SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): January 24, 2020
GORDON POINTE ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
(State or other jurisdiction
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
(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
|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 No. 2 to Investment Management Trust Agreement
On January 24, 2020, Gordon Pointe Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (“Continental”) entered into Amendment No. 2 to the Investment Management Trust Agreement, dated as of January 24, 2018, as amended by Amendment No. 1 to the Investment Management Trust Agreement, dated as of July 26, 2019 (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 January 29, 2020 to February 29, 2020, provided that the Company may further extend such date for 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 January 24, 2020 (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 January 24, 2020, 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, as previously amended, pursuant to which the date by which the Company must consummate its initial business combination was extended from January 29, 2020 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 January 24, 2020, were as follows:
Proposal No. 1
The Extension Amendment was approved as follows:
Proposal No. 2
The Trust Amendment was approved as follows:
Item 7.01 Regulation FD Disclosure.
In connection with the Extension, stockholders elected to redeem 3,011,003 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 $31,975,073.36 (or approximately $10.61 per share) will be removed from the Company’s trust account to pay such stockholders. Following such redemptions, approximately 8,042,536 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 $0.033 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 February 29, 2020, plus, $0.033 for each public share that is not redeemed if the Company elects to further extend the deadline to complete a business combination beyond February 29, 2020 for an additional 30 days. 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 $265,403.69 (the “Contribution”) to the Company within two business days prior to the beginning of such 30-day period (or portion thereof), other than the first Contribution which is being made on January 24, 2020. 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 $10.67 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.
In connection with the proposed business combination between the Company and HOF Village, LLC (“HOFV”), the Company’s wholly-owned subsidiary GPAQ Acquisition Holdings, Inc. (“Holdings”) has filed with the SEC a registration statement on Form S-4 on November 12, 2019, as amended by Amendment No. 1 filed with the SEC on January 23, 2020, for the Holdings securities to be issued to the security holders of the Company and the members of HOF Village Newco, LLC at the closing of the business combination, which includes a preliminary proxy statement/prospectus and other documents concerning the proposed business combination and related matters (the “Registration Statement and Merger Proxy Statement”). Investors and security holders are advised to read the Registration Statement and the Merger Proxy Statement, and amendments thereto and the definitive proxy statements, when available, which will contain important information about the proposed extension and the proposed business combination and the parties to it. The Registration Statement and definitive Merger Proxy Statement will be mailed to stockholders of the Company as of a record date to be established for voting on the proposed business combination. Stockholders will also be able to obtain copies of the Registration Statement and Merger Proxy Statement, without charge, at the SEC’s website at www.sec.gov or by directing a request to: Gordon Pointe Acquisition Corp., 780 Fifth Avenue South, Naples, FL 34102.
Certain statements made herein are “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “anticipate”, “believe”, “expect”, “estimate”, “plan”, “outlook”, and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward-looking statements include timing of the proposed merger; the business plans, objectives, expectations and intentions of the parties once the transaction is complete, and Holding’s, the Company’s and HOFV’s estimated and future results of operations, business strategies, competitive position, industry environment and potential growth opportunities, relating to the acquired business. These forward-looking statements reflect the current analysis of existing information and are subject to various risks and uncertainties. As a result, caution must be exercised in relying on forward-looking statements. Due to known and unknown risks, our actual results may differ materially from our expectations or projections. The following factors, among others, could cause actual results to differ materially from those described in these forward-looking statements: the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement and the proposed transaction contemplated thereby; the inability to complete the transactions contemplated by the Merger Agreement due to the failure to obtain approval of the stockholders of the Company or other conditions to closing in the Merger Agreement; the outcome of any legal proceedings that have been, or will be, instituted against the Company or other parties to the Merger Agreement following announcement of the Merger Agreement and transactions contemplated therein; the ability of Holding’s to meet NASDAQ listing standards following the merger and in connection with the consummation thereof; the failure to obtain the financing arrangements necessary to complete the development of the project; the failure to achieve the assumptions underlying certain of the financial projections included within the investor presentation including, among others, securing the timely financing for, and achieving construction of, the second phase of the project within assumed time and financial budget, and achieving expected attendance and occupancy rates; risks that the proposed transaction disrupts current plans and operations and the potential difficulties in employee retention as a result of the announcement of the Merger Agreement and consummation of the transaction described therein; costs related to the proposed merger and the impact of the substantial indebtedness to be incurred to finance the consummation of the merger; changes in applicable laws or regulations; the ability of the combined company to meet its financial and strategic goals, due to, among other things, competition, the ability of the combined company to grow and manage growth profitability, maintain relationships with customers and retain its key employees; the possibility that the combined company may be adversely affected by other economic, business, and/or competitive factors; and other risks and uncertainties described herein, as well as those risks and uncertainties discussed from time to time in other reports and other public filings with the SEC by the Company and Holdings.
Participants in the Solicitation
The Company, Holdings, HOFV, Newco and their respective directors, executive officers and other members of their management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of the Company’s stockholders in connection with the proposed business combination. Investors and security holders may obtain more detailed information regarding the names, affiliations and interests in the Company’s directors in its Annual Report on Form 10-K for the fiscal year ended December 31, 2018, which was filed with the SEC on March 18, 2019, and also in the Registration Statement on Form S-4 filed with the SEC on November 12, 2019, as amended by Amendment No. 1 filed with the SEC on January 23, 2020, which includes the proxy statement/prospectus of the Company for the proposed transaction. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to the Company’s stockholders in connection with the proposed business combination, and information concerning the interests of the Company’s and Newco’s participants in the solicitation, which may, in some cases, be different than those of the Company’s and Newco’s equity holders generally, is set forth in the Registration Statement on Form S-4 filed with the SEC on November 12, 2019, as amended by Amendment No. 1 filed with the SEC on January 23, 2020.
This communication is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction and shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Item 9.01 Financial Statements and Exhibits.
|3.1||Amendment No. 2 to Amended and Restated Certificate of Incorporation of Gordon Pointe Acquisition Corp.|
|10.1||Amendment No. 2, dated as of January 24, 2020, to the Investment Management Trust Agreement, dated as of January 24, 2018, as amended, by and between Gordon Pointe Acquisition Corp. and Continental Stock Transfer & Trust Company|
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: January 24, 2020|
AMENDMENT NO. 2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
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, as amended by the Amendment to the Amended and Restated Certificate filed with the Secretary of State on July 26, 2019 (collectively, the “Amended and Restated Certificate”).|
|3.||This Amendment No. 2 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 February 29, 2020, provided that the Company may further extend such date for 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:|
(d) In the event that the Corporation has not consummated an initial Business Combination by February 29, 2020, provided that the Company may further extend such date for 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 February 29, 2020, provided that the Company may further extend such date for 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 24th day of January, 2020.
|GORDON POINTE ACQUISITION CORP.|
|By:||/s/ James J. Dolan|
|James J. Dolan, Chief Executive Officer|
AMENDMENT NO. 2 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT NO. 2 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made as of January 24, 2020, 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 (as amended, 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 January 29, 2020 to February 29, 2020 plus an option for the Company to further extend such date for 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 January 29, 2020 to February 29, 2020 plus an option for the Company to further extend such date for 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) February 29, 2020, provided that the Company may further extend such date for 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 February 29, 2020, provided that the Company may further extend such date for 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;
|(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,|
|By:||/s/ Francis E. Wolf, Jr.|
|Francis E. Wolf, Jr., Vice President|
|GORDON POINTE ACQUISITION CORP.|
|By:||/s/ James J. Dolan|
|James J. Dolan, Chief Executive Officer|