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): March 10, 2020

 

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.

 

On March 10, 2020, Gordon Pointe Acquisition Corp. (the “Company” or “GPAQ”) entered into Amendment No. 2 (the “Amendment No. 2”) to the previously disclosed Agreement and Plan of Merger, dated as of September 16, 2019, as amended on November 6, 2019 (collectively, the “Merger Agreement”), by and among GPAQ, GPAQ Acquisition Holdings, Inc., a Delaware corporation and a wholly-owned subsidiary of GPAQ (“Holdings”), GPAQ Acquiror Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Holdings (“Acquiror Merger Sub”), GPAQ Company Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Holdings, HOF Village, LLC, a Delaware limited liability company (“HOFV”) and HOF Village Newco, LLC, a Delaware limited liability company and a wholly-owned subsidiary of HOFV (“Newco”). As previously disclosed, under the Merger Agreement, (i) Acquiror Merger Sub will be merged with and into GPAQ, with GPAQ continuing as the surviving entity and a wholly-owned subsidiary of Holdings, and (ii) Company Merger Sub will be merged with and into Newco, with Newco continuing as the surviving entity and a wholly-owned subsidiary of Holdings. Unless otherwise defined herein, the capitalized terms used below are defined in the Amendment No. 2.

 

The Amendment No. 2, among other things, amends the terms of the Merger Agreement by providing that, upon completion of the proposed business combination, GPAQ stockholders who do not exercise their redemption rights will receive 1.421333 shares of Holdings Common Stock to replace each one of their existing shares of GPAQ Class A common stock. Current holders of Class F common stock will continue to receive one share of Holdings Common Stock to replace each one of their existing shares of GPAQ Class F common stock. The outstanding GPAQ warrants, by their terms, will be cancelled and exchanged for Holdings’ warrants to purchase 1.421333 shares of Holdings Common Stock per warrant. The foregoing amendments are intended to enhance the economic return to those GPAQ stockholders who do not exercise their redemption rights and who continue as stockholders of Holdings post-closing, which GPAQ’s management determined to be necessary and appropriate in response to recent market conditions.

 

The Amendment No. 2 also amends the “Termination Date” under the Merger Agreement from December 16, 2019 to May 14, 2020 and amends and restates the form of Director Nominating Agreement to be entered into at the Closing by GPAQ, Holdings, HOFV, the Sponsor and National Football Museum, Inc.

 

Further, in order to support the transactions contemplated by the Merger Agreement and any possible private financing transactions that may be entered into in connection with the Merger Agreement, GPAQ’s sponsor, Gordon Pointe Management, LLC (the “Sponsor”), has agreed that up to 1,185,741 of its Class F common shares will be cancelled prior to the Effective Time pursuant to a Side Letter entered into by HOFV and the Sponsor dated March 10, 2020 (the “Sponsor Side Letter”), which number shall be calculated based on the number of redemptions by GPAQ’s public stockholders. The Sponsor has also agreed that it will transfer up to one-half of the shares of Holdings Common Stock that it will receive upon conversion of its Class F common shares (after any such cancellation) to HOFV; provided that the number of shares of Holdings Common Stock that Sponsor shall transfer to HOFV shall be capped so that Sponsor retains no less than 1.125 million shares of Holdings Common Stock. Sponsor has also agreed to transfer one-half of the Holdings Warrants that it will receive upon conversion of its private placement warrants at the Effective Time to HOFV; provided however that HOFV shall, at the Sponsor’s request, transfer all of such Holdings Warrants to a Gold Jacket player fund or similar vehicle, for the benefit of Hall of Fame players.

 

The foregoing description of the Amendment No. 2, Sponsor Side Letter and Director Nominating Agreement are qualified in their entirety by reference to the text of the Amendment No. 2, the Sponsor Side Letter and Director Nominating Agreement, copies of which are attached as Exhibit 2.1, Exhibit 10.1 and 10.2 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.

 

Additional Information

 

The proposed transaction will be submitted to shareholders of the Company for their approval. In connection with the proposed business combination, the Company has filed with the SEC a proxy statement and GPAQ Acquisition Holdings, Inc., a wholly-owned subsidiary of the Company (“Holdings”), has filed a registration statement on Form S-4, which includes a definitive proxy statement/final prospectus, which registration statement was declared effective on February 14, 2020, which definitive proxy statement was mailed to stockholders of the Company on or about February 27, 2020. Before making any voting or investment decision, shareholders of the Company are urged to carefully read the definitive proxy statement/final prospectus and any other relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important information about the Company, Holdings, HOFV and the proposed business combination. Stockholders will also be able to obtain copies of the registration statement and proxy statement, without charge, once available, 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.

 

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Forward-Looking Statements

 

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, 2019, which was filed with the SEC on March 10, 2020, and also in the Registration Statement on Form S-4 filed with the SEC and declared effective on February 14, 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 and declared effective on February 14, 2020.

 

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Non-Solicitation

 

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.

 

(d) Exhibits

 

Exhibit
Number
  Description
     
2.1   Amendment No. 2 to Agreement and Plan of Merger dated March 10, 2020, by and among Gordon Pointe Acquisition Corp., GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC and HOF Village Newco, LLC
     
10.1   Side Letter dated March 10, 2020 between Gordon Pointe Management, LLC and HOF Village, LLC
     
10.2   Form of Director Nominating Agreement

 

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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: March 16, 2020    

 

 

4

 

 

Exhibit 2.1

 

Amendment No. 2 to Agreement and Plan of Merger

 

This Amendment No. 2 to Agreement and Plan of Merger (this “Amendment”) is made and entered into as of March 10, 2020 (the “Second Amendment Date”) by and among (i) Gordon Pointe Acquisition Corp, a Delaware corporation (“Acquiror”), (ii) GPAQ Acquisition Holdings, Inc., a Delaware corporation (“Holdings”), (iii) GPAQ Acquiror Merger Sub, Inc., a Delaware corporation (“Acquiror Merger Sub”), (iv) GPAQ Company Merger Sub, LLC, a Delaware limited liability company (“Company Merger Sub”; Company Merger Sub and Acquiror Merger Sub are together referred to herein as the “Merger Subs”; the Merger Subs, Acquiror and Holdings are collectively referred to herein as the “Acquiror Parties”), (v) HOF Village, LLC, a Delaware limited liability company (the “Company”), and (vi) HOF Village Newco, LLC, a Delaware limited liability company (“Newco”). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Agreement (as defined below).

