AMENDMENT NO. 1 TO BUSINESS COMBINATION AGREEMENT
This AMENDMENT NO. 1, dated as of April 7, 2020 (this “Amendment No. 1”), to the Business Combination Agreement (the “Agreement”), dated as of December 22, 2019, by and among DraftKings Inc., a Delaware corporation (“DK”), SBTech (Global) Limited, a company limited by shares, incorporated in Gibraltar and continued as a company under the Isle of Man Companies Act 2006, with registration number 014119V (“SBT”), the sellers set forth on the signature pages thereto (the “SBT Sellers”), Shalom Meckenzie, in his capacity as the SBT Sellers’ Representative, Diamond Eagle Acquisition Corp., a Delaware corporation (“DEAC”), DEAC NV Merger Corp., a Nevada corporation and a wholly-owned Subsidiary of DEAC (“DEAC Newco”) and DEAC Merger Sub Inc., a Delaware corporation and a wholly-owned Subsidiary of DEAC (“Merger Sub”, together with DK, SBT, the SBT Sellers, DEAC, DEAC Newco and Merger Sub, the “Parties”), is made by and among the Parties (with the SBT Sellers’ Representative acting on behalf of the SBT Sellers). Capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in the Agreement.
W I T N E S S E T H:
WHEREAS, the Parties entered into the Agreement on December 22, 2019;
WHEREAS, Section 14.11 of the Agreement provides that, subject to applicable Law, and except as otherwise provided in the Agreement, the Agreement may be amended, modified or supplemented by a written instrument executed and delivered by all of the Parties (except that the SBT Sellers’ Representative written agreement to such amendment, modification or supplement shall bind the SBT Sellers to such amendment), whether before or after approval of the matters presented in connection with the Transactions; provided that after any such approval, no amendment shall be made for which applicable Law or the rules of any relevant stock exchange requires further approval by a Party’s shareholders without such further approval; and
WHEREAS, the Parties desire to amend certain terms of the Agreement as set forth in this Amendment No. 1 and to make certain representations, warranties, covenants and agreements in connection with this Amendment No. 1.
NOW, THEREFORE, in consideration of the premises and the representations, warranties, covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as follows:
Section 14.1 of the Agreement is hereby amended to add the following as defined terms:
“Sportsbook License Agreement” means that certain Agreement for the Provision of a Sports Betting Solution, between Sports Information Services Limited and Crown Gaming Inc., dated as of June 19, 2018, as supplemented by the Addendum thereto, dated as of August 22, 2019.
“Supplemental Cash Escrow Amount” means an amount in cash equal to US$ 10,000,000.
“Supplemental Escrow Account” means the interest-bearing deposit account in the name of the Escrow Agent to be opened in accordance with the Escrow Agreement.
“Supplemental Indemnity Matter” means that certain cyber security incident involving SBT discovered by SBT on March 27, 2020.
“Supplemental Lockup Shares” means the shares of New DK Class A Common Stock constituting an aggregate value of US$ 20,000,000 at the Closing.
The definitions of the following terms set forth in Section 14.1 of the Agreement are amended and restated in their entirety as follows: