UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

 

 

Dover Motorsports, Inc.

(Name of Subject Company)

SPEEDCO II, INC.,

(Offeror)

SPEEDWAY MOTORSPORTS, LLC, and

(Parent of Offeror)

SONIC FINANCIAL CORPORATION

(Indirect and Ultimate Parent of Offeror)

(Names of Filing Persons)

Common stock, par value $0.10 per share

(Title of Class of Securities)

260174107

(CUSIP Number of Class of Securities)

Class A common stock, par value $0.10 per share

(Title of Class of Securities)

260174DM

(CUSIP Number of Class of Securities)

J. Cary Tharrington, IV

Executive Vice President, Secretary and General Counsel

Speedway Motorsports, LLC

5401 East Independence Boulevard

Charlotte, North Carolina 28212

Tel: (704) 455-3239

(Name, address and telephone numbers of person authorized

to receive notices and communications on behalf of filing persons)

With a copy to:

James N. Greene III, Esq.

Parker Poe Adams and Bernstein LLP

620 South Tryon Street, Suite 800

Charlotte, North Carolina 28202

Tel: (704) 372-9000

 

 

CALCULATION OF FILING FEE

 

   
Transaction Valuation*    Amount of Filing Fee**

$131,489,164

   $12,190
*

Calculated solely for purposes of determining the filing fee. The transaction value was calculated by adding (a) 17,913,616 shares of issued and outstanding common stock, par value $0.10 (the “Common Stock”), of Dover Motorsports, Inc., a Delaware corporation (“Dover”), which includes 509,200 shares of restricted stock, and (b) 18,509,975 shares of issued and outstanding class A common Stock, par value $0.10 (the “Class A Stock”, and together with the Common Stock, the “Shares”), of Dover multiplied by the offer price of $3.61 per Share. The calculation of the filing fee is based on information provided by Dover as of November 23, 2021.

**

The filing fee was calculated in accordance with Rule 0-11 under the Securities Exchange Act of 1934, as amended, and Fee Rate Advisory No. 1 for fiscal year 2022 issued August 23, 2021, by multiplying the transaction value by 0.0000927.

 

Check box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the form or schedule and the date of its filing.

 

Amount Previously Paid:   N/A                                             Filing Party:   N/A
Form or Registration No:   N/A                                             Date Filed:   N/A

 

Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

 

third-party tender offer subject to Rule 14d-1.

 

issuer tender offer subject to Rule 13e-4.

 

going-private transaction subject to Rule 13e-3.

 

amendment to Schedule 13D under Rule 13d-2.

Check the following box if the filing is a final amendment reporting the results of the tender offer: ☐

If applicable, check the appropriate box(es) below to designate the appropriate rule provision(s) relied upon:

 

 

Rule 13e-4(i) (Cross-Border Issuer Tender Offer)

 

Rule 14d-1(d) (Cross-Border Third-Party Tender Offer)

 

 

 


This Tender Offer Statement on Schedule TO (this “Schedule TO”) relates to the tender offer by Speedco II, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Speedway Motorsports, LLC, (“Speedway”), a Delaware limited liability company and an indirect wholly owned subsidiary of Sonic Financial Corporation (“SFC”), a North Carolina corporation for any and all of the outstanding shares of (i) common stock, par value $0.10 per share (“Common Stock”), and (ii) class A common stock, par value $0.10 per share (“Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc., a Delaware corporation (“Dover”), at a price of $3.61 per Share, without interest, net to the seller in cash, and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 23, 2021 (the “Offer to Purchase”), a copy of which is attached hereto as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”, a copy of which is attached hereto as Exhibit (a)(1)(B), and which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, constitutes the “Offer”).

The information set forth in the Offer to Purchase, including Schedule I thereto, is incorporated by reference to the extent stated herein in response to Items 1 through 9 and Item 11 of this Schedule TO, and is supplemented by the information specifically provided in this Schedule TO.

 

Item 1.

Summary Term Sheet.

The information set forth in the Offer to Purchase under “Summary Term Sheet” is incorporated herein by reference.

 

Item 2.

Subject Company Information.

(a) Name and Address. The name, address and telephone number of the subject company’s principal executive offices are as follows:

Dover Motorsports, Inc.

1131 North DuPont Highway

Dover, Delaware 19901

(302) 883-6500

(b) Securities. The information set forth in the Offer to Purchase under “Introduction” and Section 6—“Price Range of Shares; Dividends” is incorporated herein by reference.

(c) Trading Market and Price. The information set forth in the Offer to Purchase under Section 6—“Price Range of Shares; Dividends” is incorporated herein by reference.

 

Item 3.

Identity and Background of Filing Person.

(a)-(c) Name and Address; Business and Background of Entities; and Business and Background of Natural Persons. This Schedule TO is filed by Purchaser, Speedway and SFC. The information set forth in the Offer to Purchase under “Summary Term Sheet”, Section 8—“Certain Information Concerning Purchaser, Speedway and SFC” and Schedule I—“Information Relating to Purchaser, Speedway and SFC” is incorporated herein by reference.

 

Item 4.

Terms of the Transaction.

(a) Material Terms. The information set forth in the Offer to Purchase under the following headings is incorporated herein by reference:

Summary Term Sheet

Introduction


Section 1—“Terms of the Offer”

Section 2—“Acceptance for Payment and Payment for Shares”

Section 3—“Procedures for Accepting the Offer and Tendering Shares”

Section 4—“Withdrawal Rights”

Section 5—“Certain United States Federal Income Tax Consequences”

Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover”

Section 11—“The Merger Agreement; Other Agreements”

Section 12—“Purpose of the Offer; Plans for Dover”

Section 13—“Certain Effects of the Offer”

Section 15—“Conditions of the Offer”

 

Item 5.

Past Contacts, Transactions, Negotiations and Agreements.

(a) Transactions. The information set forth in the Offer to Purchase under the following headings is incorporated herein by reference:

Summary Term Sheet

Introduction

Section 8—“Certain Information Concerning Purchaser, Speedway and SFC”

Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover”

Section 11—“The Merger Agreement; Other Agreements”

Section 12—“Purpose of the Offer; Plans for Dover”

(b) Significant Corporate Events. The information set forth in the Offer to Purchase under the following headings is incorporated herein by reference:

Summary Term Sheet

Introduction

Section 8—“Certain Information Concerning Purchaser, Speedway and SFC”

Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover”

Section 11—“The Merger Agreement; Other Agreements”

Section 12—“Purpose of the Offer; Plans for Dover”

 

Item 6.

Purposes of the Transaction and Plans or Proposals.

(a) Purposes. The information set forth in the Offer to Purchase under Section 12—“Purpose of the Offer; Plans for Dover” is incorporated herein by reference.


(c) Plans. The information set forth in the Offer to Purchase under the following headings is incorporated herein by reference:

Summary Term Sheet

Introduction

Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover”

Section 11—“The Merger Agreement; Other Agreements”

Section 12—“Purpose of the Offer; Plans for Dover”

Section 13—“Certain Effects of the Offer”

Section 14—“Dividends and Distributions”

 

Item 7.

Source and Amount of Funds or Other Consideration.

(a), (b) and (d) Source of Funds; Conditions; Borrowed Funds. The information set forth in the Offer to Purchase under “Summary Term Sheet” and Section 9—“Source and Amount of Funds” is incorporated herein by reference.

 

Item 8.

Interest in Securities of the Subject Company.

(a), (b) Securities Ownership; Securities Transactions. The information set forth in the Offer to Purchase under Section 8—“Certain Information Concerning Purchaser, Speedway and SFC” and Schedule I—“Information Relating to Purchaser, Speedway and SFC” is incorporated herein by reference.

 

Item 9.

Persons/Assets Retained, Employed, Compensated or Used.

(a) Solicitations or Recommendations. The information set forth in the Offer to Purchase under “Summary Term Sheet”, Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover” and Section 17—“Fees and Expenses” is incorporated herein by reference.

 

Item 10.

Financial Statements.

(a) Financial Information. Not applicable.

(b) Pro Forma Information. Not applicable.

 

Item 11.

Additional Information.

(a) Agreements, Regulatory Requirements and Legal Proceedings. The information set forth in the Offer to Purchase under the following headings is incorporated herein by reference.

Summary Term Sheet

Section 8—“Certain Information Concerning Purchaser, Speedway and SFC”

Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover”

Section 11—“The Merger Agreement; Other Agreements”

Section 12—“Purpose of the Offer; Plans for Dover”


Section 13—“Certain Effects of the Offer”

Section 16—“Certain Legal Matters; Regulatory Approvals”

(c) Other Material Information. The information set forth in the Offer to Purchase and the Letter of Transmittal is incorporated herein by reference.

 

Item 12.

Exhibits.

 

Exhibit No.

  Description

(a)(1)(A)*

  Offer to Purchase, dated November 23, 2021.

(a)(1)(B)*

  Letter of Transmittal, dated November 23, 2021.

(a)(1)(C)*

  Notice of Guaranteed Delivery, dated November 23, 2021.

(a)(1)(D)*

  Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated November 23, 2021.

(a)(1)(E)*

  Letter to Clients for Use by Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees, dated November 23, 2021.

(a)(1)(F)*

  Summary Advertisement, as published in the Wall Street Journal on November 23, 2021.

(a)(5)(A)

  Joint press release issued by Speedway Motorsports, LLC, and Dover Motorsports, Inc., dated November  8, 2021 (incorporated by reference to Exhibit 99.1 to the Current Report on Form 8-K by Dover Motorsports, Inc., filed on November 9, 2021).

(b)(1)*

  Second Amended and Restated Credit Agreement, dated as of September  17, 2019, by and among Speedway and Speedway Funding LLC, as borrowers, certain subsidiaries of Speedway, as guarantors, and Bank of America N.A., as a lender and as agent for the other lenders thereunder, as amended by Amendment No.  1 thereto, dated as of August 25, 2020, Amendment No. 2 thereto, dated as of May 12, 2021, and Amendment No. 3 thereto, dated as of November 19, 2021.

(d)(1)

  Agreement and Plan of Merger, dated as of November  8, 2021 by and among Speedway Motorsports, LLC, Speedco II, Inc., and Dover Motorsports, Inc. (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K of Dover Motorsports, Inc. filed on November 9, 2021).

(d)(2)

  Tender and Support Agreement, dated as of November  8, 2021, by and among Speedway Motorsports, LLC, Speedco II, Inc., Henry B. Tippie, individually and as trustee of the RMT Trust, Jeffrey W. Rollins, Gary W. Rollins, the RMT Trust, Mike Tatoian, Tim Horne, Tom Wintermantel, Denis McGlynn, Louise McGlynn, Patrick Bagley, Nevada Oversight, Inc. as trustee of the Marital Trust held under the R. Randall Rollins 2012 Trust, and Radcliffe Hastings (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K of Dover Motorsports, Inc. filed on November 9, 2021).

(d)(3)*

  Confidentiality Agreement, dated July 20, 2021, by and between Dover Motorsports, Inc. and Speedway Motorsports, LLC.

 

*

Filed herewith.

 

Item 13.

Information Required by Schedule 13E-3.

Not applicable.


SIGNATURES

After due inquiry and to the best of their knowledge and belief, each of the undersigned certifies that the information set forth in this statement is true, complete and correct.

 

SPEEDWAY MOTORSPORTS, LLC

By:

 

/s/ William R. Brooks

  Name:     William R. Brooks
  Title:   Vice Chairman, Chief Financial
Officer and Treasurer
SPEEDCO II, INC.

By:

 

/s/ William R. Brooks

 

Name:  

  William R. Brooks
 

Title:

  Vice Chairman, Chief Financial Officer and Treasurer
SONIC FINANCIAL CORPORATION

By:

 

/s/ William R. Brooks

 

Name:  

  William R. Brooks
 

Title:

  Vice President and Chief Financial
Officer

Dated: November 23, 2021

Exhibit (a)(1)(A)

Offer to Purchase for Cash

All Outstanding Shares of Common Stock and Class A

Common Stock of

Dover Motorsports, Inc.

at

$3.61 Net Per Share

by

Speedco II, Inc.,

a wholly owned subsidiary of

Speedway Motorsports, LLC

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT

ONE MINUTE AFTER 11:59 P.M. (12:00 MIDNIGHT), NEW YORK CITY TIME,

ON TUESDAY, DECEMBER 21, 2021, UNLESS THE OFFER IS EXTENDED OR

EARLIER TERMINATED.

Speedco II, Inc., a Delaware corporation (“Purchaser”) and a wholly owned subsidiary of Speedway Motorsports, LLC, a Delaware limited liability company (“Speedway”), is offering to purchase, subject to the satisfaction or waiver of certain conditions, including the Minimum Condition (as defined below), (i) all of the outstanding shares of common stock, par value $0.10 per share, of Dover Motorsports, Inc., a Delaware corporation (“Dover”) (the “Common Stock”) at a price of $3.61 (the “Common Stock Offer Price”), subject to any required withholding of taxes, without interest, net to the holder in cash upon the terms and subject to the conditions set forth in this offer to purchase (the “Offer to Purchase”) and in the related letter of transmittal (the “Letter of Transmittal” and which, together with this Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”), and (ii) all of the outstanding shares of class A common stock, par value $0.10 per share, of Dover (the “Class A Stock” and together with the Common Stock, the “Shares”) at a price per share of $3.61 (the “Class A Stock Offer Price” and together with the Common Stock Offer Price, the “Offer Price”), subject to any required withholding of taxes, without interest, net to the holder in cash upon the terms and subject to the conditions set forth in the Offer.

We are making the Offer pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among Purchaser, Speedway and Dover. The Merger Agreement provides, among other things, that, as soon as practicable following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will be merged with and into Dover (the “Merger”), without a vote of the stockholders of Dover to adopt the Merger Agreement and consummate the Merger, in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (as amended, the “DGCL”), with Dover continuing as the surviving corporation (the “Surviving Corporation”) after the Merger and thereby becoming a wholly owned subsidiary of Speedway. Each capitalized term used herein but not defined herein shall have the meaning assigned to such term in the Merger Agreement.

As a result of the Merger, each Share that is outstanding immediately prior to the time the Merger becomes effective (other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser immediately prior to


the Merger becoming effective or irrevocably accepted for purchase by Purchaser in the Offer, or (iii) held by Dover’s stockholders who are entitled to and properly demand and who have lost or withdrew their appraisal rights under the DGCL) will be converted automatically into the right to receive the Offer Price in cash, without interest and subject to any required withholding of taxes. The treatment of the Company Equity Awards is discussed below in “Section 11—The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.” Following the Merger, Dover will cease to be a publicly traded company. Under no circumstances will interest be paid on the Offer Price for the Shares, regardless of any extension of the Offer or any delay in making payment for the Shares.

The board of directors of Dover (the “Dover Board”), established a special committee of the Dover Board (the “Special Committee”) to review, evaluate and negotiate any proposal for a business combination transaction involving Dover and to recommend or not recommend that the Dover Board approve any such transaction. The Special Committee unanimously (i) determined that the Merger Agreement and the Offer and the Merger (the “Merger Transactions”), are fair to, and in the best interests of, Dover and its stockholders, (ii) approved the Merger Agreement and the Merger Transactions and declared it advisable for Dover to enter into the Merger Agreement and consummate the Merger Transactions, and (iii) recommend that the Dover Board adopt resolutions approving and adopting the Merger Agreement and consummate the Merger Transactions (the “Special Committee Recommendation”). Based on the Special Committee Recommendation, the Dover Board has duly (i) determined that the Merger Agreement and Merger Transactions are fair to and in the best interests of Dover and its stockholders; (ii) approved the Merger Agreement and the Merger Transactions and declared it advisable that Dover enter into the Merger Agreement and consummate the Merger Transactions; (iii) approved the execution, delivery and performance by Dover of the Merger Agreement and the consummation of the Merger Transactions; (iv) resolved that the Merger Agreement and the Merger shall be governed by and effected under Section 251(h) of the DGCL; and (v) to the extent necessary, take all actions necessary to have the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined below), the Merger Transactions, and the transactions contemplated by the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any of the other Merger Transactions, in each case, on the terms and subject to the conditions of the Merger Agreement.

The Offer is not subject to any financing condition. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition and the Governmental Consent Conditions. The “Minimum Condition” requires that the number of Shares validly tendered in accordance with the Offer (and not properly withdrawn) prior to the expiration of the Offer (but excluding Shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depositary,” as such terms are defined by Section 251(h)(6) of the DGCL), together with any Shares otherwise owned by Purchaser or its Affiliates, equals at least one share more than 50% of the aggregate voting power of all issued and outstanding Shares as of one minute following 11:59 p.m. (12:00 midnight), New York City time, on Tuesday, December 21, 2021 (the “Expiration Time,” unless Purchaser has extended the period during which the Offer is open in accordance with the terms of the Merger Agreement, in which event “Expiration Time” means the latest time and date at which the Offer, as so extended, will expire). The “Governmental Consent Conditions” require that all waiting periods (including all extensions thereof) applicable to the consummation of the Offer and the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), have expired or been terminated, and there is not in effect any voluntary agreement between Dover and the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “DOJ Antitrust Division”) pursuant to which Dover has agreed not to consummate the transactions contemplated by the Merger Agreement for any period of time that has not yet passed. The Offer is also subject to other conditions described in Section 15—“Conditions of the Offer.” The conditions to the Offer must be satisfied or waived on or prior to the Expiration Time.

A summary of the principal terms of the Offer appears under the heading “Summary Term Sheet.” You should read this entire Offer to Purchase, the Letter of Transmittal and the other documents to which this Offer to Purchase refers carefully before deciding whether to tender your Shares in the Offer.

November 23, 2021


IMPORTANT

If you desire to tender all or any portion of your Shares to Purchaser pursuant to the Offer, you should either (i) complete and sign the Letter of Transmittal for the Offer, which accompanies this Offer to Purchase, in accordance with the instructions contained in the Letter of Transmittal, with any required signature guarantees if the Letter of Transmittal so requires, and mail or deliver the Letter of Transmittal and any other required documents to American Stock Transfer & Trust Co., LLC, in its capacity as depositary for the Offer (the “Depositary”), and deliver the certificates for your Shares to the Depositary along with the Letter of Transmittal, or tender your Shares by book-entry transfer by following the procedures described in Section 3—“Procedures for Accepting the Offer and Tendering Shares,” in each case prior to the Expiration Time, or (ii) request that your broker, dealer, commercial bank, trust company or other nominee effect the transaction for you. If you hold Shares registered in the name of a broker, dealer, commercial bank, trust company or other nominee, you must contact that institution in order to tender your Shares pursuant to the Offer. If you are a record holder but your stock certificate is not available or you cannot deliver it to the Depositary before the Expiration Time, you may be able to tender your Shares using the accompanying Notice of Guaranteed Delivery (see Section 3—“Procedures for Accepting the Offer and Tendering Shares” for further details).

* * * * *

Questions and requests for assistance regarding the Offer or any of the terms thereof may be directed to MacKenzie Partners, Inc., as information agent for the Offer (the “Information Agent”), at its address and telephone numbers set forth below and on the back cover of this Offer to Purchase. Additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may also be obtained for free from the Information Agent. Additionally, copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may be obtained at the website maintained by the U.S. Securities and Exchange Commission (the “SEC”) at www.sec.gov. You may also contact your broker, dealer, commercial bank, trust company or other nominee for assistance concerning the Offer.

This Offer to Purchase and the Letter of Transmittal contain important information, and you should read both carefully and in their entirety before making a decision with respect to the Offer.

This transaction has not been approved or disapproved by the SEC or any state securities commission, nor has the SEC or any state securities commission passed upon the fairness or merits of this transaction or upon the accuracy or adequacy of the information contained in this Offer to Purchase or the Letter of Transmittal. Any representation to the contrary is unlawful.

The Information Agent for the Offer is:

MacKenzie Partners, Inc.

1407 Broadway, 27th Floor

New York, NY 10018

(212) 929-5500

or

Call Toll-Free: (800) 322-2885

Email address: tenderoffer@mackenziepartners.com


TABLE OF CONTENTS

 

         Page  

SUMMARY TERM SHEET

     4  

INTRODUCTION

     11  

THE TENDER OFFER

     14  
1.  

Terms of the Offer.

     14  
2.  

Acceptance for Payment and Payment for Shares.

     16  
3.  

Procedures for Accepting the Offer and Tendering Shares.

     17  
4.  

Withdrawal Rights.

     20  
5.  

Certain United States Federal Income Tax Consequences.

     21  
6.  

Price Range of Shares; Dividends.

     24  
7.  

Certain Information Concerning Dover.

     24  
8.  

Certain Information Concerning Purchaser, Speedway and SFC

     25  
9.  

Source and Amount of Funds.

     26  
10.  

Background of the Offer; Past Contacts or Negotiations with Dover.

     28  
11.  

The Merger Agreement; Other Agreements.

     30  
12.  

Purpose of the Offer; Plans for Dover.

     46  
13.  

Certain Effects of the Offer.

     48  
14.  

Dividends and Distributions.

     48  
15.  

Conditions of the Offer.

     49  
16.  

Certain Legal Matters; Regulatory Approvals.

     50  
17.  

Fees and Expenses.

     53  
18.  

Miscellaneous.

     53  

SCHEDULE I—INFORMATION RELATING TO PURCHASER, SPEEDWAY AND SFC

     54  

 

 

SUMMARY TERM SHEET

The following are some of the key terms of the Offer, as well as certain questions that you, as a stockholder of Dover, may have and answers to these questions. This summary term sheet highlights selected information from this Offer to Purchase, and as a result may not contain all of the information that is important to you and is qualified in its entirety by the more detailed descriptions and explanations contained in this Offer to Purchase, the Letter of Transmittal, the Merger Agreement and the Offer. To better understand the Offer and for a complete description of the legal terms of the Offer, you should read this Offer to Purchase, the Letter of Transmittal and other related materials carefully and in their entirety.

The information concerning Dover contained herein and elsewhere in the Offer to Purchase has been provided to Purchaser and Speedway by Dover or has been taken from, or is based upon, publicly available documents or records of Dover on file with the SEC or other public sources at the time of the Offer. Purchaser and Speedway have not independently verified the accuracy and completeness of such information.

Unless otherwise indicated in this Offer to Purchase or the context otherwise requires, all references in this Offer to Purchase to “we,” “our” or “us” refer to Purchaser and, where appropriate, Speedway.

 

Securities Sought:

   Subject to certain conditions, including the satisfaction of the Minimum Condition (as described below), any and all of the outstanding shares of Dover’s (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with Common Stock, the “Shares”).

 

4


Price Offered Per Share:

   We are offering (i) $3.61 per share of Common Stock, net to the holder in cash, without interest and subject to any required withholding of taxes (the “Common Stock Offer Price”), and (ii) $3.61 per share of Class A Stock, net to the holder in cash, without interest and subject to any required withholding of taxes (the “Class A Offer Price”, and together with the Common Stock Offer Price, the “Offer Price”). See Section 1—“Terms of the Offer.”

Expiration Time of the Offer:

   One minute following 11:59 p.m. (12:00 midnight), New York City time, on Tuesday, December 21, 2021 (as it may be extended in accordance with the terms of the Merger Agreement, the “Expiration Time”). See Section 1—“Terms of the Offer.”

Withdrawal Rights:

   You can withdraw your Shares at any time prior to the Expiration Time, unless the Offer is extended, in which case you can withdraw your Shares by the then-extended Expiration Time. See Section 4—“Withdrawal Rights.”

Purchaser:

   Speedco II, Inc., a Delaware corporation and a direct wholly owned subsidiary of Speedway Motorsports, LLC, a Delaware limited liability company, which is an indirect wholly owned subsidiary of Sonic Financial Corporation, a North Carolina corporation (“SFC”). See Section 8—“Certain Information Concerning Purchaser, Speedway and SFC.”

Who is offering to buy the Shares?

Speedco II, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Speedway Motorsports, LLC (“Speedway”), is offering to purchase any and all of the issued and outstanding Shares upon the terms and subject to the conditions contained in this Offer to Purchase. Purchaser was formed for the sole purpose of making the Offer and completing the process by which Purchaser will be merged with and into Dover Motorsports, Inc., a Delaware corporation (“Dover”). See “Introduction” and Section 8—“Certain Information Concerning Purchaser, Speedway and SFC.”

What securities are we offering to purchase?

We are making an offer to purchase any and all of the outstanding Shares on the terms and subject to the conditions set forth in this Offer to Purchase and the Letter of Transmittal. See “Introduction” and Section 1—“Terms of the Offer.”

How much are we offering to pay and what is the form of payment?

We are offering to pay $3.61 per Share, net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions contained in this Offer to Purchase and the Letter of Transmittal. See “Introduction” and Section 1—“Terms of the Offer.”

Will Dover’s stockholders need to pay any fees or commissions?

If you are the record holder of your Shares and you tender your Shares to us in the Offer, you will not have to pay brokerage fees, commissions or similar expenses. If you own your Shares through a broker or other nominee and your broker or other nominee tenders your Shares on your behalf, your broker or nominee may charge you a fee for doing so. You should consult your broker or nominee to determine whether any charges will apply. See “Introduction” and Section 1—“Terms of the Offer.”

Why are we making the Offer?

We are making the Offer because we want to acquire all of the outstanding capital stock of Dover. The Offer, as the first step in the acquisition of Dover, is intended to facilitate the acquisition of all outstanding Shares. We are

 

5


making the Offer pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among Speedway, Purchaser and Dover. The Merger Agreement provides, among other things, that, as soon as practicable following the consummation of the Offer, Purchaser will be merged with and into Dover (the “Merger”) in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (as amended, the “DGCL”), with Dover continuing as the surviving corporation (the “Surviving Corporation”) after the Merger and thereby becoming a wholly owned subsidiary of Speedway. Following the Merger, Dover will cease to be a publicly traded company. See “Introduction” and Section 12—“Purpose of the Offer; Plans for Dover.”

Is there an agreement governing the Offer?

Yes. Speedway, Purchaser and Dover have entered into the Merger Agreement, which provides, among other things, for the terms and conditions of the Offer and the Merger. See “Introduction” and Section 11—“The Merger Agreement; Other Agreements.”

How does the Dover Board view the Offer?

The Dover Board has unanimously duly (i) determined that the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Dover enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Offer and the Merger, (iii) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL; (iv) recommended that the stockholders of Dover tender their Shares in the Offer; and (v) to the extent necessary, adopted resolutions having the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined below) and the transactions contemplated by the Merger Agreement and the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

See “Introduction,” Section 10—“Background of the Offer; Past Contacts or Negotiations with Dover” and Section 11—“The Merger Agreement; Other Agreements.” A more complete description of the reasons for the Dover’s Board’s approval of the Offer and the Merger is set forth in a Solicitation/Recommendation Statement on Schedule 14D-9 of Dover that is being furnished or otherwise made available by Dover to its stockholders substantially contemporaneously with this Offer to Purchase.

What are the most significant conditions to the Offer?

The Offer is conditioned upon, among other things, the satisfaction or waiver of the following conditions (all such conditions collectively, the “Offer Conditions”):

 

   

the number of Shares validly tendered in accordance with the terms of the Offer and “received” by the “depositary” (as such terms are defined in Section 251(h)(6) of the DGCL) and not properly withdrawn, together with any Shares owned by Purchaser or its affiliates, equals at least one share more than 50% of the aggregate voting power of all issued and outstanding Shares as of the Expiration Time (the “Minimum Condition”); and

 

   

all waiting periods (including all extensions thereof) applicable to the consummation of the Offer and the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), have expired or been terminated, and there is not in effect any voluntary agreement between Dover and the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “DOJ Antitrust Division”) pursuant to which Dover has agreed not to consummate the transactions contemplated by the Merger Agreement for any period of time that has not yet passed (the “HSR Condition”).

 

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Subject to the terms and conditions of the Merger Agreement and applicable laws, rules and regulations, any of the conditions to the Offer may be waived by Purchaser and Speedway in whole or in part at any time and from time to time in their respective sole discretion, except that we are not permitted to waive the Minimum Condition without the prior written consent of Dover. See Section 1—“Terms of the Offer,” Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Offer—Terms and Conditions of the Offer” and Section 15—“Conditions of the Offer.”

Is the Offer subject to any financing condition?

No. There is no financing condition to the Offer. See “Introduction,” Section 1—“Terms of the Offer” and Section 9—“Source and Amount of Funds.”

Does Purchaser have the financial resources to pay for all of the Shares it is offering to purchase in the Offer?

Yes. We estimate that the maximum amount of funds needed to (i) complete the Offer, the Merger and the transactions contemplated by the Merger Agreement, including the funds needed to purchase all Shares tendered in the Offer and to pay Dover’s stockholders whose Shares are converted into the right to receive a cash amount equal to the Offer Price in the Merger, and (ii) pay for fees and expenses incurred by Purchaser and Speedway related to the Offer and the Merger, will be approximately $135.5 million. Speedway will provide Purchaser with sufficient funds to complete the Offer, the Merger and the other transactions contemplated by the Merger Agreement, funded with cash on hand and borrowings under the Credit Agreement (as defined below). Neither the consummation of the Offer nor the consummation of the Merger is conditioned upon Purchaser’s or Speedway’s receipt of financing. Purchaser will provide, and Speedway will cause Purchaser to provide, to American Stock Transfer & Trust Co., LLC in its capacity as the paying agent (the “Paying Agent”), on a timely basis, the funds necessary to pay for any Shares that Purchaser becomes obligated to purchase pursuant to the Offer. See Section 9—“Source and Amount of Funds.”

Is the financial condition of Purchaser or Speedway material or relevant to a decision to tender Shares in the Offer?

No, we do not believe the financial condition of Purchaser, Speedway or their respective affiliates is material or relevant to your decision regarding whether to tender Shares in the Offer because:

 

   

the Offer is being made for all outstanding Shares solely for cash;

 

   

the consummation of the Offer (or the Merger) is not subject to any financing condition;

 

   

we will have sufficient funds available to us to consummate the Offer and the Merger; and

 

   

if Purchaser consummates the Offer, Purchaser will acquire all remaining Shares for the same cash price in the Merger (i.e., the Offer Price).

See Section 9—“Source and Amount of Funds.”

Can the Offer be extended and under what circumstances can or will the Offer be extended?

Yes, we may extend the Offer beyond its initial Expiration Time, but in no event will we be required to extend the Offer beyond March 8, 2022 (the “Outside Date”). We have agreed in the Merger Agreement that Purchaser will extend the Offer on one or more occasions (i) for the minimum period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the New York Stock Exchange (“NYSE”) applicable to the Offer, and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived, for periods of at least five business days (or such other duration as may be agreed to by Speedway and Dover) per extension in order to permit the satisfaction of such Offer Condition(s), except that if the Minimum

 

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Condition is the only Offer Condition that has not been satisfied or waived, we will not be required to, but may in our sole discretion, extend the Offer for more than one such five business day extension. See “Introduction,” Section 1—“Terms of the Offer” and Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Offer—Extensions of the Offer” for more details on our ability to extend the Offer.

How will stockholders be notified if the Offer is extended?

If we extend the Offer, we will inform American Stock Transfer & Trust Co., LLC (the “Depositary”) of that fact and will make a public announcement of the extension not later than 9:00 a.m., Eastern Time, on the next business day after the day of the previously scheduled Expiration Time. See Section 1—“Terms of the Offer.”

Will there be a subsequent offering period?

No. Pursuant to Section 251(h) of the DGCL, we expect the Merger to occur as soon as practicable following the consummation of the Offer without a subsequent offering period.

Have any stockholders already agreed to tender their Shares in the Offer?

Yes. We have entered into a Tender and Support Agreement (the “Support Agreement”) with certain of Dover’s stockholders (the “Supporting Stockholders”), pursuant to which the Supporting Stockholders have agreed, among other things, to tender all of their Shares in the Offer and take certain other actions in furtherance of the Merger. The Shares subject to the Support Agreement represent approximately 57.5% of the total aggregate outstanding Shares or approximately 92% of the voting power as of November 5, 2021. As required by Dover’s Bylaws, each of Supporting Stockholders will take all action necessary to convert their shares of Class A Stock to an equal number of shares of Common Stock, effective as of immediately prior to the purchase of such shares by Purchaser pursuant to the Merger Agreement or, if earlier, immediately prior to the Effective Time. Following such conversion, the Shares subject to the Support Agreement will in the aggregate represent approximately 57.5% of the number of outstanding Shares and 57.5% of the aggregate voting power of the outstanding Shares.

How long do stockholders have to decide whether to tender their Shares in the Offer?

You will have until the Expiration Time to decide whether to tender your Shares in the Offer, unless we extend the Offer pursuant to the terms of the Merger Agreement or the Offer is earlier terminated. If you cannot deliver everything required to make a valid tender to the Depositary prior to such time, you may be able to use a guaranteed delivery procedure, which is described in Section 3—“Procedures for Accepting the Offer and Tendering Shares.” Shares tendered pursuant to guaranteed delivery procedures but not yet delivered in satisfaction of such guarantee will be excluded in calculating whether the Minimum Condition has been satisfied. As a result, you are encouraged to deliver your Shares and other required documents to make a valid tender by the Expiration Time. Please give your broker, dealer, commercial bank, trust company or other nominee instructions in sufficient time to permit such nominee to tender your Shares by the Expiration Time. See Section 2—“Acceptance for Payment and Payment for Shares” and Section 3—“Procedures for Accepting the Offer and Tendering Shares.”

How do stockholders tender their Shares?

If you hold your Shares directly as the registered owner, you can (i) tender your Shares in the Offer by delivering the certificates representing your Shares, together with a completed and signed Letter of Transmittal, with any required signature guarantees, and any other documents required by the Letter of Transmittal, to the Depositary or (ii) tender your Shares by following the procedure for book-entry transfer set forth in this Offer to Purchase, in each case no later than the Expiration Time. If you are the registered owner but your stock certificate is not available or you cannot deliver it to the Depositary before the Offer expires, you may have a limited amount of

 

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additional time by having a broker, bank or other fiduciary that is an eligible institution guarantee that the missing items will be received by the Depositary within two NYSE trading days using the accompanying Notice of Guaranteed Delivery. For the tender to be valid, however, the Depositary must receive the missing items within that two trading-day period, and for the tender to be counted toward satisfaction of the Minimum Condition, the Shares must be received by the Depositary prior to the Expiration Time.

If you hold your Shares in street name through a broker, dealer, commercial bank, trust company or other nominee, you must contact the institution that holds your Shares and give instructions that your Shares be tendered. You should contact the institution that holds your Shares for more details. See “Introduction” and Section 3—“Procedures for Accepting the Offer and Tendering Shares.”

Until what time may stockholders withdraw previously tendered Shares?

Shares tendered pursuant to the Offer may be withdrawn at any time prior to the Expiration Time and, if such Shares have not yet been accepted for payment at any time after January 22, 2022, the date that is 60 days after the date on which the offer commenced. Thereafter, tenders of Shares are irrevocable, and you will no longer be able to withdrawal them. If you tendered your Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct that nominee to arrange for the withdrawal of your Shares. See “Introduction” and Section 4—“Withdrawal Rights.”

How do stockholders withdraw previously tendered Shares?

To withdraw any of your previously tendered Shares, you must deliver a written (or, with respect to certain eligible institutions, a facsimile transmission to (718) 234-5001) notice of withdrawal with the required information to the Depositary while you still have the right to withdraw such Shares. If you tendered your Shares by giving instructions to a broker, dealer, commercial bank, trust company or other nominee, you must instruct that nominee to arrange for the withdrawal of your Shares. See “Introduction” and Section 4—“Withdrawal Rights.”

If a stockholder tenders its Shares, when and how will the stockholder get paid?

If the Offer Conditions as set forth in Section 15—“Conditions of the Offer” are satisfied or waived on or prior to the Expiration Time and Purchaser accepts your Shares for payment, we will pay you the Offer Price, which is an amount equal to the number of Shares you validly tendered and not properly withdrawn in the Offer multiplied by $3.61 in cash, without interest and subject to any required withholding of taxes, at or as promptly as practicable following (and in any event within three business days after) the date and time when Purchaser irrevocably accepts such Shares for payment, which will be at or promptly following the Expiration Time. See Section 2—“Acceptance for Payment and Payment for Shares.”

If a stockholder decides not to tender, how will the Offer affect that stockholder’s Shares?

If you decide not to tender your Shares pursuant to the Offer and the Merger occurs as described herein, you will receive, as a result of the Merger, the right to receive the same amount of cash per Share as if you had tendered your Shares pursuant to the Offer, without interest and subject to any required withholding of taxes.

Subject to certain conditions, if we purchase Shares in the Offer, we are obligated under the Merger Agreement to cause the Merger to occur.

