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): November 5, 2018 (October 30, 2018)
GTY TECHNOLOGY HOLDINGS INC.
(Exact name of registrant as specified in its charter)
| Cayman Islands | 001-37931 | N/A |
| (State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
1180 North Town Center Drive, Suite 100, Las Vegas, Nevada 89144
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (702) 945-2898
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| x | 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)) |
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 x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01 | Entry into a Material Definitive Agreement. |
Amendment to Underwriting Agreement
In connection with the Extension (as defined below), on October 30, 2018, GTY Technology Holdings Inc. (the “Company”) entered into an amendment (the “UA Amendment”) to the Underwriting Agreement, dated as of October 26, 2016, by and among the Company and Citigroup Global Markets Inc., as representative of the underwriters (the “Underwriting Agreement”), pursuant to which all references in the Underwriting Agreement to the date by which the Company must complete a business combination have been replaced with references to May 1, 2019. A copy of the UA Amendment is attached hereto as Exhibit 10.1 hereto and incorporated herein by reference.
Amendments to Transaction Documents
As previously announced, on September 12, 2018, the Company entered into definitive agreements (the “Transaction Documents”) to acquire each of Bonfire Interactive Ltd., CityBase, Inc., eCivis, Inc., Open Counter Enterprises Inc., Questica Inc. and Questica USCDN Inc. and Sherpa Government Solutions LLC (collectively, the “Targets”). The transactions contemplated by the Transaction Documents are collectively referred to herein as the “Business Combination.”
On October 31, 2018, the Company entered into amendments to each of the Transaction Documents (the “Amendments”) with the Targets to, among other things, (i) provide that the Necessary Cash Amount (as defined in each Transaction Document) may be met by aggregating (x) amounts held in the Company’s trust account established in connection with the its initial public offering (the “Trust Account”) and (y) any other immediately available funds made available to the Company at the closing of the Business Combination, including through the issuance of debt or equity securities by the Company pursuant to definitive agreements entered into on or before January 18, 2019, so long as obtaining such funds pursuant to such agreements would not have a material adverse effect on the price of the Company’s common stock or on the creditworthiness of the Company and its subsidiaries taken as a whole (“Alternative Financing Sources”); (ii) provide that a Target may not terminate its respective Transaction Document due to a breach by the Company of any representation, warranty, covenant or agreement arising from the entry into or consummation of an agreement with an Alternative Financing Source; and (iii) amend the termination right in the event that, following redemptions of the Company’s ordinary shares in connection with the Business Combination, the aggregate amount of cash or cash equivalents in the Trust Account and/or available from Alternative Financing Sources is less than the Necessary Cash Amount, to provide that such right may not be exercised prior to January 18, 2019.
The foregoing description of the Amendments does not purport to be complete and is subject to and qualified in its entirety by the full text the Amendments, copies of which are attached hereto as Exhibits 2.1, 2.2, 2.3, 2.4, 2.5, and 2.6 and are incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information contained in Item 5.07 is incorporated by reference herein.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On October 30, 2018, the Company held an extraordinary general meeting (the “extraordinary meeting”). At the extraordinary meeting, a total of 56,247,313 (81.52%) of the Company’s issued and outstanding Class A ordinary shares and Class B ordinary shares held of record as October 5, 2018, the record date for the extraordinary meeting, were present either in person or by proxy, which constituted a quorum. The Company’s shareholders voted on the following proposals at the extraordinary meeting, each of which were approved. The final vote tabulation for each proposal is set forth below.
| 1. | To amend the Company’s second amended and restated memorandum and articles of association to extend the date by which the Company has to consummate a business combination from November 1, 2018 to May 1, 2019 (the “Extension”). |
| Votes For | Votes Against | Abstentions | Broker Non-Votes | ||
| 56,241,313 | 6,000 | 0 | 0 |
| 2. | To approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary or appropriate, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of proposal 1. |
| Votes For | Votes Against | Abstentions | Broker Non-Votes | ||
| 56,147,416 | 99,897 | 0 | 0 |
Although this proposal would have received sufficient votes to be approved, no motion to adjourn was made because the adjournment of the meeting was determined not to be necessary or appropriate.
| Item 7.01 | Regulation FD Disclosure. |
In connection with the Extension, only approximately 34,011,538 shares out of a total of 55,200,000 shares of the Company’s Class A ordinary shares were redeemed. As a result, approximately $216.8 million still remains in the trust account.
On November 5, 2018, the Company issued a press release announcing that the Extension was approved at the special meeting. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
The information in this Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, except as expressly set forth by specific reference in such filing.
Important Information About the Business Combination and Where to Find It
In connection with the Business Combination, GTY Technology Holdings Inc., a newly formed Massachusetts corporation and a wholly-owned subsidiary of the Company (“New GTY”), intends to file a Registration Statement on Form S-4, which will include a preliminary proxy statement/prospectus of the Company. The Company’s shareholders, warrantholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and documents incorporated by reference therein filed in connection with the Business Combination and the proposed amendment to the warrant agreement governing the Company’s warrants (the “Warrant Agreement”), as these materials will contain important information about the Targets, the Company, the Business Combination and the proposed amendment to the Warrant Agreement. When available, the definitive proxy statement/prospectus and other relevant materials for the Business Combination and the proposed amendment to the Warrant Agreement will be mailed to shareholders and warrantholders of the Company as of a record date to be established for voting on the Business Combination and the proposed amendment to the Warrant Agreement. Shareholders and warrantholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s web site at www.sec.gov, or by directing a request to: GTY Technology Holdings Inc., 1180 North Town Center Drive, Suite 100, Las Vegas, Nevada 89144, Attention: Harry L. You, (702) 945-2898.
