UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

 

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

 

Date of Report (Date of earliest event reported): July 1, 2020

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

(Exact name of registrant as specified in its charter)

 

Delaware   001-38363   84-3235695
(State or other jurisdiction
of incorporation)
  (Commission
File Number)
  (IRS Employer
Identification No.)

  

2626 Fulton Drive NW

Canton, OH 44718

(Address of principal executive offices, including zip code)

 

Registrant’s telephone number, including area code: (330) 458-9176

 

Gordon Pointe Acquisition Corp.

780 Fifth Avenue South

Naples, FL 34102
(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

Common Stock, $0.0001 par value per share   HOFV   Nasdaq Capital Market
Warrants to purchase 1.421333 shares of Common Stock   HOFVW   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. ☐

 

 

 

   

 

 

INTRODUCTORY NOTE

 

On July 1, 2020, (the “Closing Date”), Hall of Fame Resort & Entertainment Company (formerly known as GPAQ Acquisition Holdings, Inc.), a Delaware corporation (the “Company” or “Hall of Fame Resort”), consummated the previously announced business combination with HOF Village, LLC, a Delaware limited liability company (“HOF Village”), pursuant to that certain Agreement and Plan of Merger dated September 16, 2019 (as amended on November 6, 2019, March 10, 2020 and May 22, 2020, the “Merger Agreement”), by and among the Company, Gordon Pointe Acquisition Corp., a Delaware corporation (“GPAQ”), GPAQ Acquiror Merger Sub, Inc., a Delaware corporation (“Acquiror Merger Sub”), GPAQ Company Merger Sub, LLC, a Delaware limited liability company (“Company Merger Sub”), HOF Village and HOF Village Newco, LLC, a Delaware limited liability company (“Newco”). The transactions contemplated by the Merger Agreement are referred to herein as the “Business Combination.”

 

Upon the consummation of the Business Combination: (i) Acquiror Merger Sub merged with and into GPAQ, with GPAQ continuing as the surviving entity (the “Acquiror Merger”) and (ii) Company Merger Sub merged with and into Newco, with Newco continuing as the surviving entity (the “Company Merger” and together with the Acquiror Merger, the “Mergers”). In advance of the Company Merger, HOF Village transferred all of its assets, liabilities and obligations to Newco pursuant to a contribution agreement. In connection with the closing of the Business Combination (the “Closing”), the Company changed its name from “GPAQ Acquisition Holdings, Inc.” to “Hall of Fame Resort & Entertainment Company.” As a result of the Business Combination, GPAQ and Newco will continue as wholly owned subsidiaries of the Company.

 

In connection with the consummation of the Business Combination and pursuant to the Merger Agreement, (a) each issued and outstanding unit of GPAQ, if not already detached, was detached and the holder thereof was deemed to hold one share of GPAQ Class A common stock and one GPAQ warrant (“GPAQ Warrant”), (b) each issued and outstanding share of GPAQ Class A common stock (excluding any shares held by a GPAQ stockholder that elected to have its shares redeemed pursuant to GPAQ’s organizational documents) was converted automatically into the right to receive 1.421333 shares of the Company’s common stock, par value $0.0001 (the “Common Stock”), following which all shares of GPAQ Class A common stock ceased to be outstanding and were automatically canceled and cease to exist; (c) each issued and outstanding share of GPAQ Class F common stock was converted automatically into the right to receive one share of Common Stock, following which all shares of GPAQ Class F common stock ceased to be outstanding and were automatically canceled and cease to exist; (d) each issued and outstanding GPAQ Warrant (including GPAQ private placement warrants) was automatically converted into one Company warrant (“Company Warrant”) to purchase 1.421333 shares of Common Stock per warrant, following which all GPAQ Warrants ceased to be outstanding and were automatically canceled and retired and cease to exist; and (e) each issued and outstanding membership interest in Newco converted automatically into the right to receive a pro rata portion of the Company Merger Consideration (as defined in the Merger Agreement), which was payable in shares of Common Stock.

 

The foregoing description of the Business Combination does not purport to be complete and is qualified in its entirety by the full text of the Merger Agreement and amendments thereto, which are attached hereto as Exhibits 2.1(a), 2.1(b), 2.1(c) and 2.1(d), respectively, and are incorporated herein by reference.

 

Unless the context otherwise requires, “we,” “us,” “our” and the “Company” refer to Hall of Fame Resort & Entertainment Company and its subsidiaries.

 

Certain terms used in this Current Report on Form 8-K have the same meaning as set forth in the Post-Effective Amendment No. 3 to Registration Statement on Form S-4 (File No. 333-234655) (the “Registration Statement”) declared effective by the Securities and Exchange Commission (the “Commission”) on June 2, 2020.

 

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Item 1.01 Entry into a Material Definitive Agreement.

 

Note Purchase Agreement

 

On the Closing Date, concurrently with the Closing of the Business Combination, the Company entered into a Note Purchase Agreement (the “Note Purchase Agreement”) with certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto (together, the “Purchasers”), pursuant to which the Company agreed to issue and sell to the Purchasers in a private placement (the “Private Placement”) $20,721,293 in aggregate principal amount of the Company’s 8.00% Convertible Notes due 2025 (the “Notes”). Pursuant to the terms of the Note Purchase Agreement, the Notes may be converted into shares of Common Stock at the option of the holders of the Notes, and the Company may, at its option, redeem the Notes in exchange for cash and warrants to purchase shares of Common Stock (the “Note Redemption Warrants”). The Note Redemption Warrants, if issued, will be subject to the exercise terms described in Item 3.02 hereof.

 

The Private Placement was conducted pursuant to under section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”), as a transaction by an issuer not involving any public offering. The offer and sale of the Notes have not been registered under the Securities Act or applicable state securities laws, and consequently, the Notes may not be offered or sold in the United States absent registration under the Securities Act or an applicable exemption from the registration requirements of the Securities Act and applicable state laws.

 

The Note Purchase Agreement contains representations and warranties by the Company and the Purchasers, and each of the Company and the Purchasers have agreed to indemnify the other for losses resulting from a breach of any of their respective representations or warranties.

 

Closing of the Private Placement and delivery of the Notes pursuant to the Note Purchase Agreement occurred on the Closing Date. The Company received cash proceeds from the issuance and sale of the Notes of approximately $7 million. The Company intends to use the proceeds of the Private Placement to fund the Company’s obligations related to the Merger Agreement, to satisfy the Company’s working capital obligations and to pay transaction fees and expenses.

 

The information regarding the Notes and the Note Redemption Warrants set forth in Item 3.02 hereof is incorporated by reference into this Item 1.01.

 

This summary of the Note Purchase Agreement and the Notes is qualified in its entirety by reference to the text of the Note Purchase Agreement, which is included as Exhibit 10.7 and is incorporated herein by reference.

 

Registration Rights Agreement

 

On the Closing Date, in connection with the Note Purchase Agreement and the closing of the Private Placement, the Company entered into a Registration Rights Agreement (the “Registration Rights Agreement”), by and among the Company and the Purchasers.

 

Pursuant to the Registration Rights Agreement, the Company is required to prepare and file a registration statement (the “Registration Statement”) to permit the public resale of (i) the shares of Common Stock issued or issuable upon the exercise of the Note Redemption Warrants and (ii) the shares of Common Stock that are issuable pursuant to the terms of the Note Purchase Agreement upon conversion of the Notes. The Company is required to use its commercially reasonable efforts to cause the Registration Statement to become effective no later than 365 days after the Closing Date (the “Registration Statement Deadline”).

 

The Registration Rights Agreement provides that if the Registration Statement is not declared effective on or prior to the Registration Statement Deadline, the Company will be liable to the Purchasers for liquidated damages in accordance with a formula, subject to the limitations set forth in the Registration Rights Agreement. Such liquidated damages would be payable in cash. In addition, the Registration Rights Agreement grants the Purchasers piggyback registration rights. These registration rights are transferable to affiliates of the Purchasers and, in certain circumstances, to third parties.

 

This summary of the Registration Rights Agreement is qualified in its entirety by reference to the text of the Registration Rights Agreement which is included as Exhibit 10.8 and is incorporated herein by reference.

 

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Note Redemption Warrant Agreement

 

On the Closing Date, pursuant to the Note Purchase Agreement, the Company entered into a Note Redemption Warrant Agreement by and among the Company and the Purchasers listed on the signature pages thereto (the “Note Redemption Warrant Agreement”). The terms of the Note Redemption Warrant Agreement set forth the terms of the Note Redemption Warrants that may be issued pursuant to the Note Purchase Agreement upon redemption of Notes. The information regarding the Note Redemption Warrants set forth in Item 3.02 hereof is incorporated by reference into this Item 1.01.

 

This summary of the Note Redemption Warrant Agreement and the Note Redemption Warrants is qualified in its entirety by reference to the text of the Note Redemption Warrant Agreement, which is included as Exhibit 10.9 and is incorporated herein by reference.`

 

Lock-Up Agreement

 

In connection with the Business Combination, each of the holders of Newco’s membership interests as of immediately prior to the Closing, Gordon Pointe Management, LLC (the “Sponsor”), Douglas L. Hein, Robert B. Cross, David Dennis, Joseph F. Mendel and Neeraj Vohra entered into a Lock-Up Agreement with the Company (the “Lock-Up Agreement”). Under the Lock-Up Agreement, each holder agrees not to sell, offer to sell, contract or agree to sell, hypothecate, pledge, sell any option or contract to purchase, grant any option, right or warrant, make any short sale or otherwise transfer or dispose of or lend its portion of any shares of Common Stock (or any securities convertible into, or exercisable or exchangeable for, or that represent the right to receive, shares of Common Stock) for a period after Closing ending on the date that is the later of (i) 180 days after the Closing and (ii) the expiration of the “Founder Shares Lock-up Period” under the Letter Agreement, dated January 24, 2018 among GPAQ, its officers and directors and initial shareholders and the Sponsor.

 

This summary of the Lock-Up Agreement is qualified in its entirety by reference to the text of the Lock-Up Agreement, the form of which is included as Exhibit 10.1 and is incorporated herein by reference.

 

Director Nominating Agreement

 

At the Closing, the Company, GPAQ, HOF Village, the Sponsor and National Football Museum, Inc., an Ohio nonprofit corporation doing business as the Pro Football Hall of Fame (“PFHOF”) entered into a Director Nominating Agreement (the “Director Nominating Agreement”), which provides that the Company shall take all necessary action to set the size of its board of directors at 11 members, a majority of whom shall be independent directors in accordance with Nasdaq requirements. The Company’s board of directors (the “Board”) will be made up of three classes: 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. The following individuals have been appointed to the Board as of the Effective Time (as defined in the Merger Agreement): (i) Michael Klein, Edward J. Roth III and Mary Owen, who are Class A Directors; (ii) Stuart Lichter, Karl Holz, Curtis Martin and David Dennis, who are Class B Directors; and (iii) James Dolan, Michael Crawford, Kimberly Schaefer and Anthony Buzzelli, who are Class C Directors. The Director Nominating Agreement further provides that (i) so long as the Sponsor beneficially owns 85% of the total number of shares of Common Stock held by it as of the Effective Time, the Sponsor will have the right to designate one individual to be appointed or nominated for election to the Board, (ii) so long as HOF Village beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time, HOF Village will have the right to designate up to four individuals to be appointed or nominated for election to the Board, one of whom must be Michael Klein and one of whom must qualify as an independent director under the Nasdaq rules (or up to (a) three individuals, if it owns less than 85% but at least 65%, (b) two individuals, if it owns less than 65% but at least 45%, or (c) one individual, if it owns less than 45% but at least 15%), and (iii) so long as PFHOF beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time, PFHOF will have the right to designate up to one individual to be appointed or nominated for election to the Board. HOF Village and PFHOF may each designate one individual to serve as a Board non-voting observer (in the case of HOF Village, so long as HOF Village beneficially owns at least 15% of the total number of shares of Common Stock held by it as of the Effective Time and, in the case of PFHOF, so long as PFHOF beneficially owns at least 85% of the total number of shares of Common Stock held by it as of the Effective Time), who will initially be Richard Klein and Randall C. Hunt, respectively. The parties to the Director Nominating Agreement have agreed to take certain actions to support those nominees for election and include the nominees in the proxy statements for the stockholders meetings at which directors are to be elected.

 

This summary of the Director Nominating Agreement is qualified in its entirety by reference to the text of the Director Nominating Agreement, the form of which is included as Exhibit 10.2 and is incorporated herein by reference.

 

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Release Agreement

 

At the Closing, each of the members of HOF Village and PFHOF (each, a “Holder”) entered into a Release Agreement with the Company, GPAQ and Newco pursuant to which (i) each Holder generally releases all claims against the Company, GPAQ, the Merger Subs, Newco and their affiliates that such Holder may have prior to the Effective Time, except for certain Retained Claims, and (ii) each Holder consents to the termination of certain contracts to which it is a party with HOF Village and its affiliates effective immediately prior to the Effective Time without any cost or other liability to Newco, Holdings or its subsidiaries.

 

This summary of the Release Agreement is qualified in its entirety by reference to the text of the Release Agreement, the form of which is included as Exhibit 10.3 and is incorporated herein by reference.

 

Johnson Controls Inc. Sponsorship Agreement

 

On July 2, 2020, Newco entered into an Amended and Restated Sponsorship and Naming Rights Agreement (the “Amended Sponsorship Agreement”) among Newco, National Football Museum, Inc. d/b/a Pro Football Hall of Fame (“PFHOF”) and Johnson Controls, Inc. (“JCI”), that amends and restates the Sponsorship and Naming Rights Agreement, dated as of November 17, 2016 (the “Original Sponsorship Agreement”). The Amended Sponsorship Agreement is a closing condition to a co-terminus Technology as a Service Agreement (the “Technology as a Service Agreement”), for which the parties entered into a letter of intent on July 2, 2020. The Amended Sponsorship Agreement amends the Original Sponsorship Agreement as follows:

 

  reduces the total amount of fees payable to Newco during the term of the Amended Sponsorship Agreement from $135 million to $99 million;
renames the Hall of Fame Village (the “Village”) to “Hall of Fame Village powered by Johnson Controls”;
clarifies that PFHOF will be responsible for the costs and expenses associated with the development, design and maintenance of certain marketing materials and signs related to the Pro Football Hall of Fame Museum;
updates certain representations and obligations of Newco related to the construction of the Village;
adds key performance indicators, including a minimum annual attendance at the Village each year of 2,500,000 (the “Minimum Footfall”) with (i) a mechanism for adjusting fees for failure to meet the Minimum Footfall and (ii) a termination right for JCI if Newco fails to achieve the Minimum Footfall for any two consecutive years;
refines the terms of the exclusivity provisions, indemnification obligations, insurance requirements and termination rights and fees; and
revises certain aspects of the Force Majeure clause, including the reduction of the fees JCI owes in connection with certain underpayments to JCI under the Technology as a Service Agreement.

 

Additional amendments include various conforming, stylistic and technical revisions. This summary of the Amended Sponsorship Agreement is qualified in its entirety by the text of the Amended Sponsorship Agreement, which is attached as Exhibit 10.10 and incorporated herein by reference.

 

Item 2.01 Completion of Acquisition or Disposition of Assets

 

The disclosure set forth in the “Introductory Note” above is incorporated into this Item 2.01 by reference. On June 30, 2020, GPAQ held a special meeting at which the GPAQ stockholders considered and approved, among other matters, the Merger Agreement (the “Special Meeting”). On July 1, 2020, the parties consummated the Business Combination.

 

In connection with the Business Combination, 852 shares of GPAQ common stock sold in its initial public offering were redeemed at a per share price of approximately $10.80.

 

As of the date of the Closing and following the completion of the Business Combination, the Company had the following outstanding securities:

 

31,819,076 shares of Common Stock; and
17,400,000 Company Warrants, each exercisable for 1.421333 shares of Common Stock at a price of $11.50 per share.

 

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FORM 10 INFORMATION

 

Item 2.01(f) of Form 8-K states that, if the predecessor registrant was a shell company, as GPAQ was immediately before the Business Combination, then the registrant must disclose the information that would be required if the registrant were filing a general form for registration of securities on Form 10. Accordingly, the Company, as the successor issuer to GPAQ, is providing the information below that would be included in a Form 10 if the Company were to file a Form 10. Please note that the information provided below relates to the combined company after the consummation of the Business Combination, unless otherwise specifically indicated or the context otherwise requires.

 

Forward-Looking Statements

 

This Current Report contains forward-looking statements. Forward-looking statements provide the Company’s current expectations or forecasts of future events. Forward-looking statements include statements about the Company’s expectations, beliefs, plans, objectives, intentions, assumptions and other statements that are not historical facts. Forward-looking statements in this Current Report include, but are not limited to, statements about: 

 

the benefits of the Business Combination;
the future financial performance of the Company and its subsidiaries, including Newco, following the Business Combination;
changes in the market in which Newco competes;
expansion and other plans and opportunities;
  the effect of the COVID-19 pandemic on the Company’s business;
  the Company’s ability to raise financing in the future;
  the Company ability to maintain the listing of its common stock on Nasdaq following the Business Combination;
  other factors detailed under the section titled “Risk Factors” of the Registration Statement and incorporated herein by reference; and
  other statements preceded by, followed by or that include the words “estimate,” “plan,” “project,” “forecast,” “intend,” “expect,” “anticipate,” “believe,” “seek” or “target,” or similar expressions.

 

These forward-looking statements are based on information available as of the date of this Current Report, and current expectations, forecasts and assumptions, and involve a number of risks and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our views as of any subsequent date, and we do not undertake any obligation to update forward-looking statements to reflect events or circumstances after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under applicable securities laws.

 

In addition, statements that the Company “believes” and similar statements reflect its beliefs and opinions on the relevant subject. These statements are based upon information available to such party as of the date of this Current Report, and while the Company believes such information forms a reasonable basis for such statements, such information may be limited or incomplete, and these statements should not be read to indicate that the Company has conducted an exhaustive inquiry into, or review of, all potentially available relevant information. These statements are inherently uncertain and investors are cautioned not to unduly rely upon these statements.

 

You should not place undue reliance on these forward-looking statements. As a result of a number of known and unknown risks and uncertainties, the Company’s actual results or performance may be materially different from those expressed or implied by these forward-looking statements.

 

Business

 

The business of the Company is described in the Registration Statement in the section titled “The Business of HOF Village, LLC” and that information is incorporated herein by reference.

 

Risk Factors

 

The risks associated with the Company’s business are described in the Registration Statement in the section titled “Risk Factors” and are incorporated herein by reference.

 

Financial Information

 

Reference is made to the disclosure set forth in Item 9.01 of this Current Report concerning the financial information of the Company. Reference is further made to the disclosure contained in the Registration Statement in the section titled “Summary Financial and Other Data of HOFV, Management’s Discussion and Analysis of Financial Condition and Results of Operations of HOFV,” “Summary Financial and Other Data of GPAQ, Management’s Discussion and Analysis of Financial Condition and Results of Operations of GPAQ,” and is incorporated herein by reference.

 

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Unaudited Pro Forma Condensed Financial Information

 

The information set forth in Exhibit 99.2 to this Current Report on Form 8-K is incorporated herein by reference.

 

Management’s Discussion and Analysis of Financial Condition and Operations

 

The information set forth in the Registration Statement in the sections entitled “GPAQ’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” and “HOFV’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” is incorporated herein by reference.

 

Properties

 

The properties of the Company are described in the Registration Statement in the section titled “The Business of HOF Village, LLC” and are incorporated herein by reference.

 

Security Ownership of Certain Beneficial Owners and Management

 

The following table sets forth information regarding the beneficial ownership of the Common Stock as of the Closing by:

 

each person known by the Company to be the beneficial owner of more than 5% of the Common Stock of the Company upon the closing of the Business Combination;
each of the Company’s officers and directors; and
all executive officers and directors of the Company as a group upon the closing of the Business Combination.

 

Beneficial ownership is determined according to the rules of the Commission, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days.

 

The beneficial ownership percentages set forth in the table below are based on approximately 31,819,076 shares of Common Stock issued and outstanding as of July 1, 2020.

 

Unless otherwise indicated, the Company believes that all persons named in the table have sole voting and investment power with respect to all shares of Common Stock beneficially owned by them.

 

    Beneficial Ownership  
Name and Address of Beneficial Owner   Number of Shares       Percentage  
Directors and Officers                  
Michael Crawford     1       *  
Jason Krom             *  
Mike Levy             *  
Anne Graffice             *  
James J. Dolan     5,093,115 2       14.4 %
Michael Klein     2,517,108 3       7.9 %
David Dennis     10,000         *  
Edward J. Roth III             *  
Stuart Lichter     22,799,835 4       64.6 %
Kimberly K. Schaefer             *  
Karl L. Holz             *  
Anthony J. Buzzelli     21,320         *  
Mary Owen             *  
Curtis Martin             *  
All Directors and Officers as a Group (12 individuals)     30,441,378         87.1 %
                   
Greater than 5% Stockholders                  
HOF Village, LLC     18,485,230 5, 6       52.4 %
CH Capital Lending, LLC     4,314,605 7       13.6 %
IRG Canton Village Member, LLC     18,485,230 8       52.4 %
IRG Canton Village Manager, LLC     18,485,230 8       52.4 %
National Football Museum, Inc. d/b/a Pro Football Hall of Fame     6,309,721 6, 9       20.3 %
Gordon Pointe Management, LLC     5,093,165 6, 10       14.4 %

 

 

* Less than 1%.

 

1 In accordance with his employment agreement and the terms of the Company’s 2020 Omnibus Incentive Plan, Mr. Crawford is entitled to receive 715,929 restricted shares of Company Common Stock upon the effectiveness of a registration statement covering those shares. One-third of those restricted shares vest immediately after the effectiveness of that registration statement, upon the first anniversary of the closing of the Business Combination and upon the second anniversary of such closing.

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2 Mr. Dolan may be deemed to beneficially own 1,635,722 shares of Common Stock through his ownership of membership interests in Gordon Pointe Management, LLC and as the managing member of Gordon Pointe Management, LLC. Mr. Dolan may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by Gordon Pointe Management, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Does not include 325,000 shares of Common Stock granted by Mr. Dolan and Gordon Point Management, LLC to various trusts or estate planning vehicles for certain Dolan grandchildren and other Dolan family members that are managed by Mr. Dolan’s adult children, over which Mr. Dolan disclaims beneficial ownership.

 

3 Mr. Klein may be deemed to beneficially own 1,078,984 shares of Common Stock through his ownership of membership interests in The Klein Group, LLC. Mr. Klein may also be deemed to beneficially own (i) 928,455 shares of Common Stock as a result of his ownership of M. Klein & Associates, Inc., which owns membership interests in HOF Village, LLC, and (ii) 509,669 shares of Common Stock as a result of his minority ownership interests in M. Klein and Company, LLC, which beneficially owns 509,669 shares. Mr. Klein disclaims beneficial ownership of the shares of Common Stock owned by HOF Village, LLC and M. Klein and Company, LLC except to the extent of any actual pecuniary interest.

 

4 Mr. Lichter may be deemed to beneficially own 4,314,605 shares of Common Stock through his indirect ownership of membership interests in CH Capital Lending, LLC. Mr. Lichter may also be deemed to beneficially own 15,027,837 shares of Common Stock through his indirect ownership interest in IRG Canton Village Member, LLC, which in turn owns approximately a 76.8% interest in HOF Village, LLC. HOF Village, LLC owns 15,027,837 shares of Common Stock. He may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Mr. Lichter disclaims beneficial ownership of all shares held by IRG Canton Village Member, LLC, CH Capital Lending, LLC, and IRG Canton Village Manager, LLC, except to the extent of any actual pecuniary interest.

 

5 HOF Village, LLC beneficially owns 15,027,837 shares of Common Stock. It also beneficially owns 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days.

 

6 HOF Village, LLC, National Football Museum, Inc. and Gordon Pointe Management, LLC are parties to a director nominating agreement. See the discussion under “Director Nominating Agreement” in Item 1.01 of this Form 8-K.. As a result of these relationships, these persons may be deemed to be a group for purposes of Section 13(d) of the Exchange Act and therefore may be deemed to hold 27,258,245 shares of Common Stock.

 

7 CH Capital Lending, LLC beneficially owns 3,237,473 shares of Common Stock.

 

8 Each of IRG Canton Village Member, LLC and IRG Canton Village Manager, LLC may be deemed to beneficially own 15,027,837 shares of Common Stock through the former’s indirect (approximately 74.9%) ownership interest therein and the latter’s role as manager of it. For similar reasons, each may also be deemed to beneficially own 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by HOF Village, LLC with an exercise price of $11.50 per share. The warrants are exercisable within 60 days. Each of IRG Canton Village Member, LLC and IRG Canton Village Manager, LLC disclaims beneficial ownership of all shares held by HOF Village, LLC, except to the extent of any actual pecuniary interest.

 

9 National Football Museum, Inc. beneficially owns 3,679,850 shares of Common Stock. National Football Museum, Inc. may also be deemed to beneficially own 2,629,871 shares of Common Stock as a result of its ownership of membership interests in HOF Village, LLC. National Football Museum, Inc. disclaims beneficial ownership of all shares held by HOF Village, LLC, except to the extent of any actual pecuniary interest.

 

10 Gordon Pointe Management, LLC beneficially owns 1,635,722 shares of Common Stock. It also beneficially owns 3,457,393 shares of Common Stock issuable upon the exercise of 2,432,500 private placement warrants held by it with an exercise price of $11.50 per share. The warrants are exercisable within 60 days.

 

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Directors and Executive Officers

 

The Company’s directors and executive officers after the Closing are described in the Registration Statement in the section titled “Management After the Business Combination” and is incorporated herein by reference. Upon consummation of the Business combination, the Company adopted Corporate Governance Guidelines, which provide the basic framework for the Board’s operation and role in governance of the Company. The Corporate Governance Guidelines are available on the Company’s website at www.hofreco.com.

 

In addition to the directors and executive officers after the Closing described in the Registration Statement in the section titled “Management After the Business Combination,” the following two persons are also executive officers:

 

Name   Age   Position
Mike Levy   59   President of Operations
Anne Graffice   48   Executive Vice President of Public Affairs

 

Mike Levy. Mr. Levy has served as President of Operations of the Company since June 2020. From August 2014 until joining the Company, he served as President of the Canton Charge, the NBA G League franchise of the Cleveland Cavaliers, where he set numerous attendance records and revenue marks and was named the league’s Team Executive of the Year in 2016. Mr. Levy brings over 30 years of sports and entertainment management expertise to the Company, developed through extensive experience working with 11 professional franchises, 11 facilities and 10 sports leagues, including the NBA, MLB, WNBA, NFL, AFL and NHL. Mr. Levy has built a proven track record of driving excellent operational execution and successful start-ups with sports franchises over his extensive sports management career. Mr. Levy is a graduate of Duquesne University in Pittsburgh, Pennsylvania.

 

Ms. Graffice’s background is described in the Registration Statement in the section titles “Executive Officers of HOFV” and is incorporated herein by reference. 

 

Director Independence

 

Nasdaq listing standards require that a majority of the Company’s Board be independent. An “independent director” is defined generally as a person other than an officer or employee of the Company or its subsidiaries or any other individual having a relationship that, in the opinion of the Company’s Board, would interfere with the director’s exercise of independent judgment in carrying out the responsibilities of a director. The board of directors of the Company has affirmatively determined that Kimberly Schaefer, Karl Holz, Anthony Buzzelli, Mary Owen, Curtis Martin and David Dennis qualify as independent directors in accordance with the Nadsaq listing rules.

 

Committees of the Board of Directors

 

Upon the consummation of the Business Combination, the Company established three board committees and adopted charters for such committees: audit committee, compensation committee, and nominating and corporate governance committee. Messrs. Buzzelli and Dennis and Ms. Schaefer were appointed to serve on the Company’s audit committee, with Mr. Buzzelli serving as the chair and qualifying as an audit committee financial expert, as such term is defined in Item 407(d)(5) of Regulation S-K. Ms. Schaefer and Mr. Holz were appointed to serve on the Company’s compensation committee, with Ms. Schaefer serving as the chair. Mr. Holz and Ms. Owen were appointed to serve on the Company’s nominating and corporate governance committee, with Mr. Holz serving as the chair. Each of the committee charters are available on the Company’s website at www.hofreco.com.

 

Code of Business Conduct and Ethics

 

Upon consummation of the Business Combination, the Company adopted a Code of Business Conduct and Ethics that applies to all the Company’s directors, officers and employees. The Code of Business Conduct and Ethics covers areas such as conflicts of interest, insider trading and compliance with laws and regulations. The Code of Business Conduct and Ethics is available on the Company’s website at www.hofreco.com.

 

Executive Compensation

 

The executive compensation of the Company’s executive officers and directors is described in the Registration Statement in the section titled “Executive Compensation of HOFV” and is incorporated herein by reference.

 

  8  

 

 

At the Special Meeting, the GPAQ stockholders approved the 2020 Omnibus Incentive Plan. The description of the 2020 Omnibus Incentive Plan is set forth in the Proxy section entitled “The Incentive Plan Proposal”, which is incorporated herein by reference. A copy of the full text of the 2020 Omnibus Incentive Plan is filed as Exhibit 10.4 to this Current Report on Form 8-K and is incorporated herein by reference. Following the consummation of the Business Combination, the Company expects that the Board or the Compensation Committee will make grants of awards under the 2020 Omnibus Incentive Plan to eligible participants.

 

Reference is made to the disclosure set forth under Item 5.02 of this Current Report concerning the Employment Agreement of Michael Crawford.

 

Mike Levy Employment Agreement

 

On June 22, 2020, HOF Village issued a press release announcing the appointment of Michael Levy as President of Operations of HOF Village effective June 15, 2020 (the “Levy Employment Effective Date”). Mr. Levy remains in that role with the Company. Mr. Levy, 59, brings over 30 years of sports and entertainment management expertise to HOF Village. Since August 2014, Mr. Levy served as President of the Canton Charge, the NBA G League franchise of the Cleveland Cavaliers, where he set numerous attendance records and revenue marks and was named the league’s Team Executive of the Year in 2016.

 

In connection with his appointment, Mr. Levy entered into an employment agreement with HOF Village, dated June 22, 2020 (the “Levy Employment Agreement”), providing that the initial term of Mr. Levy’s employment will be through the third anniversary of the Levy Employment Effective Date. Pursuant to the Levy Employment Agreement, Mr. Levy will receive an annual base salary equal to $300,000 and be eligible to receive an annual performance bonus of up to 40% of his base salary paid in cash and pro-rated for the calendar year 2020. In addition, on the Levy Employment Effective Date Mr. Levy was granted profits interests in HOF Village representing $600,000 of the future profits of HOF Village that will vest in three equal instalments on the first, second and third anniversary of the Levy Employment Effective Date. Following the Business Combination, if Mr. Levy is granted restricted stock of the Company, his profit interests will be cancelled without additional consideration as of the date Mr. Levy accepts the restricted stock grant. HOF Village contributed the Levy Employment Agreement to Newco in connection with the Business Combination.

 

This description of the Levy Employment Agreement is not complete and is qualified in its entirety by the Levy Employment Agreement, a copy of which is attached as Exhibit 10.6 and incorporated into this Item 2.01 by reference.

 

Director Compensation

 

The compensation of the Company’s directors is described in the Registration Statement in the section titled “Executive Compensation Following the Business Combination–Compensation Arrangements for Directors” and is incorporated herein by reference.

 

Certain Relationships and Related Transactions

 

Certain relationships and related party transactions of the Company are described in the Registration Statement in the section titled “Certain Relationships and Related Person Transactions” and are incorporated herein by reference. Upon consummation of the Business Combination, the Company adopted a Related Person Transaction Policy that governs the review, approval or ratification of related person transactions.

 

Legal Proceedings

 

Reference is made to the disclosure regarding legal proceedings in the section of the Registration Statement titled “Information About HOFV– Legal Proceedings” and is incorporated herein by reference.

 

Market Price of and Dividends on the Registrant’s Common Equity and Related Stockholder Matters

 

The Company’s Common Stock began trading on the Nasdaq under the symbol “HOFV” and its warrants began trading on the Nasdaq under the symbol “HOFVW” on July 2, 2020, subject to ongoing review of the Company’s satisfaction of all listing criteria post-business combination. The Company has not paid any cash dividends on its Common Stock to date and does not intend to pay any cash dividends in the foreseeable future.

 

  9  

 

 

Information regarding the Company’s Common Stock, the Company Warrants and related stockholder matters are described in the Registration Statement in the section titled “Price Range and Dividends of Securities” and such information is incorporated herein by reference.

 

Recent Sales of Unregistered Securities

 

The disclosures in Item 1.01 of this Current Report under the headings “Note Purchase Agreement”, “Registration Rights Agreement” and “Note Redemption and Warrant Agreement” are incorporated into this Item 2.01 by reference.

 

Description of the Company’s Securities

 

The description of the Company’s securities is contained in the Registration Statement in the section titled “Description of Securities of Holdings” and is incorporated herein by reference.

 

Indemnification of Directors and Officers

 

The description of the indemnification provisions of the Company’s amended and restated certificate of incorporation is contained in the Registration Statement in the section titled “Certain Relationships and Related Person Transactions”, which is incorporated herein by reference.

 

Financial Statements and Supplementary Data

 

Reference is made to the disclosure set forth under Item 9.01 of this Current Report concerning the financial statements and supplementary data of the Company and its subsidiaries.

 

Changes in and Disagreements with Accountants on Accounting and Financial Disclosure

 

Not applicable.