Because the Merger will be governed by Section 251(h) of the DGCL, assuming the requirements of Section 251(h) of the DGCL are met, no vote of the stockholders of Dover will be required to adopt the Merger Agreement and consummate the Merger. We do not expect there to be significant time between the consummation of the Offer and the consummation of the Merger. See Section 13—“Certain Effects of the Offer.”

 

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Will the Offer be followed by a Merger if all the Shares are not tendered?

If the Offer is consummated and Purchaser acquires a at least one Share more than 50% of the aggregate voting power of all issued and outstanding Shares of Dover, then, in accordance with the terms of the Merger Agreement, Dover will complete the Merger without a vote of its stockholders to adopt the Merger Agreement and consummate the Merger in accordance with Section 251(h) of the DGCL. Pursuant to the Merger Agreement, if the Minimum Condition or any of the other Offer Conditions are not satisfied, Purchaser is not required to pay for and may delay the acceptance for payment of any Shares tendered pursuant to the Merger Agreement.

Pursuant to the Merger Agreement, as soon as practicable following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will be merged with and into Dover, with Dover continuing as the Surviving Corporation in the Merger and thereby becoming a wholly owned subsidiary of Speedway. As a result of the Merger, each Share issued and outstanding immediately before the time the Merger becomes effective (the “Effective Time”) (other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser or irrevocably accepted for purchase by Purchaser in the Offer or (iii) held by Dover’s stockholders who are entitled to and properly demand and do not lose or withdraw their appraisal rights under the DGCL) will be converted automatically into the right to receive the Offer Price in cash, without interest and subject to any required withholding of taxes. The treatment of the Company Equity Awards is discussed below in Section 11—“The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.” See “Introduction” and Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Merger—Merger Consideration” for further discussion on the Merger.

Upon the successful consummation of the Offer, will Dover continue as a public company?

If the Offer is consummated, the Merger will be completed as soon as practicable following the consummation of the Offer, subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement. As a result, the Shares will no longer meet the requirements for continued listing on NYSE because the only stockholder of Dover will be Purchaser. Immediately following the consummation of the Merger, we intend to cause Dover to delist the Shares from NYSE. In addition, we intend and will cause Dover to terminate the registration of the Shares under the Securities Exchange Act of 1934, as amended (the “Exchange Act”) as soon after consummation of the Merger as the requirements for termination of registration are met. See Section 12—“Purpose of the Offer; Plans for Dover” and Section 13—“Certain Effects of the Offer.”

Are appraisal rights available in either the Offer or the Merger?

No appraisal rights are available to you in connection with the Offer. If, however, we accept Shares in the Offer and the Merger is completed, Dover’s stockholders will be entitled to appraisal rights in connection with the Merger with respect to Shares not tendered in the Offer if such stockholders properly perfect their right to seek appraisal under the DGCL. See Section 16—“Certain Legal Matters; Regulatory Approvals—Dissenters’ Rights.”

What is the market value of the Shares as of a recent date?

On November 8, 2021, the last full trading day before the public announcement of the execution of the Merger Agreement, the reported closing sales price of the Shares on NYSE was $2.28. The Offer Price represents a premium of approximately 58.3% to the reported closing sales price of the Shares on NYSE on the last full trading day before the Merger Agreement was executed. We encourage you to obtain a recent quotation for Shares in deciding whether to tender your Shares. See Section 6—“Price Range of Shares; Dividends.”

What will happen to stock options in the Offer?

The Offer is made only for Shares and is not being made for any outstanding options to acquire Shares (“Options”). Dover has represented that there are not any Options. To the extent any Options exist, then pursuant

 

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to the Merger Agreement, as of the Effective Time, each Option outstanding immediately before the Effective Time, whether or not exercisable or vested, will be canceled and converted into the right to receive a cash amount (without interest and subject to any required withholding of taxes) equal to (i) the excess, if any, of the Offer Price over the applicable exercise price per Share of such Option, multiplied by (ii) the number of Shares subject to such Option. See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Merger—Treatment and Payment of Dover’s Equity Awards.”

What will happen to restricted stock in the Merger?

Pursuant to the Merger Agreement, as of immediately prior to the Effective Time, each Share of restricted stock outstanding as of the Effective Time (“Restricted Stock”) will fully vest such that any applicable repurchase rights of Dover and other restrictions applicable to such Shares will lapse in full. As of the Effective Time, each such Share of Restricted Stock will be converted automatically into the right to receive the Common Stock Offer Price in cash, without interest and subject to any required withholding of taxes. See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Merger—Treatment and Payment of Dover’s Equity Awards.”

What are the United States federal income tax consequences of the Offer and the Merger?

In general, the receipt of cash by you in exchange for your Shares pursuant to the Offer or the Merger will be a taxable transaction for United States federal income tax purposes. You are urged to consult your tax advisor regarding the particular tax consequences to you of tendering Shares for cash in the Offer or exchanging Shares for cash in the Merger in light of your particular circumstances (including the application and effect of any state, local or non-U.S. laws). See Section 5—“Certain United States Federal Income Tax Consequences” for a discussion of certain United States federal income tax consequences of tendering Shares pursuant to the Offer or exchanging Shares in the Merger.

Who should stockholders talk to if they have additional questions about the Offer?

You may call MacKenzie Partners, Inc., the Information Agent for the Offer, toll-free at (800) 322-2885. Banks and brokers may call collect at (212) 929-5500 or email tenderoffer@mackenziepartners.com.

INTRODUCTION

To the Holders of Dover’s Shares of Common Stock and Class A Stock:

Speedco II, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Speedway Motorsports, LLC, a Delaware limited liability company (“Speedway”), is offering to purchase, subject to the satisfaction or waiver of certain conditions, including the Minimum Condition (as defined below), any and all of the issued and outstanding shares of Dover Motorsports, Inc.’s, a Delaware corporation (“Dover”) (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”). The Shares will be offered at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in this Offer to Purchase (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” and which, together with this Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”). The Offer and withdrawal rights will expire at one minute following 11:59 p.m. (12:00 midnight), New York City time, on Tuesday, December 21, 2021 (the “Expiration Time,” unless Purchaser has extended the period during which the Offer is open in accordance with the terms of the Merger Agreement, in which event “Expiration Time” means the latest time and date at which the Offer, as so extended, will expire), unless the Offer is earlier terminated. See Section 1—“Terms of the Offer.”

 

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Tendering stockholders who are record owners of their Shares and tender directly to American Stock Transfer & Trust Co., LLC, as depositary for the Offer (the “Depositary”), will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in Instruction 6 of the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker or nominee should consult such institution as to whether it charges any service fees or commissions. We will pay all charges and expenses of the Depositary, and MacKenzie Partners, Inc., as information agent for the Offer (the “Information Agent”), incurred in connection with the Offer. See Section 17—“Fees and Expenses.”

The Offer is not subject to any financing condition. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition and the HSR Condition. The “Minimum Condition” requires that the number of Shares validly tendered in accordance with the terms of the Offer and “received” (as defined in Section 251(h)(6) of the DGCL) and not properly withdrawn, together with any Shares owned by Purchaser or its affiliates, equals at least one share more than 50% of the aggregate voting power of all issued and outstanding Shares as of the Expiration Time. For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been “received” (as defined by Section 251(h)(6) of the DGCL by the Depositary, together with any shares of Common Stock and Class A Stock otherwise owned by Purchaser or its Affiliates prior to the Expiration Time are excluded. The “HSR Condition” requires that all waiting periods (including all extensions thereof) applicable to the consummation of the Offer and the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), have expired or been terminated, and there is not in effect any voluntary agreement between Dover and the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “DOJ Antitrust Division”) pursuant to which Dover has agreed not to consummate the transactions contemplated by the Merger Agreement for any period of time that has not yet passed. The Offer is also subject to other conditions described in Section 15—“Conditions of the Offer.” The conditions to the Offer must be satisfied or waived on or prior to the Expiration Time.

Subject to the terms and conditions of the Merger Agreement and applicable laws, rules and regulations, any of the conditions to the Offer may be waived by Purchaser and Speedway in whole or in part at any time and from time to time in their respective sole discretion, except that we are not permitted to waive the Minimum Condition without the prior written consent of Dover. See Section 1—“Terms of the Offer” and Section 15—“Conditions of the Offer.”

We are making the Offer pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among Speedway, Purchaser and Dover. The Merger Agreement provides, among other things, that, as soon as practicable following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will be merged with and into Dover (the “Merger”) under the General Corporation Law of the State of Delaware (as amended, the “DGCL”), with Dover continuing as the surviving corporation (the “Surviving Corporation”) after the Merger and thereby becoming a wholly owned subsidiary of Speedway. See Section 1—“Terms of the Offer.”

Section 251(h) of the DGCL provides that, subject to certain statutory requirements, if following consummation of a tender offer for all of the outstanding stock of a publicly listed Delaware corporation, the stock irrevocably accepted for purchase pursuant to such tender offer and “received” by the “depositary” (as these terms are defined in Section 251(h) of the DGCL) prior to the expiration of such tender offer, together with the stock otherwise owned by the consummating corporation or its affiliates equals at least the percentage of the stock, and of each class or series thereof, of the target corporation that would otherwise be required to adopt a merger agreement under the DGCL or the target corporation’s certificate of incorporation, and each outstanding share of each class or series of stock that is the subject of such tender offer and is not irrevocably accepted for purchase in the tender offer is to be converted in such merger into the right to receive the same amount and kind of consideration to be paid for shares of such class or series of stock irrevocably accepted for purchase in such

 

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tender offer, the consummating corporation may effect a merger without a vote of the stockholders of the target corporation. Accordingly, if the Offer is consummated and the number of Shares validly tendered in accordance with the terms of the Offer and not properly withdrawn prior to the Expiration Time, together with any Shares owned by Purchaser, equals at least one more than 50% of the aggregate voting power of all issued and outstanding Shares, Dover does not anticipate seeking the approval of its remaining public stockholders before effecting the Merger. Section 251(h) also requires that the merger agreement provide that such merger be effected as soon as practicable following the consummation of the tender offer. Therefore, the parties have agreed that, subject to the conditions specified in the Merger Agreement, the Merger will become effective as soon as practicable following the consummation of the Offer and the satisfaction or waiver of the other conditions to the Merger set forth in the Merger Agreement (other than those conditions that by their terms are to be satisfied upon completion of the Merger), and in any event no later than the third business day following such satisfaction or waiver of such conditions, without a vote of the stockholders of Dover in accordance with Section 251(h) of the DGCL. See Section 12—“Purpose of the Offer; Plans for Dover.”

As a result of the Merger, each Share issued and outstanding immediately before the time the Merger becomes effective (the “Effective Time”) (other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser or irrevocably accepted for purchase by Purchaser in the Offer or (iii) held by Dover’s stockholders who are entitled to and properly demand and do not lose or withdraw their appraisal rights under the DGCL) will be converted automatically into the right to receive the Offer Price in cash, without interest and subject to any required withholding of taxes. The treatment of the Company Equity Awards is discussed below in Section 11—“The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.” All shares converted into the right to receive the Offer Price will be canceled and cease to exist. Following the Merger, Dover will cease to be a publicly traded company. See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Merger—Merger Consideration” and Section 12—“Purpose of the Offer; Plans for Dover”

The Dover Board has unanimously (i) determined that the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Dover enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Offer and the Merger, (iii) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL; (iv) recommended that the stockholders of Dover tender their Shares in the Offer; and (v) to the extent necessary, adopted resolutions having the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined below) and the transactions contemplated by the Merger Agreement and the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

A more complete description of the Dover Board’s reasons for authorizing and approving the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, is set forth in the Solicitation/Recommendation Statement on Schedule 14D-9 of Dover (together with any exhibits and annexes attached thereto, the “Schedule 14D-9”), which is being furnished or otherwise made available by Dover to its stockholders in connection with the Offer substantially contemporaneously with this Offer to Purchase and will be filed by Dover with the U.S. Securities and Exchange Commission (the “SEC”). Dover’s stockholders should carefully read the information set forth in the Schedule 14D-9, including the information set forth under in the Schedule 14D-9 under “Background of the Offer” and “Reasons for Recommendation of the Board.” See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—Recommendation.”

Dover has advised us that, as of the close of business on November 5, 2021, there were 36,423,591 Shares outstanding, which includes 17,913,616 shares of Common Stock (including 509,200 shares of stock issued under the Dover Equity Plan) and 18,509,975 shares of Class A Common Stock.

The Merger is subject to the satisfaction or waiver of certain conditions, including there being no judgment or other order issued by any court, governmental authority or self-regulatory organization that would enjoin or

 

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otherwise prohibit consummation of the Merger, and there being no legal action, arbitration or other civil or criminal proceeding instituted and pending by any governmental authority against Speedway, Dover or their respective affiliates seeking to make illegal, delay materially or enjoin or otherwise prohibit consummation of the Merger. In addition, Purchaser must have irrevocably accepted for payment, and Speedway will have caused Purchaser to accept for payment, all Shares validly tendered and not properly withdrawn pursuant to the Offer.

Pursuant to the Merger Agreement, from and after the Effective Time, the directors of Purchaser immediately before the Effective Time will be the directors of the Surviving Corporation, and the officers of Purchaser on the date of the Merger Agreement will be (unless any such officer dies, resigns or is removed prior to the Effective Time) will become the officers of the Surviving Corporation immediately after the Effective Time. See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—The Merger—Certificate of Incorporation; Bylaws; Directors and Officers of the Surviving Corporation.”

No appraisal rights are available in connection with the Offer. If, however, we accept Shares in the Offer and the Merger is completed, Dover’s stockholders will be entitled to appraisal rights in connection with the Merger with respect to Shares not tendered in the Offer if such stockholders comply with the applicable procedures described under Section 262 of the DGCL. Such stockholders will not be entitled to receive the Offer Price (without interest and subject to any required withholding of taxes), but instead will be entitled to receive only those rights provided under Section 262 of the DGCL. Stockholders must properly perfect their right to seek appraisal under the DGCL in order to exercise appraisal rights in connection with the Merger. See Section 16—“Certain Legal Matters; Regulatory Approvals—Dissenters’ Rights.”

Certain United States federal income tax consequences of the tender of Shares in the Offer and the exchange of Shares pursuant to the Merger are described in Section 5—“Certain United States Federal Income Tax Consequences.”

This Offer to Purchase, the Letter of Transmittal and the other documents to which this Offer to Purchase refers contain important information that should be read carefully before any decision is made with respect to the Offer.

THE TENDER OFFER

1. Terms of the Offer.

The Offer and withdrawal rights will expire at one minute following 11:59 p.m. (12:00 midnight), New York City time, on Tuesday, December 21, 2021, unless the Offer is extended or earlier terminated.

Upon the terms and subject to the satisfaction, or to the extent permitted, waiver of the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), Purchaser will, and Speedway will cause Purchaser to, at or promptly following the Expiration Time, irrevocably accept for payment all Shares validly tendered and not properly withdrawn prior to the Expiration Time (as permitted under Section 4—“Withdrawal Rights”). The date and time of Purchaser’s irrevocable acceptance for payment of all Shares validly tendered and not properly withdrawn pursuant to the Offer is referred to as the “Offer Acceptance Time.” Additionally, at or promptly (and in any event within three business days as defined by SEC Rule 14d-1(g)(3)) following the Offer Acceptance Time, Purchaser will pay for all such Shares.

The Offer is not subject to any financing condition. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition and the HSR Condition. For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been received prior to the Expiration Time are excluded (see Section 3—“Procedures for Accepting the Offer and Tendering Shares” for more information about these guaranteed delivery procedures). The Offer is

 

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also subject to other conditions described in Section 15—“Conditions of the Offer” (all such conditions collectively, the “Offer Conditions”). Subject to the terms and conditions of the Merger Agreement and applicable laws, rules and regulations, any of the conditions to the Offer may be waived by Purchaser and Speedway in whole or in part at any time and from time to time in their respective sole discretion, except that we are not permitted to waive the Minimum Condition without the prior written consent of Dover. See Section 15—“Conditions of the Offer.”

We expressly reserve the right, in our sole discretion, subject to the terms and conditions of the Merger Agreement and the applicable rules and regulations of the SEC, not to accept for payment any Shares if, at the Expiration Time, any of the conditions to the Offer have not been satisfied. See Section 15—“Conditions of the Offer.” Under certain circumstances, we may terminate the Merger Agreement and the Offer. See Section 11—“The Merger Agreement; Other Agreements—The Merger Agreement—Termination of the Merger Agreement.”

Pursuant to the Merger Agreement, we may extend the Offer beyond its initial Expiration Time, but in no event will we be required to extend the Offer beyond March 8, 2022. We have agreed in the Merger Agreement that Purchaser will extend the Offer on one or more occasions (i) for the minimum period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the New York Stock Exchange (“NYSE”) applicable to the Offer, and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or waived, for periods of at least five business days (or such other duration as may be agreed to by Speedway and Dover) per extension in order to permit the satisfaction of such Offer Condition(s), except that if the Minimum Condition is the only Offer Condition that has not been satisfied or waived, Purchaser will not be required to, but may in its sole discretion, extend the Offer for more than one such five business day extension.

Pursuant to the Merger Agreement, we expressly reserve the right to increase the Offer Price, waive any Offer Condition or modify the terms of the Offer in a manner consistent with the terms of the Merger Agreement, except that, without the prior written consent of Dover, we are not permitted to (i) reduce the maximum number of Shares we are seeking to purchase in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (v) modify or amend any existing Offer Conditions in a manner adverse to the holders of the Shares, (vi) extend or otherwise change the Expiration Time (except as otherwise required or expressly permitted by the terms of the Merger Agreement), (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of the Shares or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Offer, or (ix) terminate the Offer prior to its scheduled Expiration Time (unless the Merger Agreement is terminated in accordance with its terms).

If, subject to the terms of the Merger Agreement, we make a material change in the terms of the Offer or the information concerning the Offer or if we waive a material condition of the Offer, we will disseminate additional tender offer materials and extend the Offer if and to the extent required by Rules 14d-4(d)(1), 14d-6(c) and 14e-1 under the Exchange Act. The minimum period during which an offer must remain open following material changes in the terms of the offer or information concerning the offer, other than a change in price or a change in percentage of securities sought, will depend upon the facts and circumstances, including the relative materiality of the terms or information changes. In the SEC’s view, an offer to purchase should remain open for a minimum of five business days from the date the material change is first published, sent or given to stockholders, and with respect to a change in price or a change in percentage of securities sought, a minimum ten business day period generally is required to allow for adequate dissemination to stockholders and investor response. Accordingly, if, prior to the Expiration Time, Purchaser decreases the number of Shares being sought or changes the Offer Price, and if the Offer is scheduled to expire at any time earlier than the tenth business day from the date that notice of such decrease or change is first published, sent or given to stockholders, the Offer will be extended at least until the expiration of such tenth business day.

 

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If, on or before the Expiration Time, we increase the consideration being paid for Shares accepted for payment in the Offer, such increased consideration will be paid to all Dover’s stockholders whose Shares are purchased in the Offer, whether or not such Shares were tendered before the announcement of the increase in consideration.

If we extend the Offer, are delayed in our acceptance for payment of Shares or are unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer, the Depositary may retain tendered Shares on our behalf, and such Shares may not be withdrawn except to the extent tendering stockholders are entitled to withdrawal rights as described under Section 4—“Withdrawal Rights.” However, our ability to delay the payment for Shares that we have accepted for payment is limited by Rule 14e-1(c) under the Exchange Act, which requires us to promptly pay the consideration offered or return the securities deposited by or on behalf of stockholders promptly after the termination or withdrawal of the Offer.

Any extension, delay, termination, waiver or amendment of the Offer will be followed as promptly as practicable by public announcement thereof, such announcement in the case of an extension to be made no later than 9:00 a.m., New York City time, on the next business day after the previously scheduled Expiration Time. Subject to applicable law (including Rules 14d-4(d), 14d-6(c) and 14e-1 under the Exchange Act, which require that material changes be promptly disseminated to stockholders in a manner reasonably designed to inform them of such changes) and without limiting the manner in which Purchaser may choose to make any public announcement, Purchaser will have no obligation to publish, advertise or otherwise communicate any such public announcement other than by issuing a press release to a national news service. As used in this Offer to Purchase, “business day” means any day other than a Saturday, a Sunday or a federal holiday, and consists of the time period from 12:01 a.m. through 12:00 midnight, New York City time (except that, when used in reference to the Merger Agreement, “business day” means any day other than a Saturday, a Sunday or a day on which the SEC or commercial banks in New York, New York are authorized or required by applicable law to close).

Under no circumstances will interest be paid on the Offer Price for the Shares, regardless of any extension of the Offer or any delay in making payment for the Shares.

As soon as practicable following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will complete the Merger without a vote of the stockholders of Dover to adopt the Merger Agreement and consummate the Merger in accordance with Section 251(h) of the DGCL.

Dover has provided Purchaser with Dover’s stockholder list and security position listing for the purpose of disseminating this Offer to Purchase, the Letter of Transmittal and the other Offer-related materials to holders of Shares. This Offer to Purchase and the Letter of Transmittal will be mailed to record holders of Shares whose names appear on Dover’s stockholder list and will be furnished, for subsequent transmittal to beneficial owners of Shares, to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

2. Acceptance for Payment and Payment for Shares.

Upon the terms and conditions of the Offer, at or as promptly as practicable following the Expiration Time, we will irrevocably accept for payment all Shares validly tendered and not properly withdrawn prior to the Expiration Time, and at or as promptly as practicable (and in any event within three business days) following such acceptance, we will pay for all such Shares.

Subject to compliance with Rule 14e-1(c) under the Exchange Act, we expressly reserve the right to delay payment for Shares in order to comply with any applicable law or order. See Section 16—“Certain Legal Matters; Regulatory Approvals.”

No alternative, conditional or contingent tenders will be accepted. In all cases, we will pay for Shares tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the certificates

 

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evidencing such Shares (the “Certificates”) or confirmation of a book-entry transfer of such Shares (a “Book-Entry Confirmation”) into the Depositary’s account at The Depositary Trust Company (“DTC”) pursuant to the procedures set forth in Section 3—“Procedures for Accepting the Offer and Tendering Shares,” (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as defined below) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Certificates or Book-Entry Confirmations with respect to their Shares are actually received by the Depositary. The term “Agent’s Message” means a message, transmitted by DTC to, and received by, the Depositary and forming a part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares which are the subject of such Book-Entry Confirmation, that such participant has received and agrees to be bound by the terms of the Letter of Transmittal and that Purchaser may enforce such agreement against such participant. The term “Agent’s Message” also includes any hard copy printout evidencing such message generated by a computer terminal maintained at the Depositary’s office.

For purposes of the Offer, we will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when we give oral or written notice to the Depositary of our acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with American Stock Transfer & Trust Co., LLC in its capacity as the paying agent (the “Paying Agent”), who will receive payments from us and transmit such payments to tendering stockholders whose Shares have been accepted for payment. If we extend the Offer, are delayed in our acceptance for payment of Shares or are unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to our rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on our behalf, and such Shares may not be withdrawn except to the extent tendering stockholders are entitled to withdrawal rights as described under Section 4—“Withdrawal Rights” and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no circumstances will we pay interest on the Offer Price for the Shares by reason of any extension of the Offer or any delay in making such payment for the Shares.

If any tendered Shares are not accepted for payment for any reason pursuant to the terms and subject to the conditions of the Offer, or if Certificates are submitted evidencing more Shares than are tendered, Certificates evidencing unpurchased Shares will be returned, without expense to the tendering stockholder (or, in the case of Shares tendered by book-entry transfer into the Depositary’s account at DTC pursuant to the procedure set forth in Section 3—“Procedures for Accepting the Offer and Tendering Shares,” such Shares will be credited to an account maintained at DTC), promptly following the expiration or termination of the Offer.

If, prior to the Expiration Time, Purchaser increases the consideration offered to holders of Shares pursuant to the Offer, such increased consideration will be paid to holders of all Shares that are purchased pursuant to the Offer, whether or not such Shares were tendered prior to such increase in consideration.

3. Procedures for Accepting the Offer and Tendering Shares.

Valid Tenders

In order for a stockholder to validly tender Shares pursuant to the Offer, the following items must be received by the Depositary at the address set forth on the back cover of this Offer to Purchase prior to the Expiration Time: (i) the Letter of Transmittal, duly completed and validly executed in accordance with the instructions set forth therein, together with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal) and any other documents required by the Letter of Transmittal, and (ii) either (A) the Certificates evidencing tendered Shares or (B) if such Shares are tendered pursuant to the procedure for book-entry transfer described below, a Book-Entry Confirmation.

 

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Book-Entry Transfer

The Depositary has established an account with respect to the Shares at DTC for purposes of the Offer. Any financial institution that is a participant in the system of DTC may make a book-entry delivery of Shares by causing DTC to transfer such Shares into the Depositary’s account at DTC in accordance with DTC’s procedures for such transfer. However, although delivery of Shares may be effected through book-entry transfer at DTC, either the Letter of Transmittal, properly completed and duly executed, together with any required signature guarantees, or an Agent’s Message in lieu of the Letter of Transmittal, and any other required documents, must, in any case, be received by the Depositary at the address set forth on the back cover of this Offer to Purchase prior to the Expiration Time. Delivery of documents to DTC does not constitute delivery to the Depositary.

Guaranteed Delivery

If you wish to tender your Shares pursuant to the Offer but cannot deliver such Shares and all other required documents to the Depositary by the Expiration Time or cannot complete the procedure for delivery by book-entry transfer on a timely basis, you may nevertheless tender such Shares if all of the following conditions are met:

 

   

such tender is made by or through an Eligible Institution (as defined below);

 

   

a properly completed and duly executed Notice of Guaranteed Delivery in the form provided by us with this Offer to Purchase is received by the Depositary (as provided below) prior to the Expiration Time; and

 

   

the Certificates for all such validly tendered Shares (or a confirmation of a book-entry transfer of such Shares into the Depositary’s account at the book-entry transfer facility), together with a properly completed and duly executed Letter of Transmittal, with any required signature guarantee (or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal), and any other required documents, are received by the Depositary within two Nasdaq trading days after the date of execution of the Notice of Guaranteed Delivery.

The Notice of Guaranteed Delivery may be transmitted by overnight courier or mail to the Depositary and must include a guarantee by an Eligible Institution in the form set forth in such Notice. Shares tendered by a Notice of Guaranteed Delivery will not be deemed validly tendered for purposes of satisfying the Minimum Condition unless Shares underlying such Notice of Guaranteed Delivery are delivered to the Depositary prior to the Expiration Time.

Guarantee of Signatures

No signature guarantee is required on the Letter of Transmittal if:

 

   

the Letter of Transmittal is signed by the registered holder(s) (which term, for purposes of this Section 3, includes any participant in DTC’s systems whose name appears on a security position listing as the owner of the Shares) of the Shares tendered therewith, unless such registered holder has completed either the box entitled “Special Payment Instructions” or the box entitled “Special Delivery Instructions” on the Letter of Transmittal; or

 

   

the Shares are tendered for the account of a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of the Securities Transfer Agents Medallion Program or any other “eligible guarantor institution,” as such term is defined in Rule 17Ad-15 of the Exchange Act (each an “Eligible Institution” and, collectively, “Eligible Institutions”).

In all other cases, all signatures on a Letter of Transmittal must be guaranteed by an Eligible Institution. See Instruction 1 of the Letter of Transmittal. If a Certificate is registered in the name of a person or persons other than the signer of the Letter of Transmittal, or if payment is to be made or delivered to, or a

 

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Certificate not accepted for payment or not tendered is to be issued in, the name of a person other than the registered holder, then the Certificate must be endorsed or accompanied by duly executed stock powers, in either case signed exactly as the name of the registered holder appears on the Certificate, with the signature on such Certificate or stock powers guaranteed by an Eligible Institution as provided in the Letter of Transmittal. See Instructions 1 and 5 of the Letter of Transmittal.

Notwithstanding any other provision of the Offer, payment for Shares accepted pursuant to the Offer will in all cases only be made after timely receipt by the Depositary of (i) Certificates evidencing such Shares or a Book-Entry Confirmation of a book-entry transfer of such Shares into the Depositary’s account at DTC pursuant to the procedures set forth in this Section 3, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Certificates or Book-Entry Confirmations with respect to their Shares are actually received by the Depositary.

The method of delivery of Certificates, the Letter of Transmittal and all other required documents, including delivery through DTC, is at the election and risk of the tendering stockholder, and the delivery of all such documents will be deemed made (and the risk of loss and the title of Certificates will pass) only when actually received by the Depositary (including, in the case of a book-entry transfer, receipt of a Book-Entry Confirmation). If delivery is by mail, registered mail with return receipt requested, properly insured, is recommended. In all cases, sufficient time should be allowed to ensure timely delivery prior to the Expiration Time.

Irregularities

The tender of Shares pursuant to any one of the procedures described above will constitute the tendering stockholder’s acceptance of the Offer, as well as the tendering stockholder’s representation and warranty that such stockholder has the full power and authority to tender and assign the Shares tendered, as specified in the Letter of Transmittal. Our acceptance for payment of Shares tendered pursuant to the Offer will constitute a binding agreement between the tendering stockholder and us upon the terms, and subject to the conditions, of the Offer (and if the Offer is extended or amended, the terms of, or the conditions to, any such extension or amendment).

Determination of Validity

All questions as to the validity, form, eligibility (including time of receipt) and acceptance for payment of any tender of Shares will be determined by us, in our sole discretion. We reserve the absolute right to reject any and all tenders determined by us not to be in proper form or the acceptance for payment of which may, in the opinion of our counsel, be unlawful. We also reserve the absolute right to waive any defect or irregularity in the tender of any Shares of any particular stockholder, whether or not similar defects or irregularities are waived in the case of other stockholders. No tender of Shares will be deemed to have been validly made until all defects and irregularities have been waived or cured within such time as Purchaser will determine. None of Purchaser, Speedway, the Depositary, the Information Agent or any other person will be under any duty to give notice of any defects or irregularities in tenders or incur any liability for failure to give any such notice. Interpretation of the terms and conditions of the Offer (including the Letter of Transmittal and the instructions thereto) will be determined by us in our sole discretion.

Appointment

By executing the Letter of Transmittal as set forth above, the tendering stockholder will irrevocably appoint designees of Purchaser as such stockholder’s attorneys-in-fact and proxies in the manner set forth in the Letter of Transmittal, each with full power of substitution, to the full extent of such stockholder’s rights with respect to the

 

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Shares tendered by such stockholder and accepted for payment by Purchaser and with respect to any and all other Shares or other securities or rights issued or issuable in respect of such Shares. All such powers of attorney and proxies will be considered irrevocable and coupled with an interest in the tendered Shares. Such appointment will be effective when, and only to the extent that, we accept for payment Shares tendered by such stockholder as provided in this Offer to Purchase. Upon such appointment, all prior powers of attorney, proxies and consents given by such stockholder with respect to such Shares or other securities or rights will, without further action, be revoked and no subsequent powers of attorney, proxies, consents or revocations may be given by such stockholder (and, if given, will not be deemed effective). The designees of Purchaser will thereby be empowered to exercise all voting and other rights with respect to such Shares and other securities or rights, including, without limitation, in respect of any annual, special or adjourned meeting of the stockholders of Dover, actions by written consent in lieu of any such meeting or otherwise, as they in their sole discretion deem proper. We reserve the right to require that, in order for Shares to be deemed validly tendered, immediately upon our acceptance for payment of such Shares, Purchaser or its designees must be able to exercise full voting, consent and other rights with respect to such Shares and other related securities or rights, including voting at any meeting of the stockholders of Dover.

Information Reporting and Backup Withholding

Payments made to stockholders of Dover in the Offer or the Merger generally will be subject to information reporting and may be subject to backup withholding. To avoid backup withholding, U.S. stockholders that do not otherwise establish an exemption should complete, sign and return to the Depositary, the U.S. Internal Revenue Service (the “IRS”) Form W-9 included in the Letter of Transmittal, certifying that (i) such stockholder is a United States person, (ii) the taxpayer identification number provided by such stockholder is correct, and (iii) such stockholder is not subject to backup withholding. Foreign stockholders should submit a properly completed and signed IRS Form W-8BEN or IRS Form W-8BEN-E, as applicable, or other appropriate IRS Form W-8, a copy of which may be obtained from the Depositary or the IRS website at www.irs.gov, in order to avoid backup withholding. Such stockholders are urged to consult their own tax advisors to determine which IRS Form W-8 is appropriate.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against a stockholder’s United States federal income tax liability, as long as the required information is timely furnished in the appropriate manner to the IRS.

4. Withdrawal Rights.

Shares tendered pursuant to the Offer may be withdrawn at any time prior to one minute following 11:59 p.m. (12:00 midnight), New York City time, on Tuesday, December 21, 2021, unless the Offer is extended, in which case you can withdraw your Shares at any time prior to the then-extended Expiration Time.

For a withdrawal to be effective, a written (or, with respect to Eligible Institutions, a facsimile transmission) notice of withdrawal must be timely received by the Depositary at the address set forth on the back cover of this Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of such Shares, if different from that of the person who tendered such Shares. If Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Certificates, the serial numbers shown on such Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in Section 3—“Procedures for Accepting the Offer and Tendering Shares,” any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.

Withdrawals of Shares may not be rescinded. Any Shares properly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again

 

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following one of the procedures described in Section 3—“Procedures for Accepting the Offer and Tendering Shares” at any time prior to the Expiration Time.

We will determine, in our sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal and our determination will be final and binding. None of Purchaser, Speedway, the Depositary, the Information Agent or any other person will be under any duty to give notice of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notice.

5. Certain United States Federal Income Tax Consequences.

The following is a summary of certain material United States federal income tax consequences to stockholders upon the tender of Shares for cash pursuant to the Offer or the exchange of Shares for cash pursuant to the Merger. This summary is general in nature and does not discuss all aspects of United States federal income taxation that may be relevant to a stockholder in light of its particular circumstances. In addition, this summary does not address the effects of the Medicare contribution tax on net investment income, or FATCA (by which we mean Section 1471 through 1474 of the Code, the Treasury Regulations and administrative guidance thereunder) and does not describe any tax consequences arising under the laws of any state, local or non-U.S. jurisdiction or consider any aspects of United States federal tax law other than income taxation. This summary deals only with Shares held as capital assets within the meaning of Section 1221 of the United States Internal Revenue Code of 1986, as amended (the “Code”) (generally, property held for investment), and does not address tax considerations applicable to any stockholder that may be subject to special treatment under the United States federal income tax laws, including:

 

   

a bank or other financial institution;

 

   

a tax-exempt organization;

 

   

a retirement plan or other tax-deferred account;

 

   

an entity or an arrangement treated for U.S. federal tax purposes as a partnership, an S corporation or other pass-through entity (or an investor in a partnership, S corporation or other pass-through entity);

 

   

an insurance company;

 

   

a mutual fund;

 

   

a real estate investment trust;

 

   

a dealer or broker in stocks and securities, or currencies;

 

   

a trader in securities that elects mark-to-market treatment;

 

   

a stockholder subject to the alternative minimum tax provisions of the Code;

 

   

a stockholder that received the Shares as restricted stock through the exercise of an employee stock option, through a tax qualified retirement plan or otherwise as compensation;

 

   

a stockholder that has a functional currency other than the United States dollar;

 

   

a stockholder that holds the Shares as part of a hedge, straddle, constructive sale, conversion or other integrated transaction;

 

   

a United States expatriate;

 

   

any stockholder that beneficially owns, actually or constructively, or at some time during the five-year period ending on the date of the exchange has beneficially owned, actually or constructively, more than 5% of the total fair market value of the Shares;

 

   

certain former citizens or residents of the United States;

 

   

controlled foreign corporations;

 

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passive foreign investment companies; or

 

   

corporations that accumulate earnings to avoid United States federal income tax.

If a partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes) holds Shares, the tax treatment of a partner (including any owner of an interest in an entity or arrangement treated as a partnership for United States federal income tax purposes) in the partnership generally will depend upon the status of the partner and the activities of the partner and the partnership. Such stockholders are urged to consult their own tax advisors regarding the tax consequences of tendering Shares for cash in the Offer or exchanging Shares for cash pursuant to the Merger.

This summary is based on the Code, the U.S. Department of Treasury regulations promulgated under the Code (the “Treasury Regulations”), and rulings and judicial decisions, all as in effect as of the date of this Offer to Purchase, and all of which are subject to change or differing interpretations at any time, with possible retroactive effect. We have not sought, and do not intend to seek, any ruling from the IRS with respect to the statements made and the conclusions reached in the following summary, and no assurance can be given that the IRS will agree with the views expressed herein, or that a court will not sustain any challenge by the IRS in the event of litigation.

The discussion set out in this Offer to Purchase is intended only as a summary of certain material United States federal income tax consequences to stockholders. We urge you to consult your tax advisor regarding the particular tax consequences to you in connection with the Offer or the Merger in light of your particular circumstances, including federal estate, gift and other non-income tax consequences, and tax consequences under state, local or non-U.S. tax laws.

