forth in the Merger Agreement; provided that, in the case of clause (x) only, in no event would any of the following (or the effect of any of the following), alone or in combination, be deemed to constitute, or be taken into account in determining whether there has been or will be, a “BRPA Material Adverse Effect”: (i) changes or developments in general U.S. or global economic

 

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conditions, including changes in interest rates or economic, political, business, financial, commodity, currency or market conditions generally, (ii) changes in applicable Legal Requirements, U.S. GAAP, or authoritative interpretations thereof, (iii) any geopolitical conditions, outbreak of hostilities, acts of war, sabotage, terrorism, cyberterrorism, civil unrest, military actions, natural or man-made disasters, weather conditions, epidemics, pandemics (including COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof)) or other outbreaks of illness or public health events and other force majeure events (including any escalation or general worsening of any of the foregoing), (iv) any change, event, occurrence, effect, circumstance or development attributable to the announcement, pendency, negotiation or consummation of the Merger or any other Transactions or the execution or performance of the Merger Agreement, (v) any action taken or omitted to be taken by BRPA at NeuroRx’s direction or written request, any action required or permitted to be taken or omitted to be taken by the Merger Agreement or any Ancillary Agreement or any action to which NeuroRx has consented in writing, (vi) any change generally affecting any of the industries or markets in which BRPA operate or the economy as a whole, or (vii) the failure, in and of itself, of BRPA to meet, or changes to, any budget, projection, forecast, estimate, or prediction (it being understood that the underlying facts and circumstances giving rise to or contributing to such failure or change may be taken into account in determining whether there has been a BRPA Material Adverse Effect, unless such underlying facts and circumstances would otherwise be excepted from this definition); provided, however, in the case of each of the foregoing clauses (i), (ii), (iii) and (vii), in the event that BRPA is materially and disproportionately affected by such change, event, occurrence, effect, circumstance or development relative to other participants in the business and industries in which they operate, the extent (and only the extent) of such material and disproportionate affect, relative to such other participants, on BRPA may be taken into account in determining whether there has been a BRPA Material Adverse Effect.

The representations and warranties in the Merger Agreement do not survive the Effective Time and, as described below under “—Termination”, if the Merger Agreement is validly terminated, there will be no liability under the representations and warranties of the parties, or otherwise under the Merger Agreement, unless (i) a party intentionally and willfully breached the Merger Agreement or (ii) the NeuroRx termination fee is payable as described below.

This summary and the copy of the Merger Agreement attached to this proxy statement / prospectus / consent solicitation statement as Annex A are included solely to provide investors with information regarding the terms of the Merger Agreement. They are not intended to provide factual information about the parties or any of their respective subsidiaries or affiliates. The Merger Agreement contains representations and warranties by BRPA and NeuroRx, which were made only for purposes of that agreement and as of specific dates. The representations, warranties and covenants in the Merger Agreement were made solely for the benefit of the parties to the Merger Agreement, may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those generally applicable to investors. Investors are not third-party beneficiaries under the Merger Agreement, and in reviewing the representations, warranties and covenants contained in the Merger Agreement or any descriptions thereof in this summary, it is important to bear in mind that such representations, warranties and covenants or any descriptions thereof were not intended by the parties to the Merger Agreement to be characterizations of the actual state of facts or condition of BRPA, NeuroRx or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures.

Covenants and Agreements

Conduct of Businesses Prior to the Completion of the Merger

NeuroRx has agreed that, prior to the effective time of the Merger, it will, and will cause its subsidiaries to, except to the extent that BRPA shall otherwise consent in writing (which consent shall not be unreasonably withheld, conditioned or delayed) or as contemplated by the Merger Agreement, carry on its business in the

 

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usual, regular and ordinary course consistent with past practices, in substantially the same manner as conducted prior to the date of the Merger Agreement and in compliance with all applicable law and use its commercially reasonable efforts consistent with past practices and policies to (i) preserve substantially intact its present business organization, (ii) keep available the services of its present key officers and employees, and (iii) preserve its relationships with key customers, suppliers, distributors, licensors, licensees, and others with which it has significant business dealings; provided, that, in the case of each of the preceding clauses (i)-(iii), during any period of full or partial suspension of operations related to COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof), NeuroRx may, in connection with the COVID-19 pandemic (or any mutation or variation thereof), take such actions as are reasonably necessary (A) to protect the health and safety of NeuroRx’s or its subsidiaries’ employees and other individuals having business dealings with NeuroRx or its subsidiaries or (B) to reasonably respond to third-party supply or service disruptions caused by the COVID-19 pandemic, COVID-19 or SARS-CoV-2 virus (or any mutation or variation thereof), and shall provide prompt notice to BRPA of the taking of any action permitted by the foregoing.

In addition to the general covenants above, NeuroRx has agreed that prior to the effective time of the Merger, subject to specified exceptions, it will not and its subsidiaries will not, without the prior written consent of BRPA (which consent shall not be unreasonably withheld), do any of the following:

 

   

Waive any stock repurchase rights, accelerate, amend or (except as specifically provided for herein) change the period of exercisability of options or restricted stock, or reprice options granted under any incentive plan or authorize cash payments in exchange for any options granted under any incentive plan;

 

   

Grant any material severance or termination pay to (i) any officer or (ii) any employee, except pursuant to applicable law, written agreements outstanding, or incentive plans or policies existing on the date of the Merger Agreement and as previously or concurrently disclosed or made available to the other party, or in the case of NeuroRx and its subsidiaries except in connection with the promotion, hiring or firing of any employee in the ordinary course of business consistent with past practice;

 

   

Abandon, dispose of, allow to lapse, transfer, sell, assign, or exclusively license to any person or otherwise extend, amend or modify any existing or future intellectual property rights;

 

   

Fail to pay its accounts payable or collect its accounts receivable in accordance with past practices;

 

   

Declare, set aside or pay any dividends on or make any other distributions (whether in cash, stock, equity securities or property) in respect of any capital stock or other equity securities (other than any such dividend or distribution by a subsidiary of NeuroRx to NeuroRx or another such subsidiary), or split, combine or reclassify any capital stock or other equity securities or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for any capital s