 

Financial Statements and Exhibits

 

Reference is made to the disclosure set forth under Item 9.01 of this Current Report concerning the financial information of the Company and its subsidiaries.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

Convertible Notes

On the Closing Date, the Company completed the Private Placement of $20,721,293 in aggregate principal amount of Notes with certain funds managed by Magnetar Financial, LLC and the Purchasers. Pursuant to the terms of the Note Purchase Agreement, at the option of the holders thereof the Notes may be converted into shares of Common Stock at a conversion price initially equal to $11.50 per share, subject to formula-based adjustment based on specified events. Accordingly, the aggregate amount of Notes issued and sold in the Private Placement is convertible into 1,801,851 shares of Common Stock based on the conversion rate applicable on the Closing Date. The Private Placement was conducted pursuant to undersection 4(a)(2) of the Securities Act, as a transaction by an issuer not involving any public offering.

 

  10  

 

 

The information regarding the Note Purchase Agreement and the Notes set forth in Item 1.01 hereof is incorporated by reference into this Item 3.02.

 

This summary of the Note Purchase Agreement and the Notes is qualified in its entirety by reference to the text of the Note Purchase Agreement, which is included as Exhibit 10.7 and is incorporated herein by reference.

 

Note Redemption Warrants

 

The Note Redemption Warrants that may be issued pursuant to the Note Purchase Agreement will be exercisable for a number of shares of Common Stock to be determined at the time any such Note Purchase Warrant is issued. The exercise price per share of Common Stock of any Note Purchase Warrant will be set at the time such Note Purchase Warrant is issued pursuant to the terms of the Note Purchase Agreement and the Note Redemption Warrant Agreement.  The Note Redemption Warrants may be exercised from and after the date of issuance, subject to certain terms and conditions set forth in the Note Redemption Warrant Agreement.  Unexercised Note Redemption Warrants will expire on the maturity date of the Notes.  The Note Redemption Warrants will not participate in cash distributions by the Company. If issued upon redemption of Notes, the Note Redemption Warrants will be issued in reliance upon an exemption from the registration requirements of the Securities Act, pursuant to Section 4(a)(2) thereof, as a transaction by an issuer not involving any public offering.

 

The information regarding the Note Redemption Warrant Agreement and the Note Redemption Warrants set forth in Item 1.01 hereof is incorporated by reference into this Item 3.02.

 

This summary of the Note Redemption Warrant Agreement and the Note Redemption Warrants is qualified in its entirety by reference to the text of the Note Redemption Warrant Agreement, which is included as Exhibit 10.9 and is incorporated herein by reference.

 

Item 3.03 Material Modifications to Rights of Security Holders.

 

As disclosed below in Item 8.01, in accordance with Rule 12g-3(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Company is the successor issuer to GPAQ and has succeeded to the attributes of GPAQ as the registrant. In addition, the shares of Common Stock, as the successor to GPAQ, are deemed to be registered under Section 12(b) of the Exchange Act.

 

Amended and Restated Certificate of Incorporation

 

Upon the Closing of the Business Combination, the Company’s certificate of incorporation was amended and restated to implement the following changes:

 

    GPAQ Amended and Restated
Certificate of Incorporation
  Hall of Fame Resort’s Amended and Restated Certificate of Incorporation
Name   Gordon Pointe Acquisition Corp.   Hall of Fame Resort & Entertainment Company
Common Stock   GPAQ’s current charter authorizes two classes of common stock — Class A common stock and Class F common stock. GPAQ has 50,000,000 authorized shares of common stock, par value $0.0001 per share.   Hall of Fame Resort has one single class of common stock and 100,000,000 authorized shares of common stock, par value $0.0001 per share.
Preferred Stock   GPAQ’s current charter authorizes 5,000,000 shares of preferred stock.   Hall of Fame Resort has 5,000,000 authorized shares of preferred stock.
Number of Directors

  GPAQ’s certificate of incorporation is silent on the number of directors.   The total number constituting the board of directors shall be 11, subject to change from time to time by resolution adopted by the affirmative vote of at least a majority of the board of directors then in office.
Classified Board   The board of directors of GPAQ consists of two classes with staggered two-year terms.   The board of directors of Hall of Fame Resort is divided into three classes with staggered three-year terms.
Forum Selection   GPAQ’s certificate of incorporation does not contain an exclusive forum provision.   The Hall of Fame Resort amended and restated certificate of incorporation provides that the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, another state or federal court located within the State of Delaware, shall be the exclusive forum for certain actions and claims.
Removal of Blank Check Company/Special Purpose Acquisition Corporation Provisions   GPAQ’s certificate of incorporation sets forth various provisions related to its operations as a blank check company/special purpose acquisition corporation prior to the consummation of an initial business combination.   The Hall of Fame Resort amended and restated certificate of incorporation does not include these blank check company/special purpose acquisition corporation provisions.

 

The amended and restated certificate of incorporation is filed as Exhibit 3.1 hereto and incorporated herein by reference.

 

  11  

 

 

Amended and Restated Bylaws

 

Upon the closing of the Business Combination, the Company’s bylaws were amended and restated to be consistent with the Company’s amended and restated certificate of incorporation and to make certain other changes that GPAQ, as shareholder of the Company prior to Closing, deemed appropriate for a public operating company. This summary of the Company’s amended and restated bylaws is qualified in its entirety by reference to the text of the amended and restated bylaws, which is included as Exhibit 3.2 hereto and incorporated herein by reference.

  

Item 5.01 Changes in Control of Registrant.

 

Reference is made to the disclosure in the Registration Statement in the section titled “The Business Combination Proposal” and “The Merger Agreement” which is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Report, which is incorporated by reference.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

Appointment of Directors and Officers

 

The following persons are serving as executive officers and directors of the Company following the Closing. For biographical information concerning the executive officers and directors, see the disclosure in the Registration Statement in the sections titled “Executive Officers and Directors of HOFV,” “GPAQ’s Management,” and “Management After the Business Combination” and the disclosure set forth under the heading “Directors and Executive Officers” under Item 2.01 of this Current Report concerning Mike Levy, in each case which are incorporated by reference.

 

Following the closing of the Business Combination, the officers and directors of the Company consist of the following:

 

Name   Age   Position
Michael Crawford(3)   52   Chief Executive Officer, Director
Jason Krom   39   Chief Financial Officer
Anne Graffice   48   Executive Vice President of Public Affairs
Mike Levy   59   President of Operations
James J. Dolan(3)   65   Director
Michael Klein(1)   56   Director
Edward J. Roth III(1)   63   Director
Stuart Lichter(2)   71   Director
​Kimberly K. Schaefer(3)   54   Director
​Karl L. Holz(2)   69   Director
​Anthony J. Buzzelli(3)   70   Director
​Mary Owen(1)   42   Director
​Curtis Martin(2)   46   Director
​David Dennis(2)   62   Director

 

(1) Class A directors

 

(2) Class B directors

 

(3) Class C directors

 

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Employment Agreement of Michael Crawford

 

In connection with the consummation of the Business Combination, Mr. Crawford, the Company and Newco entered into an employment agreement, effective July 1, 2020 (the “Crawford Employment Agreement”). Under the terms of the Crawford Employment Agreement, Mr. Crawford serves as the President and Chief Executive Officer of the Company. The employment agreement will terminate on December 31, 2022 unless earlier terminated; however, the term will automatically renew for successive 12-month periods unless either party provides 90 days’ written notice of non-renewal. Under the terms of the Crawford Employment Agreement, Mr. Crawford will receive an annual base salary of $800,000 through December 31, 2020, and $850,000 for calendar year 2021, with a minimum annual salary of $850,000 for any subsequent years, as determined by the Compensation Committee of the Company’s board of directors. Mr. Crawford will also be entitled to receive a closing bonus of $400,000, payable in three installments in calendar year 2020. Additionally, Mr. Crawford will be eligible to receive an annual bonus. Mr. Crawford’s annual bonus for calendar year 2020 will be at least $400,000; however, his total annual salary and bonus for 2020 will not exceed $1,500,000 unless otherwise approved by the Company’s board of directors. In accordance with his employment agreement and the terms of the Company’s 2020 Omnibus Incentive Plan, Mr. Crawford is entitled to receive 715,929 restricted shares of Company Common Stock upon the effectiveness of a registration statement covering those shares. Additionally, the Crawford Employment Agreement provides Mr. Crawford with a vehicle allowance to reimburse Mr. Crawford for the lease expense of a vehicle with a retail value of up to $70,000.

 

This summary of the Crawford Employment Agreement is qualified in its entirety by reference to the text of the Crawford Employment Agreement, which is included as Exhibit 10.5 and is incorporated herein by reference.

 

Adoption of 2020 Omnibus Incentive Plan

 

At the Special Meeting, the GPAQ stockholders considered and approved the 2020 Omnibus Incentive Plan (the “Incentive Plan”). Subject to adjustment, the maximum number of shares of Common Stock to be authorized for issuance under the Incentive Plan is 3% of the outstanding shares of Common Stock on a fully-diluted basis on the date on which the transactions contemplated under the Merger Agreement were completed. The Incentive Plan was previously approved, subject to stockholder approval, by the board of directors of the Company.  The Incentive Plan became effective immediately upon the Closing of the Business Combination.

  

A more complete summary of the terms of the Incentive Plan is set forth in the Registration Statement. That summary and the foregoing description is qualified in its entirety by reference to the text of the Incentive Plan, which is filed as Exhibit 10.4 hereto and incorporated herein by reference.

 

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

 

The information set forth in Item 3.03 is incorporated by reference into this Item 5.03.

 

Item 5.06 Change in Shell Company Status.

 

As a result of the Business Combination, the Company ceased being a shell company. Reference is made to the disclosure in the Registration Statement in the sections titled “The Business Combination Proposal” and “The Merger Agreement” and is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Current Report.

 

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Item 8.01. Other Events.

 

By operation of Rule 12g-3(a) under the Exchange Act, the Company is the successor issuer to GPAQ and has succeeded to the attributes of GPAQ as the registrant, including GPAQ’s SEC file number (001-38363) and CIK Code (0001708176).

 

Amendment to Constellation Sponsorship Agreement

 

On June 15, 2020, HOF Village entered into an Amendment to Sponsorship and Services Agreement (the “Constellation Agreement Amendment”) with PFHOF and Constellation NewEnergy, Inc. that amends certain terms of the original Sponsorship and Services Agreement (the “Original Constellation Agreement”), dated December 19, 2018. The Constellation Agreement Amendment made the following amendments to the Original Constellation Agreement, among others:

 

updated provisions related to the impact of construction delays and ensures that any such delays will not impact the parties’ respective obligations or constitute an event of default;
extended the term of the Original Constellation Agreement for an additional year to December 31, 2029; and
updated terms related to the construction schedule, sponsorship rights, and sponsorship fees and activation fund proceeds.

 

HOF Village contributed the Constellation Agreement Amendment and the Original Constellation Agreement to Newco in connection with the Business Combination. This summary of the Constellation Agreement Amendment is qualified in its entirety by reference to the text of the Constellation Agreement Amendment, which is attached as Exhibit 10.14 and incorporated herein by reference.

 

JKP Financial, LLC Promissory Note

 

On June 24, 2020, HOF Village and HOF Village Hotel II, LLC (“HOFV Hotel II”) executed a loan evidenced by a Promissory Note (the “JKP Note”) in favor of JKP Financial, LLC (“JKP”) for the principal sum of $7,000,000, which will be due on December 31, 2020 (the “JKP Maturity Date”). The JKP Note bears interest at a rate of 12% annually, with interest due on the JKP Maturity Date using a 360-day year and 30-day month. In addition, HOF Village must pay JKP an origination fee equal to 1% of: (a) $7,000,000 minus (b) the amount needed to pay off, in full, the loan evidenced by the original promissory note, dated October 22, 2019, in the original principal amount of $1,807,338.99 (the “Refinanced JKP Note”), from HOFV Hotel II, as borrower, to CH Capital Lending, LLC (“CH Capital”), as lender. The JKP Note is secured by the membership interests in HOFV Hotel II held by HOF Village.

 

HOF Village intends to use the proceeds of the JKP Note to (i) repay the Refinanced Note, (ii) pay costs associated with the demolition, renovation, development, and construction of the real property owned by HOFV Hotel II, and (iii) for other properly authorize corporate uses. On June 24, 2020, $1,928,831 ($1,807,339 in principal plus $121,492 in accrued interest) was advanced to CH Capital out of the $7,000,000 principal amount of the Note in full satisfaction of the outstanding obligations under the Refinanced JKP Note. HOF Village contributed the JKP Note to Newco in connection with the Business Combination.

 

This summary of the JKP Note is qualified in its entirety by reference to the text of the JKP Note, which is attached as Exhibit 10.11 and incorporated herein by reference.

 

IRG Side Letter

 

On June 25, 2020, HOF Village entered into a Letter Agreement re Payment Terms (the “IRG Side Letter”) amending and restating a Letter Agreement re Payment Terms entered into on January 21, 2020 (the “January Letter”). The IRG Side Letter was entered into with respect to (i) the $65 million secured term loan agreement (as amended, the “Term Loan Agreement”) entered into on March 20, 2018 by HOF Village, the other borrowers party thereto (together with HOF Village, the “Borrowers”), the various lenders party thereto (the “Lenders”) and GACP Finance Co., LLC, as administrative agent (“GACP Finance”) (ii) the subordinated promissory note entered into on February 7, 2020, effective as of November 27, 2019, (as amended, the “IRG November Note”) between HOF Village, as borrower, and payable to the order of Industrial Realty Group, LLC, a Nevada limited liability company (“IRG”), in an amount up to $30,000,000, (iii) the Guaranty dated November 16, 2019 by IRG Master Holdings, LLC, a Delaware limited liability company (“IRGMH” and together with IRG and their respective affiliates, the “IRG Entities”) in favor of GACP Finance (the “IRGMH Guaranty”) and (iv) the Loan Purchase and Assumption Agreement (which may be entered into at a future date, but which has not, at this time, been agreed upon or executed by any party) by and among the Lenders, GACP Finance, the Borrowers and the purchasing lender party thereto (the “LPAA”, and together with the IRG November Note and the IRGMH Guaranty, the “Advancement Documents”).

 

  14  

 

 

Pursuant to the IRG Side Letter, if any IRG Entity advances funds pursuant to the Advancement Documents, the Term Loan Agreement, or any other instrument in order to pay certain specified lenders under the Term Loan Agreement, as a result of such advancement of funds, any IRG Entity becomes a Lender or has the rights of a Lender under the Term Loan Agreement, then (i) certain mandatory prepayment provisions will be deleted and no longer be applicable, (ii) the maturity date of the of the Term Loan Agreement will be extended to August 31, 2021 and (iii) HOF Village will not be required to pay to any IRG Entity any principal, interest, or other obligations due under the Term Loan Agreement if payment of such amounts would cause Borrowers to violate applicable Nasdaq or securities-law requirements. HOF Village contributed the IRG Side Letter and the Term Loan Agreement to Newco in connection with the Business Combination.

 

This summary of the IRG Side Letter is qualified in its entirety by reference to the text of the IRG Side Letter, which is included as Exhibit 10.12 and is incorporated herein by reference.

 

Amendment Number 8 to the Term Loan Agreement

 

On June 30, 2020, HOF Village entered into Amendment Number 8 to Term Loan Agreement (“Amendment Number 8”) among the Borrowers, the Lenders and GACP Finance to amend certain terms of the Term Loan Agreement and obtain the waiver and forbearance of the rights and remedies that GACP Finance and the Lenders could exercise under the Term Loan Agreement as a result of the existence and continuation of certain events of default under the Term Loan Agreement. Amendment Number 8 made the following amendments to the Term Loan Agreement, among others:

 

extended the maturity date to the earlier of (a) November 30, 2020 and (b) the dates that all loans become due and payable in full under the Term Loan Agreement;
updated certain defined terms to align with the final transaction structure;
specified the amount of proceeds from the Business Combination and Private Placement that were required to be paid towards amounts outstanding under the Term Loan Agreement (the “Gordon Pointe Transaction Prepayment Amount”);
added a fee payable to certain Lenders relative to the amounts owed after giving effect to the Gordon Pointe Transaction Prepayment Amount; and
amended various provisions related to mandatory prepayments of outstanding amounts owed under the Term Loan Agreement.

 

HOF Village contributed Amendment Number 8 and the Term Loan Agreement to Newco in connection with the Business Combination. This summary of Amendment Number 8 is qualified in its entirety by reference to the text of Amendment Number 8, which is included as Exhibit 10.13 and is incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

(a)-(b) Financial Statements.

 

Information responsive to Item 9.01(a) and (b) of Current Report is set forth in the financial statements included in the Registration Statement beginning on page F-1, and under “Unaudited Pro Forma Combined Financial Information” and is incorporated herein by reference.

 

The unaudited pro forma financial statements are filed as Exhibit 99.2 to this Current Report and are incorporated herein by reference.

 

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(d) Exhibits

 

Exhibit No.   Document
2.1(a) +   Agreement and Plan of Merger, dated as of September 16, 2019, 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 (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on September 17, 2019)
2.1(b)   First Amendment to Agreement and Plan of Merger, dated as of November 5, 2019, 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 (incorporated by reference to Exhibit 2.2 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on November 8, 2019)
2.1(c)   Second Amendment to Agreement and Plan of Merger, dated as of 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 (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on March 16, 2020)
2.1(d)   Third Amendment to Agreement and Plan of Merger, dated as of May 22, 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 (incorporated by reference to Exhibit 2.1 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on May 28, 2020)
3.1   Amended and Restated Certificate of Incorporation of Hall of Fame Resort & Entertainment Company
3.2   Bylaws of Hall of Fame Resort & Entertainment Company
4.1   Specimen Common Stock Certificate
4.2   Specimen Warrant Certificate
5.1   Form of Warrant Agreement (incorporated by reference to Exhibit 4.2 to Gordon Pointe Acquisition Corp.’s Current Report on Form 8-K (File No. 001-38363) filed with the Commission on January 30, 2018)
10.1   Form of Lock-Up Agreement (incorporated by reference to Exhibit 10.1 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.2   Form of Director Nominating Agreement (incorporated by reference to Exhibit 10.2 to Post-Effective Amendment No. 1 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on March 10, 2020)
10.3   Form of Release Agreement (incorporated by reference to Exhibit 10.3 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.4   GPAQ Acquisition Holdings, Inc. 2020 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.4 to GPAQ Acquisition Holdings, Inc.’s Registration Statement on Form S-4 (File No. 333-234655) filed with the Commission on November 12, 2019)
10.5   Employment Agreement, dated July 1, 2020, by and between Michael Crawford, HOFV Newco, LLC and Hall of Fame Resort & Entertainment Company
10.6   Employment Agreement, dated June 22, 2020, by and between Michael Levy and HOF Village, LLC
10.7+   Note Purchase Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.8   Registration Rights Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.9   Note Redemption and Warrant Agreement, dated July 1, 2020, by and among Hall of Fame Resort & Entertainment Company and certain funds managed by Magnetar Financial, LLC and the purchasers listed on the signature pages thereto
10.10+   Amended and Restated Sponsorship and Naming Rights Agreement, dated July 2, 2020, by and among HOF Village, LLC, National Football Museum, Inc. and Johnson Controls, Inc.
10.11   Promissory Note, dated June 24, 2020, by HOF Village, LLC and HOF Village Hotel II, LLC in favor of JKP Financial, LLC
10.12   Letter Agreement re Payment Terms, dated June 25, 2020, by and among Industrial Realty Group, LLC, IRG Master Holdings, LLC, HOF Village, LLC and certain affiliates party thereto
10.13+   Amendment Number 8 to Term Loan Agreement, dated June 30, 2020, by and among HOF Village, LLC and certain affiliates party thereto, the Lenders party thereto and GACP Finance Co., LLC, as Administrative Agent
10.14+   Amendment to Sponsorship and Services Agreement, dated June 15, 2020, by and among HOF Village, LLC, National Football Museum, Inc. and Constellation NewEnergy, Inc.
21.1   Subsidiaries of Hall of Fame Resort & Entertainment Company
99.1   Press Release, dated July 1, 2020
99.2   Unaudited Pro Forma Combined Financial Statements

 

 

+ The exhibits and schedules to this Exhibit have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant hereby agrees to furnish a copy of any omitted schedules to the Commission upon request.

 

  16  

 

 

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.

 

  HALL OF FAME RESORT AND ENTERTAINMENT COMPANY
     
  By: /s/ Michael Crawford
    Name: Michael Crawford
    Title: President and Chief Executive Officer
     
Dated: July 8, 2020    

 

 

17

 

 

Exhibit 3.1

 

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GPAQ ACQUISITION HOLDINGS, INC.

 

July 1, 2020

 

GPAQ Acquisition Holdings, Inc., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), does hereby certify as follows:

 

1. The name of the Corporation is “GPAQ Acquisition Holdings, Inc.”. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on August 29, 2019 (the “Original Certificate”).

 

2. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”), which both restates and amends the provisions of the Original Certificate, was duly adopted in accordance with Sections 228, 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”).

 

3. The text of the Original Certificate is hereby amended and restated in its entirety to read as follows:

 

ARTICLE I
NAME

 

The name of the corporation is Hall of Fame Resort & Entertainment Company (the “Corporation”).

 

ARTICLE II
PURPOSE

 

The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

 

ARTICLE III
REGISTERED AGENT

 

The address of the registered office of the Corporation in the State of Delaware is 1209 Orange Street, Wilmington, DE 19801, County of New Castle; and the name of the Corporation’s Registered Agent as such address is The Corporation Trust Company.

 

ARTICLE IV
CAPITALIZATION

 

Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 105,000,000, of which 100,000,000 shares shall be common stock of the par value $0.0001 per share (“Common Stock”) and 5,000,000 shares shall be preferred stock of the par value of $0.0001 per share (“Preferred Stock”).

 

Section 4.2 Preferred Stock. The board of directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional and other special rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.

 

 

 

Section 4.3 Common Stock.

 

(a) Voting.

 

(i) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall possess all voting power with respect to the Corporation.

 

(ii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.

 

(iii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, holders of the Common Stock shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), holders of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) or the DGCL.

 

(b) Dividends. Subject to applicable law and the rights, if any, of the holders of any outstanding series of the Preferred Stock, the holders of the Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor, and shall share equally on a per share basis in such dividends and distributions.

 

(c) Liquidation, Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock, in the event of any voluntary or involuntary liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.

 

(d) No Cumulative Voting Rights. No holder of shares of Common Stock shall have cumulative voting rights.

 

Section 4.4 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to purchase shares of any class or series of the Corporation’s capital stock or other securities of the Corporation, and such rights, warrants and options shall be evidenced by instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock subject thereto may not be less than the par value thereof.

 

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ARTICLE V
BOARD OF DIRECTORS

 

Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws (“Bylaws”) of the Corporation, the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate, and any Bylaws adopted by the stockholders; provided, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

 

Section 5.2 Number, Election and Term.

 

(a) Upon the effectiveness of this Amended and Restated Certificate of Incorporation (the “Effective Time”), the total number of directors constituting the entire Board of Directors shall be eleven (11). Thereafter, the total number of directors constituting the entire Board of Directors shall be such number as may be fixed from time to time exclusively by resolution adopted by the affirmative vote of at least a majority of the Board of Directors then in office.

 

(b) Subject to the terms of any one or more series of Preferred Stock, and effective upon the Effective Time, the Board of Directors shall be divided into three classes: Class A, Class B and Class C. The number of directors in each class shall be as nearly equal as possible. The Board of Directors may assign members of the Board of Directors already in office to such classes as of the Effective Time. The directors in Class A shall be elected for a term expiring at the first Annual Meeting of Stockholders after the Effective Time, the directors in Class B shall be elected for a term expiring at the second Annual Meeting of Stockholders after the Effective Time, and the directors in Class C shall be elected for a term expiring at the third Annual Meeting of Stockholders after the Effective Time.

 

(c) Commencing at the first Annual Meeting of Stockholders after the Effective Time and at each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding Annual Meeting of Stockholders after their election. Except as the DGCL may otherwise require, in the interim between Annual Meetings of Stockholders or Special Meetings of Stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. If the number of directors is changed, any increase or decrease shall be apportioned among the classes in a manner as the Board of Directors shall determine so as to maintain the number of directors in each class as nearly equal as possible, but in no cases will an increase or decrease in the number of directors shorten the term of an incumbent.

 

(d) Election of directors need not be by written ballot unless the Bylaws so provide.

 

Section 5.3 Officers. Except as otherwise expressly delegated by resolution of the Board of Directors, the Board of Directors shall have the exclusive power and authority to appoint and remove officers of the Corp oration.

 

ARTICLE VI
BYLAWS

 

In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws; and provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.

 

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ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT

 

Section 7.1 Meetings. Subject to the terms of any one or more series or classes of Preferred Stock, special meetings of the stockholders of the Corporation may be called as prescribed by the Bylaws of the Corporation.

 

Section 7.2 Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.

 

Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Offering, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders.

 

ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION

 

Section 8.1 Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless they violated their duty of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from their actions as directors. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.

 

Section 8.2 Indemnification and Advancement of Expenses.

 

(a) To the fullest extent permitted by Delaware law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.

 

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(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.

 

(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.

 

(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.

 

ARTICLE IX
CORPORATE OPPORTUNITY

 

The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors in circumstances where the application of any such doctrine to a corporate opportunity would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Amended and Restated Certificate or in the future. In addition to the foregoing, the doctrine of corporate opportunity shall not apply to any other corporate opportunity with respect to any of the directors or officers of the Corporation unless such corporate opportunity is offered to such person solely in his or her capacity as a director or officer of the Corporation and such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue.

 

ARTICLE X
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

 

The Corporation reserves the right to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, all rights, preferences and privileges herein conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article X.

 

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ARTICLE XI
MISCELLANEOUS

 

Section 11.1 Exclusive Forum. Unless the Corporation consents in writing to the selection of an alternative forum, any (i) derivative action or proceeding brought on behalf of the Corporation, (ii) action asserting a claim of breach of a fiduciary duty owed by any director, officer, stockholder or employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) action asserting a claim arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws, or (iv) action asserting a claim governed by the internal affairs doctrine, shall, to the fullest extent permitted by law, be exclusively brought in the Court of Chancery of the State of Delaware or, if such court does not have subject matter jurisdiction thereof, another state or federal court located within the State of Delaware. To the fullest extent permitted by law, any person or entity purchasing or otherwise acquiring or holding any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Section 11.l. Notwithstanding anything otherwise to the contrary herein, the provisions of this Section 11.1 will not apply to suits brought to enforce a duty or liability created by the federal securities laws or any other claim for which the federal courts have exclusive jurisdiction.

 

Section 11.2 Enforceability. If any provision or provisions of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable as applied to any circumstance for any reason whatsoever: (i) the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended and Restated Certificate (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) shall not, to the fullest extent permitted by law, in any way be affected or impaired thereby and (ii) to the fullest extent permitted by law, the provisions of this Amended and Restated Certificate (including, without limitation, each such portion of any paragraph of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.

 

ARTICLE XII
EFFECTIVE TIME

 

This Amended and Restated Certificate shall become effective as of 5:00 PM (Eastern Time) on July 1, 2020.

 

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IN WITNESS WHEREOF, GPAQ Acquisition Holdings, Inc. has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.

 

  GPAQ ACQUISITION HOLDINGS, INC.

 

  By: /s/ James J. Dolan
  Name:  James J. Dolan
  Title: Chief Executive Officer

 

 

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Exhibit 3.2

 

Bylaws
OF
Hall of fame resort & entertainment company
Dated as of july 1, 2020

 

ARTICLE I
STOCKHOLDERS

 

Section 1.01 Annual Meetings. The annual meeting of stockholders for the election of directors and for the transaction of such other business as may properly come before the meeting shall be held each year at such date and time, within or without the State of Delaware, as the Board of Directors shall determine. The Board of Directors may, in its sole discretion, determine that meetings of the stockholders shall not be held at any place, but may instead be held solely by means of remote communication as described in Section 2.11 of these Bylaws in accordance with Section 211(a)(2) of the General Corporation Law of the State of Delaware. The Board of Directors may postpone, reschedule or cancel any annual meeting of stockholders previously scheduled by the Board of Directors.

 

Section 1.02 Special Meetings.

 

(a) Special meetings of stockholders for the transaction of such business as may properly come before the meeting may be called by the Board of Directors pursuant to a resolution approved by a majority of the members of the Board of Directors or by stockholders holding together at least a majority of all the shares of the Corporation entitled to vote at the meeting (the “requisite percent”), and shall be held at such date and time, within or without the State of Delaware, as may be specified by such order. Whenever the directors shall fail to fix such place, the meeting shall be held at the principal executive office of the Corporation.

 

(b) Any stockholder seeking to request a special meeting shall first request that the Board of Directors fix a record date to determine the stockholders entitled to request a special meeting (the “ownership record date”) by delivering notice in writing to the Secretary of the Corporation at the principal executive offices of the Corporation (the “record date request notice”). A stockholder’s record date request notice shall contain information about the number of shares of the Corporation’s common stock (“Voting Stock”) that are owned of record and beneficially by the stockholder. Upon receiving a record date request notice, the Board of Directors may set an ownership record date. Notwithstanding any other provision of these Bylaws, the ownership record date shall not precede the date upon which the resolution fixing the ownership record date is adopted by the Board of Directors, and shall not be more than 10 days after the close of business on the date upon which the resolution fixing the ownership record date is adopted by the Board of Directors. If the Board of Directors, within 10 days after the date upon which a valid record date request notice is received by the Secretary of the Corporation, does not adopt a resolution fixing the ownership record date, the ownership record date shall be the close of business on the 10th day after the date upon which the valid record date request notice is received by the Secretary of the Corporation (or, if such 10th day is not a business day, the first business day thereafter).

 

 

 

(c) In order for a stockholder-requested special meeting to be called, one or more written requests for a special meeting signed by the stockholders (or their duly authorized agents) who own, as of the ownership record date, at least the requisite percent (the “special meeting request”), must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation. A special meeting request shall: (i) state the business proposed to be acted on at the meeting; (ii) bear the date of the signature of each stockholder (or duly authorized agent) submitting the special meeting request; (iii) set forth the name and address of each stockholder submitting the special meeting request, as they appear on the corporation’s books; (iv) include documentary evidence that the requesting stockholders own the requisite percent as of the ownership record date; provided, however, that if the requesting stockholders are not the beneficial owners of the Voting Stock representing the requisite percent, then to be valid, the special meeting request must also include documentary evidence of the number of shares of Voting Stock owned by the beneficial owners on whose behalf the special meeting request is made as of the ownership record date; and (v) be timely delivered to the Secretary of the Corporation. To be timely, the special meeting request must be delivered to the Secretary of the Corporation at the principal executive offices of the Corporation within 60 days after the ownership record date.

 

(d) After receiving a special meeting request, the Board of Directors shall determine in good faith whether the stockholders requesting the special meeting have satisfied the requirements for calling a special meeting of stockholders, and the Corporation shall notify the requesting stockholder of the Board of Director’s determination about whether the special meeting request is valid. The date, time and place of the special meeting shall be fixed by the Board of Directors, and the date of the special meeting shall not be more than 120 days after the date on which the valid special meeting request is delivered to the Secretary of the Corporation in accordance with this Section 1.02. The record date for the special meeting shall be fixed by the Board of Directors as set forth in Section 5.03of these Bylaws.

 

(e) A special meeting request shall not be valid, and the Corporation shall not call a special meeting if (i) the special meeting request relates to an item of business that is not a proper subject for stockholder action under, or that involves a violation of, applicable law, the Corporation’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) or these Bylaws or (ii) the special meeting request does not comply with the requirements of the Certificate of Incorporation or these Bylaws.

 

(f) Any stockholder who submitted a special meeting request may revoke its written request by written revocation delivered to the Secretary of the Corporation at the principal executive offices of the Corporation at any time prior to the stockholder-requested special meeting. A special meeting request shall be deemed revoked (and any meeting scheduled in response may be cancelled) if the stockholders submitting the special meeting request, and any beneficial owners on whose behalf they are acting (as applicable), do not continue to own at least the requisite percent at all times between the date the record date request notice is received by the Corporation and the date of the applicable stockholder-requested special meeting, and the requesting stockholder shall promptly notify the Secretary of the Corporation of any decrease in ownership of shares of Voting Stock that results in such a revocation. If, as a result of any revocations, there are no longer valid unrevoked written requests from the requisite percent, the Board of Directors shall have the discretion to determine whether or not to proceed with the special meeting (and may cancel such meeting).

 

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(g) Business transacted at any stockholder-requested special meeting shall be limited to: (i) the purpose stated in the valid special meeting request received from the requisite percent and (ii) any additional matters that the Board of Directors determines to include in the Corporation’s notice of the meeting. If none of the stockholders who submitted the special meeting request appear at the stockholder-requested special meeting to present the matters to be presented for consideration that were specified in the special meeting request, the Corporation need not present such matters for a vote at such meeting, notwithstanding that proxies in respect of such matter may have been received by the corporation.

 

Section 1.03 Notice of Meetings. Written notice of all meetings of the stockholders, stating the place (if any), date, and hour of the meeting, the place within the city or other municipality or community at which the list of stockholders may be examined, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and, in the case of a special meeting of stockholders, the purpose(s) of the meeting and the person(s) by whom or at whose direction such meeting has been called and such notice is being issued, shall be given not less than 10 nor more than 60 days (or such other period of time as may be required by applicable law) before the date of the meeting, either by mail or by electronic transmission by or at the direction of the Chairman of the Board of Directors or the Secretary of the Corporation to each stockholder of record entitled to vote at such meeting. Notice of any stockholder meeting shall be deemed to be given (a) if the notice is mailed, when deposited in the United States mail, postage prepaid, directed to the stockholder at the stockholder’s address as it appears on the stock transfer books of the Corporation, (b) if the notice is delivered by courier service, the earlier of when the notice is received or left at such stockholder’s address and (c) if given by electronic mail, when directed to such stockholder’s electronic mail address unless the stockholder has notified the Corporation in writing or by electronic transmission of an objection to receiving notice by electronic mail or such notice is prohibited by law. Nothing herein contained shall preclude the stockholders from waiving notice as provided in Article XI hereof.