United States Holders

For purposes of this discussion, the term “United States Holder” means a beneficial owner of Shares that is, for United States federal income tax purposes:

 

   

a citizen or resident of the United States;

 

   

a corporation (or any other entity or arrangement treated as a corporation for United States federal income tax purposes) organized in or under the laws of the United States or any state thereof or the District of Columbia;

 

   

an estate, the income of which is subject to United States federal income taxation regardless of its source; or

 

   

a trust if (i) a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust or (ii) the trust has validly elected to be treated as a “United States person” under applicable Treasury Regulations.

Payments with Respect to Shares

The tender of Shares in the Offer for cash or the exchange of Shares pursuant to the Merger for cash will be a taxable transaction for United States federal income tax purposes, and a United States Holder who receives cash for Shares pursuant to the Offer or pursuant to the Merger will recognize gain or loss, if any, equal to the difference between the amount of cash received (plus any taxes withheld by Purchaser) and the United States Holder’s adjusted tax basis in the Shares tendered or exchanged therefor. Gain or loss will be determined separately for each block of Shares (i.e., Shares acquired at the same cost in a single transaction). Such gain or loss will be capital gain or loss, and will generally be long-term capital gain or loss if such United States Holder’s holding period for the Shares is more than one year at the time of the exchange. Long-term capital gain recognized by a noncorporate taxpayer generally is subject to tax at a lower rate than short-term capital gain or ordinary income. There are significant limitations on the deductibility of capital losses.

 

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Information Reporting and Backup Withholding

Proceeds from the tender of Shares in the Offer or the exchange of Shares pursuant to the Merger generally are subject to information reporting and may be subject to backup withholding at the applicable rate (currently, 24%) unless the applicable United States Holder or other payee provides a valid taxpayer identification number and complies with certain certification procedures (generally, by providing a properly completed IRS Form W-9) or otherwise establishes an exemption from backup withholding. Backup withholding is not an additional federal income tax. Any amounts withheld under the backup withholding rules from a payment to a United States Holder may be allowed as a refund or a credit against that United States Holder’s United States federal income tax liability, provided that the required information is timely furnished to the IRS. Each United States Holder should complete and sign the IRS Form W-9, which will be included with the Letter of Transmittal to be returned to the Depositary, to provide the information and certification necessary to avoid backup withholding, unless an exemption applies and is established in a manner satisfactory to the Depositary.

Non-United States Holders

The following is a summary of the material United States federal income tax consequences that will apply to non-United States Holders of Shares. The term “non-United States Holder” means a beneficial owner of Shares that is not a United States Holder or a United States partnership (including any entity or arrangement treated as a partnership for United States federal income tax purposes).

Payments with Respect to Shares

Payments made to a non-United States Holder with respect to Shares tendered for cash in the Offer or exchanged for cash pursuant to the Merger generally will not be subject to United States federal income tax, unless (i) the non-United States Holder is an individual who was present in the United States for 183 days or more in the taxable year of the tender or exchange and certain other conditions are met, such non-United States Holder will be subject to tax at a flat rate of 30% (or such lower rate as may be specified under an applicable income tax treaty) on any gain from the tender or exchange of the Shares, net of applicable United States-source losses from sales or exchanges of other capital assets recognized by the non-United States Holder during the year, or (ii) Dover is or has been a “United States real property holding corporation” for United States federal income tax purposes and certain other conditions are met, or (iii) the gain, if any, on Shares is effectively connected with the conduct by the non-United States Holder of a trade or business in the United States (and, if certain income tax treaties apply, is attributable to a permanent establishment of the Non-United States Holder in the United States), in which event (x) the non-United States Holder will be subject to United States federal income tax as described under “United States Holders,” but such non-United States Holder should provide an IRS Form W-8ECI instead of an IRS Form W-9 and (y) if the non-United States Holder is a corporation, it may also be subject to the branch profits tax at a rate of 30% (or such lower rate as may be specific under an applicable income tax treaty).

Information Reporting and Backup Withholding

Proceeds from the disposition of Shares pursuant to the Offer or pursuant to the Merger generally are subject to information reporting.

A non-United States Holder may be subject to backup withholding with respect to the proceeds from the disposition of Shares pursuant to the Offer or pursuant to the Merger, unless, generally, the non-United States Holder certifies under penalties of perjury on an appropriate IRS Form W-8 that such non-United States Holder is not a United States person, or the non-United States Holder otherwise establishes an exemption in a manner satisfactory to the Depositary.

Backup withholding is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or a credit against the non-United States Holder’s United States federal income tax liability, provided that the required information is timely furnished to the IRS.

 

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THE FOREGOING SUMMARY DOES NOT DISCUSS ALL ASPECTS OF UNITED STATES FEDERAL INCOME TAXATION THAT MAY BE RELEVANT TO PARTICULAR STOCKHOLDERS. YOU ARE URGED TO CONSULT YOUR TAX ADVISOR REGARDING THE PARTICULAR TAX CONSEQUENCES TO YOU OF TENDERING SHARES FOR CASH IN THE OFFER OR EXCHANGING SHARES FOR CASH PURSUANT TO THE MERGER IN LIGHT OF YOUR PARTICULAR CIRCUMSTANCES, INCLUDING THE APPLICATION AND EFFECT OF ANY FEDERAL, STATE, LOCAL, NON-UNITED STATES. OR OTHER LAWS.

6. Price Range of Shares; Dividends.

The Shares are listed on NYSE under the symbol “DVD”. Dover has advised us that, as of the close of business on November 5, 2021, 36,423,591 Shares were outstanding, including 17,913,616 shares of Common Stock (including 509,200 shares issued under the Company Equity Plan) and 18,509,975 shares of Class A Stock. The shares of Common Stock have been listed on NYSE since 1996.

The following table sets forth the high and low sales prices per Share as reported on NYSE for the periods indicated:

 

     High      Low      Cash
Dividends
Declared
 

2021 Fiscal Year:

        

First Quarter (January 1, 2021—March 31, 2021)

   $ 2.66      $ 2.01        —    

Second Quarter (April 1, 2021—June 30, 2021)

   $ 2.40      $ 2.00      $ .04  

Third Quarter (July 1, 2021—September 30, 2021)

   $ 2.80      $ 2.23        —    

Fourth Quarter, to date (October 1, 2021 – November 22, 2021)

   $ 3.61      $ 2.18      $ .04  

2020 Fiscal Year:

        

First Quarter (January 1, 2020—March 31, 2020)

   $ 1.90      $ 1.17        —    

Second Quarter (April 1, 2020—June 30, 2020)

   $ 1.67      $ 1.06        —    

Third Quarter (July 1, 2020—September 30, 2020)

   $ 1.59      $ 1.32        —    

Fourth Quarter (October 1, 2020—December 31, 2020)

   $ 2.58      $ 1.34      $ .07  

2019 Fiscal Year:

        

First Quarter (January 1, 2019—March 31, 2019)

   $ 2.08      $ 1.91        —    

Second Quarter (April 1, 2019—June 30, 2019)

   $ 2.20      $ 1.95        —    

Third Quarter (July 1, 2019—September 30, 2019)

   $ 2.09      $ 1.90        —    

Fourth Quarter (October 1, 2019—December 31, 2019)

   $ 2.00      $ 1.79      $ .10  

On November 8, 2021, the last full trading day before the public announcement of the execution of the Merger Agreement, the reported closing sales price of the Shares on NYSE was $2.28. The Offer Price represents a premium of approximately 58.3% to the reported closing sales price of the Shares on NYSE on November 8, 2021. Stockholders are urged to obtain current market quotations for Shares before making a decision with respect to the Offer.

The Merger Agreement provides that, from and after the date of the Merger Agreement and until the earlier of the Effective Time and the termination of the Merger Agreement, except with the prior written consent of Speedway, as expressly contemplated or permitted pursuant to the Merger Agreement, as set forth in the Disclosure Letter (as defined below) or as required by applicable law, Dover will not make, declare or pay any dividend or distribution on any Shares (except for Dover’s ordinary dividend of $0.04 per share on each Share declared by Dover prior to the signing of the Merger Agreement).

7. Certain Information Concerning Dover.

Except as specifically set forth herein, the information concerning Dover contained in this Offer to Purchase has been taken from, or is based upon, information furnished by Dover or its representatives or publicly available

 

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documents and records on file with the SEC and other public sources. The summary information set forth below is qualified in its entirety by reference to Dover’s public filings with the SEC (which may be obtained and inspected as described below) and should be considered in conjunction with the more comprehensive financial and other information in such reports and other publicly available information.

General

The following description of Dover and its business has been taken from Dover’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, and is qualified in its entirety by reference to such Annual Report on Form 10-K.

Dover is a public holding company that is a marketer and promoter of motorsports entertainment in the United States. Through our subsidiaries, we own and operate Dover International Speedway® in Dover, Delaware and Nashville Superspeedway® near Nashville, Tennessee.

Dover’s principal executive offices are located at 1131 North DuPont Highway, Dover, Delaware 19901, and its telephone number is (302) 883-6500. Dover’s internet address is www.doverspeedway.com. The information on Dover’s website is not a part of this Offer to Purchase and is not incorporated by reference into this Offer to Purchase.

Available Information

The Shares are registered under the Exchange Act. Accordingly, Dover is subject to the information reporting requirements of the Exchange Act and is required to file periodic reports, proxy statements and other information with the SEC relating to its business, financial condition and other matters. Information as of particular dates concerning Dover’s directors and officers, their remuneration, stock options and other equity awards granted to them, the principal holders of Dover’s securities, any material interests of such persons in transactions Dover and other matters is required to be disclosed in proxy statements and periodic and current reports filed with the SEC. Such reports, proxy statements and other information are available on www.sec.gov.

8. Certain Information Concerning Purchaser, Speedway and SFC.

Purchaser

Purchaser, a Delaware corporation, is a wholly owned subsidiary of Speedway and was formed solely for the purpose of facilitating the acquisition of Dover by Speedway. To date, Purchaser has not carried on any activities other than those related to its formation, the Offer and the Merger. Upon consummation of the proposed Merger, Purchaser will merge with and into Dover and will cease to exist, with Dover continuing as the Surviving Corporation. Purchaser’s principal executive office and principal place of business is located at 5401 East Independence Boulevard, Charlotte, North Carolina 28212, and the telephone number is (704) 455-3239.

Speedway

Speedway, a Delaware limited liability company, is a leading marketer, promoter and sponsor of motorsports entertainment in the United States. Speedway, through its subsidiaries, among other activities, owns and operates the following premier facilities: Atlanta Motor Speedway, Bristol Motor Speedway, Charlotte Motor Speedway, Las Vegas Motor Speedway, New Hampshire Motor Speedway, Sonoma Raceway, and Texas Motor Speedway.

Speedway’s principal executive office and principal place of business is located at 5401 East Independence Boulevard, Charlotte, North Carolina 28212, and the telephone number is (704) 455-3239.

SFC

SFC, a North Carolina corporation, is a privately-held entity jointly controlled by members of the Smith family, including O. Bruton Smith, Speedway’s founder, executive chairman and a director, Marcus G. Smith, Speedway’s chief executive officer, president and a director, B. Scott Smith, Speedway’s executive director and a director, and David Bruton Smith, a director of Speedway, and related entities and trusts. SFC is the ultimate and

 

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indirect parent of Speedway and Purchaser. SFC also is the controlling shareholder of Sonic Automotive, Inc., a publicly traded automotive retailer that was founded by O. Bruton Smith and his family, and interests in real estate. SFC was formerly known as CSF Corp. and changed its name to Sonic Financial Corporation in December 1987. SFC was incorporated in 1987 and is based in Charlotte, North Carolina.

Its principal executive office and principal place of business is located at 5401 East Independence Boulevard, Charlotte, North Carolina 28212 and its telephone number is (704) 455-3239.

Additional Information

The name, citizenship, business address, and present principal occupation or employment of each of the directors and executive officers of Purchaser, Speedway and SFC are set forth in Schedule I to this Offer to Purchase.

During the last five years, none of Purchaser, Speedway or SFC or, to the best knowledge of Purchaser, Speedway and SFC, any of the persons listed in Schedule I to this Offer to Purchase, (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to any judicial or administrative proceeding (except for matters that were dismissed without sanction or settlement) that resulted in a judgment, decree or final order enjoining such person from future violations of, or prohibiting activities subject to, federal or state securities laws, or a finding of any violation of such laws.

Except as provided in the Merger Agreement or as otherwise described in this Offer to Purchase, none of Purchaser, Speedway or SFC nor, to the best knowledge of Purchaser, Speedway and SFC, any of the persons listed in Schedule I to this Offer to Purchase (i) beneficially owns or has any right to acquire, directly or indirectly, any Shares, or (ii) has effected any transaction in respect of any Shares during the past 60 days. Except as provided in the Merger Agreement or as otherwise described in this Offer to Purchase, none of Purchaser, Speedway or SFC nor, to the best knowledge of Purchaser and Speedway, any of the persons listed in Schedule I to this Offer to Purchase, has any contract, arrangement, understanding or relationship with any other person with respect to any securities of Dover (including, but not limited to, any contract, arrangement, understanding or relationship concerning the transfer or the voting of any such securities, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss or the giving or withholding of proxies, consents or authorizations).

Except as set forth in this Offer to Purchase, none of Purchaser, Speedway or SFC or, to the best knowledge of Purchaser and Speedway, any of the persons listed in Schedule I to this Offer to Purchase, has had any business relationship or transaction with Dover or any of its executive officers, directors or affiliates that is required to be reported under the rules and regulations of the SEC applicable to the Offer.

Except as set forth in this Offer to Purchase, there have been no contacts, negotiations or transactions between Purchaser, Speedway or SFC or to the best knowledge of Purchaser and Speedway, any of the persons listed in Schedule I to this Offer to Purchase, on the one hand, and Dover or its subsidiaries, on the other hand, concerning a merger, consolidation, acquisition, tender offer or other acquisition of securities, election of directors or sale or other transfer of a material amount of assets during the past two years.

Available Information

Pursuant to Rule 14d-3 under the Exchange Act, we have filed with the SEC a Tender Offer Statement on Schedule TO (as amended, the “Schedule TO”), of which this Offer to Purchase forms a part, and exhibits to the Schedule TO. The Schedule TO and its exhibits, as well as other information filed by Purchaser and Speedway with the SEC, are available on the SEC’s website at www.sec.gov. Additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may also be obtained for free upon request from the Information Agent, whose contact information is set forth on the on the back cover of this Offer to Purchase.

9. Source and Amount of Funds.

We estimate that the maximum amount of funds needed to (i) complete the Offer, the Merger and the transactions contemplated by the Merger Agreement, including the funds needed to purchase all Shares tendered

 

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in the Offer and to pay the Merger Consideration to the Dover stockholders whose Shares are converted into the right to receive a cash amount equal to Offer Price in the Merger, and (ii) pay for fees and expenses incurred by Purchaser and Speedway related to the Offer and the Merger, will be approximately $135.5 million.

Speedway will provide Purchaser with sufficient funds to complete the Offer, the Merger and the other transactions contemplated by the Merger Agreement, which it expects will be funded with cash on hand and borrowings under the Amended and Restated Credit Agreement, dated as of September 17, 2019, by and among Speedway and Speedway Funding LLC as borrowers, certain subsidiaries of Speedway as guarantors, and Bank of America N.A., as a lender and as agent for the other lenders thereto, as may be amended from time to time (the “Speedway Credit Agreement”).

The Speedway Credit Agreement, among other things, provides for a five-year $100,000,000 senior secured revolving credit agreement that matures in September 2024. Borrowings under the Speedway Credit Agreement bear interest at either: (i) LIBOR (or the applicable successor rate), plus 1.25% to 2.25% depending on the ratio (consolidated total leverage ratio) of consolidated funded debt to consolidated earnings before interest, taxes, depreciation and amortization (EBITDA) or, at Speedway’s option, (ii) the “base rate,” which is the highest of (a) Bank of America’s prime rate, (b) the Federal Funds Rate (as defined in the Speedway Credit Agreement) plus 0.5%, and (c) the Eurodollar Rate (as defined in the Speedway Credit Agreement) plus 1%, plus 0.25% to 1.25% depending on the consolidated total leverage ratio. The Speedway Credit Agreement contains a number of affirmative and negative financial covenants, including requirements that Speedway maintain certain consolidated total leverage ratios and consolidated interest coverage ratios. In August 2020, Speedway entered into an amendment with its lenders under the Speedway Credit Agreement to modify certain affirmative and negative financial covenants and other terms for a specified period from the effective date of the amendment through March 31, 2021 due to the ongoing extraordinary circumstances being faced by Speedway caused by Covid-19. During the second quarter 2021, Speedway further amended the Speedway Credit Agreement to extend the relief period through March 31, 2022. As of November 19, 2021, Speedway entered into a third amendment to the Speedway Credit Agreement to allow for the completion of the Offer and Merger under the terms of the Speedway Credit Agreement. While Speedway has sufficient funds available to us to consummate the Offer and the Merger, Speedway is negotiating and intends to obtain a new Term Loan under the Speedway Credit Agreement to finance a portion of the funds required to consummate the Offer and Merger and all fees and expenses related thereto.

This summary of the Speedway Credit Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Speedway Credit Agreement, which is incorporated herein by reference and a copy of which has been included as an exhibit to the Schedule TO. Stockholders of Dover and other interested parties are encouraged to read the Speedway Credit Agreement in its entirety for a more complete description of the provisions summarized in this section.

Neither the consummation of the Offer nor the consummation of the Merger is conditioned upon Purchaser’s or Speedway’s receipt of financing. No alternative financing arrangement or alternative financing plans have been made. Speedway does not currently have any arrangements to finance or repay amounts borrowed under the Speedway Credit Agreement. Purchaser will provide, and Speedway will cause Purchaser to provide, to the Paying Agent, on a timely basis, the funds necessary to pay for any Shares that Purchaser becomes obligated to purchase pursuant to the Offer.

We believe the financial condition of Purchaser, Speedway and their respective affiliates is not material or relevant to a decision by a holder of Shares regarding whether to tender such Shares in the Offer because (i) the Offer is being made for all outstanding Shares solely for cash, (ii) the consummation of the Offer (or the Merger) is not subject to any financing condition, (iii) we will have sufficient funds available to us to consummate the Offer and the Merger and (iv) if Purchaser consummates the Offer, Purchaser will acquire all remaining Shares for the same cash price in the Merger (i.e., the Offer Price).

 

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10. Background of the Offer; Past Contacts or Negotiations with Dover.

The information set forth below regarding Dover was provided by Dover, and none of Purchaser, Speedway nor any of their respective Affiliates takes any responsibility for the accuracy or completeness of any information regarding meetings or discussions in which Purchaser, Speedway or their respective Affiliates or Representatives did not participate.

Background of the Offer

The following is a description of contacts between our representatives with representatives of Dover that resulted in the execution of the Merger Agreement and the agreements related to the Offer. For a review of Dover’s activities relating to these contacts, please refer to its Schedule 14D-9 being furnished or otherwise made available to its stockholders substantially contemporaneously with this Offer to Purchase. Certain information set forth below regarding Dover, Dover’s officers, the Dover Board and the special committee of the Dover Board established to review, evaluate and negotiate any proposal for a business combination transaction involving Dover, and to recommend or not to recommend the Dover Board approve any such transactions (the “Special Committee”) has been provided to Speedway and Purchaser by Dover, and no member, representative or affiliate of Speedway or Purchaser assumes any responsibility for the accuracy or completeness of any information regarding meetings or discussions in which no member, representative, or affiliate of Speedway or Purchaser participated.

Dover and Speedway have a long history of business contacts relating to their respective operations in the North American motor sports industry, and their senior management teams are well acquainted. In that connection, representatives of Dover and Speedway have often interacted at industry events and have communicated from time to time on matters of mutual interest relating to the sport.

On December 5, 2019, Denis McGlynn, chief executive officer of Dover, and Marcus G. Smith, chief executive officer of Speedway, both attended the Monster Energy NASCAR Cup Series Awards at Music City Center in Nashville, Tennessee. At that time, there was no NASCAR Cup Series race in Nashville, and both Dover and Speedway were interested in developing that market.

Dover owns Nashville Superspeedway (“NSS”), a motorsports complex approximately 35 miles from downtown Nashville in Wilson County, Tennessee. NSS was built in 2001 and hosted 36 NASCAR-sanctioned races between 2001 and 2011, on both the NASCAR Xfinity Series and the NASCAR Camping World Truck Series. However, NSS was unable to attract a NASCAR Cup Series race during that period and Dover closed the track following the 2011 season.

Separately, Speedway was interested in negotiating a deal to bring Cup Series racing to the Fairgrounds in downtown Nashville, a track that had hosted NASCAR Grand National/Winston Cup races from 1958 to 1984.

Against that background, during a conversation prior to the Nashville awards banquet in December 2019, Mr. McGlynn told Mr. Smith that if Speedway was unable to get a deal done for the Fairgrounds track, Speedway might want to consider NSS.

On February 14, 2020, Mr. McGlynn and Michael Tatoian, chief operating officer of Dover, met with Mr. Smith and Mike Burch, chief strategy officer of Speedway. Given Speedway’s interest in the Nashville market, Mr. McGlynn proposed a sale of Dover to Speedway. The parties discussed Dover’s financial position, the development value of Dover excess land at NSS, Dover’s belief that NSS could be fully operational in 2021, the impact that reopening NSS would have on a series of Wilson County municipal bonds for which Dover was contingently liable, and potential valuation ranges. This discussion continued by telephone on February 20, 2020. On March 4, 2020, Mr. Smith advised Mr. McGlynn by telephone that Speedway would not be continuing discussions at that time regarding a potential acquisition of Dover, but that Speedway was interested in working with Dover in connection with the re-opening of NSS.

 

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On July 16, 2021, Mr. McGlynn spoke with Mr. Smith by telephone. Mr. Smith said that Speedway wanted to revisit their previous conversations regarding a potential business combination with Dover, if Dover was still open to it. Mr. McGlynn told Mr. Smith that Dover was pretty far down the road with another potential bidder and if Speedway was serious about this it would need to act fast. Mr. Smith said that he would send a draft nondisclosure agreement, which was received by Dover on July 18, 2021. Mr. McGlynn and Mr. Smith spoke again by telephone on July 19, 2021.

On July 29, 2021, Mr. McGlynn, Mr. Horne, and Mr. Tatoian met at Dover International Speedway with Mr. Smith, Mr. Burch, and Michael Hodge, EVP Finance of Speedway. Mr. McGlynn expressed the view that Dover’s share price fails to reflect the true value of Dover. Accordingly, Speedway should not seek to price an offer for Dover by reference to a premium over market. Rather, the parties should apply an appropriate multiple to Dover’s projected EBITDA, then add consideration for the value of Dover’s excess land, cash on hand, and the value of synergies. Negotiations proceeded with Mr. Smith offering $105 million, or $2.88 per share, for Dover. Mr. McGlynn responded that he could not take that to the Dover Board as Dover already had a higher offer by a good margin. After further deliberations on Speedway’s part, Mr. Smith increased the offer to $3.50 per share, or approximately $127.5 million, in cash. Mr. McGlynn agreed to take that offer to the Board.

On August 3, 2021, Dover’s legal counsel discussed the process of a potential transaction with Speedway’s legal counsel.

On August 4, 2021, Mr. Smith called Mr. McGlynn to check on progress. Mr. Smith agreed that the offer documents were Speedway’s responsibility and that Dover should focus on responding to Speedway’s due diligence requests. Mr. Smith and Mr. McGlynn agreed to move forward as expeditiously as possible.

On August 25, 2021, Mr. McGlynn and Mr. Smith spoke by telephone. Mr. McGlynn updated Mr. Smith on the status of Dover’s due diligence response and advised him that Dover had engaged Raymond James & Associates, Inc. (“Raymond James”) to conduct a market check and prepare a fairness opinion in connection with the proposed sale of Dover.

On October 14, 2021, following completion of Speedway’s due diligence investigation, Speedway’s counsel transmitted to Dover’s counsel the initial draft of the Merger Agreement. From October 14, 2021, through November 8, 2021, the parties and their counsel negotiated the terms and conditions of the Merger Agreement and the Support Agreement.

On November 3, 2021, a representative of Raymond James informed Speedway that Dover had a received a proposal from another bidder, which on its face appeared to contemplate a higher valuation for Dover. Raymond James further advised Speedway’s representative that the Dover Board and Special Committee would have to consider the third-party’s proposal in light of the Dover Board’s fiduciary duty to maximize value for Dover’s stockholders.

On the morning of November 8, 2021, Speedway advised Dover that it was willing to increase the purchase price per Share in the Offer from $3.50 to $3.61 per Share, for a total merger consideration of $131.5 million, in cash.

On November 8, 2021, following a meeting of the Special Committee meeting of the Dover Board, the Merger Agreement and Support Agreement were executed and delivered by each of the parties thereto.

Past Contacts, Transactions, Negotiations and Agreements

For information on the Merger Agreement and the other agreements between Dover and Purchaser and their respective related Affiliates and parties, see Section 8—“Certain Information Concerning Purchaser, Speedway and SFC” and Section 11—“The Merger Agreement, Other Agreements—Other Agreements.”

 

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11. The Merger Agreement; Other Agreements.

The Merger Agreement

The following is a summary of certain provisions of the Merger Agreement. This summary of the Merger Agreement has been included to provide Dover stockholders with information about its terms. It is not intended to provide any other factual disclosures about Purchaser, Speedway, Dover or their respective Affiliates, and it is not intended to modify or supplement any rights or obligations of the parties under the Merger Agreement or any factual disclosures about Dover or the Merger Transactions contained in public reports filed by Dover with the SEC. This summary does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is filed as Exhibit (d)(1) to the Schedule TO, which is incorporated herein by reference in its entirety. Copies of the Merger Agreement and the Schedule TO, and any other filings we make with the SEC with respect to the Offer or the Merger, may be obtained in the manner set forth in Section 8—“Certain Information Concerning Purchaser, Speedway and SFC.” Stockholders and other interested parties should read the Merger Agreement for a more complete description of the provisions summarized below. Capitalized terms used in this section and not otherwise defined have the respective meanings set forth in the Merger Agreement.

The representations, warranties and covenants of Dover contained in the Merger Agreement have been made solely for the benefit of Speedway and Purchaser. In addition, such representations, warranties and covenants (1) have been made only for purposes of the Merger Agreement, (2) have been qualified by (a) matters specifically disclosed in certain reports filed by Dover with the SEC prior to the date of the Merger Agreement (subject to certain exceptions) and (b) confidential disclosures made to Speedway and Purchaser in the disclosure schedule delivered in connection with the Merger Agreement, (3) are subject to various materiality qualifications contained in the Merger Agreement, which may differ from what may be viewed as material by investors, (4) were made only as of the date of the Merger Agreement or such other date as is specified in the Merger Agreement and (5) have been included in the Merger Agreement for the purpose of allocating risk between the contracting parties rather than establishing matters as fact. Accordingly, the Merger Agreement is included with this filing to provide investors with information regarding the terms of the Merger Agreement, and not to provide investors with any other factual information regarding Dover or its business. In addition, any such confidential disclosures contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement. Investors should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of Dover or any of its subsidiaries or Affiliates. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in Dover’s public disclosures. However, any material change to the Merger Agreement will be reflected in an amendment to the Schedule TO. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding the Offer, the Merger, the Merger Transactions, Dover, Purchaser, Speedway, their respective Affiliates and their respective businesses that is contained or incorporated by reference in the Schedule TO and related exhibits, including this Offer to Purchase, and the Schedule 14D-9 filed by Dover with the SEC on November 23, 2021, as well as in Dover’s other public filings.

The Offer

The Merger Agreement provides that Purchaser will commence the Offer on or before November 23, 2021 and that, subject to the satisfaction or waiver of the Minimum Condition and the other conditions that are described in Section 15—“Conditions of the Offer,” Purchaser will, and Speedway will cause Purchaser to, irrevocably accept for payment (the time of acceptance for payment, the “Offer Acceptance Time”) all Shares validly tendered and not properly withdrawn pursuant to the Offer at or as promptly as practicable following the Expiration Time of the Offer, and pay for all such Shares at or promptly, and in any event within three business days (as defined by SEC Rule 14d-1(g)(3)), following such Offer Acceptance Time. The initial Expiration Time of the Offer will be one minute following 11:59 p.m. (12:00 midnight), Eastern Time, on Tuesday, December 21, 2021.

 

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Terms and Conditions of the Offer. The obligations of Purchaser to accept for payment, and pay for, any Shares tendered pursuant to the Offer are subject to the conditions set forth in Section 15—“Conditions of the Offer,” including but not limited to the Minimum Condition. The Offer Conditions are for the sole benefit of Purchaser and Speedway, and, subject to the terms and conditions of the Merger Agreement and applicable Laws, Purchaser and Speedway may waive any Offer Condition, in whole or in part at any time and from time to time in their respective sole discretion, other than the Minimum Condition, which may be waived by Purchaser and Speedway only with the prior written consent of Dover. We expressly reserve the right to increase the Offer Price, waive any Offer Condition or modify the terms of the Offer in a manner consistent with the terms of the Merger Agreement and applicable Law, except that, without the prior written consent of Dover, we are not permitted to (i) reduce the maximum number of Shares we are seeking to purchase in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (v) modify or amend any existing Offer Conditions in a manner adverse to the holders of the Shares, (vi) extend or otherwise change the Expiration Time (except as otherwise required or expressly permitted by the terms of the Merger Agreement), (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Exchange Act, (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of the Shares or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Offer, or (ix) terminate the Offer prior to its scheduled Expiration Time (unless the Merger Agreement is terminated in accordance with its terms).

Extensions of the Offer. Pursuant to the Merger Agreement, we may extend the Offer beyond its initial Expiration Time, but in no event will we be required to extend the Offer beyond March 8, 2022 (the “Outside Date”). We have agreed in the Merger Agreement that Purchaser will extend, and Speedway will cause Purchaser to extend, the Offer on one or more occasions: (i) for the minimum period required by any rule, regulation, interpretation or position of the SEC, the staff thereof or the New York Stock Exchange (the “NYSE”) applicable to the Offer, and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions have not been satisfied or waived by Purchaser and Speedway (to the extent such waiver is permitted under the Merger Agreement and applicable law), for consecutive increments of at least five Business Days each, on the last Business (or such other duration as may be agreed to by Speedway and Dover) per extension in order to permit the satisfaction of such Offer Condition(s), except that (A) in either case, Merger Sub shall not be required to extend the Offer to a date later than the Outside Date, (B) any such extension shall not be deemed to impair, limit, or otherwise restrict in any manner the rights of Speedway, Purchaser or Dover to terminate the Merger Agreement pursuant to its terms, and (C) with respect to clause (ii) above, if, the Minimum Condition is the only Offer Condition that has not been satisfied or waived, Purchaser will not be required to, but may in its sole discretion, extend the Offer for more than one such additional extension.

Recommendation

The Dover Board, based on the unanimous recommendation by the Dover Special Committee, at a meeting duly called and held, has unanimously (i) determined that the Merger Agreement and the Merger Transactions are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the Merger Transactions and declared it advisable that Dover enter into the Merger Agreement and consummate the Merger Transactions, including the Offer and the Merger, (iii) approved the execution, delivery and performance by Dover of the Merger Agreement and the consummation of the Merger Transactions, (iv) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL; (v) recommended that the stockholders of Dover tender their Shares in the Offer (such recommendation, the “Dover Board Recommendation”); and (v) to the extent necessary, adopted resolutions having the effect of causing the Merger, the Merger Agreement, the Merger Transactions, the Support Agreement and the transactions contemplated by the Support Agreement not to be subject to any state Takeover Law or similar Law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

 

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The Merger

The Merger Agreement provides that, following completion of the Offer, if applicable, and subject to the terms and conditions of the Merger Agreement and in accordance with the DGCL, at the Effective Time:

 

   

Purchaser will be merged with and into Dover;

 

   

the separate corporate existence of Purchaser will cease and Dover will continue its corporate existence under the DGCL as the surviving corporation (the “Surviving Corporation”) in the Merger; and

 

   

the Surviving Corporation will become a wholly owned subsidiary of SFC.

Certificate of Incorporation; Bylaws; Directors and Officers of the Surviving Corporation. At the Effective Time, the certificate of incorporation of Dover will be amended and restated to read identically to the certificate of incorporation of Purchaser as in effect as of the date of the Merger Agreement (except that the name of the Surviving Corporation shall be Dover Motorsports, Inc.), and, as so amended and restated, will be the certificate of incorporation of the Surviving Corporation. The bylaws of Purchaser as in effect immediately before the Effective Time will be the bylaws of the Surviving Corporation (except as to the name of the Surviving Corporation). The directors of Purchaser immediately before the Effective Time will be the directors of the Surviving Corporation from and after the Effective Time until their respective successors are duly elected and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s organizational documents and applicable law, and the officers of the Surviving Corporation on the date of the Merger Agreement (unless any such officer dies, resigns or is removed prior to the Effective Time) will become the officers of the Surviving Corporation immediately after the Effective Time until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the Surviving Corporation’s organizational documents and applicable law.

Merger Closing Conditions. The obligations of Purchaser and Speedway, on the one hand, and Dover, on the other hand, to complete the Merger are each subject to the satisfaction or (to the extent permitted by law) the waiver of the following conditions:

 

   

no Governmental Authority shall have enacted, issued, promulgated or entered any Order or Law, whether temporary, preliminary or permanent, that enjoins, restrains or otherwise prohibits consummation of the merger, and there shall not be instituted and pending and Legal Action of any kind or character by any Governmental Authority against Speedway, Dover, or their respective Affiliates challenging or seeking to make illegal, to delay materially or otherwise directly or indirectly to enjoin, restrain or otherwise prohibit the consummation of the Merger; and

 

   

Purchaser (or Speedway on Purchaser’s behalf) has irrevocably accepted for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer.

Merger Consideration. At the Effective Time, (i) each share of Common Stock issued and outstanding immediately before the Effective Time (other than Shares (A) owned by Dover as treasury stock, (B) owned by Purchaser or irrevocably accepted for purchase by Purchaser in the Offer or (C) held by Dover’s stockholders who are entitled to and properly demand and do not lose or withdraw their appraisal rights under the DGCL) will be converted automatically into and will thereafter represent only the right to receive the Common Stock Offer Price (the “Common Per Share Price”) in cash and without interest and subject to any withholding of Taxes, (ii) each share of Class A Stock issued and outstanding immediately before the Effective Time (other than Shares (A) owned by Dover as treasury stock, (B) owned by Purchaser or irrevocably accepted for purchase by Purchaser in the Offer or (C) held by Dover’s stockholders who are entitled to and properly demand and do not lose or withdraw their appraisal rights under the DGCL) will be converted automatically into and will thereafter represent only the right to receive the Class A Stock Offer Price (the “Class A Per Share Price”, and together with the Common Per Share Price, the “Merger Consideration”) in cash and without interest and subject to any withholding of Taxes. All Shares converted into the right to receive the Offer Price will be canceled automatically and cease to exist at the Effective Time. The Common Per Share Price and Class A Per Share Price are and will be the same, as required by Dover’s organizational documents. The treatment of the Company Equity Awards is discussed below in Section 11—“The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.”

Payment for Shares. At or prior to the Effective Time, Speedway will deposit, or cause to be deposited, with the Paying Agent sufficient funds for the payment of the aggregate Merger Consideration to Dover’s stockholders.

 

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Promptly after the Effective Time, Speedway will cause the Paying Agent to mail to each holder of record of Shares a letter of transmittal and instructions for surrendering Certificates or Book-Entry Shares in exchange for the Merger Consideration. The Paying Agent will promptly pay the Merger Consideration in respect of the number of Shares formerly evidenced by each Certificate or Book-Entry, less any required withholding of taxes, upon receipt of (i) a surrendered Certificate or Book-Entry representing the Shares and (ii) a duly executed letter of transmittal and any other documents reasonably required by the Paying Agent. No interest will accrue or be paid on any amount payable upon surrender of a Certificate or Book-Entry Share.

If any cash deposited with the Paying Agent is not claimed within one year after the Effective Time, such cash will be delivered to Speedway upon demand. Thereafter, any holder of Shares who has not complied with the Certificate or Book-Entry Share surrender procedures set forth in the Merger Agreement must look only to Speedway and/or the Surviving Corporation, which will remain responsible for payment and issuance of the applicable Merger Consideration.

The transmittal instructions will include instructions if any Dover stockholder has lost its Certificate or if it has been stolen or destroyed. In that case, the stockholder will be required to provide an affidavit to that fact and, if reasonably required by the Surviving Corporation, execute and deliver a customary indemnity agreement to provide indemnity against any claim that may be made with respect to such Certificate.