Participants in the Solicitation
The Company and its directors and executive officers may be deemed participants in the solicitation of proxies from the Company’s shareholders and warrantholders with respect to the Business Combination and the proposed amendment to the Warrant Agreement. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2017, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to GTY Technology Holdings Inc., 1180 North Town Center Drive, Suite 100, Las Vegas, Nevada 89144, Attention: Harry L. You, (702) 945-2898. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus on Form S-4 relating to the Business Combination and the proposed amendment to the Warrant Agreement when available.
The Targets and their directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of the Company in connection with the applicable Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the applicable Business Combination will be included in the proxy statement/prospectus on Form S-4 relating to the Business Combination when available.
Forward-Looking Statements
This Current Report on Form 8-K and the Exhibits hereto include “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. The Company’s and each Target’s actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, the Company’s and the Targets’ expectations with respect to future performance and anticipated financial impacts of the Business Combination, the satisfaction of the closing conditions to the Business Combination and the timing of the completion of the Business Combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside of either the Company’s or the Targets’ control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of any of the Transaction Documents or could otherwise cause a Business Combination to fail to close; (2) the outcome of any legal proceedings that may be instituted against the Company or a Target following the announcement of the Transaction Documents and the Business Combination; (3) the inability to complete a Business Combination, including due to failure to obtain approval of the shareholders of the Company or other conditions to closing in the Transaction Documents; (4) the inability to complete the proposed amendment to the Warrant Agreement, including due to the failure to obtain the approval of the warrantholders of the Company; (5) the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with a Business Combination; (6) the inability to obtain or maintain the listing of New GTY’s common stock on The Nasdaq Stock Market following the Business Combination; (7) the risk that a Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; (8) the ability to recognize the anticipated benefits of a Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably and retain its key employees; (9) costs related to the Business Combination; (10) changes in applicable laws or regulations; (11) the possibility that a Target or the post-combination company may be adversely affected by other economic, business, and/or competitive factors; and (12) other risks and uncertainties indicated from time to time in the proxy statement/prospectus on Form S-4 relating to the Business Combination, including those under “Risk Factors” therein, and in the Company’s other filings with the SEC. The Company cautions that the foregoing list of factors is not exclusive. The Company cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. The Company does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
No Offer or Solicitation
This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act, or an exemption therefrom.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
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.
| GTY TECHNOLOGY HOLDINGS INC. | |||
| By: | /s/ Harry L. You | ||
| Name: Harry L. You | |||
| Title: President and Chief Financial Officer | |||
| Dated: November 5, 2018 | |||
Exhibit 2.1
FIRST AMENDMENT AGREEMENT
This First Amendment Agreement (this “Agreement”) is made as of October 31, 2018 by and among Bonfire Interactive Ltd. (the “Company”), GTY Technology Holdings Inc., a Cayman Islands exempted company (“GTY”), 1176370 B.C. Unlimited Liability Company, an unlimited liability company incorporated under the Business Corporations Act (British Columbia), 1176363 B.C. Ltd., a company incorporated under the Business Corporations Act (British Columbia) (“Exchangeco”), and Corry Flatt, in his capacity as the Bonfire Holders’ Representative.
RECITALS
A. The Company, GTY, 1176370 B.C. Unlimited Liability Company, Exchangeco and the Bonfire Holders’ Representative are Parties to that certain Arrangement Agreement (as amended, restated, modified or supplemented from time to time, the “Merger Agreement”) dated as of September 12, 2018. Unless otherwise specified herein, each capitalized term used in this Agreement shall have the meaning ascribed to it by the Merger Agreement.
B. GTY has informed the Company that, following certain GTY Stock Redemptions, the aggregate amount of cash or cash equivalents in the Trust Account is expected to be less than the Necessary Cash Amount (the “Trust Account Shortfall”).
C. The parties hereto are willing to amend the Merger Agreement on the terms and subject to the conditions set forth herein.
D. These recitals shall be construed as part of this Agreement.
Now, therefore, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment to Section 7.1(f) of the Merger Agreement. Section 7.1(f) of the Merger Agreement is hereby amended as follows:
“the GTY Share Redemption shall have been completed in accordance with the terms hereof and the Proxy Statement and GTY shall have delivered to the Company evidence that, immediately prior the Closing (and following the GTY Share Redemption and payment of any expenses related to the transactions contemplated under this Agreement), that GTY will have no less than the Necessary Cash Amount in the Trust Account and/or available from Alternative Financing Sources;”
2. Amendment to Section 7.3(a) of the Merger Agreement. Section 7.3(a) of the Merger Agreement is hereby amended as follows:
“all of the representations and warranties of the GTY Parties contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising from the entry into or consummation of an agreement with an Alternative Financing Source)”
3. Amendment to Section 9.1(e) of the Merger Agreement. Section 9.1(e) of the Merger Agreement is hereby amended as follows:
“from and after January 18, 2019, by either GTY or the Company, if following the GTY Share Redemptions the aggregate amount of cash or cash equivalents in the Trust Account and/or available from Alternative Financing Sources would be less than the Necessary Cash Amount;”
4. Amendment to Section 9.1(g) of the Merger Agreement. Section 9.1(g) of the Merger Agreement is hereby amended as follows:
“by the Company, if GTY
or Exchangeco breaches any representation, warranty, covenant or agreement set forth in this Agreement (or if
any representation or warranty of GTY or Exchangeco becomes become untrue) (except to extent such breach
or failure to be true arises from the entry into or consummation of an agreement with an Alternative Financing Source,
in either case, such that the conditions set forth in Section 7.3(a) and Section 7.3(b) would not be satisfied as of the time of
such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of
being cured) within thirty (30) days after notice thereof is provided by Bonfire Holders’ Representative to the breaching
Party; provided, that no Bonfire Holder or Company Party is in material breach of its obligations under this Agreement”
5. Amendment to Article 10 of the Merger Agreement. Article 10 of the Merger Agreement is hereby amended by adding the following definition in alphabetical order to such Article:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would be reasonably expected to have a material adverse effect on the GTY Share Price or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
6. Effectiveness. This Agreement shall become effective when each Party hereto shall have received a counterpart hereof signed by the other Parties hereto (the “Effective Date”). The Parties agree that the delivery of this Agreement may be effected by means of an exchange of facsimile signatures or other electronic delivery.