 

Section 1.04 Stockholder Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder. Such list shall be open during ordinary business hours to the examination of any stockholder, for any purpose germane to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held, or such other place as permitted or required by statute. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder who is present.

 

The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this section or the books of the Corporation, or to vote in person or by proxy at any meeting of stockholders.

 

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Section 1.05 Quorum. Except as otherwise provided by law or the Certificate of Incorporation, a quorum for the transaction of business at any meeting of stockholders shall consist of the holders of record of a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting, present in person or by proxy. At all meetings of the stockholders at which a quorum is present, all matters, except as otherwise provided by law or the Certificate of Incorporation, shall be decided by the vote of the holders of a majority of the shares entitled to vote thereon present in person or by proxy. If there be no such quorum, the holders of a majority of such shares so present or represented may adjourn the meeting from time to time, without further notice, until a quorum shall have been obtained. When a quorum is once present it is not broken by the subsequent withdrawal of any stockholder.

 

Section 1.06 Organization. Meetings of stockholders shall be presided over by the Chairman, if any, or if none or in the Chairman’s absence the President, if any, or if none or in the President’s absence a Vice-President, or, if none of the foregoing is present, by a chairman to be chosen by the stockholders entitled to vote who are present in person or by proxy at the meeting. The Secretary of the Corporation, or in the Secretary’s absence an Assistant Secretary, shall act as secretary of every meeting, but if neither the Secretary nor an Assistant Secretary is present, the presiding officer of the meeting shall appoint any person present to act as secretary of the meeting.

 

Section 1.07 Voting; Proxies; Required Vote.

 

(a) At each meeting of stockholders, every stockholder shall be entitled to vote in person or by proxy appointed by instrument in writing, subscribed by such stockholder or by such stockholder’s duly authorized attorney-in-fact (but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period), and, unless the Certificate of Incorporation provides otherwise, shall have one vote for each share of stock entitled to vote registered in the name of such stockholder on the books of the Corporation on the applicable record date fixed pursuant to these Bylaws. At all elections of directors the voting may but need not be by ballot and a plurality of the votes cast there shall elect. Except as otherwise required by law or the Certificate of Incorporation, any other action shall be authorized by the vote of the majority of the shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter.

 

(b) Any action required or permitted to be taken at any meeting of stockholders may, except as otherwise required by law or the Certificate of Incorporation, be taken without a meeting, without prior notice, and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of record of the issued and outstanding capital stock of the Corporation having not less than a minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and the writing or writings are filed with the permanent records of the Corporation. Prompt notice of the taking of corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.

 

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Section 1.08 Inspectors. The Board of Directors, in advance of any meeting, may, but need not, appoint one or more inspectors of election to act at the meeting or any adjournment thereof. If an inspector or inspectors are not so appointed, the person presiding at the meeting may, but need not, appoint one or more inspectors. In case any person who may be appointed as an inspector fails to appear or act, the vacancy may be filled by appointment made by the directors in advance of the meeting or at the meeting by the person presiding thereat. Each inspector, if any, before entering upon the discharge of his or her duties, shall take and sign an oath faithfully to execute the duties of inspector at such meeting with strict impartiality and according to the best of his ability. The inspectors, if any, shall determine the number of shares of stock outstanding and the voting power of each; the shares of stock represented at the meeting; the existence of a quorum, and the validity and effect of proxies; and shall receive votes, ballots, or consents; hear and determine all challenges and questions arising in connection with the right to vote; count and tabulate all votes, ballots, or consents; determine the result; and do such acts as are proper to conduct the election or vote with fairness to all stockholders. On request of the person presiding at the meeting, the inspector or inspectors, if any, shall make a report in writing of any challenge, question, or matter determined by such inspector or inspectors and execute a certificate of any fact found by such inspector or inspectors.

 

ARTICLE II
BOARD OF DIRECTORS

 

Section 2.01 General Powers. The business, property, and affairs of the Corporation shall be managed by, or under the direction of, the Board of Directors.

 

Section 2.02 Qualification; Number; Term; Remuneration.

 

(a) Each director shall be at least 18 years of age. A director need not be a stockholder, a citizen of the United States, or a resident of the State of Delaware.

 

(b) Subject to the Certificate of Incorporation, the number of directors shall be fixed exclusively by resolution of the Board of Directors.

 

(c) Directors shall be elected by the stockholders at their annual meeting, and the term of each director so elected shall be as set forth in the Certificate of Incorporation. Directors need not be stockholders. The Board of Directors shall elect a Chairman of the Board, who shall have the powers and perform such duties as provided in these Bylaws and as the Board of Directors may from time to time prescribe.

 

(d) Directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.

 

(e) The Board of Directors shall have the authority to fix the compensation, including fees and reimbursement of expenses, of directors for services to the Corporation in any capacity.

 

Section 2.03 Quorum and Manner of Voting. Except as otherwise provided by law, a majority of the directors shall constitute a quorum. A majority of the directors present, whether or not a quorum is present, may adjourn a meeting from time to time to another time and place without notice. The vote of the majority of the directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.

 

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Section 2.04 Places of Meetings. Meetings of the Board of Directors may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Board of Directors, or as may be specified in the notice of meeting.

 

Section 2.05 Annual Meeting. Following the annual meeting of stockholders, the newly elected Board of Directors shall meet for the purpose of the election of officers and the transaction of such other business as may properly come before the meeting. Such meeting may be held without notice immediately after the annual meeting of stockholders at the same place at which such stockholders’ meeting is held.

 

Section 2.06 Regular Meetings. Regular meetings of the Board of Directors shall be held at such times and places as the Board of Directors shall determine from time to time. Notice need not be given of regular meetings of the Board of Directors held at times and places fixed by resolution of the Board of Directors.

 

Section 2.07 Special Meetings. Special meetings of the Board of Directors shall be held whenever called by the Chairman of the Board, the President, or by a majority of the directors then in office.

 

Section 2.08 Notice of Meetings. A notice of the place, date, and time and the purpose or purposes of each meeting of the Board of Directors shall be given to each director not less than one calendar day before the day of the meeting by mail, telephone, facsimile, e-mail, or by personal delivery.

 

Section 2.09 Organization. At all meetings of the Board of Directors, the Chairman, if any, or if none or in the Chairman’s absence or inability to act the President, or in the President’s absence or inability to act any Vice-President who is a member of the Board of Directors, or in such Vice-President’s absence or inability to act a chairman chosen by the directors, shall preside. The Secretary of the Corporation shall act as secretary at all meetings of the Board of Directors when present, and, in the Secretary’s absence, the presiding officer may appoint any person to act as secretary.

 

Section 2.10 Resignation; Removal. Any director may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation. Any or all of the directors may be removed, with or without cause, by the holders of a majority of the shares of stock outstanding and entitled to vote for the election of directors.

 

Section 2.11 Vacancies. Unless otherwise provided in these Bylaws, vacancies on the Board of Directors, whether caused by resignation, death, disqualification, removal, an increase in the authorized number of directors, or otherwise, may be filled by the affirmative vote of a majority of the remaining directors, although less than a quorum, or by a sole remaining director, or at a special meeting of the stockholders, by the holders of shares entitled to vote for the election of directors.

 

6

 

 

Section 2.12 Action by Written Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if all the directors consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board of Directors.

 

Section 2.13 Remote Meeting. Any one or more members of the Board of Directors may participate in a meeting of the Board of Directors or committee by means of a conference telephone call, videoconference, via electronic communications portals or similar means of communications which enable all persons participating in the meeting to hear each other.

 

ARTICLE III
Committees

 

Section 3.01 Appointment. From time to time the Board of Directors by a resolution adopted by a majority of the entire Board may appoint any committee or committees for any purpose or purposes, to the extent lawful, which shall have powers as shall be determined and specified by the Board of Directors in the resolution of appointment.

 

Section 3.02 Procedures, Quorum, and Manner of Acting. Each committee shall fix its own rules of procedure, and shall meet where and as provided by such rules or by resolution of the Board of Directors. Except as otherwise provided by law, the presence of a majority of the then-appointed members of a committee shall constitute a quorum for the transaction of business by that committee, and in every case where a quorum is present the affirmative vote of a majority of the members of the committee present shall be the act of the committee. Each committee shall keep minutes of its proceedings, and actions taken by a committee shall be reported to the Board of Directors.

 

Section 3.03 Action by Written Consent. Any action required or permitted to be taken at any meeting of any committee of the Board of Directors may be taken without a meeting if all the members of the committee consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the committee.

 

Section 3.04 Remote Meeting. Any one or more members of any committee of the Board of Directors may participate in a meeting of the Board of Directors or committee by means of a conference telephone call, videoconference, via electronic communications portals or similar means of communications which enable all persons participating in the meeting to hear each other.

 

Section 3.05 Term; Termination. In the event any person shall cease to be a director of the Corporation, such person shall simultaneously therewith cease to be a member of any committee appointed by the Board of Directors.

 

ARTICLE IV
OFFICERS

 

Section 4.01 Election and Qualifications. The Board of Directors shall elect the officers of the Corporation, which shall include a Chief Executive Officer, a President, a Chief Financial Officer and a Secretary, and may include, by election or appointment, one or more Vice-Presidents (any one or more of whom may be given an additional designation of rank or function), and such Assistant Secretaries, and such other officers as the Board may from time to time deem proper. Each officer shall have such powers and duties as may be prescribed by these Bylaws and as may be assigned by the Board of Directors or the President. Any number of offices may be held by the same person.

 

7

 

 

Section 4.01 Tenure and Removal. The officers of the Corporation shall be elected or appointed to hold office until their respective successors are elected or appointed. All officers shall hold office at the pleasure of the Board of Directors, and any officer elected or appointed by the Board of Directors may be removed at any time by the Board of Directors for cause or without cause at any regular or special meeting.

 

Section 4.02 Vacancies. Any vacancy occurring in any office of the Corporation, whether because of death, resignation or removal, with or without cause, or any other reason, shall be filled by the Board of Directors.

 

Section 4.03 Compensation. The salaries and other compensation of all officers and agents of the Corporation shall be fixed by or in the manner prescribed by the Board of Directors.

 

Section 4.04 Resignation. Any officer may resign at any time upon written notice to the Corporation and such resignation shall take effect upon receipt thereof by the President or Secretary, unless otherwise specified in the resignation.

 

Section 4.05 Chairman of the Board. The Chairman of the Board of Directors, if there be one, shall preside at all meetings of the Board of Directors and shall have such other powers and duties as may from time to time be assigned by the Board of Directors.

 

Section 4.06 Chief Executive Officer/President. The Chief Executive Officer, who shall also be the President, subject to the determination of the Board of Directors, shall have such duties as customarily pertain to that office and shall have such other powers and duties as may from time to time be assigned by the Board of Directors. The Chief Executive Officer may appoint and remove assistant officers and other agents and employees, and may execute and deliver in the name of the Corporation powers of attorney, contracts, bonds, and other obligations and instruments.

 

Section 4.07 Vice-President. A Vice-President may execute and deliver in the name of the Corporation contracts and other obligations and instruments pertaining to the regular course of the duties of said office and shall have such other authority as from time to time may be assigned by the Board of Directors or the President.

 

Section 4.08 Chief Financial Officer. The Chief Financial Officer shall in general have all duties incident to the position of Chief Financial Officer and such other duties as may be assigned by the Board of Directors or the President.

 

Section 4.09 Secretary. The Secretary shall in general have all the duties incident to the office of Secretary and such other duties as may be assigned by the Board of Directors or the President.

 

Section 4.10 Assistant Officers. Any assistant officer shall have such powers and duties of the officer such assistant officer assists as such officer or the Board of Directors shall from time to time prescribe.

 

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ARTICLE V
Books and records

 

Section 5.01 Location. The books and records of the Corporation may be kept at such place or places within or outside the State of Delaware as the Board of Directors or the respective officers in charge thereof may from time to time determine. The record books containing the names and addresses of all stockholders, the number and class of shares of stock held by each, and the dates when they respectively became the owners of record thereof shall be kept by the Secretary as prescribed in the Bylaws and by such officer or agent as shall be designated by the Board of Directors.

 

Section 5.02 Addresses of Stockholders. Notices of meetings and all other corporate notices may be delivered personally or mailed to each stockholder at the stockholder’s address as it appears on the records of the Corporation.

 

Section 5.03 Fixing Date for Determination of Stockholders of Record.

 

(a) So that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If no record date is fixed by the Board of Directors, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.

 

(b) So that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and if no record date has been fixed by the Board of Directors, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting, when no prior action by the Board of Directors is required, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in this State, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. If no record date has been fixed by the Board of Directors and prior action by the Board of Directors is required by this article, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board of Directors adopts the resolution taking such prior action.

 

9

 

 

(c) So that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion, or exchange of stock, or for the purpose of any other lawful action, the Board of Directors may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted and if no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board of Directors adopts the resolution relating thereto.

 

ARTICLE VI
certificates representing stock

 

Section 6.01 Certificates; Signatures. The shares of the Corporation shall be represented by certificates, or all of such shares shall be uncertificated shares that may be evidenced by a book entry system maintained by the Corporation, or a combination of both. If share shares are represented by certificates, such certificates shall be in the form approved by the Board of Directors. The certificates representing shares shall be signed by or in the name of the Corporation by the Chairman of the Board of Directors, or the President or any Vice-President, and by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary of the Corporation, representing the number of shares registered in certificate form. Any and all signatures on any such certificate may be facsimiles. In case any officer, transfer agent, or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent, or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if he were such officer, transfer agent, or registrar at the date of issue. The name of the holder of record of the shares represented thereby, with the number of such shares and the date of issue, shall be entered on the books of the Corporation.

 

Section 6.02 Transfers of Stock. Upon compliance with provisions restricting the transfer or registration of transfer of shares of stock, if any, shares of capital stock shall be transferable on the books of the Corporation only by the holder of record thereof in person, or by a duly authorized attorney, upon surrender and cancellation of certificates for a like number of shares, properly endorsed, and the payment of all taxes due thereon.

 

Section 6.03 Fractional Shares. The Corporation may, but shall not be required to, issue certificates for fractions of a share where necessary to effect authorized transactions, or the Corporation may pay in cash the fair value of fractions of a share as of the time when those entitled to receive such fractions are determined, or it may issue scrip in registered or bearer form over the manual or facsimile signature of an officer of the Corporation or of its agent, exchangeable as therein provided for full shares, but such scrip shall not entitle the holder to any rights of a stockholder except as therein provided.

 

The Board of Directors shall have power and authority to make all such rules and regulations as it may deem expedient concerning the issue, transfer, and registration of certificates representing shares of the Corporation.

 

Section 6.04 Lost, Stolen, or Destroyed Certificates. The Corporation may issue a new certificate of stock in place of any certificate, theretofore issued by it, alleged to have been lost, stolen, or destroyed, and the Board of Directors may require the owner of any lost, stolen, or destroyed certificate, or his legal representative, to give the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against it on account of the alleged loss, theft, or destruction of any such certificate or the issuance of any such new certificate.

 

10

 

 

ARTICLE VII
Dividends

 

Subject always to the provisions of law and the Certificate of Incorporation, the Board of Directors shall have full power to determine whether any, and, if any, what part of any, funds legally available for the payment of dividends shall be declared as dividends and paid to stockholders; the division of the whole or any part of such funds of the Corporation shall rest wholly within the lawful discretion of the Board of Directors, and it shall not be required at any time, against such discretion, to divide or pay any part of such funds among or to the stockholders as dividends or otherwise; and before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sum or sums as the Board of Directors from time to time, in its absolute discretion, deems proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Board of Directors shall think conducive to the interest of the Corporation, and the Board of Directors may modify or abolish any such reserve in the manner in which it was created.

 

ARTICLE VIII
Ratification

 

Any transaction, questioned in any lawsuit on the ground of lack of authority; defective or irregular execution; adverse interest of director, officer, or stockholder; non-disclosure; miscomputation; or the application of improper principles or practices of accounting, may be ratified before or after judgment, by the Board of Directors or by the stockholders, and if so ratified shall have the same force and effect as if the questioned transaction had been originally duly authorized. Such ratification shall be binding upon the Corporation and its stockholders and shall constitute a bar to any claim or execution of any judgment in respect of such questioned transaction.

 

ARTICLE IX
Corporate Seal

 

The corporation may have a corporate seal. The corporate seal, if any, shall have inscribed thereon the name of the Corporation and the year of its incorporation, and shall be in such form and contain such other words or figures as the Board of Directors shall determine. The corporate seal may be used by printing, engraving, lithographing, stamping, or otherwise making, placing, or affixing, or causing to be printed, engraved, lithographed, stamped, or otherwise made, placed, or affixed, upon any paper or document, by any process whatsoever, an impression, facsimile, or other reproduction of said corporate seal.

 

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ARTICLE X
Fiscal Year

 

The fiscal year of the Corporation shall be fixed, and shall be subject to change, by the Board of Directors. Unless otherwise fixed by the Board of Directors, the fiscal year of the Corporation shall end on December 31.

 

ARTICLE XI
Waiver of Notice

 

Whenever notice is required to be given by these Bylaws or by the Certificate of Incorporation or by law, a written waiver thereof, signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to notice.

 

ARTICLE XII
Bank Accounts, Drafts, Contracts, &c.

 

Section 12.01 Bank Accounts and Drafts. In addition to such bank accounts as may be authorized by the Board of Directors, the primary financial officer or any person designated by said primary financial officer, whether or not an employee of the Corporation, may authorize such bank accounts to be opened or maintained in the name and on behalf of the Corporation as he may deem necessary or appropriate, payments from such bank accounts to be made upon and according to the check of the Corporation in accordance with the written instructions of said primary financial officer, or other person so designated by the Treasurer.

 

Section 12.02 Contracts. The Board of Directors may authorize any person or persons, in the name and on behalf of the Corporation, to enter into or execute and deliver any and all deeds, bonds, mortgages, contracts, and other obligations or instruments, and such authority may be general or confined to specific instances.

 

Section 12.03 Proxies; Power of Attorney; Other Instruments. The Chairman, the President, or any other person designated by either of them shall have the power and authority to execute and deliver proxies, powers of attorney, and other instruments on behalf of the Corporation in connection with the rights and powers incident to the ownership of stock by the Corporation. The Chairman, the President, or any other person authorized by proxy or power of attorney executed and delivered by either of them on behalf of the Corporation may attend and vote at any meeting of stockholders of any company in which the Corporation may hold stock, and may exercise on behalf of the Corporation any and all of the rights and powers incident to the ownership of such stock at any such meeting, or otherwise as specified in the proxy or power of attorney so authorizing any such person. The Board of Directors, from time to time, may confer like powers upon any other person.

 

Section 12.04 Financial Reports. The Board of Directors may appoint the primary financial officer or other fiscal officer or the Secretary or any other officer to cause to be prepared and furnished to stockholders entitled thereto any special financial notice or financial statement, as the case may be, that may be required by any provision of law.

 

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ARTICLE XIII

INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHER PERSONS

 

The indemnification of directors, officers and other persons shall be as provided in the Certificate of Incorporation.

 

ARTICLE XIV
Amendments

 

The Board of Directors shall have the power to adopt, amend, or repeal these Bylaws. Bylaws adopted by the Board of Directors may be repealed or changed, and new Bylaws made, by the stockholders, and the stockholders may prescribe that any Bylaw made by them shall not be altered, amended or repealed by the Board of Directors.

 

* * * * *

 

 

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Exhibit 4.1

 

NUMBER

NUMBER

 

  C-
   
  SHARES
   
  SEE REVERSE FOR CERTAIN DEFINITIONS
   
  CUSIP 40619L 102

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

 

INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON STOCK

 

This Certifies that  is the owner of

 

FULLY PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.0001 EACH OF THE COMMON STOCK OF

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

(THE “CORPORATION”)

 

transferable on the books of the Corporation in person or by duly authorized attorney upon surrender of this certificate properly endorsed.

 

This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.

 

Witness the seal of the Corporation and the facsimile signatures of its duly authorized officers.

 

Secretary [Corporate Seal]
Delaware
President
     
     

 

     

 

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY

  

The Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof of the Corporation and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Certificate of Incorporation and all amendments thereto and resolutions of the Board of Directors providing for the issue of securities (copies of which may be obtained from the secretary of the Corporation), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:

 

TEN COM as tenants in common    UNIF GIFT MIN ACT    —   Custodian  
             
TEN ENT   as tenants by the entireties          (Cust) (Minor)  

  

JT TEN as joint tenants with right of survivorship and not as tenants in common   under Uniform Gifts to Minors Act
(State)

 

Additional abbreviations may also be used though not in the above list.

 

For value received, hereby sells, assigns and transfers unto

  

 

 

(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))

 

 

 

(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))

 

Shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitutes and appoints Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises.

 

Dated:

 

 

 

 

 

NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.

 

Signature(s) Guaranteed:

By

 

 

 

 

 

THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE).

 

 

2

 

 

Exhibit 4.2

 

Form of Warrant Certificate

 

[FACE]

 

Number 

Warrants

 

 

  

THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW

 

HALL OF FAME RESORT & ENTERTAINMENT COMPANY
Incorporated Under the Laws of the State of Delaware

 

CUSIP 40619L 110

 

Warrant Certificate

 

This Warrant Certificate certifies that , or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase shares of common stock, $0.0001 par value (“Common Stock”), of Hall of Fame Resort & Entertainment Company, a Delaware corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and non-assessable shares of Common Stock as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Each Warrant is initially exercisable for one fully paid and non-assessable share of Common Stock. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

The initial Exercise Price per share of Common Stock for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.

 

Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void.

 

Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.

 

This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement.

 

This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflicts of laws principles thereof.

 

     

 

 

  HALL OF FAME RESORT & ENTERTAINMENT COMPANY 
   
  By:                                
  Name:   
  Title:   
   
  CONTINENTAL STOCK TRANSFER 
  & TRUST COMPANY, as Warrant Agent 
   
  By:   
  Name:   
  Title:   

 

     

 

 

Form of Warrant Certificate

 

[Reverse]

 

The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to a Warrant Agreement dated as of January 24, 2018 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.

 

Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.

 

Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the shares of Common Stock is current, except through “cashless exercise” as provided for in the Warrant Agreement.

 

The Warrant Agreement provides that upon the occurrence of certain events the number of shares of Common Stock issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.

 

Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.

 

Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.

 

The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a stockholder of the Company.

  

     

 

 

Election to Purchase

 

(To Be Executed Upon Exercise of Warrant)

 

The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Hall of Fame Resort & Entertainment Company (the “Company”) in the amount of $ in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of , whose address is and that such shares of Common Stock be delivered to whose address is . If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of , whose address is and that such Warrant Certificate be delivered to , whose address is .

 

In the event that the Warrant has been called for redemption by the Company pursuant to Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.3 of the Warrant Agreement.

 

In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.

 

In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.

 

In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of shares of Common Stock that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive shares of Common Stock. If said number of shares is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of , whose address is and that such Warrant Certificate be delivered to , whose address is .

 

[Signature Page Follows]

  

     

 

 

Date: , 20   
  (Signature) 
   
   
   
   
  (Address) 
   
   
  (Tax Identification Number) 
   
   
Signature Guaranteed:   
   
   

 

THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE)).

 

 

 

 

Exhibit 10.5

 

EXECUTION VERSION

EMPLOYMENT agreement

 

This Employment Agreement (this “Agreement”) is made and entered into by and between HOF Village Newco, LLC (“HOF Newco”) and GPAQ Acquisition Holdings, Inc., to be renamed Hall of Fame Resort & Entertainment Company as of the Effective Date (defined below) (“Hall of Fame Resort”) (Hall of Fame Resort, together with HOF Newco, the “Company”), on the one hand, and Michael Crawford (the “Executive”), on the other hand, and shall be effective on the Effective Date.

 

RECITALS

 

1. The Executive is currently engaged as the Chief Executive Officer of HOF Village, LLC, a Delaware limited liability company (“HOF Village”) pursuant to the Services Agreement between Executive and HOF Village dated December 6, 2019 (the “Services Agreement”).

 

2. Pursuant to the transactions set forth in that certain Agreement and Plan of Merger dated as of eptember 16, 2019, by and among Gordon Pointe Acquisition Corp, GPAQ Acquisition Holdings, Inc., GPAQ Acquiror Merger Sub, Inc., GPAQ Company Merger Sub, LLC, HOF Village, and the Company, among other things, the assets and operations of HOF Village will be transferred to the Company, and the Company will merge with GPAQ Company Merger Sub, with the Company continuing as the surviving entity in the merger (the “Transaction”).

 

3. The Company desires to employ the Executive, and the Executive desires to be employed by the Company, on the terms and subject to the conditions set forth herein.

 

4. The Executive’s execution of this Agreement, which will take effect on the date on which the consummation of the Transaction occurs (the “Effective Date”), is a condition to the consummation of the Transaction.

 

5. The Executive is willing to enter into this Agreement in consideration of the terms, conditions, and benefits that the Executive will receive under the terms hereof, and the Company is willing to enter into this Agreement in consideration of the promises and covenants by Executive contained herein.

 

AGREEMENTS

 

In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

 

1. EMPLOYMENT OF EXECUTIVE.

 

1.1. Duties and Status. HOF Newco and Hall of Fame Resort hereby engage the Executive as President and Chief Executive Officer for the Employment Period, as defined in Section 3.1 hereof, and the Executive accepts such employment, on the terms and subject to the conditions set forth in this Agreement. The Executive shall faithfully exercise in good faith such authority and perform such duties on behalf of the Company that are typically associated with such positions and all other duties that may be assigned to the Executive by the Company’s Board of Directors (the “Board”) from time to time.

 

 

 

1.2. Time and Effort. During the Employment Period, the Executive shall devote the Executive’s entire working time, energy, and efforts to the performance of the Executive’s duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company. Notwithstanding the foregoing, this Section 1.2 shall not be interpreted to prohibit the Executive from making personal investments of time that do not require more than a de minimis time commitment, performing charitable or civic acts or services or serving on the board of a non-profit organization, or conducting private business affairs if those activities do not materially interfere with the services required under this Agreement or violate the provisions of Section 4.

 

2. COMPENSATION AND BENEFITS.

 

2.1. Annual Base Salary. For all of the services rendered by the Executive to the Company during the Employment Period, the Company shall pay the Executive an annual base salary (“Annual Base Salary”) equal to $800,000.00 through December 31, 2020 and $850,000.00 from January 1, 2021 through December 31, 2021. For any years thereafter during the Employment Period, the Annual Base Salary shall be at least $850,000.00 and shall be determined by the Compensation Committee of the Board based on the Company’s and the Executive’s achievement of performance metrics as agreed-upon in writing by the Executive and the Compensation Committee of the Board. The Annual Base Salary shall be pro-rated for any partial year of employment. The Annual Base Salary shall be payable in accordance with the practice of the Company in effect from time to time for the payment of salaries to employees of the Company and shall be subject to applicable withholdings and deductions.

 

2.2. Closing Bonus. The Company shall pay the Executive a Closing Bonus of $400,000.00, less applicable withholdings and deductions. The Closing Bonus shall be paid in three installments as follows: (1) $100,000.00, less applicable withholdings and deductions, on or before July 15, 2020; (2) $100,000.00, less applicable withholdings and deductions, on or before September 30, 2020; and (3) $200,000.00, less applicable withholdings and deductions, on or before December 31, 2020.

 

2.3. Annual Bonus. For the calendar year beginning January 1, 2020 and for each subsequent calendar year during the Employment Period thereafter, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”). The target for the Annual Bonus opportunity for each calendar year shall be 100% of the Executive’s Annual Base Salary for each such calendar year. Each Annual Bonus shall be payable based on the Company’s achievement of performance metrics as agreed-upon by the Executive and the Compensation Committee of the Board for each calendar year, such performance targets to be agreed in writing by Executive and approved by the Compensation Committee prior to February 15 of each year; provided, however, that the Executive’s Annual Bonus for calendar year 2020 shall not be less than $400,000 and provided further that the Executive’s Annual Base Salary (including the salary paid to the Executive by HOF Village from January 1, 2020 through the Effective Date) and Annual Bonus for calendar year 2020 shall not exceed $1,500,000.00 unless the Board approves otherwise. Each Annual Bonus shall be paid in a single cash payment and shall be paid no later than March 15 of the year after the calendar year for which the Annual Bonus is earned. To earn and be entitled to the Annual Bonus for any given calendar year, (a) the Executive must have been employed by the Company continuously throughout the calendar year for which the Annual Bonus is earned; (b) the Executive must not have been terminated by the Company for Cause after the end of the applicable calendar year but before the Annual Bonus is paid; and (c) the Executive must not have ended Executive’s employment with the Company without Good Reason (as defined below) after the end of the applicable calendar year but before the Annual Bonus is paid.

 

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2.4. Common Stock Award. The Executive shall be granted shares of Hall of Fame Resort common stock (each such grant, a “Stock Award”) in accordance with this Section 2.4.

 

(a) On the Effective Date, the Executive shall receive a Stock Award for the number of whole shares of Hall of Fame Resort common stock that most nearly equals 2.25% of the outstanding shares of Hall of Fame Resort common stock on the Effective Date.

 

(b) The Stock Award shall be evidenced by an award agreement between Hall of Fame Resort and the Executive. The award agreement shall provide that the Executive’s rights in the Stock Award shall be vested and transferable in three (3) equal or nearly equal installments on (1) the Effective Date, (2) the first anniversary of the Effective Date, and (3) the second anniversary of the Effective Date, if the Executive remains in the continuous employ or service of the Company or an affiliate of the Company from the Effective Date until the applicable vesting date. The award agreement shall provide that any Stock Awards that have not vested on or before the date the Executive ceases to be an employee of, or providing services to, the Company or an affiliate shall be forfeited on the date that such employment or services ends for any reason.

 

2.5. Benefits. The Executive shall be entitled to participate in such benefit plans including, without limitation, any and all retirement, disability, group life, sickness, accident, vision, dental, and health insurance programs, as the Company may provide from time to time to its employees generally.

 

2.6. Vacation. The Executive shall be entitled to 25 days of paid vacation per calendar year. Unused vacation days for a particular calendar year shall roll over to, and be available for Executive’s use during, the first quarter of the following calendar year, and any such carry-over vacation days not used by the Executive during the first quarter of the following calendar year shall be paid out as compensation to the Executive on the first regularly-scheduled payroll date following the end of the applicable first quarter. Any unused vacation as of the Termination Date will not be paid out upon termination of the Executive’s employment by either party for any reason.

 

2.7. Vehicle Allowance. Upon presentation of an appropriate receipt or such other supporting information as the Company may require, the Company shall reimburse the Executive for the lease expense for a vehicle with a retail value of up to $70,000.00. Executive shall be solely responsible for any tax consequences associated with his receipt of the vehicle allowance payments under this Section 2.7.

 

2.8. Expenses. Subject to, and in accordance with, such policies as may, from time to time, be established by the Company, the Company shall pay or reimburse the Executive for all reasonable expenses actually incurred or paid by the Executive in the furtherance of or in connection with the performance of the Executive’s duties under this Agreement, upon presentation of expense statements or vouchers or such other supporting information as the Company may reasonably require.

 

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3. TERM AND TERMINATION.

 

3.1. Employment Period. Subject to Section 3.2 hereof, the Executive’s employment under this Agreement (the “Employment Period”) shall commence on the Effective Date and shall terminate on the earlier of: (a) December 31, 2022 (such period, the “Initial Term”); provided, however, that on December 31, 2022 and December 31st of each year thereafter, the term shall automatically renew for successive 12-month periods unless either party provides written notice of non-renewal to the other party at least 90 days in advance of the expiration of the Initial Term or the then-current 12-month period (the Initial Term, as may be automatically extended as provided herein, the “Term”); or (b) termination of this Agreement and the Executive’s employment pursuant to Section 3.2 hereof. The Company and the Executive agree that, in the event that the Term is automatically renewed pursuant to Section 3.1(a), the parties will, at the request of either party during the 90-day period before the expiration of the then-current Term, negotiate in good faith over modifications to this Agreement to be applicable, if agreed to, during the 12-month period following the expiration of the then-current Term.

 

3.2. Termination of Employment. Each party shall have the right to terminate this Agreement and the Executive’s employment hereunder before the Term expires as permitted by this Section 3.2.

 

(a) By the Company.

 

(i) For Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder at any time upon delivery of written notice of termination for Cause (as defined below) to the Executive by the Company, such employment to terminate immediately upon delivery of such notice for a termination under 3.2(a)(i)(A) or (B), unless otherwise specified in such notice, or upon expiration of the notice and cure period described herein for a termination under 3.2(a)(i)(C) or (D). As used herein, “Cause” means that the Board has determined that the Executive: (A) has misappropriated, stolen, or embezzled funds or property from the Company or, without the permission of the Board, secured or attempted to secure personally any profit in connection with any transaction entered into on behalf of the Company; (B) has been charged with a felony which in the reasonable opinion of the Board brings the Executive into disrepute or is likely to cause material harm to the Company’s business, customer, or supplier relations, financial condition, prospects, or reputation; (C) has failed to perform the Executive’s duties to the Company in a manner reasonably satisfactory to the Board; or (D) has violated or breached any provision of this Agreement, any Company policy or written code of conduct, or any law or regulation, where, in the reasonable opinion of the Board, such violation or breach is to the material detriment of the Company or its business. A termination by the Company shall not be for Cause under Section 3.2(a)(i)(C) or (D) unless: (1) the Board gives the Executive written notice specifying the event or condition that the Board asserts authorizes termination for Cause under Section 3.2(a)(i)(C) or (D) and (2) during the 30 days following receipt of such notice, the Executive fails to remedy or cure the event or condition if such event or condition can be cured. Any termination of employment pursuant to this Section 3.2(a)(i) shall entitle the Executive to receive only the payments referred to in Section 3.3(a) hereof.

 

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(ii) Without Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder without Cause after 60 days’ prior written notice by the Company to the Executive. Any termination of employment pursuant to this Section 3.2(a)(ii) shall entitle the Executive to receive the payments referred to in Section 3.3(a) and (b) hereof.

