UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): July 26, 2019
____________________

 

GORDON POINTE ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

____________________

 

Delaware   001-38363   82-1270173
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

 

780 Fifth Avenue South

Naples, FL 34102

(Address of principal executive offices, including zip code)

 

Registrant’s telephone number, including area code: (412) 960-4687

 

Not Applicable
(Former name or former address, if changed since last report)

___________________

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

¨ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
¨ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
¨ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
¨ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

Title of each class   Trading Symbol(s)  

Name of each exchange on

which registered

Units, each consisting of one share of Class A common stock, $0.0001 par value, and one Warrant   GPAQU   Nasdaq Capital Market
Class A common stock, $0.0001 par value per share   GPAQ   Nasdaq Capital Market
Warrants to purchase Class A common stock   GPAQW   Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

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 13(a) of the Exchange Act.

 

 

 

 

 

 Item 1.01. Entry into a Material Definitive Agreement.

 

Amendment to Investment Management Trust Agreement

 

On July 26, 2019, Gordon Pointe Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (“Continental”) entered into Amendment No. 1 to the Investment Management Trust Agreement, dated as of January 24, 2018, by and between the Company and Continental (the “Trust Amendment”), pursuant to which the date on which Continental must liquidate the trust account which was established in connection with the Company’s initial public offering (the “IPO”), in the event the Company has not consummated its initial business combination, was extended from July 30, 2019 to October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days (the “Extended Date”). The Trust Amendment was approved by the Company’s stockholders at a Special Meeting of Stockholders held on July 26, 2019 (the “Special Meeting”).

 

The foregoing description of the Trust Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Trust Amendment, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

On July 26, 2019, the Company filed with the Secretary of State of the State of Delaware an amendment (the “Extension Amendment”) to the Company’s Amended and Restated Certificate of Incorporation, pursuant to which the date by which the Company must consummate its initial business combination was extended from July 30, 2019 to the Extended Date (the “Extension”). The Extension Amendment was approved by the Company’s stockholders at the Special Meeting and became effective upon the filing thereof with the Secretary of State of the State of Delaware.

The foregoing description of the Extension Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Extension Amendment, a copy of which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.

Item 5.07 Submission of Matters to a Vote of Security Holders.

The results of voting on the proposals submitted to a vote of the Company’s stockholders at the Special Meeting, held on July 26, 2019, were as follows:

Proposal No. 1

The Extension Amendment was approved as follows:

 

For   Against   Abstain   Broker Non-Votes
13,304,122   185,101   130,000   0

 

Proposal No. 2

The Trust Amendment was approved as follows:

For   Against   Abstain   Broker Non-Votes
13,304,122   185,101   130,000   0

 

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Item 7.01 Regulation FD Disclosure.

In connection with the Extension, stockholders elected to redeem 1,446,461 shares of the Company’s common stock issued in the IPO, par value $0.0001 per share (the “public shares”). As a result, an aggregate of approximately $14,962,644.55 (or approximately $10.34 per share) will be removed from the Company’s trust account to pay such stockholders. Following such redemptions, approximately 11,053,539 public shares will remain issued and outstanding.

As indicated in the Company’s proxy materials relating to the Special Meeting, since the Extension Amendment was approved, the Company’s sponsor has agreed to contribute to the Company as a loan $0.10 for each public share that is not redeemed in connection with the stockholder vote to approve the extension of the deadline to complete an initial business combination to October 31, 2019, plus, if the Company elects to further extend the deadline to complete an initial business combination beyond October 31, 2019, $0.033 for each 30-day period thereafter, or portion thereof, up to three additional 30-day periods. The Company intends to use the amounts loaned by the sponsor to deposit in the Company’s trust account. Accordingly, the Company’s sponsor will contribute an aggregate of approximately $1,105,353.90 (the “Contribution”) to the Company within two business days prior to the beginning of each 30-day period (or portion thereof), other than the first Contribution which is being made on July 26, 2019. If the Company takes the full time through the Extended Date to complete an initial business combination, the redemption price per share at the meeting for such business combination or the Company’s subsequent liquidation will be approximately $10.52 per share. The amount of the Contribution will not bear interest and will be repayable by the Company to the sponsor upon consummation of an initial business combination.

