FORM 8 (OPD)
PUBLIC OPENING POSITION DISCLOSURE BY A PARTY TO AN OFFER
Rules 8.1 and 8.2 of the Takeover Code (the "Code")
1. KEY INFORMATION
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(a) Full name of discloser: |
DRAFTKINGS INC. |
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(b) Owner or controller of interests and short positions disclosed, if different from 1(a): The naming of nominee or vehicle companies is insufficient. For a trust, the trustee(s), settlor and beneficiaries must be named. |
N/A |
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(c) Name of offeror/offeree in relation to whose relevant securities this form relates: Use a separate form for each offeror/offeree |
DRAFTKINGS INC. |
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(d) Is the discloser the offeror or the offeree? |
OFFEROR |
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(e) Date position held: The latest practicable date prior to the disclosure |
4 OCTOBER 2021 |
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(f) In addition to the company in 1(c) above, is the discloser making disclosures in respect of any other party to the offer? If it is a cash offer or possible cash offer, state "N/A" |
YES - ENTAIN PLC |
2. POSITIONS OF THE PARTY TO THE OFFER MAKING THE DISCLOSURE
If there are positions or rights to subscribe to disclose in more than one class of relevant securities of the offeror or offeree named in 1(c), copy table 2(a) or (b) (as appropriate) for each additional class of relevant security.
(a) Interests and short positions in the relevant securities of the offeror or offeree to which the disclosure relates
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Class of relevant security:
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Class A common stock, par value $0.0001 each |
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Interests |
Short positions |
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Number |
% |
Number |
% |
|
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(1) Relevant securities owned and/or controlled: |
Nil |
- |
Nil |
- |
|
(2) Cash-settled derivatives:
|
Nil |
- |
Nil |
- |
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(3) Stock-settled derivatives (including options) and agreements to purchase/sell: |
13,336,895(1) |
3.288 |
Nil |
- |
|
TOTAL: |
13,336,895 |
3.288 |
Nil |
- |
Notes
(1) In connection with the issuance by the offeror of zero-coupon convertible senior notes due 2028 in an aggregate principal amount of $1,265,000,000, which are convertible into Class A common stock of the offeror under certain circumstances and during certain periods, the offeror entered into privately negotiated capped call options on 15 March 2021 and 16 March 2021. See Supplemental Form 8 (Opening Positions).
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Class of relevant security:
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Class B common stock, par value $0.0001 each |
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|
|
Interests |
Short positions |
||
|
Number |
% |
Number |
% |
|
|
(1) Relevant securities owned and/or controlled: |
Nil |
- |
Nil |
- |
|
(2) Cash-settled derivatives:
|
Nil |
- |
Nil |
- |
|
(3) Stock-settled derivatives (including options) and agreements to purchase/sell: |
Nil |
- |
Nil |
- |
|
TOTAL: |
Nil |
- |
Nil |
- |
|
Class of relevant security:
|
0% convertible senior notes due 2028 |
|||
|
|
Interests |
Short positions |
||
|
Number |
% |
Number |
% |
|
|
(1) Relevant securities owned and/or controlled: |
Nil |
- |
Nil |
- |
|
(2) Cash-settled derivatives:
|
Nil |
- |
Nil |
- |
|
(3) Stock-settled derivatives (including options) and agreements to purchase/sell: |
Nil |
- |
Nil |
- |
|
TOTAL: |
Nil |
- |
Nil |
- |
All interests and all short positions should be disclosed.
Details of any open stock-settled derivative positions (including traded options), or agreements to purchase or sell relevant securities, should be given on a Supplemental Form 8 (Open Positions).
Details of any securities borrowing and lending positions or financial collateral arrangements should be disclosed on a Supplemental Form 8 (SBL).
(b) Rights to subscribe for new securities
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Class of relevant security in relation to which subscription right exists: |
None. |
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Details, including nature of the rights concerned and relevant percentages: |
None. |
3. POSITIONS OF PERSONS ACTING IN CONCERT WITH THE PARTY TO THE OFFER MAKING THE DISCLOSURE
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Details of any interests, short positions and rights to subscribe (including directors' and other employee options) of any person acting in concert with the party to the offer making the disclosure: |
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3(a) Interests in shares of DraftKings Inc. Class A common stock and Class B common stock held by directors of DraftKings Inc. and their close relatives and related trusts
Notes (1) Includes (a) 200,000 shares held by a trust managed by an independent trustee for the benefit of Mr. Robins' parents and descendants and (b) 4,500 shares held by Mr. Robins' parents. (2) All 400,000 shares are held by a trust managed by an independent trustee for the benefit of the children of the Sloan family. (3) Includes (a) 257,722 shares held by a trust managed by an independent trustee for the benefit of Mr. Kalish, Mr. Kalish's father, Mr. Kalish's brother and Mr. Kalish's children, (b) 6,568 shares held by a trust managed by an independent trustee for the benefit of Mr. Kalish's descendants, (c) 29,348 shares held by Mr Kalish's brother and (d) 10,000 shares held by Mr Kalish's father. (4) Includes (a) 4,286 shares held by a trust managed by Mr. Liberman and his spouse as the trustees for the benefit of Mr. Liberman, (b) 272,357 shares held by a trust managed by an independent trustee for the benefit of Mr. Liberman, Mr. Liberman's spouse, Mr. Liberman's children, Mr. Liberman's parents, Mr. Liberman's brother, Mr. Liberman's sister-in-law and Mr. Liberman's mother-in-law, (c) 13,597 shares held by a trust managed by Mr. Liberman as the trustee for the benefit of himself, (d) 200,000 shares held by a trust managed by an independent trustee for the benefit of Mr. Liberman's spouse and Mr. Liberman's descendants and (e) 200,000 shares held by a trust managed by Mr. Liberman and Mr. Liberman's spouse as the trustees for the benefit of Mr. Liberman's spouse. (5) Includes (a) 44,616 shares held by a trust managed by Mr. Levin's sister as trustee for the benefit of Mr. Levin's wife, children, parents and sister, (b) 114,905 shares held by a trust managed by an independent trustee for the benefit of Mr. Levin's wife and children, (c) 114,905 shares held by a trust managed by an independent trustee for the benefit of Mr. Levin's wife, children, parents and sister and (d) 14,609 shares held by Mr. Levin's sister. (6) Includes (a) 19,075,875 shares held by a trust managed by an independent trustee for the benefit of Mr. Meckenzie's wife, children and future descendants and (b) 294,704 shares held by Mr. Meckenzie's brother. (7) Includes shares held by the following affiliated persons of Ryan Moore: (a) 6,555,608 shares held by Atlas Venture Fund VIII, L.P., (b) 765,616 shares held by Accomplice Fund I. L.P., (c) 147,846 shares held by Accomplice Management Holdings, LLC and (d) 279,989 shares held by Accomplice Fund II, L.P.
3(b) Stock options over DraftKings Inc. Class A common stock held by the directors of DraftKings Inc. and their close relatives and related trusts
Stock Options
Notes (1) All 327,461 options are held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (2) All 1,286,924 options are held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (3) Includes 715,802 options held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (4) All 136,195 options are held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (5) All 6,862,289 options are held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (6) All 839,869 options are held by a trust managed by Mr. Robins as the trustee for the benefit of Mr. Robins, Mr. Robins' spouse and their descendants. (7) Includes 353,764 options held by a trust managed by Mr. Liberman as the trustee for the benefit of himself. (8) Includes 484,416 options held by a trust managed by Mr. Liberman as the trustee for the benefit of himself. (9) Includes 261,160 options held by a trust managed by Mr. Liberman as the trustee for the benefit of himself. (10) Includes 184,968 options held by a trust managed by Mr. Liberman as the trustee for the benefit of himself. (11) Includes 56,361 options held by a trust managed by Mr. Liberman as the trustee for the benefit of himself. (12) All 14,145 options are held by Mr. Levin's sister.
3(c) DraftKings Inc. restricted stock units (RSUs) held by the directors of DraftKings Inc. and their close relatives and related trusts
Notes (1) All 555 RSUs are held by Mr. Levin's sister. (2) All 1,250 RSUs are held by Mr. Levin's sister. (3) All 9,815 RSUs are held by Mr. Levin's sister. (4) All 551 RSUs are held by Mr. Levin's sister. (5) All 1,447 RSUs are held by Mr. Levin's sister.