 

(iii) Upon Total Disability. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder upon 30 days’ prior written notice to the Executive if the Board determines that the Executive is unable to perform the Executive’s duties by reason of Total Disability. As used herein, “Total Disability” shall mean the inability of the Executive, due to physical or mental illness or injury, and with the benefit of any reasonable accommodation requested by and provided to the Executive, to perform the Executive’s essential duties hereunder for any period of 90 consecutive days.  The return of the Executive to the Executive’s duties for periods of 30 days or less shall not interrupt such 90 day period. Upon any termination of employment pursuant to this Section 3.2(a)(iii), the Executive shall only be entitled to receive the payments referred to in Section 3.3(a) hereof.

 

(b) By the Executive.

 

(i) For Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder for Good Reason, such employment to terminate upon expiration of the notice and cure period described herein. As used herein, “Good Reason” shall mean: (A) any material failure by the Company to comply with any provision of this Agreement; (B) the relocation of the Executive’s principal place of employment to a location that is more than 50 miles from Canton, Ohio; or (C) substantial interference with the day to day operations of the Company by a director of the Company (or such director’s employer or affiliate) that is inconsistent with formal actions taken by the Board or that impairs the Executive’s ability to deliver agreed upon results for the Company. A termination by the Executive shall not be for Good Reason unless: (1) the Executive gives the Board written notice specifying the event or condition that the Executive asserts authorizes termination for Good Reason; (2) the Executive did not cause the event or condition that Executive asserts authorizes Executive’s termination for Good Reason or knowingly allow such event or condition to occur; (3) such notice is given no more than 30 days after the occurrence of the event or the initial existence of the condition that Executive asserts authorizes termination for Good Reason; (4) during the 30 days following receipt of such notice, the Company and/or the Board fail to remedy or cure the event or condition; and (5) Executive terminates Executive’s employment within 30 days after the end of such cure period. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i)(A) or (B) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (b) hereof. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i)(C) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (c) hereof.

 

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(ii) Without Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder without Good Reason after 60 days’ prior written notice by the Executive to the Board. If the Executive gives 60 days’ notice of termination without Good Reason under this Section 3.2(b)(ii), the Board in its sole discretion can elect to make the Executive’s resignation of his employment effective immediately at any time during the 60-day notice period, and any such termination by the Board shall not convert Executive’s resignation into a termination by the Company without Cause. In the event the Executive elects to terminate his employment pursuant to Section 3.2(b)(ii), the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

(c) By Expiration of Agreement. This Agreement and the Executive’s employment hereunder shall terminate upon the date of the expiration of the then-current Term in the event either party elects not to renew the then-current Term pursuant to Section 3.1. In the event the employment of the Executive is terminated by the expiration of the then-current Term, the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

(d) Death of Executive. This Agreement and the Executive’s employment hereunder shall terminate upon the death of the Executive. In such an event, the Executive’s surviving spouse, or if none, the Executive’s estate shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

3.3. Compensation and Benefits Following Termination. Except as specifically provided in this Section 3.3, any and all obligations of the Company to make payments to the Executive under this Agreement shall cease as of the date the Employment Period expires under Section 3.1 or as of the date the Executive’s employment is terminated under Section 3.2, as the case may be (either such date, the “Termination Date”). From the date of any notice of termination through the Termination Date (to the extent they are different), the Executive shall continue to perform the normal duties of the Executive’s employment hereunder (unless waived by the Company) and shall be entitled to receive when due all compensation and benefits applicable to the Executive hereunder.

 

(a) Standard Termination Payments. In the event that the Executive’s employment terminates for any reason under any provision in Section 3.2, the Company shall, within the period prescribed by applicable State law but no later than 30 days after the Termination Date, pay the Standard Termination Payments (as defined below) to the Executive or, in the case of termination pursuant to Section 3.2(d) on account of the death of the Executive, to the Executive’s spouse or estate as appropriate. For purposes of this Section 3.3, “Standard Termination Payments” shall mean (i) a lump-sum amount equal to the sum of the Executive’s earned and unpaid Annual Base Salary through the Termination Date and (ii) any unreimbursed business and entertainment expenses that are reimbursable through the Termination Date. Moreover, for any such termination, the Executive shall be entitled to receive any vested benefits to which the Executive has a right under the Company’s benefit plans and programs, including without limitation continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, which benefits will be provided in accordance with the applicable plan terms.

 

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(b) By Company Without Cause under Section 3.2(a)(ii) or by Executive for Good Reason Under Section 3.2(b)(i)(A) or (B). In the event that the Company elects to terminate this Agreement and the Executive’s employment hereunder without Cause under Section 3.2(a)(ii) or the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i)(A) or (B), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall: (i) pay the Executive a severance payment in the amount of $850,000.00, less applicable deductions and withholdings, payable in a single lump-sum payment within 10 days after the date that the release described in Section 3.4 becomes effective and irrevocable and (ii) subject to the Executive’s timely election of continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”) and the Executive’s copayment of premiums associated with such coverage, reimburse the Executive, on a monthly basis, for the excess of the premium for himself and his covered dependents over the amount paid by active employees for the same coverage during the period from the Termination Date through the 12-month anniversary of such date, or such earlier date on which COBRA coverage for the Executive and his covered dependents terminates in accordance with COBRA.

 

(c) By Executive for Good Reason Under Section 3.2(b)(i)(C). In the event that the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i)(C), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall pay the Executive a severance payment in the amount of $2,000,000.00, less applicable deductions and withholdings, payable in a single lump-sum payment within 10 days after the date that the release described in Section 3.4 becomes effective and irrevocable.

 

3.4. Release. The Company will have no obligation to the Executive under Section 3.3(b) or (c) unless the Executive has executed, on or after the Termination Date, and delivered to the Company, on or before the 50th day following the Termination Date, an effective and irrevocable general release and waiver of claims that releases the Company and all of its related entities, affiliates, investors, owners, and employees from, and promises not to sue them for, all claims and liabilities arising on or before the date the Executive signs the release, including claims related to the Executive’s employment with and separation from the Company, in the form of Exhibit A attached hereto with such changes as may be necessary under applicable law or as agreed to by the parties.

 

3.5. Resignation. Upon termination of the Executive’s employment for any reason by either party, the Executive hereby agrees that the Executive shall automatically be treated as having resigned from any offices or positions related to the Company or any of its affiliates.

 

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4. RESTRICTIVE COVENANTS.

 

4.1. Recitals. While employed with the Company, the Executive will be employed in a position of trust and confidence, and as a result, the Executive will be provided with the Company’s trade secrets and confidential or proprietary information, including but not limited to information related to (a) reports, pricing, selling, purchasing, and pricing procedures, and financing methods of the Company, and any specific and proprietary techniques utilized by the Company in designing, developing, testing, or marketing its products or in performing services for clients, customers, and accounts of the Company; (b) the business plans and financial statements, reports, and projections of the Company; (c) identities, addresses, contact persons, purchasing habits, and all other information related to the Company’s customers, clients, and investors, purchasers, lenders, or any other confidential information relating to or dealing with the business operations or activities of the Company; and (d) information concerning the licenses, permits, or other authorizations relevant to the Company’s business, made known to the Executive or acquired by the Executive in the course of the Executive’s employment at the Company (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or materials (a) that was or becomes generally available to the public other than as a result of breach of this Agreement by the Executive or (b) which the Executive had in his possession prior to disclosure by the Company or receives from a third party who, to the Executive’s knowledge, is not bound by a duty of confidentiality to the Company. The Executive acknowledges that the Company takes reasonable steps to protect its Confidential Information and to prevent disclosure of its Confidential Information to the public. Moreover, the Executive acknowledges that during Executive’s employment with the Company, the Executive will be put in a position of trust and confidence with the Company’s customers, employees, and consultants. The Executive agrees and acknowledges, therefore, that it is fair and reasonable for the Company to take steps necessary to protect its Confidential Information; protect against the risk of misappropriation of such Confidential Information; and protect the Company’s relationship with its customers, employees, and consultants.

 

4.2. Non-Recruitment. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of twelve (12) months after the Executive’s employment with the Company is terminated by either party for any reason: (a) directly or indirectly hire, induce, or solicit (or assist any person or entity to hire, induce, or solicit) for employment any person who is, or within twelve (12) months prior to the date of such hiring, inducement, or solicitation was, an employee of the Company or (b) induce or solicit (or assist any person or entity to induce or solicit) any person who is an employee of the Company to terminate his/her employment relationship with the Company. The foregoing does not apply to any employee who responds to any general public advertisement by the Executive or is referred by an employment agency, so long as the advertisement or agency search was not directed towards any such employee or group of employees of the Company.

 

4.3. Non-Competition. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of six (6) months after the Executive’s employment with the Company is terminated by either party for any reason, engage in Competition with the Company. In the event termination is pursuant to 3.2(b)(i) and the Company pays the amount prescribed in Section 3.2(b)(i) then the restricted period in the prior sentence shall be extended to twelve (12) months after such termination. “Competition” for purposes of this Section 4.3 shall mean owning, operating, or otherwise providing services to a pro sports themed destination resort that includes entertainment and media components.

 

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4.4. Confidential Information. This covenant is independent of, and in addition to, those set forth above.

 

(a) To protect the Company’s Confidential Information, the Executive hereby covenants and agrees that the Executive will at all times hold the Confidential Information in confidence, will take all reasonable and necessary measures to prevent the disclosure of the Confidential Information, and will not use or disclose any Confidential Information, except for the benefit of the Company and to authorized representatives of the Company, to professional advisors (including without limitation attorneys, accountants, and financial advisors), or except as required by any governmental, regulatory, or judicial authority.

 

(b) The Executive acknowledges that all Confidential Information are and shall remain the sole, exclusive, and valuable property of the Company and that the Executive has and shall acquire no right, title, or interest therein. Any and all printed, typed, written, or other material that the Executive may have or obtain with respect to Confidential Information shall be and remain the exclusive property of the Company, and any and all material (including any copies) shall, upon request of the Board, be promptly delivered by the Executive to the Company.

 

(c) If the Executive becomes compelled by law, by regulatory or judicial process or by any other proceeding to make any disclosure that is prohibited by this Section 4.4, the Executive shall, to the extent legally permissible, provide the Board with prompt notice of such compulsion so that the Company may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 4.4. In the absence of a protective order or other remedy, the Executive may disclose that portion (and only that portion) of the Confidential Information that, based upon the opinion of the Executive’s counsel, the Executive is legally compelled to disclose; provided, however, that the Executive shall use commercially reasonable efforts to obtain written assurance that any person to whom any Confidential Information is so disclosed shall accord confidential treatment to such Confidential Information.

 

(d) Nothing in this Agreement prohibits Executive from (i) disclosing Confidential Information in confidence to a Federal, State, or local government official or law enforcement, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law; (ii) cooperating with any government investigation, making a truthful statement or complaint to law enforcement or a government agency, or testifying under oath to law enforcement or a government agency; or (iii) disclosing Confidential Information in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Moreover, if Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, Executive may disclose a Company trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

 

4.5. Scope and Reasonableness.

 

(a) The parties agree that it is not their intention to violate any public policy, rule of public order, or statutory or common law. The parties intend that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If any provision of this Agreement is found by a court to be unenforceable, the parties authorize the court to amend or modify the provision to make it enforceable in the most restrictive fashion permitted by law.

 

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(b) The Executive acknowledges that the restrictions contained in this Section 4, in view of the nature of the business in which the Company is engaged and in view of the Confidential Information to which the Executive will be exposed, are reasonable and necessary in order to protect the Confidential Information of the Company and the Company’s relationships with its customers, employees, and consultants, and that any violation thereof would result in irreparable injuries to the Company, and the Executive therefore acknowledges that, in the event of the Executive’s violation of any of these restrictions, the Company shall be entitled to seek from any court of competent jurisdiction (in any jurisdiction) preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits, and other rights or remedies to which the Company may be entitled. Notwithstanding the foregoing to the contrary, under no circumstances shall the Executive be liable for special, consequential, or punitive damages for any breach of this Agreement or otherwise. If the Executive violates any of the restrictions contained in the foregoing Sections 4.2 or 4.3, the restricted periods shall not run in favor of the Executive from the time of the commencement of any such violation until such violation shall be cured by the Executive to the reasonable satisfaction of Company.

 

4.6. Survival. Any provision of this Agreement to the contrary notwithstanding, if this Agreement is terminated for any reason, the provisions and covenants of this Section 4 shall nevertheless remain in full force and effect in accordance with their respective terms.

 

5. MISCELLANEOUS.

 

5.1. Code Section 409A.

 

(a) This Agreement and the amounts payable and other benefits provided under this Agreement are intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code (“Section 409A”), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12). This Agreement shall be administered, interpreted and construed in a manner consistent with the requirements and exemptions under Section 409A. If any provision of this Agreement is found not to comply with, or otherwise not be exempt from, the provisions of Section 409A, it shall be modified and given effect, in the sole reasonable discretion of the Employer and without requiring the Executive’s consent, in such manner as the Employer reasonably determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A; provided, however, that in exercising its discretion, the Employer shall modify this Agreement in the least restrictive manner necessary and provided further that the Employer have no obligation to indemnify the Executive or hold the Executive harmless from any adverse tax consequences related to any failure to comply with Section 409A. Each payment under this Agreement shall be treated as a separate identified payment for purposes of Section 409A.

 

(b) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive, as provided under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following limitations: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Internal Revenue Code; (ii) the reimbursement of an eligible expense shall be made as specified in this Agreement and in accordance with Employer’s normal reimbursement procedures for senior management, and (iii) the right to reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit.

 

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(c) If a payment obligation under this Agreement arises on account of the Executive’s termination of his employment and such payment obligation constitutes “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12)), it shall be payable only after the Executive’s “separation from service” (as defined under Treasury Regulation section 1.409A-1(h)); provided, however, that if the Executive is a “specified employee” (as defined under Treasury Regulation section 1.409A-1(i)), any such payment obligation that is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid on the first day of the seventh month beginning after the date of the Executive’s separation from service or, if earlier, within fifteen days after the appointment of the personal representative or executor of the Executive’s estate following the Executive’s death.

 

5.2. Applicable Law. This Agreement shall be construed and interpreted according to the laws of the State of Ohio, without regard to the conflicts of law rules thereof.

 

5.3. Headings. The headings and captions set forth herein are for convenience of reference only and shall not affect the construction or interpretation hereof.

 

5.4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of successors and permitted assigns of the parties. This Agreement may not be assigned, nor may performance of any duty hereunder be delegated, by either party without the prior written consent of the other; provided, however, the Company may assign this Agreement to any successor to its business or to any affiliate.

 

5.5. Entire Agreement; Termination of Services Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no other contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants not specifically referred to or contained herein. This Agreement specifically supersedes any and all prior agreements and understandings of the parties with respect to the subject matter hereof (including but not limited to the Services Agreement), all of which prior agreements and understandings (including but not limited to the Services Agreement) are hereby terminated and of no further force and effect. Moreover, this Agreement supersedes and replaces the Services Agreement.

 

5.6. Amendments. This Agreement may be amended, modified, or terminated only by a written instrument signed by the parties hereto.

 

5.7. Waiver. The Company’s failure to enforce any provision or provisions in this Agreement shall not in any way be construed as a waiver of any provision or provisions of this Agreement, or prevent the Company from thereafter enforcing each and every provision of this Agreement.

 

5.8. Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. This Agreement may be delivered by facsimile transmission or email attachment of an originally executed copy.

 

5.9. Severability. If any section, provision, clause or part of this Agreement, or the applications thereof under certain circumstances, is held invalid or unenforceable for any reason, the remainder of this Agreement, or the application of such section, provision, clause or part under other circumstances, shall not be affected thereby.

 

5.10. Incorporation of Recitals. The Recitals to this Agreement are an integral part of, and by this reference are hereby incorporated into, this Agreement.

 

5.11. Withholdings. Each payment of compensation or benefits to or on behalf of the Executive under this Agreement shall be reduced by authorized deductions.

 

[Signatures on Following Page]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates below.

 

  HOF Village Newco, LLC
     
  By: /s/ Jason Krom
     
  Name:  Jason Krom
     
  Title: Chief Financial Officer
     
  Date: July 1, 2020
     
     
  GPAQ Acquisition Holdings, Inc.
     
  By: /s/ James J. Dolan
     
  Name: James J. Dolan
     
  Title: Chairman & CEO
     
  Date: July 1, 2020
     
     
  MICHAEL CRAWFORD
   
  /s/ Michael Crawford
  Michael Crawford, Individually
   
  Date: July 1, 2020

 

[Signature Page to Crawford Employment Agreement]

 

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Exhibit A

 

Form of Release

 

GENERAL RELEASE AND WAIVER

 

THIS GENERAL RELEASE AND WAIVER (this “Release”) is entered into by and between [___] (the “Company”) and [●] (the “Executive”). The Company and the Executive hereby agree as follows:

 

1. Employment Status. The Executive’s employment with the Company terminated effective as of [•].

 

2. Payment. The Company shall provide the Executive with the consideration specified in and subject to the provisions of [Section 3.3(b) or Section 3.3(c)] of the Employment Agreement dated as of [●], by and between the Company and the Executive (the “Employment Agreement”); provided, that such payment is subject to certain terms and conditions, including without limitation this Release becoming effective, as provided in the Employment Agreement.

 

3. No Liability. This Release does not constitute an admission by any of the Company Releasees (as defined below) of any unlawful acts or of any violation of federal, state, or local laws.

 

4. Release. In consideration of the benefits set forth in the Employment Agreement, the Executive, for the Executive, the Executive’s heirs, administrators, representatives, executors, successors, and assigns (collectively, the “Executive Releasors”), hereby irrevocably and unconditionally releases, acquits, and forever discharges the Company and its current and former parents, affiliates, subsidiaries, divisions, successors, assigns, trustees, officers, directors, partners, shareholders, agents, parents, employees, including without limitation all persons acting by, through, under, or in concert with any of them (collectively, the “Company Releasees”) from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and costs) of any nature whatsoever, known or unknown, whether in law or equity and whether arising under federal, state, or local law that the Executive Releasors had, now have, or may hereafter claim to have had against each or any of the Company Releasees by reason of any matter, cause, or thing occurring, done, or omitted to be done on or before the date of Executive’s execution of this Release. Without limitation, this Release includes a knowing and voluntary waiver of any and all rights, claims, and causes of action for discrimination based upon race, color, ethnicity, sex, national origin, religion, disability, and age (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, and any other federal, state, or local anti-discrimination law) or any other unlawful criterion or circumstance. Executive is not waiving or releasing any claims that may arise after the date that the Executive executes this Release. Moreover, Executive is not waiving or releasing his right to receive the Standard Termination Payments in the Employment Agreement. This Release does not cover the Executive’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company Releasees (with the understanding that any such filing or participation does not give the Executive the right to recover any monetary damages against the Company Releasees; the Executive’s release of claims herein bars the Executive from recovering such monetary relief from the Company Releasees).

 

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In addition, for purposes of this Release, the Executive represents that the Executive is not aware of any claims against the Company Releasees.

 

5. Restrictive Covenants. The Executive expressly acknowledges and agrees that Executive will continue to be bound by the obligations set forth in Section 4 of the Employment Agreement for the periods set forth therein.

 

6. Company Property. By signing this Release, the Executive acknowledges that the Executive has returned to the Company all originals and copies of Company documents and all Company property, including without limitation, keys, computer files, diskettes, database information, client information, sales documents, financial statements, budgets and forecasts, and any similar information. The Executive further represents that the Executive has left intact all of the Company’s electronic files, including those that Executive developed or helped develop during the Executive’s employment with the Company.

 

7. Bar. The Executive acknowledges and agrees that, if the Executive should hereafter make any claim or demand or commence or threaten to commence any action, claim, or proceeding against the Company Releasees with respect to any cause, matter, or thing which is the subject of the release under Paragraph 4 of this Release, this Release may be raised as a complete bar to any such action, claim, or proceeding, and the applicable Company Releasee may recover from the Executive all expenses and costs incurred in connection with such action, claim, or proceeding, including attorneys’ fees.

 

8. Non-Disparagement. The Executive agrees not to make any statement, oral or written, that would reasonably be considered disparaging of the Company, its programs, or its services, or any of the Company Releasees.

 

9. Governing Law; Interpretation. This Release shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the conflicts of law rules thereof. If for any reason any part of this Release shall be determined to be unenforceable, the remaining terms and conditions shall be enforced to the fullest extent possible.

 

10. Acknowledgments. The Executive acknowledges that the Executive has been advised in writing to consult with an attorney before signing this Agreement. The Executive further acknowledges that the Executive has been given sufficient time to review this Release, the Executive has read and fully understands its provisions, the Executive voluntarily accepts its terms, and the Executive has a period of twenty-one (21) days in which to consider entering into this Release. If the Executive executes the Release in less than twenty-one (21) days, the Executive acknowledges that the Executive is doing so voluntarily and that the Executive is waiving the Executive’s right to the full twenty-one (21) days to consider the Release.

 

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11. Revocation. The Executive has a period of seven (7) days following the execution of this Release during which the Executive may revoke this Release, and this Release shall not become effective or enforceable until such revocation period has expired.

 

12. Counterparts. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original. This Release may be delivered by facsimile transmission or email attachment of an originally executed copy.

 

THE UNDERSIGNED HAVE CAREFULLY READ THIS RELEASE; THEY KNOW AND UNDERSTAND ITS TERMS; THEY FREELY AND VOLUNTARILY AGREE TO ABIDE BY ITS TERMS; AND THEY HAVE NOT BEEN COERCED INTO SIGNING THIS AGREEMENT.

 

   
[____]  
   
   
Date  
   
[___]  
   
By:    
   
Title:    
   
   
Date  

 

 

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Exhibit 10.6

 

EMPLOYMENT agreement

 

This Employment Agreement (this “Agreement”) is made and entered into by and between HOF Village, LLC (the “Company”), a Delaware limited liability company, and Michael Levy (the “Executive”) and shall be effective on the Effective Date (defined below).

 

RECITALS

 

A. The Company desires to employ the Executive on and after the Effective Date, and the Executive desires to be employed by the Company on and after the Effective Date, all on the terms and subject to the conditions set forth herein.

 

B. The Executive is willing to enter into this Agreement in consideration of the terms, conditions, and benefits that the Executive will receive under the terms hereof, and the Company is willing to enter into this Agreement in consideration of the promises and covenants by Executive contained herein.

 

AGREEMENT

 

In consideration of the mutual covenants contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

 

1. ROLE OF EXECUTIVE.

 

1.1. Duties and Status. The Company hereby engages the Executive as President of Operations for the Employment Period, as defined in Section 3.1 hereof, and the Executive accepts such employment, on the terms and subject to the conditions set forth in this Agreement. The Executive shall faithfully exercise in good faith such authority and perform such duties on behalf of the Company that are typically associated with such position and all other duties that may be assigned to the Executive by the Company’s Chief Executive Officer (“CEO”) and/or Board of Directors (“Board”) from time to time.

 

1.2. Time and Effort. During the Employment Period, the Executive shall devote the Executive’s entire working time, energy, and efforts to the performance of the Executive’s duties hereunder in a manner that will faithfully and diligently further the business and interests of the Company. Notwithstanding the foregoing, this Section 1.2 shall not be interpreted to prohibit the Executive from making personal investments of time that do not require more than a de minimis time commitment, performing charitable or civic acts or services or serving on the board of a non-profit organization, or conducting private business affairs if those activities do not materially interfere with the services required under this Agreement or violate the provisions of Section 4.

 

1.3. Principal Place of Employment. The Executive’s principal work location shall be in Canton, Ohio.

 

 

 

 

2. COMPENSATION AND BENEFITS.

 

2.1. Annual Base Salary. For all of the services rendered by the Executive to the Company during the Employment Period, the Company shall pay the Executive an annual base salary (“Annual Base Salary”) equal to $300,000.00. The Annual Base Salary shall be payable in accordance with the practice of the Company in effect from time to time for the payment of salaries to employees of the Company and shall be subject to applicable withholdings and deductions. The Company and/or the Board will periodically review the Executive’s Annual Base Salary and implement an increase (but no decrease), if any, as the Company and/or the Board shall determine in its or their sole discretion is reasonable and appropriate.

 

2.2. Annual Bonus. For each calendar year during the Employment Period, the Executive shall be eligible to receive an annual bonus (the “Annual Bonus”). The target for the Annual Bonus opportunity shall be 40% of the Executive’s Annual Base Salary for each such calendar year and be based on the Company’s achievement of commercially-reasonable Key Performance Indicators (“KPI’s”) determined by Company in writing. The Annual Bonus for calendar year 2020 shall be pro-rated. The Annual Bonus shall be paid in cash and shall be paid no later than 70 days after the end of the calendar year for which the Annual Bonus is earned. In order to have earned the Annual Bonus for a particular calendar year, the Executive must remain employed through the end of that calendar year and must not (a) have been, as of the date of payment, terminated by the Company for Cause (as defined below) or (b) as of the date of payment, have ended Executive’s employment with the Company without Good Reason (as defined below), to be entitled to receive an Annual Bonus.

 

2.3. Profits Interest Grant.

 

(a) On the Effective Date, the Executive shall be granted profits interests in the Company representing $600,000.00 of the future profits of the Company generated after the time of such grant. The profits interests shall vest as follows: (i) 1/3rd of the profits interests shall vest on the first anniversary of the Effective Date; (ii) 1/3rd of the profits interests shall vest on the second anniversary of the Effective Date; and (iii) 1/3rd of the profits interests shall vest on third anniversary of the Effective Date, subject to the Executive’s continued employment by the Company on each such vesting date. All vesting of the profits interests shall cease immediately upon the termination of the Executive’s employment by either party for any reason, and the unvested portion of the profits interests will be automatically canceled without consideration and forfeited on the Termination Date.

 

(b) The Executive acknowledges and agrees that the Company’s goal in granting the profits interests in Section 2.3(a) is to provide the Executive with up to $600,000.00 in profits interests. Therefore, the Executive and the Company agree that, if at any time during the three-year vesting period set forth in Section 2.3(a) a valuation of the Company results in the value of Executive’s profits interests exceeding the $600,000.00 target, the number and/or percentage of the unvested profits interests as of the date of the valuation shall be reduced to ensure that the value of the profits interests (both vested and unvested) do not exceed $600,000.00.

 

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(c) If (i) the Company consummates a merger or other business combination during the Term pursuant to which the Executive becomes employed by a publicly traded company (such company, a “Public Acquiror”), (ii) the board of directors or compensation committee of the Public Acquiror grants the Executive shares of restricted stock of the Public Acquiror, and (iii) the Executive accepts such grant, all of the Executive’s profits interests in Section 2.3(a) (including profits interests that have already vested) shall be canceled without additional consideration as of the date the Executive accepts the restricted stock grant.

 

2.4. Benefits. The Executive shall be entitled to participate in such benefit plans including, without limitation, any and all retirement, disability, group life, sickness, accident, vision, dental, and health insurance programs, as the Company may provide from time to time to its employees generally. The Executive shall be allowed to enroll in the health insurance benefits provided by the Company on the first day of Executive’s employment with the Company.

 

2.5. Vacation. The Executive shall be entitled to 15 days of paid vacation per year during the first and second year of the Employment Period and 25 days of paid vacation per year during the third year of the Employment Period and any year thereafter during the Employment Period. Unused vacation days for a particular year shall roll over to, and be available for Executive’s use during, the first twelve weeks of the following year, and any such carry-over vacation days not used by the Executive during the first twelve weeks of the following year shall be paid out as compensation to the Executive on the first regularly-scheduled payroll date following the end of the twelve-week period.

 

2.6. Expenses. Subject to, and in accordance with, such policies as may, from time to time, be established by the Company, the Company shall pay or reimburse the Executive for all reasonable expenses actually incurred or paid by the Executive in the furtherance of or in connection with the performance of the Executive’s duties under this Agreement, upon presentation of expense statements or vouchers or such other supporting information as the Company may reasonably require.

 

3. TERM AND TERMINATION.

 

3.1. Employment Period. Subject to Section 3.2 hereof, the Executive’s employment under this Agreement (the “Employment Period”) shall commence on June 15, 2020 (the “Effective Date”) and shall terminate on the earlier of: (a) the third anniversary of the Effective Date (such period, the “Initial Term”); provided, however, that on the third anniversary of the Effective Date and each subsequent anniversary thereafter, the term shall automatically renew for successive 12-month periods unless either party provides written notice of non-renewal to the other party at least 90 days in advance of the expiration of the Initial Term or the then-current 12-month period (the Initial Term, as may be automatically extended as provided herein, the “Term”); or (b) termination of this Agreement and the Executive’s employment pursuant to Section 3.2 hereof.

 

3.2. Termination of Employment. Each party shall have the right to terminate the Executive’s employment hereunder before the Term expires as permitted by this Section 3.2.

 

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(a) By the Company.

 

(i) For Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder at any time upon delivery of written notice of termination for Cause (as defined below) to the Executive by the Company, such employment to terminate immediately upon delivery of such notice for a termination under 3.2(a)(i)(A) or (B), unless otherwise specified in such notice, or upon expiration of the notice and cure period described herein for a termination under 3.2(a)(i)(C) or (D). As used herein, “Cause” means that the Company has determined that the Executive: (A) has misappropriated, stolen, or embezzled funds or property from the Company or, without the permission of the Company, secured or attempted to secure personally any profit in connection with any transaction entered into on behalf of the Company; (B) has been charged with a felony which in the reasonable opinion of the Company brings the Executive into disrepute or is likely to cause material harm to the Company’s business, customer, or supplier relations, financial condition, prospects, or reputation; (C) has willfully failed to perform the Executive’s duties to the Company in a manner reasonably satisfactory to the Company; or (D) has willfully violated or breached any provision of this Agreement or any law or regulation, where, in the reasonable opinion of the Company, such violation or breach is to the material detriment of the Company or its business. A termination by the Company shall not be for Cause under Section 3.2(a)(i)(C) or (D) unless: (1) the Company gives the Executive written notice specifying the event or condition that the Company asserts authorizes termination for Cause under Section 3.2(a)(i)(C) or (D) and (2) during the 30 days following receipt of such notice, the Executive fails to remedy or cure the event or condition. Any termination of employment pursuant to this Section 3.2(a)(i) shall entitle the Executive to receive only the payments referred to in Section 3.3(a) hereof.

 

(ii) Without Cause. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder without Cause after 60 days’ prior written notice by the Company to the Executive. Any termination of employment pursuant to this Section 3.2(a)(ii) shall entitle the Executive to receive the payments referred to in Section 3.3(a) and (b) hereof.

 

(iii) Upon Total Disability. The Company shall have the right to terminate this Agreement and the Executive’s employment hereunder upon five days’ prior written notice to the Executive if the Board determines that the Executive is unable to perform the Executive’s duties by reason of Total Disability. As used herein, “Total Disability” shall mean the inability of the Executive, due to physical or mental illness or injury, and with the benefit of any reasonable accommodation requested by and provided to the Executive, to perform the Executive’s essential duties hereunder for any period of 180 consecutive days.  The return of the Executive to the Executive’s duties for periods of 30 days or less shall not interrupt such 180-day period. Upon any termination of employment pursuant to this Section 3.2(a)(iii), the Executive shall only be entitled to receive the payments referred to in Section 3.3(a) hereof.

 

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(b) By the Executive.

 

(i) For Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder for Good Reason, such employment to terminate upon expiration of the notice and cure period described herein. As used herein, “Good Reason” shall mean: (A) any material failure by the Company to comply with any provision of this Agreement; (B) a material diminution in the Executive’s overall duties and responsibilities as a result of any merger or business combination to which the Company is a party; or (C) the relocation of the Executive’s principal place of employment to a location that is more than 50 miles from Canton, Ohio. A termination by the Executive shall not be for Good Reason unless: (1) the Executive gives the Company written notice specifying the event or condition that the Executive asserts authorizes termination for Good Reason; (2) the Executive did not cause the event or condition that Executive asserts authorizes Executive’s termination for Good Reason or knowingly allow such event or condition to occur (but only if Executive had the authority and power to cause the event not to occur and knowingly chose not to exercise such power or authority); (3) such notice is given no more than 30 days after the occurrence of the event or the initial existence of the condition that Executive asserts authorizes termination for Good Reason; (4) during the 30 days following receipt of such notice, the Company fails to remedy or cure the event or condition; and (5) Executive terminates Executive’s employment within 30 days after the end of such cure period. In the event that the Executive elects to terminate his employment pursuant to Section 3.2(b)(i) and in accordance with the notice and cure requirements in subparts (1) through (5) above, the Executive shall be entitled to receive the payments referred to in Section 3.3(a) and (b) hereof.

 

(ii) Without Good Reason. The Executive shall have the right to terminate this Agreement and his employment hereunder without Good Reason after 60 days’ prior written notice by the Executive to the Board. If the Executive gives 60 days’ notice of termination without Good Reason under this Section 3.2(b)(ii), the Board in its sole discretion can elect to make the Executive’s resignation of his employment effective immediately at any time during the 60-day notice period, and any such termination by the Board shall not convert Executive’s resignation into a termination by the Company without Cause. In the event the Executive elects to terminate his employment pursuant to Section 3.2(b)(ii), the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

(c) By Expiration of Agreement. This Agreement and the Executive’s employment hereunder shall terminate upon the date of the expiration of the then-current Term in the event either party elects not to renew the then-current Term pursuant to Section 3.1. In the event the employment of the Executive is terminated by the expiration of the then-current Term, the Executive shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

(d) Death of Executive. This Agreement and the Executive’s employment hereunder shall terminate upon the death of the Executive. In such an event, the Executive’s surviving spouse, or if none, the Executive’s estate shall be entitled to receive only the payments referred to in Section 3.3(a) hereof.