The information in this Item 7.01 is being furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act, except as expressly set forth by specific reference in such filing.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

  Exhibit
Number
  Description
     
3.1   Amendment to Amended and Restated Certificate of Incorporation of Gordon Pointe Acquisition Corp.
     
10.1   Amendment No. 1, dated as of July 26, 2019, to the Investment Management Trust Agreement, dated as of January 24, 2018, by and between Gordon Pointe Acquisition Corp. and Continental Stock Transfer & Trust Company
     

   

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SIGNATURE

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

  GORDON POINTE ACQUISITION CORP.
     
  By: /s/ James J. Dolan
    Name: James J. Dolan
    Title: Chief Executive Officer
     
Dated: July 26, 2019    

 

 

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EXHIBIT INDEX

 

 

  Exhibit
Number
  Description
     
3.1   Amendment to Amended and Restated Certificate of Incorporation of Gordon Pointe Acquisition Corp.
     
10.1   Amendment No. 1, dated as of July 26, 2019, to the Investment Management Trust Agreement, dated as of January 24, 2018, by and between Gordon Pointe Acquisition Corp. and Continental Stock Transfer & Trust Company
     

 

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Exhibit 3.1

 

AMENDMENT

TO THE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

GORDON POINTE ACQUISITION CORP.

 

 

 

Pursuant to Section 245 of the

Delaware General Corporation Law  

 

 

 

The undersigned, being a duly authorized officer of GORDON POINTE ACQUISITION CORP. (the “ Corporation ”), a corporation existing under the laws of the State of Delaware, does hereby certify as follows:

 

1. The name of the Corporation is Gordon Pointe Acquisition Corp.

 

2. The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware (the “ Secretary of State ”) on April 12, 2017. An amended and restated certificate of incorporation was filed with the Secretary of State on January 30, 2018 (the “ Amended and Restated Certificate ”).

 

3. This Amendment to the Amended and Restated Certificate (this “ Amendment ”) amends the Amended and Restated Certificate.

 

4.     This Amendment was duly adopted by the affirmative vote of the holders of at least 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Sections 242 and 245 the General Corporation Law of the State of Delaware (the “ DGCL ”).

 

5.      The text of Article IX, Section 9.1(b) is hereby amended and restated to read in full as follows:

 

(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriter’s over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, as initially filed with the Securities and Exchange Commission on December 22, 2017, as amended (the “ Registration Statement ”), shall be deposited in a trust account (the “ Trust Account ”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay franchise and income taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earlier of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days; and (iii) the redemption of shares in connection with a vote seeking to amend any provisions of the Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.7 ). Holders of shares of Common Stock included as part of the units sold in the Offering (the “ Offering Shares ”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are affiliates of Gordon Pointe Management, LLC (the “ Sponsor ”) or officers or directors of the Corporation) are referred to herein as “ Public Stockholders.

 

6. The text of Article IX, Section 9.2(d) is hereby amended and restated to read in full as follows:

 

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(d) In the event that the Corporation has not consummated an initial Business Combination by October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days, the Corporation shall (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 subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes (less up to $100,000 of such net interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.

 

7. The text of Article IX, Section 9.7 is hereby amended and restated to read in full as follows:

 

Additional Redemption Rights . If, in accordance with Section 9.1(a) , any amendment is made to Section 9.2(d)  that would affect the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days, then the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes, divided by the number of then outstanding Offering Shares. The Corporation’s ability to provide such opportunity is subject to the Redemption Limitation.

 

IN WITNESS WHEREOF, Gordon Pointe Acquisition Corp. has caused this Amendment to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the 26 th day of July, 2019.

 

GORDON POINTE ACQUISITION CORP.