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7. Miscellaneous.
(a) The parties hereto agree and acknowledge that nothing contained in this Agreement in any manner or respect amends, limits or terminates any of the provisions of the Merger Agreement or any of the Ancillary Agreements other than as expressly set forth herein and further agree and acknowledge that the Merger Agreement (as modified hereby) and the Ancillary Agreements remain and continue in full force and effect and are hereby ratified and confirmed. The execution, delivery and effectiveness of this Agreement shall not operate as a waiver of any right, power or remedy of any Party under the Merger Agreement or any Ancillary Agreement, nor constitute an amendment or waiver of any provision of the Merger Agreement or any Ancillary Agreement, except as specifically set forth herein. No delay on the part of any Party in exercising any of their respective rights, remedies, powers and privileges under the Merger Agreement or any Ancillary Agreement or partial or single exercise thereof, shall constitute a waiver thereof.
(b) Section headings in this Agreement are for convenience of reference only and shall not govern the interpretation of any of the provisions herein.
(c) This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page.
(d) Sections 11.5 through 11.17 of the Merger Agreement apply to this Agreement mutatis mutandis.
[Signature Pages Follow]
| - 3 - |
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date and year first above written.
| BONFIRE INTERACTIVE LTD. | ||
| By: | /s/ Corry Flatt | |
| Name: | Corry Flatt | |
| Title: | CEO | |
[Signatures Continue on the Following Pages]
[Signature Page to Bonfire Extension Agreement]
| GTY TECHNOLOGY HOLDINGS INC. | ||
| (CAYMAN ISLANDS) | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President & CFO | |
| 1176370 B.C. UNLIMITED LIABILITY COMPANY | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President & CFO | |
| 1176363 B.C. LTD. | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President & CFO | |
[Signatures Continue on the Following Pages]
[Signature Page to Bonfire Extension Agreement]
| CORRY FLATT, as Bonfire Holders’ Representative | ||
| By: | /s/ Corry Flatt | |
| Name: | Corry Flatt | |
| Title: | CEO | |
[Signature Page to Bonfire Extension Agreement]
Exhibit 2.2
EXECUTION VERSION
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this “Amendment”) to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 12, 2018, by and among CityBase, Inc., a Delaware corporation (the “Company”), GTY Technology Holdings Inc., a Cayman Islands exempted company (“GTY”), GTY Technology Holdings Inc., a Massachusetts corporation (“Holdings”), GTY CB Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the CB Holders’ Representative, is effective as of October 31, 2018. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
R E C I T A L S
WHEREAS, the Company, GTY, Holdings, Merger Sub and Shareholder Representative Services LLC are Parties to the Merger Agreement; and
WHEREAS, the Parties desire to amend the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment of Section 6.1(d) of the Merger Agreement. Section 6.1(d) of the Merger Agreement is hereby amended and restated in its entirety to read:
“the GTY Stock Redemption shall have been completed in accordance with the terms hereof, all rules and regulations of the SEC and the Proxy Statement and GTY shall have delivered to the Company evidence that, immediately prior the Closing (and following the GTY Stock Redemption and payment of any expenses related to the transactions contemplated under this Agreement), that GTY will have no less than the Necessary Cash Amount in the Trust Account and/or committed from Alternative Financing Sources; and”
2. Amendment of Section 6.3(a) of the Merger Agreement. Section 6.3(a) of the Merger Agreement is hereby amended and restated in its entirety to read:
“all of the representations and warranties of GTY, Holdings and Merger Sub contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising directly and solely from the entry into or consummation of an agreement with an Alternative Financing Source)”
3. Amendment of Section 8.1(e) of the Merger Agreement. Section 8.1(e) of the Merger Agreement is hereby amended and restated in its entirety to read:
“from and after January 18, 2019, by either GTY or the Company if following the GTY Stock Redemptions the aggregate amount of cash or cash equivalents in the Trust Account and/or committed from Alternative Financing Sources, is or would be at Closing less than the Necessary Cash Amount;”
4. Amendment of Section 8.1(g) of the Merger Agreement. Section 8.1(g) of the Merger Agreement is hereby amended and restated in its entirety to read:
“by the Company, (i) if GTY, Holdings or Merger Sub breaches any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of GTY, Holdings or Merger Sub becomes become untrue (except to extent such breach or failure to be true arises directly and solely from the entry into or consummation of an agreement with an Alternative Financing Source), in either case, such that the conditions set forth in Section 6.3(a) and Section 6.3(b) would not be satisfied as of the time of such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of being cured) within thirty (30) days after written notice thereof is provided by the Company to the breaching Party; provided, that no such cure period will be available or applicable to any breach which by its nature cannot be cured); provided that no Company Party is in material breach of its obligations under this Agreement; or (ii) if there has been a Material Adverse Effect with respect to any GTY Party;”
5. Amendment of Article 9 of the Merger Agreement. Article 9 is hereby amended by adding the following definition in alphabetical order to such Article 9:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would be reasonably expected to have a material adverse effect on the trading price of shares of common stock of GTY or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
6. Amendment of Article 4 of the Merger Agreement. Article 4 is hereby amended by appending a new Section 4.17 and a new Section 4.18 to the end of Article 4 as follows:
“4.17 Financing Updates. The GTY Parties agree that, from November 5, 2018 through January 18, 2019, GTY will provide, no less frequently than once every two weeks, oral briefings by appropriate knowledgeable senior members of GTY management on the status of GTY’s efforts to secure Alternative Financing Sources (the “Financing Updates”).”