 

3.3. Compensation and Benefits Following Termination. Except as specifically provided in this Section 3.3, any and all obligations of the Company to make payments to the Executive under this Agreement shall cease as of the date the Employment Period expires under Section 3.1 or as of the date the Executive’s employment is terminated under Section 3.2, as the case may be (either such date, the “Termination Date”). From the date of any notice of termination through the Termination Date (to the extent they are different), the Executive shall continue to perform the normal duties of the Executive’s employment hereunder (unless waived by the Company) and shall be entitled to receive when due all compensation and benefits applicable to the Executive hereunder.

 

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(a) Standard Termination Payments. In the event that the Executive’s employment terminates for any reason under any provision in Section 3.2, the Company shall, within the period prescribed by applicable State law but no later than 30 days of the Termination Date, pay the Standard Termination Payments (as defined below) to the Executive or, in the case of termination pursuant to Section 3.2(d) on account of the death of the Executive, to the Executive’s spouse or estate as appropriate. For purposes of this Section 3.3, “Standard Termination Payments” shall mean (i) a lump-sum amount equal to the sum of the Executive’s earned and unpaid Annual Base Salary through the Termination Date; (ii) any unreimbursed business and entertainment expenses that are reimbursable through the Termination Date; and (iii) any accrued but unused vacation as of the Termination Date. Moreover, for any such termination, the Executive shall be entitled to receive any vested benefits to which the Executive has a right under the Company’s benefit plans and programs, including without limitation continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, which benefits will be provided in accordance with the applicable plan terms.

 

(b) By Company Without Cause or by Executive for Good Reason. In the event that the Company elects to terminate this Agreement and the Executive’s employment hereunder without Cause under Section 3.2(a)(ii) or the Executive elects to terminate this Agreement and his employment hereunder for Good Reason under Section 3.2(b)(i), in addition to the Standard Termination Payments provided in Section 3.3(a), and subject to the Executive’s execution of a release on or after the Termination Date that becomes effective and irrevocable as described in Section 3.4, the Company shall continue to pay the Executive his then-current Annual Base Salary, less applicable deductions and withholdings, for twelve months after the Termination Date. The first salary continuation payment will be paid to the Executive on the first Company payroll date that is ten days after the date that the release described in Section 3.4 becomes effective and irrevocable and will include any salary continuation payments for payroll dates between the Termination Date and the first salary continuation payment date.

 

3.4. Release. The Company will have no obligation to the Executive for the severance continuation payments under Section 3.3(b) unless the Executive has executed, on or after the Termination Date, and delivered to the Company, on or before the 50th day following the Termination Date, an effective and irrevocable general release and waiver of claims that releases the Company and all of its related entities, affiliates, investors, owners, and employees from, and promises not to sue them for, all claims and liabilities arising on or before the date the Executive signs the release, including claims related to the Executive’s employment with and separation from the Company, in the form of Exhibit A attached hereto with such changes as may be necessary under applicable law or as agreed to by the parties.

 

3.5. Resignation. Upon termination of the Executive’s employment, the Executive hereby agrees that the Executive shall automatically be treated as having resigned from any offices or positions related to the Company or any of its affiliates.

 

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4. RESTRICTIVE COVENANTS.

 

4.1. Recitals. While employed with the Company, the Executive will be employed in a position of trust and confidence, and as a result, the Executive will be provided with the Company’s trade secrets and confidential or proprietary information, including but not limited to information related to (a) reports, pricing, selling, purchasing, and pricing procedures, and financing methods of the Company, and any specific and proprietary techniques utilized by the Company in designing, developing, testing, or marketing its products or in performing services for clients, customers, and accounts of the Company; (b) the business plans and financial statements, reports, and projections of the Company; (c) identities, addresses, contact persons, purchasing habits, and all other information related to the Company’s customers, clients, and investors, purchasers, lenders, or any other confidential information relating to or dealing with the business operations or activities of the Company; and (d) information concerning the licenses, permits, or other authorizations relevant to the Company’s business, made known to the Executive or acquired by the Executive in the course of the Executive’s employment at the Company (collectively, “Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information or materials (a) that was or becomes generally available to the public other than as a result of breach of this Agreement by the Executive or (b) which the Executive had in his possession prior to disclosure by the Company or receives from a third party who, to the Executive’s knowledge, is not bound by a duty of confidentiality to the Company. The Executive acknowledges that the Company takes reasonable steps to protect its Confidential Information and to prevent disclosure of its Confidential Information to the public. Moreover, the Executive acknowledges that during Executive’s employment with the Company, the Executive will be put in a position of trust and confidence with the Company’s customers, employees, and consultants. The Executive agrees and acknowledges, therefore, that it is fair and reasonable for the Company to take steps necessary to protect its Confidential Information; protect against the risk of misappropriation of such Confidential Information; and protect the Company’s relationship with its customers, employees, and consultants.

 

4.2. Non-Recruitment. By and in consideration of the Company’s entering into this Agreement, and in further consideration of the Executive’s exposure to the Confidential Information of the Company and its affiliates, the Executive agrees that the Executive shall not, during the Executive’s employment with the Company and for a period of six (6) months after the Executive’s employment with the Company is terminated by either party for any reason (the “Restricted Period”): (a) directly or indirectly hire, induce, or solicit (or assist any person or entity to hire, induce, or solicit) for employment any person who is, or within six (6) months prior to the date of such hiring, inducement, or solicitation was, an employee of the Company or (b) induce or solicit (or assist any person or entity to induce or solicit) any person who is an employee of the Company to terminate his/her employment relationship with the Company. The foregoing does not apply to any employee who responds to any general public advertisement by the Executive or is referred by an employment agency, so long as the advertisement or agency search was not directed towards any such employee or group of employees of the Company.

 

4.3. Confidential Information. This covenant is independent of, and in addition to, those set forth above.

 

(a) In order to protect the Company’s Confidential Information, the Executive hereby covenants and agrees that the Executive will at all times hold the Confidential Information in confidence, will take all reasonable and necessary measures to prevent the disclosure of the Confidential Information, and will not use or disclose any Confidential Information, except for the benefit of the Company and to authorized representatives of the Company, to professional advisors (including without limitation attorneys, accountants, and financial advisors), or except as required by any governmental, regulatory, or judicial authority.

 

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(b) The Executive acknowledges that all Confidential Information are and shall remain the sole, exclusive, and valuable property of the Company and that the Executive has and shall acquire no right, title, or interest therein. Any and all printed, typed, written, or other material that the Executive may have or obtain with respect to Confidential Information shall be and remain the exclusive property of the Company, and any and all material (including any copies) shall, upon request of the Board, be promptly delivered by the Executive to the Company.

 

(c) If the Executive becomes compelled by law, by regulatory or judicial process or by any other proceeding to make any disclosure that is prohibited by this Section 4.3, the Executive shall, to the extent legally permissible, provide the Board with prompt notice of such compulsion so that the Company may seek an appropriate protective order or other appropriate remedy or waive compliance with the provisions of this Section 4.3. In the absence of a protective order or other remedy, the Executive may disclose that portion (and only that portion) of the Confidential Information that, based upon the opinion of the Executive’s counsel, the Executive is legally compelled to disclose; provided, however, that the Executive shall use commercially reasonable efforts to obtain written assurance that any person to whom any Confidential Information is so disclosed shall accord confidential treatment to such Confidential Information.

 

(d) Nothing in this Agreement prohibits Executive from disclosing a Company trade secret (i) in confidence to a Federal, State, or local government official, or to an attorney, solely for the purpose of reporting or investigating a suspected violation of law or (ii) in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal. Moreover, if Executive files a lawsuit for retaliation by an employer for reporting a suspected violation of law, Executive may disclose a Company trade secret to the Executive’s attorney and use the trade secret information in the court proceeding if the Executive files any document containing the trade secret under seal and does not disclose the trade secret except pursuant to court order.

 

4.4. Scope and Reasonableness.

 

(a) The parties agree that it is not their intention to violate any public policy, rule of public order, or statutory or common law. The parties intend that the provisions of this Agreement be enforced to the fullest extent permissible under the laws and public policies applied in each jurisdiction in which enforcement is sought. If any provision of this Agreement is found by a court to be unenforceable, the parties authorize the court to amend or modify the provision to make it enforceable in the most restrictive fashion permitted by law.

 

(b) The Executive acknowledges that the restrictions contained in this Section 4, in view of the nature of the business in which the Company is engaged and in view of the Confidential Information to which the Executive will be exposed, are reasonable and necessary in order to protect the Confidential Information of the Company and the Company’s relationships with its customers, employees, and consultants, and that any violation thereof would result in irreparable injuries to the Company, and the Executive therefore acknowledges that, in the event of the Executive’s violation of any of these restrictions, the Company shall be entitled to seek from any court of competent jurisdiction (in any jurisdiction) preliminary and permanent injunctive relief as well as damages and an equitable accounting of all earnings, profits, and other rights or remedies to which the Company may be entitled. Notwithstanding the foregoing to the contrary, under no circumstances shall the Executive be liable for special, consequential, or punitive damages for any breach of this Agreement or otherwise. If the Executive violates any of the restrictions contained in the foregoing Section 4.2, the Restricted Period shall not run in favor of the Executive from the time of the commencement of any such violation until such violation shall be cured by the Executive to the reasonable satisfaction of Company.

 

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4.5. Survival. Any provision of this Agreement to the contrary notwithstanding, if this Agreement is terminated for any reason, the provisions and covenants of this Section 4 shall nevertheless remain in full force and effect in accordance with their respective terms.

 

5. MISCELLANEOUS.

 

5.1. Code Section 409A.

 

(a) This Agreement and the amounts payable and other benefits provided under this Agreement are intended to comply with, or otherwise be exempt from, Section 409A of the Internal Revenue Code (“Section 409A”), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12). This Agreement shall be administered, interpreted and construed in a manner consistent with the requirements and exemptions under Section 409A. If any provision of this Agreement is found not to comply with, or otherwise not be exempt from, the provisions of Section 409A, it shall be modified and given effect, in the sole reasonable discretion of the Employer and without requiring the Executive’s consent, in such manner as the Employer reasonably determines to be necessary or appropriate to comply with, or to effectuate an exemption from, Section 409A; provided, however, that in exercising its discretion, the Employer shall modify this Agreement in the least restrictive manner necessary and provided further that the Employer have no obligation to indemnify the Executive or hold the Executive harmless from any adverse tax consequences related to any failure to comply with Section 409A. Each payment under this Agreement shall be treated as a separate identified payment for purposes of Section 409A.

 

(b) With respect to any reimbursement of expenses of, or any provision of in-kind benefits to, the Executive, as provided under this Agreement, such reimbursement of expenses or provision of in-kind benefits shall be subject to the following limitations: (i) the expenses eligible for reimbursement or the amount of in-kind benefits provided in one taxable year shall not affect the expenses eligible for reimbursement or the amount of in-kind benefits provided in any other taxable year, except for any medical reimbursement arrangement providing for the reimbursement of expenses referred to in Section 105(b) of the Internal Revenue Code; (ii) the reimbursement of an eligible expense shall be made as specified in this Agreement and in accordance with Employer’s normal reimbursement procedures for senior management, and (iii) the right to reimbursement or in-kind benefit shall not be subject to liquidation or exchange for another benefit.

 

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(c) If a payment obligation under this Agreement arises on account of the Executive’s termination of his employment and such payment obligation constitutes “deferred compensation” (as defined under Treasury Regulation section 1.409A-1(b)(1), after giving effect to the exemptions in Treasury Regulation section 1.409A-1(b)(3) through (b)(12)), it shall be payable only after the Executive’s “separation from service” (as defined under Treasury Regulation section 1.409A-1(h)); provided, however, that if the Executive is a “specified employee” (as defined under Treasury Regulation section 1.409A-1(i)), any such payment obligation that is scheduled to be paid within six months after such separation from service shall accrue without interest and shall be paid on the first day of the seventh month beginning after the date of the Executive’s separation from service or, if earlier, within fifteen days after the appointment of the personal representative or executor of the Executive’s estate following the Executive’s death.

 

5.2. Applicable Law. This Agreement shall be construed and interpreted according to the laws of the State of Ohio, without regard to the conflicts of law rules thereof.

 

5.3. Headings. The headings and captions set forth herein are for convenience of reference only and shall not affect the construction or interpretation hereof.

 

5.4. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of successors and permitted assigns of the parties. This Agreement may not be assigned, nor may performance of any duty hereunder be delegated, by either party without the prior written consent of the other; provided, however, the Company may assign this Agreement to any successor to its business or to any affiliate.

 

5.5. Entire Agreement; Termination of Services Agreement. This Agreement sets forth the entire agreement and understanding of the parties with respect to the subject matter hereof, and there are no other contemporaneous written or oral agreements, undertakings, promises, warranties, or covenants not specifically referred to or contained herein. This Agreement specifically supersedes any and all prior agreements and understandings of the parties with respect to the subject matter hereof, all of which prior agreements and understandings (including but not limited to the Services Agreement) are hereby terminated and of no further force and effect.

 

5.6. Amendments. This Agreement may be amended, modified, or terminated only by a written instrument signed by the parties hereto.

 

5.7. Waiver. The Company’s failure to enforce any provision or provisions in this Agreement shall not in any way be construed as a waiver of any provision or provisions of this Agreement, or prevent the Company from thereafter enforcing each and every provision of this Agreement.

 

5.8. Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same Agreement. This Agreement may be delivered by facsimile transmission or email attachment of an originally executed copy.

 

5.9. Severability. If any section, provision, clause or part of this Agreement, or the applications thereof under certain circumstances, is held invalid or unenforceable for any reason, the remainder of this Agreement, or the application of such section, provision, clause or part under other circumstances, shall not be affected thereby.

 

5.10. Incorporation of Recitals. The Recitals to this Agreement are an integral part of, and by this reference are hereby incorporated into, this Agreement.

 

5.11. Withholdings. Each payment of compensation or benefits to or on behalf of the Executive under this Agreement shall be reduced by authorized deductions.

 

[Signatures on Following Page]

 

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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year written below.

 

  HOF VILLAGE, LLC
       
    By: /s/ Michael Crawford
    Name: Michael Crawford
    Title: Chief Executive Officer
    Date: 06/22/2020
       
  MICHAEL LEVY
       
  /s/ Michael Levy
  Michael Levy, Individually
       
  06/22/2020
  Date

 

[Signature Page to Levy Employment Agreement]

 

11

 

 

Exhibit A

 

Form of Release

 

GENERAL RELEASE AND WAIVER

 

THIS GENERAL RELEASE AND WAIVER (this “Release”) is entered into by and between [___] (the “Company”) and [●] (the “Executive”). The Company and the Executive hereby agree as follows:

 

1. Employment Status. The Executive’s employment with the Company terminated effective as of [●].

 

2. Payment and Benefits. The Company shall provide the Executive with the salary continuation payments specified in and subject to the provisions of Section 3.3(b) of the Employment Agreement dated as of [●], by and between the Company and the Executive (the “Employment Agreement”); provided, that such payment is subject to certain terms and conditions, including without limitation this Release becoming effective, as provided in the Employment Agreement.

 

3. No Liability. This Release does not constitute an admission by any of the Company Releasees (as defined below) of any unlawful acts or of any violation of federal, state, or local laws.

 

4. Release. In consideration of the payments and benefits set forth in the Employment Agreement, the Executive, for the Executive, the Executive’s heirs, administrators, representatives, executors, successors, and assigns (collectively, the “Executive Releasors”), hereby irrevocably and unconditionally releases, acquits, and forever discharges the Company and its current and former parents, affiliates, subsidiaries, divisions, successors, assigns, trustees, officers, directors, partners, shareholders, agents, parents, employees, including without limitation all persons acting by, through, under, or in concert with any of them (collectively, the “Company Releasees”) from any and all charges, complaints, claims, liabilities, obligations, promises, agreements, controversies, damages, remedies, actions, causes of action, suits, rights, demands, costs, losses, debts, and expenses (including attorneys’ fees and costs) of any nature whatsoever, known or unknown, whether in law or equity and whether arising under federal, state, or local law that the Executive Releasors had, now have, or may hereafter claim to have had against each or any of the Company Releasees by reason of any matter, cause, or thing occurring, done, or omitted to be done on or before the date of Executive’s execution of this Release. Without limitation, this Release includes a knowing and voluntary waiver of any and all rights, claims, and causes of action for discrimination based upon race, color, ethnicity, sex, national origin, religion, disability, and age (including without limitation under the Age Discrimination in Employment Act of 1967 as amended by the Older Workers Benefit Protection Act (“ADEA”), Title VII of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991, the Equal Pay Act of 1962, the Americans with Disabilities Act of 1990, and any other federal, state, or local anti-discrimination law) or any other unlawful criterion or circumstance. Executive is not waiving or releasing any claims that may arise after the date that the Executive executes this Release or claims related to the Equity Award Agreement. Moreover, this Release does not cover the Executive’s right to file a charge with or participate in a charge by the Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment, against the Company Releasees (with the understanding that any such filing or participation does not give the Executive the right to recover any monetary damages against the Company Releasees; the Executive’s release of claims herein bars the Executive from recovering such monetary relief from the Company Releasees).

 

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In addition, for purposes of this Release, the Executive represents that the Executive is not aware of any claims against the Company Releasees.

 

5. Restrictive Covenants. The Executive expressly acknowledges and agrees that Executive will continue to be bound by the obligations set forth in Section 4 of the Employment Agreement for the periods set forth therein.

 

6. Company Property. By signing this Release, the Executive acknowledges that the Executive has returned to the Company all originals and copies of Company documents and all Company property, including without limitation, keys, computer files, diskettes, database information, client information, sales documents, financial statements, budgets and forecasts, and any similar information. The Executive further represents that the Executive has left intact all of the Company’s electronic files, including those that Executive developed or helped develop during the Executive’s employment with the Company.

 

7. Bar. The Executive acknowledges and agrees that, if the Executive should hereafter make any claim or demand or commence or threaten to commence any action, claim, or proceeding against the Company Releasees with respect to any cause, matter, or thing which is the subject of the release under Paragraph 4 of this Release, this Release may be raised as a complete bar to any such action, claim, or proceeding, and the applicable Company Releasee may recover from the Executive all expenses and costs incurred in connection with such action, claim, or proceeding, including attorneys’ fees.

 

8. Non-Disparagement. The Executive agrees not to make any statement, oral or written, that would reasonably be considered disparaging of the Company, its programs, or its services, or any of the Company Releasees. The Company agrees that then-current members of its executive management team acting in their capacity as employees of the Company will not make any statement, oral or written, that would reasonably be considered to be disparaging of the Executive. Nothing in this Section 8 shall prevent the Executive or the Company from providing truthful information if compelled to do so by law or by regulatory or judicial process.

 

9. Governing Law; Interpretation. This Release shall be governed by and construed in accordance with the laws of the State of Ohio, without regard to the conflicts of law rules thereof. If for any reason any part of this Release shall be determined to be unenforceable, the remaining terms and conditions shall be enforced to the fullest extent possible.

 

10. Acknowledgments. The Executive acknowledges that the Executive has been advised in writing to consult with an attorney before signing this Agreement. The Executive further acknowledges that the Executive has been given sufficient time to review this Release, the Executive has read and fully understands its provisions, the Executive voluntarily accepts its terms, and the Executive has a period of twenty-one (21) days in which to consider entering into this Release. If the Executive executes the Release in less than twenty-one (21) days, the Executive acknowledges that the Executive is doing so voluntarily and that the Executive is waiving the Executive’s right to the full twenty-one (21) days to consider the Release.

 

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11. Revocation. The Executive has a period of seven (7) days following the execution of this Release during which the Executive may revoke this Release, and this Release shall not become effective or enforceable until such revocation period has expired.

 

12. Counterparts. This Release may be executed by the parties hereto in counterparts, which taken together shall be deemed one original. This Release may be delivered by facsimile transmission or email attachment of an originally executed copy.

 

THE UNDERSIGNED HAVE CAREFULLY READ THIS RELEASE; THEY KNOW AND UNDERSTAND ITS TERMS; THEY FREELY AND VOLUNTARILY AGREE TO ABIDE BY ITS TERMS; AND THEY HAVE NOT BEEN COERCED INTO SIGNING THIS AGREEMENT.

 

   
[____]    
     
   
Date    
     
[___]    
     
By:    
     
Title:    
     
   
Date    

 

 

14

 

 

Exhibit 10.7

 

Execution Version

 

 

 

NOTE PURCHASE AGREEMENT

 

by and among

 

GPAQ ACQUISITION HOLDINGS, INC.

 

and

 

the Purchasers named herein

 

8.00% Convertible Notes due 2025

  

 

 

Dated as of July 1, 2020

 

 

 

 

TABLE OF CONTENTS

 

    Page
     
SECTION 1. PURCHASE AND SALE OF NOTES. 2
1.1 Issue of Notes. 2
1.2 Purchase and Sale of Notes. 3
1.3 Registration of Notes. 4
1.4 Delivery Expenses. 5
1.5 Issue Taxes. 5
1.6 Direct Payment. 5
1.7 Lost, Etc. Note. 5
1.8 Indemnification. 6
1.9 Further Actions. 8
1.10 Other Covenants. 8
     
SECTION 2. CLOSING CONDITIONS. 8
2.1 Delivery of Documents. 8
2.2 Consummation of the HOFV Acquisition. 10
2.3 Representations and Warranties. 10
2.4 Additional Equity Capital. 10
2.5 No Material Adverse Effect. 10
     
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. 10
3.1 Authorization; Capitalization. 11
3.2 No Violation or Conflict; No Default. 11
3.3 Use of Proceeds. 12
3.4 No Material Adverse Change:  Financial Statements. 12
3.5 Full Disclosure. 13
3.6 Third Party Consents. 13
3.7 No Violation of Regulations of Board of Governors of Federal Reserve System. 13
3.8 Private Offering. 13
3.9 Governmental Regulations. 14
3.10 Brokers. 14
3.11 Solvency. 14
3.12 Litigation. 14
3.13 Labor Relations. 15
3.14 Taxes. 15
3.15 ERISA. 16
3.16 Intellectual Property. 16
3.17 Compliance with Laws. 16
3.18 Consummation of the HOFV Acquisition. 17
3.19 HOFV Acquisition Agreement Representations. 17

 

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SECTION 4. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER. 17
4.1 Purchase for Own Account. 17
4.2 Accredited Investor. 17
4.3 Authorization. 18
4.4 Notes Restricted. 18
4.5 ERISA. 18
     
SECTION 5. COVENANTS. 19
5.1 Payment of Notes. 19
5.2 Stay, Extension and Usury Laws. 19
5.3 Reports. 20
5.4 Compliance Certificate. 21
5.5 Restricted Payments. 22
5.6 Dividend and other Payment Restrictions Affecting Subsidiaries. 25
5.7 Incurrence of Indebtedness and Issuance of Preferred Stock. 27
5.8 Asset Sales. 30
5.9 Transactions with Affiliates. 34
5.10 Liens. 36
5.11 Merger; Successor Corporation. 37
5.12 Subsidiary Guarantees. 37
5.13 Designation of Restricted and Unrestricted Subsidiaries. 37
5.14 Minimum Cash Equivalents. 38
5.15 Taxes. 38
5.16 Corporate Existence. 38
5.17 Limitation on Business. 39
5.18 Maintenance of Properties. 39
5.19 Maintenance of Insurance. 39
     
SECTION 6. REDEMPTION. 39
6.1 Optional Redemption. 39
6.2 Selection of Notes to Be Redeemed. 40
6.3 Notice of Redemption. 40
6.4 Effect of Notice of Redemption. 41
6.5 Payment of Redemption Price. 41
6.6 Purchase at the Option of Holders Upon a Fundamental Change 41
6.7 Effect of Fundamental Change Purchase Notice 43
6.8 Withdrawal of Fundamental Change Purchase Notice 43
6.9 Notes Purchased in Whole or in Part 44
6.10 Covenant to Comply With Applicable Laws Upon Purchase of Notes 44
     
SECTION 7. DEFAULTS AND REMEDIES. 44
7.1 Events of Default. 44
7.2 Acceleration of Notes; Remedies. 46
7.3 Other Remedies. 47
7.4 Waiver of Past Defaults. 47
7.5 Rights of Holders to Receive Payment. 47
7.6 Undertaking for Costs. 47

 

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SECTION 8. CONVERSION 47
8.1 Right to Convert. 47
8.2 Conversion Procedures; Settlement Upon Procedure. 47
8.3 Adjustment of Conversion Rate. 50
8.4 Certain Other Adjustments. 59
8.5 Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale. 59
8.6 Shares to Be Fully Paid. 61
8.7 Taxes on Shares Issued. 61
8.8 Reservation of Shares; Shares to be Fully Paid; Compliance With Governmental Requirements; Listing of Common Stock. 61
8.9 Notice to Holders Prior to Certain Actions. 62
     
SECTION 9. AMENDMENTS AND WAIVERS. 62
9.1 With Consent of Holders. 62
9.2 Revocation and Effect of Consents. 64
9.3 Notation on or Exchange of Notes. 64
9.4 Payment of Expenses. 64
     
SECTION 10. DEFINITIONS. 64
10.1 Definitions. 64
10.2 Rules of Construction. 90
     
SECTION 11. MISCELLANEOUS. 90
11.1 Notices. 90
11.2 Successors and Assigns. 90
11.3 Counterparts. 91
11.4 Headings. 91
11.5 Governing Law;  Submission to Jurisdiction. 91
11.6 Entire Agreement. 92
11.7 Severability. 92
11.8 Further Assurances. 94
11.9 Disclosure of Financial Information 91
11.10 Survival 92

 

Annexes:    
   
Annex A Form of Note
Annex B Wire Instructions
Annex C Form of Opinion of Counsel to the Company
Annex D Form of Guarantee
Annex E Form of Warrant Agreement
Annex F Form of Officers’ Certificate
Annex G Form of Registration Rights Agreement

 

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NOTE PURCHASE AGREEMENT

 

This Note Purchase Agreement dated as of July 1, 2020 (this “Agreement”) is entered into by and among GPAQ Acquisition Holdings, Inc., a Delaware corporation (the “Company”), and the purchasers listed on the signature pages hereto (each a “Purchaser” and collectively, the “Purchasers” and, together with the Company, the “Parties”). Capitalized terms not otherwise defined herein shall have the meanings ascribed to such terms in Section 10.1.

 

In consideration of the premises, mutual covenants and agreements hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company agrees, and each of the Purchasers agrees, severally but not jointly, as follows:

 

SECTION 1. PURCHASE AND SALE OF NOTES.

 

1.1 Issue of Notes.

 

On or before the Closing, the Company will have authorized (a) the original issue and sale to the Purchasers (other than the Converting Founders), in the respective amounts set forth on the signature pages hereof, of $16,500,000 aggregate principal amount of its 8.00% Convertible Notes due 2025 (the “Notes”), to be issued substantially in the form attached hereto as Annex A and (b) the original issue to the Converting Founders, in the respective amounts set forth on the signature pages hereof, of $4,221,293 aggregate principal amount of the Notes, which shall be issued to the Converting Founders pursuant to the conversion of their Founders Notes described on the signature pages hereof. The aggregate principal amount of the Notes outstanding at any time may not exceed $20,721,293 plus the aggregate principal amount of PIK Interest issued pursuant to Section 1 of the Notes.

 

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1.2 Purchase and Sale of Notes.

 

(a) Purchase and Sale. The Company agrees to sell and, subject to the terms and conditions set forth herein and in reliance on the representations and warranties of the Parties contained or incorporated herein, each of the Purchasers (other than the Converting Founders) agrees, severally but not jointly, to purchase the Notes set forth below such Purchaser’s name on the signature pages hereto at the purchase price indicated therein. As indicated on each such Purchaser’s signature page, such purchase price will be paid either in the form of cash or an exchange of or reduction or cancellation of indebtedness owed to such Purchaser by HOF Village. In addition, the Company shall issue to the Converting Founders, in the respective principal amounts set forth on their respective signature pages hereof, Notes into which like principal amounts of Founder Notes are being converted pursuant to the terms thereof.

 

(b) Closing. The purchase, sale and issuance of the Notes shall take place at a closing (the “Closing”) at the offices of Hunton Andrews Kurth LLP, 200 Park Avenue, New York, NY 10166, at 10:00 a.m. Eastern Time on July 1, 2020, or such other Business Day as may be agreed upon by the Purchasers and the Company (the “Closing Date”). At the Closing, the Company will deliver to each of the Purchasers the Notes to be purchased by (or issued upon conversion of Founder Notes to) such Purchaser (in such denomination or denominations and registered in such Purchaser’s name or the name of such nominee or nominees as such Purchaser may request), dated the Closing Date. In the case of Notes being issued and sold to Purchasers (other than Converting Founders) such delivery of Notes by the Company shall be made against payment of the purchase price therefor by either (i) in the case of a cash payment, intra-bank or Federal funds bank wire transfer of same day funds to such bank account which is identified on Annex B hereto or such other account as the Company shall designate at least two Business Days prior to the Closing or (ii) in the case of payment in the form of an exchange of or reduction or cancellation of indebtedness owed to such Purchaser by HOF Village, the delivery by such Purchaser of documentation, in a form and substance reasonably satisfactory to the Company, evidencing such exchange or reduction or cancellation of such indebtedness, as applicable. In the case of Notes being issued to each of the Converting Founders, such delivery of Notes by the Company to such Converting Founder shall be made upon (i) conversion of the Founder Notes held by such Converting Founder, as indicated on its signature page hereof and (ii) delivery to the Company by such Converting Founder of documentation, in a form and substance reasonably satisfactory to the Company, evidencing such conversion (including without limitation, the conversion election notice required pursuant to the terms of such Founder Notes).

 

(c) Fees and Expenses. Regardless of whether the Notes are sold, the Company agrees to pay or reimburse all reasonable and documented expenses relating to this Agreement in an amount not to exceed $500,000, including but not limited to:

 

(i) each Purchaser’s reasonable expenses incurred in connection with the transactions contemplated by this Agreement including, without limitation, travel and lodging expenses and all costs incurred in connection with such Purchaser’s review of the Company’s business and operations;

 

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(ii) the reasonable fees and expenses of the Purchasers’ counsel, K&L Gates LLP, in connection herewith;

 

(iii) the reasonable fees and expenses (including the reasonable fees and expenses of counsel) in connection with any registration or qualification of the Notes required in connection with the offer and sale of the Notes pursuant to this Agreement under the securities or “blue sky” laws of any jurisdiction requiring such registration or qualification or in connection with obtaining any exemptions from such requirements;

 

(iv) each Purchaser’s reasonable expenses (including the reasonable fees and expenses of counsel) relating to any amendment to, or modification of, or any waiver or consent or preservation of rights under, this Agreement; and

 

(v) all other expenses, including without limitation reasonable counsel’s fees, accountants’ fees and any rating agency fees incurred by the Company in connection with the transactions contemplated by this Agreement.

 

The Company shall deliver to each of the Purchasers or to such other persons as such Purchaser shall direct, concurrently with the Closing, by intra-bank or Federal funds bank wire transfer of same day funds in the amounts and pursuant to the wire instructions set forth on Annex B hereto, payment for any documented out-of-pocket expenses for which such Purchaser is entitled to reimbursement pursuant to this Section 1.2(c), including, without limitation, the documented fees and expenses of such Purchaser’s counsel.

 

(d) Other Purchasers. Each Purchaser’s obligations hereunder are subject to the execution and delivery of this Agreement by the other Purchasers listed on the signature pages hereof. The obligations of each Purchaser shall be several and not joint, and no Purchaser shall be liable or responsible for the acts of any other Purchaser under this Agreement.

 

1.3 Registration of Notes.

 

The Company shall cause to be kept at its principal office a register for the registration and transfer of the Notes (the “Notes Register”). The names and addresses of the Holders of Notes, the payment of PIK Interest, the transfer of Notes and the names and addresses of the transferees of the Notes shall be registered in the Notes Register.

 

The Person in whose name any Note shall be registered shall be deemed and treated as the owner and holder thereof for all purposes of this Agreement, and the Company shall not be affected by any notice to the contrary, until due presentment of such Note for registration of transfer as provided in this Section 1.3. Payment of or on account of the principal, premium, if any, and interest on any registered Note shall be made to or upon the written order of such registered holder.

 

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When Notes are presented to the Company with a request to register the transfer of such Notes or to exchange such Notes for an equal principal amount of Notes of other authorized denominations, the Company shall register the transfer or make the exchange as requested if its reasonable requirements for such transaction are met.

 

1.4 Delivery Expenses.

 

If a Holder surrenders any Note to the Company for any reason, the Company shall pay the cost of delivering to such Holder’s home office or to the office of such Holder’s designee from the Company, insured to such Holder’s satisfaction, the surrendered Note and each Note issued in substitution, replacement or exchange for the surrendered Note.

 

1.5 Issue Taxes.

 

The Company agrees to pay all documentary stamp taxes and other governmental charges (other than taxes in the nature of income, franchise, property, estate, inheritance, gift or similar taxes) and governmental fees in connection with the issuance or delivery by the Company to each Holder of the Notes, and any modification of any of such Notes and will save such Holder harmless without limitation as to time against any and all liabilities with respect to all such taxes and fees. The obligations of the Company under this Section 1.5 are in addition to any other obligations of the Company contained elsewhere in this Agreement and shall survive the payment or prepayment of the Notes, at maturity, upon redemption or otherwise and the termination of this Agreement.

 

1.6 Direct Payment.

 

The Company will pay or cause to be paid all amounts payable with respect to any Note (without any presentment of such Note and without any notation of such payment being made thereon) by crediting (before 12:00 Noon, Eastern Time), by Federal funds bank wire transfer in same day funds to each Holder’s account in any bank in the United States of America as may be designated and specified in writing by such Holder at least two Business Days prior thereto. Each Purchaser’s initial bank account for this purpose is on Annex B hereto. In the event that the Company elects to make a PIK Interest Payment, then, in addition to making the wire transfer of the cash portion of the PIK Interest Payment, the Company shall make a record in the Note Register of the corresponding increase in the principal amount of the applicable Notes.