 

By: /s/ James J. Dolan                                     

James J. Dolan, Chief Executive Officer

 

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Exhibit 10.1

 

AMENDMENT NO. 1 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT

 

THIS AMENDMENT NO. 1 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “ Amendment ”) is made as of July 26, 2019, by and between Gordon Pointe Acquisition Corp., a Delaware corporation (the “ Company ”), and Continental Stock Transfer & Trust Company, a New York corporation (the “ Trustee ”). Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in the Original Agreement (as defined below).

 

WHEREAS, on January 30, 2018, the Company consummated an initial public offering (the “ Offering ”) of units of the Company’s equity securities, each such unit comprised of one share of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), and one warrant to purchase one share of Common Stock;

 

WHEREAS, the Company entered into an Underwriting Agreement with B. Riley FBR, Inc., as representative (the “ Representative ”) of the several underwriters (the “ Underwriters ”) named therein (the “ Underwriting Agreement ”);

 

WHEREAS, $126,250,000 of the gross proceeds of the Offering and sale of the Placement Warrants (as defined in the Underwriting Agreement) were delivered to the Trustee to be deposited and held in a segregated trust account located in the United States (the “ Trust Account ”) for the benefit of the Company and the holders of the Company’s Common Stock included in the Units issued in the Offering pursuant to the investment management trust agreement made effective as of January 24, 2018, by and between the Company and the Trustee (the “ Original Agreement ”) (the amount delivered to the Trustee (and any interest subsequently earned thereon), including the proceeds from any loans made by the Company’s sponsor or its affiliates in connection with the Extension Amendment (as hereinafter defined) is referred to herein as the “ Property ”);

 

WHEREAS, the Company has sought the approval of its stockholders at a meeting of its stockholders to: (i) extend the date before which the Company must complete a business combination from July 30, 2019 to October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days (the “ Extension Amendment ”) and (ii) extend the date on which the Trustee must liquidate the Trust Account if the Company has not completed a business combination from July 30, 2019 to October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days (the “ Trust Amendment ”);

 

WHEREAS, holders of at least sixty-five percent (65%) of the Company’s outstanding shares of common stock approved the Extension Amendment and the Trust Amendment; and

 

WHEREAS, the parties desire to amend and restate the Original Agreement to, among other things, reflect amendments to the Original Agreement contemplated by the Trust Amendment.

 

NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:

 

1. Amendment of Trust Agreement . Section 1(i) of the Original Agreement is hereby amended and restated in its entirety as follows:

 

(i)        Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“ Termination Letter ”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B signed on behalf of the Company by its Chief Executive Officer, President, Chief Financial Officer, Secretary or Chairman of the board of directors of the Company (the “ Board ”) or other authorized officer of the Company, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest not previously released to the Company to pay its franchise and income taxes (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days, if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest not previously released to the Company to pay its franchise and income taxes (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses) shall be distributed to the Public Stockholders of record as of such date; provided , however , that in the event the Trustee receives a Termination Letter in a form substantially similar to Exhibit B hereto, or if the Trustee begins to liquidate the Property because it has received no such Termination Letter by October 31, 2019, provided that the Company may further extend such date up to three times, each by an additional 30 days, the Trustee shall keep the Trust Account open until twelve (12) months following the date the Property has been distributed to the Public Stockholders;

 

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2. Miscellaneous Provisions.

 

(a) Successors .  All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns.

 

(b) Severability .  This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

 

(c) Applicable Law .  This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.

 

(d) Counterparts . This Amendment may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.

 

(e) Effect of Headings .  The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.

 

(f) Entire Agreement .  The Original Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.

 

[Signature page follows]

 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first set forth above.

 

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY,

as Trustee

 

 

By: /s/ Francis E. Wolf, Jr.                     

Name: Francis E. Wolf, Jr.

Title: Vice President

 

 

GORDON POINTE ACQUISITION CORP.

 

 

By: /s/ James J. Dolan                                    

Name: James J. Dolan

Title: Chief Executive Officer

 

 

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