Treatment and Payment of Dover’s Equity Awards. As of the Effective Time, the Company Equity Awards will be treated as follows: (i) by virtue of the Merger and without any action by Speedway, Purchaser, Dover or the securityholder, each vested or unvested Company stock option, whether or not then vested or unvested, that is unexpired and unexecuted immediately prior to the Effective Time shall be canceled and converted into the right to receive from Speedway or the Surviving Corporation pursuant to Section 2.3(e) of the Merger Agreement an amount in cash, without interest, equal to the Option Consideration multiplied by the aggregate number of shares of Common Stock subject to such Company stock option immediately before the Effective Time, (2) by virtue of the Merger and without any action by Speedway, Purchaser, Dover or the securityholder each vested or unvested award of time-based restricted stock and each award of already earned performance-based restricted stock will be vested and all restrictions thereon shall lapse in full as of immediately before the Effective Time and will be canceled and converted into the right to receive an amount in cash, without interest and subject to any required withholding taxes, equal to the Offer Price, multiplied by the number of shares of Common Stock subject to such award immediately before the Effective Time, and (3) by virtue of the Merger and without any action by Speedway, Purchaser, Dover or the securityholder each unearned award of performance-based restricted stock shall be vested and all restrictions thereon shall lapse at the target level for such award as of immediately before the Effective Time and will be canceled and converted into the right to receive an amount in cash, without interest, equal in value to the Offer Price multiplied by the aggregate number of shares of Common Stock subject to the target level for such Company Performance Award immediately before the Effective Time.

As promptly as practicable following the Effective Time, no later than the second payroll date following the Effective Time, Speedway will cause the Surviving Corporation to pay through its payroll system to each former holder of Company Equity Awards, the amounts due and payable to such holder pursuant to the Merger Agreement in respect of such Company Equity Award including any accrued and unpaid dividends and other distributions, including dividend equivalents with a record date prior to the Effective Time which have been authorized by Dover and which remain unpaid at the Effective Time, less any Tax withholding required under the Code or any applicable state, local or foreign Tax Law and any other amounts that are required or have been authorized by the applicable holder to be withheld.

Representations and Warranties

The Merger Agreement contains representations and warranties of Dover, Purchaser and Speedway.

Some of the representations and warranties in the Merger Agreement made by Dover are qualified as to “materiality” or a “Company Material Adverse Effect.” For purposes of the Merger Agreement, “ Company

 

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Material Adverse Effect” (as defined in the Merger Agreement) with respect to Dover means any fact, change, event, violation, inaccuracy, circumstance or occurrence that, individually or in the aggregate, (i) has had, or would reasonably be expected to have, a material adverse effect on the business, results of operations, assets or financial condition of Dover and its subsidiaries, taken as a whole or (ii) prevents, impedes or materially delays the consummation by Dover of the Offer, the Merger or the Merger Transactions, except that a Company Material Adverse Effect as it relates to Dover does not include any such fact, change, event, violation, inaccuracy, circumstance or occurrence relating to or arising from:

 

  (i)

changes in general economic or political conditions or the financial or capital markets in the United States or in other territories in which the Company and its Subsidiaries operate;

 

  (ii)

changes generally affecting the industry in which Dover and its subsidiaries operate;

 

  (iii)

acts of war, terrorism, epidemics or pandemics (including COVID-19) or natural or man-made disasters;

 

  (iv)

the announcement, pendency or performance of the Merger Transactions, including the impact thereof on relationships, contractual or otherwise, with customers, suppliers, distributors, licensors, licensees, partners or employees of Dover or any of its subsidiaries (except that this clause (iv) shall not apply to a Company Material Adverse Effect as used in any representation or warranty contained in the Merger Agreement to the extent that such representation or warranty expressly addresses the consequences resulting from the execution and delivery of the Merger Agreement, the consummation of the Merger Transactions, or the performance of obligations hereunder);

 

  (v)

changes in GAAP or Law (or interpretation or enforcement thereof);

 

  (vi)

seasonal fluctuations in the business of Dover and its subsidiaries substantially consistent with prior such fluctuations;

 

  (vii)

changes in the market price or trading volume of the shares of Common Stock (provided that, to the extent not subject to any of the other exceptions herein, any fact, change, event, violation, inaccuracy, circumstance or occurrence underlying or that contributed to such changes may be taken into account in determining whether there has been a Company Material Adverse Effect); or

 

  (viii)

the failure of Dover and its subsidiaries to meet internal or analysts’ expectations or projections, performance measures, operating statistics or revenue or earnings predictions (provided, however, to the extent not subject to any of the other foregoing exceptions any fact, change, event, violation, inaccuracy circumstance or occurrence underlying or that contributed to such changes may be taken into account in determining whether there has been a Company Material Adverse Effect).

Likewise, Some of the representations and warranties in the Merger Agreement made by Speedway are qualified as to “materiality” or a “Parent Material Adverse Effect.” For purposes of the Merger Agreement, “Parent Material Adverse Effect” with respect to Speedway means any material adverse effect that material delays, interferes with, hinders or impairs the consummation by Speedway or Purchaser of any of the Merger Transactions on a timely basis. In the Merger Agreement, Dover has made customary representations and warranties to Purchaser and Speedway with respect to certain matters related to Dover and its subsidiaries, including:

 

   

corporate matters, such as organization, standing, qualification to do business and corporate power;

 

   

its authority and authorization of the Merger Agreement and the Offer, the Merger and the Merger Transactions;

 

   

certain recommendations of the Dover Board and the Dover Special Committee;

 

   

the enforceability of the Merger Agreement against Dover;

 

   

its subsidiaries;

 

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the absence of authorizations by Governmental Authorities required with respect to the Merger Agreement and the Offer, the Merger and Merger Transactions (other than limited exceptions);

 

   

non-contravention of certain other documents, agreements applicable laws, and the creation or imposition of any Lien on any Dover Asset;

 

   

its capitalization;

 

   

public SEC filings made by Dover;

 

   

its financial statements and internal controls;

 

   

its documents required to be filed with the SEC or required to be distributed to Dover’s stockholders in connection with the Merger Transactions, including the Schedule 14D-9 and any amendments or supplements thereto;

 

   

compliance by Dover with the applicable rules and regulations of NYSE;

 

   

the absence of undisclosed liabilities and off-balance sheet arrangements;

 

   

the absence of certain changes or events since September 30, 2021;

 

   

the absence of litigation;

 

   

material contracts to which Dover and its subsidiaries are parties;

 

   

its employee benefit plans and related matters;

 

   

labor relations and employee matters;

 

   

tax matters;

 

   

environmental matters;

 

   

intellectual property;

 

   

information technology and privacy matters;

 

   

real property;

 

   

insurance;

 

   

compliance with laws and permits;

 

   

anti-corruption matters;

 

   

affiliate transactions;

 

   

opinions of Dover’s financial advisor with respect to the fairness of the Offer Price;

 

   

finders’, investment bankers’ and brokers’ fees and expenses;

 

   

the inapplicability of certain state takeover laws to the Merger Agreement and the Offer, the Merger and the Merger Transactions; and

 

   

waiver of the Rights Agreements.

In the Merger Agreement, Purchaser and Speedway have joint and severally made customary representations and warranties to Dover with respect to certain matters related to Purchaser and Speedway, including:

 

   

corporate matters, such as organization, standing, qualification to do business and corporate power;

 

   

Purchaser’s and Speedway’s authority and authorization of the Merger Agreement and the Offer, the Merger and the Merger Transactions;

 

   

the enforceability of the Merger Agreement against Purchaser and Speedway;

 

35


   

the absence of authorizations by governmental authorities required with respect to the Merger Agreement and the Offer, the Merger and the Merger Transactions (other than limited exceptions);

 

   

non-contravention of certain other documents, agreements and applicable laws;

 

   

Purchaser’s capitalization and operations;

 

   

no ownership of Shares by Purchaser or Merger Sub;

 

   

the absence of arrangements with management and stockholders of Dover;

 

   

the absence of litigation;

 

   

finders’, investment bankers’ and brokers’ fees and expenses;

 

   

its documents required to be filed with the SEC including the Schedule TO and Offer Documents; and

 

   

the ability of Speedway to have, to cause Purchaser to have, sufficient funds to pay the aggregate Offer Prices.

None of the representations and warranties provided by Speedway, Purchaser or Dover contained in the Merger Agreement will survive the Merger.

Conduct of Dover’s Business

The Merger Agreement provides that, except with the prior written consent of Speedway, as permitted pursuant to the Merger Agreement, as set forth in Dover’s disclosure schedules or as required in order to comply with or respond to COVID-19 Measures or as required by applicable law, from and after the date of the Merger Agreement and until the earlier of the Effective Time and the termination of the Merger Agreement, (i) Dover is required, and required to cause each of its subsidiaries, to conduct its operations in all material respects in the ordinary course of business consistent with past practice, and (ii) is not permitted, and will not permit any of its subsidiaries, to take any of the following actions (subject to the thresholds, materiality standards, carve-outs and exceptions specified in the Merger Agreement):

 

   

amend any of the organizational documents of Dover or of any subsidiary of Dover;

 

   

make, declare or pay any dividend or distribution on any shares of its capital stock, other than dividends and distributions by wholly owned subsidiaries of Dover, except for Dover’s ordinary dividend of $0.04 per share on each share of Class A Stock and Common Stock declared by Dover prior to November 8, 2021;

 

   

adjust, split, combine or reclassify any of its capital stock;

 

   

redeem, purchase or otherwise acquire any shares of its capital stock or any securities convertible or exchangeable into or exercisable for any shares of its capital stock except in connection with acquisitions required pursuant to awards granted under the Company Equity Plans and outstanding on November 8, 2021;

 

   

grant any right or option to acquire any shares of its capital stock;

 

   

issue, deliver or sell any additional shares of its capital stock (including restricted shares) or any securities convertible or exchangeable into or exercisable for any shares of its capital stock other than pursuant to (i) the exercise of the Company Options, or (B) the vesting of Company Stock Awards or Company Performance Awards that are outstanding as of November 8, 2021;

 

   

increase the compensation or benefits payable or to become payable to any of its directors, officers or employees, or other individual service providers or otherwise pay or provide any compensation or benefit not provided for under a Company Benefit Plan as in effect on November 8, 2021;

 

   

grant or forgive any loans to any of Dover directors, officers, employees or other individual service providers

 

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establish, adopt, enter into, manually amend, renew or terminate any Company Benefit Plan, any arrangement that would be a Company Benefit Plan if it were in existence on November 8, 2021, or any other employee benefit plan, agreement, policy, program or commitment (including any employment, severance, separation, change-in-control, retention or other similar agreements and arrangements), in each case except as required by applicable Law;

 

   

enter into, amend or terminate any collective bargaining agreement or other similar arrangement relating to union or organized employees;

 

   

grant or amend any award under the Company Equity Plan (including the grant or amendment of restricted stock, stock options or any other equity or equity-based compensation);

 

   

take any action to accelerate (or what would reasonably be expected to accelerate) any payment or benefit, or the funding of any payment or benefit, payable or to become payable to any of its directors, employees or other service providers;

 

   

change any actuarial or other assumptions used to calculate benefits or funding obligations for any Company Benefit Plan or change the manner in which contributions to such plans are made or the basis on which such contributions are determined, except as may be required by GAAP;

 

   

take any action to fund (through a rabbi trust or otherwise), or in other way secure the payment of, compensation or benefits under any Company Benefit Plan

 

   

terminate the employment of any of its executive officers, other than for cause;

 

   

hire any employee who is an executive officer;

 

   

make any material determination under any Company Benefit Plan that is inconsistent with the ordinary course of business or past practice or applicable law;

 

   

Acquire or agree to acquire by merging or consolidating with, or by purchasing all or a substantial portion of the assets of, or by purchasing all or a substantial equity or voting interest in, or by any other manner, any business, division or Person;

 

   

sell, lease, license, abandon or dispose of any of its assets (including any real estate) other than such transactions in the ordinary course of business consistent with past practice;

 

   

pledge, encumber or grant liens on any of its assets;

 

   

make loans, capital contributions, advances to or investments in any other Person, other than Dover or its subsidiaries;

 

   

incur, assume or guarantee new indebtedness;

issue or sell any debt securities or options, warrants, calls or other rights to acquire any debt securities of Dover or any of its subsidiaries, other than (i) any indebtedness incurred under Dover’s existing credit facilities to finance working capital needs incurred in the ordinary course of business consistent with past practice, and (ii) any indebtedness among Dover and its subsidiaries or among Dover’s subsidiaries, in the ordinary course of business consistent with past practice’

 

   

enter into, amend, terminate or waive any material rights or obligations under any material contract of Dover or any of its subsidiaries (or any contract that would be considered a material contract under the Merger Agreement if entered into on November 8, 2021);

 

   

enter into any new line of business outside its existing business as of the date of the Merger Agreement;

 

   

incur any material capital expenditures;

 

   

merge or consolidate with any entity or organization or adopt a plan of liquidation, dissolution or consolidation, restructuring or recapitalization;

 

37


   

enter into any agreement, understanding or arrangement with respect to the sale, voting, registration or repurchase of shares of its capital stock;

 

   

change its accounting methods, policies or procedures other than as required by United States generally accepted accounting principles, applicable laws, rules or regulations or by any court, governmental authority or self-regulatory organization;

 

   

pay, satisfy, discharge, settle or compromise, or offer to pay, satisfy, discharge, settle or compromise, any legal actions, arbitrations, litigations, suits or other civil or criminal proceedings;

 

   

cancel or terminate or allow to lapse without a commercially reasonable substitute policy therefor, or amend in any material respect, any insurance policy, except for policy renewals in the ordinary course of business;

 

   

make, change or revoke any tax election, change any annual tax accounting period, adopt or change any method of tax accounting, amend any tax return or file a claim for a material tax refund, seek or obtain any tax ruling or enter into any closing agreement with respect to taxes, extend or waive the statute of limitations with respect to any tax or tax return, (vii) settle any material tax claim, audit or assessment, (viii) surrender any right to claim a material tax refund, offset or other reduction in tax liability, (ix) carry back any material net operating loss or other tax attributable to a prior taxable period, or (x) effect or otherwise engage in any material tax planning strategies or transactions (including the adoption of any plan or partial or complete liquidation, dissolution, restructuring, recapitalization, merger or reorganization);

 

   

amend, modify or waive any of Dover’s existing takeover defenses, or enter into, adopt or authorize the adoption of any new stockholder rights agreement, “poison pill” or similar antitakeover agreement or plan (except that Dover shall waive the application of its existing rights agreements with respect to the Merger Transactions);

 

   

take any action or fail to take any action that would reasonably be expected to materially and adversely impair or materially delay or impede the consummation of the Offer, the Merger or any other transactions contemplated by the Merger Agreement;

form any new subsidiary of Dover; or

 

   

Authorize any of, commit, resolve or agree to take any of the foregoing actions.

Conduct of Purchaser and Speedway

The Merger Agreement provides that neither Speedway nor Purchaser will take any action (or fail to take any action) that would (i) result in the Merger not being permitted to be effected pursuant to Section 251(h) of the DGCL or (ii) reasonably be expected to materially and adversely impair or materially delay or impede the consummation of the Merger Transactions.

No Solicitation

From and after the date of the Merger Agreement until the earlier of the Acceptance Time and the termination of the Merger Agreement, except as otherwise expressly permitted by the Merger Agreement, Dover and its subsidiaries will not, and Dover and its subsidiaries will not authorize or permit any of their Representatives to directly or indirectly, (i) solicit, initiate or knowingly facilitate or encourage any inquiries regarding, or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, a Takeover Proposal, (ii) enter into, continue or otherwise participate in any discussions with, or furnish any non-public information with respect to Dover or any of its subsidiaries to, any person in connection with a Takeover Proposal (other than to state that it is not permitted to have discussions) or (iii) execute or enter into any letter of intent, agreement in principle or contract with respect to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (or publicly propose to do any of the foregoing). Additionally, Dover is required to,

 

38


and is required to cause each of its subsidiaries to cause its other Representatives to (x) immediately cease and cause to be terminated any existing activities, discussions or negotiations, if any, with any Person (other than Speedway and its subsidiaries) with respect to any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal, (y) immediately terminate access by any third party to any physical or electronic data room relating to any Takeover Proposal or any inquiry, proposal or offer that constitutes or would reasonably be expected to lead to a Takeover Proposal and (z) use reasonable best efforts to cause each Person that has executed a confidentiality or similar agreement in connection with any Takeover Proposal since May 8, 2020 to promptly return or destroy all non-public information previously furnished to such person or any of its representatives in accordance with the terms of the confidentiality or similar agreement in place with such person.

For purposes of this Offer to Purchase and the Merger Agreement:

 

   

“Acceptable Confidentiality Agreement” means a confidentiality agreement between Dover and a Person making a Takeover Proposal entered into prior to the date hereof, or if entered into on or after the date hereof, on terms no less favorable (except with respect to standstill provisions) to Dover than those contained in the Confidentiality Agreement (as defined below).

“Governmental Authority” means (i) any federal, state, local, municipal, foreign or international government or governmental authority, quasi-governmental entity of any kind, regulatory or administrative agency, governmental commission, department, board, bureau, agency or instrumentality, court, tribunal, arbitrator or arbitral body (public or private) or any body exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory, or taxing authority or power of any nature, (ii) any self-regulatory organization, including the NYSE, or (iii) any political subdivision of any of the foregoing.

 

   

“Intervening Event” means any material event, development or change of circumstances (other than (i) a Takeover Proposal, (ii) changes in the price of the Common Stock, or (iii) the fact, in and of itself, that the Company exceeds any internal or published projections, estimates or expectations of Dover’s revenue, earnings or other financial performance or results of operations for any period) that was not known to, or reasonably foreseeable by, the Dover Board or any committee thereof prior to the execution and delivery of the Merger Agreement.

 

   

“Person” means any natural person, corporation, company, partnership, association, limited liability company, limited partnership, limited liability partnership, trust or other legal entity or organization, including a Governmental Authority.

 

   

“Superior Proposal” means any bona fide written Takeover Proposal that the Dover Board or any committee thereof or subcommittee thereof has determined in its good faith judgment (i) after taking into account any proposal by Speedway to amend the terms of this Agreement pursuant to Section 5.4(e) of the Merger Agreement (No Solicitation), would be more favorable to the Dover stockholders from a financial point of view than the Merger Transactions and (ii) is reasonably likely to be consummated, taking into account all legal, regulatory, financial, financing and other aspects of such proposal and of the Merger Agreement (provided that for purposes of the definition of “Superior Proposal”, the references to “15%” in the definition of Takeover Proposal shall be deemed to be references to “50%”).

 

   

“Takeover Proposal” means any proposal, offer, inquiry or indication of interest from any Person relating, directly or indirectly, to (i) a merger, consolidation, spin-off, share exchange (including a split-off) or business combination involving 15% or more of the capital stock of Dover or consolidated assets of Dover and its subsidiaries, taken as a whole, (ii) a sale, lease, exchange, mortgage, transfer or other disposition, in a single transaction or series of related transactions, of assets representing 15% or more of the consolidated assets of Dover and its subsidiaries, taken as a whole, or that generate, in the aggregate, 15% or more of the consolidated revenues of Dover and its subsidiaries, (iii) a purchase or other acquisition or sale of shares of capital stock or other securities, in a single transaction or series of

 

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related transactions, representing 15% or more of the voting power of the capital stock of Dover, including by way of a tender offer or exchange offer, (iv) a reorganization, recapitalization, liquidation or dissolution of Dover or (v) any other transaction having a similar effect to those described in clauses (i) through (iv).

Response to Takeover Proposals

Generally, notwithstanding any provision of the Merger Agreement, at any time after the date of the Merger Agreement until the Offer Acceptance Time, and following Dover’s receipt of a bona fide, unsolicited written Takeover Proposal that did not arise out of a material breach of the “No Solicitation” provisions described immediately above, Dover may:

 

   

participate in discussions regarding such Takeover Proposal solely to clarify the terms of such unsolicited Takeover Proposal; and

 

   

if the Dover Board determines in good faith (i) that such Takeover Proposal constitutes or is reasonably likely to lead to a Superior Proposal and (ii) after consultation with outside legal counsel, that the failure to take the actions set forth in clauses (x) and (y) below with respect to such Takeover Proposal would be inconsistent with its fiduciary duties, and Dover has provided Speedway with written notice of such determination, then Dover may, in response to such Takeover Proposal, (x) furnish access and information (including non-public information) with respect to Dover and any of its subsidiaries to the Person who has made such Takeover Proposal and its representatives, pursuant to an Acceptable Confidentiality Agreement, so long as any written material non-public information provided under this clause (x) has previously been provided to Speedway or is provided to Speedway substantially concurrently with the time it is provided to such person, and (y) participate in discussions and negotiations regarding such Takeover Proposal.

Dover’s Board’s Recommendation; Adverse Recommendation Changes

Except as set forth in the Merger Agreement, the Dover Board (or a committee thereof) is not permitted to (i) fail to make the Dover Board Recommendation or withdraw, modify or amend, or publicly propose to withdraw, modify or amend, the Dover Board Recommendation in any manner adverse to Speedway or Purchaser, (ii) approve, endorse or recommend, or publicly propose to approve, endorse or recommend, a Takeover Proposal, (iii) fail to include the Dover Board Recommendation in the Schedule 14D-9 or, if any Takeover Proposal has been made public, fail to reaffirm the Dover Board Recommendation upon request of Speedway within the earlier of three business days prior to the then scheduled expiration date or five business days after Speedway requests such reaffirmation with respect to such Takeover Proposal (any action described in clauses (i) through (iii) being referred to as an “Adverse Recommendation Change”) or (iv) approve, recommend or allow Dover to enter into any letter of intent, agreement in principle or contract relating to a Takeover Proposal (other than an Acceptable Confidentiality Agreement) (such a letter of intent, agreement in principle or contract, an “Acquisition Agreement”).

Notwithstanding the foregoing or any other provisions of the Merger Agreement to the contrary, the Dover Board may, at any time before the Acceptance Time and in response to a Superior Proposal received by the Dover Board after the date of the Merger Agreement, make an Adverse Recommendation Change or terminate the Merger Agreement to enter into an Acquisition Agreement or authorize, resolve, agree or propose publicly to take any such action, but only if:

 

   

Dover did not otherwise breach any of its obligations under Section 5.4(a) (No Solicitation) of the Merger Agreement in any material respect;

 

   

the Dover Board has determined in good faith, after consultation with its outside legal advisors, that failure to do so would be inconsistent with its fiduciary duties;

 

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Dover has first provided at least five business days’ prior written notice to Speedway that Dover is prepared to make an Adverse Recommendation Change or terminate the Merger Agreement to enter into an Acquisition Agreement with respect to a Superior Proposal, which notice must include the material terms and conditions of and a copy of the written definitive agreements providing for the transaction that constitutes such Superior Proposal;

 

   

during such five business day period, Dover has negotiated with Speedway in good faith (to the extent Speedway desires to so negotiate) to enable Speedway to propose in writing such adjustments in the terms and conditions of the Merger Agreement and related documents so that such Superior Proposal ceases to constitute a Superior Proposal; and

 

   

Speedway does not make prior to 11:59 p.m., New York City time, on the final day of the Notice Period, an offer that is at least as favorable to the Dover stockholders as such Superior Proposal (it being understood and agreed that any material change to the financial or other material terms and conditions of such Superior Proposal shall require an additional notice to Speedway and an extension of the Notice Period, which shall be the longer of two Business Days and the period remaining under the initial Notice Period).

Additionally, and notwithstanding the foregoing or any other provisions of the Merger Agreement to the contrary, the Dover Board may, at any time before the Acceptance Time, make an Adverse Recommendation Change in response to an Intervening Event, but only if:

 

   

the Dover Board has determined in good faith, after consultation with its outside legal counsel, that failure to do so would be inconsistent with its fiduciary duties;

 

   

Dover has first provided at least five business days’ prior written notice to Speedway that Diver is prepared to make an Adverse Recommendation Change, which notice must specify in reasonable detail the Intervening Event and the basis upon which Dover proposes to make an Adverse Recommendation Change;

 

   

during such five business day period, Dover has negotiated with Speedway in good faith (to the extent Speedway has requested to so negotiate) to enable Speedway to propose in writing such adjustments in the terms and conditions of the Merger Agreement and related documents so that the failure to make such Adverse Recommendation Change would no longer be inconsistent with the Dover’s directors’ exercise of their fiduciary duties; and

 

   

Speedway does not make, prior to 11:59 p.m., New York city time, on the final day of the Notice Period, an offer that eliminates the basis for such Adverse Recommendation Change.

The Merger Agreement does not prohibit Dover, the Dover Board or any committee or subcommittee thereof from complying with Rules 14d-9 and 14e-2(a) or Item 1012(a) of Regulation M-A promulgated under the Exchange Act, or from making any disclosure to the stockholders of Dover if the Dover Board determines, in good faith after consultation with its outside legal counsel, that the failure to do so would be inconsistent with its fiduciary duties or such disclosure is otherwise required under applicable laws, rules or regulations. However, the foregoing sentence does not permit Dover to make an Adverse Recommendation Change other than in accordance with Sections 5.4(e) and 5.4(f) of the Merger Agreement. Merger Agreement. Further, the Merger Agreement expressly provides that in no event will the issuance of a “stop, look and listen” statement (or other similar statement pursuant to any requirement of applicable laws, rules or regulations) constitute an Adverse Recommendation Change.

Directors’ and Officers’ Indemnification and Insurance

From and after the Effective Time, the Surviving Corporation is required to, and Speedway is required to cause the Surviving Corporation to, in each case to the fullest extent permitted under applicable laws, rules and regulations, (i) indemnify and hold harmless, and advance expenses to, each individual who at the Effective Time

 

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is, or at any time prior to the Effective Time was, a director, officer, employee, agent or fiduciary of Dover or of a subsidiary of Dover (each, an “Indemnitee” and, collectively, the “Indemnitees”) with respect to all claims, liabilities, losses, damages, judgments, fines, penalties, costs and expenses, including fees and expenses of legal counsel, in connection with any legal action, arbitration or other civil or criminal proceeding, whenever asserted, based on or arising out of, in whole or in part, the fact that an Indemnitee is or was a director, officer, employee, agent or fiduciary of Dover or such subsidiary or was acting in such capacity, or acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of Dover or such subsidiary or taken at the request of Dover or such subsidiary, in each case at, or at any time prior to, the Effective Time (including any legal action, arbitration or other proceeding relating in whole or in part to the Offer, the Merger or the other transactions contemplated by the Merger Agreement or relating to the enforcement of this provision of the Merger Agreement) and (ii) assume all obligations of Dover and its subsidiaries to the Indemnitees in respect of indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in the organizational documents of Dover and such subsidiaries as in effect on the date of the Merger Agreement or in any agreement in existence as of the date of the Merger Agreement providing for indemnification between Dover or any of its subsidiaries and any Indemnitee.

The Merger Agreement provides that Speedway, from and after the Effective Time, is required to cause, unless otherwise required by applicable law, the certificate of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of the Merger Agreement in the organizational documents of Speedway and its subsidiaries, which provisions may not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees for a period of six years after the Effective Time.

In the Merger Agreement, Speedway and the Surviving Corporation have agreed, jointly and severally, to maintain in effect for at least six years after the Effective Time the current policies of directors’ and officers’ liability and fiduciary liability insurance maintained by Dover on terms and scope with respect to coverage, and in amount, no less favorable to its covered individuals than those of such policies in effect on the date of the Merger Agreement, or policies, issued by a reputable insurer at least equivalent to the insurer(s) of Dover’s current directors’ and officers’ liability insurance and fiduciary liability insurance, of at least the same coverage and amounts containing terms and conditions which are no less advantageous with respect to claims arising out of or relating to events which occurred before or at the Effective Time (including in connection with the negotiation and execution of the Merger Agreement and the consummation of the transactions contemplated thereby) so long as Dover and the Surviving Corporation are not required to pay an annual premium in excess of 300% of the last annual premium paid by Dover for such insurance before the date of the Merger Agreement (the “Maximum Premium”). If Speedway or the Surviving Corporation are unable to obtain such insurance for an amount less than or equal to the Maximum Premium, then Speedway and the Surviving Corporation have agreed, jointly and severally, to instead obtain as much comparable insurance as possible for an annual premium equal to the Maximum Premium. Notwithstanding the foregoing, in lieu of the arrangements described above, before the Effective Time and in consultation with Speedway, Dover is entitled to, and at the request of Speedway is required to, purchase “tail” directors’ and officers’ liability and fiduciary liability insurance policies covering the matters described above and on like terms, scope and amount (and covering, without limitation, the transactions contemplated by the Merger Agreement) and, if Dover purchases such policies before the Effective Time, then Speedway and the Surviving Corporation’s obligations as described above will be satisfied so long as Speedway and the Surviving Corporation cause such policies to be maintained in effect for a period of six years following the Effective Time.

Dover’s Credit Agreement

The Merger Agreement provides that, prior to the Effective Time, upon Speedway’s request, Dover is to use its reasonable efforts to, and cause its subsidiaries to use reasonable efforts to, (i) obtain from lenders under the Credit Agreement (as defined in the Merger Agreement) a customary payoff letter executed by such lenders (the

 

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“Payoff Letter”), or (ii) facilitate the amendment or modification of the Credit Agreement, including to execute and deliver any agreement, document or instrument reasonably contemplated by such amendment or modification on terms and conditions reasonably satisfactory to Speedway.

Upon Speedway’s request and as provided in more detail in the Merger Agreement, Dover shall use its commercially reasonable efforts to cooperate with Speedway if Speedway elects to pursue any bank financing and/or bond offerings to finance the Merger Transactions.

Efforts to Close the Transaction

In the Merger Agreement, each of Dover, Purchaser and Speedway has agreed to use its reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to consummate and make the Merger Transactions effective, including using reasonable best efforts to:

 

   

satisfy the Offer Conditions and conditions precedent set forth in the Merger Agreement;

 

   

obtain all necessary actions or nonactions, waivers, consents, approvals, orders and authorizations from, and give any necessary notices to, Governmental Authorities and other Persons; and

 

   

make all necessary registrations, declarations and filings (including filings under the Securities Act, the Exchange Act, the HSR Act, the DGCL, the NYSE rules and regulations and any other applicable laws, rules, and regulations.

Except as otherwise required under the Merger Agreement, Dover will not take any action or enter into any transaction or permit any action to be taken that would materially impair or delay Speedway and Dover’s ability to consummate the Merger Transactions or perform its obligations under the Merger Agreement.

Other Covenants

The above covenants are not the exclusive covenants provided in the Merger Agreement. The Merger Agreement contains other customary covenants, including, among others, covenants relating to public announcements, affiliate transactions and SEC filings.

Termination of the Merger Agreement

Termination Rights. The Merger Agreement may be terminated at any time before the Acceptance Time:

 

   

by mutual written consent of Speedway and Dover;

 

   

by Speedway or Dover, if the Offer Acceptance Time has not occurred by March 8, 2022, except that a party will not be permitted to terminate the Merger Agreement in this circumstance if such party’s material breach of any provision of the Merger Agreement is the primary cause of the failure of the Offer Acceptance Time to occur by March 8, 2022;

 

   

by Speedway or Dover, if any Law or Order issued by any court, governmental authority or self-regulatory organization enjoining or otherwise prohibiting consummation of the Offer or the Merger is in effect and has become final and nonappealable, except that a party will not be permitted to terminate the Merger Agreement in this circumstance if it such party’s material breach of any provision of the Merger Agreement is the primary cause of the occurrence of such Law or Order;

 

   

by Speedway or Dover, if the Offer (as it may have been extended pursuant to and in accordance with the Merger Agreement) has expired at a time when the Minimum Condition has not been satisfied and without the acceptance for payment of Shares pursuant to the Offer, except that a party will not be permitted to terminate the Merger Agreement in this circumstance if such party’s material breach of any provision of the Merger Agreement is primary cause of the failure of the Offer Acceptance Time to occur by March 8, 2022;

 

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by Speedway before the Offer Acceptance Time, if Dover breaches any of its representations or warranties or fails to perform any of its covenants or agreements contained in the Merger Agreement, and which breach or failure would give rise to the failure of certain Offer Conditions and which by its nature cannot be cured or has not been cured by Dover by the earlier of March 8, 2022 and the date that is 20 Business Days after Dover’s receipt of written notice of such breach or failure from Speedway (but only so long as neither Purchaser nor Speedway are then in material breach of their respective representations or warranties or then materially failing to perform their respective covenants or agreements contained in the Merger Agreement);

 

   

by Speedway before the Offer Acceptance Time, following an Adverse Recommendation Change, or if Dover breached any of its obligations under Section 5.4 (No Solicitation) of the Merger Agreement;

 

   

by Speedway before the Offer Acceptance Time, if the Offer expired or has been terminated without the acceptance for payment of Shares pursuant to the Offer due to a failure of any Offer Condition (other than any Offer Condition that is to be satisfied immediately prior to the Acceptance Time), (but only so long as neither Purchaser nor Speedway are then in material breach of their respective representations or warranties or then materially failing to perform their respective covenants or agreements contained in the Merger Agreement);

 

   

by Speedway before the Offer Acceptance Time, if the NASCAR Approval, in a form reasonably satisfactory to Speedway was not obtained, except, that, Speedway’s right to terminate for this cause will expire November 16, 2021 (the NASCAR Approval was obtained on November 11, 2021);

 

   

by Dover before the Offer Acceptance Time, in order to enter into concurrently with the termination of the Merger Agreement an Acquisition Agreement pursuant to and in accordance with the terms of the Merger Agreement, if prior to or concurrently with such termination Dover pays the Dover Termination Fee (as defined below);

 

   

by Dover before the Offer Acceptance Time, if Purchaser or Speedway breaches any of their respective representations or warranties or fails to perform any of their respective covenants or agreements contained in the Merger Agreement, and which breach or failure would, individually or when aggregated with any other such breaches or failures, reasonably be expected to materially delay, interfere with, hinder or impair the consummation by Purchaser or Speedway of any of the transactions contemplated by the Merger Agreement on a timely basis or the compliance by Purchaser or Speedway with their respective obligations under the Merger Agreement and which by its nature cannot be cured or has not been cured by Purchaser or Speedway, as applicable, by the earlier of the Outside Date and the date that is 20 business days after Speedway’s receipt of written notice of such breach or failure from Dover (but only so long as Dover is not then in material breach of its representations or warranties or then materially failing to perform its covenants or agreements contained in the Merger Agreement); and

 

   

by Dover before the Offer Acceptance Time if (i) all of the Offer Conditions shall have been satisfied or waived at the Expiration Time (other than any Offer Condition that, by its nature, is to be satisfied at the Offer Acceptance Time), (ii) Purchaser shall have failed (or Speedway shall have failed to cause Purchaser) to accept for payment in accordance with the Merger Agreement all Shares validly tendered and not properly withdrawn pursuant to the Offer, (iii) Dover gave Speedway written notice at least three Business Days prior to such termination stating Dover’s intention to terminate the Merger Agreement, (iv) all of the Offer Conditions remain satisfied throughout such three Business Day period, and (v) the Offer Acceptance Time shall not have occurred by the end of such three Business Day period.

Effect of Termination. If the Merger Agreement is terminated in accordance with its terms, the Merger Agreement will become void and of no effect, without any liability or obligation on the part of Purchaser, Speedway, Dover or their respective directors, officers and affiliates, except for certain designated provisions of the Merger Agreement that survive such termination. No such termination will relieve Purchaser, Speedway or

 

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Dover from liability resulting from a Willful and Material Breach of the Merger Agreement or for fraud based upon such party’s specific representations and warranties made under the Merger Agreement.

Termination Fee. Dover is required to pay, or cause to be paid, to Speedway a termination fee of $5,100,000 (the “Dover Termination Fee”) if:

 

   

Dover terminates the Merger Agreement in order to enter into an Acquisition Agreement, in which case payment of the Dover Termination Fee must be made concurrently with termination of the Merger Agreement;

 

   

Speedway terminates the Merger Agreement following an Adverse Recommendation Change, in which case payment of the Dover Termination Fee must be made within five business days following termination of the Merger Agreement; or

 

   

if (i) a Takeover Proposal (provided that references to “15%” in the definition of Takeover Proposal are deemed to be references to “50%” for purposes of this clause (i)) has been publicly made or publicly proposed to Dover or otherwise publicly announced or made to the Dover Board in writing, in each case prior to the Offer Acceptance Time and not subsequently withdrawn, (ii) thereafter the Merger Agreement is terminated (a) by Dover or Speedway if the Offer Acceptance Time has not occurred by March 8, 2022 or the Offer has expired at a time when the Minimum Condition has not been satisfied and there has not been a failure of certain specified Offer Conditions or (b) by Speedway if Dover breaches any of its representations or warranties or fails to perform any of its covenants or agreements contained in the Merger Agreement and (iii) within 12 months following the date of such termination, Dover enters into a definitive agreement with respect to any transaction specified in the definition of Takeover Proposal (provided that references to “15%” in the definition of Takeover Proposal are deemed to be references to “50%” for purposes of this clause (iii)) or any such transaction is consummated, in each case whether or not involving the same Takeover Proposal or the person making the Takeover Proposal referred to in clause (i), in which case payment of the Termination Fee must be made within five business days following the earlier of the date on which Dover (x) enters into such definitive agreement or (y) consummates such transaction.