 

1.7 Lost, Etc. Note.

 

If a mutilated Note is surrendered to the Company or if the Holder of a Note claims and submits an affidavit or other evidence, reasonably satisfactory to the Company, to the effect that the Note has been lost, destroyed or wrongfully taken, the Company shall issue a replacement Note if the customary requirements relating to replacement securities are reasonably satisfied. If required by the Company, such Holder must provide an indemnity bond, or other form of indemnity, sufficient in the reasonable judgment of the Company to protect the Company from any loss which it may suffer if a Note is replaced. If any Purchaser or any other institutional Holder (or nominee thereof) is the owner of any such lost, stolen or destroyed Note, then the affidavit of an authorized officer of such owner, setting forth the fact of loss, theft or destruction and of its ownership of the Note at the time of such loss, theft or destruction shall be accepted as satisfactory evidence thereof, and no further indemnity shall be required as a condition to the execution and delivery of a new Note other than the unsecured written agreement of such owner reasonably satisfactory to the Company, to indemnify the Company or at the option of the Purchaser, an indemnity bond in the amount of the Note remaining outstanding.

 

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Every replacement Note is an obligation of the Company.

 

1.8 Indemnification.

 

(a) Indemnification by the Company. The Company agrees to indemnify each of the Purchasers (i) from all costs, losses, liabilities, damages, or expenses, and (ii) hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation or inquiries), demands, and causes of action as a result of, arising out of, or in any way related to the breach of any of the representations or warranties of the Company contained herein or in any certificate or instrument delivered by or on behalf of the Company hereunder, and in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them (regardless of whether a party thereto), provided that such claim for indemnification relating to a breach of the representations or warranties is made prior to the expiration of such representations or warranties to the extent applicable; and provided further, that no Purchaser shall be entitled to recover special, consequential (including lost profits) or punitive damages under this Section 1.8(a) (other than any such damages to the extent that such damages arise from Third Party Claims).

 

(b) Indemnification by each Purchaser. Each Purchaser agrees, severally and not jointly, to indemnify the Company from, and hold each of them harmless against, any and all actions, suits, proceedings (including any investigations, litigation, or inquiries), demands and causes of action and, in connection therewith, and promptly upon demand, pay or reimburse each of them for all costs, losses, liabilities, damages, or expenses of any kind or nature whatsoever, including, without limitation, the reasonable fees and disbursements of counsel and all other reasonable expenses incurred in connection with investigating, defending or preparing to defend any such matter that may be incurred by them or asserted against or involve any of them as a result of, arising out of, or in any way related to the breach of any of the representations, warranties or covenants of such Purchaser contained herein or in any certificate or instrument delivered by such Purchaser hereunder; provided that such claim for indemnification relating to a breach of a representation or warranty is made prior to the expiration of such representation or warranty; and provided further, that the Company shall not be entitled to recover special, consequential (including lost profits) or punitive damages under this Section 1.8(b) (other than any such damages to the extent that such damages arise from Third Party Claims); provided further, that in no event will such Purchaser be liable under this Section 1.8(b) for any amount in excess of the sum total of the purchase price set forth on such Purchaser’s signature page to this Agreement.

 

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(c) No Indemnification for Covenant Breach. Notwithstanding any other provision in this Agreement, no indemnification shall be available for any costs, losses, liabilities, damages, or expenses as a result of, arising out of, or in any way related to the breach by the Company of any of the covenants set forth in this Agreement.

 

(d) Indemnification Procedures. Promptly after any Company or Purchaser (hereinafter, the “Indemnified Party”) has received notice of any indemnifiable claim hereunder, or the commencement of any action, suit or proceeding by a third party, which the Indemnified Party believes in good faith is an indemnifiable claim under this Agreement (each a “Third Party Claim”), the Indemnified Party shall give the indemnitor hereunder (the “Indemnifying Party”) written notice of such claim or the commencement of such action, suit or proceeding, but failure to so notify the Indemnifying Party will not relieve the Indemnifying Party from any liability it may have to such Indemnified Party hereunder, except to the extent that the Indemnifying Party is materially prejudiced by such failure. Such notice shall state the nature and the basis of such claim to the extent then known. The Indemnifying Party shall have the right to defend and settle, at its own expense and by its own counsel who shall be reasonably acceptable to the Indemnified Party, any such matter as long as the Indemnifying Party pursues the same diligently and in good faith. If the Indemnifying Party undertakes to defend or settle, it shall promptly notify the Indemnified Party of its intention to do so, and the Indemnified Party shall cooperate with the Indemnifying Party and its counsel in all commercially reasonable respects in the defense thereof and the settlement thereof. Such cooperation shall include furnishing the Indemnifying Party with any books, records and other information reasonably requested by the Indemnifying Party and in the Indemnified Party’s possession or control. Such cooperation of the Indemnified Party shall be at the cost of the Indemnifying Party. After the Indemnifying Party has notified the Indemnified Party of its intention to undertake to defend or settle any such asserted liability, and for so long as the Indemnifying Party diligently pursues such defense, the Indemnifying Party shall not be liable for any additional legal expenses incurred by the Indemnified Party in connection with any defense or settlement of such asserted liability; provided, however, that the Indemnified Party shall be entitled (i) at its expense, to participate in the defense of such asserted liability and the negotiations of the settlement thereof and (ii) if (A) the Indemnifying Party has failed to assume the defense or employ counsel reasonably acceptable to the Indemnified Party or (B) if the defendants in any such action include both the Indemnified Party and the Indemnifying Party and counsel to the Indemnified Party shall have concluded that there may be reasonable defenses available to the Indemnified Party that are different from those available to the Indemnifying Party, then the Indemnified Party shall have the right to select a separate counsel and to assume such legal defense and otherwise to participate in the defense of such action, with the expenses and fees of such separate counsel and other expenses related to such participation to be reimbursed by the Indemnifying Party as incurred. Notwithstanding any other provision of this Agreement, the Indemnifying Party shall not settle any indemnified claim without the consent of the Indemnified Party, unless the settlement thereof imposes no liability or obligation on, involves no admission of wrongdoing or malfeasance by, and includes a complete release from liability of, the Indemnified Party.

 

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(e) Tax Treatment. All indemnification payments under this Section 1.8 shall be adjustments to the purchase price set forth on such applicable Purchaser’s signature page to this Agreement except as otherwise required by applicable Law.

 

1.9 Further Actions.

 

During the period from the date hereof to the Closing Date, the Company shall (i) take all actions necessary or appropriate to cause its representations and warranties contained in Section 3 hereof to be true and correct as of the Closing Date (unless stated to refer to another date), both before and after giving effect to the transactions contemplated by this Agreement, as if made on and as of such date, and (ii) take, or cause to be taken, all action, and do, or cause to be done, all things necessary, proper or advisable under applicable law and regulations to consummate and make effective the transactions contemplated by this Agreement, including, without limitation, obtaining all consents and approvals of all Persons and removing all injunctive or other impediments or delays, legal or otherwise, which are necessary to the consummation of the transactions contemplated by this Agreement.

 

1.10 Other Covenants.

 

The Company covenants and agrees to not, and will ensure that no affiliate (as defined in Rule 501(b) of the Securities Act) of the Company will, sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of any security (as defined in the Securities Act) that would be integrated with the sale of the Notes in a manner that would require the registration under the Securities Act of the sale to the Purchasers of the Notes.

 

SECTION 2. CLOSING CONDITIONS.

 

The obligations of each Purchaser to purchase and pay for the Notes to be delivered to such Purchaser at the Closing shall be subject to the satisfaction of each of the following conditions on or before the Closing Date:

 

2.1 Delivery of Documents.

 

The Company shall have delivered to each Purchaser, in form and substance satisfactory to such Purchaser, the following:

 

(a) The Notes being purchased by such Purchaser, duly executed by an officer of the Company, in the aggregate principal amount set forth below such Purchaser’s name on the signature pages hereto.

 

(b) A legal opinion, dated the Closing Date and addressed to the Purchasers, from Hunton Andrews Kurth LLP, counsel for the Company, substantially in the form attached hereto as Annex C.

 

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In rendering such opinions described in this Subsection (b), counsel may rely as to factual matters upon certificates or other documents furnished by officers and directors of the Company (copies of which shall be delivered to such Purchaser) and by government officials, and upon such other documents as such counsel deem appropriate as a basis for their opinion.

 

(c) The Registration Rights Agreement, duly executed by an officer of the Company.

 

(d) The Warrant Agreement, duly executed by an officer of the Company.

 

(e) Resolutions of the Board of Directors of the Company, certified by the Secretary or Assistant Secretary of the Company, to be duly adopted and in full force and effect on such date, authorizing (i) the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the consummation of the transactions contemplated hereby, (ii) the issuance of the Notes and shares of Common Stock issuable upon conversion of the Notes, (iii) the issuance of any warrants pursuant to the terms hereof upon redemption of any Notes and the issuance of shares of Common Stock issuable upon exercise of such warrants and (iv) specific officers of the Company to execute and deliver this Agreement, the Registration Rights Agreement and the Notes.

 

(f) Certificates of the Chief Executive Officer or Chief Financial Officer of the Company, dated the Closing Date, certifying that (i) all of the conditions set forth in Sections 2.2, 2.3, 2.4 and 2.5 are satisfied on and as of such date and specifying as to each such condition the satisfaction thereof, (ii) all of the representations and warranties of the Company, as the case may be, contained or incorporated by reference herein are true and correct on and as of such date as though made on and as of such date (unless stated to relate to another date), and (iii) as to such other matters as any Purchaser may reasonably request.

 

(g) The Purchasers shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Company in its jurisdiction of organization and its good standing in such other jurisdictions as the Purchasers may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.

 

(h) Copies of the Charter Documents of the Company, certified as of a recent date by the Secretary of State of the relevant state of incorporation and certified by the Secretary or Assistant Secretary of the Company, as true and correct as of the Closing Date.

 

(i) Certificates of the Secretary or an Assistant Secretary of the Company as to the incumbency and signatures of the officers or representatives of such Company executing this Agreement, the Registration Rights Agreement, the Notes and any other certificate or other document to be delivered pursuant hereto or thereto, together with evidence of the incumbency of such Secretary or Assistant Secretary.

 

(j) Such additional information and materials as any Purchaser may reasonably request, including, without limitation, copies of any debt agreements, security agreements and other contracts to which the Company is a party.

 

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2.2 Consummation of the HOFV Acquisition.

 

All conditions to the closing of the HOFV Acquisition pursuant to the terms of the HOFV Acquisition Agreement shall be reasonably satisfied such that the Closing shall occur immediately prior to the closing of the HOFV Acquisition.

 

2.3 Representations and Warranties.

 

Unless stated to relate to another date, all of the representations and warranties of the Company contained or incorporated by reference herein shall be true and correct in all material respects (except that such phrase “in all material respects” shall be disregarded to the extent that any such representation and warranty is qualified by “material,” “Material Adverse Effect” or any similar terms or by any phrase using any of such terms) on and as of the Closing Date.

 

2.4 Additional Equity Capital.

 

The Company shall have sold newly issued Common Stock for gross proceeds of at least $20,000,000.

 

2.5 No Material Adverse Effect.

 

Subsequent to September 30, 2019: (a) the Company shall not have suffered any adverse change in its properties, business, operations, assets, condition (financial or otherwise) or prospects which could reasonably be expected to result in a Material Adverse Effect; and (b) (i) except as described the Company’s Registration Statement on Form S-4 filed on November 12, 2019 (as amended to date) there shall not have been any material change in the capital stock or long-term debt, or material increase in short-term debt, of any of the Company and (ii) the Company shall not have incurred any liability or obligation, direct or contingent, that is material to the Company or, is required to be disclosed on a balance sheet in accordance with GAAP and is not disclosed on the latest balance sheet previously provided to the Purchasers.

 

SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

 

The Company represents and warrants, on the date hereof and as of the Closing, as follows:

 

3.1 Authorization; Capitalization.

 

The Company has taken all actions necessary to authorize it (i) to execute, deliver and perform all of its obligations under the Agreement, and (ii) to consummate the transactions contemplated thereby. Without limiting the generality of the preceding sentence, the Company has taken all actions necessary to authorize it to issue and perform all of its obligations under the Notes. The Agreement is a legally valid and binding obligation of the Company, enforceable against it in accordance with its respective terms, except for (a) the effect thereon of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and (b) limitations imposed by equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions thereof and upon the availability of injunctive relief or other equitable remedies.

 

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Except as disclosed in the SEC Filings, on the Closing Date, there are no outstanding (i) securities convertible into or exchangeable for any Equity Interests of the Company, (ii) options, warrants or other rights to purchase or subscribe to Equity Interests of the Company or securities convertible into or exchangeable for Equity Interests of the Company, (iii) contracts, commitments, agreements, understandings, arrangements, calls or claims of any kind relating to the issuance of any Equity Interests of the Company, any such convertible or exchangeable securities or any such options, warrants or rights or (iv) voting trusts, agreements, contracts, commitments, understandings or arrangements with respect to the voting of any of the Equity Interests of the Company.

 

Other than the Registration Rights Agreement, the Company has not entered into an agreement to register its securities under the Securities Act. Other than this Agreement or as disclosed in the SEC Filings, the Company has not entered into any agreement to issue, purchase or sell any of its securities.

 

3.2 No Violation or Conflict; No Default.

 

(a) Neither the execution, delivery or performance of this Agreement, the Registration Rights Agreement or the Notes by the Company, nor the compliance with its respective obligations hereunder or thereunder, nor the consummation of the transactions contemplated hereby and thereby, nor the issuance, sale or delivery of the Notes will:

 

(i) violate any provision of the Charter Documents of the Company;

 

(ii) violate any statute, law, rule or regulation or any judgment, decree, order, regulation or rule of any court or governmental authority or body to which the Company or any of its respective properties may be subject;

 

(iii) permit or cause the acceleration of the maturity of any debt or obligation of the Company; or

 

(iv) violate, or be in conflict with, or constitute a default under, or permit the termination of, or require the consent of any Person under, or result in the creation or imposition of any Lien (other than Permitted Liens) upon any property of the Company under, any mortgage, indenture, loan agreement, note, debenture, agreement for borrowed money or any other agreement to which the Company is a party or by which the Company (or its properties) may be bound, other than such violations, conflicts, defaults, terminations and Liens, or such failures to obtain consents, which could not reasonably be expected to result in a Material Adverse Effect.

 

(b) The Company is not in default (without giving effect to any grace or cure period or notice requirement) under any agreement for borrowed money or under any agreement pursuant to which any of its securities were sold.

 

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3.3 Use of Proceeds.

 

The proceeds from the sale of the Notes pursuant to this Agreement will be to (i) fund the Company’s obligations pursuant to the HOFV Acquisition Agreement, (ii) to satisfy working capital obligations and (iii) to pay transaction fees and expenses.

 

3.4 No Material Adverse Change: Financial Statements.

 

(a) No Material Adverse Change. Since September 30, 2019 the Company has not suffered any material adverse change in its properties, business, operations, assets, condition (financial or otherwise) or prospects which could reasonably be expected to result in a Material Adverse Effect.

 

(b) Financial Statements. The Company previously provided to you (i) the audited consolidated balance sheet of the Company as of December 31, 2018 and 2017, (ii) related audited consolidated statements of income, changes in shareholders’ equity and cash flows for the fiscal years ended December 31, 2018 and 2017 and (iii) a consolidated unaudited balance sheet for the Company as of September 30, 2019 and 2018 and related statements of income, changes in shareholders’ equity and cash flows for the three-month periods ended September 30, 2019 and 2018. Such financial statements present fairly the consolidated financial position, results of operations, shareholders’ equity and cash flows of the Company at the respective dates or for the respective periods to which they apply. Except as disclosed therein, such statements and related notes have been prepared in accordance with GAAP consistently applied throughout the periods involved. All financial statements concerning the Company and its Subsidiaries that will hereafter be furnished by the Company to the Purchasers or any Holder pursuant to this Agreement will be prepared in accordance with GAAP (except as disclosed therein) and will present fairly in all material respects the financial condition of the corporations covered thereby as at the dates thereof and the results of their operations for the periods then ended.

 

(c) Projections. True and complete copies of (i) projections of the consolidated revenues, earnings before depreciation, interest and taxes, net income and capital expenditures of the Company and its Subsidiaries for each of the fiscal years ending December 31, 2020, 2021, 2022, 2023, 2024 and 2025 as furnished on the Company’s Current Report on Form 8-K filed on January 8, 2020, prepared by senior management of the Company (the “Projections”) and (ii) the assumptions and supplemental data used in preparing the Projections (collectively, the “Supplemental Data”) have been delivered by the Company to the Purchasers. The Projections were prepared on the basis of the Supplemental Data which represent a reasonable basis for such preparation. The Projections and the Supplemental Data reflect the best currently available estimates and judgment of the Company’s senior management as to the expected future financial performance of the Company and its Subsidiaries; provided that it is understood that there can be no assurances that suitable acquisition candidates can be found as shown in the acquisition model of the Projections.

 

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3.5 Full Disclosure.

 

Neither this Agreement (including without limitation the representations and warranties incorporated herein by reference), the financial statements referred to in Section 3.4, nor any other document, certificate or written statement furnished by or on behalf of the Company to any Purchaser in connection with the negotiation and sale of the Notes, when taken as a whole, contains any untrue statement of a material fact or omits or will omit to state a material fact necessary to make the statements contained herein or therein not misleading in light of the circumstances under which they were made. There is no material fact known to the Company that has had or could reasonably be expected to have a Material Adverse Effect and that has not been disclosed herein or in such other documents, certificates and written statements furnished to the Purchasers for use in connection with the transactions contemplated hereby.

 

3.6 Third Party Consents.

 

Neither the nature of the Company nor of any of its businesses or properties, nor any relationship between the Company and any other Person, nor any circumstance in connection with the offer, issuance, sale or delivery of the Notes at the Closing nor the performance by the Company of its other obligations hereunder or thereunder, or the consummation of the transactions contemplated by this Agreement, the Registration Rights Agreement or the Notes, as the case may be, is such as to require a consent, approval or authorization of, or notice to, or filing, registration or qualification with, any governmental authority or other Person on the part of the Company as a condition to the execution and delivery of this Agreement.

 

3.7 No Violation of Regulations of Board of Governors of Federal Reserve System.

 

None of the transactions contemplated by this Agreement (including, without limitation, the use of the proceeds from the sale of the Notes) will violate or result in a violation of Section 7 of the Exchange Act or any regulation issued pursuant thereto, including, without limitation, Regulations T, U and X of the Board of Governors of the Federal Reserve System.

 

3.8 Private Offering.

 

(a) Assuming the truth and correctness of the representations and warranties set forth in Section 4, the sale of the Notes hereunder is exempt from the registration and prospectus delivery requirements of the Securities Act.

 

(b) In the case of each offer or sale of the Notes, no form of general solicitation or general advertising was used by any of the Company or any of its Subsidiaries or their respective representatives, including, but not limited to, advertisements, articles, notices or other communications published in any newspaper, magazine or similar medium or broadcast over television or radio, or any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.

 

(c) The Purchasers are the sole purchasers of the Notes.

 

(d) Except as disclosed in the SEC Filings, no securities have been issued and sold by the Company within the six-month period immediately prior to the date hereof. None of the securities issued within such six-month period could be integrated with the issuance of the Notes as a single offering for purposes of the Securities Act, and the Company agrees that neither it, nor anyone acting on its behalf, will offer or sell the Notes, or any portion of them, if such offer or sale might bring the issuance and sale of the Notes to any Purchaser hereunder within the provisions of Section 5 of the Securities Act nor offer any similar securities for issuance or sale to, or solicit any offer to acquire any of the same from, or otherwise approach or negotiate with respect thereto with, anyone if the sale of the Notes and any such securities could be integrated as a single offering for the purposes of the Securities Act, including without limitation Regulation D thereunder.

 

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(e) It is not necessary, in connection with the transactions contemplated hereby, to qualify an indenture under the Trust Indenture Act of 1939, as amended.

 

3.9 Governmental Regulations.

 

None of the Company or any of its Subsidiaries is subject to regulation under the Investment Company Act of 1940, as amended, the Federal Power Act, the Interstate Commerce Act, the Commodity Exchange Act or to any Federal or state statute or regulation limiting its ability to incur indebtedness for borrowed money or consummate the transactions contemplated hereby.

 

3.10 Brokers.

 

The Company has not dealt with any broker, finder, commission agent or other such intermediary other than Maxim Group, LLC in connection with the sale of the Notes and the transactions contemplated by this Agreement, and the Company is not under any obligation to pay any broker’s or finder’s fee or commission or similar payment in connection with such transactions other than fees payable to Maxim Group, LLC in an amount not greater than $200,000.

 

3.11 Solvency.

 

Immediately prior to and after giving effect to the issuance of the Notes and the execution, delivery and performance of this Agreement, the Company is Solvent.

 

3.12 Litigation.

 

(a) There is no action, claim, suit, citation or proceeding (including, without limitation, an investigation or partial proceeding, such as a deposition), whether commenced, or to the knowledge of the Company, threatened (“Proceedings”) against or affecting the Company or any of its properties or assets, except for such Proceedings that, if finally determined adversely to the Company, could not reasonably be expected to have a Material Adverse Effect, and there is no Proceeding seeking to restrain, enjoin, prevent the consummation of or otherwise challenge this Agreement or the transactions contemplated hereby or thereby.

 

(b) The Company is not subject to any judgment, order, decree, rule or regulation of any court, governmental authority or arbitration board or tribunal that has had a Material Adverse Effect or that could reasonably be expected to have a Material Adverse Effect.

 

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3.13 Labor Relations.

 

Neither the Company, nor any Person for whom the Company is or may be responsible by law or contract, is engaged in any unfair labor practice that could reasonably be expected to have a Material Adverse Effect. There is (a) no unfair labor practice charge or complaint pending or threatened against the Company, or any Person for whom the Company is or may be responsible by law or contract, before the National Labor Relations Board or any corresponding state, local or foreign agency, and no grievance or arbitration proceeding arising out of or under any collective bargaining agreement is so pending or threatened, (b) no strike, labor dispute, slowdown or stoppage pending or threatened against the Company, or any Person for whom the Company is or may be responsible by law or contract, and (c) no union representation claim or question existing with respect to the employees of the Company, or any Person for whom the Company is or may be responsible by law or contract, and no union organizing activities taking place. Neither the Company, nor any Person for whom the Company is or may be responsible by law or contract, is a party to any collective bargaining agreement.

 

Except such as could not, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect, neither the Company nor any of its Subsidiaries has violated any applicable Federal, state, provincial or foreign law relating to employment or employment practices or the terms and conditions of employment, including, without limitation, discrimination in the hiring, promotion or pay of employees, wages, hours of work, plant closings and layoffs, collective bargaining, and occupational safety and health, or any provisions of ERISA or the rules and regulations promulgated thereunder or any other applicable law (whether foreign or domestic) relating to or governing the operation or maintenance of any plan or arrangement falling within the definition of an “employee benefit plan” (as such term is defined in Section 3 of ERISA) or any other employee benefit plan or arrangement.

 

3.14 Taxes.

 

All material Tax Returns required to be filed by the Company have been timely filed and such returns are true, complete and correct in all material respects. All material Taxes due or claimed to be due from the Company that are due and payable have been paid, other than those (i) being contested in good faith and for which an adequate reserve or accrual has been established in accordance with GAAP or (ii) those currently payable without penalty or interest and for which an adequate reserve or accrual has been established or extensions duly filed. The Company is not aware of (a) any actual or proposed material additional tax assessments or (b) any probable basis for the imposition of any material additional tax assessments for any fiscal period against the Company.

 

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3.15 ERISA.

 

None of the following events has occurred or exists: (i) a failure to fulfill the obligations, if any, under the minimum funding standards of Section 302 of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (“ERISA”) with respect to a Plan determined without regard to any waiver of such obligations or extension of any amortization period; (ii) an audit or investigation by the Internal Revenue Service, the U.S. Department of Labor, the Pension Benefit Guaranty Corporation or any other federal, state or foreign governmental or regulatory agency with respect to the employment or compensation of employees by the Company that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (iii) any breach of any contractual obligation, or any violation of law or applicable qualification standards, with respect to the employment or compensation of employees by the Company that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. None of the following events has occurred or is reasonably likely to occur: (1) a material increase in the aggregate amount of contributions required to be made to all Plans in the current fiscal year of the Company compared to the amount of such contributions made in the most recently completed fiscal year of the Company; (2) a material increase in the “accumulated post-retirement benefit obligations” (within the meaning of Statement of Financial Accounting Standards 106) of the Company compared to the amount of such obligations in the most recently completed fiscal year of the Company; (3) any event or condition giving rise to a liability under Title IV of ERISA that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect; or (4) the filing of a claim by one or more employees or former employees of the Company related to its or their employment that would reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect. For purposes of this paragraph and the definition of ERISA, the term “Plan” means a plan (within the meaning of Section 3(3) of ERISA) subject to Title IV of ERISA with respect to which the Company may have any liability.

 

3.16 Intellectual Property.

 

The Company owns or possesses adequate licenses or other rights to use all trademarks, service marks, trade names, copyrights, and know-how necessary to conduct the business now conducted by them, and the Company has not received any notice of infringement of or conflict with (or knows of such infringement of or conflict with) asserted rights of others with respect to trademarks, service marks, trade names, copyrights, or know-how which, individually or in the aggregate, could reasonably be expected to result in any Material Adverse Effect. The Company does not in the conduct of its business as now conducted, infringe or conflict with any right of any third party, known to the Company, where such infringement or conflict could reasonably be expected to result in any Material Adverse Effect.

 

3.17 Compliance with Laws.

 

The Company has maintained in good standing any licenses, permits, consents and authorizations required to be obtained by it under all laws or regulations relating to its business (collectively, the “Laws”), the absence of which (individually or in the aggregate) could reasonably be expected to have a Material Adverse Effect, and any such licenses, permits, consents and authorizations remain in full force and effect, except as to any of the foregoing the absence of which (individually or in the aggregate) could not reasonably be expected to have a Material Adverse Effect. The Company is in compliance with the Laws except for such noncompliance which, singly or in the aggregate, could not reasonably be expected to have a Material Adverse Effect, and there is no pending or, to the Company’s knowledge, threatened, action or proceeding against the Company under any of the Laws, other than any such actions or proceedings which, individually or in the aggregate, if adversely determined, could not reasonably be expected to have a Material Adverse Effect.

 

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3.18 Consummation of the HOFV Acquisition.

 

The HOFV Acquisition will be, on the Closing Date, duly consummated in accordance with the terms of the HOFV Acquisition Agreement without material amendment or waiver of any material term or provision thereof. On or prior the Closing Date, the Company shall have provided to each Purchaser copies of any material amendment or waiver to the HOFV Acquisition Agreement entered into or granted on or prior to the Closing Date. True and correct copies of the HOFV Acquisition Agreement have been delivered to each Purchaser. The Company is not in default under the HOFV Acquisition Agreement or under any instrument or document to be delivered in connection therewith.

 

3.19 HOFV Acquisition Agreement Representations.

 

Except as could not reasonably be expected to have a Material Adverse Effect, the representations and warranties of HOF Village contained in Sections 3.01, 3.02, 3.03, 3.06, 3.10, 3.11, 3.15, 3.17, 3.18 and 3.19 of the HOFV Acquisition Agreement are true and correct.

 

SECTION 4. REPRESENTATIONS AND WARRANTIES OF EACH PURCHASER.

 

Each Purchaser (as to itself only) and each Account Manager (as to the managed accounts of Purchasers) represents and warrants to the Company that:

 

4.1 Purchase for Own Account.

 

Such Purchaser or such Account Manager is purchasing the Notes to be purchased by it solely for its own account (or in the case of Account Managers, on behalf of managed accounts) and not as nominee or agent for any other person (other than for such managed accounts, if applicable) and not with a view to, or for offer or sale in connection with, any distribution thereof (within the meaning of the Securities Act) that would be in violation of the securities laws of the United States of America or any state thereof, without prejudice, however, to its right at all times to sell or otherwise dispose of all or any part of said Notes pursuant to a registration statement under the Securities Act or pursuant to an exemption from the registration requirements of the Securities Act, and subject, nevertheless, to the disposition of its property being at all times within its control.

 

4.2 Accredited Investor.

 

Such Purchaser or such Account Manager is knowledgeable, sophisticated and experienced in business and financial matters; it has previously invested in securities similar to the Notes and it acknowledges that the Notes have not been registered under the Securities Act and understands that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement; it (or, in the case of an Account Manager, the managed account on behalf of which the Account Manager is acting) is able to bear the economic risk of its investment in the Notes and is presently able to afford the complete loss of such investment; it (or, in the case of an Account Manager, the managed account on behalf of which the Account Manager is acting) is an “accredited investor” as defined in Regulation D promulgated under the Securities Act; and it has been afforded access to information about the Company and its financial condition and business sufficient to enable it to evaluate its investment in the Notes.

 

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4.3 Authorization.

 

Each Purchaser has taken all actions necessary to authorize it (or, in the case of an Account Manager, such Account Manager is duly authorized by the managed account for which it is acting) (i) to execute, deliver and perform all of its obligations under this Agreement, (ii) to perform all of its obligations under the Notes and (iii) to consummate the transactions contemplated hereby and thereby. This Agreement is a legally valid and binding obligation of each Purchaser enforceable against it in accordance with its terms, except for (a) the effect thereon of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting the rights of creditors generally and (b) limitations imposed by Federal or state law or equitable principles upon the specific enforceability of any of the remedies, covenants or other provisions thereof and upon the availability of injunctive relief or other equitable remedies.

 

4.4 Notes Restricted.

 

Each Purchaser acknowledges that the Notes have not been registered under the Securities Act and understands that the Notes must be held indefinitely unless they are subsequently registered under the Securities Act or such sale is permitted pursuant to an available exemption from such registration requirement.

 

No transfer or sale (including, without limitation, by pledge or hypothecation) of the Notes by any Holder which is otherwise permitted hereunder, other than a transfer or sale to the Company, shall be effective unless such transfer or sale is made (a) pursuant to an effective registration statement under the Act and a valid qualification under applicable state securities or “blue sky” laws or (b) without such registration or qualification as a result of the availability of an exemption therefrom, and, if reasonably requested by the Company, counsel for such Holder shall have furnished the Company with an opinion, reasonably satisfactory in form and substance to the Company, to the effect that no such registration is required because of the availability of an exemption from the registration requirements of the Securities Act; provided, however, that with respect to transfers by Holders to their Affiliates, no such opinion shall be required. A transfer made by a Holder which is a state-sponsored employee benefit plan to a successor trust or fiduciary pursuant to a statutory reconstitution shall be expressly permitted and no opinions of counsel shall be required in connection therewith.

 

4.5 ERISA.

 

Such Purchaser represents that either:

 

(a) it is not acquiring the Notes for or on behalf of any Plan;

 

(b) the assets used to acquire the Notes are assets of an insurance company general account and the purchase of the Notes would be exempt under the provisions of the Prohibited Transaction Class Exemption (“PTCE”) 95-60; or

 

(c) if it is acquiring the Notes on behalf of a Plan, either directly or through an investment fund (such as a “bank collective investment fund” as defined in PTCE 91-38 or an “insurance company pooled separate account” as defined in PTCE 90-1), then, assuming that the plans listed in Schedule 3.17 are the only employee benefit plans (as defined in Section 3 of ERISA) or Plans with respect to which NFC is a “party in interest” or “disqualified person” (as such terms are defined in Section 3 of ERISA and Section 4975 of the Internal Revenue Code, respectively), either

 

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(i) no part of the funds to be used to purchase the Notes constitutes assets allocable to any trust that contains assets of the employee benefit plans listed in Schedule 3.17, or

 

(ii) an exemption from the prohibited transaction rules applies such that the use of such funds does not constitute a non-exempt prohibited transaction in violation of Section 406 of ERISA or Section 4975 of the Internal Revenue Code, which could be subject to a civil penalty assessed pursuant to Section 502 of ERISA or a tax imposed under Section 4975 of the Internal Revenue Code.

 

The representations contained in this Section 4.5 are made in express reliance on the list of employee benefit plans contained in Schedule 3.17.

 

SECTION 5. COVENANTS.

 

So long as any of the Notes remain unpaid and outstanding, the Company covenants to the Holders of outstanding Notes as follows:

 

5.1 Payment of Notes.

 

The Company shall pay the principal of, premium, if any, and interest on the Notes on the dates and in the manner provided in the Notes. To the extent lawful, the Company shall pay interest (including interest accruing after the commencement of any proceeding under any Bankruptcy Law) on all due and unpaid amounts outstanding under the Notes (including overdue installments of principal or interest) at a rate equal to 8.00% per annum, compounded quarterly, except as provided in Section 1 of the Notes. PIK Interest paid pursuant to Section 1 of the Notes shall not constitute due and unpaid amounts outstanding under the Notes.

 

5.2 Stay, Extension and Usury Laws.

 

The Company covenants and agrees (to the extent that it may lawfully do so) that it will not at any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, and will use its best efforts to resist any attempts to claim or take the benefit of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of its obligations under this Agreement or the Notes; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Holders, but will suffer and permit the execution of every such power as though no such law has been enacted.

 

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5.3 Reports.

 

(a) Regardless of whether required by the rules and regulations of the SEC, so long as any Notes are outstanding, the Company will furnish to the Holders of Notes to the Holders of Notes, within the time periods specified in the SEC’s rules and regulations:

 

(i) all quarterly and annual reports that would be required to be filed with the SEC on Forms 10-Q and 10-K if the Company were required to file such reports; and

 

(ii) all current reports that would be required to be filed with the SEC on Form 8-K if the Company were required to file such reports.

 

All such reports will be prepared in all material respects in accordance with all of the rules and regulations applicable to such reports and shall certified by the chief financial officer of the Company that they fairly present in all material respects the consolidated financial condition of the Company and its Subsidiaries as at the dates indicated and the results of their operations and their cash flows for the periods indicated, subject to changes resulting from audit and normal year-end adjustments. Each annual report on Form 10-K will include a report on the Company’s consolidated financial statements by the Company’s certified independent accountants.