 

RECITALS

 

WHEREAS, the Acquiror Parties, the Company and Newco entered into that certain Agreement and Plan of Merger, dated as of September 16, 2019, as amended by Amendment No. 1 to Agreement and Plan of Merger, dated as of November 6, 2019 (the “Agreement”); and

 

WHEREAS, the parties desire to amend the Agreement in accordance with Section 11.10 of the Agreement, on the terms and subject to the conditions contained herein.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, and for 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 in accordance with Section 11.10 of the Agreement:

 

Article 1

 

1.1 Amendment to Section 1.01.

 

(a) Section 1.01 of the Agreement is hereby amended by replacing the definitions of “Available Closing Date Cash”, “Company Operating Agreement”, “Form S-4” and “Holdings Warrant” with the following:

 

Available Closing Date Cash” means, as of immediately prior to the Closing, an aggregate amount equal to the result of (without duplication) (i) the cash available to be released from the Trust Account, plus (ii) the net proceeds raised by Acquiror in any PIPE Transaction or Pre-Closing Debt Transaction, minus (iii) the sum of all payments to be made as a result of the completion of the Offer and any redemptions of Acquiror Common Stock by any Redeeming Acquiror Stockholders.

 

Company Operating Agreement” means that certain First Amended and Restated Operating Agreement of HOF Village, LLC, dated as of December 11, 2018, by and among the Company and the Company Members listed therein, as amended by (a) the First Amendment to First Amended and Restated Operating Agreement of HOF Village, LLC, dated as of December 11, 2018, (b) the Second Amendment to First Amended and Restated Operating Agreement of HOF Village, LLC, dated as of July 31, 2019, and (c) the Third Amendment to First Amended and Restated Operating Agreement of HOF Village, LLC, dated as of September 15, 2019.

 

 

 

 

Form S-4” means the registration statement on Form S-4 of Holdings, as amended, with respect to registration of the shares of Holdings Common Stock and Holdings Warrants to be issued in connection with the Mergers.

 

Holdings Warrant” means a warrant entitling the holder to purchase 1.421333 shares of Holdings Common Stock per warrant.

 

(b) Section 1.01 of the Agreement is hereby amended by adding the following definition of “Pre-Closing Debt Transaction”:

 

Pre-Closing Debt Transaction” means any issuance, or transaction calling for the issuance, of (a) debt of the Company or Acquiror or (b) securities convertible into or exchangeable or exercisable for Company Membership Interests, Acquiror Common Stock, Holdings Common Stock or other equity interests of the Company, Acquiror or Holdings, effected during the period from the date hereof to the Closing Date, as approved by the Company and Acquiror.

 

1.2 Amendment to Section 2.09(b). Section 2.09(b) of the Agreement is hereby amended and replaced with the following:

 

“(b) Acquiror Common Stock and Acquiror Class F Common Stock. Each issued and outstanding share of Acquiror Common Stock (including those described in Section 2.09(a) and excluding shares held by Redeeming Acquiror Stockholders) shall be converted automatically into and thereafter represent the right to receive 1.421333 shares of Holdings Common Stock, following which all shares of Acquiror Common Stock shall cease to be outstanding and shall automatically be canceled and shall cease to exist. The holders of certificates previously evidencing shares of Acquiror Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares, except as provided herein or by Law. Upon the surrender of such certificate in accordance with Section 2.11, each certificate previously evidencing shares of Acquiror Common Stock (including those described in Section 2.09(a) and excluding shares held by Redeeming Acquiror Stockholders) shall be exchanged for a certificate representing the number of shares of Holdings Common Stock equal to (i) the number of shares of Acquiror Common Stock evidenced by such certificate, multiplied by (ii) 1.421333. Each certificate formerly representing shares of Acquiror Common Stock owned by Redeeming Acquiror Stockholders shall thereafter represent only the right to receive the relevant amount for their shares of Acquiror Common Stock in accordance with the applicable provisions of Law and the governing documents of Acquiror.

 

Each issued and outstanding share of Acquiror Class F Common Stock (other than shares held by Redeeming Acquiror Stockholders) shall be converted automatically into and thereafter represent the right to receive one share of Holdings Common Stock, following which all shares of Acquiror Class F Common Stock shall cease to be outstanding and shall automatically be canceled and shall cease to exist. The holders of certificates previously evidencing shares of Acquiror Class F Common Stock outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares, except as provided herein or by Law. Upon the surrender of such certificate in accordance with Section 2.11, each certificate previously evidencing shares of Acquiror Class F Common Stock (other than shares held by Redeeming Acquiror Stockholders) shall be exchanged for a certificate representing the same number of shares of Holdings Common Stock. Each certificate formerly representing shares of Acquiror Class F Common Stock owned by Redeeming Acquiror Stockholders shall thereafter represent only the right to receive the relevant amount for their shares of Acquiror Class F Common Stock in accordance with the applicable provisions of Law and the governing documents of Acquiror.”

 

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1.3 Amendment to Section 2.18. Section 2.18 is hereby amended by inserting the following sentence at the end of such Section 2.18: “Notwithstanding the foregoing, prior to the Closing Date, a New Company Convertible Noteholder may elect to exchange (prior to or at the Closing Date) its New Company Convertible Note into securities having a like stated value or face amount offered in a PIPE Transaction or Pre-Closing Debt Transaction, in which case such exchanged New Company Convertible Note will not be converted in the Merger.”

 

1.4 Addition of New Section 2.23. Article II of the Agreement is hereby amended by adding the following new Section 2.23:

 

“2.23 Cancellation of Certain Shares of Acquiror Class F Common Stock. Prior to the Effective Time, Acquiror shall cause up to 1,185,741 shares of Acquiror Class F Common Stock to be cancelled as set forth in the side letter agreement between the Company and the Sponsor dated as of the Second Amendment Date.”

 

1.5 Amendment to Section 5.13. Section 5.13 of the Agreement is hereby amended by adding the words “and any cancellation of shares of Acquiror Class F Common Stock” after the words “Subject to any redemptions by Redeeming Acquiror Stockholders”.