3(d) Private warrants held by the directors of DraftKings Inc. and their close relatives and related trusts(1)
Notes (1) Each warrant entitles the holder to purchase one share of the offeror's Class A common stock at an exercise price of $11.50 per share, subject to adjustment procedures. The warrants became exercisable on 23 May 2020 and will expire on 23 April 2025, or earlier upon redemption or liquidation. (2) Includes (a) 4,335 warrants held by a trust managed by Mr. Robins and Mr. Robins' spouse for the benefit of Mr. Robins and his spouse and (b) 125 warrants held by a different trust managed by Mr. Robins and Mr. Robins' spouse for the benefit of Mr. Robins and his spouse. (3) Includes (a) 3,883 warrants held by a trust managed by an independent trustee for the benefit of Mr. Kalish, Mr. Kalish's father, Mr. Kalish's brother and Mr. Kalish's children, and (b) 40 warrants held by a trust managed by an independent trustee for the benefit of Mr. Kalish's descendants. (4) Includes (a) 2,818 warrants held by a trust managed by Mr. Liberman and Mr. Liberman's spouse as the trustees for the benefit of Mr. Liberman, (b) 3,698 warrants held by a trust managed by an independent trustee for the benefit of Mr. Liberman, Mr. Liberman's spouse, Mr. Liberman's children, Mr. Liberman's parents, Mr. Liberman's brother, Mr. Liberman's sister-in-law and Mr. Liberman's mother-in-law.
3(e) Interests in shares of DraftKings Inc. Class A common stock held by the advisers of DraftKings Inc.
Notes (1) All 11,218,011 shares are held by Raine Partners II LP.
3(f) DEAC private placement warrants held by the advisers of DraftKings Inc.(1)
Notes (1) Each warrant entitles the holder to purchase one share of the offeror's Class A common stock at an exercise price of $11.50 per share, subject to adjustment procedures. The warrants became exercisable on 23 May 2020 and will expire on 23 April 2025, or earlier upon redemption or liquidation. (2) All 152,190 warrants are held by Raine Partners II LP.
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Details of any open stock-settled derivative positions (including traded options), or agreements to purchase or sell relevant securities, should be given on a Supplemental Form 8 (Open Positions).
Details of any securities borrowing and lending positions or financial collateral arrangements should be disclosed on a Supplemental Form 8 (SBL).
4. OTHER INFORMATION
(a) Indemnity and other dealing arrangements
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Details of any indemnity or option arrangement, or any agreement or understanding, formal or informal, relating to relevant securities which may be an inducement to deal or refrain from dealing entered into by the party to the offer making the disclosure or any person acting in concert with it: Irrevocable commitments and letters of intent should not be included. If there are no such agreements, arrangements or understandings, state "none" |
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None. |
(b) Agreements, arrangements or understandings relating to options or derivatives
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Details of any agreement, arrangement or understanding, formal or informal, between the party to the offer making the disclosure, or any person acting in concert with it, and any other person relating to: (i) the voting rights of any relevant securities under any option; or (ii) the voting rights or future acquisition or disposal of any relevant securities to which any derivative is referenced: If there are no such agreements, arrangements or understandings, state "none" |
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None. |
(c) Attachments
Are any Supplemental Forms attached?
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Supplemental Form 8 (Open Positions)
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YES |
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Supplemental Form 8 (SBL) |
NO |
Date of disclosure: |
5 OCTOBER 2021 |
Contact name: |
Joe DeCristofaro, Investor Relations |
Telephone number: |
+1 617 986 6744 |
Public disclosures under Rule 8 of the Code must be made to a Regulatory Information Service.
The Panel's Market Surveillance Unit is available for consultation in relation to the Code's disclosure requirements on +44 (0)20 7638 0129.
The Code can be viewed on the Panel's website at www.thetakeoverpanel.org.uk.
SUPPLEMENTAL FORM 8 (OPEN POSITIONS)
DETAILS OF OPEN STOCK-SETTLED DERIVATIVE (INCLUDING OPTION) POSITIONS, AGREEMENTS TO PURCHASE OR SELL ETC.
Note 5(i) on Rule 8 of the Takeover Code (the "Code")
1. KEY INFORMATION
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Full name of person making disclosure: |
DRAFTKINGS INC. |
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Name of offeror/offeree in relation to whose relevant securities the disclosure relates: |
DRAFTKINGS INC. |
2. STOCK-SETTLED DERIVATIVES (INCLUDING OPTIONS)
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Class of relevant security |
Product description e.g. call option |
Written or purchased |
Number of securities to which option or derivative relates |
Exercise price per unit |
Type e.g. American, European etc. |
Expiry date |
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Class A common stock, par value $0.0001 each |
Call option |
Written |
2,319,460
|
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
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Class A common stock, par value $0.0001 each |
Call option |
Written |
347,919 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
2,319,460 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
347,919 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
1,159,730 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
173,959 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
4,638,920 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
695,838 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
1,159,730 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
|
Class A common stock, par value $0.0001 each |
Call option |
Written |
173,960 |
$94.8497 |
European |
The options may be exercised in components from 14 January 2028 to 13 March 2028 |
3. AGREEMENTS TO PURCHASE OR SELL ETC.
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Full details should be given so that the nature of the interest or position can be fully understood: |
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In March 2021, the offeror completed a private unregistered offering and issued zero-coupon convertible senior notes in an aggregate principal amount of $1,265,000,0000 (collectively the "Convertible Notes"). The Convertible Notes mature on March 15, 2028, subject to earlier conversion, redemption or repurchase. The Convertible Notes are convertible into Class A common stock of the offeror under certain circumstances and during certain periods.
In connection with the issue of the Convertible Notes, the offeror entered into privately negotiated capped call options on 15 March 2021 (the "Base Capped Call Options") and 16 March 2021 (the "Additional Capped Call Options", and together with the Base Capped Call Options, the "Capped Call Options") with each of Morgan Stanley & Co. LLC, Credit Suisse Capital LLC, Goldman Sachs & Co. LLC, Bank of America, N.A. and Wells Fargo Bank, National Association. The exercise price of the Capped Call Options corresponds to the initial conversion price of the Convertible Notes. The Capped Call Options were entered into with the expectation that they will generally reduce potential dilution to the offeror's Class A common stock upon any conversion of Convertible Notes.
Pursuant to the Capped Call Options, a set number of options (a "component") will be exercised automatically on the expiration date of the relevant component, as set out in the documents for the Capped Call Options, if on such date the per share volume-weighted average share price exceeds the exercise price. The earliest expiration date for a component in respect of each Capped Call Option is 14 January 2028 and the latest expiration date is 13 March 2028, which may be postponed under the Capped Call Options to a date not later than 6 July 2028. The Capped Call Options will be exercised on a net share settlement basis unless the offeror elects to exercise the options on a cash settlement basis.
The premium paid by the offeror in connection with the Capped Call Options was (i) $21,560,000 for the Base Capped Call Option with Bank of America, N.A. and $3,234,000 for the Additional Capped Call Option with Bank of America, N.A., (ii) $21,560,000 for the Base Capped Call Option with Credit Suisse Capital LLC and $3,234,000 for the Additional Capped Call Option with Credit Suisse Capital LLC, (iii) $10,780,000 for the Base Capped Call Option with Goldman Sachs & Co. LLC and $1,617,000 for the Additional Capped Call Option with Goldman Sachs & Co. LLC, (iv) $43,120,000 for the Base Capped Call Option with Morgan Stanley & Co. LLC and $6,468,000 for the Additional Capped Call Option with Morgan Stanley & Co. LLC, and (v) $10,780,000 for the Base Capped Call Option with Wells Fargo Bank, National Association and $1,617,000 for the Additional Capped Call Option with Wells Fargo Bank, National Association.
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It is not necessary to provide details on a Supplemental Form (Open Positions) with regard to cash-settled derivatives.
The currency of all prices and other monetary amounts should be stated.
The Panel's Market Surveillance Unit is available for consultation in relation to the Code's disclosure requirements on +44 (0)20 7638 0129.
The Code can be viewed on the Panel's website at www.thetakeoverpanel.org.uk.
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