 

(b) If the Company has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by paragraph (a) of this Section 5.3 will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management’s Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of the Company and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of the Company.

 

(c) The Company will be deemed to have furnished the reports required by paragraphs (a) and (b) of this Section 5.3 to the Holders of the Notes if it has filed such reports or information, respectively, with the SEC using the EDGAR filing system (or any successor filing system of the SEC) or, if the Company has posted such reports or information, respectively, on its website, and such reports, certifications or information, respectively, are available to the Holders of the Notes through internet access.

 

(d) Any and all Defaults or Events of Default arising from a failure to furnish or file in a timely manner a report or certification required by this Section 5.3 shall be deemed cured (and the Company shall be deemed to be in compliance with this Section 5.3) upon furnishing or filing such report or certification as contemplated by this Section 5.3 (but without regard to the date on which such report or certification is so furnished or filed); provided that such cure shall not otherwise affect the rights of the Holders under Section 7 hereof if the principal, premium, if any, and interest, if any, have been accelerated in accordance with the terms of this Agreement and the Notes and such acceleration has not been rescinded or cancelled prior to such cure.

 

5.4 Compliance Certificate.

 

(a) The Company shall deliver to the Holders, within forty-five (45) days after the end of each fiscal quarter and within ninety (90) days after each fiscal year, an Officers’ Certificate stating that a review of the activities of the Company and its Restricted Subsidiaries during the preceding fiscal quarter or fiscal year, as the case may be, has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Agreement and the Notes, and further stating, as to each such Officer signing such certificate, that to his or her knowledge, the Company has kept, observed, performed and fulfilled each and every covenant contained in this Agreement (or, if a violation or event that, with notice or the passage of time or both would be a violation shall have occurred, describing all such violations or prospective violations of which he or she may have knowledge) and that to his or her knowledge no event has occurred and remains in existence by reason of which payments of interest, principal or premium on the Notes are prohibited or if such event has occurred, a description of the event. The Officers’ Certificate shall set forth all financial calculations for such fiscal quarter or fiscal year necessary to demonstrate compliance with the covenants contained in this Section 5.

 

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(b) The Company shall deliver to the Holders, forthwith upon becoming aware of (i) any Default or Event of Default or (ii) any default or event of default under any other loan agreement, mortgage, indenture or instrument referred to in Section 7.1(e), an Officers’ Certificate specifying in reasonable detail such Default, Event of Default or default or event of default and the nature of any remedial or corrective action the Company proposes to take with respect thereto.

 

5.5 Restricted Payments.

 

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly:

 

(i) declare or pay any dividend or make any other payment or distribution on account of the Company’s or any of its Restricted Subsidiaries’ Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving the Company or any of its Restricted Subsidiaries) or to the direct or indirect holders of the Company’s or any of its Restricted Subsidiaries’ Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of the Company and other than dividends or distributions payable to the Company or a Restricted Subsidiary of the Company);

 

(ii) purchase, redeem or otherwise acquire or retire for value (including without limitation, in connection with any merger or consolidation involving the Company) any Equity Interests of the Company or any direct or indirect parent of the Company;

 

(iii) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Subordinated Indebtedness, except a payment of interest or principal at the Stated Maturity thereof; or

 

(iv) make any Restricted Investment (all such payments and other actions set forth in these clauses (i) through (iv) above being collectively referred to as “Restricted Payments”),

 

unless, at the time of and after giving effect to such Restricted Payment:

 

(i) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment;

 

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(ii) the Company would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in Section 5.7 hereof; and

 

(iii) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by the Company and its Restricted Subsidiaries since the Issue Date (excluding Restricted Payments permitted by clauses (ii), (iii), (iv), (v), (vi), (vii), (viii) and (xi) of paragraph (b) of this Section 5.5), is less than the sum, without duplication, of:

 

(1) 50% of the Consolidated Net Income of the Company for the period (taken as one accounting period) from the beginning of the fiscal quarter during which the Issue Date occurs to the end of the Company’s most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit); plus

 

(2) 100% of (A)(i) the aggregate net cash proceeds and (ii) the Fair Market Value of (x) marketable securities (other than marketable securities of the Company), (y) Capital Stock of a Person (other than the Company or an Affiliate of the Company) engaged in a Permitted Business and (z) other assets used in any Permitted Business, in the case of clauses (i) and (ii), received by the Company since the Issue Date as a contribution to its common equity capital or from the issue or sale of Equity Interests of the Company (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of the Company that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of the Company), (B) the amount by which Indebtedness of the Company or any Restricted Subsidiary is reduced on the Company’s consolidated balance sheet upon the conversion or exchange after the Issue Date of any such Indebtedness into or for Equity Interests (other than Disqualified Stock) of the Company, and (C) the aggregate net cash proceeds, if any, received by the Company or any of its Restricted Subsidiaries upon any conversion or exchange described in clause (1) or (2) above; plus

 

(3) with respect to Restricted Investments made by the Company and its Restricted Subsidiaries after the Issue Date, an amount equal to the sum of (A) the net reduction in such Restricted Investments in any Person resulting from (i) repayments of loans or advances, or other transfers of assets, in each case to the Company or any Restricted Subsidiary, (ii) other repurchases, repayments or redemptions of such Restricted Investments, (iii) the sale of any such Restricted Investment or (iv) the release of any Guarantee (except to the extent any amounts are paid under such Guarantee) plus (B) all amounts representing the return of capital (excluding dividends and distributions) to the Company or any Restricted Subsidiary in respect of such Restricted Investment plus (C) with respect to any Unrestricted Subsidiary that the Board of Directors of the Company redesignates as a Restricted Subsidiary, the Fair Market Value of the Investment in such Subsidiary held by the Company or any of its Restricted Subsidiaries at the time of such redesignation.

 

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(b) The provisions of Section 5.5(a) hereof will not prohibit:

 

(i) the payment of any dividend or the consummation of any irrevocable redemption within 60 days after the date of declaration of the dividend or giving of the redemption notice, as the case may be, if at the date of declaration or notice, the dividend or redemption payment would have complied with the provisions of this Agreement and the Notes;

 

(ii) the making of any Restricted Payment in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Subsidiary of the Company) of, Equity Interests of the Company (other than Disqualified Stock) or from the substantially concurrent contribution (other than by a Subsidiary of the Company) of capital to the Company in respect of its Equity Interests (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof;

 

(iii) the repurchase, redemption, defeasance or other acquisition or retirement for value of Subordinated Indebtedness (including the payment of any required premium and any fees and expenses incurred in connection with such repurchase, redemption, defeasance or other acquisition) with the net cash proceeds from a substantially concurrent incurrence of Permitted Refinancing Indebtedness; provided that the amount of any such net cash proceeds that are utilized for any such Restricted Payment will be excluded from clause (iii)(2) of Section 5.5(a) hereof;

 

(iv) the payment of any dividend (or, in the case of any partnership or limited liability company, any similar distribution) by a Restricted Subsidiary of the Company to the holders of the Equity Interests (other than Disqualified Stock) of such Restricted Subsidiary; provided that such dividend or similar distribution is paid to all holders of such Equity Interests on a pro rata basis based on their respective holdings of such Equity Interests;

 

(v) the payment of any dividend on the EB-5 Preferred Stock;

 

(vi) the repurchase, redemption or other acquisition or retirement of Equity Interests deemed to occur upon the exercise or exchange of stock options, warrants or other similar rights to the extent such Equity Interests represent a portion of the exercise or exchange price of those stock options, and the repurchase, redemption or other acquisition or retirement of Equity Interests made in lieu of withholding taxes resulting from the exercise or exchange of stock options, warrants or other similar rights;

 

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(vii) so long as no Default has occurred and is continuing or would be caused thereby, the declaration and payment of regularly scheduled or accrued dividends to holders of any class or series of Disqualified Stock of the Company or any Restricted Subsidiary of the Company or any class or series of preferred stock of a Restricted Subsidiary of the Company, in each case issued on or after the Issue Date in accordance with the Fixed Charge Coverage Ratio test described in Section 5.7 hereof;

 

(viii) payments to fund the purchase by the Company of fractional shares arising out of stock dividends, splits or combination or business combinations;

 

(ix) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of the Company or any Restricted Subsidiary of the Company held by any of the Company’s (or any of its Restricted Subsidiaries’) current or former directors or employees; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed the Fair Market Value thereof and furthermore may not exceed, in any twelve-month period since the Issue Date, $0.5 million (with unused amounts (with respect to the $0.5 million limit referred to above) in any 12-month period after such date being permitted to be carried over into succeeding 12-month periods); provided, further, that the amounts in any such 12-month period may be increased by an amount not to exceed (1) the cash proceeds received by the Company or any of its Restricted Subsidiaries from the sale of the Company’s Equity Interests (other than Disqualified Stock) to any such directors or employees that occurs after the Issue Date (provided that the amount of such cash proceeds utilized for any such repurchase, retirement or other acquisition or retirement will not increase the amount available for Restricted Payments under clause (iii) of the immediately preceding paragraph and to the extent such proceeds have not otherwise been applied to the payment of Restricted Payments) plus (2) the cash proceeds of key man life insurance policies received by the Company and its Restricted Subsidiaries after the Issue Date;

 

(x) the purchase or redemption of any Acquired Subordinated Indebtedness of the Company or any of its Restricted Subsidiaries, by application of (i) cash provided from operations in the ordinary course of business or (ii) proceeds from borrowings under the revolving portion of any Credit Facility (so long as within 30 days prior to such purchase or redemption, a corresponding amount of borrowings under the revolving portion of such Credit Facility was repaid from cash provided from operations in the ordinary course of business); provided, in any such case, that the Company is able to incur an additional $1.00 of Indebtedness pursuant to Section 5.5(a) hereof after giving effect to such purchase or redemption; provided, further, that this clause (x) shall not permit the application of any proceeds from any other borrowings under any Credit Facility to effect any such purchase or redemption; and

 

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(xi) so long as no Default has occurred and is continuing or would be caused thereby, other Restricted Payments in an aggregate amount not to exceed $5.0 million since the Issue Date.

 

The amount of all Restricted Payments (other than cash) shall be the Fair Market Value on the date of such Restricted Payment of the asset(s) or securities proposed to be paid, transferred or issued by the Company or such Restricted Subsidiary, as the case may be, pursuant to such Restricted Payment. The Fair Market Value of any cash Restricted Payment shall be its face amount, and the Fair Market Value of any non-cash Restricted Payment exceeding $5.0 million shall be determined conclusively by two senior officers of the Company acting in good faith whose conclusions with respect thereto shall be set forth in an Officers’ Certificate delivered to the Holders; provided, however, that if the Fair Market Value of any non-cash Restricted Payment exceeds $10.0 million, such Fair Market Value shall be determined conclusively by the Board of Directors of the Company and set forth in a board resolution, and a certified copy of such board resolution shall be delivered to the Holders. For purposes of determining compliance with this Section 5.5, in the event that a Restricted Payment meets the criteria of more than one of the exceptions described in (i) through (xi) above or is entitled to be made pursuant to Section 5.5(a) hereof, the Company shall, in its sole discretion, classify such Restricted Payment, or later classify, reclassify or re-divide all or a portion of such Restricted Payment, in any manner that complies with this Section 5.5.

 

5.6 Dividend and other Payment Restrictions Affecting Subsidiaries.

 

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to:

 

(i) (x) pay dividends or make any other distributions on its Capital Stock to the Company or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or (y) pay any indebtedness owed to the Company or any of its Restricted Subsidiaries;

 

(ii) make loans or advances to the Company or any of its Restricted Subsidiaries; or

 

(iii) sell, lease or transfer any of its properties or assets to the Company or any of its Restricted Subsidiaries.

 

(b) The restrictions in Section 5.6(a) hereof will not apply to encumbrances or restrictions existing under or by reason of:

 

(i) agreements or instruments governing Existing Indebtedness as in effect on the Issue Date and any amendments, restatements, modifications, increases, renewals, supplements, refundings, replacements or refinancings of those agreements or instruments; provided that the amendments, restatements, modifications, increases, renewals, supplements, refundings, replacements or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements or instruments on the Issue Date;

 

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(ii) this Agreement, the Notes and the Subsidiary Guarantees;

 

(iii) applicable law, rule, regulation or order;

 

(iv) any instrument governing Indebtedness or Capital Stock of a Person acquired by the Company or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of this Agreement to be incurred;

 

(v) customary non-assignment provisions in contracts and licenses entered into in the ordinary course of business;

 

(vi) purchase money obligations for property acquired in the ordinary course of business and Capital Lease Obligations that impose restrictions on the property purchased or leased of the nature described in clause (iii) of Section 5.6(a) hereof;

 

(vii) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending the sale or other disposition;

 

(viii) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are not materially more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being refinanced;

 

(ix) Liens permitted to be incurred under the provisions of Section 5.10 hereof that limit the right of the debtor to dispose of the assets subject to such Liens;

 

(x) provisions limiting the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, sale-leaseback agreements, stock sale agreements, security agreements, mortgages, purchase money agreements and other similar agreements or instruments entered into with the approval of the Company’s Board of Directors, which limitation is applicable only to the assets that are the subject of such agreements;

 

(xi) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business; and

 

(xii) any EB-5 Preferred Stock; provided that the restrictions contained in the agreements or instruments governing such EB-5 Preferred Stock (x) apply only in the event of a payment default or a default with respect to a financial covenant in such agreement or instrument or (y) will not materially affect the Company’s ability to make principal, interest and premium, if any, on the Notes, as determined in the reasonable good faith judgment of the Chief Financial Officer of the Company.

 

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5.7 Incurrence of Indebtedness and Issuance of Preferred Stock.

 

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, “incur;” with “incurrence” having a correlative meaning) any Indebtedness (including Acquired Debt), and the Company will not issue any Disqualified Stock and will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that the Company may incur Indebtedness (including Acquired Debt) and issue Disqualified Stock, and the Company’s Restricted Subsidiaries may incur Indebtedness (including Acquired Debt) and issue preferred stock, if the Fixed Charge Coverage Ratio for the Company’s most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such Disqualified Stock or preferred stock is issued, as the case may be, would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the Disqualified Stock or preferred stock had been issued, as the case may be, at the beginning of such four-quarter period.

 

(b) Notwithstanding the foregoing, the provisions of Section 5.7(a) hereof will not prohibit the incurrence of any of the following (the items of Indebtedness described below in this paragraph (b) being referred to collectively as “Permitted Debt”):

 

(i) the incurrence by the Company and any Restricted Subsidiary of additional Indebtedness and letters of credit under Credit Facilities in an aggregate principal amount at any one time outstanding under this clause (i) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of the Company and its Restricted Subsidiaries thereunder) not to exceed the greater of (1) $275.0 million or (2) 25% of Consolidated Tangible Assets; provided, that the maximum amount permitted to be outstanding under this clause (i) shall not be deemed to limit additional Indebtedness under the Credit Facilities to the extent the incurrence of such additional Indebtedness is permitted pursuant to any of the other provisions of this Section 5.7;

 

(ii) the incurrence of Existing Indebtedness;

 

(iii) the incurrence by the Company of Indebtedness represented by the Notes and the related Subsidiary Guarantees to be issued on the Issue Date;

 

(iv) the incurrence by the Company or any Restricted Subsidiary of the Company of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction, installation, improvement, deployment, refurbishment, modification or lease of property, plant or equipment or furniture, fixtures and equipment, in each case used in the business of the Company or such Restricted Subsidiary, in an aggregate amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (iv), not to exceed $25.0 million at any time outstanding;

 

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(v) the incurrence by the Company or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to renew, refund, refinance, replace, defease or discharge, any Indebtedness (other than intercompany Indebtedness) that was permitted by this Agreement to be incurred under Section 5.7(a) hereof or clauses (ii), (iii), (iv), (v), (xiii), (xv) or (xvi) of this Section 5.7(b);

 

(vi) the incurrence by the Company or any of its Restricted Subsidiaries of intercompany Indebtedness owing to and held by the Company or any of its Restricted Subsidiaries; provided, however, that:

 

(1) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than the Company or a Restricted Subsidiary of the Company; and

 

(2) any sale or other transfer of any such Indebtedness to a Person that is not either the Company or a Restricted Subsidiary of the Company, will be deemed, in each case, to constitute an incurrence of such Indebtedness by the Company or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (vi);

 

(vii) the issuance by any of the Company’s Restricted Subsidiaries to the Company or to any of its Restricted Subsidiaries of shares of preferred stock; provided, however, that:

 

(1) any subsequent issuance or transfer of Equity Interests that results in any such preferred stock being held by a Person other than the Company or a Restricted Subsidiary of the Company; and

 

(2) any sale or other transfer of any such preferred stock to a Person that is not either the Company or a Restricted Subsidiary of the Company,

 

will be deemed, in each case, to constitute an issuance of such preferred stock by such Restricted Subsidiary that was not permitted by this clause (vii);

 

(viii) the incurrence of a Guarantee by the Company or any of its Restricted Subsidiaries of Indebtedness of the Company or a Restricted Subsidiary of the Company that was permitted to be incurred by another provision of this Section 5.7; provided that if the Indebtedness being guaranteed is Subordinated Indebtedness, then the Guarantee shall be subordinated to the same extent as the contractual subordination applicable to the Indebtedness guaranteed;

 

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(ix) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness constituting reimbursement obligations with respect to letters of credit issued in the ordinary course of business; provided that, upon the drawing of such letters of credit or the incurrence of such Indebtedness, such obligations are reimbursed within one year following such drawing or incurrence;

 

(x) the incurrence by the Company of Indebtedness to the extent that the net proceeds thereof are promptly deposited to fully defease or to fully satisfy and discharge the Notes;

 

(xi) Indebtedness consisting of the financing of insurance premiums in customary amounts consistent with the operations and business of the Company and its Restricted Subsidiaries in the ordinary course of business;

 

(xii) the incurrence by the Company or any of its Restricted Subsidiaries of Indebtedness arising from agreements of the Company or any of its Restricted Subsidiaries providing for indemnification, adjustment of purchase price or similar obligations, in each case, incurred or assumed in connection with the disposition of any business, assets or Capital Stock of a Subsidiary; provided that the maximum aggregate liability in respect of all such Indebtedness shall at no time exceed the gross proceeds actually received by the Company and its Restricted Subsidiaries in connection with such disposition;

 

(xiii) the incurrence of Permitted Public Finance Instruments not to exceed $175.0 million in aggregate principal amount at any one time outstanding;

 

(xiv) the incurrence of the EB-5 Preferred Stock; provided that if the EB-5 Preferred Stock constitutes Disqualified Stock, the aggregate liquidation preference EB-5 Preferred Stock that may be incurred pursuant to this clause 5.7(b)(xiv) shall not exceed $50.0 million;

 

(xv) the incurrence of Permitted Acquisition Indebtedness; and

 

(xvi) the incurrence by the Company or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to renew, refund, refinance, replace, defease or discharge any Indebtedness incurred pursuant to this clause (xvi), not to exceed (a) the greater of $25.0 million or (b) 10% of the Company’s Consolidated Tangible Assets.

 

(c) Notwithstanding the foregoing provisions of this Section 5.7, the Company will not at any time permit Consolidated Net Funded Debt to exceed the sum of (i) $300.0 million plus (ii) the aggregate principal amount of the Exempt Funded Debt.

 

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For purposes of determining compliance with this Section 5.7, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (i) through (xvi) above or is entitled to be incurred pursuant to Section 5.7(a) hereof, the Company will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this Section 5.7. Indebtedness under Credit Facilities outstanding on the date on which Notes are first issued and authenticated under this Agreement will initially be deemed to have been incurred on such date in reliance on the exception provided by clause (i) of the definition of Permitted Debt. The accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, the reclassification of preferred stock as Indebtedness due to a change in accounting principles, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this Section 5.7; provided, in each such case, that the amount of any such accrual, accretion or payment is included in Fixed Charges of the Company as accrued. Notwithstanding any other provision of this Section 5.7, the maximum amount of Indebtedness that the Company or any Restricted Subsidiary may incur pursuant to this Section 5.7 shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values.

 

The amount of any Indebtedness outstanding as of any date will be:

 

(i) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount;

 

(ii) in respect of Indebtedness of another Person secured by a Lien on the assets of the specified Person, the lesser of:

 

(A) the Fair Market Value of such asset at the date of determination; and

 

(B) the amount of the Indebtedness of the other Person; and

 

(iii) the principal amount of the Indebtedness, in the case of any other Indebtedness.

 

5.8 Asset Sales.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless:

 

(a) the Company (or the Restricted Subsidiary, as the case may be) receives consideration in respect of such Asset Sale at least equal to the Fair Market Value of the assets or Equity Interests issued or sold or otherwise disposed of; and

 

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(b) either (x) at least 75% of the consideration received in the Asset Sale by the Company or such Restricted Subsidiary is in the form of cash or (y) the Fair Market Value of all forms of consideration other than cash received for all Asset Sales since the Issue Date does not exceed in the aggregate 10% of the Consolidated Tangible Assets of the Company at the time each determination is made. For purposes of this provision, each of the following will be deemed to be cash:

 

(i) any liabilities, as shown on the Company’s most recent consolidated balance sheet (or as would be shown on the Company’s consolidated balance sheet as of the date of such Asset Sale) of the Company or any Restricted Subsidiary (other than contingent liabilities, Indebtedness that is by its terms subordinated to the Notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets or Equity Interests pursuant to (1) a written novation agreement that releases the Company or such Restricted Subsidiary from further liability therefor or (2) an assignment agreement that includes, in lieu of such a release, the agreement of the transferee or its parent company to indemnify and hold harmless the Company or such Restricted Subsidiary from and against any loss, liability or cost in respect of such assumed liability;

 

(ii) any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are converted by the Company or such Restricted Subsidiary into cash within 270 days after the date of the Asset Sale, to the extent of the cash received in that conversion;

 

(iii) any stock or assets of the kind referred to in clauses (ii) or (iv) of the next paragraph of this Section 5.8; and

 

(iv) accounts receivable of a business retained by the Company or any Restricted Subsidiary, as the case may be, following the sale of such business, provided, that such accounts receivable are not past due more than 90 days and do not have a payment date greater than 120 days from the date of the invoice creating such accounts receivable.

 

Within 360 days after the receipt of any Net Proceeds from an Asset Sale, the Company (or its Restricted Subsidiaries, as the case may be) may apply an amount equal to such Net Proceeds at its option:

 

(i) to repay, redeem or repurchase any Senior Debt;

 

(ii) to acquire all or substantially all of the assets of, or any Capital Stock of, another Person engaged in a Permitted Business, if, after giving effect to any such acquisition of Capital Stock, such Person is or becomes a Restricted Subsidiary of the Company;

 

(iii) to make a capital expenditure; or

 

(iv) to acquire other assets that are not classified as current assets under GAAP and that are used or useful in a Permitted Business;

 

provided, however, that if, during such 360-day period, the Company and/or any of its Restricted Subsidiaries enters into a binding contract with a Person other than an Affiliate of the Company to apply such amount pursuant to clauses (ii) or (iii) above, then such 360-day period shall be extended until the earlier of (a) the date on which such acquisition or expenditure is consummated, and (b) the 180th day following the expiration of the aforementioned 360-day period.

 

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Pending the final application of any Net Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by this Agreement. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the second paragraph of this Section 5.8 will constitute “Excess Proceeds.”

 

If on any date, the aggregate amount of Excess Proceeds exceeds $20.0 million, then within ten Business Days after such date, the Company will make an offer (an “Asset Sale Offer”) to all Holders of Notes and all holders of other Indebtedness that is pari passu in right of payment with the Notes containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of Notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of the principal amount plus accrued and unpaid interest, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain unapplied after consummation of an Asset Sale Offer, the Company and its Restricted Subsidiaries may use those Excess Proceeds for any purpose not otherwise prohibited by this Agreement or the Notes. If the aggregate principal amount of Notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the Holders shall select the Notes and such other pari passu Indebtedness to be purchased on a pro rata basis. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero.

 

Notwithstanding anything in this Section 5.8 to the contrary, the sale, conveyance or other disposition of all or substantially all of the assets of the Company and its Restricted Subsidiaries, considered as a single enterprise, will be governed by Section 5.11 hereof and not by this Section 5.8.

 

The Company will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with each repurchase of Notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.8, or compliance with the provisions of this Section 5.8 would constitute a violation of any such laws or regulations, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5.8 by virtue of such compliance.

 

In the event that, pursuant to the preceding provisions of this Section 5.8, the Company is required to commence an Asset Sale Offer, it will follow the procedures specified below.

 

The Asset Sale Offer shall be made to all Holders and all holders of other Indebtedness that is pari passu with the Notes containing provisions similar to those set forth in this Agreement with respect to offers to purchase or redeem with the proceeds of sales of assets. The Asset Sale Offer will remain open for a period of at least 20 Business Days following its commencement and not more than 30 Business Days, except to the extent that a longer period is required by applicable law (the “Offer Period”). No later than three Business Days after the termination of the Offer Period (the “Purchase Date”), the Company will apply all Excess Proceeds (the “Offer Amount”) to the purchase of Notes and such other pari passu Indebtedness (on a pro rata basis, if applicable) or, if less than the Offer Amount has been tendered, all Notes and other Indebtedness tendered in response to the Asset Sale Offer. Payment for any Notes so purchased will be made in the same manner as interest payments are made.

 

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If the Purchase Date is on or after an interest record date and on or before the related interest payment date, any accrued and unpaid interest, if any, will be paid to the Person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Holders who tender Notes pursuant to the Asset Sale Offer.

 

Upon the commencement of an Asset Sale Offer, the Company will send, by first class mail, a notice to each of the Holders. The notice will contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Asset Sale Offer. The notice, which will govern the terms of the Asset Sale Offer, will state:

 

(i) that the Asset Sale Offer is being made pursuant to this Section 5.8 and the length of time the Asset Sale Offer will remain open;

 

(ii) the Offer Amount, the purchase price and the Purchase Date;

 

(iii) that any Note not tendered or accepted for payment will continue to accrue interest;

 

(iv) that, unless the Company defaults in making such payment, any Note accepted for payment pursuant to the Asset Sale Offer will cease to accrue interest after the Purchase Date;

 

(v) that Holders electing to have a Note purchased pursuant to an Asset Sale Offer may elect to have Notes purchased in integral multiples of $1,000 only;

 

(vi) that Holders electing to have Notes purchased pursuant to any Asset Sale Offer will be required to surrender the Note, with the form entitled “Option of Holder to Elect Purchase” attached to the Notes completed, or transfer by book-entry transfer, to the Company;

 

(vii) that Holders will be entitled to withdraw their election if the Company receives, not later than the expiration of the Offer Period, a telegram, telex, facsimile transmission or letter setting forth the name of the Holder, the principal amount of the Note the Holder delivered for purchase and a statement that such Holder is withdrawing its election to have such Note purchased;

 

(viii) that, if the aggregate principal amount of Notes and other pari passu Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Company will select the Notes and other pari passu Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other pari passu Indebtedness surrendered (with such adjustments as may be deemed appropriate by the Company so that only Notes in denominations of $2,000 and integral multiples of $1,000 in excess thereof, will be purchased); and

 

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(ix) that Holders whose Notes were purchased only in part will be issued new Notes equal in principal amount to the unpurchased portion of the Notes surrendered (or transferred by book-entry transfer).

 

On or before the Purchase Date, the Company will, to the extent lawful, accept for payment, on a pro rata basis to the extent necessary, the Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale Offer, or if less than the Offer Amount has been tendered, all Notes tendered, and will deliver or cause to be delivered to the Holders the Notes properly accepted together with an Officers’ Certificate stating that such Notes or portions thereof were accepted for payment by the Company in accordance with the terms of this Section 5.8. The Company will promptly (but in any case not later than five days after the Purchase Date) mail or deliver to each tendering Holder an amount equal to the purchase price of the Notes tendered by such Holder and accepted by the Company for purchase, and the Company, will promptly issue a new Note to such Holder, in a principal amount equal to any unpurchased portion of the Note surrendered. Any Note not so accepted shall be promptly mailed or delivered by the Company to the Holder thereof. The Company will publicly announce the results of the Asset Sale Offer on the Purchase Date.

 

5.9 Transactions with Affiliates.

 

(a) The Company will not, and will not permit any of its Restricted Subsidiaries to, make any payment to or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate of the Company (each, an “Affiliate Transaction”), unless:

 

(1) the Affiliate Transaction is on terms that are no less favorable to the Company or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated Person or, if in the good faith judgment of the Board of Directors of the Company, no comparable transaction is available with which to compare such Affiliate Transaction, such Affiliate Transaction is otherwise fair to the Company or the relevant Restricted Subsidiary from a financial point of view; and

 

(2) the Company delivers to the Holders:

 

(A) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $5.0 million but less than or equal to $10.0 million, an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this Section 5.9; and

 

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(B) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, a resolution of the Board of Directors of the Company set forth in an Officers’ Certificate certifying that such Affiliate Transaction or series of related Affiliate Transactions complies with this this Section 5.9 and that such Affiliate Transaction or series of related Affiliate Transactions has been approved by either a conflicts committee of the Board of Directors of the Company (so long as the members of such conflicts committee approving the Affiliate Transaction or series of related Affiliate Transactions are disinterested) or a majority of the disinterested members of the Board of Directors of the Company, if any.

 

(b) The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of Section 5.9(a) hereof:

 

(1) any employment, consulting or similar agreement or arrangement, employee benefit plan, equity award, equity option, equity appreciation, officer or director indemnification agreement, restricted unit agreement, severance agreement or other compensation plan or arrangement entered into by the Company or any of its Restricted Subsidiaries in the ordinary course of business and payments, awards, grants or issuances of securities made pursuant thereto;

 

(2) transactions between or among the Company and/or its Restricted Subsidiaries;

 

(3) transactions with a Person (other than an Unrestricted Subsidiary) that is an Affiliate of the Company solely because the Company owns, directly or through a Subsidiary, an Equity Interest in, or controls, such Person;

 

(4) payment of reasonable fees and reimbursements of expenses (pursuant to indemnity arrangements or otherwise) of, and compensation paid to, and indemnity or insurance provided on behalf of, officers, directors, employees or consultants of the Company or any of its Restricted Subsidiaries, including, but not limited to, reimbursement or advancement of out-of-pocket expenses and provisions of officers’ and directors’ liability insurance;

 

(5) any issuance of Equity Interests (other than Disqualified Stock) to, or receipt of capital contributions from, Affiliates of the Company;

 

(6) Restricted Payments that do not violate the provisions of Section 5.5 hereof or any Permitted Investments;

 

(7) transactions between the Company or any of its Restricted Subsidiaries and any other Person, a director of which is also on the Board of Directors of the Company, and such common director is the sole cause for such other Person to be deemed an Affiliate of the Company or any of its Restricted Subsidiaries; provided, however, that such director abstains from voting as a member of the Board of Directors of the Company on any transaction with such other Person;

 

(8) (a) guarantees by the Company or any of its Restricted Subsidiaries of performance of obligations of Unrestricted Subsidiaries in the ordinary course of business, except for guarantees of Indebtedness in respect of borrowed money, and (b) pledges by the Company or any of its Restricted Subsidiaries of Equity Interests in Unrestricted Subsidiaries for the benefit of lenders or other creditors of Unrestricted Subsidiaries;

 

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(9) payments to an Affiliate in respect of the Notes or the Subsidiary Guarantees or any other Indebtedness of the Company or any Restricted Subsidiary on the same basis as concurrent payments made or offered to be made in respect thereof to non-Affiliates;

 

(10) payment of loans or advances to employees not to exceed $1.0 million in the aggregate at any one time outstanding;

 

(11) any Affiliate Transaction with a Person in its capacity as a holder of Indebtedness or Capital Stock of the Company or any Restricted Subsidiary if such Person is treated no more favorably than the other holders of Indebtedness or Capital Stock of the Company or such Restricted Subsidiary;

 

(12) transactions with Unrestricted Subsidiaries, customers, clients, suppliers or purchasers or sellers of goods or services, or lessors or lessees of property, in each case in the ordinary course of business and otherwise in compliance with the terms of this Agreement which are, in the aggregate (taking into account all the costs and benefits associated with such transactions), not materially less favorable to the Company and its Restricted Subsidiaries than those that would have been obtained in a comparable transaction by the Company or such Restricted Subsidiary with an unrelated person, in the good faith determination of the Company’s Board of Directors or any Officer of the Company involved in or otherwise familiar with such transaction, or are on terms at least as favorable as might reasonably have been obtained at such time from an unaffiliated party; and

 

(13) any transaction in which the Company or any of its Restricted Subsidiaries, as the case may be, delivers to the Holders a letter from an accounting, appraisal, advisory or investment banking firm of national standing stating that such transaction is fair to the Company or such Restricted Subsidiary from a financial point of view or that such transaction meets the requirements of clause (1) of Section 5.9(a) hereof.

 

5.10 Liens.

 

The Company will not, and will not permit any of its Restricted Subsidiaries to, create, incur, assume or suffer to exist any Lien securing Indebtedness, upon any asset now owned or hereafter acquired, except Permitted Liens.

 

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5.11 Merger; Successor Corporation.

 

(a) The Company shall not consolidate with or merge with or into, or transfer all or substantially all of its assets to, any Person, and the Company will not permit any of its Restricted Subsidiaries to enter into any such transaction or series of transactions if such transaction or series of transactions, in the aggregate, would result in a sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties and assets of the Company and its Restricted Subsidiaries on a consolidated basis to any other Person or Persons, unless either the Company is the surviving entity or, if such other Person is the resulting or surviving entity, such Person is a corporation organized and existing under the laws of the United States of America, a State thereof or the District of Columbia, and such Person expressly assumes all the obligations of the Company to the Holders of the Notes. Additionally, immediately before and immediately after giving effect to such transaction and treating any indebtedness that becomes an obligation as a result of the transaction as having been incurred by the Company at the time of such transaction, no default or event of default (or with notice or passage of time or both) shall have occurred and be continuing under the Company’s Indebtedness, the obligations of the Company with respect to the Notes or any material contracts, agreements or arrangements to which the Company is a party. Moreover, immediately after giving effect to such transaction the Consolidated Net Worth of such surviving entity must be equal to or greater than that of the Company’s immediately prior to giving effect to such transaction.