Specific Performance

Each of Dover, on the one hand, and Speedway and Purchaser, on the other hand, agrees that irreparable damage would occur if any of the provisions of the Merger Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or other legal remedies would not be an adequate remedy for any such non-performance or breach. Accordingly, the parties have agreed that, subject to certain requirements and limitations as set forth in the Merger Agreement, the parties will be entitled to an injunction or injunctions to prevent breaches or threatened breaches of the Merger Agreement and to enforce specifically the terms and provisions of the Merger Agreement, without proof of damages or otherwise, and in addition to any other remedy at law or in equity.

Fees and Expenses

Except as explicitly provided otherwise in the Merger Agreement, all fees and expenses incurred by any party or on its behalf in connection with the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement will be paid by the party incurring such fees or expenses, whether or not the Offer, the Merger or the Merger Transactions.

Amendment

Subject to compliance with applicable law, the Merger Agreement may be amended or supplemented by written agreement of Purchaser, Speedway and Dover at any time prior to the Effective Time, except that following the Offer Acceptance Time, the Merger Agreement may not be amended in any manner that causes the Merger Consideration to differ from the Offer Price.

 

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Governing Law

The Merger Agreement is governed by Delaware law.

Other Agreements

Confidentiality Agreement

On July 20, 2021, Dover and Speedway entered into a confidentiality agreement (the “Confidentiality Agreement”) in connection with a possible negotiated transaction involving Dover. Under the terms of the Confidentiality Agreement, Dover and Speedway agreed that, subject to certain exceptions, each of Dover and Speedway would keep confidential all information furnished to one another pursuant to the Confidentiality Agreement for a period of two years, subject to certain exceptions, and to use this information solely to evaluate a possible negotiated transaction between the parties.

This summary and description of the Confidentiality Agreement does not purport to be complete and is qualified in its entirety by reference to the Confidentiality Agreement, which is filed as Exhibit (d)(3) to the Schedule TO, which is incorporated herein by reference in its entirety.

Support Agreement

On November 8, 2021, in connection with the Offer and Merger, and concurrently with the execution of the Merger Agreement, Speedway and Purchaser entered into a Support Agreement (the “Support Agreement”) with Henry B. Tippie, individually and as trustee of the RMT Trust, Jeffrey W. Rollins, Gary W. Rollins, the RMT Trust, Mike Tatoian, Tim Horne, Tom Wintermantel, Denis McGlynn, Louise McGlynn, Patrick Bagley, Nevada Oversight, Inc. as trustee of the Marital Trust held under the R. Randall Rollins 2012 Trust, and Radcliffe Hastings (each, a “Supporting Stockholder”, and together, the “Supporting Stockholders”). Pursuant to the Support Agreement, the Supporting Stockholders have agreed to tender shares of Common Stock and Class A Stock held by them in the Offer and to otherwise support the transactions contemplated by the Merger Agreement provided that if an Adverse Recommendation Change is made in connection with an Intervening Event after such Stockholder has tendered its shares of Common Stock, such Supporting Stockholder may withdraw a portion of its shares provided that such Supporting Stockholder’s Minimum Shares (as defined in the Support Agreement) remain tendered and that such Supporting Stockholder shall promptly tender such withdrawn shares at such time that such Adverse Recommendation Change is no longer continuing. As a group, the Supporting Stockholders held approximately 92% of the voting power of the Company as of November 5, 2021. As required by Dover’s Bylaws, each of Supporting Stockholders will take all action necessary to convert their shares of Class A Stock to an equal number of shares of Common Stock, effective as of immediately prior to the purchase of such shares by Purchaser pursuant to the Merger Agreement or, if earlier, immediately prior to the Effective Time. Following such conversion, the Shares subject to the Support Agreement will in the aggregate represent approximately 57.5% of the number of outstanding Shares and 57.5% of the aggregate voting power of the outstanding Shares.

The Support Agreement terminates upon the occurrence of certain circumstances, including in the event that the Merger Agreement is terminated in accordance with its terms.

This summary and description of the Support Agreement does not purport to be complete and is qualified in its entirety by reference to the Support Agreement, the form of which is filed as Exhibit (d)(2) to the Schedule TO, which is incorporated herein by reference in its entirety.

12. Purpose of the Offer; Plans for Dover.

Purpose of the Offer

We are making the Offer because we want to acquire all of the outstanding capital stock of Dover. The Offer, as the first step in the acquisition of Dover, is intended to facilitate the acquisition of all outstanding Shares.

 

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Purchaser intends to consummate the Merger as soon as practicable following the consummation of the Offer. The purpose of the Merger is to acquire all outstanding Shares not tendered and purchased pursuant to the Offer. Following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions, Purchaser will be merged with and into Dover. Following the Effective Time, the separate corporate existence of Purchaser will cease and Dover will continue as the Surviving Corporation and a wholly owned subsidiary of Speedway.

All Shares acquired by Purchaser pursuant to the Offer will be retained by Purchaser pending the Merger. If you sell your Shares in the Offer, you will cease to have any equity interest in Dover or any right to participate in its earnings and future growth. If you do not tender your Shares, but the Merger is consummated, you will also no longer have an equity interest in Dover.

Stockholder Approval

If the Offer is consummated and as a result Purchaser and its affiliates own Shares that represent a majority of the outstanding Shares, Dover does not anticipate seeking the approval of Dover’s remaining stockholders before effecting the Merger. Section 251(h) of the DGCL provides that, subject to certain statutory requirements, if following consummation of a tender offer for 100% of the stock of a public corporation, the acquirer holds at least the percentage of the stock, and of each class or series thereof, of the target corporation that would otherwise be required to adopt a merger agreement for a merger involving the target corporation, and the other stockholders receive the same amount and kind of consideration for their stock in the merger as was payable in the tender offer, the acquirer may effect a merger involving the target corporation without a vote of the stockholders of the target corporation. Therefore, the parties have agreed that, subject to the conditions specified in the Merger Agreement, the Merger will become effective as soon as practicable following the consummation of the Offer and the satisfaction or waiver of the other conditions to the Merger set forth in the Merger Agreement (other than those conditions that by their terms are to be satisfied upon completion of the Merger), and in any event no later than the third business day following such satisfaction or waiver of such conditions, without a vote of the stockholders of Dover in accordance with Section 251(h) of the DGCL.

Plans for Dover

If we accept Shares for payment pursuant to the Offer, we will obtain control over the management of Dover and the Dover Board shortly thereafter.

Pursuant to the Merger Agreement, from and after the Effective Time, the directors of Purchaser immediately before the Effective Time will be the directors of the Surviving Corporation, and the officers of Purchaser immediately before the Effective Time will be the officers of the Surviving Corporation. At the Effective Time, the certificate of incorporation of Dover will be amended and restated to read identically to the certificate of incorporation of Purchaser as in effect immediately before the date of the Merger Agreement (except that the name of the Surviving Corporation shall be “Dover Motorsports, Inc.”), and, as so amended and restated, shall be the certificate of incorporation of the Surviving Corporation. The bylaws of Purchaser as in effect immediately before the Effective Time will be the bylaws of the Surviving Corporation (except as to the name of the Surviving Corporation).

As soon as reasonably practicable following the consummation of the Merger, Speedway intends to cause Dover to delist the Shares from NYSE and to terminate the registration of the Shares under the Exchange Act.

Except as set forth in this Offer to Purchase, including as contemplated in this Section 12—“Purpose of the Offer; Plans for Dover,” Section 13—“Certain Effects of the Offer” and Section 14—“Dividends and Distributions,” and except for the transactions contemplated by the Merger Agreement, Purchaser and Speedway have no present plans or proposals that would relate to or result in any extraordinary transaction involving Dover or any of its subsidiaries (such as a merger, reorganization or liquidation) or any purchase, sale or transfer of a material amount of assets of Dover or any of its subsidiaries.

 

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To the best knowledge of Purchaser and Speedway, except for certain pre-existing agreements described in the Schedule 14D-9, no material employment, equity contribution, or other agreement, arrangement, understanding or relationship between any executive officer or director of Dover, on the one hand, and Purchaser, Speedway, SFC or Dover, on the other hand, existed as of the date of the Merger Agreement, and neither the Offer nor the Merger is conditioned upon any executive officer or director of Dover entering into any such agreement, arrangement or understanding.

13. Certain Effects of the Offer.

Market for the Shares

If the Offer is consummated, Purchaser will complete the Merger as soon as practicable after the consummation of the Offer, subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement. As a result, there will be no market for the Shares following consummation of the Offer.

NYSE Listing

If the Offer is consummated, Purchaser will complete the Merger as soon as practicable after the consummation of the Offer, subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement. As a result, the Shares will no longer meet the requirements for continued listing on NYSE because the only stockholder of Dover will be Speedway. As soon as reasonably practicable following the consummation of the Merger, Speedway intends to cause Dover to delist the Shares from NYSE.

Exchange Act Registration

The Shares are currently registered under the Exchange Act. Such registration may be terminated upon application of Dover to the SEC if the Shares are neither listed on a national securities exchange nor held by 300 or more holders of record. Termination of registration of the Shares under the Exchange Act would substantially reduce the information required to be furnished by Dover to its stockholders and to the SEC and would make certain provisions of the Exchange Act no longer applicable to Dover, such as the short-swing profit recovery provisions of Section 16(b) of the Exchange Act, the requirement to furnish a proxy statement pursuant to Section 14(a) of the Exchange Act in connection with stockholders’ meetings, the requirement to furnish annual, quarterly and current reports to stockholders pursuant to Section 13 of the Exchange Act and the requirements of Rule 13e-3 under the Exchange Act with respect to “going private” transactions. In addition, the ability of “affiliates” of Dover and persons holding “restricted securities” of Dover to dispose of such securities pursuant to Rule 144 promulgated under the Securities Act may be impaired or eliminated.

Speedway intends to cause Dover to terminate the registration of the Shares under the Exchange Act as soon as reasonably practicable following the consummation of the Merger.

Margin Regulations

The Shares are currently “margin securities” under the Regulations of the Board of Governors of the Federal Reserve System (the “Federal Reserve Board”), which has the effect, among other things, of allowing brokers to extend credit on the collateral of the Shares. Depending upon factors similar to those described above regarding the market for the Shares and stock quotations, it is possible that, following the Offer, the Shares would no longer constitute “margin securities” for the purposes of the margin regulations of the Federal Reserve Board and, therefore, could no longer be used as collateral for loans made by brokers.

14. Dividends and Distributions.

As discussed in Section 11—“The Merger Agreement; Other Agreements,” the Merger Agreement provides that, from and after the date of the Merger Agreement and until the earlier of the Effective Time and the termination of the Merger Agreement, except with the prior written consent of Speedway, as expressly contemplated or

 

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permitted pursuant to the Merger Agreement, as set forth in the Disclosure Letter (as defined below) or as required by applicable law, Dover will not make, declare or pay any dividend or distribution on any shares of its capital stock, including the Shares (except for Dover’s ordinary dividend of $0.04 per Share declared by Dover prior to November 8, 2021).

15. Conditions of the Offer.

The Offer is not subject to any financing condition. Notwithstanding any other provision of the Merger Agreement or the Offer and subject to any applicable rules and regulations of the SEC (including Rule 14e-1(c) under the Exchange Act), Purchaser is not required to, and Speedway is not required to cause Purchaser to, accept for payment or pay for any Shares validly tendered and not properly withdrawn pursuant to the Offer and may terminate or amend the Offer in accordance with the terms of the Merger Agreement, if any of the following conditions exist or have occurred and are continuing at the scheduled Expiration Time of the Offer:

 

   

the Minimum Condition has not been satisfied;

 

   

any law, rule or regulation or any judgment or other order issued by any court, governmental authority or self-regulatory organization enjoining or otherwise prohibiting consummation of the Offer or the Merger is in effect, or any legal action, arbitration or other civil or criminal proceeding instituted and pending that seeks any remedy;

 

   

the HSR Condition has not been satisfied;

 

   

the representations and warranties of Dover contained in the Merger Agreement (subject to de minimis, materiality, and Material Adverse Effect qualifiers) are not true and correct when made and as of the Expiration Time (except to the extent expressly made as of an earlier date, in which case, as of such earlier date) (the “Representations Condition”);

 

   

Dover has not complied with or performed in all material respects the obligations required to be complied with or performed by it prior to the Expiration Time (the “Obligations Condition”);

 

   

since the date of the Merger Agreement, there has been any effect, development change, event state of circumstances of facts or occurrence that, individually or in the aggregate, has had or would reasonably be expected to have a Dover Material Adverse Effect (the “Material Adverse Effect Condition”);

 

   

the consummation of the Merger shall not be reasonably capable of occurring immediately following the Expiration Time;

 

   

the Merger Agreement has been terminated in accordance with its terms; or

 

   

Speedway has not received a certificate signed on behalf of Dover by an executive officer of Dover, dated as of the date the Offer Acceptance Time occurs, certifying that the Representations Condition, the Obligations Condition or the Material Adverse Effect Condition have been satisfied.

For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been received prior to the Expiration Time are excluded.

The conditions described above are in addition to, and not a limitation of, the rights and obligations of Purchaser and Speedway to extend, terminate or modify the Offer in accordance with the terms of the Merger Agreement.

The conditions described above are for the sole benefit of Purchaser and Speedway and, subject to the terms and conditions of the Merger Agreement and applicable laws, rules and regulations, may be waived by Purchaser and Speedway in whole or in part at any time and from time to time in their respective sole discretion, except that we are not permitted to waive the Minimum Condition without the prior written consent of Dover. The failure by Purchaser, Speedway or any other affiliate of SFC at any time to exercise any of the foregoing rights will not be deemed a waiver of any such right, the waiver of any such right with respect to particular facts and circumstances will not be deemed a waiver with respect to any other facts and circumstances and each such right will be deemed an ongoing right that may be asserted at any time and from time to time.

 

49


16. Certain Legal Matters; Regulatory Approvals.

General

Except as described in this Section 16, Purchaser is not aware of any pending legal proceeding relating to the Offer.

Except as described in this Section 16, based on its examination of publicly available information filed by Dover with the SEC and other publicly available information concerning Dover, Purchaser is not aware of any governmental license or regulatory permit that appears to be material to Dover’s business that might be adversely affected by Purchaser’s acquisition of Shares as contemplated herein or of any approval or other action by any governmental, administrative or regulatory authority or agency, domestic or foreign, that would be required for the acquisition or ownership of Shares by Purchaser or Speedway as contemplated herein. If any such approval or other action is required, Purchaser currently contemplates that, except as described below under “State Takeover Laws,” such approval or other action will be sought. While Purchaser does not currently intend to delay acceptance for payment of Shares tendered pursuant to the Offer pending the outcome of any such matter, there can be no assurance that any such approval or other action, if needed, would be obtained or would be obtained without substantial conditions or that if such approvals were not obtained or such other actions were not taken, adverse consequences might not result to Dover’s business, or certain parts of Dover’s business might not need to be disposed of, any of which could cause Purchaser to elect to terminate the Offer without the purchase of Shares thereunder under certain conditions. See Section 15—“Conditions of the Offer.”

State Takeover Laws

Dover is incorporated under the laws of Delaware. In general, Section 203 of the DGCL prevents a Delaware corporation from engaging in a “business combination” (defined to include mergers and certain other actions) with an “interested stockholder” (including a person who owns or has the right to acquire 15% or more of a corporation’s outstanding voting stock) for a period of three years following the time such person became an “interested stockholder” unless, among other things, the “business combination” or the transaction pursuant to which such person becomes an “interested stockholder” is approved by the board of directors of such corporation before such person became an “interested stockholder.” Dover’s certificate of incorporation imposes anti-takeover provisions that are similar to those set forth in Section 203 of the DGCL. The Dover Board has approved the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, for purposes of these anti-takeover provisions set forth in Dover’s certificate of incorporation.

Dover, directly or through subsidiaries, conducts business in a number of states throughout the United States, some of which have enacted takeover laws. We do not know whether any of these laws will, by their terms, apply to the Offer or the Merger and we have not attempted to comply with any such laws. If any person seeks to apply any state takeover law, we will take such action as then appears desirable, which may include challenging the validity or applicability of any such statute in appropriate court proceedings. In the event any person asserts that the takeover laws of any state are applicable to the Offer or the Merger, and an appropriate court does not determine that it is inapplicable or invalid as applied to the Offer or the Merger, we may be required to file certain information with, or receive approvals from, the relevant state authorities. In addition, if enjoined, we may be unable to accept for payment any Shares tendered pursuant to the Offer or be delayed in continuing or consummating the Offer and the Merger. In such case, we may not be obligated to accept for payment any Shares tendered in the Offer. See Section 15—“Conditions of the Offer.”

Anti-Takeover Protection

Dover adopted (i) that certain Rights Agreement with Respect to Common Stock, dated June 14, 2016, between Dover and Computershare Inc., a Delaware corporation (the “Rights Agent”) (the “Common Stock Rights Plan”), and (ii) that certain Rights Agreement with Respect to Class A Stock, dated as of June 14, 2016, between Dover and the Rights Agent (the “Class A Rights Plan”, and together with the Common Stock Rights Plan, the “Rights Plans”). The Common Stock Rights Plan encompasses stockholder rights that would trade in tandem with the Common Stock if triggered. The rights, unless earlier redeemed by the Dover Board, will detach and trade separately from the Common Stock only upon the occurrence of certain events such as the unsolicited acquisition by a third party of beneficial ownership of 10% or more of the outstanding combined Common Stock and

 

50


Class A Stock, or (ii) the announcement by a third party of the intent to commence a tender or exchange offer for 10% or more of our outstanding combined Common Stock and Class A Stock (together, the “Triggering Events”). After the rights have detached, the holders of such rights would generally have the ability to purchase such number of either shares of Dover Common Stock or stock of an acquirer of Dover having a market value equal to twice the exercise price of the right being exercised, thereby causing substantial dilution to a person or group of persons attempting to acquire control of Dover. The rights may serve as a significant deterrent to unsolicited attempts to acquire control of Dover, including transactions involving a premium to the market price of Dover Shares. The rights are set to expire on June 13, 2026, unless earlier redeemed. The terms of the Common Stock Rights Plan are substantially similar to the terms of the Class A Rights Plan.

The Merger and Offer would be considered a Triggering Event under the Rights Plans. The Rights Plans allow for the Dover Board to waive a Triggering Event under the Rights Plans. The Rights Plans allow for the Dover Board to waive a Triggering Event if it deems to be in the best interest of Dover and its stockholders. In accordance with the terms of the Rights Plans, the Dover Board notified the Rights Agent on November 9, 2021 that it waived the application of the Rights Plans to each Triggering Event that arose as a result of entering into the Merger Agreement, including the Merger and Offer.

Antitrust Compliance

SFC, as the ultimate parent entity of Purchaser, and Henry B. Tippie, as the ultimate parent entity of Dover, filed Premerger Notification and Report Forms with the FTC and the DOJ Antitrust Division relating to Speedway’s proposed acquisition of Dover on November 12, 2021 and November 15, 2021 respectfully.

Under the provisions of the HSR Act applicable to the Offer, the acquisition of Shares pursuant to the Offer may be consummated only after the expiration of a fifteen-day waiting period following the filing by SFC of its Premerger Notification and Report Form with respect to the Offer, unless SFC receives a request for additional information or documentary material from the DOJ Antitrust Division or the FTC or unless early termination of the waiting period is granted. If, within the initial fifteen-day waiting period, either the DOJ Antitrust Division or the FTC requests additional information or documentary material concerning the Offer, the waiting period will be extended through the 10th calendar day after the date of substantial compliance by SFC. Complying with a request for additional information or documentary material may take a significant amount of time.

At any time before or after Purchaser’s acceptance for payment of Shares pursuant to the Offer, the DOJ Antitrust Division or the FTC could take such action under the U.S. federal antitrust laws as either deems necessary or desirable in the public interest, including seeking to enjoin the purchase of Shares pursuant to the Offer or seeking the divestiture of Shares purchased by Purchaser or the divestiture of substantial assets of Dover or its subsidiaries or Speedway or its subsidiaries. State attorneys general may also bring legal action under both state and federal antitrust laws, as applicable. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Offer on antitrust grounds will not be made or, if such a challenge is made, what the result thereof will be.

Dissenters’ Rights

No appraisal rights are available to the holders of Shares in connection with the Offer. If, however, the Merger takes place pursuant to Section 251(h) of the DGCL, stockholders whose Shares are not accepted for purchase pursuant to the Offer and who properly demand appraisal of their Shares pursuant to, and who comply in all respects with, Section 262 of the DGCL will have appraisal rights under Section 262 of the DGCL. If you choose to exercise your appraisal rights in connection with the Merger, you comply with the applicable legal requirements under the DGCL and you neither waive, withdraw nor otherwise lose your rights to appraisal under the DGCL, you will be entitled to payment in cash in an amount equal to the “fair value” of your Shares (exclusive of any element of value arising from the accomplishment or expectation of the Merger) as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be

 

51


the fair value. This value may be the same, more or less than the price Purchaser is offering to pay you in the Offer and the Merger, and the Surviving Corporation may argue in an appraisal proceeding that, for purposes of such a proceeding, the fair value of such Shares is less than the price paid in the Offer and the Merger.

Under Section 262 of the DGCL, when a merger is approved under Section 251(h) of the DGCL, either a constituent corporation before the effective date of the merger or the surviving corporation within ten days thereafter must notify each of the holders of any class or series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger and that appraisal rights are available for any or all shares of such class or series of stock of such constituent corporation, and must include in such notice a copy of Section 262. The Schedule 14D-9 constitutes the formal notice of appraisal rights under Section 262 of the DGCL. Any holder of Shares who wishes to exercise such appraisal rights or preserve his, her or its right to do so should carefully review the discussion of appraisal rights in the Schedule 14D-9 as well as Section 262 of the DGCL, attached as Annex B to the Schedule 14D-9, because failure to timely and properly comply with the procedures of Section 262 of the DGCL may result in the loss of appraisal rights under the DGCL.

Because of the complexity of the procedures for exercising appraisal rights, any stockholder wishing to exercise appraisal rights or to preserve the right to do so is urged to consult legal counsel.

As described more fully in the Schedule 14D-9, if a stockholder elects to exercise appraisal rights under Section 262 of the DGCL with respect to Shares held immediately prior to the Effective Time, such stockholder must do all of the following:

 

   

within the later of the consummation of the Offer (which will occur on the date on which Purchaser irrevocably accepts for payment all Shares validly tendered and not properly withdrawn pursuant to the Offer) and twenty days after the date of mailing of the notice of appraisal rights in the Schedule 14D-9 (which date of mailing is November 23, 2021), demand in writing the appraisal of such stockholder’s Shares, which demand must be sent to Dover at the address indicated in the Schedule 14D-9 and reasonably inform Dover of the identity of the stockholder and that the stockholder is demanding the appraisal of such stockholder’s Shares;

 

   

not tender (or, if tendered, not fail to withdraw prior to the Expiration Time) such Shares in the Offer; and

 

   

continuously hold such Shares from the date on which the written demand for appraisal is made through the Effective Time.

The foregoing summary of the rights of the stockholders of Dover to seek appraisal rights under Delaware law does not purport to be a complete statement of the procedures to be followed by stockholders desiring to exercise appraisal rights and is qualified in its entirety by reference to Section 262 of the DGCL. The preservation and proper exercise of appraisal rights requires adherence to the applicable provisions of the DGCL. Failure to timely and properly comply with the procedures of Section 262 of the DGCL may result in the loss of appraisal rights. A copy of Section 262 of the DGCL is included as Annex B to the Schedule 14D-9.

Appraisal rights cannot be exercised at this time. The information provided above is for informational purposes only with respect to your alternatives if the Merger is completed. If you tender (and do not properly withdraw prior to the Expiration Time) your Shares in the Offer, you will not be entitled to exercise appraisal rights with respect to your Shares; instead, upon the terms and subject to the conditions to the Offer, you will receive the Offer Price for your Shares.

 

52


17. Fees and Expenses.

We have retained the Depositary, the Paying Agent and the Information Agent in connection with the Offer. Each of the Depositary, the Paying Agent and the Information Agent will receive customary compensation, reimbursement for reasonable out-of-pocket expenses and indemnification against certain liabilities in connection with the Offer, including liabilities under the United States federal securities laws.

As part of the services included in such retention, the Information Agent may contact holders of Shares by personal interview, mail, electronic mail, telephone and other methods of electronic communication, and may request brokers, dealers, commercial banks, trust companies and other nominees to forward the Offer materials to beneficial holders of Shares.

Except as set forth above, we will not pay any fees or commissions to any broker or dealer or any other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies and other nominees will, upon request, be reimbursed by us for customary mailing and handling expenses incurred by them in forwarding the Offer material to their customers.

18. Miscellaneous.

The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, “blue sky” or other applicable laws of such jurisdiction. Purchaser may, however, in its discretion, take such action as it may deem necessary to make the Offer comply with the laws of any such jurisdiction and extend the Offer to holders of Shares in such jurisdiction in compliance with applicable laws. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.

Purchaser and Speedway have filed with the SEC the Schedule TO (including exhibits) in accordance with the Exchange Act, furnishing certain additional information with respect to the Offer, and may file amendments thereto. If the Offer is completed, Purchaser will file a final amendment to the Schedule TO reporting promptly the results of the Offer pursuant to Rule 14d-3 under the Exchange Act. A copy of the Schedule TO and any amendments thereto (including exhibits), and any other filings we make with the SEC with respect to the Offer or the Merger, may be examined and copies may be obtained from the SEC in the manner set forth in Section 8—“Certain Information Concerning Purchaser, Speedway and SFC.”

No person has been authorized to give any information or make any representation on behalf of Purchaser or Speedway not contained in this Offer to Purchase or in the Letter of Transmittal and, if given or made, that information or representation must not be relied upon as having been authorized. Neither delivery of this Offer to Purchase nor any purchase pursuant to the Offer will, under any circumstances, create any implication that there has been no change in the affairs of Purchaser, Speedway, Dover or any of their respective subsidiaries since the date as of which information is furnished or the date of this Offer to Purchase.

 

53


SCHEDULE I

INFORMATION RELATING TO PURCHASER, SPEEDWAY, AND SFC

The name, business address, business telephone number, title, present principal occupation or employment and citizenship of each executive officer and director of Purchaser, Speedway, and SFC are set forth below.

Executive Officers and Directors of Speedway Motorsports, LLC

 

Name

  

Citizenship

  

Business Address /
Business Telephone Number

  

Present Principal Occupation or
Employment

O. Bruton Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Chairman / Director
Marcus G. Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Chief Executive Officer and President / Director
B. Scott Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Director / Director
David Bruton Smith    Untied States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Director
William R. Brooks    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice Chairman, Chief Financial Officer and Treasurer / Director
Michael D. Burch    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
  

Executive Vice President and Chief Strategy Officer

Jessica Fickenscher    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Executive Vice President and Chief Experience Officer
J. Cary Tharrington IV    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
  

Executive Vice President, Chief Legal Officer, General Counsel and Secretary

Michael Hodge    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Executive Vice President, Chief Accounting Officer and Assistant Treasurer
Cynthia B. Jacobson    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
  

Executive Vice President – Human Resources

 

54


Executive Officers and Directors of Speedco II, Inc.

 

Name

  

Citizenship

  

Business Address /
Business Telephone Number

  

Present Principal Occupation or
Employment

O. Bruton Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

  

Executive Chairman

B. Scott Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

  

Executive Director

Marcus G. Smith    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Chief Executive Officer and President / Director
William R. Brooks    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice Chairman, Chief Financial Officer and Treasurer / Director
Michael D. Burch    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Vice President and Chief Strategy Officer / Director
Jessica Fickenscher    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Vice President and Chief Experience Officer
J. Cary Tharrington IV    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Vice President, Chief Legal Officer, General Counsel and Secretary
Michael Hodge    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Vice President, Chief Accounting Officer, and Assistant Treasurer
Cynthia B. Jacobson    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Executive Vice President – Human Resources
Jonathan Brady    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Senior Vice President and Chief Information Officer
Steve Swift    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Senior Vice President – Operations and Development
Kim Daniels    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Senior Vice President – Financial Reporting
Carla Weston    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Vice President – Financial Compliance, Assistant Treasurer and Assistant Secretary

 

55


Name

  

Citizenship

  

Business Address /
Business Telephone Number

  

Present Principal Occupation or
Employment

Janet Kirkley    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Vice President – Legal Compliance and Assistant Secretary
Angela McDowell    United States   

5401 East Independence Boulevard, Charlotte, North Carolina 28212

(704) 455-3239

   Vice President – Accounting, Controller and Assistant Treasurer

Executive Officers and Directors of Sonic Financial Corporation

 

Name

  

Citizenship

  

Business Address /
Business Telephone Number

  

Present Principal Occupation or
Employment

O. Bruton Smith    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Chief Executive Officer and President / Director
B. Scott Smith    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Executive Vice President / Director
David Bruton Smith    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Executive Vice President / Director
Marcus G. Smith    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Executive Vice President / Director
William R. Brooks    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice President and Chief Financial Officer / Director
J. Cary Tharrington IV    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice President, General Councel and Secretary
Michael E. Hodge    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice President and Treasurer
Cynthia Jacobson    United States    5401 East Independence Boulevard, Charlotte, North Carolina 28212
(704) 455-3239
   Vice President –Human Resources

 

56


The Letter of Transmittal, certificates for Shares and any other required documents should be sent by each stockholder of Dover or such stockholder’s broker, dealer, commercial bank, trust company or other nominee to the Depositary as follows:

The Depositary for the Offer is:

American Stock Transfer & Trust Co., LLC

 

By Mail or Overnight Carrier:   By Facsimile Transmission:
American Stock Transfer & Trust Co., LLC   (For Eligible Institutions Only)
Operations Center   (718) 234-5001

Attn: Reorganization Department

6201 15th Avenue

Brooklyn, New York 11219

 

Questions and requests for assistance or additional copies of this Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may be directed to the Information Agent at its address and telephone numbers set forth below. Stockholders may also contact their brokers, dealers, commercial banks, trust companies or other nominees for assistance concerning the Offer.

The Information Agent for the Offer is:

MacKenzie Partners, Inc.

1407 Broadway, 27th Floor

New York, NY 10018

(212) 929-5500

or

Call Toll-Free- (800) 322-2885

Email address: tenderoffer@mackenziepartners.com

 

57

Exhibit (a)(1)(B)

LETTER OF TRANSMITTAL

To accompany certificates of common stock, $0.10 par value per share, and class A common stock, $0.10 per share, of Dover Motorsports, Inc.

The undersigned represents that I (we) have full authority to surrender without restriction the certificate(s) listed below. You are hereby authorized and instructed to deliver to the address indicated below (unless otherwise instructed in the boxes in the following page) a check representing a cash payment for shares of (i) common stock, par value $0.10 per share (“Common Stock”), and (ii) class A common stock, par value $0.10 per share (“Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc., a Delaware corporation (“Dover”) tendered pursuant to this Letter of Transmittal, at a price of $3.61 per share, net to the seller in cash, without interest and less any applicable withholding taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 23, 2021 (as it may be amended or supplemented from time to time, the “Offer to Purchase” and, together with this Letter of Transmittal, as it may be amended or supplemented from time to time, the “Offer”).

Method of delivery of the certificate(s) is at the option and risk of the owner thereof.    See Instruction 1.

Mail or deliver this Letter of Transmittal, or a facsimile, together with the certificate(s) representing your shares, to:

 

LOGO

 

If delivering by hand, express mail, courier,
or other expedited service:

 

American Stock Transfer & Trust Co., LLC

Operations Center

Attn: Reorganization Department

6201 15th Avenue

Brooklyn, New York 11219

  

By mail:

 

American Stock Transfer & Trust Co., LLC

Operations Center

Attn: Reorganization Department

P.O. BOX 2042

New York, NY 10272-2042

For assistance call (877) 248-6417 or (718) 921-8317

Pursuant to the offer of Speedco II, Inc. to purchase all outstanding Shares of Dover, the undersigned encloses herewith and surrenders the following certificate(s) representing Dover’s Shares:

 

Name(s) and Address of Registered Holder(s)

If there is any error in the name or address shown below, please make the necessary corrections

 

    

 

DESCRIPTION OF SHARES SURRENDERED

(Please fill in. Attach separate schedule if needed)

 

     

 

    Certificate No(s)    

 

 

    Number of Shares    

           
           
           
           
           
           
           
           
           
           
           
           
           
     

  TOTAL SHARES  

 

 

LOGO

 

   


PLEASE READ THE INSTRUCTIONS ACCOMPANYING THIS LETTER OF TRANSMITTAL CAREFULLY BEFORE COMPLETING THIS LETTER OF TRANSMITTAL.

IF YOU WOULD LIKE ADDITIONAL COPIES OF THIS LETTER OF TRANSMITTAL OR ANY OF THE OTHER OFFERING DOCUMENTS, YOU SHOULD CONTACT THE INFORMATION AGENT, MACKENZIE PARTNERS, INC. AT (212) 929-5550.

You have received this Letter of Transmittal in connection with the offer of Speedco II, Inc., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Speedway Motorsports, LLC., a Delaware corporation (“Speedway”), to purchase any and all of the issued and outstanding shares of (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc., a Delaware corporation (“Dover”). Shares of Common Stock and Class A Stock will be offered at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in this Offer to Purchase (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” and which, together with this Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”).

You should use this Letter of Transmittal to deliver to American Stock Transfer & Trust Company (the “Depositary”) Shares represented by stock certificates, or held in book-entry form, for tender. If you are delivering your Shares by book-entry transfer to an account maintained by the Depositary at The Depository Trust Company (“DTC”), you must use an Agent’s Message (as defined in Instruction 2 below). In this Letter of Transmittal, stockholders who deliver certificates representing their Shares are referred to as “Certificate Stockholders,” and stockholders who deliver their Shares through book-entry transfer are referred to as “Book-Entry Stockholders.”

If certificates for your Shares are not immediately available or you cannot deliver your certificates and all other required documents to the Depositary prior to the Expiration Date or you cannot complete the book-entry transfer procedures prior to the Expiration Date, you may nevertheless tender your Shares according to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase. See Instruction 2 below. Delivery of documents to DTC will not constitute delivery to the Depositary.

 

CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED BY BOOK-ENTRY TRANSFER TO THE ACCOUNT MAINTAINED BY THE DEPOSITARY WITH DTC AND COMPLETE THE FOLLOWING (ONLY FINANCIAL INSTITUTIONS THAT ARE PARTICIPANTS IN DTC MAY DELIVER SHARES BY BOOK-ENTRY TRANSFER):

 

  

Name of Tendering

  

Institution:

 

  

DTC Participant

  

Number:

 

  

Transaction Code

  

Number:

 

CHECK HERE IF TENDERED SHARES ARE BEING DELIVERED PURSUANT TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE DEPOSITARY AND COMPLETE THE FOLLOWING (PLEASE ENCLOSE A PHOTOCOPY OF SUCH NOTICE OF GUARANTEED DELIVERY):

 

  

Name(s) of Registered Owner(s):

 

  

Window Ticket Number (if any) or DTC Participant

  

Number:

 

  

Date of Execution of Notice of Guaranteed

  

Delivery:

 

  

Name of Institution which Guaranteed

  

Delivery:


NOTE: SIGNATURES MUST BE PROVIDED BELOW.

PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY.

Ladies and Gentlemen:

The undersigned hereby tenders to Speedco II, Inc., a Delaware corporation (“Purchaser”) and a wholly-owned subsidiary of Speedway Motorsports, LLC, a Delaware limited liability company (“Speedway”), the above-described shares of (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc., a Delaware corporation (“Dover”). Shares of Common Stock and Class A Stock will be purchased at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in this Offer to Purchase (the “Offer to Purchase”) and in the related Letter of Transmittal (the “Letter of Transmittal” and which, together with this Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”). The undersigned understands that Purchaser reserves the right to transfer or assign, from time to time, in whole or in part, to one or more of its affiliates, the right to purchase the Shares tendered herewith.

