Item 1.01. Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On
Pursuant to the Merger Agreement, and upon the terms and subject to the
conditions described therein, Purchaser will commence a tender offer (the
"Offer") to purchase all of the outstanding shares of Common Stock of the
Company, par value
Following the consummation of the Offer and subject to the terms and conditions
of the Merger Agreement, Purchaser will be merged with and into the Company (the
"Merger" and, together with the Offer, the "Transactions") pursuant to
Section 251(h) of the General Corporation Law of the
The board of directors of the Company, acting on the unanimous recommendation of a special committee (the "Special Committee") consisting solely of independent and disinterested directors of the Company and formed to negotiate and evaluate a potential transaction, has unanimously (i) determined that the Merger Agreement and the Transactions are fair to, and in the best interest of, the Company and its stockholders, (ii) approved the execution, delivery and performance by the Company of the Merger Agreement and the consummation of the Transactions, (iii) resolved that the Merger shall be effected under Section 251(h) of the DGCL and (iv) resolved to recommend that the stockholders of the Company tender their Shares to Purchaser pursuant to the Offer.
The Offer will initially remain open for 20 business days following commencement
of the Offer. If, at the scheduled expiration time of the Offer, any of the
conditions to the Offer have not been satisfied (unless such condition is
waivable by the Company or Purchaser and has been waived), Purchaser may extend
the Offer for subsequent periods of at least five business days each.
Additionally, Purchaser must extend the Offer (i) for any period required by
applicable law (including any applicable interpretations or positions of the
The obligation of Purchaser to accept for payment, and pay for, Shares validly tendered (and not properly withdrawn) pursuant to the Offer is subject to satisfaction or waiver, to the extent permitted under applicable legal requirements, of certain conditions, including (i) there being validly tendered and not properly withdrawn Shares that, considered together with all other Shares (if any) beneficially owned by Purchaser and its affiliates, represent one more Share than 50% of the aggregate voting power of the then-issued and outstanding Shares at the expiration of the Offer (the "Minimum Condition"), (ii) the accuracy of the Company's representations and warranties (subject to certain materiality and "material adverse effect" thresholds), (iii) the Company's compliance or performance in all material respects of the obligations, covenants and agreements it is required to comply with or perform at or prior to the expiration of the Offer, (iv) the absence, since the date of the Merger Agreement, of a Material Adverse Effect (as defined in the Merger Agreement) that is continuing as of the time the Purchaser accepts Shares for purchase pursuant to the Offer, (v) the expiration or termination of the waiting period (or any extension thereof) applicable to the Transactions under the HSR Act, (vi) the absence of any law or order prohibiting the consummation of the Offer or the Merger, and (vii) the Merger Agreement not having been terminated in accordance with its terms. If the conditions to the Offer are satisfied or waived (other than conditions that by their nature are to be satisfied or waived at the expiration of the Offer), then Purchaser must (i) irrevocably accept for payment all of the Shares tendered pursuant to the Offer and (ii) pay the Offer Price in respect of each such Share.
The Merger Agreement includes certain representations, warranties and covenants of the Company, on one hand, and Purchaser and Speedway on the other, including certain restrictions with respect to the Company's business between the date of the Merger Agreement and the consummation of the Merger. The Company, Purchaser and Speedway also agreed to use their respective reasonable best efforts to take all actions, to file all documents and to do all things necessary, proper or advisable under applicable antitrust laws to consummate and make effective the Offer and the Merger as soon as reasonably practicable. However, Parent is not required to make divestitures, commit to any licenses or hold separate requirements or litigate or defend the Transactions in connection with any applicable antitrust laws. None of the Company, Speedway or Purchaser may take any action that would reasonably be expected to prevent or materially delay consummation of the Offer and the Merger.
The Company has agreed to "no-shop" restrictions on its ability to solicit
alternative transaction proposals from third parties and engage in discussions
or negotiations with third parties regarding transaction proposals.
Notwithstanding these restrictions, the Company may under certain circumstances
provide information to and engage in or otherwise participate in discussions or
negotiations with third parties with respect to a bona fide written alternative
acquisition proposal that the board of directors of the Company (the "Board")
has determined in good faith constitutes or could reasonably be expected to
result in a Superior Offer (as defined in the Merger Agreement) and that failure
to take such action would reasonably be expected to constitute a breach of the
Board's fiduciary duties under applicable legal requirements. Pursuant to the
Merger Agreement, the Company has agreed that the Board will (x) recommend that
the Company's stockholders accept the Offer and tender their Shares to Purchaser
pursuant to the Offer (the "Board Recommendation") and (y) include the Board
Recommendation in the Company's Tender Offer Solicitation/Recommendation
Statement on Schedule 14D-9 (the "Schedule 14D-9") when filed with the
The Merger Agreement contains certain termination rights for both the Company
and Speedway, including, (i) if the consummation of the Transactions has not
occurred on or before
Item 7.01 Regulation FD Disclosure
On
Additional Information about the Tender Offer and Where to Find It
The tender offer for the outstanding Common Stock and Class A Common Stock of
Forward-Looking Statements
Certain statements in this Current Report on Form 8-K are "forward-looking statements." These statements relate to future events or the Company's future financial performance and involve known and unknown risks, uncertainties and other factors that may cause the actual results, levels of activity, performance or achievements of the Company or its industry to be materially different from those expressed or implied by any forward-looking statements. In some cases, forward-looking statements can be identified by terminology such as "may," "will," "could," "would," "should," "expect," "forecast," "plan," "anticipate," "intend," "believe," "estimate," "poised," "predict," "potential" or the negative of those terms or other comparable terminology. The Company has based these forward-looking statements on its current expectations, assumptions, estimates and projections. While the Company believes these expectations, assumptions, estimates and projections are reasonable, such forward-looking statements are only predictions and involve known and unknown risks and uncertainties, many of which are beyond the Company's control, including: important factors, including risks relating to, among others: risks related to the Company's ability to complete the merger transaction on the proposed terms and schedule or at all; whether the tender offer conditions will be satisfied; whether sufficient stockholders of the Company tender their shares in the transaction; the outcome of any legal proceedings that may be instituted against the Company and/or others relating to the transaction; the failure (or delay) to receive the required regulatory approvals relating to the transaction; the possibility that competing offers will be made; disruption from the proposed transaction, making it more difficult to conduct business as usual or maintain relationships with customers, employees or suppliers; and the occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement; the impact of the COVID-19 pandemic and its impact on the Company's operations and other factors discussed in the "Risk Factors" of the Company's most recent Annual Report on Form 10-K and subsequent filings.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofNovember 8, 2021 , by and amongDover Motorsports, Inc. ,Speedway Motorsports, LLC andSpeedco II, Inc. 10.1** Tender and Support Agreement, dated as ofNovember 8, 2021 , by and amongSpeedco II, Inc. and certain stockholders ofDover Motorsports, Inc. 99.1 Joint press release ofSpeedway Motorsports, LLC andDover Motorsports, Inc. issued onNovember 8, 2021 (furnished herewith). 104 Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document.
* Schedules and Exhibits have been omitted pursuant to Item 601(b)(2) of
Regulation S-K. The registrant hereby agrees to supplementally furnish to the
** Personal information has been omitted pursuant to Item 601(a)(6) of Regulation S-K.
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