 

1.6 Amendment to Section 6.01(b). Section 6.01(b) of the Agreement is hereby amended by adding the words “or a Pre-Closing Debt Transaction” after the words “New Company Convertible Notes” in clause (iii) of such Section 6.01(b).

 

1.7 Amendment to Section 6.09. Section 6.09 of the Agreement is hereby amended by replacing the first sentence with the following: “The Company acknowledges that Acquiror (with the assistance of the Sponsor) may elect to raise capital through a PIPE Transaction, a ‘Qualified Opportunity Zone’ investment opportunity or a Pre-Closing Debt Transaction.”

 

1.8 Amendment to Section 7.03(a). Section 7.03(a)(vii) of the Agreement is hereby amended by adding the words “in connection with a Pre-Closing Debt Transaction or” after the word “except”. Section 7.03(a)(viii) of the Agreement is amended by adding the words “except in connection with a PIPE Transaction” at the start of the Section.

 

1.9 Amendment to Definition of Termination Date. The definition of “Termination Date” (as defined in Section 10.01(b) of the Agreement) is hereby amended to mean May 14, 2020.

 

1.10 Amendment to Exhibit A. Exhibit A to the Agreement, the Form of Director Nominating Agreement, is hereby amended and replaced in its entirety with the Exhibit A attached hereto.

 

Article 2

 

2.1 Governing Law. This Amendment, and all claims or causes of action based upon, arising out of, or related to this Amendment or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction.

 

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2.2 Original Agreement. For all purposes of the Agreement, each reference in the Agreement to “this Agreement” or “the Agreement” shall mean the Agreement as amended by this Amendment, and as hereafter amended or restated. Except as herein expressly amended, this Amendment shall not alter, modify or amend any of the provisions of the Agreement and the Agreement is ratified and confirmed in all respects and shall remain in full force and effect in accordance with its terms.

 

2.3 Counterparts. This Amendment may be executed in any number of counterparts, each of which shall be an original as regards any party whose signature appears thereon and all of which together shall constitute one and the same instrument. This Amendment shall become binding when one or more counterparts hereof, individually or taken together, shall bear the signatures of all parties reflected hereon as signatories.

 

2.4 Entire Agreement. The Agreement, as amended by this Amendment (together with the Schedules and Exhibits to the Agreement), constitute the entire agreement among the Parties relating to the transactions contemplated hereby and thereby and supersede any other agreements, whether written or oral, that may have been made or entered into by or among any of the Parties hereto or thereto or any of their respective Affiliates relating to the transactions contemplated hereby and thereby. No representations, warranties, covenants, understandings, agreements, oral or otherwise, relating to the transactions contemplated by the Agreement, as amended by this Amendment, exist between the Parties except as expressly set forth or referenced in the Agreement, as amended by this Amendment, or any related ancillary documents.

 

2.5 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION BASED UPON, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

 

[Signature Page Next]

 

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IN WITNESS WHEREOF the Parties have hereunto caused this Amendment to be duly executed as of the date hereof.

 

  GORDON POINTE ACQUISITION CORP
     
  By: /s/ James J. Dolan
  Name:    James J. Dolan
  Title: Chairman & CEO
     
  GPAQ Acquisition Holdings, Inc.
     
  By: /s/ James J. Dolan
  Name: James J. Dolan
  Title: Chairman & CEO
     
  GPAQ Acquiror Merger Sub, Inc.
     
  By: /s/ Douglas L. Hein
  Name: Douglas L. Hein
  Title: Chief Financial Officer
     
  GPAQ Company Merger Sub, LLC
     
  By: /s/ Douglas L. Hein
  Name: Douglas L. Hein
  Title: Chief Financial Officer

 

[Signature Page to Amendment No. 2 to Agreement and Plan of Merger]

 

 

 

 

  HOF VILLAGE, LLC
       
  By: /s/ Michael Crawford
  Name:   Michael Crawford
  Title: Chief Executive Officer
       
  HOF VILLAGE NEWCO, LLC
       
  By: HOF Village, LLC, its Sole Member
       
    By: /s/ Michael Crawford
    Name:   Michael Crawford
    Title: Chief Executive Officer

 

[Signature Page to Amendment No. 2 to Agreement and Plan of Merger]

 

 

 

 

EXHIBIT A

 

Form of Director Nominating Agreement

 

See attached.

 

 

 

 

Exhibit 10.1

 

Gordon Pointe Management, LLC

780 5th Ave S.

Naples, FL 34102

 

March 10, 2020

 

HOF Village, LLC

1826 Clearview Ave NW

Canton, OH 44708

 

Ladies and Gentlemen:

 

This amended and restated letter agreement (this “Agreement”) is provided to you in connection with the transactions contemplated by that certain Agreement and Plan of Merger, dated as of September 16, 2019, as amended (the “Merger Agreement”), by and among Gordon Pointe Acquisition Corp (“Acquiror”), GPAQ Acquisition Holdings, Inc. (“Holdings”), GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, LLC (“HOFV”), and HOF Village Newco, LLC. This Agreement hereby amends and restates the terms of that certain letter agreement dated September 16, 2019, between Gordon Pointe Management, LLC (the “Sponsor”) and HOFV (the “Original Agreement”) and supersedes the Original Agreement in its entirety. All capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.

 

In consideration of the consummation of the Transactions, the Sponsor hereby agrees that, prior to the Closing, Acquiror shall cancel a number of shares of Acquiror Class F Common Stock held by the Sponsor (the “Acquiror Class F Common Stock Cancellation”) and that, promptly following the Closing, the Sponsor shall transfer and convey to HOFV a certain number of shares of Holdings Common Stock and certain Holdings Warrants (the “Sponsor Share and Warrant Transfer”), as set forth within the terms of this Agreement.

 

For the purposes of this Agreement, the Sponsor represents and warrants that, before giving effect to the Acquiror Class F Common Stock Cancellation, the Sponsor currently holds (a) 2,725,000 shares of Acquiror Class F Common Stock and (b) 4,865,000 Acquiror Warrants, all of which shall be covered by the terms of this Agreement.

