Item 1.01. Entry into a Material Definitive Agreement.
Assignment and Assumption Agreement
In connection with the Closing, the Company entered into an assignment and
assumption agreement (the "Warrant Assignment Agreement") with DEAC,
The foregoing description of the Warrant Assignment Agreement does not purport to be complete and is qualified in its entirety by the full text of the Warrant Assignment Agreement, a copy of which is attached hereto as Exhibit 4.4 and is incorporated herein by reference.
Earnout Escrow Agreement
On the Closing Date, in connection with consummation of the Business
Combination,
The foregoing description of the Earnout Escrow Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Earnout Escrow Agreement, which is attached hereto as Exhibit 10.8 and is incorporated herein by reference.
Share Exchange Agreement
On the Closing Date, in connection with consummation of the Business
Combination, Old DK,
Item 2.01. Completion of Acquisition or Disposition of Assets.
On
Prior to the Special Meeting, holders of 8,928 shares of DEAC's Class A common
stock sold in its initial public offering ("Public Shares") exercised their
right to redeem those shares for cash at a price of approximately
Item 3.02. Unregistered Sales of
Transaction Consideration
In connection with the Business Combination, at the Closing on
Private Placement and Convertible Notes
As previously disclosed, in connection with satisfying the Minimum Proceeds
Condition (as defined in the Business Combination Agreement), DEAC entered into
subscription agreements (the "Subscription Agreements"), each dated as of
On and after
The Private Placement closed immediately prior to the Business Combination on the Closing Date. The shares of DEAC Class A common stock issued to the Investors and upon conversion of the Convertible Notes, were converted into shares of DraftKings Class A common stock upon consummation of the reincorporation and the Business Combination.
The shares issued to the Investors in the Private Placement and to the holders of Convertible Notes on the Closing Date were issued pursuant to and in accordance with the exemption from registration under the Securities Act, under Section 4(a)(2) and/or Regulation D promulgated under the Securities Act.
Item 3.03. Material Modification to Rights of Security Holders.
On
Also 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 DEAC and has succeeded to the attributes of DEAC as the
registrant. In addition, the shares of common stock of
The Company's common stock and public warrants are listed for trading on Nasdaq under the symbols "DKNG" and "DKNGW," respectively. Upon consummation of the Business Combination, the CUSIP numbers relating to the Company's common stock and warrants changed to 26142R104 and 26142R112, respectively.
Amended and Restated Articles of Incorporation
Upon the closing of the Business Combination, DEAC's amended and restated
certificate of incorporation, dated
(a) changes the Company's name to
(b) increases the total number of authorized shares of all classes of capital
stock, par value of
(c) declassifies the Company's board of directors;
(d) amends the terms of the shares of common stock, in particular to provide
that each share of Class A common stock of
Item 4.01. Change in Registrant's Certifying Accountant.
(a) Dismissal of independent registered public accounting firm
On
The reports of Withum on DEAC's, the Company's legal predecessor, consolidated
balance sheet as of
During the period from
During the period from
The Company has provided Withum with a copy of the foregoing disclosures and has
requested that Withum furnish the Company with a letter addressed to the
Item 5.01. Changes in Control of Registrant.
Reference is made to the disclosure in the Proxy in the section titled "The Business Combination," which is incorporated herein by reference. Further reference is made to the information contained in Item 2.01 to this Current Report on Form 8-K, which is incorporated herein by reference.
Immediately after giving effect to the Business Combination, there were 312,451,027 shares of DraftKings Class A common stock outstanding. As of such time, our executive officers and directors and their affiliated entities held 32.9% of our outstanding shares of Class A common stock.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
Upon the consummation of the Transactions, and in accordance with the terms of
the Business Combination Agreement, each executive officer of
Upon the consummation of the Transactions, the Company established four board
committees: audit committee, compensation committee, nominating and corporate
governance committee and compliance committee. Messrs. Moore, Murray and Nada
were appointed to serve on the Company's audit committee, with
Following the consummation of the Transactions, the non-employee directors of
the Company will be entitled to the following compensation for their service on
the Board: (i) an annual cash retainer of
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
The disclosure set forth in Item 3.03 of this Current Report on Form 8-K is incorporated in this Item 5.03 by reference.
Item 5.06. Change in Shell Company Status.