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“4.18 Roll-Up Amendments. GTY agrees that in the event that subsequent to the date hereof, GTY enters into or amends any agreement between GTY and any of the other target companies involved in the Roll-Up Transactions with respect to Alternative Financing Sources (each, a “Roll-Up Amendment,” and collectively, the “Roll-Up Amendments”), GTY shall provide the Company with a true and correct copy of such Roll-Up Amendment, and, at the election of the Company, the Company and GTY shall amend the terms of this Amendment or enter into a subsequent agreement to provide the Company with the benefit of any terms of the Roll-Up Amendment that the Company elects.”
7. Roll-Up Amendments. Attached hereto in Exhibit A is a true and complete copy of each Roll-Up Amendment entered into as of the date hereof between GTY and each of the other target companies involved in the Roll-Up Transactions.
8. Miscellaneous.
(a) From and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Merger Agreement as amended hereby.
(b) Except as specifically set forth above, the Merger Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed. The execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Party under the Merger Agreement or any Ancillary Agreement, nor constitute an amendment or waiver of any provision of the Merger Agreement or any Ancillary Agreement, except as specifically set forth herein. No delay on the part of any Party in exercising any of their respective rights, remedies, powers and privileges under the Merger Agreement or any Ancillary Agreement or partial or single exercise thereof, shall constitute a waiver thereof.
(c) This Amendment may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Amendment. Delivery of a counterpart signature page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF” file) shall be effective as delivery of a manually executed counterpart signature page.
(d) Sections 10.5 through 10.15 of the Merger Agreement apply to this Amendment mutatis mutandis.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed and deliver this Amendment on the date first written above.
| CITYBASE, INC. | ||
| By: | /s/ Michael Duffy | |
| Name: | Michael Duffy | |
| Title: | Chief Executive Officer | |
| GTY TECHNOLOGY HOLDINGS INC. (CAYMAN ISLANDS) | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President and CFO | |
| GTY TECHNOLOGY HOLDINGS INC. (MASSACHUSETTS) | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President and CFO | |
| GTY CB MERGER SUB, INC. | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President and CFO | |
| SHAREHOLDER REPRESENTATIVE | ||
| SERVICES LLC, solely in its capacity as CB Holders’ Representative | ||
| By: | /s/ Sam Riffe | |
| Name: | Sam Riffe | |
| Title: | Executive Director | |
[Signature Page to Amendment No.1 to Agreement and Plan of Merger]
Exhibit A
Roll-Up Amendments
Exhibit 2.3
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this “Amendment”) to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 12, 2018, by and among eCivis Inc., a Delaware corporation (the “Company”), GTY Technology Holdings Inc., a Cayman Islands exempted company (“GTY”), GTY EC Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Kirk Fernandez, solely in his capacity as the eCivis Holders’ Representative, is effective as of October 31, 2018. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
R E C I T A L S
WHEREAS, the Company, GTY, Merger Sub and Kirk Fernandez are Parties to the Merger Agreement; and
WHEREAS, the Parties desire to amend the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment of Section 6.1(d) of the Merger Agreement. Section 6.1(d) of the Merger Agreement is hereby amended and restated in its entirety to read:
“the GTY Share Redemption shall have been completed in accordance with the terms hereof and the Proxy Statement and GTY shall have delivered to the Company evidence that, immediately prior the Closing (and following the GTY Share Redemption), that GTY will have no less than the Necessary Cash Amount in the Trust Account and/or available from Alternative Financing Sources; and”
2. Amendment of Section 6.3(a) of the Merger Agreement. Section 6.3(a) of the Merger Agreement is hereby amended and restated in its entirety to read:
“all of the representations and warranties of GTY and Merger Sub contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising from the entry into or consummation of an agreement with an Alternative Financing Source)”
3. Amendment of Section 8.1(e) of the Merger Agreement. Section 8.2(e) of the Merger Agreement is hereby amended and restated in its entirety to read:
“from and after January 18, 2019, by either GTY or the Company if following the GTY Share Redemptions the aggregate amount of cash or cash equivalents in the Trust Account and/or available from Alternative Financing Sources would be is less than the Necessary Cash Amount;”
4. Amendment of Section 8.1(g) of the Merger Agreement. Section 8.2(g) of the Merger Agreement is hereby amended and restated in its entirety to read:
“by the Company, if GTY or Merger Sub breaches any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of GTY or Merger Sub becomes become untrue (except to extent such breach or failure to be true arises from the entry into or consummation of an agreement with an Alternative Financing Source), in either case, such that the conditions set forth in Section 6.3(a) and Section 6.3(b) would not be satisfied as of the time of such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of being cured) within thirty (30) days after notice thereof is provided by eCivis Holders’ Representative to the breaching Party; provided, that no eCivis Holder or Company Party is in material breach of its obligations under this Agreement; (ii) if there has been a Material Adverse Effect with respect to any GTY Party;”
5. Amendment of Article 9 of the Merger Agreement. Article 10 is hereby amended by adding the following definition in alphabetical order to such Article 10:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would be reasonably expected to have a material adverse effect on the trading price of shares of common stock of GTY or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
6. Miscellaneous.
(a) From and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Merger Agreement as amended hereby.
(b) Except as specifically set forth above, the Merger Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed.
(c) This Amendment may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Amendment.
(d) Sections 10.5 through 10.15 of the Merger Agreement apply to this Amendment mutatis mutandis.