 

Acquiror Class F Common Stock Cancellation. The parties acknowledge and agree that, prior to the Closing, Acquiror shall cancel a number of shares of Acquiror Class F Common Stock held by the Sponsor (the “Acquiror Class F Common Stock Cancellation”) that is equal to the lesser of (i) 1,185,741 or (ii) the difference between (x) the total number of shares of Holdings Common Stock to be issued at the Closing to holders of Acquiror Common Stock in exchange for shares of Acquiror Common Stock and (y) the total number of shares of Acquiror Common Stock being exchanged.

 

 

HOF Village, LLC.
March 10, 2020
Page 2

 

Sponsor Share and Warrant Transfer. In consideration of the consummation of the Transactions, the Sponsor hereby agrees, promptly following the Closing, to transfer and convey to HOFV:

 

(a) a number of shares of Holdings Common Stock equal to: (i) if the total number of shares of Acquiror Class F Common Stock cancelled in the Acquiror Class F Common Stock Cancellation is 475,000 or less, 50% of the of Holdings Common Stock that is issued in exchange for Acquiror Class F Common Stock; and (ii) if the total number of shares of Acquiror Class F Common Stock cancelled in the Acquiror Class F Common Stock Cancellation is greater than 475,000 shares (up to the 1,185,741 cancellation cap), all shares of Holdings Common Stock that are issued in exchange for Acquiror Class F Common Stock minus 1,125,000 shares of Holdings Common Stock that will be retained by GPAQ Sponsor, and

 

(b) 50% of the Holdings Warrants into which the Acquiror Warrants currently held by the Sponsor have been converted as a result of the Transactions (the “Acquiror Founders’ Warrants”). The Acquiror Founders’ Shares and Acquiror Founders’ Warrants that are transferred to HOFV pursuant to this paragraph are collectively referred to herein as the “Acquired Securities”.

 

The number of Acquiror Founders’ Shares to be transferred and conveyed to HOFV shall be calculated after giving effect to such Acquiror Class F Common Stock Cancellation. For the avoidance of doubt, in no event shall the number of shares of Holdings Common Stock held by Sponsor after giving effect to the Acquiror Class F Common Stock Cancellation and the transfer of shares to HOFV hereunder be less than 1,125,000.

 

For illustration purposes only, the following table shows the cancellation of Acquiror Class F Common Stock and the transfer of Acquiror Class F Common Stock to HOFV given different scenarios of Holdings Common Stock issued at the Closing to holders of Acquiror Common Stock in exchange for shares of Acquiror Common Stock.

 

Acquiror Common Stock     Conversion Ratio     Holdings Common Stock to be Issued     Difference*     Total Class F Shares     Class F Shares to be Canceled     Class F Shares Cancellation     Class F Shares HOFV     Class F Shares Sponsor     Notes
                                                       
  1,000,000       1.421333 x     1,421,333       421,333       2,725,000       421,333       2,303,667       1,151,834       1,151,834     See (ii)
  2,000,000       1.421333 x     2,842,667       842,667       2,725,000       842,667       1,882,333       757,333       1,125,000     See (ii)
  2,800,000       1.421333 x     3,979,733       1,179,733       2,725,000       1,179,733       1,545,267       420,267       1,125,000     See (ii)
  2,814,259       1.421333 x     4,000,000       1,185,741       2,725,000       1,185,741       1,539,259       414,259       1,125,000     See (i)
  3,000,000       1.421333 x     4,264,000       1,264,000       2,725,000       1,185,741       1,539,259       414,259       1,125,000     See (i)
  4,000,000       1.421333 x     5,685,333       1,685,333       2,725,000       1,185,741       1,539,259       414,259       1,125,000     See (i)

 

* Difference between Holdings Common Stock and Acquiror Common Stock

 

As a condition to the transactions contemplated hereby and if requested by the Sponsor, HOFV agrees to execute, with respect to the Acquired Securities, any lockup agreements or other documents and instruments containing the same transfer and trading restrictions as those to which the Sponsor is subject.

 

 

HOF Village, LLC.
March 10, 2020
Page 3

 

HOFV shall transfer all of the Holdings Warrants acquired by HOFV hereunder to a Gold Jacket player fund or similar vehicle, for the benefit of Hall of Fame players; provided that, as a condition to such transfer, such Gold Jacket player fund or similar vehicle must execute, with respect to such Holdings Warrants, any lockup agreements or other documents and instruments containing the same transfer and trading restrictions as those to which the Sponsor is subject.

 

HOFV acknowledges and agrees that the transactions contemplated by this Agreement may be disclosed in public filings with the Securities and Exchange Commission if, in the opinion of counsel to Acquiror, such disclosure is necessary or advisable.

 

If the Merger Agreement is terminated in accordance with its terms, then this Agreement shall expire and be of no further force or effect.

 

This Agreement is directed only to the recipient and may not be assigned. Nothing expressed or implied in this Agreement is intended or shall be construed to confer upon or give any person, other than HOFV, the Sponsor and Acquiror, any right or remedies under or by reason of this Agreement. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to the conflicts of law principles thereof. Any dispute arising from or related to this Agreement shall be adjudicated in the Delaware Chancery Court. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. A facsimile copy of this Agreement, or a pdf attached to an e-mail, showing a representation of the signature of any party, shall be deemed to be an original counterpart.

 

[Remainder of page intentionally left blank]

 

 

 

 

Please sign below to confirm agreement to the provisions set forth in this Agreement.

 

  Gordon Pointe Management, LLC
     
  By: /s/ James Dolan
    James Dolan, Chief Executive Officer
     
  HOF Village, LLC
     
  By: /s/ Michael Crawford
    Michael Crawford, Chief Executive Officer

 

[Signature Page to Amended and Restated Sponsor Shares and Warrants Letter Agreement]

 

 

Exhibit 10.2

 

DIRECTOR NOMINATING AGREEMENT

 

THIS DIRECTOR NOMINATING AGREEMENT (this “Agreement”) is made as of _____________, 2020, by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (“Holdings”), Gordon Pointe Management, LLC (together with its permitted successors and assigns hereunder, the “Sponsor”), HOF Village, LLC, a Delaware limited liability company (together with its permitted successors and assigns hereunder, “HOFV”), and the National Football Museum, Inc., an Ohio non-profit corporation (together with its permitted assigns and successors hereunder, “PFHOF” and together with the Sponsor and HOFV, the “Designated Shareholders”). Holdings, the Sponsor, HOFV and PFHOF are each a “Party” and are collectively the “Parties.” Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Merger Agreement (as defined below).