As a result of the Business Combination, which fulfilled the definition of an "initial business combination" as required by DEAC's organizational documents, the Company ceased to be a shell company upon the closing of the Business Combination. The material terms of the Business Combination are described in the sections titled "The Business Combination Proposal" and "The Business Combination Agreement" beginning on page 95 and 112, respectively, of the Proxy, and are incorporated herein by reference.
Item 8.01. Other Events.
Upon the closing of the Business Combination, all outstanding shares of DEAC's
Class A common stock (including all of the outstanding shares of DEAC's Class B
common stock which were converted into shares of DEAC's Class A common stock in
connection with the Closing) were exchanged on a one-for-one basis for shares of
DraftKings Class A common stock, and DEAC's outstanding warrants were assumed by
the Company and became exercisable for shares of DraftKings Class A common stock
on the same terms as were contained in such warrants prior to the Business
Combination. By operation of Rule 12g-3(a) under the Exchange Act, the Company
is the successor issuer to DEAC and has succeeded to the attributes of DEAC as
the registrant, including DEAC's
The Company's Class A common stock and public warrants are listed for trading on The Nasdaq Global Select Market under the symbols "DKNG" and "DKNGW," respectively, and the CUSIP numbers relating to the Company's Class A common stock and public warrants are 26142R 104 and 26142R 112, respectively.
Holders of uncertificated shares of DEAC's Class A common stock immediately prior to the Business Combination have continued as holders of shares of uncertificated shares of DraftKings Class A common stock.
Holders of DEAC's shares who have filed reports under the Exchange Act with respect to those shares should indicate in their next filing, or any amendment to a prior filing, filed on or after the Closing Date that the Company is the successor to DEAC.
Item 9.01. Financial Statements and Exhibits.
(a) Financial statements of businesses acquired.
The consolidated financial statements of
The consolidated financial statements of
The consolidated financial statements of Diamond Eagle Acquisition Corp. as of
(b) Pro forma financial information.
Certain pro forma financial information of the Company is attached hereto as Exhibit 99.1 and is incorporated herein by reference.
(d) Exhibits. Exhibit Number Description 2.1† Business Combination Agreement, dated as ofDecember 22, 2019 , by and among Diamond Eagle Acquisition Corp.,DEAC NV Merger Corp. ,DEAC Merger Sub Inc. ,DraftKings Inc. (aDelaware corporation),SBTech (Global) Limited , the shareholders ofSBTech (Global) Limited and the SBT Sellers' Representative (incorporated by reference to Exhibit 2.1 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 2.2 Amendment to Business Combination Agreement, dated as ofApril 7, 2020 , amongDraftKings Inc. (aDelaware corporation),SBTech (Global) Limited , SBTech's shareholders, Diamond Eagle Acquisition Corp.,DEAC NV Merger Corp. and a wholly-owned subsidiary of DEAC (incorporated by reference to Exhibit 2.4 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 2.3 Agreement and Plan of Merger, dated as ofMarch 12, 2020 , by and among Diamond Eagle Acquisition Corp. andDEAC NV Merger Corp (incorporated by reference to Exhibit 2.3 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 3.1 Amended and Restated Articles of Incorporation ofDraftKings Inc. 3.2 Amended and Restated Bylaws ofDraftKings Inc. 4.1 Form of Specimen Class A Common Stock Certificate ofDraftKings Inc. 4.2 Form of Warrant Certificate ofDraftKings Inc. 4.3 Warrant Agreement, datedMay 10, 2019 , by and between Diamond Eagle Acquisition Corp. andContinental Stock Transfer & Trust Company , as warrant agent (incorporated by reference to Exhibit 4.1 of Diamond Eagle Acquisition Corp.'s Current Report on Form 8-K filed onMay 14, 2019 ). 4.4 Assignment and Assumption Agreement, datedApril 23, 2020 , by and amongDraftKings Inc. , DEAC,Continental Stock Transfer & Trust Company ,Computershare Trust Company, N.A. andComputershare Inc. 10.1DraftKings Inc. 2020 Incentive Award Plan. 10.2 Executive Employment Agreement, datedApril 23, 2020 , betweenDraftKings Inc. andMatt Kalish . 