[signature pages follow]
| - 2 - |
IN WITNESS WHEREOF, the parties hereto have executed and deliver this Amendment on the date first written above.
| ECIVIS INC. | ||
| By: | /s/ James Ha | |
| Name: James Ha | ||
| Title: Chief Executive Officer | ||
| GTY TECHNOLOGY HOLDINGS INC. | ||
| By: | /s/ Harry L. You | |
| Name: Harry L. You | ||
| Title: President & CFO | ||
| GTY EC MERGER SUB, INC. | ||
| By: | /s/ Harry L. You | |
| Name: Harry L. You | ||
| Title: President & CFO | ||
| KIRK FERNANDEZ, solely in its capacity as eCivis Holders’ Representative | ||
| By: | /s/ Kirk Fernandez | |
| Name: Kirk Fernandez | ||
| Title: Chairman | ||
[Signature Page to Amendment No.1 to Agreement and Plan of Merger]
exhibit 2.4
EXECUTION VERSION
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (this “Amendment”) to that certain Agreement and Plan of Merger (the “Merger Agreement”), dated as of September 12, 2018, by and among Open Counter Enterprises Inc., a Delaware corporation (the “Company”), GTY Technology Holdings Inc., a Cayman Islands exempted company (“GTY”), GTY OC Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as the OC Holders’ Representative, is effective as of October 31, 2018. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
R E C I T A L S
WHEREAS, the Company, GTY, Merger Sub and Shareholder Representative Services LLC are Parties to the Merger Agreement; and
WHEREAS, the Parties desire to amend the Merger Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment of Section 6.1(d) of the Merger Agreement. Section 6.1(d) of the Merger Agreement is hereby amended and restated in its entirety to read:
“the GTY Share Redemptions shall have been completed in accordance with the terms hereof, all rules and regulations of the SEC and the Proxy Statement and GTY shall have delivered to the Company evidence that, immediately prior the Closing (and following the GTY Share Redemptions and payment of any expenses related to the transactions contemplated under this Agreement), that GTY will have no less than the Necessary Cash Amount in the Trust Account and/or available from Alternative Financing Sources; and”
2. Amendment of Section 6.3(a) of the Merger Agreement. Section 6.3(a) of the Merger Agreement is hereby amended and restated in its entirety to read:
“all of the representations and warranties of GTY and Merger Sub contained in Article 3 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality or Material Adverse Effect set forth therein) in all material respects as of the Closing Date, as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising from the entry into or consummation of an agreement with an Alternative Financing Source)”
3. Amendment of Section 8.1(e) of the Merger Agreement. Section 8.1(e) of the Merger Agreement is hereby amended and restated in its entirety to read:
“from and after January 18, 2019, by either GTY or the Company if following the GTY Share Redemptions the aggregate amount of cash or cash equivalents in the Trust Account and/or available from Alternative Financing Sources is less than the Necessary Cash Amount;”
4. Amendment of Section 8.1(g) of the Merger Agreement. Section 8.1(g) of the Merger Agreement is hereby amended and restated in its entirety to read:
“by the Company, if GTY or Merger Sub breaches any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of GTY or Merger Sub becomes become untrue (except to extent such breach or failure to be true arises from the entry into or consummation of an agreement with an Alternative Financing Source), in either case, such that the conditions set forth in Section 6.3(a) and Section 6.3(b) would not be satisfied as of the time of such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of being cured) within thirty (30) days after notice thereof is provided by the Company to the breaching Party; provided, that no OC Holder or Company Party is in material breach of its obligations under this Agreement; (ii) if there has been a Material Adverse Effect with respect to any GTY Party;”
5. Amendment of Article 9 of the Merger Agreement. Article 9 is hereby amended by adding the following definition in alphabetical order to such Article 9:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would be reasonably expected to have a material adverse effect on the GTY Share Price or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
6. Miscellaneous.
(a) From and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Merger Agreement as amended hereby.
(b) Except as specifically set forth above, the Merger Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed.
(c) This Amendment may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Amendment.
| -2- |
(d) Sections 10.5 through 10.17 of the Merger Agreement apply to this Amendment mutatis mutandis.
[Signature Page Follows]
| -3- |
IN WITNESS WHEREOF, the parties hereto have executed and deliver this Amendment on the date first written above.
| OPEN COUNTER ENTERPRISES INC. | ||
| By: | /s/ Joel Mahoney | |
| Name: | Joel Mahoney | |
| Title: | CEO | |
| GTY TECHNOLOGY HOLDINGS INC. (CAYMAN ISLANDS) | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President and CFO | |
| SHAREHOLDER REPRESENTATIVE SERVICES LLC, solely in its capacity as OC Holders’ Representative | ||
| By: | /s/ Kimberley Angilly | |
| Name: | Kimberley Angilly | |
| Title: | Director | |
| GTY OC MERGER SUB, INC. | ||
| By: | /s/ Harry L. You | |
| Name: | Harry L. You | |
| Title: | President and CFO | |
[Signature Page to Amendment No.1 to Agreement and Plan of Merger]
Exhibit 2.5
AMENDMENT NO. 1 TO SHARE PURCHASE AGREEMENT
This Amendment No. 1 (this “Amendment”) to that certain Share Purchase Agreement (the “Purchase Agreement”), dated as of September 12, 2018, by and among Questica Inc. (“Questica”), a corporation incorporated under the laws of Ontario, Canada, Questica USCDN Inc., a corporation incorporated under the laws of Ontario, Canada (“Questica USCDN”), GTY Technology Holdings Inc., a Cayman Islands exempted company(“GTY”), 1176368 B.C. Ltd., a company incorporated under the Business Corporations Act (British Columbia) (“Exchangeco”), and each of SHOCKT Inc., Dennis Parass, Fernbrook Homes (Hi-Tech) Limited, Allan Booth, and Ross Soft Inc. (collectively, the “Questica Holders”) and Craig Ross, in his capacity as the Questica Holders’ Representative, is effective as of October 31, 2018. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Purchase Agreement.