 

WHEREAS, the Sponsor, HOFV and PFHOF are acquiring shares of Holdings’ common stock, par value $0.0001 per share (such stock, the “Holdings Common Stock”) pursuant to that certain Agreement and Plan of Merger, dated as of September 16, 2019 (the “Merger Agreement”), by and among (i) Gordon Pointe Acquisition Corp, a Delaware corporation, (ii) Holdings, (iii) GPAQ Acquiror Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Holdings, (iv) GPAQ Company Merger Sub, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Holdings, (v) HOFV, and (vi) HOF Village Newco, LLC, a Delaware limited liability company and a wholly-owned subsidiary of HOFV; and

 

WHEREAS, the obligations of the parties to consummate the Closing under the Merger Agreement are conditioned upon the execution and delivery of this Agreement; and

 

WHEREAS, upon the Closing, Holdings’ Amended and Restated Certificate of Incorporation will provide that the authorized number of members of Holdings’ Board of Directors (the “Board”; each member of the Board, until his/her death, disability, disqualification, resignation or removal, is referred to herein as a “Director”, and they are collectively referred to herein as “Directors”) shall be fixed at no more than eleven (11) members, which number shall be increased to thirteen (13) members no sooner than 60 days and no later than 90 days after the Closing, pursuant to a resolution of the Board;

 

WHEREAS, upon the Closing, Holdings’ Amended and Restated Bylaws (together, with Holdings’ Amended and Restated Certificate of Incorporation, the “Holdings Organizational Documents”) will provide for (i) the Board to be made up of three classes of Directors: Class A Directors who shall serve for an initial one-year term, Class B Directors who shall serve for an initial two-year term, and Class C Directors who shall serve for an initial three-year term; (ii) all terms after the Directors’ initial terms to be for three years; (iii) the Board to have an Executive Committee of three members, of which James Dolan shall be a member while he serves on the Board; and (iv) the initial Chief Executive Officer of Holdings to be Michael Crawford;

 

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WHEREAS, Holdings has agreed (i) to permit the Sponsor, who at the Effective Time will Beneficially Own (as defined under Section 13D of the Securities Act) at least [___] issued and outstanding shares of Holdings Common Stock (the shares of Holdings Common Stock that are Beneficially Owned by the Sponsor at the Effective Time are referred to herein as the “Initial Sponsor Shares”), to designate up to one (1) individual to be appointed or nominated (as the case may be) for election to the Board, (ii) to permit HOFV, who at the Effective Time will Beneficially Own at least [____] issued and outstanding shares of Holdings Common Stock (the shares of Holdings Common Stock that are Beneficially Owned by HOFV at the Effective Time are referred to herein as the “Initial HOFV Shares”), to designate up to four (4) individuals to be appointed or nominated (as the case may be) for election to the Board, (iii) to permit PFHOF, who at the Effective Time will Beneficially Own at least [___] issued and outstanding shares of Holdings Common Stock (the shares of Holdings Common Stock that are Beneficially Owned by PFHOF at the Effective Time are referred to herein as the “Initial PFHOF Shares”), to designate up to one (1) individual to be appointed or nominated (as the case may be) for election to the Board, and (iv) to provide certain ongoing rights with respect to the nomination of Directors on the terms and conditions set forth herein; and

 

WHEREAS, each of the Sponsor, HOFV and PFHOF believes that it is in its best interests to provide for the future voting of its shares of Holdings Common Stock with respect to the election of Directors as set forth below.

 

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth in this Agreement, the Parties agree as follows:

 

1. Board Matters.

 

1.1 Subject to the terms and conditions of this Agreement, from and after the Effective Time:

 

(a) The Sponsor shall have the right to designate up to one (1) individual to be appointed or nominated (as the case may be) for election to the Board (such individual, including any successor, the “Sponsor Nominee”);

 

(b) HOFV shall have the right to designate up to four (4) individuals to be appointed or nominated (as the case may be) for election to the Board (each such individual, including any successor, a “HOFV Nominee”);

 

(c) PFHOF shall have the right to designate up to one (1) individual to be appointed or nominated (as the case may be) for election to the Board (such individual, including any successor, the “PFHOF Nominee”; the Sponsor Nominee, the HOFV Nominees and the PFHOF Nominee are collectively referred to herein as the “Nominees”);

 

(d) Unless otherwise agreed to by the Parties, (i) one of the HOFV Nominees must be Michael Klein, and (ii) at least one of the HOFV Nominees must be an Independent Director (as defined in Section 1.14) (such Independent Director nominee designated by HOFV, the “Designated Independent Director”); and

 

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(e) No later than ten (10) days after the Sponsor, HOFV and PFHOF receive notice of a meeting of Holdings’ stockholders at which Directors are to be elected, the Sponsor, HOFV and PFHOF shall send written notice to Holdings, specifically identifying the Sponsor Nominee, the HOFV Nominees or the PFHOF Nominee (as the case may be); provided, however, that (i) the initial Sponsor Nominee, the initial HOFV Nominees, and the initial PFHOF Nominee shall be the individuals named as such in Section 1.3, and (ii) if any Nominee is not one of the initial Nominees named as such in Section 1.3, then such Nominee must be reasonably acceptable to a majority of those Directors who are neither Sponsor Directors (as defined in Section 1.14) nor HOFV Directors (as defined in Section 1.14) nor PFHOF Directors (as defined in Section 1.14).