On the terms and subject to the conditions of the Offer (including, if the Offer is extended or amended, the terms and conditions of such extension or amendment), subject to, and effective upon, acceptance for payment of the Shares validly tendered herewith, and not properly withdrawn, prior to the Expiration Date in accordance with the terms of the Offer, the undersigned hereby sells, assigns and transfers to, or upon the order of, Purchaser, all right, title and interest in and to all of the Shares being tendered hereby and any and all cash dividends, distributions, rights, other Shares or other securities issued or issuable in respect of such Shares on or after December 21, 2021 (collectively, “Distributions”). In addition, the undersigned hereby irrevocably appoints American Stock Transfer & Trust Company, LLC (the “Depositary”) the true and lawful agent and attorney-in-fact and proxy of the undersigned with respect to such Shares and any Distributions with full power of substitution (such proxy and power of attorney being deemed to be an irrevocable power coupled with an interest in the tendered shares) to the full extent of such stockholder’s rights with respect to such Shares and any Distributions (a) to deliver certificates representing Shares (the “Share Certificates”) and any Distributions, or transfer of ownership of such Shares and any Distributions on the account books maintained by DTC, together, in either such case, with all accompanying evidence of transfer and authenticity, to or upon the order of Purchaser, (b) to present such Shares and any Distributions for transfer on the books of Dover, and (c) to receive all benefits and otherwise exercise all rights of beneficial ownership of such Shares and any Distributions, all in accordance with the terms and subject to the conditions of the Offer.

The undersigned hereby irrevocably appoints the Purchaser as attorney-in-fact and proxy of the undersigned, with full power of substitution, to the full extent of such stockholder’s rights with respect to the Shares tendered hereby which have been accepted for payment and with respect to any Distributions. Purchaser will, with respect to the Shares and any associated Distributions for which the appointment is effective, be empowered to exercise all voting and any other rights of such stockholder, as it, in its sole discretion, may deem proper at any annual, special, adjourned or postponed meeting of Dover’s stockholders, by written consent in lieu of any such meeting or otherwise. This proxy and power of attorney shall be irrevocable and coupled with an interest in the tendered Shares. Such appointment is effective when, and only to the extent that, Purchaser accepts the Shares tendered with this Letter of Transmittal for payment pursuant to the Offer. Purchaser reserves the right to require that, in order for Shares to be deemed validly tendered, immediately upon Purchaser’s acceptance for payment of such Shares, Purchaser must be able to exercise full voting, consent and other rights, to the extent permitted under applicable law, with respect to such Shares and any associated Distributions, including voting at any meeting of stockholders or executing a written consent concerning any matter.

Solely as it relates to the holders of the Class A Stock, the undersigned hereby elects to convert the shares of Class A Stock tendered herewith into an equal number of shares of Common Stock pursuant to Article FOURTH, Section (b)(iii), of the Restated Certificate of Incorporation of Dover and Section 8.7(d) of the Bylaws of Dover (collectively, the “Operative Provisions”), effective at and as of immediately prior to the purchase of such shares by Purchaser pursuant to the Merger Agreement or, if earlier, immediately prior to the Effective Time, and


hereby appoints Purchaser as its attorney-in-fact, with full power of substitution, to deliver the certificates representing such shares to Dover, and take all other action required under the Operative Provisions, to effect such conversation at and as of such time.

The undersigned hereby represents and warrants that the undersigned has full power and authority to tender, sell, assign and transfer the Shares and any Distributions tendered hereby and, when the same are accepted for payment by Purchaser, Purchaser will acquire valid and unencumbered title thereto, free and clear of all liens, restrictions, charges and encumbrances and the same will not be subject to any adverse claim. The undersigned hereby represents and warrants that the undersigned is the registered owner of the Shares, or the Share Certificate(s) have been endorsed to the undersigned in blank, or the undersigned is a participant in DTC whose name appears on a security position listing as the owner of the Shares. The undersigned will, upon request, execute and deliver any additional documents deemed by the Depositary or Purchaser to be necessary or desirable to complete the sale, assignment and transfer of the Shares and any Distributions tendered hereby. In addition, the undersigned shall promptly remit and transfer to the Depositary for the account of Purchaser any and all Distributions in respect of the Shares tendered hereby, accompanied by appropriate documentation of transfer and, pending such remittance or appropriate assurance thereof, Purchaser shall be entitled to all rights and privileges as owner of any such Distributions and may withhold the entire purchase price or deduct from the purchase price the amount or value thereof, as determined by Purchaser in its sole discretion.

It is understood that the undersigned will not receive payment for the Shares unless and until the Shares are accepted for payment and until the Share Certificate(s) owned by the undersigned are received by the Depositary at the address set forth above, together with such additional documents as the Depositary may require, or, in the case of Shares held in book-entry form, ownership of Shares is validly transferred on the account books maintained by DTC, and until the same are processed for payment by the Depositary.

IT IS UNDERSTOOD THAT THE METHOD OF DELIVERY OF THE SHARES, THE SHARE CERTIFICATE(S) AND ALL OTHER REQUIRED DOCUMENTS (INCLUDING DELIVERY THROUGH DTC) IS AT THE OPTION AND RISK OF THE UNDERSIGNED AND THAT THE RISK OF LOSS OF SUCH SHARES, SHARE CERTIFICATE(S) AND OTHER DOCUMENTS SHALL PASS ONLY AFTER THE DEPOSITARY HAS ACTUALLY RECEIVED THE SHARES OR SHARE CERTIFICATE(S) (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION (AS DEFINED BELOW)). IF DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. DELIVERY WILL BE DEEMED EFFECTIVE AND RISK OF LOSS AND TITLE WILL PASS FROM THE OWNER ONLY WHEN RECEIVED BY THE EXCHANGE AGENT. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.

All authority conferred or agreed to be conferred pursuant to this Letter of Transmittal shall not be affected by, and shall survive, the death or incapacity of the undersigned and any obligation of the undersigned hereunder shall be binding upon the heirs, executors, administrators, trustees in bankruptcy, personal representatives, successors and assigns of the undersigned.

The undersigned understands that the acceptance for payment by Purchaser of Shares tendered pursuant to one of the procedures described in Section 3 of the Offer to Purchase and in the instructions hereto will constitute a binding agreement between the undersigned and Purchaser upon the terms and subject to the conditions of the Offer.

Unless otherwise indicated herein under “Special Payment Instructions,” please issue the check for the purchase price in the name(s) of, and/or return any Share Certificates representing Shares not tendered or accepted for payment to, the registered owner(s) appearing under “Description of Shares Tendered.” Similarly, unless otherwise indicated under “Special Delivery Instructions,” please mail the check for the purchase price and/or return any Share Certificates representing Shares not tendered or accepted for payment (and accompanying documents, as appropriate) to the address(es) of the registered owner(s) appearing under “Description of Shares Tendered.” In the event that both the Special Delivery Instructions and the Special Payment Instructions are completed, please issue the check for the purchase price and/or issue any Share Certificates representing Shares not tendered or accepted for payment (and any accompanying documents, as appropriate) in the name of, and deliver such check and/or return


such Share Certificates (and any accompanying documents, as appropriate) to, the person or persons so indicated. Unless otherwise indicated herein in the box titled “Special Payment Instructions,” please credit any Shares tendered hereby or by an Agent’s Message and delivered by book-entry transfer, but which are not purchased, by crediting the account at DTC designated above. The undersigned recognizes that Purchaser has no obligation pursuant to the Special Payment Instructions to transfer any Shares from the name of the registered owner thereof if Purchaser does not accept for payment any of the Shares so tendered.

SPECIAL PAYMENT INSTRUCTIONS

(See Instructions 1, 4, 5 and 7)

To be completed ONLY if Share Certificate(s) not tendered or not accepted for payment and/or the check for the purchase price in consideration of Shares accepted for payment are to be issued in the name of someone other than the undersigned or if Shares tendered by book-entry transfer which are not accepted for payment are to be returned by credit to an account maintained at DTC other than that designated above.

Issue: ☐ Check and/or ☐ Share Certificates to:

Name:

(Please Print)

Address:

 

 

 

 

(Include Zip Code)

 

 

(Tax Identification or Social Security Number)

Credit Shares tendered by book-entry transfer that are not accepted for payment to the DTC account set forth below.

 

 

(DTC Account Number)

SPECIAL DELIVERY INSTRUCTIONS

(See Instructions 1, 4, 5 and 7)

To be completed ONLY if Share Certificate(s) not tendered or not accepted for payment and/or the check for the purchase price of Shares accepted for payment are to be sent to someone other than the undersigned or to the undersigned at an address other than that shown in the box titled “Description of Shares Tendered” above.

Deliver: ☐ Check(s) and/or ☐ Share Certificates to:

Name:    

(Please Print)

Address:    

 

 

 

 

(Include Zip Code)

IMPORTANT—SIGN HERE

(United States Holders Please Also Complete the Enclosed IRS Form W-9)

(Non-United States Holders Please Obtain and Complete IRS Form W-8BEN or Other Applicable IRS Form W-8)

 

 

(Signature(s) of Stockholder(s))


Dated:        ,2021

(Must be signed by registered owner(s) exactly as name(s) appear(s) on Share Certificate(s) or on a security position listing or by person(s) authorized to become registered owner(s) by certificates and documents transmitted herewith. If signature is by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, please set forth full title and see Instruction 5. For information concerning signature guarantees, see Instruction 1.)

Name(s):

(Please Print)

Capacity (full title):

Address:

(Include Zip Code)

Area Code and Telephone Number:

Email Address:

Tax Identification or

Social Security No.:

GUARANTEE OF SIGNATURE(S)

(For use by Eligible Institutions only;

see Instructions 1 and 5)

Name of Firm:

(Include Zip Code)

Authorized Signature:

Name:

(Please Type or Print)

Area Code and Telephone Number:

Dated: , 2021

 

 

Place medallion guarantee in space below:

INSTRUCTIONS

Forming Part of the Terms and Conditions of the Offer

1. Guarantee of Signatures. Except as otherwise provided below, all signatures on this Letter of Transmittal must be guaranteed by a financial institution (including most commercial banks, savings and loan associations and brokerage houses) that is a member in good standing of a recognized Medallion Program approved by the Securities Transfer Association, Inc., including the Security Transfer Agents Medallion Program, the New York Stock Exchange Medallion Signature Program and the Stock Exchanges Medallion Program (each, an “Eligible Institution”). Signatures on this Letter of Transmittal need not be guaranteed (a) if this Letter of Transmittal is signed by the registered owner(s) (which term, for purposes of this document, includes any participant in any of DTC’s systems whose name appears on a security position listing as the owner of the Shares) of Shares tendered herewith and such registered owner has not completed the box titled “Special Payment Instructions” or the box titled “Special Delivery Instructions” on this Letter of Transmittal or (b) if such Shares are tendered for the account of an Eligible Institution. See Instruction 5.


2. Delivery of Letter of Transmittal and Certificates or Book-Entry Confirmations. This Letter of Transmittal is to be completed by stockholders if Share Certificates are to be forwarded herewith. If tenders are to be made pursuant to the procedures for tender by book-entry transfer set forth in Section 3 of the Offer to Purchase, an Agent’s Message must be utilized. A manually executed facsimile of this document may be used in lieu of the original. Share Certificates representing all physically tendered Shares, or confirmation of any book-entry transfer into the Depositary’s account at DTC of Shares tendered by book-entry transfer (“Book Entry Confirmation”), as well as this Letter of Transmittal properly completed and duly executed with any required signature guarantees, or an Agent’s Message in the case of a book-entry transfer, and any other documents required by this Letter of Transmittal, must be received by the Depositary at its address set forth herein prior to the Expiration Date (as defined in Section 1 of the Offer to Purchase). Please do not send your Share Certificates directly to Purchaser, Speedway, or Dover.

Stockholders whose Share Certificates are not immediately available or who cannot deliver all other required documents to the Depositary prior to the Expiration Date or who cannot complete the procedures for book-entry transfer prior to the Expiration Date may nevertheless tender their Shares by properly completing and duly executing a Notice of Guaranteed Delivery pursuant to the guaranteed delivery procedure set forth in Section 3 of the Offer to Purchase. Pursuant to such procedure: (a) such tender must be made by or through an Eligible Institution, (b) a properly completed and duly executed Notice of Guaranteed Delivery substantially in the form provided by Purchaser must be received by the Depositary prior to the Expiration Date, and (c) Share Certificates representing all tendered Shares, in proper form for transfer (or a Book Entry Confirmation with respect to such Shares), this Letter of Transmittal (or facsimile thereof), properly completed and duly executed with any required signature guarantees (or, in the case of a book-entry transfer, an Agent’s Message), and all other documents required by this Letter of Transmittal, if any, must be received by the Depositary within two New York Stock Exchange trading days after the date of execution of such Notice of Guaranteed Delivery.

A properly completed and duly executed Letter of Transmittal (or facsimile thereof) must accompany each such delivery of Share Certificates to the Depositary.

The term “Agent’s Message” means a message, transmitted through electronic means by DTC to, and received by, the Depositary and forming part of a Book-Entry Confirmation, which states that DTC has received an express acknowledgment from the participant in DTC tendering the Shares which are the subject of such Book-Entry Confirmation that such participant has received and agrees to be bound by the terms of this Letter of Transmittal and that Purchaser may enforce such agreement against the participant. The term “Agent’s Message” also includes any hard copy printout evidencing such message generated by a computer terminal maintained at the Depositary’s office.

THE METHOD OF DELIVERY OF THE SHARES, THIS LETTER OF TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH DTC, IS AT THE ELECTION AND RISK OF THE TENDERING STOCKHOLDER. DELIVERY OF ALL SUCH DOCUMENTS WILL BE DEEMED MADE AND RISK OF LOSS OF THE SHARE CERTIFICATES SHALL PASS ONLY WHEN ACTUALLY RECEIVED BY THE DEPOSITARY (INCLUDING, IN THE CASE OF A BOOK-ENTRY TRANSFER, BY BOOK-ENTRY CONFIRMATION). IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT ALL SUCH DOCUMENTS BE SENT BY PROPERLY INSURED REGISTERED MAIL WITH RETURN RECEIPT REQUESTED. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ENSURE TIMELY DELIVERY.

No alternative, conditional or contingent tenders will be accepted, and no fractional Shares will be purchased. All tendering stockholders, by execution of this Letter of Transmittal (or facsimile thereof), waive any right to receive any notice of the acceptance of their Shares for payment.

All questions as to validity, form and eligibility (including time of receipt) of the surrender of any Share Certificate hereunder, including questions as to the proper completion or execution of any Letter of Transmittal, Notice of Guaranteed Delivery or other required documents and as to the proper form for transfer of any certificate of Shares, will be determined by Purchaser in its sole and absolute discretion (which may delegate power in whole or in part to the Depositary) which determination will be final and binding. Purchaser reserves


the absolute right to reject any and all tenders determined by it not to be in proper form or the acceptance for payment of or payment for which may be unlawful. Purchaser also reserves the absolute right to waive any defect or irregularity in the surrender of any Shares or Share Certificate(s) whether or not similar defects or irregularities are waived in the case of any other stockholder. A surrender will not be deemed to have been validly made until all defects and irregularities have been cured or waived. Purchaser and the Depositary shall make reasonable efforts to notify any person of any defect in any Letter of Transmittal submitted to the Depositary.

3. Inadequate Space. If the space provided herein is inadequate, the certificate numbers and/or the number of Shares should be listed on a separate schedule attached hereto and separately signed on each page thereof in the same manner as this Letter of Transmittal is signed.

4. Partial Tenders (Applicable to Certificate Stockholders Only). If fewer than all the Shares evidenced by any Share Certificate delivered to the Depositary are to be tendered, fill in the number of Shares which are to be tendered in the column titled “Number of Shares Tendered” in the box titled “Description of Shares Tendered.” In such cases, new certificate(s) for the remainder of the Shares that were evidenced by the old certificate(s) but not tendered will be sent to the registered owner, unless otherwise provided in the appropriate box on this Letter of Transmittal, as soon as practicable after the Expiration Date. All Shares represented by Share Certificates delivered to the Depositary will be deemed to have been tendered unless otherwise indicated.

5. Signatures on Letter of Transmittal; Stock Powers and Endorsements. If this Letter of Transmittal is signed by the registered owner(s) of the Shares tendered hereby, the signature(s) must correspond with the name(s) as written on the face of the Share Certificate(s) without alteration or any other change whatsoever.

If any Shares tendered hereby are owned of record by two or more joint owners, all such owners must sign this Letter of Transmittal.

If any tendered Shares are registered in the names of different holder(s), it will be necessary to complete, sign and submit as many separate Letters of Transmittal (or facsimiles thereof) as there are different registrations of such Shares.

If this Letter of Transmittal or any certificates or stock powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, such persons should so indicate when signing, and proper evidence satisfactory to Purchaser of their authority so to act must be submitted.

If this Letter of Transmittal is signed by the registered owner(s) of the Shares listed and transmitted hereby, no endorsements of Share Certificates or separate stock powers are required unless payment is to be made to, or Share Certificates representing Shares not tendered or accepted for payment are to be issued in the name of, a person other than the registered owner(s), in which case the Share Certificates representing the Shares tendered by this Letter of Transmittal must be endorsed or accompanied by appropriate stock powers, in either case, signed exactly as the name(s) of the registered owner(s) or holder(s) appear(s) on the Share Certificates. Signatures on such Share Certificates or stock powers must be guaranteed by an Eligible Institution.

If this Letter of Transmittal is signed by a person other than the registered owner(s) of the Share(s) listed, the Share Certificate(s) must be endorsed or accompanied by the appropriate stock powers, in either case, signed exactly as the name or names of the registered owner(s) or holder(s) appear(s) on the Share Certificate(s). Signatures on such Share Certificates or stock powers must be guaranteed by an Eligible Institution.

6. Transfer Taxes. Purchaser will pay any transfer taxes with respect to the transfer and sale of Shares to it or to its order pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include United States federal income or backup withholding taxes). If, however, payment of the purchase price is to be made to, or (in the circumstances permitted hereby) if Share Certificates not tendered or accepted for payment are to be registered in the name of, any person other than the registered owner(s), or if tendered Share Certificates are registered in the name of any person other than the person signing this Letter of Transmittal, the amount of any transfer taxes (whether imposed on the


registered owner(s) or such person) payable on account of the transfer to such person will be deducted from the purchase price unless satisfactory evidence of the payment of such taxes, or exemption therefrom, is submitted.

Except as provided in this Instruction 6, it will not be necessary for transfer tax stamps to be affixed to the Share Certificates listed in this Letter of Transmittal.

7. Special Payment and Delivery Instructions. If a check for the purchase price is to be issued, and/or Share Certificates representing Shares not tendered or accepted for payment are to be issued or returned to, a person other than the signer(s) of this Letter of Transmittal or to an address other than that shown in the box titled “Description of Shares Tendered” above, the appropriate boxes on this Letter of Transmittal should be completed. Stockholders delivering Shares tendered hereby or by Agent’s Message by book-entry transfer may request that Shares not purchased be credited to an account maintained at DTC as such stockholder may designate in the box titled “Special Payment Instructions” herein. If no such instructions are given, all such Shares not purchased will be returned by crediting the same account at DTC as the account from which such Shares were delivered.

8. Requests for Assistance or Additional Copies. Questions or requests for assistance may be directed to the Information Agent at its address and telephone number set forth above or to your broker, dealer, commercial bank or trust company. Additional copies of the Offer to Purchase, this Letter of Transmittal, the Notice of Guaranteed Delivery and other tender offer materials may be obtained from the Information Agent as set forth above and will be furnished at Purchaser’s expense.

9. Backup Withholding. Under U.S. federal income tax laws, the Depositary will be required to withhold a portion of the amount of any payments made to certain stockholders pursuant to the Offer or the Merger, as applicable. In order to avoid such backup withholding, each tendering stockholder or payee that is a United States person (for U.S. federal income tax purposes), must provide the Depositary with such stockholder’s or payee’s correct taxpayer identification number (“TIN”) and certify that such stockholder or payee is not subject to such backup withholding by completing the attached Form W-9. Certain stockholders or payees (including, among others, corporations, non-resident foreign individuals and foreign entities) are not subject to these backup withholding and reporting requirements. A tendering stockholder who is not a United States person, including is a foreign individual or a foreign entity should complete, sign, and submit to the Depositary the appropriate Form W-8, which may be obtained from the Depositary or downloaded from the Internal Revenue Service’s website at the following address: http://www.irs.gov. Failure to complete the Form W-9 will not, by itself, cause Shares to be deemed invalidly tendered, but may require the Depositary to withhold a portion of the amount of any payments made of the Offer Price pursuant to the Offer. Please see “IMPORTANT TAX INFORMATION” below.

NOTE: FAILURE TO COMPLETE AND RETURN THE FORM W-9 MAY RESULT IN BACKUP WITHHOLDING OF A PORTION OF ANY PAYMENTS MADE TO YOU PURSUANT TO THE OFFER. PLEASE REVIEW THE “IMPORTANT TAX INFORMATION” SECTION BELOW.

10. Lost, Destroyed, Mutilated or Stolen Share Certificates. If any Share Certificate has been lost, destroyed, mutilated or stolen, the stockholder should promptly notify Dover’s stock transfer agent, Computershare Limited at (201) 680-4236. The stockholder will then be instructed as to the steps that must be taken in order to replace the Share Certificate. This Letter of Transmittal and related documents cannot be processed until the procedures for replacing lost, mutilated, destroyed or stolen Share Certificates have been followed.

11. Waiver of Conditions. Subject to the terms and conditions of the Merger Agreement (as defined in the Offer to Purchase) and the applicable rules and regulations of the Securities and Exchange Commission, the conditions of the Offer may be waived by Purchaser in whole or in part at any time and from time to time in its sole discretion.

IMPORTANT: THIS LETTER OF TRANSMITTAL (OR A MANUALLY EXECUTED FACSIMILE COPY THEREOF) OR AN AGENT’S MESSAGE, TOGETHER WITH SHARE CERTIFICATE(S) OR BOOK-ENTRY CONFIRMATION OR A PROPERLY COMPLETED AND DULY EXECUTED NOTICE OF GUARANTEED DELIVERY AND ALL OTHER REQUIRED DOCUMENTS, MUST BE RECEIVED BY THE DEPOSITARY PRIOR TO THE EXPIRATION DATE.


IMPORTANT TAX INFORMATION

Under United States federal income tax law, a stockholder that is a non-exempt United States person (for U.S. federal income tax purposes) whose tendered Shares are accepted for payment, or whose Shares are converted in the Merger, is required to provide the Depositary (as payer) with such stockholder’s correct TIN on Form W-9 below. If such stockholder is an individual, the TIN is such stockholder’s social security number. If the Depositary is not provided with the correct TIN, the stockholder may be subject to penalties imposed by the Internal Revenue Service (“IRS”) and payments that are made to such stockholder with respect to Shares purchased pursuant to the Offer, or converted in the Merger, may be subject to backup withholding.

Certain stockholders (including, among others, corporations and certain foreign holders) are exempt recipients not subject to these backup withholding requirements. See the enclosed copy of the IRS Form W-9 and the General Instructions to IRS Form W-9. To avoid possible erroneous backup withholding, such an exempt recipient, other than a stockholder that is not a United States person, should enter the stockholder’s name, address, status and TIN on the IRS Form W-9, check the “Exempt Payee” box on the IRS Form W-9, and sign, date and return the IRS Form W-9 to the Depositary and should follow the additional instructions included with the IRS Form W-9. To prevent backup withholding, stockholders that are not United States persons should (i) submit a properly completed and applicable IRS Form W-8BEN, IRS Form W-8BEN-E, IRS Form W-8ECI, IRS Form W-8EXP, or IRS Form W-8IMY (with appropriate attachments) to the Depositary certifying under penalties of perjury to the holder’s foreign status or (ii) otherwise establish an exemption. All of the IRS Forms W-8, or other applicable forms, may be obtained from the Depositary or downloaded from the Internal Revenue Service’s website at the following address: http://www.irs.gov.

If backup withholding applies, the Depositary is required to withhold 24% of any payments of the purchase price made to the stockholder. Backup withholding is not an additional tax. Rather, the tax liability of persons subject to backup withholding will be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may be obtained from the IRS provided that the required information is furnished to the IRS.

Form W-9

To prevent backup withholding on payments that are made to a stockholder that is a United States person with respect to Shares purchased pursuant to the Offer or converted in the Merger, as applicable, the stockholder is required to notify the Depositary of such stockholder’s correct TIN by completing Form W-9 certifying, under penalties of perjury, (i) that the TIN provided on Form W-9 is correct (or that such stockholder is awaiting a TIN), (ii) that such stockholder is not subject to backup withholding because (a) such stockholder has not been notified by the IRS that such stockholder is subject to backup withholding as a result of a failure to report all interest or dividends, (b) the IRS has notified such stockholder that such stockholder is no longer subject to backup withholding or (c) such stockholder is exempt from backup withholding, and (iii) that such stockholder is a United States person.

What Number to Give the Depositary

Each stockholder that is a United States person is generally required to give the Depositary its social security number or employer identification number. If the tendering stockholder has not been issued a TIN and has applied for a number or intends to apply for a number in the near future, the stockholder should write “Applied For” in Part I, sign and date the Form W-9. Notwithstanding that “Applied For” is written in Part I, the Depositary will withhold 24% of all payments of the purchase price to such stockholder until a TIN is provided to the Depositary. Such amounts will be refunded to such surrendering stockholder if a TIN is provided to the Depositary within 60 days. We note that your Form W-9, including your TIN, may be transferred from the Depositary to the Paying Agent, in certain circumstances.

Please consult your accountant or tax advisor for further guidance regarding the completion of IRS Form W-9, IRS Form W-8BEN, or another version of IRS Form W-8 to claim exemption from backup withholding or contact the Depositary.


   

Form W-9

(Rev. October 2018)

Department of the Treasury

Internal Revenue Service

  

Request for Taxpayer

Identification Number and Certification

u Go to www.irs.gov/FormW9 for instructions and the latest information.

 

Give Form to the requester. Do not
send to the IRS.

Print or type

See

Specific Instructions

on page 3.

 

     

 

1  Name (as shown on your income tax return). Name is required on this line; do not leave this line blank.

 

         
 

 

2  Business name/disregarded entity name, if different from above

 

                        
    3  Check appropriate box for federal tax classification of the person whose name is entered on line 1. Check only one of the following seven boxes.    

4 Exemptions (codes apply only to certain entities, not individuals; see instructions on page 3):

Exempt payee code (if any)                

Exemption from FATCA reporting

code (if any)                                        

(Applies to accounts maintained outside the U.S.)

   

  Individual/sole proprietor or

single-member LLC

 

 

 

C Corporation

 

 

 

 

S Corporation

 

 

 

 

Partnership    

 

 

 

 

Trust/estate

 

 
     

 

  Limited liability company. Enter the tax classification (C=C corporation, S=S corporation, P=partnership)   u              

Note. Check the appropriate box in the line above for the tax classification of the single-member owner. Do not check LLC if
the LLC is classified as a single-member LLC that is disregarded from the owner unless the owner of the LLC is another LLC
that is not disregarded from the owner for U.S. federal tax purposes. Otherwise, a single-member LLC that is disregarded
from the owner should check the appropriate box for the tax classification of its owner.

 

  Other (see instructions)  u

    
     

 

5  Address (number, street, and apt. or suite no.) See instructions.

 

           

 

    Requester’s name and address (optional)        

       

 

6  City, state, and ZIP code

 

            
       

 

7  List account number(s) here (optional)

 

              
  Part I      Taxpayer Identification Number (TIN)

Enter your TIN in the appropriate box. The TIN provided must match the name given on line 1 to avoid backup withholding. For individuals, this is generally your social security number (SSN). However, for a resident alien, sole proprietor, or disregarded entity, see the instructions for Part I, later. For other entities, it is your employer identification number (EIN). If you do not have a number, see How to get a TIN, later.

 

Note: If the account is in more than one name, see the instructions for line 1. Also see What Name and Number To Give the Requester for guidelines on whose number to enter.

   

Social security number

                  -           -                
    or                    
 

Employer identification number

 
              -                              
  Part II      Certification

Under penalties of perjury, I certify that:

 

1.   The number shown on this form is my correct taxpayer identification number (or I am waiting for a number to be issued to me); and

 

2.   I am not subject to backup withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to backup withholding; and

 

3.   I am a U.S. citizen or other U.S. person (defined below); and

 

4.   The FATCA code(s) entered on this form (if any) indicating that I am exempt from FATCA reporting is correct.

Certification instructions. You must cross out item 2 above if you have been notified by the IRS that you are currently subject to backup withholding because you have failed to report all interest and dividends on your tax return. For real estate transactions, item 2 does not apply. For mortgage interest paid, acquisition or abandonment of secured property, cancellation of debt, contributions to an individual retirement arrangement (IRA), and generally, payments other than interest and dividends, you are not required to sign the certification, but you must provide your correct TIN. See the instructions for Part II, later.

 

Sign
Here
   Signature of
U.S. person  
u
     Date  u

General Instructions

Section references are to the Internal Revenue Code unless otherwise noted.

Future developments. For the latest information about developments related to Form W-9 and its instructions, such as legislation enacted after they were published, go to www.irs.gov/FormW9.

Purpose of Form

An individual or entity (Form W-9 requester) who is required to file an information return with the IRS must obtain your correct taxpayer identification number (TIN) which may be your social security number (SSN), individual taxpayer identification number (ITIN), adoption taxpayer identification number (ATIN), or employer identification number (EIN), to report on an information return the amount paid to you, or other amount reportable on an information return. Examples of information returns include, but are not limited to, the following.

 

 

Form 1099-INT (interest earned or paid)

 

 

Form 1099-DIV (dividends, including those from stocks or mutual funds)

 

 

Form 1099-MISC (various types of income, prizes, awards, or gross proceeds)

 

 

Form 1099-B (stock or mutual fund sales and certain other transactions by brokers)

 

 

Form 1099-S (proceeds from real estate transactions)

 

 

Form 1099-K (merchant card and third party network transactions)

 

 

Form 1098 (home mortgage interest), 1098-E (student loan interest), 1098-T (tuition)

 

 

Form 1099-C (canceled debt)

 

 

Form 1099-A (acquisition or abandonment of secured property)

Use Form W-9 only if you are a U.S. person (including a resident alien), to provide your correct TIN.

If you do not return Form W-9 to the requester with a TIN, you might be subject to backup withholding. See What is backup withholding, later.

 

 

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Form W-9 (Rev. 10-2018)       Page 2

 

By signing the filled-out form, you:

1. Certify that the TIN you are giving is correct (or you are waiting for a number to be issued),

2. Certify that you are not subject to backup withholding, or

3. Claim exemption from backup withholding if you are a U.S. exempt payee. If applicable, you are also certifying that as a U.S. person, your allocable share of any partnership income from a U.S. trade or business is not subject to the withholding tax on foreign partners’ share of effectively connected income, and

4. Certify that FATCA code(s) entered on this form (if any) indicating that you are exempt from the FATCA reporting, is correct. See What is FATCA reporting, later, for further information.

Note: If you are a U.S. person and a requester gives you a form other than Form W-9 to request your TIN, you must use the requester’s form if it is substantially similar to this Form W-9.

Definition of a U.S. person. For federal tax purposes, you are considered a U.S. person if you are:

• An individual who is a U.S. citizen or U.S. resident alien;

• A partnership, corporation, company, or association created or organized in the United States or under the laws of the United States;

• An estate (other than a foreign estate); or

• A domestic trust (as defined in Regulations section 301.7701-7).

Special rules for partnerships. Partnerships that conduct a trade or business in the United States are generally required to pay a withholding tax under section 1446 on any foreign partners’ share of effectively connected taxable income from such business. Further, in certain cases where a Form W-9 has not been received, the rules under section 1446 require a partnership to presume that a partner is a foreign person, and pay the section 1446 withholding tax. Therefore, if you are a U.S. person that is a partner in a partnership conducting a trade or business in the United States, provide Form W-9 to the partnership to establish your U.S. status and avoid section 1446 withholding on your share of partnership income.

In the cases below, the following person must give Form W-9 to the partnership for purposes of establishing its U.S. status and avoiding withholding on its allocable share of net income from the partnership conducting a trade or business in the United States.

• In the case of a disregarded entity with a U.S. owner, the U.S. owner of the disregarded entity and not the entity;

• In the case of a grantor trust with a U.S. grantor or other U.S. owner, generally, the U.S. grantor or other U.S. owner of the grantor trust and not the trust; and

• In the case of a U.S. trust (other than a grantor trust), the U.S. trust (other than a grantor trust) and not the beneficiaries of the trust.

Foreign person. If you are a foreign person or the U.S. branch of a foreign bank that has elected to be treated as a U.S. person, do not use Form W-9. Instead, use the appropriate Form W-8 or Form 8233 (see Pub. 515, Withholding of Tax on Nonresident Aliens and Foreign Entities).

Nonresident alien who becomes a resident alien. Generally, only a nonresident alien individual may use the terms of a tax treaty to reduce or eliminate U.S. tax on certain types of income. However, most tax treaties contain a provision known as a “saving clause.” Exceptions specified in the saving clause may permit an exemption from tax to continue for certain types of income even after the payee has otherwise become a U.S. resident alien for tax purposes.

If you are a U.S. resident alien who is relying on an exception contained in the saving clause of a tax treaty to claim an exemption from U.S. tax on certain types of income, you must attach a statement to Form W-9 that specifies the following five items.

1. The treaty country. Generally, this must be the same treaty under which you claimed exemption from tax as a nonresident alien.

2. The treaty article addressing the income.

3. The article number (or location) in the tax treaty that contains the saving clause and its exceptions.

4. The type and amount of income that qualifies for the exemption from tax.

5. Sufficient facts to justify the exemption from tax under the terms of the treaty article.

Example. Article 20 of the U.S.-China income tax treaty allows an exemption from tax for scholarship income received by a Chinese student temporarily present in the United States. Under U.S. law, this student will become a resident alien for tax purposes if his or her stay in the United States exceeds 5 calendar years. However, paragraph 2 of the first Protocol to the U.S.-China treaty (dated April 30, 1984) allows the provisions of Article 20 to continue to apply even after the Chinese student becomes a resident alien of the United States. A Chinese student who qualifies for this exception (under paragraph 2 of the first protocol) and is relying on this exception to claim an exemption from tax on his or her scholarship or fellowship income would attach to Form W-9 a statement that includes the information described above to support that exemption.

If you are a nonresident alien or a foreign entity, give the requester the appropriate completed Form W-8 or Form 8233.

Backup Withholding

What is backup withholding? Persons making certain payments to you must under certain conditions withhold and pay to the IRS 24% of such payments. This is called “backup withholding.” Payments that may be subject to backup withholding include interest, tax-exempt interest, dividends, broker and barter exchange transactions, rents, royalties, nonemployee pay, payments made in settlement of payment card and third party network transactions, and certain payments from fishing boat operators. Real estate transactions are not subject to backup withholding.

You will not be subject to backup withholding on payments you receive if you give the requester your correct TIN, make the proper certifications, and report all your taxable interest and dividends on your tax return.

Payments you receive will be subject to backup withholding if:

1. You do not furnish your TIN to the requester,

2. You do not certify your TIN when required (see the instructions for Part II for details),

3. The IRS tells the requester that you furnished an incorrect TIN,

4. The IRS tells you that you are subject to backup withholding because you did not report all your interest and dividends on your tax return (for reportable interest and dividends only), or

5. You do not certify to the requester that you are not subject to backup withholding under 4 above (for reportable interest and dividend accounts opened after 1983 only).

Certain payees and payments are exempt from backup withholding. See Exempt payee code, later, and the separate Instructions for the Requester of Form W-9 for more information.

Also see Special rules for partnerships, earlier.

What is FATCA Reporting?

The Foreign Account Tax Compliance Act (FATCA) requires a participating foreign financial institution to report all United States account holders that are specified United States persons. Certain payees are exempt from FATCA reporting. See Exemption from FATCA reporting code, later, and the Instructions for the Requester of Form W-9 for more information.

Updating Your Information

You must provide updated information to any person to whom you claimed to be an exempt payee if you are no longer an exempt payee and anticipate receiving reportable payments in the future from this person. For example, you may need to provide updated information if you are a C corporation that elects to be an S corporation, or if you no longer are tax exempt. In addition, you must furnish a new Form W-9 if the name or TIN changes for the account; for example, if the grantor of a grantor trust dies.

 

 

   Cat. No. 10231X    Form W-9 (Rev. 10-2018)


 

Form W-9 (Rev. 10-2018)       Page 3

 

Penalties

Failure to furnish TIN. If you fail to furnish your correct TIN to a requester, you are subject to a penalty of $50 for each such failure unless your failure is due to reasonable cause and not to willful neglect.

Civil penalty for false information with respect to withholding. If you make a false statement with no reasonable basis that results in no backup withholding, you are subject to a $500 penalty.

Criminal penalty for falsifying information. Willfully falsifying certifications or affirmations may subject you to criminal penalties including fines and/or imprisonment.

