Item 1.01 Entry into a Material Definitive Agreement.
On
The Merger Agreement and the transactions contemplated therein (the
"Acquisition") were (i) unanimously approved and declared fair to, advisable and
in the commercial interests of
Concurrently with the execution of the Merger Agreement, certain affiliates of
Merger Agreement
Transaction Structure & Merger Consideration
On the terms and subject to the conditions set forth in the Merger Agreement,
(1) at the Duke Effective Time (as defined in the Merger Agreement), Duke Merger
Sub will be merged with and into
The Merger Agreement provides that upon the consummation of the Acquisition, each holder of GNOG Shares (a "GNOG Shareholder") will receive 0.365 (the "Exchange Ratio") of a share of New DraftKings Class A common stock (the "New DraftKings Class A Common Stock") for each GNOG Share issued and outstanding immediately prior to the Gulf Effective Time, other than any Excluded Shares (as defined in the Merger Agreement).
Each share of DraftKings Class A common stock ("DraftKings Class A Common Stock") issued and outstanding immediately prior to the Duke Effective Time will be cancelled, cease to exist and be converted into one validly issued, fully paid and non-assessable share of New DraftKings Class A Common Stock and each share of DraftKings Class B common stock issued and outstanding immediately prior to the Duke Effective Time shall be converted into one validly issued, fully paid and non-assessable share of New DraftKings Class B common stock.
Treatment of GNOG RSUs and GNOG Private Placement Warrants
At the Gulf Effective Time, each outstanding restricted stock unit (a "GNOG RSU") issued by GNOG will automatically and without any required action on the part of the holder thereof vest, then be cancelled and thereafter only entitle the holder of such GNOG RSU to receive (without interest) a number of shares of New DraftKings Class A Common Stock equal to (x) the product obtained by multiplying (i) the number of GNOG Shares subject to such GNOG RSU immediately prior to the Gulf Effective Time by (ii) the Exchange Ratio, less (y) a number of shares of New DraftKings Class A Common Stock equal to the applicable taxes required to be withheld with respect to such GNOG RSU settlement.
At the Gulf Effective Time, each outstanding warrant issued by GNOG ("GNOG Private Warrant") to purchase shares of GNOG Class A common stock ("GNOG Class A Common Stock") will automatically and without any required action on the part of the holder convert into a warrant to purchase a number of New DraftKings Class A Common Stock equal to the product of (x) the number of shares of GNOG Class A Common Stock subject to such GNOG Private Warrant immediately prior to the Gulf Effective Time multiplied by (y) the Exchange Ratio, and the exercise price of such GNOG Private Warrant will be determined by dividing (1) the per share exercise price of such GNOG Private Warrant immediately prior to the Gulf Effective Time by (2) the Exchange Ratio.
Treatment of DraftKings RSUs
At the Duke Effective Time, each outstanding restricted stock unit (a
"DraftKings RSU") issued by
Representations and Warranties and Covenants
The Merger Agreement contains customary representations and warranties from
Among other things, the Merger Agreement also prohibits GNOG from soliciting competing acquisition proposals from third parties, except that, subject to . . .
Item 3.02 Unregistered Sale of
The disclosure under Item 1.01 of this Current Report on Form 8-K relating to the Merger Agreement and the issuance of New DraftKings Class A Common Stock thereunder is incorporated into this Item 3.02 by reference.
The New DraftKings Class A Common Stock (other than the New DraftKings Class A Common Stock to be issued to any Fertitta or its affiliates), when issued, will be registered under the Securities Act and the Securities Exchange Act of 1934, as amended, and registered or exempt from registration under any applicable state securities or "blue sky" Laws.
Item 7.01. Regulation FD Disclosure.
On
Attached as Exhibit 99.2 hereto and incorporated by reference herein is the
investor presentation dated
The information in this Item 7.01, including Exhibits 99.1 and 99.2, is furnished and shall not be deemed "filed" for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information of the information in this Item 7.01, including Exhibits 99.1 and 99.2.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K may contain forward-looking statements within
the meaning of Section 21E of the Securities Exchange Act of 1934, as amended,
and the Private Securities Litigation Reform Act of 1995, known as the PSLRA.
When used in this Current Report on Form 8-K, the words "estimates,"
"projected," "expects," "anticipates," "forecasts," "plans," "intends,"
"believes," "seeks," "may," "will," "should," "future," "propose" and variations
of these words or similar expressions (or the negative versions of such words or
expressions) are intended to identify forward-looking statements. These
forward-looking statements are not guarantees of future performance, conditions
or results, and involve a number of known and unknown risks, uncertainties,
assumptions and other important factors, many of which are outside the Company's
control, that could cause actual results or outcomes to differ materially from
those discussed in the forward-looking statements. These forward-looking
statements include, without limitation, the Company's and GNOG's expectations
with respect to future performance and anticipated financial impacts of the
Acquisition, the satisfaction of the closing conditions to the Acquisition and
the timing of the completion of the Acquisition. 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 the Company's and GNOG's control and are difficult to
predict. Factors that may cause such differences include, but are not limited
to: (1) the outcome of any legal proceedings that may be instituted against the
Company and GNOG following the announcement of the Merger Agreement and the
transactions contemplated therein; (2) the inability to complete the
Acquisition, including due to failure to obtain approval of the stockholders of
the Company, approvals or other determinations from certain gaming regulatory
authorities, or other conditions to closing in the Merger Agreement; (3) the
occurrence of any event, change or other circumstance that could give rise to
the termination of the Merger Agreement or could otherwise cause the
transactions contemplated therein to fail to close; (4) the inability to obtain
or maintain the listing of New DraftKings Class A Common Stock on Nasdaq
following the Acquisition; (5) the risk that the Acquisition disrupts current
plans and operations as a result of the announcement and consummation of the
Acquisition; (6) the ability to recognize the anticipated benefits of the
Acquisition, which may be affected by, among other things, competition and the
ability of the combined company to grow and manage growth profitably and retain
its key employees; (7) costs related to the Acquisition; (8) changes in
applicable laws or regulations, particularly with respect to gaming, gambling,
sportsbooks, fantasy sports and other similar businesses; (9) the possibility
that the Company, GNOG or the combined company may be adversely affected by
other economic, business, and/or competitive factors, (10) market and supply
chain disruptions due to the COVID-19 outbreak or other epidemics, pandemics or
similar public health events; and (11) other risks and uncertainties indicated
from time to time in the information/prospectus relating to the Acquisition,
including those under "Risk Factors" in the Company's filings with the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit Number
99.1 Press Release, datedAugust 9, 2021 , issued byDraftKings Inc. and Golden Nugget Online Gaming, Inc. 99.2 Investor Presentation, datedAugust 9, 2021 .
*Annexes, schedules and/or exhibits have been omitted pursuant to Item 601(b)(2)
of Regulation S-K.
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