R E C I T A L S
WHEREAS, Questica, Questica USCDN, GTY, Exchangeco, the Questica Holders and Craig Ross are Parties to the Purchase Agreement; and
WHEREAS, the Parties desire to amend the Purchase Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment of Article 7 of the Purchase Agreement.
(a) Section 7.1(d) is hereby amended and restated in its entirety to read:
“(i) the GTY Stock Redemption shall have been completed in accordance with the terms hereof and the Proxy Statement, and (ii) GTY shall have delivered to the Questica Holders evidence that, immediately after the Closing (and following any GTY Stock Redemption), GTY will have no less than the Necessary Cash Amount in the Trust Account and/or available from Alternative Financing Sources; and”
(b) Section 7.3(a) is hereby amended and restated in its entirety to read:
“each of the representations and warranties of GTY and Exchangeco contained in ARTICLE 4 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality set forth therein) in all material respects as of the Closing Date, except for the Fundamental Representations, which must be true and correct in all respects as of the Closing Date, in each case as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising from the entry into or consummation of an agreement with an Alternative Financing Source);”
2. Amendment of Article 9 of the Purchase Agreement.
(a) Section 9.1(f) is hereby amended and restated in its entirety to read:
“by the Companies or the Questica Holders, (i) if GTY or Exchangeco breaches any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of GTY or Exchangeco becomes untrue (except to extent such breach or failure to be true arises from the entry into or consummation of an agreement with an Alternative Financing Source), in either case, such that the conditions set forth in Section 7.3(a) and Section 7.3(b) would not be satisfied as of the time of such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of being cured) within thirty (30) days after notice thereof is provided by Questica Holders’ Representative to the breaching Party; provided, that no Questica Holder or Company Party is in material breach of its obligations under this Agreement; (ii) if there has been a Material Adverse Effect with respect to any GTY Party; or”
(b) Section 9.1(g) is hereby amended and restated in its entirety to read:
“from and after January 18, 2019, by GTY, the Companies or the Questica Holders, if following the GTY Stockholder Redemptions the aggregate amount of cash or cash equivalents in the Trust Account and/or available from Alternative Financing Sources would be less than the Necessary Cash Amount.”
3. Amendment of Article 10 of the Purchase Agreement. Article 10 is hereby amended by adding the following definition in alphabetical order to such Article:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would reasonably be expected to have a material adverse effect on the trading price of shares of common stock of GTY or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
4. Miscellaneous.
(a) From and after the date hereof, each reference in the Purchase Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Purchase Agreement as amended hereby.
(b) Except as specifically set forth above, the Purchase Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed.
(c) This Amendment may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Amendment.
(d) Sections 11.7 through 11.17 of the Purchase Agreement apply to this Amendment mutatis mutandis.
[signature pages follow]
IN WITNESS WHEREOF, the parties hereto have executed and deliver this Amendment on the date first written above.
GTY TECHNOLOGY HOLDINGS INC. | ||
| By: | /s/ Harry L. You | |
Name: Harry L. You | ||
| Title: President & CFO | ||
1176368 B.C. LTD. | ||
| By: | /s/ Harry L. You | |
| Name: Harry L. You | ||
| Title: President & CFO | ||
QUESTICA INC. | ||
| By: | /s/ TJ Parass | |
| Name: TJ Parass | ||
| Title: President and CEO | ||
| QUESTICA USCDN INC. | ||
| By: | /s/ TJ Parass | |
| Name: TJ Parass | ||
| Title: President and CEO | ||
| CRAIG ROSS, as Questica Holders’ Representative | ||
| By: | /s/ Craig Ross | |
| Name: Craig Ross | ||
| Title: Chief Revenue Officer | ||
QUESTICA HOLDERS: | ||
SHOCKT INC. | ||
| By: | /s/ TJ Parass | |
| Name: TJ Parass | ||
| Title: President and CEO | ||
| /s/ Dennis Parass | ||
Dennis Parass | ||
FERNBROOK HOMES (HI-TECH) LIMITED | ||
| By: | /s/ Howard Steinberg | |
| Name: Howard Steinberg | ||
| Title: Authorized Signing Officer | ||
| /s/ Allan Booth | ||
| Allan Booth | ||
ROSS SOFT INC. | ||
| By: | /s/ Craig Ross | |
| Name: Craig Ross | ||
| Title: President | ||
Exhibit 2.6
AMENDMENT NO. 1 TO UNIT PURCHASE AGREEMENT
This Amendment No. 1 (this “Amendment”) to that certain Unit Purchase Agreement (the “Purchase Agreement”), dated as of September 12, 2018, by and among Sherpa Government Solutions LLC, a Delaware limited liability company (the “Company”), GTY Technology Holdings Inc., a Cayman Islands exempted company (“GTY”), the Sherpa Holders and David Farrell, in his capacity as the Sherpa Holders’ Representative, is effective as of October 31, 2018. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Unit Purchase Agreement.
R E C I T A L S
WHEREAS, the Company, GTY, David Farrell and the Sherpa Holders are Parties to the Purchase Agreement; and
WHEREAS, the Parties desire to amend the Purchase Agreement as set forth below.