Misuse of TINs. If the requester discloses or uses TINs in violation of federal law, the requester may be subject to civil and criminal penalties.

Specific Instructions

Line 1

You must enter one of the following on this line; do not leave this line blank. The name should match the name on your tax return.

If this Form W-9 is for a joint account (other than an account maintained by a foreign financial institution (FFI)), list first, and then circle, the name of the person or entity whose number you entered in Part I of Form W-9. If you are providing Form W-9 to an FFI to document a joint account, each holder of the account that is a U.S. person must provide a Form W-9.

a. Individual. Generally, enter the name shown on your tax return. If you have changed your last name without informing the Social Security Administration (SSA) of the name change, enter your first name, the last name as shown on your social security card, and your new last name.

Note: ITIN applicant: Enter your individual name as it was entered on your Form W-7 application, line 1a. This should also be the same as the name you entered on the Form 1040/1040A/1040EZ you filed with your application.

b. Sole proprietor or single-member LLC. Enter your individual name as shown on your 1040/1040A/1040EZ on line 1. You may enter your business, trade, or “doing business as” (DBA) name on line 2.

c. Partnership, LLC that is not a single-member LLC, C corporation, or S corporation. Enter the entity’s name as shown on the entity’s tax return on line 1 and any business, trade, or DBA name on line 2.

d. Other entities. Enter your name as shown on required U.S. federal tax documents on line 1. This name should match the name shown on the charter or other legal document creating the entity. You may enter any business, trade, or DBA name on line 2.

e. Disregarded entity. For U.S. federal tax purposes, an entity that is disregarded as an entity separate from its owner is treated as a “disregarded entity.” See Regulations section 301.7701-2(c)(2)(iii). Enter the owner’s name on line 1. The name of the entity entered on line 1 should never be a disregarded entity. The name on line 1 should be the name shown on the income tax return on which the income should be reported. For example, if a foreign LLC that is treated as a disregarded entity for U.S. federal tax purposes has a single owner that is a U.S. person, the U.S. owner’s name is required to be provided on line 1. If the direct owner of the entity is also a disregarded entity, enter the first owner that is not disregarded for federal tax purposes. Enter the disregarded entity’s name on line 2, “Business name/disregarded entity name.” If the owner of the disregarded entity is a foreign person, the owner must complete an appropriate Form W-8 instead of a Form W-9. This is the case even if the foreign person has a U.S. TIN.

Line 2

If you have a business name, trade name, DBA name, or disregarded entity name, you may enter it on line 2.

Line 3

Check the appropriate box on line 3 for the U.S. federal tax classification of the person whose name is entered on line 1. Check only one box on line 3.

 

IF the entity/person on line 1 is a(n) . . .   THEN check the box for . . .
Corporation  

Corporation

 

• Individual

• Sole proprietorship, or

• Single-member limited liability company (LLC) owned by an individual and disregarded for U.S. federal tax purposes.

 

Individual/sole proprietor or single-member LLC

 

• LLC treated as a partnership for U.S. federal tax purposes,

• LLC that has filed Form 8832 or 2553 to be taxed as a corporation, or

• LLC that is disregarded as an entity separate from its owner but the owner is another LLC that is not disregarded for U.S. federal tax purposes.

  Limited liability company and enter the appropriate tax classification. (P= Partnership; C= C corporation; or S= S corporation)

• Partnership

 

  Partnership

• Trust/estate

 

  Trust/estate

Line 4, Exemptions

If you are exempt from backup withholding and/or FATCA reporting, enter in the appropriate space on line 4 any code(s) that may apply to you.

Exempt payee code.

•  Generally, individuals (including sole proprietors) are not exempt from backup withholding.

•  Except as provided below, corporations are exempt from backup withholding for certain payments, including interest and dividends.

•  Corporations are not exempt from backup withholding for payments made in settlement of payment card or third party network transactions.

•  Corporations are not exempt from backup withholding with respect to attorneys’ fees or gross proceeds paid to attorneys, and corporations that provide medical or health care services are not exempt with respect to payments reportable on Form 1099-MISC.

The following codes identify payees that are exempt from backup withholding. Enter the appropriate code in the space in line 4.

1—An organization exempt from tax under section 501(a), any IRA, or a custodial account under section 403(b)(7) if the account satisfies the requirements of section 401(f)(2)

2—The United States or any of its agencies or instrumentalities

3—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities

4—A foreign government or any of its political subdivisions, agencies, or instrumentalities

5—A corporation

6—A dealer in securities or commodities required to register in the United States, the District of Columbia, or a U.S. commonwealth or possession

7—A futures commission merchant registered with the Commodity Futures Trading Commission

8—A real estate investment trust

9—An entity registered at all times during the tax year under the Investment Company Act of 1940

 

 

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Form W-9 (Rev. 10-2018)       Page 4

 

10—A common trust fund operated by a bank under section 584(a)

11—A financial institution

12—A middleman known in the investment community as a nominee or custodian

13—A trust exempt from tax under section 664 or described in section 4947

The following chart shows types of payments that may be exempt from backup withholding. The chart applies to the exempt payees listed above, 1 through 13.

 

IF the payment is for . . .  

THEN the payment is exempt

for . . .

Interest and dividend payments  

All exempt payees except for 7

 

Broker transactions  

Exempt payees 1 through 4 and 6 through 11 and all C corporations. S corporations must not enter an exempt payee code because they are exempt only for sales of noncovered securities acquired prior to 2012.

 

Barter exchange transactions and patronage dividends   Exempt payees 1 through 4

Payments over $600 required to be reported and direct sales over $5,0001

 

  Generally, exempt payees 1 through 52

Payments made in settlement of payment card or third party network transactions

 

  Exempt payees 1 through 4

1 See Form 1099-MISC, Miscellaneous Income, and its instructions.

2 However, the following payments made to a corporation and reportable on Form 1099-MISC are not exempt from backup withholding: medical and health care payments, attorneys’ fees, gross proceeds paid to an attorney reportable under section 6045(f), and payments for services paid by a federal executive agency.

Exemption from FATCA reporting code. The following codes identify payees that are exempt from reporting under FATCA. These codes apply to persons submitting this form for accounts maintained outside of the United States by certain foreign financial institutions. Therefore, if you are only submitting this form for an account you hold in the United States, you may leave this field blank. Consult with the person requesting this form if you are uncertain if the financial institution is subject to these requirements. A requester may indicate that a code is not required by providing you with a Form W-9 with “Not Applicable” (or any similar indication) written or printed on the line for a FATCA exemption code.

A—An organization exempt from tax under section 501(a) or any individual retirement plan as defined in section 7701(a)(37)

B—The United States or any of its agencies or instrumentalities

C—A state, the District of Columbia, a U.S. commonwealth or possession, or any of their political subdivisions or instrumentalities

D—A corporation the stock of which is regularly traded on one or more established securities markets, as described in Regulations section 1.1472-1(c)(1)(i)

E—A corporation that is a member of the same expanded affiliated group as a corporation described in Regulations section 1.1472-1(c)(1)(i)

F—A dealer in securities, commodities, or derivative financial instruments (including notional principal contracts, futures, forwards, and options) that is registered as such under the laws of the United States or any state

G—A real estate investment trust

H—A regulated investment company as defined in section 851 or an entity registered at all times during the tax year under the Investment Company Act of 1940

I—A common trust fund as defined in section 584(a)

J—A bank as defined in section 581

K—A broker

L—A trust exempt from tax under section 664 or described in section 4947(a)(1)

M—A tax exempt trust under a section 403(b) plan or section 457(g) plan

Note: You may wish to consult with the financial institution requesting this form to determine whether the FATCA code and/or exempt payee code should be completed.

Line 5

Enter your address (number, street, and apartment or suite number).

This is where the requester of this Form W-9 will mail your information returns. If this address differs from the one the requester already has on file, write NEW at the top. If a new address is provided, there is still a chance the old address will be used until the payor changes your address in their records.

Line 6

Enter your city, state, and ZIP code.

Part I. Taxpayer Identification Number (TIN)

Enter your TIN in the appropriate box. If you are a resident alien and you do not have and are not eligible to get an SSN, your TIN is your IRS individual taxpayer identification number (ITIN). Enter it in the social security number box. If you do not have an ITIN, see How to get a TIN below.

If you are a sole proprietor and you have an EIN, you may enter either your SSN or EIN.

If you are a single-member LLC that is disregarded as an entity separate from its owner, enter the owner’s SSN (or EIN, if the owner has one). Do not enter the disregarded entity’s EIN. If the LLC is classified as a corporation or partnership, enter the entity’s EIN.

Note: See What Name and Number To Give the Requester, later, for further clarification of name and TIN combinations.

How to get a TIN. If you do not have a TIN, apply for one immediately. To apply for an SSN, get Form SS-5, Application for a Social Security Card, from your local SSA office or get this form online at www.SSA.gov. You may also get this form by calling 1-800-772-1213. Use Form W-7, Application for IRS Individual Taxpayer Identification Number, to apply

 

 

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Form W-9 (Rev. 10-2018)       Page 5

 

for an ITIN, or Form SS-4, Application for Employer Identification Number, to apply for an EIN. You can apply for an EIN online by accessing the IRS website at www.irs.gov/Businesses and clicking on Employer Identification Number (EIN) under Starting a Business. Go to www.irs.gov/Forms to view, download, or print Form W-7 and/or Form SS-4. Or, you can go to www.irs.gov/OrderForms to place an order and have Form W-7 and/or SS-4 mailed to you within 10 business days.

If you are asked to complete Form W-9 but do not have a TIN, apply for a TIN and write “Applied For” in the space for the TIN, sign and date the form, and give it to the requester. For interest and dividend payments, and certain payments made with respect to readily tradable instruments, generally you will have 60 days to get a TIN and give it to the requester before you are subject to backup withholding on payments. The 60-day rule does not apply to other types of payments. You will be subject to backup withholding on all such payments until you provide your TIN to the requester.

Note: Entering “Applied For” means that you have already applied for a TIN or that you intend to apply for one soon.

Caution: A disregarded U.S. entity that has a foreign owner must use the appropriate Form W-8.

Part II. Certification

To establish to the withholding agent that you are a U.S. person, or resident alien, sign Form W-9. You may be requested to sign by the withholding agent even if item 1, 4, or 5 below indicates otherwise.

For a joint account, only the person whose TIN is shown in Part I should sign (when required). In the case of a disregarded entity, the person identified on line 1 must sign. Exempt payees, see Exempt payee code, earlier.

Signature requirements. Complete the certification as indicated in items 1 through 5 below.

1. Interest, dividend, and barter exchange accounts opened before 1984 and broker accounts considered active during 1983. You must give your correct TIN, but you do not have to sign the certification.

2. Interest, dividend, broker, and barter exchange accounts opened after 1983 and broker accounts considered inactive during 1983. You must sign the certification or backup withholding will apply. If you are subject to backup withholding and you are merely providing your correct TIN to the requester, you must cross out item 2 in the certification before signing the form.

3. Real estate transactions. You must sign the certification. You may cross out item 2 of the certification.

4. Other payments. You must give your correct TIN, but you do not have to sign the certification unless you have been notified that you have previously given an incorrect TIN. “Other payments” include payments made in the course of the requester’s trade or business for rents, royalties, goods (other than bills for merchandise), medical and health care services (including payments to corporations), payments to a nonemployee for services, payments made in settlement of payment card and third party network transactions, payments to certain fishing boat crew members and fishermen, and gross proceeds paid to attorneys (including payments to corporations).

5. Mortgage interest paid by you, acquisition or abandonment of secured property, cancellation of debt, qualified tuition program payments (under section 529), ABLE accounts (under section 529A), IRA, Coverdell ESA, Archer MSA or HSA contributions or distributions, and pension distributions. You must give your correct TIN, but you do not have to sign the certification.

What Name and Number To Give the Requester

 

       
      For this type of account:    Give name and SSN of:     
  

1.  Individual

   The individual  
  

2.  Two or more individuals (joint account) other than an account maintained by an FFI

   The actual owner of the account or, if combined funds, the first individual on the account1  
  

3.  Two or more U.S. persons (joint account maintained by an FFI)

   Each holder of the account  
  

4.  Custodialaccount of a minor (Uniform Gift to Minors Act)

   The minor2  
       
      For this type of account:    Give name and SSN of:     
  

5.  a. The usual revocable savings trust (grantor is also trustee)

   The grantor-trustee1  
     b. So-called trust account that is not a legal or valid trust under state law    The actual owner1    
  

6.  Sole proprietorship or disregarded entity owned by an individual

   The owner3  
  

7.  Grantortrust filing under Optional Form 1099 Filing Method 1 (see Regulations section 1.671-4(b)(2)(i)(A))

   The grantor*  
       
      For this type of account:    Give name and EIN of:     
  

8.  Disregarded entity not owned by an individual

   The owner  
  

9.  A valid trust, estate, or pension trust

   Legal entity4  
  

10. Corporation or LLC electing corporate status on Form 8832 or Form 2553

   The corporation  
  

11. Association, club, religious, charitable, educational, or other tax- exempt organization

   The organization  
  

12. Partnership or multi-member LLC

   The partnership  
  

13. A broker or registered nominee

   The broker or nominee  
  

14. Account with the Department of Agriculture in the name of a public entity (such as s stale or local government, school district, or prison) that receives agricultural program payments

   The public entity  
    

15. Grantor trust filing under the Form 1041 Filing Method or the Optional Form 1099 Filing Method 2 (see Regulations section 1.671-4(b)(2)(i)(B))

   The trust    

1 List first and circle the name of the person whose number you furnish. If only one person on a joint account has an SSN, that person’s number must be furnished.

2 Circle the minor’s name and furnish the minor’s SSN.

3 You must show your individual name and you may also enter your business or DBA name on the “Business name/disregarded entity” name line. You may use either your SSN or EIN (if you have one), but the IRS encourages you to use your SSN.

 

 

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Form W-9 (Rev. 10-2018)       Page 6

 

4 List first and circle the name of the trust, estate, or pension trust. (Do not furnish the TIN of the personal representative or trustee unless the legal entity itself is not designated in the account title.) Also see Special rules for partnerships, earlier.

*Note: The grantor also must provide a Form W-9 to trustee of trust.

Note: If no name is circled when more than one name is listed, the number will be considered to be that of the first name listed.

Secure Your Tax Records From Identity Theft

Identity theft occurs when someone uses your personal information such as your name, SSN, or other identifying information, without your permission, to commit fraud or other crimes. An identity thief may use your SSN to get a job or may file a tax return using your SSN to receive a refund.

To reduce your risk:

• Protect your SSN,

• Ensure your employer is protecting your SSN, and

• Be careful when choosing a tax preparer.

If your tax records are affected by identity theft and you receive a notice from the IRS, respond right away to the name and phone number printed on the IRS notice or letter.

If your tax records are not currently affected by identity theft but you think you are at risk due to a lost or stolen purse or wallet, questionable credit card activity or credit report, contact the IRS Identity Theft Hotline at 1-800-908-4490 or submit Form 14039.

For more information, see Pub. 5027, Identity Theft Information for Taxpayers.

Victims of identity theft who are experiencing economic harm or a systemic problem, or are seeking help in resolving tax problems that have not been resolved through normal channels, may be eligible for Taxpayer Advocate Service (TAS) assistance. You can reach TAS by calling the TAS toll-free case intake line at 1-877-777-4778 or TTY/TDD 1-800-829-4059.

Protect yourself from suspicious emails or phishing schemes.

Phishing is the creation and use of email and websites designed to mimic legitimate business emails and websites. The most common act is sending an email to a user falsely claiming to be an established legitimate enterprise in an attempt to scam the user into surrendering private information that will be used for identity theft.

The IRS does not initiate contacts with taxpayers via emails. Also, the IRS does not request personal detailed information through email or ask taxpayers for the PIN numbers, passwords, or similar secret access information for their credit card, bank, or other financial accounts.

If you receive an unsolicited email claiming to be from the IRS, forward this message to phishing@irs.gov. You may also report misuse of the IRS name, logo, or other IRS property to the Treasury Inspector General for Tax Administration (TIGTA) at 1-800-366-4484. You can forward suspicious emails to the Federal Trade Commission at spam@uce.gov or report them at www.ftc.gov/complaint. You can contact the FTC at www.ftc.gov/idtheft or 877-IDTHEFT (877-438-4338). If you have been the victim of identity theft, see www.IdentityTheft.gov and Pub. 5027.

Visit www.irs.gov/IdentityTheft to learn more about identity theft and how to reduce your risk.

Privacy Act Notice

Section 6109 of the Internal Revenue Code requires you to provide your correct TIN to persons (including federal agencies) who are required to file information returns with the IRS to report interest, dividends, or certain other income paid to you; mortgage interest you paid; the acquisition or abandonment of secured property; the cancellation of debt; or contributions you made to an IRA, Archer MSA, or HSA. The person collecting this form uses the information on the form to file information returns with the IRS, reporting the above information. Routine uses of this information include giving it to the Department of Justice for civil and criminal litigation and to cities, states, the District of Columbia, and U.S. commonwealths and possessions for use in administering their laws. The information also may be disclosed to other countries under a treaty, to federal and state agencies to enforce civil and criminal laws, or to federal law enforcement and intelligence agencies to combat terrorism. You must provide your TIN whether or not you are required to file a tax return. Under section 3406, payers must generally withhold a percentage of taxable interest, dividend, and certain other payments to a payee who does not give a TIN to the payer. Certain penalties may also apply for providing false or fraudulent information.

 

 

 

   Cat. No. 10231X    Form W-9 (Rev. 10-2018)


                        

The Depositary for the Offer to Purchase is:

 

LOGO

 

If delivering by hand, express mail, courier,

or other expedited service:

   By mail:

American Stock Transfer & Trust Co., LLC

Operations Center

Attn: Reorganization Department

6201 15th Avenue

Brooklyn, New York 11219

  

American Stock Transfer & Trust Co., LLC

Operations Center

Attn: Reorganization Department

6201 15th Avenue

Brooklyn, New York 11219

DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.

Any questions or requests for assistance may be directed to the Information Agent at its telephone number and location listed below. Requests for additional copies of this Offer to Purchase and the Letter of Transmittal may be directed either to the Information Agent at its telephone number and location listed above. You may also contact your broker, dealer, commercial bank or trust company or other nominee for assistance concerning the Offer.

The Information Agent for the Offer is:

MacKenzie Partners, Inc.

1407 Broadway, 27th Floor

New York, NY 10018

(212) 929-5550

OR

Call Toll-Free: (800) 322-2885

Email address: tenderoffer@mackenziepartners.com

Exhibit (a)(1)(C)


NOTICE OF GUARANTEED DELIVERY

To Tender Shares of Common Stock and Class A Common Stock

of

DOVER MOTORSPORTS, INC.

at

$3.61 NET PER SHARE IN CASH

Pursuant to the Offer to Purchase dated November 23, 2021

by

SPEEDCO II, INC.

a subsidiary

of

SPEEDWAY MOTORSPORTS, LLC

a subsidiary

of

SONIC FINANCIAL CORPORATION

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE FOLLOWING 11:59 P.M. (12:00 MIDNIGHT), NEW YORK

CITY TIME, ON TUESDAY, DECEMBER 21, 2021, UNLESS THE OFFER IS EXTENDED OR TERMINATED EARLIER.

This Notice of Guaranteed Delivery, or one substantially in the form hereof, must be used to accept the Offer (as defined below) if (i) certificates representing shares of (A) common stock, par value $0.10 per share (the “Common Stock”), and (B) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”), of Dover Motorsports, Inc., a Delaware corporation (“Dover”), are not immediately available, (ii) the procedure for book-entry transfer cannot be completed on a timely basis or (iii) time will not permit all required documents to reach American Stock Transfer & Trust Company, LLC (the “Depositary”) prior to the expiration of the Offer. This Notice of Guaranteed Delivery may be delivered by mail or overnight courier to the Depositary and must include a Guarantee by an Eligible Institution (as defined in Section 3 of the Offer to Purchase). See Section 3 of the Offer to Purchase.

The Depositary for the Offer is:

 

LOGO

 

If delivering by mail:   

If delivering by hand, express mail, courier, or other

expedited service:

American Stock Transfer & Trust Company, LLC

Operations Center

Attn: Reorganization Department

P.O. Box 2042

New York, New York 10272-2042

  

American Stock Transfer & Trust Company,

LLC

Operations Center

Attn: Reorganization Department

6201 15th Avenue

Brooklyn, New York 11219

DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS SET FORTH ABOVE, WILL NOT CONSTITUTE A VALID DELIVERY TO THE DEPOSITARY.

THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE GUARANTEED BY AN “ELIGIBLE INSTITUTION” UNDER THE INSTRUCTIONS THERETO, SUCH SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED IN THE SIGNATURE BOX ON THE APPROPRIATE LETTER OF TRANSMITTAL.


The Eligible Institution that completes this form must communicate the guarantee to the Depositary and must deliver the Letter of Transmittal or an Agent’s Message (as defined in Section 2 of the Offer to Purchase) and certificates for Shares to the Depositary within the time period shown herein. Failure to do so could result in a financial loss to such Eligible Institution.

Ladies and Gentlemen:

Pursuant to the guaranteed delivery procedures set forth in Section 3 of the Offer to Purchase, the undersigned hereby tenders to Speedco II, Inc. (“Purchaser”), a Delaware corporation, and a wholly owned subsidiary of Speedway Motorsports, Inc. (“Speedway”), a Delaware limited liability company, which is indirectly owned by Sonic Financial Corporation, a North Carolina corporation, and the indirect and ultimate parent of Purchaser and Speedway, the number of shares of (i) common stock, par value $0.10 per share (the “Common Stock”), (ii) the class A common Stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc., a Delaware corporation, specified below, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 23, 2021, and in the related Letter of Transmittal and other related materials (which, together with the Offer to Purchase, as they may be amended or supplemented from time to time, collectively constitute the “Offer”). The undersigned hereby acknowledges receipt of the Letter of Transmittal.

 

Name(s) of Record Holder(s):

  

 

Number of Shares Tendered:

  

 

Certificate Number(s) (if available):

  

 

   (Please type or print)

Address(es):

  

 

  

 

   (Zip Code)

Name of Tendering Institution:

  

 

Area Code and Telephone No.(s):

  

 

  

 

        ☐ Check if delivery will be by book-entry transfer

Signature(s):

  

 

DTC Account No.:

  

 

Transaction Code No.:

  

 

Dated:                 , 2021

  


GUARANTEE

(Not to be used for signature guarantee)

The undersigned, an Eligible Institution (as defined in Section 3 of the Offer to Purchase), hereby (i) represents that the above-named person(s) “own(s)” the Shares tendered hereby within the meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended (“Rule 14e-4”), (ii) represents that the tender of Shares effected hereby complies with Rule 14e-4, and (iii) guarantees delivery to the Depositary, at one of its addresses set forth above, of certificates representing the Shares tendered hereby, in proper form for transfer, or a confirmation of a book-entry transfer of such Shares into the Depositary’s account at The Depository Trust Company, in either case together with a properly completed and duly executed Letter of Transmittal (or facsimile thereof) or, in the case of a book-entry transfer, an Agent’s Message (as defined in Section 2 of the Offer to Purchase), together with any other documents required by the Letter of Transmittal, all within two (2) New York Stock Exchange trading days after the date hereof.

 

Name of Firm

 

 

 

Address

 

 

 

Zip Code

 

 

Area Code and Telephone No.

 

 

 

Authorized Signature

 

 

 

Name (Please Print or Type)

 

 

Title

 

 

 

Date: , 2021

 

NOTE: DO NOT SEND CERTIFICATES FOR SHARES WITH THIS NOTICE.
CERTIFICATES SHOULD BE SENT WITH YOUR LETTER OF TRANSMITTAL.

 

 

3

Exhibit (a)(1)(D)


Offer To Purchase For Cash

All Outstanding Shares of Common Stock,

and Class A Common Stock of

DOVER MOTORSPORTS, INC.

at

$3.61 Net Per Share

Pursuant to the Offer to Purchase dated November 23, 2021

by

SPEEDCO II, INC.,

a wholly-owned subsidiary of

SPEEDWAY MOTORSPORTS, LLC

 

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE

FOLLOWING 11:59 P.M. (12:00 MIDNIGHT), NEW YORK CITY TIME ON TUESDAY, DECEMBER 21, 2021, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

 

November 23, 2021

To Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees:

We have been engaged by Speedco II, Inc. (the “Purchaser”), a Delaware corporation and a wholly-owned subsidiary of Speedway Motorsports, LLC. (“Speedway”), a Delaware limited liability company to act as the Information Agent in connection with the Purchaser’s offer to purchase all of the issued and outstanding shares of common stock, par value $0.10 per share (the “Common Stock”), and class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”) of Dover Motorsports, Inc. (“Dover”), a Delaware corporation, at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the offer to purchase, dated November 23, 2021 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which Offer to Purchase and Letter of Transmittal are enclosed herewith and collectively constitute the “Offer.” Please furnish copies of the enclosed materials to those of your clients for whom you hold Shares registered in your name or in the name of your nominee.

 

 

THE BOARD OF DIRECTORS OF DOVER UNANIMOUSLY RECOMMENDS THAT STOCKHOLDERS TENDER ALL OF THEIR SHARES INTO THE OFFER.

 

The Offer is not subject to any financing condition. The conditions of the Offer are described in Section 15 of the Offer to Purchase.

For your information and for forwarding to your clients for whom you hold Shares registered in your name or in the name of your nominee, we are enclosing the following documents:

1. The Offer to Purchase;

2. The Letter of Transmittal for your use in accepting the Offer and tendering Shares and for the information of your clients, together with the included Internal Revenue Service Form W-9;

3. A notice of guaranteed delivery to be used to accept the Offer if Shares and all other required documents are not immediately available or cannot be delivered to American Stock Transfer & Trust Company, LLC (the “Depositary”) by the Expiration Date or if the procedure for book-entry transfer cannot be completed by the Expiration Date (the “Notice of Guaranteed Delivery”);

4. A form of letter that may be sent to your clients for whose accounts you hold Shares registered in your name or in the name of your nominee, with space provided for obtaining such clients’ instructions with regard to the Offer; and


5. A return envelope addressed to the Depositary for your use only.

We urge you to contact your clients as soon as possible. Please note that the Offer and withdrawal rights will expire at one minute following 11:59 P.M. (12:00 midnight), New York City Time, on Tuesday, December 21, 2021, unless the Offer is extended or terminated. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021, by and among Speedway, the Purchaser and Dover (as it may be amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”).

Subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, the Purchaser will be merged with and into Dover (the “Merger”), with Dover continuing as the surviving corporation and as a wholly-owned subsidiary of Speedway (the “Surviving Corporation”). The closing of the Merger will occur as soon as practicable and, in any event, no later than the third business day after the conditions set forth in the Merger Agreement are satisfied or waived, unless another date is agreed to by the parties. As soon as practicable following the consummation of the Offer, Purchaser will merge with and into Dover, with Dover surviving as a wholly-owned subsidiary of Speedway, pursuant to the provisions of Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with no stockholder approval required to consummate the Merger.

At the effective time of the Merger (the “Effective Time”), other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser immediately prior to the Merger becoming effective or irrevocably accepted for purchase by Purchaser in the Offer, or (iii) held by Dover’s stockholders who are entitled to and properly demand and who have lost or withdrew their appraisal rights under the DGCL), each Share issued and outstanding immediately prior to the Effective Time will be converted into the right to receive cash in an amount equal to the Offer Price, without interest, subject to any applicable withholding taxes. The treatment of the Company Equity Awards is discussed below in Section 11 – “The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.”

The Board of Directors of Dover has unanimously (i) determined that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Dover enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Offer and the Merger, (iii) approved the execution, delivery and performance by Dover of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger, (iv) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL, and (v) to the extent necessary, take all actions necessary to have the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined in the Merger Agreement) and the transactions contemplated by the Merger Agreement and the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

For Shares to be properly tendered in the Offer, (i) a properly completed and duly executed Letter of Transmittal, including any required signature guarantees, together with any share certificates and any other documents required to be delivered with such Letter of Transmittal, (ii) in the case of book-entry transfer at The Depository Trust Company (“DTC”), an Agent’s Message (as defined in Section 2 of the Offer to Purchase) in lieu of such Letter of Transmittal, and any other documents required, must be timely received by the Depositary or (iii) the tendering stockholder must comply with the guaranteed delivery procedures, all in accordance with the Offer to Purchase and the Letter of Transmittal. You may gain some additional time by making use of the Notice of Guaranteed Delivery.

Neither the Purchaser nor Speedway will pay any fees or commissions to any broker or dealer or to any other person (other than to the Depositary and MacKenzie Partners, Inc. (the “Information Agent”) as described in the Offer to Purchase) in connection with the solicitation of tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies and other nominees will, upon request, be reimbursed by the Purchaser for customary mailing and handling expenses incurred by them in forwarding offering materials to their customers. Purchaser will pay any transfer taxes with respect to the transfer and sale of Shares to it or to its order pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include United States federal income or backup withholding taxes).


Any inquiries you may have with respect to the Offer should be addressed to, and additional copies of the enclosed materials may be obtained from us at our address and telephone number set forth below and on the back cover of the Offer to Purchase. Such copies will be furnished promptly at the Purchaser’s expense. Questions or requests for assistance may also be directed to the Information Agent at the address and telephone number set forth below and on the back cover of the Offer to Purchase.

The Information Agent for the Offer is:

MacKenzie Partners., Inc.

1407 Broadway, 27th Floor

New York, NY 10018

(212) 929-5550

or

Call Toll-Free: (800) 322-2885

Email address: tenderoffer@mackenziepartners.com

NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL RENDER YOU THE AGENT OF THE PURCHASER, SPEEDWAY, DOVER, THE DEPOSITARY, THE INFORMATION AGENT OR ANY AFFILIATE OF ANY OF THEM OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS CONTAINED THEREIN.

Exhibit (a)(1)(E)

Offer To Purchase For Cash

All Outstanding Shares of Common Stock and Class A Common Stock

of

DOVER MOTORSPORTS, INC.

at

$3.61 Net Per Share

Pursuant to the Offer to Purchase dated November 23, 2021

by

SPEEDCO II, INC.

a wholly-owned subsidiary of

SPEEDWAY MOTORSPORTS, LLC

 

 

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE

FOLLOWING 11:59 P.M. (12:00 MIDNIGHT), NEW YORK CITY TIME ON TUESDAY,

DECEMBER 21, 2021, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

November 23, 2021

To our Clients:

Enclosed for your consideration are the offer to purchase, dated November 23, 2021 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which Offer to Purchase and Letter of Transmittal collectively constitute the “Offer.” Speedco II, Inc. (the “Purchaser”), a Delaware corporation and a wholly-owned subsidiary of Speedway Motorsports, LLC. (“Speedway”), a Delaware limited liability company, is offering to purchase all of the issued and outstanding shares of (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”), of Dover Motorsports, Inc. (“Dover”), a Delaware corporation, at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase.

 

 

THE BOARD OF DIRECTORS OF DOVER UNANIMOUSLY

RECOMMENDS THAT YOU TENDER ALL OF YOUR SHARES INTO THE OFFER.

We or our nominees are the holder of record of Shares held for your account. A tender of such Shares can be made only by us as the holder of record and pursuant to your instructions. The Letter of Transmittal accompanying this letter is furnished to you for your information only and cannot be used by you to tender Shares held by us for your account.

We request instructions as to whether you wish us to tender any or all of the Shares held by us for your account, upon the terms and subject to the conditions set forth in the enclosed Offer to Purchase and the Letter of Transmittal.

Please note carefully the following:

1. The Offer Price for your Shares is $3.61 per Share, net to the seller in cash, without interest and subject to any required withholding of taxes.

2. The Offer is being made for all outstanding Shares.

3. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021, by and among Speedway, the Purchaser and Dover (as it may be amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”).


Subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, the Purchaser will be merged with and into Dover (the “Merger”), with Dover continuing as the surviving corporation and as a wholly-owned subsidiary of Speedway (the “Surviving Corporation”). The closing of the Merger will occur as soon as practicable and, in any event, no later than the third business day after the conditions set forth in the Merger Agreement are satisfied or waived, unless another date is agreed to by the parties. As soon as practicable following the consummation of the Offer, Purchaser will merge with and into Dover, with Dover surviving as a wholly-owned subsidiary of Speedway, pursuant to the provisions of Section 251(h) of the General Corporation Law of the State of Delaware (the “DGCL”), with no stockholder approval required to consummate the Merger.

At the effective time of the Merger (the “Effective Time”), other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser immediately prior to the Merger becoming effective or irrevocably accepted for purchase by Purchaser in the Offer, or (iii) held by Dover’s stockholders who are entitled to and properly demand and who have lost or withdrew their appraisal rights under the DGCL), each Share issued and outstanding immediately prior to the Effective Time will be converted into the right to receive cash in an amount equal to the Offer Price, without interest, subject to any applicable withholding taxes. The treatment of the Company Equity Awards is discussed below in Section 11 – “The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.”

4. The Board of Directors of Dover has unanimously (i) determined that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Dover enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Offer and the Merger, (iii) approved the execution, delivery and performance by Dover of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger, (iv) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL, and (v) to the extent necessary, take all actions necessary to have the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined in the Merger Agreement) and the transactions contemplated by the Merger Agreement and the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

5. The Offer and withdrawal rights will expire at one minute following 11:59 P.M. (12:00 midnight), New York Time, on Tuesday, December 21, 2021 (such date and time, the “Expiration Date”), unless (i) the Purchaser extends the period during which the Offer is open pursuant to and in accordance with the terms of the Merger Agreement, in which event the term “Expiration Date” will mean the latest date and time at which the Offer, as so extended by the Purchaser, will expire or (ii) the Merger Agreement has been earlier terminated.

6. The Offer is not subject to any financing condition. The Offer is conditioned upon (i) the number of Shares being validly tendered (and not properly withdrawn) prior to the Expiration Date, together with Shares otherwise owned by Purchaser or its Affiliates (as defined in the Merger Agreement) representing at least one share more than 50% of the aggregate voting power of all issued and outstanding Shares combined (but excluding shares tendered pursuant to guaranteed delivery procedures that have not yet been “received” by the “depositary,” as such terms are defined by Section 251(h)(6) of the DGCL), and (ii) the satisfaction or waiver by the Purchaser of the other conditions and requirements of the Offer described in the Offer to Purchase.

7. Purchaser will pay any transfer taxes with respect to the transfer and sale of Shares to it or to its order pursuant to the Offer (for the avoidance of doubt, transfer taxes do not include United States federal income or backup withholding taxes).

If you wish to have us tender any or all of your Shares, then please so instruct us by completing, executing, detaching and returning to us the Instruction Form on the detachable part hereof. An envelope to return your instructions to us is enclosed. If you authorize tender of your Shares, then all such Shares will be tendered unless otherwise specified on the Instruction Form.


Your prompt action is requested. Your Instruction Form should be forwarded to us in ample time to permit us to submit the tender on your behalf before the Expiration Date.

The Offer is being made to all holders of the Shares. The Purchaser and Speedway are not aware of any jurisdiction in which the making of the Offer or the acceptance thereof would be prohibited by securities, “blue sky” or other valid laws of such jurisdiction. If the Purchaser or Speedway become aware of any U.S. state in which the making of the Offer or the acceptance of Shares pursuant thereto would not be in compliance with an administrative or judicial action taken pursuant to U.S. state statute, either Speedway or Purchaser will make a good faith effort to comply with any such law. If, after such good faith effort, it cannot comply with any such law, the Offer will not be made to (nor will tenders be accepted from or on behalf of) the holders of Shares in such jurisdiction. In any jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.

INSTRUCTION FORM

With Respect to the Offer to Purchase for Cash

All Outstanding Shares of Common Stock and Class A Common Stock

of

DOVER MOTORSPORTS, INC.

at

$3.61 Net Per Share

Pursuant to the Offer to Purchase dated November 23, 2021

by

SPEEDCO II, INC.

a wholly-owned subsidiary of

SPEEDWAY MOTORSPORTS, LLC

The undersigned acknowledge(s) receipt of your letter and the enclosed offer to purchase, dated November 23, 2021 (as it may be amended or supplemented from time to time, the “Offer to Purchase”), and the related letter of transmittal (as it may be amended or supplemented from time to time, the “Letter of Transmittal”), which Offer to Purchase and Letter of Transmittal collectively constitute the “Offer.” Speedco II, Inc. (the “Purchaser”), a Delaware corporation and a wholly-owned subsidiary of Speedway Motorsports, LLC. (“Speedway”), a Delaware limited liability company, is offering to purchase all of the issued and outstanding shares of (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”), of Dover Motorsports, Inc. (“Dover”), a Delaware corporation, at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase. The Offer is being made pursuant to the Agreement and Plan of Merger, dated as November 8, 2021, by and among Speedway, the Purchaser and Dover (as it may be amended, modified or supplemented from time to time in accordance with its terms, the “Merger Agreement”).