 

1.2 Subject to Section 1.5, HOFV may, at any time in its sole discretion, designate up to one (1) individual to serve as a Board observer (the “HOFV Board Observer”), and PFHOF may, at any time in its sole discretion, designate up to one (1) individual to serve as a Board observer (the “PFHOF Board Observer”, and together with the HOFV Board Observer, the “Board Observers”). The Board Observers shall have the right to attend and participate in all meetings of the Board (or any committees of the Board), in a non-voting capacity. If HOFV or PFHOF wishes to designate an HOFV Board Observer or a PHFOF Observer, as applicable, then HOFV or PFHOF shall give Holdings written notice of such fact (an “Observer Election”). Holdings shall give to the Board Observers copies of all notices, consents, minutes and other materials (financial or otherwise), which Holdings provides to the Directors, simultaneously with the giving of such notices, consents, minutes and other materials to the Directors; provided, however, that if an HOFV Board Observer or PFHOF Board Observer does not, upon the request of Holdings, before attending any meetings of the Board (or any committee of the Board), execute and deliver to Holdings (a) an agreement to abide by all of Holdings’ policies applicable to Directors, and (b) a confidentiality agreement reasonably acceptable to Holdings, then such HOFV Board Observer or PFHOF Board Observer may be excluded from access to any materials, meetings, or portions thereof if the Board (by vote or written consent of a majority of Directors, excluding the vote or written consent of any Directors that have been appointed or nominated by the same Party that designated the Board Observer in question) determines in good faith that such exclusion is reasonably necessary to protect highly confidential proprietary information of Holdings or confidential proprietary information of third parties that Holdings is required to hold in confidence, or for other similar reasons. HOFV or PFHOF may revoke any Observer Election at any time upon written notice to Holdings, and after any such revocation HOFV or PHFOF shall have the right to designate a replacement HOFV Board Observer or PFHOF Board Observer, as applicable. The initial HOFV Board Observer shall be Richard Klein. The initial PHFOF Board Observer shall be Randall C. Hunt.

 

1.3 Holdings shall take all necessary and desirable actions within its control such that, as of the Effective Time: (a) the size of the Board shall be fixed at no more than eleven (11) members; and (b) the following individuals shall be Directors:

 

(a) Michael Klein, Edward J. Roth III, and one (1) Independent Director (Mary Owen), shall be Class A Directors;

 

(b) Stuart Lichter, and three (3) Independent Directors (Karl Holz, Curtis Martin, and David Dennis), shall be Class B Directors;

 

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(c) James Dolan, Michael Crawford, and two (2) Independent Directors (Kimberly Schaefer and Anthony Buzzelli), shall be Class C Directors.

 

(d) The initial HOFV Directors shall be Michael Klein, Stuart Lichter, Michael Crawford, and [name of Designated Independent Director]. The initial Sponsor Director shall be James Dolan. The initial PFHOF Director shall be Edward J. Roth III.

 

1.4 Holdings shall take all necessary and desirable actions within its control such that pursuant to a resolution of the Board, no sooner than 60 days and no later than 90 days after the Effective Time, the size of the Board shall be increased to thirteen (13) members. The two additional Directors shall be one (1) individual designated by Johnson Controls, Inc. and one (1) Independent Director.

 

1.5 Subject to the terms and conditions of this Agreement, from and after the Effective Time, Holdings shall, as promptly as practicable, take all necessary and desirable actions within its control (including, without limitation, calling special meetings of the Board and Holdings’ stockholders and recommending, supporting and soliciting proxies), so that:

 

(a) For so long as the Sponsor Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than eighty-five percent (85%) of the total number of Initial Sponsor Shares, the Sponsor shall have the right to nominate one (1) Nominee, unless the Sponsor Director is not up for election.

 

(b) For so long as HOFV Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than eighty-five percent (85%) of the total number of Initial HOFV Shares, HOFV shall have (i) the right to nominate a number of Nominees equal to (A) four (4), minus (B) the number of HOFV Directors who are not up for election, and (ii) the right to designate one (1) HOFV Board Observer (and, if the then-current Designated Independent Director is up for election, then at least one of the HOFV Nominees must be an Independent Director).

 

(c) For so long as HOFV Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than sixty-five percent (65%) of the total number of Initial HOFV Shares, HOFV shall have (i) the right to nominate a number of Nominees equal to (A) three (3), minus (B) the number of HOFV Directors who are not up for election, and (ii) the right to designate one (1) HOFV Board Observer (and, if the then-current Designated Independent Director is up for election, then at least one of the HOFV Nominees must be an Independent Director).

 

(d) For so long as HOFV Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than forty-five percent (45%) of the total number of Initial HOFV Shares, HOFV shall have (i) the right to nominate a number of Nominees equal to (A) two (2), minus (B) the number of HOFV Directors who are not up for election, and (ii) the right to designate one (1) HOFV Board Observer.

 

(e) For so long as HOFV Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than fifteen percent (15%) of the total number of Initial HOFV Shares, HOFV shall have (i) the right to nominate one (1) Nominee, unless no HOFV Director is up for election, and (ii) the right to designate one (1) HOFV Board Observer.

 

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(f) For so long as PFHOF Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock equal to or greater than eighty-five percent (85%) of the total number of Initial PFHOF Shares, PFHOF shall have (i) the right to nominate one (1) Nominee, unless no PFHOF Director is up for election, and (ii) the right to designate one (1) PFHOF Board Observer.

 

1.6 Holdings shall take all actions necessary to ensure that: (a) each Sponsor Nominee, HOFV Nominee and PFHOF Nominee that is up for election is included in the Board’s recommended slate of nominees delivered to Holdings’ stockholders for each election of Directors; and (b) each Sponsor Nominee, HOFV Nominee, and PFHOF Nominee that is up for election is included in the proxy statement prepared by Holdings’ management in connection with soliciting proxies for every meeting of Holdings’ stockholders at which Directors are to be elected, and at every adjournment or postponement thereof, and on every action or approval by written resolution of Holdings’ stockholders or the Board with respect to the election of Directors.

 

1.7 If a vacancy in a Board position held by a Sponsor Director, an HOFV Director or a PFHOF Director occurs because of death, disability, disqualification, resignation, removal, or any other reason, then (a) the Sponsor, HOFV or PFHOF (as applicable) shall be entitled to designate such individual’s successor, and (b) Holdings shall, within ten (10) days after such designation, take all necessary and desirable actions within its control to ensure that such vacancy shall be filled with such successor Nominee (it being understood that any such successor designee shall serve the remainder of the term of the director whom such designee replaced); provided that any successor Nominee must be reasonably acceptable to a majority of those Directors who are neither Sponsor Directors nor HOFV Directors nor PFHOF Directors.