NOW, THEREFORE, in consideration of the mutual execution hereof and other good and valuable consideration, the parties hereto agree as follows:
1. Amendment of Article 7 of the Purchase Agreement.
(a) Section 7.1(d) is hereby amended and restated in its entirety to read:
“(i) the GTY Stock Redemption shall have been completed in accordance with the terms hereof and the Proxy Statement, and (ii) GTY shall have delivered to the Sherpa Holders evidence that, immediately after the Closing (and following any GTY Stock Redemption), GTY will have no less than the Necessary Cash Amount as permitted under the in the Trust Account and/or available from Alternative Financing Sources; and”
(b) Section 7.3(a) is hereby amended and restated in its entirety to read:
“each of the representations and warranties of GTY contained in Article 4 of this Agreement shall be true and correct (without giving effect to any limitation as to materiality set forth therein) in all material respects as of the Closing Date, except for the Fundamental Representations, which must be true and correct in all respects as of the Closing Date, in each case as though made on and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case of as such earlier date, and except to extent arising from the entry into or consummation of an agreement with an Alternative Financing Source);”
2. Amendment of Article 9 of the Purchase Agreement.
(a) Section 9.1(e) is hereby amended and restated in its entirety to read:
“from and after January 18, 2019, by GTY, the Company or the Sherpa Holders, if the aggregate dollar amount of the GTY Stockholder Redemptions equals or exceeds an amount that would cause the cash held in the Trust Account and/or available from Alternative Financing Sources to be less than the Necessary Cash Amount.”
(b) Section 9.1(g) is hereby amended and restated in its entirety to read:
“by the Company, (i) if GTY breaches any representation, warranty, covenant or agreement set forth in this Agreement or if any representation or warranty of GTY becomes become untrue (except to extent such breach or failure to be true arises from the entry into or consummation of an agreement with an Alternative Financing Source), in either case, such that the conditions set forth in Section 7.3(a) and Section 7.3(b) would not be satisfied as of the time of such breach (or as of the time such representation or warranty became untrue), and such breach is not cured (or is incapable of being cured) within thirty (30) days after notice thereof is provided by Sherpa Holders’ Representative to the breaching Party; provided, that no Sherpa Holder or Company Party is in material breach of its obligations under this Agreement; (ii) if there has been a Material Adverse Effect with respect to any GTY Party; or”
3. Amendment of Article 10 of the Purchase Agreement. Article 10 is hereby amended by adding the following definition in alphabetical order to such Article:
“Alternative Financing Sources” means any source of immediately available funds which will be made available to GTY at the Closing, including through the issuance of debt or equity securities by GTY pursuant to definitive agreements (collectively, the “Financing Definitive Agreements”) entered into on or before January 18, 2019 and not at any time after such date terminated in accordance with their respective terms and conditions, excluding any such source(s) if GTY’s obtaining such funds or otherwise performing its obligations pursuant to the Financing Definitive Agreements relating to such source(s), singly or in the aggregate, has or would be reasonably expected to have a material adverse effect on the GTY Share Price or on the creditworthiness of GTY and its Subsidiaries taken as a whole.”
4. Miscellaneous.
(a) From and after the date hereof, each reference in the Purchase Agreement to “this Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, shall mean and be a reference to the Purchase Agreement as amended hereby.
(b) Except as specifically set forth above, the Purchase Agreement shall remain unaltered and in full force and effect and the respective terms, conditions or covenants thereof are hereby in all respects ratified and confirmed.
(c) This Amendment may be executed simultaneously in one or more counterparts, any one of which need not contain the signatures of more than one party, but all such counterparts taken together shall constitute one and the same Amendment.
(d) Sections 11.7 through 11.16 of the Purchase Agreement apply to this Amendment mutatis mutandis.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have executed and deliver this Amendment on the date first written above.
SHERPA GOVERNMENT SOLUTIONS LLC | ||
| By: | /s/ David Farrell | |
| Name: David Farrell | ||
| Title: Managing Member | ||
GTY TECHNOLOGY HOLDINGS INC. | ||
| By: | /s/ Harry L. You | |
| Name: Harry L. You | ||
| Title: President & CFO | ||
SHERPA HOLDERS’ REPRESENTATIVE | ||
| By: | /s/ David Farrell | |
| Name: David Farrell | ||
(Being all of the SHERPA HOLDERS) | ||
| /s/ David Farrell | ||
| David Farrell | ||
| /s/ Bryan Reed | ||
| Bryan Reed | ||
| /s/ Mar Taloma | ||
| Mar Taloma | ||
| /s/ Ted Lewis | ||
| Ted Lewis | ||
| /s/ Steven Magida | ||
| Steven Magida | ||
[Signature Page to Amendment No.1 to Unit Purchase Agreement]
Exhibit 10.1
GTY Technology Holdings Inc.
1180 North Town Center Drive, Suite 100
Las Vegas, Nevada 89144
October 30, 2018
Citigroup Global Markets Inc.
As Representative of the several Underwriters
c/o Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
| Re: | Underwriting Agreement |
Ladies and Gentlemen:
Reference is made to that certain Underwriting Agreement (the “Underwriting Agreement”), dated as of October 26, 2016, by and among GTY Technology Holdings Inc., a Cayman Islands exempted company (the “Company”), and Citigroup Global Markets Inc., as representative (the “Representative”) of the several underwriters named on Schedule I to the Underwriting Agreement (collectively, the “Underwriters”). Except as otherwise specifically provided herein, all capitalized terms used herein shall have the meanings ascribed to them in the Underwriting Agreement.
The Underwriting Agreement is hereby amended by this letter agreement (the “Amendment”), effective as of the date first listed above, as follows:
| 1. | The following quoted language “within twenty-four (24) months after the Closing of the offering” in Section 5(u) of the Underwriting Agreement are both hereby replaced with “by May 1, 2019.” |
| 2. | The following quoted language “by twenty-four (24) months from the closing of the Offering” and “within twenty-four (24) months from the closing of the Offering” in Section 5(ff) of the Underwriting Agreement is hereby replaced with “by May 1, 2019.” |
Except as expressly modified herein, all of the terms of the Underwriting Agreement shall remain in full force and effect.