10.3 Executive Employment Agreement, datedApril 23, 2020 , betweenDraftKings Inc. andPaul Liberman . 10.4 Executive Employment Agreement, datedApril 23, 2020 , betweenDraftKings Inc. andJason Robins . 10.5DraftKings Inc. Employee Stock Purchase Plan. 10.6 Executive Employment Agreement, datedMay 30, 2019 , betweenDraftKings Inc. andJason Park (incorporated by reference to Exhibit 10.3 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.7 Form of Indemnification Agreement. 10.8 Escrow Agreement, datedApril 23, 2020 , by and amongDraftKings Inc. , Shalom Meckenzie, in his capacity as SBT Sellers' Representative,Eagle Equity Partners LLC ,Jeff Sagansky ,Eli Baker ,Harry Sloan , I.B.I. Trust Management, the trustee, andComputershare Trust Company, N.A. , as escrow agent. 10.9 Stockholders Agreement, datedApril 23, 2020 , by and amongDraftKings Inc. , theDK Stockholder Group , theSBT Stockholder Group and theDEAC Stockholder Group . 10.10 Share Exchange Agreement, datedApril 23, 2020 , by and amongDraftKings Inc. , aDelaware corporation,Jason Robins andDEAC NV Merger Corp. 10.11†* Agreement for the Provision of a Sports Betting Solution ("License Agreement"), betweenSports Information Services Limited andCrown Gaming Inc. , dated as ofJune 19, 2018 (incorporated by reference to Exhibit 10.5 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.12†* Addendum to License Agreement, betweenSports Information Services Limited andCrown Gaming Inc. , dated as ofAugust 22, 2019 (incorporated by reference to Exhibit 10.6 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.13 Amended and Restated Loan and Security Agreement (the ''LSA''), datedOctober 21, 2016 , by and betweenDraftKings Inc. (aDelaware corporation) andPacific Western Bank (incorporated by reference to Exhibit 10.7 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.14 First Amendment to the LSA, datedJuly 28, 2017 , by and betweenDraftKings Inc. (aDelaware corporation) andPacific Western Bank (incorporated by reference to Exhibit 10.8 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.15 Second Amendment to the LSA, datedDecember 28, 2017 , by and betweenDraftKings Inc. (aDelaware corporation) andPacific Western Bank (incorporated by reference to Exhibit 10.9 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.16 Third Amendment and Joinder to the LSA, datedJuly 3, 2018 , by and amongDraftKings Inc. (aDelaware corporation),Crown Gaming Inc. ,Crown DFS Inc. andPacific Western Bank (incorporated by reference to Exhibit 10.10 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.17 Fourth Amendment to the LSA, datedDecember 19, 2018 , by and amongDraftKings Inc. (aDelaware corporation),Crown Gaming Inc. ,Crown DFS Inc. andPacific Western Bank (incorporated by reference to Exhibit 10.11 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.18 Fifth Amendment to the LSA, datedMarch 28, 2019 by and amongDraftKings Inc. (aDelaware corporation),Crown Gaming Inc. ,Crown DFS Inc. andPacific Western Bank (incorporated by reference to Exhibit 10.12 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.19 Sixth Amendment to the LSA, datedAugust 15, 2019 , by and amongDraftKings Inc. (aDelaware corporation),Crown Gaming Inc. ,Crown DFS Inc. andPacific Western Bank (incorporated by reference to Exhibit 10.13 ofDEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with theSEC onApril 14, 2020 ). 10.20 Seventh Amendment to the LSA, datedApril 23, 2020 , by and amongDraftKings Inc. (aNevada corporation),DraftKings Inc. (aDelaware corporation),Crown Gaming Inc. ,Crown DFS Inc. andPacific Western Bank . 16.1 Letter fromWithumSmith+Brown, PC to theSEC , datedApril 28, 2020 . 21.1 List of Subsidiaries 99.1 Unaudited Pro Forma Condensed Combined Financial Statements of the Company atDecember 31, 2019 and for the year endedDecember 31, 2019 .
† Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601(a)(5). The Registrant agrees to furnish
a copy of all omitted exhibits and schedules to the
*Certain portions of this exhibit have been omitted pursuant to Regulation S-K
Item 601(b)(10)(iv). The Registrant agrees to furnish an unredacted copy of the
exhibit to the
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