 

1.8 If a Sponsor Nominee, an HOFV Nominee or a PFHOF Nominee is not elected because of such Nominee’s death, disability, disqualification, withdrawal as a nominee, or any other reason, then (a) the Sponsor, HOFV or PFHOF, as applicable, shall be entitled to designate promptly another Nominee, and (b) Holdings shall take all necessary and desirable actions within its control to ensure that the Board position for which such Nominee was nominated shall not be filled pending such designation; provided that any successor Nominee must be reasonably acceptable to a majority of those Directors who are neither Sponsor Directors nor HOFV Directors nor PFHOF Directors.

 

1.9 Neither the Sponsor nor HOFV nor PFHOF shall be obligated to designate all (or any) of the Directors or Nominees that each of them is entitled to designate pursuant to this Agreement, and no failure by either the Sponsor, HOFV or PFHOF to designate any Director or Nominee shall constitute a waiver of such Party’s rights hereunder.

 

1.10 Holdings shall pay the reasonable, documented out-of-pocket expenses incurred by each Sponsor Director, HOFV Director, HOFV Board Observer, PFHOF Director and PFHOF Board Observer in connection with his or her services provided to or on behalf of Holdings, including attending meetings (including committee meetings) or events on behalf of Holdings or at Holdings’ request.

 

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1.11 Holdings shall (a) purchase directors’ and officers’ liability insurance in an amount determined by the Board to be reasonable and customary and (b) for so long as any Director to the Board nominated pursuant to the terms of this Agreement serves as a Director of Holdings, maintain such coverage with respect to such Directors; provided that upon removal or resignation of such Director for any reason, Holdings shall take all actions reasonably necessary to extend such directors’ and officers’ liability insurance coverage for a period of not less than six (6) years from any such event in respect of any act or omission occurring at or prior to such event.

 

1.12 For so long as any Sponsor Director, HOFV Director or PFHOF Director serves as a Director of Holdings, Holdings shall not allow any amendment, alteration or repeal of any right to indemnification or exculpation covering or benefiting any Director nominated pursuant to this Agreement (whether such right is contained in the Holdings Organizational Documents or another document), except (a) to the extent such amendment or alteration permits Holdings to provide indemnification or exculpation rights, on a retroactive basis, broader than those rights permitted prior thereto or (b) to the extent that such amendment or alteration is required by applicable law.

 

1.13 Each of the Sponsor, HOFV and PFHOF shall take all necessary and desirable actions within such Party’s control (including voting or causing to be voted, whether at a meeting of stockholders or by written consent or otherwise, all shares of Holdings voting securities now or hereafter directly or indirectly owned by such Party) (a) to cause the applicable Sponsor Nominees, HOFV Nominees and PFHOF Nominees to be appointed (and where applicable, elected) as Directors, and (b) against the removal from office of any Sponsor Director, HOFV Director or PFHOF Director, unless such removal is directed or approved by the Sponsor (if such Director is a Sponsor Director), or by HOFV (if such Director is an HOFV Director), or by PFHOF (if such Director is a PFHOF Director).

 

1.14 For purposes of this Agreement:

 

(a) “HOFV Director” means any individual who is elected as a Director after being designated by HOFV, pursuant to Section 1.1, to be appointed or nominated (as the case may be) for election to the Board.

 

(b) “Independent Director” means an individual who meets the independence standards that are established from time to time by Nasdaq or the SEC and that are applicable to Holdings.

 

(c) “PFHOF Director” means any individual who is elected as a Director after being designated by PFHOF, pursuant to Section 1.1, to be appointed or nominated (as the case may be) for election to the Board.

 

(d) “Sponsor Director” means any individual who is elected as a Director after being designated by the Sponsor, pursuant to Section 1.1, to be appointed or nominated (as the case may be) for election to the Board.

 

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2. Successors in Interest of the Parties. This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective permitted successors, legal representatives and assignees for the uses and purposes set forth and referred to herein. Notwithstanding the foregoing, neither Holdings, nor the Sponsor, nor HOFV, nor PFHOF may assign any of its rights or obligations hereunder without the prior written consent of the other Parties.

 

3. Remedies. The Parties shall be entitled to enforce their rights under this Agreement specifically, to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights existing in their favor. The Parties hereto agree and acknowledge that a breach of this Agreement would cause irreparable harm, that money damages would not be an adequate remedy for any such breach, and that, in addition to other rights and remedies hereunder, the Parties shall be entitled to specific performance and/or injunctive or other equitable relief  (without posting a bond or other security) from any court of law or equity of competent jurisdiction in order to enforce or prevent any violation of the provisions of this Agreement.

 

4. Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service) or (iv) when e-mailed during normal business hours (and otherwise as of the immediately following business day), addressed as follows:

 

4.1 If to Holdings:

 

Gordon Pointe Acquisition Corp

90 Beta Drive

Pittsburgh, PA 15238

Attn: Douglas L. Hein, CFO

 

Email: dhein@gordonpointe.com

 

with copies to (which shall not constitute notice):

 

Fox Rothschild LLP
2000 Market St., 20th Floor
Philadelphia PA 19103
Attn: Stephen M. Cohen

E-mail: smcohen@foxrothschild.com

 

and

 

Pillsbury Winthrop Shaw Pittman
31 West 52nd Street
New York, NY 10019
Attn: Jarrod D. Murphy

E-mail: jarrod.murphy@pillsburylaw.com

 

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4.2 If to the Sponsor:

 

Gordon Pointe Management, LLC

90 Beta Drive

Pittsburgh, PA 15238

Attn: James Dolan

 

Email: jdolan@gordonpointe.com

 

with copies to (which shall not constitute notice):

 

Fox Rothschild LLP
2000 Market St., 20th Floor
Philadelphia PA 19103
Attn: Stephen M. Cohen

E-mail: smcohen@foxrothschild.com

 

and

 

Pillsbury Winthrop Shaw Pittman

31 West 52nd Street

New York, NY 10019

Attn: Jarrod D. Murphy

 

E-mail: jarrod.murphy@pillsburylaw.com

 

4.3 If to HOFV:

 

HOF Village, LLC
1826 Clearview Ave NW
Canton, OH 44708
Attn: Michael Crawford, CEO