This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed within the State of New York. THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
This Amendment may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement, kindly indicate your acceptance in the space provided for that purpose below, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||
| GTY TECHNOLOGY HOLDINGS INC. | ||
| By: | /s/ Harry L. You | |
| Name: Harry L. You | ||
| Title: President and Chief Financial Officer | ||
The foregoing Amendment
is hereby confirmed and accepted as
of the date first above written.
| Citigroup Global Markets Inc. | |||
| By: | /s/ Neil Shah | ||
| Name: | Neil Shah | ||
| Title: |
Managing Director |
||
| For itself and the other several Underwriters named in Schedule I to the Underwriting Agreement. | |||
Exhibit 99.1
GTY Technology Holdings Inc. Announces Extension of Date to Complete a Business Combination
AUSTIN, TX, November 5, 2018 — GTY Technology Holdings Inc. (Nasdaq: GTYH) (“GTY”), a publicly traded special purpose acquisition company, today announced that its shareholders have approved an extension of the date by which it must consummate a business combination from November 1, 2018 to May 1, 2019. GTY requested the extension in order to complete the previously announced proposed transactions (collectively, the “business combination”) with Bonfire Interactive Ltd., CityBase, Inc., eCivis Inc., Open Counter Enterprises Inc., Questica Inc. and Questica USCDN Inc., and Sherpa Government Solutions LLC (collectively, the “Targets”). In connection with the extension, holders of 34,011,538 shares of GTY’s Class A ordinary shares exercised their redemption rights, resulting in a total of approximately $216.8 million remaining in GTY’s trust account.
Important Information About the Business Combination and Where to Find It
In connection with the business combination and the previously announced proposed amendment to GTY’s warrant agreement (the “warrant agreement amendment”), a newly formed subsidiary of GTY (“New GTY”) intends to file a Registration Statement on Form S-4, which will include a preliminary proxy statement/prospectus of GTY. GTY’s shareholders, warrantholders and other interested persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive proxy statement/prospectus and documents incorporated by reference therein filed in connection with the business combination and warrant agreement amendment, as these materials will contain important information about the Targets, GTY, the business combination and warrant agreement amendment. When available, the definitive proxy statement/prospectus and other relevant materials for the business combination and warrant agreement amendment will be mailed to shareholders and warrantholders of GTY as of a record date to be established for voting on the business combination and the warrant agreement amendment. Shareholders and warrantholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC's web site at www.sec.gov, or by directing a request to: GTY Technology Holdings Inc., 1180 North Town Center Drive, Suite 100, Las Vegas, Nevada 89144, Attention: Harry L. You, (702) 945-2898.
Participants in the Solicitation
GTY and its directors and executive officers may be deemed participants in the solicitation of proxies from GTY’s shareholders with respect to the business combination and the warrant agreement amendment. A list of the names of those directors and executive officers and a description of their interests in GTY is contained in GTY’s annual report on Form 10-K for the fiscal year ended December 31, 2017, which was filed with the SEC and is available free of charge at the SEC's web site at www.sec.gov, or by directing a request to GTY Technology Holdings Inc., 1180 North Town Center Drive, Suite 100, Las Vegas, Nevada 89144, Attention: Harry L. You, (702) 945-2898. Additional information regarding the interests of such participants will be contained in the proxy statement/prospectus for the business combination and the warrant agreement amendment when available.
The Targets and their directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of GTY in connection with the business combination. A list of the names of such directors and executive officers and information regarding their interests in the business combination will be included in the proxy statement/prospectus for the business combination when available.
Forward-Looking Statements
This press release includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. GTY's and each Target's actual results may differ materially from their expectations, estimates and projections and consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, GTY's and the Targets' expectations with respect to future performance and anticipated financial impacts of the business combination, the satisfaction of the closing conditions to the business combination and the timing of the completion of the business combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside GTY's and the Targets' control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of any of the definitive agreements for the proposed transactions (the “Transaction Agreements”) or could otherwise cause a proposed transaction to fail to close; (2) the outcome of any legal proceedings that may be instituted against GTY or a Target following the announcement of the Transaction Agreements and the business combination; (3) the inability to complete the business combination, including due to failure to obtain approval of the shareholders of GTY or other conditions to closing in the Transaction Agreements; (4) the inability to complete the warrant agreement amendment, including due to failure to obtain the requisite approval of the warrantholders of GTY; (5) the inability to obtain or maintain the listing of the shares of common stock of the post-acquisition company on The Nasdaq Stock Market following the business combination; (6) the risk that the business combination disrupts current plans and operations; (7) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably and retain its key employees; (8) costs related to the business combination; (9) changes in applicable laws or regulations; (10) financial performance and reporting issues that may be discovered in connection with the preparation and audit of each Target's historical financial statements; (11) the possibility that a Target or the combined company may be adversely affected by other economic, business, and/or competitive factors; and (12) other risks and uncertainties indicated from time to time in the proxy statement/prospectus relating to the business combination, including those under “Risk Factors” therein, and in GTY's other filings with the SEC. GTY cautions that the foregoing list of factors is not exclusive. GTY cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. GTY does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
No Offer or Solicitation
This press release shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the business combination or the warrant agreement amendment. This press release shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act of 1933, as amended.
Company Contacts:
Carter Glatt
Senior Vice President, Corporate Development
GTY Technology
carter@gtytechnology.com
917-664-9049
Media Contacts:
Ross Lovern
Kekst CNC
ross.lovern@kekstcnc.com
212-521-4866