Diamond Eagle (DEAC) Amends Business Combination Agreement

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Diamond Eagle (DEAC) Amends Business Combination Agreement

And…it appears they intend to adjourn their Shareholder vote and reconvene at a later date in April.

Diamond Eagle Acquisition Corp. (DEAC), which originally intended to hold their shareholder vote tomorrow to complete their combination with DraftKings and SBTech, amended their Business Combination Agreement yesterday.  However, the changes specifically are in regards to SBTech, due to a recent cyber-security attack on the SBTech platform. Furthermore, the S-4 that was also filed this morning reads as “…initially convened on April 9, 2020, will be reconvened at 10:00 a.m., New York City Time, on April ____ , 2020, in virtual format.” Hence, it sounds like the vote date is being pushed out a little further.

As a refresher, while DraftKings tends to get all the headlines, Diamond Eagle is also acquiring SBTech as part of the transaction.  SBTech, is an international turnkey provider of sports betting and gaming technologies. So by combining both DraftKings and SBTech, the intention is to create the only vertically-integrated U.S.-based sports betting and online gaming company.

However, at the end of March, gaming sites that are powered by SBTech, went down due to a cyber attack on the SBTech platform.  SBTech customers, including the Oregon Lottery, BetAmerica, Golden Nugget and Resorts, were down for more than 72 hours as a result.

Consequently, the Business Combination Agreement has been amended to reflect the attack and any resulting claims against the company:

  • $10,000,000 of the cash consideration to be received by the SBT Sellers and the holders of Cashed-Out SBT Options will be placed into escrow at the closing of the Business Combination for a period of two years.
  • Additional shares of Class A common stock of the post-business combination company to be received by the SBT Sellers and underlying the Exchanged SBT Options totaling $20,000,000 in value as of the Closing will be subject to a lock-up for a period of two years from Closing to cover certain indemnification obligations of the SBT Sellers and holders of Cashed-Out SBT Option relating to a recent cybersecurity incident.

Any remaining cash and shares will be released from escrow and such lock-up provisions, respectively, on the second anniversary of the closing date, subject to any outstanding unresolved claims.

Furthermore, if that amount of cash and shares isn’t enough to satisfy claims, the post-business combination company can seek recourse against the $25,000,000 cash escrow and $45,000,000 of locked-up shares as may be available in respect of SBT’s other indemnification obligations.

And if THAT amount still isn’t enough to satisfy claims, the post-business combination company will have recourse to indemnification directly from the SBT Sellers and the applicable SBT option holders, which will be capped at the aggregate value at the Closing of the consideration received by the them in the Business Combination.

Considering the customer list of SBTech, for example, BetAmerica, which uses SBTech’s full platform, it’s smart to build in these protections against any ongoing claims as a result of the cyber attack.  Some would say the timing is terrible since this only happened less than two weeks ahead of Diamond Eagle’s shareholder vote.  However, it’s actually the opposite since they are now able to mitigate any risk for the post-combination company.  Obviously, no attack at all is the most ideal scenario, but at least now the resulting company (and DraftKings) aren’t on the hook for SBTech’s claims.

Diamond Eagle’s shareholder vote is scheduled to be held tomorrow, but per the S-4 that was also filed this morning, it appears the intention is to adjourn the vote and re-convene at a later date in April. Most likely so that shareholders will have enough time to digest the amended Business Combination Agreement.

 

 

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