 

E-mail: michael.crawford@hofvillage.com

 

with a copy to (which shall not constitute notice):

 

Hunton Andrews Kurth LLP
2200 Pennsylvania Ave NW
Washington, DC 20037
Attn: J. Steven Patterson

 

E-mail: spatterson@huntonak.com

 

8

 

 

4.4 If to PFHOF:

 

National Football Museum, Inc.
2121 George Halas Drive NW
Canton, OH 44708
Attn: C. David Baker, President

 

E-mail: david.baker@profootballhof.com

 

with a copy to (which shall not constitute notice):

 

Krugliak, Wilkins, Griffiths & Dougherty Co., L.P.A.
4775 Munson Street, NW
P.O. Box 36963

Canton, OH 44735-6963
Attn: Christopher R. Hunt

 

E-mail: chunt@kwgd.com

 

5. Adjustments. If, and as often as, there are any changes in the Holdings Common Stock by way of stock split, stock dividend, combination or reclassification, or through merger, consolidation, reorganization, recapitalization or sale, or by any other means, appropriate adjustment shall be made in the provisions of this Agreement, as may be required, so that the rights, privileges, duties and obligations hereunder shall continue with respect to the Holdings Common Stock as so changed.

 

6. No Strict Construction. The language used in this Agreement shall be deemed to be the language chosen by the Parties hereto to express their mutual intent, and no rule of strict construction shall be applied against any Party.

 

7. No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended or shall be construed to confer upon, or give to, any person or entity other than the Parties hereto and their respective permitted successors and assigns any remedy or claim under or by reason of this Agreement or any terms, covenants or conditions hereof, and all of the terms, covenants, conditions, promises and agreements contained in this Agreement shall be for the sole and exclusive benefit of the Parties hereto and their respective permitted successors and assigns.

 

8. Further Assurances. Each of the Parties hereby agrees that it will hereafter execute and deliver any further document, agreement or instrument of assignment, transfer or conveyance as may be necessary or desirable to effectuate the purposes hereof.

 

9. Counterparts. This Agreement may be executed in one or more counterparts, and may be delivered by means of facsimile or electronic transmission in portable document format, each of which shall be deemed to be an original and shall be binding upon the Party that executed the same, but all of such counterparts shall constitute the same agreement.

 

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10. Governing Law. This Agreement, and all claims or causes of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby, shall be governed by, and construed in accordance with, the Laws of the State of Delaware, without giving effect to principles or rules of conflict of laws to the extent such principles or rules would require or permit the application of Laws of another jurisdiction. Any Action based upon, arising out of or related to this Agreement or the transactions contemplated hereby may only be brought in federal and state courts located in the State of Delaware, and each of the Parties irrevocably submits to the exclusive jurisdiction of each such court in any such Action, waives any objection it may now or hereafter have to personal jurisdiction, venue or to convenience of forum, agrees that all claims in respect of the Action shall be heard and determined only in any such court, and agrees not to bring any Action arising out of or relating to this Agreement or the transactions contemplated hereby in any other court. Nothing herein contained shall be deemed to affect the right of any Party to serve process in any manner permitted by Law or to commence legal proceedings or otherwise proceed against any other Party in any other jurisdiction, in each case, to enforce judgments obtained in any Action brought pursuant to this paragraph. The prevailing party in any such Action (as determined by a court of competent jurisdiction) shall be entitled to be reimbursed by the non-prevailing party for its reasonable expenses, including reasonable attorneys’ fees, incurred with respect to such Action.

 

11. Mutual Waiver of Jury Trial. The Parties hereto hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement. Any action or proceeding whatsoever between the Parties hereto relating to this Agreement shall be tried in a court of competent jurisdiction by a judge sitting without a jury.

 

12. Complete Agreement; Inconsistent Agreements. This Agreement represents the complete agreement between the Parties hereto as to all matters covered hereby and supersedes any prior agreements or understandings between the Parties.

 

13. Severability. In the event any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The Parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.

 

14. Amendment and Waiver. Except as otherwise provided herein, no modification, amendment or waiver of any provision of this Agreement shall be effective against a Party unless such modification is approved in writing by all Parties hereto. The failure of any Party to enforce any of the provisions of this Agreement shall in no way be construed as a waiver of such provisions and shall not affect the right of such Party thereafter to enforce each and every provision of this Agreement in accordance with its terms.

 

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15. Termination. Notwithstanding anything to the contrary contained herein, (a) the Sponsor’s rights under this Agreement shall expire and terminate automatically at such time as the Sponsor Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock that is less than eighty-five percent (85%) of the total number of Initial Sponsor Shares, (b) HOFV’s rights under this Agreement shall expire and terminate automatically at such time as HOFV Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock that is less than fifteen percent (15%) of the total number of Initial HOFV Shares, and (c) PFHOF’s rights under this Agreement shall expire and terminate automatically at such time as PFHOF Beneficially Owns, in the aggregate, a number of shares of Holdings Common Stock that is less than eighty-five percent (85%) of the total number of Initial PFHOF Shares; provided, however, that Sections 1.9, 1.10, 1.11, 3, 4, 6, 7, and 9-16 shall survive any termination of any Party’s rights under this Agreement.

 

16. Enforcement. The Parties acknowledge and agree that, if a Party is not performing its obligations hereunder or is otherwise in breach of this Agreement, in addition to and without limiting the rights of the other Parties hereunder, a majority of the Directors who are Independent Directors shall have the right to seek enforcement of this Agreement and the obligations of the Parties hereunder.

 

[Remainder of this page intentionally left blank]

 

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year hereinabove first written.

 

Holdings:  
   
GPAQ ACQUISITION HOLDINGS, INC.  
     
By:    
  Name:  
  Title:  
   
Sponsor:  
   
GORDON POINTE MANAGEMENT, LLC  
     
By:    
  Name:  
  Title:  
   
HOFV:  
   
HOF VILLAGE, LLC  
     
By:    
  Name:  
  Title:  
   
PFHOF:  
   
NATIONAL FOOTBALL MUSEUM, INC.  
     
By:    
  Name: C. David Baker  
  Title: President  

 

[Signature Page to Director Nominating Agreement]

 

 

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