 

(b) Upon any consolidation or merger, or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the Company in a transaction that is subject to, and that complies with the provisions of Section 5.11(a) hereof, the successor Person formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Agreement and the Notes referring to the “Company” shall refer instead to the successor Person and not to the Company), and may exercise every right and power of the Company under this Agreement and the Notes with the same effect as if such successor Person had been named as the Company in this Agreement and in the Notes; provided, however, that the predecessor Company shall not be relieved from the obligation to pay the principal of and interest on the Notes, except in the case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.11(a) hereof.

 

5.12 Subsidiary Guarantees.

 

If, on any date after the Issue Date, any Domestic Restricted Subsidiary that is not already a Guarantor, Guarantees (or otherwise becomes liable for) any Obligations under any Credit Agreement, then, within 20 Business Days after such date, such Domestic Restricted Subsidiary will unconditionally Guarantee the Notes and concurrently become a Guarantor by executing a Subsidiary Guarantee (or joinder thereto) in substantially the form specified in Annex D hereto. Each Subsidiary Guarantee of a Guarantor will be released automatically at such time as such Guarantor is discharged or otherwise released from all its Obligations in respect of its Guarantee of (or other liability for) any Obligations under any Credit Facility; provided that such discharge or other release did not result directly from payment by such Guarantor in satisfaction of (a) its liability as a guarantor pursuant to such Guarantee, or (b) its primary liability for such Obligations (after demand or default under such Credit Facility).

 

5.13 Designation of Restricted and Unrestricted Subsidiaries.

 

The Board of Directors of the Company may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate Fair Market Value of all outstanding Investments owned by the Company and its Restricted Subsidiaries in the Subsidiary designated as Unrestricted will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under Section 5.5 hereof or under one or more clauses of the definition of Permitted Investments, as determined by the Company. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary.

 

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Any designation of a Subsidiary of the Company as an Unrestricted Subsidiary will be evidenced by a resolution of the Board of Directors of the Company giving effect to such designation and an Officers’ Certificate delivered to the Holders certifying that such designation complied with the preceding conditions and was permitted by Section 5.5 hereof. If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of this Agreement and the Notes and any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of the Company as of such date and, if such Indebtedness is not permitted to be incurred as of such date under Section 5.7 hereof, the Company will be in default of such Section 5.7. The Board of Directors of the Company may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of the Company of any outstanding Indebtedness of such Unrestricted Subsidiary, and such designation will only be permitted if (1) such Indebtedness is permitted under Section 5.7 hereof, calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation.

 

5.14 Minimum Cash Equivalents.

 

The Company will not have less than $1.0 million in Cash Equivalents on hand for a period of 30 consecutive calendar days.

 

5.15 Taxes.

 

The Company shall, and shall cause the Restricted Subsidiaries to, pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges or levies and (2) all lawful claims for labor, materials and supplies, which, if unpaid, might by law become a lien upon the property of the Company or any Restricted Subsidiary; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge, levy or claim (a) whose amount, applicability or validity is being contested in good faith by appropriate proceedings and for which reserves have been established in accordance with GAAP or (b) where the failure to effect such payment is not adverse in any material respect to the Holders of the Notes.

 

5.16 Corporate Existence.

 

Subject to Section 5.11, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect (i) its company existence, and the corporate, limited liability company, partnership or other existence of the Restricted Subsidiaries, in accordance with their respective organizational documents (as the same may be amended from time to time), and (ii) its (and the Restricted Subsidiaries’) rights (charter and statutory), licenses and franchises; provided that the Company shall not be required to preserve any such right, license or franchise, if the Board of Directors of the Company on behalf of the Company shall determine in good faith that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Restricted Subsidiaries considered as a single enterprise and that the loss thereof is not adverse in any material respect to the Holders.

 

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5.17 Limitation on Business.

 

The Company will not, and will not permit any Restricted Subsidiary to, engage in any business other than Permitted Business, except to such extent as would not be material to the Company and its Restricted Subsidiaries considered as a single enterprise.

 

5.18 Maintenance of Properties.

 

The Company shall, and shall cause each of the Restricted Subsidiaries to, maintain their properties and assets in normal working order and condition (reasonable wear and tear excepted) and make all necessary repairs, renewals, replacements, additions, betterments and improvements thereto, as shall be reasonably necessary for the proper conduct of the business of the Company and the Restricted Subsidiaries taken as a whole; provided that nothing herein shall prevent the Company or any of the Restricted  Subsidiaries from discontinuing any maintenance of any such properties or assets if (i) the Company determines that such discontinuance is desirable in the conduct of the business of the Company and the Restricted Subsidiaries considered as a single enterprise or (ii) in connection with or related to any disposition of property or assets the Company or a Restricted Subsidiary determines is no longer needed for the conduct of the business of the Company or such Restricted Subsidiary.

 

5.19 Maintenance of Insurance.

 

The Company shall, and shall cause the Restricted Subsidiaries to, maintain liability, casualty and other insurance with a reputable insurer or insurers in such amounts and against such risks as is carried by responsible companies engaged in similar businesses and owning similar assets.

 

SECTION 6. REDEMPTION.

 

6.1 Optional Redemption.

 

The Company may, in its sole discretion, redeem all or any amount of the Notes outstanding, in whole or in part, at any time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest on the Notes to be redeemed to the Redemption Date; provided that the Redemption Price shall be payable by the Company in cash, or in the case of redemption of Notes held by any Holder that has provided written notice to the Company at least two Business Days prior to the applicable Redemption Date of its election to receive the Redemption Price for its Notes in the form of Common Stock, in the form of a number of shares of Common Stock equal to the quotient of (a) the Redemption Price payable for such Notes being redeemed divided by (b) the Daily VWAP for the 30 trading days immediately preceding the second Business Day preceding the Redemption Date; provided, further, that in the event of a redemption of Notes, upon payment of the redemption price (whether in cash or Common Stock, the Company shall issue to each Holder of the Notes being redeemed a number of warrants (pursuant to the Warrant Agreement and having an exercise price equal to the Conversion Price of such Notes in effect immediately prior to such redemption) equal to the number of shares of Common Stock that such Holder would receive if such Holder were to convert such Notes in full on the Redemption Date pursuant to Section 8 hereof; provided, further, that the Company shall not redeem Notes pursuant to this Section 6.1 unless the Company has on file with the SEC an effective registration statement under the Securities Act registering the resale of the shares of Common Stock issuable upon conversion of the Notes and exercise of the warrants by each Holder that has, after written request from the Company, provided information pertaining to such shares of Common Stock required to be included in such registration statement in order for such Holder to sell such shares of Common Stock thereunder.

 

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6.2 Selection of Notes to Be Redeemed.

 

If fewer than all of the Notes are to be redeemed, the Company shall redeem the Notes pro rata, in such manner as complies with applicable legal requirements, if any. Notes in denominations of $1,000 may be redeemed only in whole. The Company may select for redemption portions (equal to $1,000 or any integral multiple thereof) of the principal of Notes that have denominations larger than $1,000. Provisions of this Agreement that apply to Notes called for redemption also apply to portions of Notes called for redemption.

 

6.3 Notice of Redemption.

 

At least thirty (30) days but not more than sixty (60) days before any Redemption Date, the Company shall mail a notice of redemption (“Notice of Redemption”) by first-class mail to each Holder whose Notes are to be redeemed at such Holder’s registered address. Each Notice of Redemption shall identify the Notes to be redeemed and shall state:

 

(a) the Redemption Date;

 

(b) the Redemption Price;

 

(c) the name and address of the Company;

 

(d) that Notes called for redemption must be surrendered to the Company to collect the Redemption Price;

 

(e) that, unless the Company defaults in making the Redemption Price, interest on Notes called for redemption ceases to accrue on and after the Redemption Date, and the only remaining right of the Holders of such Notes is to receive payment of the Redemption Price upon surrender to the Company of the Notes redeemed;

 

(f) if any Note is being redeemed in part, the portion of the principal amount of such Note to be redeemed and that, after the Redemption Date, and upon surrender of such Note, a new Note or Notes in aggregate principal amount equal to the unredeemed portion thereof will be issued; provided, however, that any portion of a Note redeemed by the Company and any new Note issued to the Holder in respect of the unredeemed portion thereof shall be in the principal amount of $1,000 or an integral multiple thereof;

 

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(g) if fewer than all the Notes are to be redeemed, the identification of the particular Notes (or portion(s) thereof) to be redeemed, as well as the aggregate principal amount of Notes to be redeemed and the aggregate principal amount of Note(s) to be outstanding after such partial redemption; and

 

(h) the paragraph of the Notes pursuant to which the Notes are to be redeemed.

 

6.4 Effect of Notice of Redemption.

 

Once Notice of Redemption is mailed in accordance with Section 6.3 above, Notes called for redemption become due and payable on the Redemption Date and at the Redemption Price.

 

6.5 Payment of Redemption Price.

 

On presentation and surrender of any Notes with respect to which a notice of redemption has been given, at a place of payment specified in such notice, such Notes or specified portions thereof shall be paid and redeemed by the Company at the applicable Redemption Price.

 

If, on or prior to the Redemption Date, the Company deposits in a segregated account or otherwise sets aside funds sufficient to pay the Redemption Price of the Notes called for redemption, then, unless the Company defaults in the payment of such Redemption Price, interest on the Notes to be redeemed will cease to accrue on and after the applicable Redemption Date, regardless of whether such Notes are presented for payment.

 

6.6 Purchase at the Option of Holders Upon a Fundamental Change

 

(a) Fundamental Change Purchase Option. If a Fundamental Change occurs at any time, then each Holder of Notes shall have the right, at such Holder’s option, to require the Company to purchase for cash any or all of such Holder’s Notes, or any portion of the principal amount thereof, that is equal to $1,000 or a multiple of $1,000, on a date specified by the Company that is no earlier than the 20th calendar day following the date of, and no later than the 35th calendar day following the date of, delivery of the Fundamental Change Company Notice (the “Fundamental Change Purchase Date”), at a purchase price equal to 101% of the principal amount thereof, together with accrued and unpaid interest thereon to, but excluding, the Fundamental Change Purchase Date (the “Fundamental Change Purchase Price”); provided, however, that if a Fundamental Change Purchase Date is after a Regular Record Date and on or prior to the Interest Payment Date to which such Regular Record Date relates, the interest payable in respect of such Interest Payment Date shall be payable to the Holders of record as of the corresponding Regular Record Date and the Fundamental Change Purchase Price shall be equal to 101% of the principal amount of the Notes to be purchased pursuant to this Section 6. The requirement for the Company to purchase any Notes on the Fundamental Change Purchase Date will be subject to extension to comply with applicable law.

 

Purchases of Notes under this Section shall be made, at the option of the Holder thereof, upon:

 

(i) delivery to the Company by a Holder of a duly completed notice (the “Fundamental Change Purchase Notice”) in the form set forth on the reverse of the Note, prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date; and

 

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(ii) delivery of the Notes to the Company (together with all necessary endorsements for transfer), or book-entry transfer of the Notes, in compliance with the procedures of the Company, such delivery or transfer being a condition to receipt by the Holder of the Fundamental Change Purchase Price therefor.

 

The Fundamental Change Purchase Notice in respect of any Notes to be purchased shall state:

 

(i) the certificate numbers of such Notes;

 

(ii) the portion of the principal amount of such Notes, which must be $1,000 or a multiple thereof; and

 

(iii) that such Notes are to be purchased by the Company pursuant to the applicable provisions of the Notes and this Agreement.

 

Notwithstanding anything herein to the contrary, any Holder delivering to the Company the Fundamental Change Purchase Notice contemplated by this Section 6.6 shall have the right to withdraw, in whole or in part, such Fundamental Change Purchase Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date by delivery of a written notice of withdrawal to the Company in accordance with Section 6.8 below.

 

(b) Fundamental Change Company Notice. On or before the 20th calendar day after the occurrence of a Fundamental Change, the Company shall provide to all Holders a notice (the “Fundamental Change Company Notice”) of the occurrence of such Fundamental Change and of the purchase right at the option of the Holders arising as a result thereof. Such notice shall be sent by first class mail. Simultaneously with providing such Fundamental Change Company Notice, the Company shall publish a notice containing the information included therein in a newspaper of general circulation in New York, New York or shall publish such information on the Company’s website or through such other public medium as the Company may use at such time. Each Fundamental Change Company Notice shall specify:

 

(i) the events causing a Fundamental Change;

 

(ii) the date of the Fundamental Change;

 

(iii) the last date on which a Holder of Notes may exercise the repurchase right pursuant to this Section 6;

 

(iv) the Fundamental Change Purchase Price;

 

(v) the Fundamental Change Purchase Date;

 

(vi) if applicable, the applicable Conversion Rate and any adjustments to the applicable Conversion Rate;

 

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(vii) if applicable, that the Notes with respect to which a Fundamental Change Purchase Notice has been delivered by a Holder may be converted only if the Holder withdraws the Fundamental Change Purchase Notice in accordance with this Agreement; and

 

(viii) the procedures that Holders must follow to require the Company to purchase their Notes.

 

No failure of the Company to give the foregoing notices and no defect therein shall limit the purchase rights of the Holders of Notes or affect the validity of the proceedings for the purchase of the Notes pursuant to this Section 6.6.

 

(c) No Payment During Events of Default. There shall be no purchase of any Notes pursuant to this Section 6.6 if there has occurred and is continuing an Event of Default with respect to the Notes (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price of the Notes). The Company will promptly return to the respective Holders thereof any Notes held by it during the continuance of an Event of Default (other than an Event of Default that is cured by the payment of the Fundamental Change Purchase Price with respect to the Notes) and shall deem canceled any instructions for book-entry transfer of the Notes, in which case, upon such return and cancelation, the Fundamental Change Purchase Notice with respect thereto shall be deemed to have been withdrawn.

 

6.7 Effect of Fundamental Change Purchase Notice.

 

Upon receipt by the Company of the Fundamental Change Purchase Notice specified in Section 6.6 hereof, the Holder of the Notes in respect of which such Fundamental Change Purchase Notice was given shall (unless such Fundamental Change Purchase Notice is withdrawn in accordance with Section 6.8 hereof) thereafter be entitled to receive solely the Fundamental Change Purchase Price in cash with respect to such Note. Such Fundamental Change Purchase Price shall be paid to such Holder, on the later of (x) the Fundamental Change Purchase Date with respect to such Notes (provided, the conditions in Section 6.6 hereof have been satisfied) and (y) the time of delivery or book-entry transfer of such Note to the Company by the Holder thereof in the manner required by Section 6.6 hereof.

 

6.8 Withdrawal of Fundamental Change Purchase Notice

 

A Fundamental Change Purchase Notice may be withdrawn (in whole or in part) by means of a written notice of withdrawal delivered to the Company in accordance with the Fundamental Change Company Notice at any time prior to the close of business on the Business Day immediately preceding the Fundamental Change Purchase Date, specifying:

 

(i) the principal amount of the Notes with respect to which such notice of withdrawal is being submitted;

 

(ii) the certificate numbers of the withdrawn Notes; and

 

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(iii) the principal amount, if any, of such Notes that remains subject to the original Fundamental Change Purchase Notice, which portion must be in principal amounts of $1,000 or a multiple of $1,000.

 

The Company will promptly return to the respective Holders thereof any Notes with respect to which a Fundamental Change Purchase Notice has been withdrawn in compliance with the provisions of this Section 6.8.

 

6.9 Notes Purchased in Whole or in Part

 

Any Note that is to be purchased, whether in whole or in part, shall be surrendered at the office of the Company and the Company shall execute and deliver to the Holder of such Note, without service charge, a new Note or Notes, of any authorized denomination as requested by such Holder in aggregate principal amount equal to, and in exchange for, the portion of the principal amount of the Notes so surrendered that is not purchased.

 

6.10 Covenant to Comply With Applicable Laws Upon Purchase of Notes

 

In connection with any offer to purchase Notes under Section 6.6 hereof, the Company shall, in each case if required, (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act that may then be applicable, (ii) file a Schedule TO or any other required schedule under the Exchange Act and (iii) otherwise comply with all federal and state securities laws so as to permit the rights and obligations under Section 6.6 to be exercised in the time and in the manner specified in Section 6.6.

 

SECTION 7. DEFAULTS AND REMEDIES.

 

7.1 Events of Default.

 

An “Event of Default” occurs if:

 

(a) the Company defaults in the payment of the principal of or premium, if any, on any Note when the same becomes due and payable at maturity, upon redemption or otherwise (including, without limitation, the failure to make a payment to purchase Notes tendered pursuant to an Asset Sale Offer);

 

(b) the Company defaults in the payment of interest on any Note or any other amount payable hereunder when the same becomes due and payable and the Default continues for a period of thirty (30) days (it being understood that making a PIK Interest Payment in accordance with the provisions of Section 1 of the Notes shall not constitute any Event of Default under this paragraph (b));

 

(c) the Company fails to comply with any of the covenants set forth in Section 5, 6 or 8 of this Agreement or the Notes and the Default under this clause (c) continues for the period and after the notice specified below;

 

(d) this Agreement or the Notes become unenforceable;

 

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(e) if (i) the Company or any of its Subsidiaries defaults in the payment of principal or interest payments under any loan agreement, note, mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any other Indebtedness of the Company or any of its Subsidiaries for borrowed money (or the payment of which is guaranteed by the Company or any of its Subsidiaries), whether such indebtedness or guarantee now exists or shall be created hereafter, and the principal amount of such indebtedness, together with the principal amount of any other such indebtedness for which there is a default in the payment of interest, premium, if any, or principal, aggregates $10.0 million or more, or (ii) an event of default occurs under any loan agreement, note, mortgage, indenture or instrument which shall represent a default in payment upon final maturity or otherwise result in the acceleration of such indebtedness prior to its expressed maturity and the principal amount of such indebtedness, together with the principal amount of any other such indebtedness with respect to which there has been a default in payment upon final maturity or the maturity of which has been so accelerated and has not been paid, aggregates $10.0 million or more;

 

(f) a final judgment or final judgments for the payment of money are entered by a court or courts of competent jurisdiction against the Company or any Subsidiary of the Company and such remains undischarged for a period (during which execution shall not be effectively stayed) of thirty (30) days, provided that the aggregate of all such judgments exceeds $10.0 million;

 

(g) the filing by the Company or any of its Subsidiaries (any such person, a “Debtor”) of a petition commencing a voluntary case under section 301 of title 11 of the United States Code, or the commencement by a Debtor of a case or proceeding under any other Bankruptcy Law seeking the adjustment, restructuring, or discharge of the debts of such Debtor, or the liquidation of such Debtor, including without limitation the making by a Debtor of an assignment for the benefit of creditors; or the taking of any corporate action by a Debtor in furtherance of or to facilitate, conditionally or otherwise, any of the foregoing;

 

(h) the filing against a Debtor of a petition commencing an involuntary case under section 303 of title 11 of the United States Code, with respect to which case (a) such Debtor consents or fails to timely object to the entry of, or fails to seek the stay and dismissal of, an order of relief, (b) an order for relief is entered and is pending and unstayed on the 60th day after the filing of the petition commencing such case, or if stayed, such stay is subsequently lifted so that such order for relief is given full force and effect, or (c) no order for relief is entered, but the court in which such petition was filed has not entered an order dismissing such petition by the 60th day after the filing thereof; or the commencement under any other Bankruptcy Law of a case or proceeding against a Debtor seeking the adjustment, restructuring, or discharge of the debts of such Debtor, or the liquidation of such Debtor, which case or proceeding is pending without having been dismissed on the 60th day after the commencement thereof;

 

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(i) the entry by a court of competent jurisdiction of a judgment, decree or order appointing a receiver, liquidator, trustee, custodian or assignee of a Debtor or of the property of a Debtor, or directing the winding up or liquidation of the affairs or property of a Debtor, and (a) such Debtor consents or fails to timely object to the entry of, or fails to seek the stay and dismissal of, such judgment, decree, or order, or (b) such judgment, decree or order is in full force and effect and is not stayed on the 60th day after the entry thereof, or, if stayed, such stay is thereafter lifted so that such judgment, decree or order is given full force and effect;

 

(j) failure by the Company to comply with its obligation to convert any Note in accordance with this Agreement upon exercise of a Holder’s conversion right in accordance with Section 8 hereof;

 

(k) at any time prior to the first anniversary of the Issue Date, the representation set forth in Section 3.19 proves to have been false on the date as of which made and the Default under this clause (k) continues for the period and after the notice specified below and the result thereof is a Material Adverse Effect;

 

The term “Bankruptcy Law” means title 11, U.S. Code or any similar Federal or state law for the relief of debtors. The term “Custodian” means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.

 

A Default under clause (c) of this Section 7.1 shall be an Event of Default without any notice or passage of time in the case of a breach of any of Sections 5.8 or 5.11 and in the case of any other agreement, covenant or provision of this Agreement or the Notes, when the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of the Default and the Company does not cure the Default within thirty (30) days after receipt of the notice. A Default under clause (e) of this Section 7.1 (other than a Default resulting from the acceleration of any indebtedness described therein, which Default shall be an Event of Default without the notice specified in this paragraph) shall not be an Event of Default until the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of the Default. A Default under clause (k) of this Section 7.1 shall be an Event of Default, when the Holders of 25% of the aggregate principal amount of the then outstanding Notes notify the Company of such Default and the Company does not cure the Default within thirty (30) days after receipt of the notice. Each notice referred to in this paragraph must specify the Default, demand that it be remedied and state that the notice is a “Notice of Default.”

 

7.2 Acceleration of Notes; Remedies.

 

Subject to the following paragraph, if an Event of Default (other than an Event of Default specified in clause (g), (h) or (i) of Section 7.1) occurs and is continuing, the Holders of 25% of the aggregate principal amount of the then outstanding Notes, by notice to the Company, may declare the unpaid principal of and any accrued and unpaid interest on all the Notes to be due and payable, and immediately upon such declaration, the principal and accrued but unpaid interest shall be due and payable. If an Event of Default specified in clause (g), (h) or (i) of Section 7.1 occurs, such an amount shall ipso facto become and be immediately due and payable without any declaration or other act on the part of any Holder.

 

The Majority Holders, by notice to the Company, may rescind an acceleration and its consequences if the rescission would not conflict with any judgment or decree and if all existing Events of Default have been cured or waived except nonpayment of principal or interest that has become due solely because of the acceleration.

 

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7.3 Other Remedies.

 

If an Event of Default occurs and is continuing, Holders of the Notes may pursue any available remedy to collect the payment of principal or interest on the Notes or to enforce the performance of any provision of the Notes or this Agreement.

 

A delay or omission by any Holder of any Notes in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.

 

7.4 Waiver of Past Defaults.

 

The Majority Holders, by notice to the Company, may waive an existing Default or Event of Default and its consequences except a continuing Default or Event of Default in the payment of the principal of or interest on any Notes.

 

7.5 Rights of Holders to Receive Payment.

 

Notwithstanding any other provision of this Agreement, the right of any Holder of a Note to receive payment of principal and interest on the Note, on or after the respective due dates expressed in the Note, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of the Holder.

 

7.6 Undertaking for Costs.

 

In any suit for the enforcement of any right or remedy under this Agreement, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant.

 

SECTION 8. Conversion

 

8.1 Right to Convert.

 

Subject to and upon compliance with the provisions of this Agreement, each Holder of Notes shall have the right, at such Holder’s option, to convert the principal amount of any such Notes, or any portion of such principal amount equal to $1,000 or a multiple of $1,000 thereof, at the Conversion Rate in effect on the Conversion Date for such Notes.

 

8.2 Conversion Procedures; Settlement Upon Procedure.

 

Subject to this Section 8.2 and Section 8.5, upon conversion of any Note, the Company shall pay or deliver, as the case may be, to the converting Holder, in respect of each $1,000 principal amount of Notes being converted, shares of Common Stock (“Settlement”).

 

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(a) The shares of Common Stock in respect of any conversion of Notes (the “Settlement Amount”) shall be computed as follows: the Company shall deliver to the converting Holder in respect of each $1,000 principal amount of Notes being converted a number of shares of Common Stock equal to the Conversion Rate in effect on the Conversion Date, together with cash in lieu of fractional shares as set forth in Section 8.2(l);

 

(b) The Daily Settlement Amounts (if applicable) and the Daily Conversion Values (if applicable) shall be determined by the Company promptly following the last day of the Observation Period. Promptly after such determination of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of any fractional share, the Company shall notify the Holders of the Daily Settlement Amounts or the Daily Conversion Values, as the case may be, and the amount of cash payable in lieu of fractional shares of Common Stock.

 

(c) Each Note shall be convertible at the office of the Company.

 

(d) In order to exercise the conversion privilege with respect to any interest in any Note, the Holder must complete the appropriate instruction form for conversion attached to the Note, furnish appropriate endorsements and transfer documents if required by the Company, and pay the funds, if any, required by Section 8.2(i) and any taxes or duties if required pursuant to Section 8.7. In order to exercise the conversion privilege with respect to any Notes, the Holder of any such Notes to be converted, in whole or in part, shall:

 

(i) complete and manually sign the conversion notice provided on the back of the Note (the “Conversion Notice”) or a facsimile of the Conversion Notice;

 

(ii) deliver the Conversion Notice, which is irrevocable, and the Note to the Company;

 

(iii) if required, furnish appropriate endorsements and transfer documents,

 

(iv) make any payment required under Section 8.2(d); and

 

(v) if required, pay all transfer or similar taxes as set forth in Section 8.7.

 

The date on which the Holder satisfies all of the applicable requirements set forth above is the Conversion Date (the “Conversion Date”). Except as set forth in Section 8.5, the Company shall pay or deliver, as the case may be, the consideration due in respect of any conversion of the Notes on the third Business Day immediately following the relevant Conversion Date. If any shares of Common Stock are due to converting Holders, the Company shall issue or cause to be issued, and deliver to such Holder, or such Holder’s nominee or nominees, certificates or a book-entry transfer through the Company for the full number of shares of Common Stock to which such Holder shall be entitled.

 

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(e) Each Conversion Notice shall state the name or names (with address or addresses) in which any certificate or certificates for shares of Common Stock which shall be issuable on such conversion shall be issued. All such Notes surrendered for conversion shall, unless the shares issuable on conversion are to be issued in the same name as the registration of such Notes, be duly endorsed by, or be accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the Holder or his duly authorized attorney.

 

(f) In case any Notes of a denomination greater than $1,000 shall be surrendered for partial conversion, the Company shall execute deliver to the Holder of the Notes so surrendered, without charge, new Notes in authorized denominations in an aggregate principal amount equal to the unconverted portion of the surrendered Notes.

 

(g) Upon the conversion of an interest in any Notes, the Company shall make a notation on such Notes as to the reduction in the principal amount represented thereby.

 

(h) Notwithstanding the foregoing, a Note in respect of which a Holder has delivered a Fundamental Change Purchase Notice exercising such Holder’s option to require the Company to purchase such Note may be converted only if such notice of exercise is withdrawn in accordance with Section 8 hereof prior to the close of business on the Business Day prior to the relevant Fundamental Change Purchase Date.

 

(i) Upon conversion, a Holder shall not receive any separate cash payment for accrued and unpaid interest, if any, except as set forth below. The Company’s delivery to the Holder Common Stock into which a Note is convertible shall be deemed to satisfy in full its obligation to pay the principal amount of the Note and accrued and unpaid interest, if any, to, but not including, the Conversion Date. As a result, accrued and unpaid interest, if any, to, but not including, the Conversion Date shall be deemed to be paid in full rather than cancelled, extinguished or forfeited. Notwithstanding the foregoing, if Notes are converted after the close of business on a Regular Record Date, Holders of such Notes as of the close of business on such Regular Record Date will receive the full amount of interest payable on such Notes on the corresponding Interest Payment Date (as defined in the Note) notwithstanding the conversion. Notes surrendered for conversion during the period from the close of business on any Regular Record Date to the open of business on the immediately following Interest Payment Date must be accompanied by funds equal to the amount of interest payable on the Notes so converted; provided that no such payment shall be required (1) if the Company has specified a Fundamental Change Purchase Date that is after a Regular Record Date and on or prior to the corresponding Interest Payment Date; or (2) to the extent of any overdue interest, if any overdue interest exists at the time of conversion with respect to such Note.

 

(j) The Person in whose name the certificate for any shares of Common Stock delivered upon conversion is registered shall be treated as a stockholder of record as of the close of business on the relevant Conversion Date. Upon a conversion of Notes, such Person shall no longer be a Holder of such Notes surrendered for conversion.

 

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(k) The Company shall not issue any fractional share of Common Stock upon conversion of the Notes and shall instead pay cash in lieu of any fractional share of Common Stock issuable upon conversion based on the Daily VWAP on the relevant Conversion Date.

 

(l) Solely for purposes of determining the payments and deliveries due upon conversion under this Section 8.2, “Trading Day” means a day on which (i) there is no Market Disruption Event and (ii) trading in the Common Stock generally occurs on The NASDAQ Capital Market or, if the Common Stock is not then listed on The NASDAQ Capital Market, on the principal other U.S. national or regional securities exchange on which the Common Stock is then listed or, if the Common Stock is not then listed on a U.S. national or regional securities exchange, on the principal other market on which the Common Stock is then traded. If the Common Stock (or other security for which a Daily VWAP must be determined) is not so listed or traded, “Trading Day” means a Business Day.

 

8.3 Adjustment of Conversion Rate.

 

The Conversion Rate shall be adjusted from time to time by the Company if any of the following events occurs, except that the Company will not make any adjustment to the Conversion Rate if Holders of Notes participate at the same time and on the same terms as holders of Common Stock and solely, as a result of holding the Notes, in any of the transactions described under Section 8.3(a) (but only with respect to stock dividends or distributions), Section 8.3(b), Section 8.3(c), and Section 8.3(d), at the same time as holders of the Common Stock participate, without having to convert their Notes as if such Holders held a number of shares of Common Stock equal to (i) the Conversion Rate in effect for such Notes immediately prior to the Ex-Dividend Date for such event multiplied by (ii)(x) the principal amount of Notes held by such a Holder divided by (y) $1,000.

 

(a) If the Company issues shares of its Common Stock as a dividend or distribution on shares of Common Stock, or if the Company effects a share split or share combination, then the Conversion Rate shall be adjusted based on the following formula:

 

 

where

 CR0

= The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date of such dividend or distribution, or immediately prior to the open of business on the effective date of such share split or share combination, as applicable;
CR1 = The Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date or such effective date;
OS0 = The number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date or such effective date; and
OS1 = The number of shares of Common Stock outstanding immediately after giving effect to such dividend, distribution, share split or share combination.

 

Such adjustment shall become effective immediately after the open of business on the Ex-Dividend Date for such dividend or distribution or the effective date for such share split or share combination. If any dividend or distribution of the type described in this Section 8.3(a) is declared but not so paid or made, the Conversion Rate shall again be adjusted to the Conversion Rate which would then be in effect if such dividend or distribution had not been declared.

 

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(b) If the Company issues to all or substantially all holders of the Common Stock any rights or warrants entitling them for a period of not more than 60 calendar days after the announcement date of such issuance to subscribe for or purchase shares of the Common Stock at a price per share less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, the Conversion Rate shall be adjusted based on the following formula:

 

 

 

where

CR0

= The Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such issuance;
CR1 = The Conversion Rate in effect immediately after the open of business on such Ex-Dividend Date;
OS0 = The number of shares of Common Stock outstanding immediately prior to the open of business on such Ex-Dividend Date;
X = The total number of shares of Common Stock issuable pursuant to such rights or warrants; and
Y = The number of shares of Common Stock equal to the aggregate price payable to exercise such rights or warrants divided by the average of the Last Reported Sale Prices of the Common Stock over the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of the issuance of such rights or warrants.

 

To the extent such rights or warrants are not exercised prior to their expiration or termination, the Conversion Rate shall be readjusted to the Conversion Rate that would be in effect had the adjustments made upon the issuance of such rights or warrants been made on the basis of the delivery of only the number of shares of Common Stock actually delivered. In the event that such rights or warrants are not so issued, the Conversion Rate shall again be adjusted to be the Conversion Rate which would then be in effect if the date fixed for the determination of shareholders entitled to receive such rights or warrants had not been fixed. For the purposes of this Section 8.3(b), in determining whether any rights or warrants entitle the holders to subscribe for or purchase shares of Common Stock at less than the average of the Last Reported Sale Prices of Common Stock for the 10 consecutive Trading Day period ending on the Trading Day immediately preceding the date of announcement of such issuance, and in determining the aggregate exercise price payable for such shares of Common Stock, there shall be taken into account any consideration received by the Company for such rights or warrants and any amount payable on the exercise thereof, with the value of such consideration, if other than cash, as shall be determined in good faith by the Board of Directors.

 

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(c) If the Company distributes shares of any class of Capital Stock of the Company, evidences of its indebtedness, other assets or property of the Company or rights or warrants to acquire the Company’s Capital Stock or other securities to all or substantially all holders of its Common Stock, excluding:

 

(i) dividends or distributions and rights or warrants as to which an adjustment was effected pursuant to Section 8.3(a) or Section 8.3(b);

 

(ii) dividends or distributions paid exclusively in cash; and

 

(iii) Spin-Offs to which the provisions set forth below in this Section 8.3(c) shall apply;

 

then the Conversion Rate shall be adjusted based on the following formula:

 

where

 CR0

= the Conversion Rate in effect immediately prior to the open of business on the Ex-Dividend Date for such distributi