The undersigned hereby instruct(s) you to tender to the Purchaser the number of Shares indicated below or, if no number is indicated, all Shares held by you for the account of the undersigned, upon the terms and subject to the conditions set forth in the Offer. The undersigned understands and acknowledges that all questions as to the validity, form and eligibility (including time of receipt) and acceptance for payment of any tender of Shares made on my behalf will be determined by the Purchaser in its sole discretion.

ACCOUNT NUMBER:


NUMBER OF SHARES BEING TENDERED HEREBY: SHARES*

The method of delivery of this Instruction Form is at the election and risk of the tendering stockholder. This Instruction Form should be delivered to us in ample time to permit us to submit the tender on your behalf prior to the Expiration Date (as defined in the Offer to Purchase).

 

*

Unless otherwise indicated, it will be assumed that all Shares held by us for your account are to be tendered.

 

Dated:

(Signature(s))
(Please Print Name(s))
 

Address:

(Include Zip Code)
 

Area Code and Telephone No.:

 

Taxpayer Identification or Social Security No.:

Exhibit (a)(1)(F)

This announcement is neither an offer to purchase nor a solicitation of an offer to sell Shares (as defined below), and the provisions herein are subject in their entirety to the provisions of the Offer (as defined below). The Offer is made solely pursuant to the Offer to Purchase (as defined below), dated November 23, 2021, and the related Letter of Transmittal (as defined below) and any amendments or supplements thereto, and is being made to all holders of Shares. The Offer is not being made to (nor will tenders be accepted from or on behalf of) holders of Shares in any jurisdiction in which the making of the Offer or the acceptance thereof would not be in compliance with the securities, “blue sky” or other applicable laws of such jurisdiction. In those jurisdictions where applicable laws require the Offer to be made by a licensed broker or dealer, the Offer will be deemed to be made on behalf of Purchaser (as defined below) by one or more registered brokers or dealers licensed under the laws of such jurisdiction to be designated by Purchaser.

Notice of

Offer to Purchase for Cash

All Outstanding Shares of Common Stock and Class A Common Stock

of

Dover Motorsports, Inc.

at

$3.61 Net Per Share

by

Speedco II, Inc.,

a wholly owned subsidiary of

Speedway Motorsports, LLC

Speedco II, Inc. (“Purchaser”), a Delaware corporation and a wholly owned subsidiary of Speedway Motorsports, LLC (“Speedway”), a Delaware limited liability company and a subsidiary of Sonic Financial Corporation (“SFC”), a North Carolina corporation, is offering to purchase, subject to the satisfaction or waiver of certain conditions, including the Minimum Condition (as defined below), any and all of the issued and outstanding shares of (i) common stock, par value $0.10 per share (the “Common Stock”), and (ii) Class A common stock, par value $0.10 per share (the “Class A Stock”, and together with the Common Stock, the “Shares”), of Dover Motorsports, Inc., a Delaware corporation (“Dover”), at a price of $3.61 per Share (the “Offer Price”), net to the seller in cash, without interest and subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated November 23, 2021 (the “Offer to Purchase”), and in the related Letter of Transmittal (the “Letter of Transmittal” and which, together with the Offer to Purchase and other related materials, as each may be amended or supplemented from time to time, collectively constitute the “Offer”).

Stockholders of record who tender directly to American Stock Transfer & Trust Co., LLC (the “Depositary”) will not be obligated to pay brokerage fees or commissions or, except as otherwise provided in the Letter of Transmittal, stock transfer taxes with respect to the purchase of Shares by Purchaser pursuant to the Offer. Stockholders who hold their Shares through a broker, dealer, commercial bank, trust company or other nominee should consult such institution as to whether it charges any service fees or commissions.


THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT ONE MINUTE FOLLOWING 11:59 P.M. (12:00 MIDNIGHT), EASTERN TIME, ON TUESDAY, DECEMBER 21, 2021, UNLESS THE OFFER IS EXTENDED OR EARLIER TERMINATED.

The Offer is being made pursuant to the Agreement and Plan of Merger, dated as of November 8, 2021 (as it may be amended from time to time, the “Merger Agreement”), by and among Speedway, Purchaser and Dover. The Merger Agreement provides, among other things, that, as soon as practicable following the consummation of the Offer and subject to the satisfaction or waiver of certain conditions set forth in the Merger Agreement, Purchaser will be merged with and into Dover (the “Merger”) in accordance with Section 251(h) of the General Corporation Law of the State of Delaware (as amended, the “DGCL”), with Dover continuing as the surviving corporation in the Merger and thereby becoming a wholly owned subsidiary of Speedway. Because the Merger will be governed by Section 251(h) of the DGCL, assuming the requirements of Section 251(h) of the DGCL are met, no vote of the stockholders of Dover will be required to adopt the Merger Agreement and consummate the Merger. As a result of the Merger, each Share that is outstanding immediately prior to the time the Merger becomes effective (other than Shares (i) owned by Dover as treasury stock, (ii) owned by Purchaser immediately prior to the Merger becoming effective or irrevocably accepted for purchase by Purchaser in the Offer, or (iii) held by Dover’s stockholders who are entitled and properly demand and do not lose or withdraw their appraisal rights under the DGCL) will be converted automatically into the right to receive $3.61 per Share in cash, without interest and subject to any required withholding of taxes. The treatment of the Company Equity Awards is discussed below in Section 11 – “The Merger Agreement; Other Agreements—Treatment and Payment of Dover’s Equity Awards.” Following the Merger, Dover will cease to be a publicly traded company.

The Offer is not subject to any financing condition. The Offer is conditioned upon, among other things, the satisfaction of the Minimum Condition. The “Minimum Condition” requires that the number of Shares validly tendered in accordance with the terms of the Offer and “received” by the “depositary” (as such terms are defined in Section 251(h)(6) of the DGCL) and not properly withdrawn, together with any Shares owned by Purchaser or its affiliates, equals at least one share more than 50% of the aggregate voting power of all issued and outstanding Shares combined as of one minute following 11:59 p.m. (12:00 midnight), Eastern Time, on Tuesday, December 21, 2021 (the “Expiration Time,” unless Purchaser has extended the period during which the Offer is open in accordance with the terms of the Merger Agreement, in which event “Expiration Time” means the latest time and date at which the Offer, as so extended, will expire). For purposes of determining whether the Minimum Condition has been satisfied, Shares tendered in the Offer pursuant to guaranteed delivery procedures that have not been received prior to the Expiration Time are excluded. The Offer is also subject to other conditions as described in the Offer to Purchase and the Merger Agreement. The conditions to the Offer must be satisfied or waived on or prior to the Expiration Time.

The board of directors of Dover has unanimously (i) determined that the Merger Agreement, the Offer, the Merger and the other transactions contemplated by the Merger Agreement are fair to and in the best interests of Dover and its stockholders, (ii) approved the Merger Agreement and the transactions contemplated thereby and declared it advisable that Dover enter into the Merger Agreement and consummate the transactions contemplated thereby, including the Offer and the Merger, (iii) approved the execution, delivery and performance by Dover of the Merger Agreement and the consummation of the transactions contemplated thereby, including the Offer and the Merger, (iv) resolved that the Merger Agreement and the Merger be governed by and effected under Section 251(h) of the DGCL, and (v) to the extent necessary, take all actions necessary to have the effect of causing the Merger, the Merger Agreement, the Support Agreement (as defined in the Merger Agreement) and the transactions contemplated by the Merger Agreement and the Support Agreement not to be subject to any state takeover law or similar law, rule or regulation that might otherwise apply to the Merger or any such transaction, in each case, on the terms and subject to the conditions of the Merger Agreement.

The Merger Agreement contains provisions governing the circumstances in which the Offer may be extended. Specifically, the Merger Agreement provides that Purchaser will extend the Offer on one or more occasions (i) for the minimum period required by any rule, regulation, interpretation or position of the U.S. Securities and Exchange Commission (the “SEC”), the staff thereof or the New York Stock Exchange (“NYSE”) applicable to the Offer, and (ii) if, at the then-scheduled Expiration Time, any of the Offer Conditions has not been satisfied or


waived, for periods of at least five business days (or such other duration as may be agreed to by Speedway and Dover) per extension in order to permit the satisfaction of such Offer Condition(s), except that if the Minimum Condition is the only Offer Condition that has not been satisfied or waived, Purchaser will not be required to, but may in its sole discretion, extend the Offer for more than one such five business day extension. Purchaser and Speedway will not be required to extend the Offer beyond March 8, 2022 (the “Outside Date”).

If Purchaser extends the Offer, it will inform the Depositary of that fact and will make a public announcement of the extension not later than 9:00 a.m., Eastern Time, on the next business day after the day of the previously scheduled Expiration Time.

Subject to the applicable rules and regulations of the SEC, Purchaser and Speedway expressly reserve the right to increase the Offer Price, waive any Offer condition or modify the terms of the Offer in a manner consistent with the terms of the Merger Agreement, except that, without the prior written consent of the Dover, Purchaser and Speedway are not permitted to (i) reduce the maximum number of Shares sought to be purchased in the Offer, (ii) reduce the Offer Price or change the form of consideration payable in the Offer, (iii) change, modify or waive the Minimum Condition, (iv) impose conditions to the Offer that are in addition to the Offer Conditions, (v) modify or amend any existing Offer Conditions in a manner adverse to the holders of the Shares, (vi) extend or otherwise change the Expiration Time (except as otherwise required or expressly permitted by the terms of the Merger Agreement), (vii) provide for any “subsequent offering period” within the meaning of Rule 14d-11 promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), (viii) otherwise amend, modify or supplement the Offer in any manner adverse to the holders of the Shares or in any manner that materially delays or unreasonably interferes with, hinders or impairs the consummation of the Offer, or (ix) terminate the Offer prior to its scheduled Expiration Time (unless the Merger Agreement is terminated in accordance with its terms).

Upon the terms and subject to the satisfaction, or to the extent permitted, waiver of the conditions of the Offer, Purchaser will, at or as promptly as practicable following the Expiration Time, irrevocably accept for payment all Shares validly tendered and not properly withdrawn prior to the Expiration Time, and Purchaser will pay for all such Shares at or as promptly as practicable (and in any event within three business days) following the date and time when they are irrevocably accepted for payment. For purposes of the Offer, Purchaser will be deemed to have accepted for payment, and thereby purchased, Shares validly tendered and not properly withdrawn as, if and when Purchaser gives oral or written notice to the Depositary of its acceptance for payment of such Shares pursuant to the Offer. Upon the terms and subject to the conditions of the Offer, payment for Shares accepted for payment pursuant to the Offer will be made by deposit of the Offer Price for such Shares with the Depositary, which will act as paying agent for the purpose of receiving payments from Purchaser and transmitting such payments to tendering stockholders whose Shares have been accepted for payment. If Purchaser extends the Offer, is delayed in its acceptance for payment of Shares or is unable to accept Shares for payment pursuant to the Offer for any reason, then, without prejudice to Purchaser’s rights under the Offer and the Merger Agreement, the Depositary may retain tendered Shares on Purchaser’s behalf, and such Shares may not be withdrawn except to the extent tendering stockholders are entitled to withdrawal rights as described in the Offer to Purchase and as otherwise required by Rule 14e-1(c) under the Exchange Act. Under no circumstances will Speedway, SFC or Purchaser pay interest on the Offer Price for the Shares by reason of any extension of the Offer or any delay in making such payment for the Shares.

No alternative, conditional or contingent tenders will be accepted. In all cases, Purchaser will pay for Shares tendered and accepted for payment pursuant to the Offer only after timely receipt by the Depositary of (i) the certificates evidencing such Shares (the “Certificates”) or confirmation of a book-entry transfer of such Shares (a “Book-Entry Confirmation”) into the Depositary’s account at The Depository Trust Company (“DTC”) pursuant to the procedures set forth in the Offer to Purchase, (ii) the Letter of Transmittal, properly completed and duly executed, with any required signature guarantees or, in the case of a book-entry transfer, an Agent’s Message (as described in the Offer to Purchase) in lieu of the Letter of Transmittal and (iii) any other documents required by the Letter of Transmittal. Accordingly, tendering stockholders may be paid at different times depending upon when Certificates or Book-Entry Confirmations with respect to their Shares are actually received by the Depositary. Holders of Shares who wish to tender their Shares pursuant to the Offer but cannot deliver such Shares and all other required documents to the Depositary by the Expiration Time or cannot comply with the


procedure for book-entry transfer described in the Offer to Purchase by the Expiration Time, may nevertheless tender such Shares by following the procedure for guaranteed delivery set forth in the Offer to Purchase.

For a withdrawal to be effective, a written (or, with respect to Eligible Institutions (as defined in the Offer to Purchase), a facsimile transmission) notice of withdrawal must be timely received by the Depositary at the address set forth on the back cover of the Offer to Purchase. Any such notice of withdrawal must specify the name of the person who tendered the Shares to be withdrawn, the number of Shares to be withdrawn and the name of the registered holder of such Shares, if different from that of the person who tendered such Shares. If Certificates evidencing Shares to be withdrawn have been delivered or otherwise identified to the Depositary, then, prior to the physical release of such Certificates, the serial numbers shown on such Certificates must be submitted to the Depositary and the signature(s) on the notice of withdrawal must be guaranteed by an Eligible Institution, unless such Shares have been tendered for the account of an Eligible Institution. If Shares have been tendered pursuant to the procedure for book-entry transfer as set forth in the Offer to Purchase, any notice of withdrawal must also specify the name and number of the account at DTC to be credited with the withdrawn Shares.

Withdrawals of Shares may not be rescinded. Any Shares validly withdrawn will thereafter be deemed not to have been validly tendered for purposes of the Offer. However, withdrawn Shares may be re-tendered by again following one of the procedures described in the Offer to Purchase at any time prior to the Expiration Time.

Purchaser will determine, in its sole discretion, all questions as to the form and validity (including time of receipt) of any notice of withdrawal and Purchaser’s determination will be final and binding. None of Purchaser, Speedway, the Depositary, the Information Agent (as defined below) or any other person will be under any duty to give notice of any defects or irregularities in any notice of withdrawal or incur any liability for failure to give any such notice.

The information required to be disclosed by paragraph (d)(1) of Rule 14d-6 of the General Rules and Regulations under the Exchange Act is contained in the Offer to Purchase and is incorporated herein by reference.

Dover has provided Purchaser with Dover’s stockholder list and security position listing for the purpose of disseminating the Offer to Purchase, the Letter of Transmittal and the other Offer-related materials to holders of Shares. The Offer to Purchase and the related Letter of Transmittal will be mailed to record holders of Shares whose names appear on Dover’s stockholder list and will be furnished, for subsequent transmittal to beneficial owners of Shares, to brokers, dealers, commercial banks, trust companies and similar persons whose names, or the names of whose nominees, appear on the stockholder list or, if applicable, who are listed as participants in a clearing agency’s security position listing.

The tender of Shares in the Offer for cash or the exchange of Shares pursuant to the Merger for cash will be a taxable transaction to United States Holders (as defined in the Offer to Purchase) for United States federal income tax purposes. See the Offer to Purchase for a more detailed discussion of the tax treatment of the Offer. Each holder of Shares is urged to consult its tax advisor regarding the particular tax consequences to such holder of tendering Shares for cash in the Offer or exchanging Shares for cash pursuant to the Merger in light of such holder’s particular circumstances (including the application and effect of any state, local or non-U.S. laws).

The Offer to Purchase, the related Letter of Transmittal and Dover’s Solicitation/Recommendation Statement on Schedule 14D-9 (which contains the unanimous recommendation of the Board of Dover and the reasons therefor) contain important information. Holders of Shares should carefully read both documents in their entirety before any decision is made with respect to the Offer.

Questions and requests for assistance regarding the Offer or any of the terms thereof may be directed to MacKenzie Partners, Inc. (the “Information Agent”) at its address and telephone numbers set forth below and on the back cover of the Offer to Purchase. Requests for copies of the Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery and other materials related to the Offer may be directed to the Information


Agent. Such copies will be furnished promptly at Purchaser’s expense. Stockholders may also contact their brokers, dealers, commercial banks, trust companies or other nominees for assistance concerning the Offer. Except as set forth in the Offer to Purchase, neither Purchaser nor Speedway will pay any fees or commissions to any broker or dealer or any other person for soliciting tenders of Shares pursuant to the Offer. Brokers, dealers, commercial banks, trust companies and other nominees will, upon request, be reimbursed by Purchaser for customary mailing and handling expenses incurred by them in forwarding the Offer materials to their customers.

The Information Agent for the Offer is:

MacKenzie Partners, Inc.

1407 Broadway, 22th Floor

New York, NY 10018

Call Collect: (212) 929-5550

Call Toll-Free: (800) 322-2885

Email: tenderoffer@mackenziepartners.com

November 23, 2021

Exhibit (b)(1)

EXECUTION VERSION

SECOND AMENDED AND RESTATED

CREDIT AGREEMENT

among

SPEEDWAY MOTORSPORTS, INC.

and

SPEEDWAY FUNDING, LLC,

as Borrowers,

SPEEDWAY HOLDINGS II, LLC,

as Holdings,

HOLDINGS AND CERTAIN OF ITS SUBSIDIARIES

FROM TIME TO TIME PARTY HERETO,

as Guarantors,

THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO,

BANK OF AMERICA, N.A.,

as Administrative Agent, Swingline Lender and Issuing Lender,

WELLS FARGO BANK, NATIONAL ASSOCIATION,

SUNTRUST BANK

and

JPMORGAN CHASE BANK, N.A.,

as Co-Syndication Agents,

FIRST TENNESSEE BANK, NATIONAL ASSOCIATION,

PNC BANK, NATIONAL ASSOCIATION,

COMERICA BANK

and

FIFTH THIRD BANK,

as Co-Documentation Agents

and

BOFA SECURITIES, INC.,

WELLS FARGO SECURITIES, LLC,

JPMORGAN CHASE BANK, N.A.

and

SUNTRUST ROBINSON HUMPHREY, INC.,

as Joint Lead Arrangers and Joint Bookrunners

DATED AS OF SEPTEMBER 17, 2019


TABLE OF CONTENTS

 

         PAGE  

SECTION 1 DEFINITIONS

     1  

1.1

 

Definitions

     1  

1.2

 

Other Interpretive Provisions

     36  

1.3

 

Computation of Interest and Fees; Pro Forma Calculations; Accounting Terms; Retroactive Adjustments of Applicable Percentage

     37  

1.4

 

Letter of Credit Amounts

     38  

1.5

 

Times of Day

     38  

1.6

 

Rates

     38  

1.7

 

Rounding

     39  

SECTION 2 CREDIT FACILITIES

     39  

2.1

 

Credit Facilities

     39  

2.2

 

Borrowings

     40  

2.3

 

Repayment of Loans

     41  

2.4

 

Letter of Credit Subfacility

     41  

2.5

 

Swingline Loan Subfacility

     49  

2.6

 

Incremental Loan Facilities

     51  

2.7

 

Interest

     53  

2.8

 

Evidence of Debt

     54  

2.9

 

Refinancing Indebtedness

     55  

SECTION 3 OTHER PROVISIONS RELATING TO CREDIT FACILITIES

     55  

3.1

 

Extension and Conversion

     55  

3.2

 

Prepayments

     56  

3.3

 

Termination and Reduction of Commitments

     57  

3.4

 

Fees

     58  

3.5

 

Increased Costs

     59  

3.6

 

Inability To Determine Interest Rate

     61  

3.7

 

Illegality

     61  

3.8

 

LIBOR Successor Rate

     62  

3.9

 

Taxes

     63  

3.10

 

Funding Losses

     67  

3.11

 

Pro Rata Treatment

     68  

3.12

 

Sharing of Payments

     68  

3.13

 

Payments Generally; Administrative Agent’s Clawback

     68  

3.14

 

Payments Set Aside

     70  

3.15

 

Mitigation Obligations; Replacement of Lenders

     70  

3.16

 

Cash Collateral

     71  

3.17

 

Defaulting Lenders

     72  

SECTION 4 GUARANTY

     74  

4.1

 

The Guaranty

     74  

4.2

 

Obligations Unconditional

     75  

4.3

 

Reinstatement

     75  

4.4

 

Certain Additional Waivers

     76  

4.5

 

Remedies

     76  

4.6

 

Guaranty of Payment; Continuing Guarantee

     76  

4.7

 

Keepwell

     76  

 

i


SECTION 5 CONDITIONS

     77  

5.1

 

Closing Conditions

     77  

5.2

 

Conditions to all Extensions of Credit

     80  

SECTION 6 REPRESENTATIONS AND WARRANTIES

     81  

6.1

 

Financial Condition

     81  

6.2

 

No Change

     81  

6.3

 

Organization; Existence; Compliance with Law

     81  

6.4

 

Power; Authorization; Enforceable Obligations

     82  

6.5

 

No Legal Bar

     82  

6.6

 

No Material Litigation

     83  

6.7

 

No Default

     83  

6.8

 

Ownership of Property; Liens

     83  

6.9

 

Intellectual Property

     83  

6.10

 

No Burdensome Restrictions

     83  

6.11

 

Taxes

     84  

6.12

 

ERISA

     84  

6.13

 

Governmental Regulations, Etc

     85  

6.14

 

Subsidiaries

     86  

6.15

 

Purpose of Loans

     86  

6.16

 

Environmental Matters

     86  

6.17

 

Solvency

     87  

6.18

 

No Untrue Statement

     87  

6.19

 

Subordinated Indebtedness

     87  

6.20

 

Pledge Agreement

     87  

6.21

 

Sanctions and Anti-Corruption Laws; the Act

     88  

6.22

 

Beneficial Ownership Certifications

     88  

6.23

 

EEA Financial Institution Status

     88  

6.24

 

Covered Entity Status

     88  

SECTION 7 AFFIRMATIVE COVENANTS

     89  

7.1

 

Information Covenants

     89  

7.2

 

Preservation of Existence and Franchises

     91  

7.3

 

Books and Records

     91  

7.4

 

Compliance with Law

     92  

7.5

 

Payment of Taxes and Other Indebtedness

     92  

7.6

 

Insurance

     92  

7.7

 

Maintenance of Property

     92  

7.8

 

Performance of Obligations

     92  

7.9

 

Use of Proceeds

     93  

7.10

 

Audits/Inspections

     93  

7.11

 

Financial Covenants

     93  

7.12

 

Additional Credit Parties

     94  

7.13

 

Ownership of Subsidiaries

     94  

7.14

 

Post-Closing Matters

     95  

 

ii


SECTION 8 NEGATIVE COVENANTS

     95  

8.1

 

Indebtedness

     95  

8.2

 

Liens

     96  

8.3

 

Nature of Business

     96  

8.4

 

Consolidation, Merger, Sale or Purchase of Assets, Etc

     97  

8.5

 

Advances, Investments, Loans, Etc

     97  

8.6

 

Restricted Payments

     97  

8.7

 

Modifications of Other Agreements

     98  

8.8

 

Transactions with Affiliates

     98  

8.9

 

Amendments of Organization Documents; Fiscal Year; Legal Name, State of Formation; Form of Entity and Accounting Changes

     98  

8.10

 

Limitation on Restrictions on Dividends and Other Distributions, Etc

     99  

8.11

 

Issuance and Sale of Subsidiary Stock

     99  

8.12

 

Sale Leasebacks

     99  

8.13

 

Capital Expenditures

     99  

8.14

 

No Further Negative Pledges

     99  

8.15

 

Designated Senior Indebtedness

     100  

8.16

 

Prepayments of Other Indebtedness

     100  

8.17

 

Use of Proceeds

     100  

8.18

 

Sanctions

     101  

8.19

 

Anti-Corruption Laws

     101  

8.20

 

Limitations on Holdings

     101  

SECTION 9 EVENTS OF DEFAULT

     101  

9.1

 

Events of Default

     101  

9.2

 

Acceleration; Remedies

     103  

9.3

 

Application of Funds

     104  

SECTION 10 ADMINISTRATIVE AGENT

     105  

10.1

 

Appointment and Authority

     105  

10.2

 

Rights as a Lender

     106  

10.3

 

Exculpatory Provisions

     106  

10.4

 

Reliance by Administrative Agent

     107  

10.5

 

Delegation of Duties

     107  

10.6

 

Resignation of Administrative Agent

     107  

10.7

 

Non-Reliance on Administrative Agent and Other Lenders

     109  

10.8

 

No Other Duties, Etc

     109  

10.9

 

Administrative Agent May File Proofs of Claim

     109  

10.10

 

Collateral and Guaranty Matters

     110  

10.11

 

Secured Treasury Management Agreements and Secured Hedge Agreements

     111  

10.12

 

Certain ERISA Matters

     111  

SECTION 11 MISCELLANEOUS

     112  

11.1

 

Notices

     112  

11.2

 

Right of Set-Off

     114  

11.3

 

Successors and Assigns

     115  

11.4

 

No Waiver; Remedies Cumulative

     121  

11.5

 

Payment of Expenses, Etc

     121  

11.6

 

Amendments, Waivers and Consents

     123  

11.7

 

Counterparts

     126  

11.8

 

Headings

     126  

11.9

 

[Reserved]

     126  

11.10

 

Survival of Indemnification

     126  

11.11

 

Confidentiality

     126  

 

iii


11.12

 

Governing Law; Submission to Jurisdiction; Venue

     128  

11.13

 

WAIVER OF RIGHT TO TRIAL BY JURY

     128  

11.14

 

Severability

     129  

11.15

 

Entirety

     129  

11.16

 

Survival of Representations and Warranties

     129  

11.17

 

Binding Effect; Termination

     129  

11.18

 

Joint and Several Liability

     129  

11.19

 

Electronic Execution of Assignments and Certain Other Documents

     131  

11.20

 

USA PATRIOT Act Notice

     131  

11.21

 

Advisory or Fiduciary Responsibility

     132  

11.22

 

Replacement of Lenders

     132  

11.23

 

Electronic Execution; Electronic Records

     133  

11.24

 

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     134  

11.25

 

Acknowledgement Regarding Any Supported QFCs

     134  

11.26

 

Amendment and Restatement

     135  

11.27

 

Waiver of Notice Period and Breakage Costs

     136  

 

iv


SCHEDULES   
Schedule 1.1B    Existing Letters of Credit
Schedule 1.1C    Existing Investments
Schedule 1.1D    Existing Liens
Schedule 2.1    Schedule of Lenders and Commitments
Schedule 2.2(a)    Form of Notice of Borrowing
Schedule 2.8(a)-1    Form of Revolving Note
Schedule 2.8(a)-2    Form of Swingline Note
Schedule 2.8(a)-3    Form of Term Loan A Note
Schedule 3.1    Form of Notice of Extension/Conversion
Schedule 3.2    Form of Notice of Loan Prepayment
Schedule 5.1(g)    Form of Solvency Certificate
Schedule 6.6    Litigation
Schedule 6.9    Intellectual Property Matters
Schedule 6.14    Subsidiaries
Schedule 7.1(c)    Form of Officer’s Compliance Certificate
Schedule 7.12    Form of Joinder Agreement
Schedule 8.1    Existing Indebtedness
Schedule 9.3    Form of Secured Party Designation Notice
Schedule 11.1    Notice Information
Schedule 11.3(b)    Form of Assignment and Assumption

 

v


SECOND AMENDED AND RESTATED

CREDIT AGREEMENT

THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT (this “Credit Agreement”) is entered into as of September 17, 2019 among SPEEDWAY MOTORSPORTS, INC., a Delaware corporation (“Speedway Motorsports”), SPEEDWAY FUNDING, LLC, a Delaware limited liability company (“Speedway Funding”) (each a “Borrower”, and collectively the “Borrowers”), SPEEDWAY HOLDINGS II, LLC, a North Carolina limited liability company (“Holdings”), the other Guarantors (as defined herein), the Lenders (as defined herein), and BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (in such capacity, the “Administrative Agent”).

WHEREAS, the Borrowers are parties to that certain Amended and Restated Credit Agreement dated as of December 29, 2014 (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Credit Agreement”); and

WHEREAS, the Borrowers desire to amend the Existing Credit Agreement as set forth herein and to restate the Existing Credit Agreement in its entirety.

NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

SECTION 1

DEFINITIONS

1.1    Definitions.

As used in this Credit Agreement, the following terms shall have the meanings specified below unless the context otherwise requires:

2015 Indenture” means that certain Indenture dated as of January 27, 2015 among Speedway Motorsports, as issuer, the Guarantors and U.S. Bank, National Association as trustee, as the same may be modified, supplemented or amended from time to time.

2015 Senior Notes” means the 5.125% senior notes due 2023 of Speedway Motorsports and Speedway Funding II, Inc., a Delaware corporation, in the aggregate principal amount of $200,000,000.

Act” means such term as defined in Section 11.20.

Additional Credit Party” means each Person that becomes a Guarantor after the Effective Date by execution of a Joinder Agreement.

Additional Senior Debt” means any unsecured Indebtedness initially incurred by the Borrowers on or after the Effective Date.

Additional Senior Debt Indenture” means any indenture executed by the Borrowers on or after the Effective Date that governs the terms of any Additional Senior Debt.

Administrative Agent” means such term as defined in the introductory paragraph hereof.


Administrative Agent’s Office” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule 11.1, or such other address or account as the Administrative Agent may from time to time notify to the Borrowers and the Lenders.

Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by the Administrative Agent.

Affiliate” means, with respect to any Person, any other Person (a) directly or indirectly controlling or controlled by or under direct or indirect common control with such Person or (b) directly or indirectly owning or holding five percent (5%) or more of the equity interest in such Person. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

Agent Parties” means such term as defined in Section 11.1(c).

Agent’s Fee Letter” means that certain amended and restated agency fee letter from the Administrative Agent to SFC dated August 29, 2019.

Applicable Percentage” means, for purposes of calculating the applicable per annum interest rate for any day for any Loan, the applicable Letter of Credit Fee for any day for purposes of Section 3.4(b)(i) or the applicable Commitment Fee for any day for purposes of Section 3.4(a), the appropriate applicable percentage set forth below corresponding to the Consolidated Total Leverage Ratio as of the end of the fiscal quarter of Holdings most recently ended.

 

          Applicable Percentages  

Pricing
Level

  

Consolidated

Total Leverage Ratio

   Revolving Loans
and Term Loans at
Eurodollar Rate
and Letter of Credit
Fees
    Revolving Loans, Term
Loans and Swingline
Loans at Base Rate
    Commitment
Fee
 

I

   Less than or equal to 2.00 to 1.00      1.25     0.25     0.25

II

   Less than or equal to 2.50 to 1.00 but greater than 2.00 to 1.00      1.50     0.50     0.30

III

   Less than or equal to 3.00 to 1.00 but greater than 2.50 to 1.00      1.75     0.75     0.35

IV

   Less than or equal to 3.50 to 1.00 but greater than 3.00 to 1.00      2.00     1.00     0.40

V

   Greater than 3.50 to 1.00      2.25     1.25     0.40

Determination of the appropriate Applicable Percentages shall be made as of the end of the fiscal quarter of Holdings most recently ended. The Consolidated Total Leverage Ratio in effect as of the end of the fiscal quarter of Holdings most recently ended as reported in the compliance certificate for the applicable

 

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period delivered in accordance with Section 7.1(c) shall establish the Applicable Percentages for the Loans, the Letter of Credit Fee and the Commitment Fee that shall be effective as of the first Business Day after the date on which such compliance certificate is delivered in accordance with Section 7.1(c) (the “Applicable Percentage Change Date”); provided, however, that if a compliance certificate is not delivered when required under Section 7.1(c), then Pricing Level V shall apply from the Applicable Percentage Change Date that is the Business Day after the date on which such compliance certificate was required to have been delivered in accordance with Section 7.1(c) until the first Business Day following the date on which such compliance certificate is delivered. The Administrative Agent shall determine the Applicable Percentages as of the end of the fiscal quarter of Holdings most recently ended and shall promptly notify the Borrowers and the Lenders of the Applicable Percentages so determined effective as of each Applicable Percentage Change Date. Such determinations by the Administrative Agent of the Applicable Percentages shall be conclusive absent demonstrable error. The initial Applicable Percentage(s) shall be based on Pricing Level V until the first Applicable Percentage Change Date occurring after September 30, 2019.

Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Percentage for any period shall be subject to the provisions of Section 1.3(c). The “Applicable Percentage” with regard to (x) any Incremental Term Loan shall be the per annum rate of interest specified in the definitive documentation for such Incremental Term Loan and (y) any Refinancing Term Loan made pursuant to a Refinancing Amendment shall be the per annum rate of interest specified in such Refinancing Amendment.

Applicable Percentage Change Date” means such term as defined in the definition of “Applicable Percentage”.

Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Asset Disposition” means (a) the sale, lease or other disposition of any Property by Holdings or any of its Subsidiaries, but for purposes hereof shall not include, in any event, (i) the sale of inventory in the ordinary course of business, (ii) the sale, lease or other disposition of machinery and equipment no longer used or useful in the conduct of business, and (iii) a sale, lease, transfer or disposition of Property to a Credit Party, and (b) receipt by Holdings or any of its Subsidiaries of any cash insurance proceeds or condemnation award payable by reason of theft, loss, physical destruction or damage, taking or similar event with respect to any of its Property.

Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 11.3(b)), and accepted by the Administrative Agent, in substantially the form of Schedule 11.3(b) or any other form (including electronic documentation generated by use of an electronic platform) approved by the Administrative Agent.

Attorney Costs” means and includes all reasonable fees, expenses and disbursements of any law firm or other external counsel and, without duplication, the allocated cost of internal legal services and all expenses and disbursements of internal counsel, all of which must be (a) reasonable in amount given the nature of the tasks involved, (b) based on the time actually expended and the standard hourly rate of the professionals performing the tasks in question and (c) determined without reference to any statutory presumption.

Auto-Renewal Letter of Credit” means such term as defined in Section 2.4(c)(iii).

 

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Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable EEA Resolution Authority in respect of any liability of an EEA Financial Institution.

Bail-In Legislation” means, with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule.

Bank of America” means Bank of America, N.A. and its successors.

Bankruptcy Code” means the Bankruptcy Code in Title 11 of the United States Code, as amended, modified, succeeded or replaced from time to time.

Base Rate” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus one half of one percent (0.5%), (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate” and (c) the Eurodollar Rate plus one percent (1%). The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change. If the Base Rate shall be less than zero, such rate shall be deemed zero for purposes of this Credit Agreement. If Base Rate is being used as an alternate rate of interest pursuant to Section 3.6 hereof, then the Base Rate shall be the greater of clauses (a) and (b) above and shall be determined without reference to clause (c) above.

Base Rate Loan” means any Loan bearing interest at a rate determined by reference to the Base Rate.

Beneficial Ownership Certification” means a certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.

Benefit Plan” means any of (a) an “employee benefit plan” (as defined in ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code or (c) any Person whose assets include (for purposes of ERISA Section 3(42) or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.

BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.

Borrower Materials” means such term as defined in Section 7.1.

Borrowers” means the Persons identified as such in the introductory paragraph hereof, together with any successors and permitted assigns.

Business Day” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the state where the Administrative Agent’s Office is located and, if such day relates to any Eurodollar Loan, means any such day that is also a day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

 

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Capital Lease” means, as applied to any Person, any lease of any Property (whether real, personal or mixed) by that Person as lessee which, in accordance with GAAP is or should be accounted for as a capital lease on the balance sheet of that Person.

Capital Stock” means (a) in the case of a corporation, capital stock, (b) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of Capital Stock, (c) in the case of a partnership, partnership interests (whether general or limited), (d) in the case of a limited liability company, membership interests and (e) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person.

Cash Collateralize” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the Issuing Lender, the Swingline Lender or the Lenders, as collateral for LOC Obligations or obligations of the Lenders to fund participations in respect of LOC Obligations or Swingline Loans, (a) cash or deposit account balances, (b) backstop letters of credit entered into on terms, from issuers and in amounts satisfactory to the Administrative Agent and the Issuing Lender or (c) if the Administrative Agent and the Issuing Lender or Swingline Lender shall agree in their sole discretion, other credit support, in each case in Dollars and pursuant to documentation in form and substance satisfactory to the Administrative Agent and the Issuing Lender or Swingline Lender, as applicable. “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

Cash Equivalents” means (a) securities issued or directly and fully guaranteed or insured by the United States of America or any agency or instrumentality thereof (provided that the full faith and credit of the United States of America is pledged in support thereof) having maturities of not more than twelve (12) months from the date of acquisition, (b) Dollar denominated time deposits and certificates of deposit of (i) any Lender, (ii) any domestic commercial bank of recognized standing having capital and surplus in excess of $500,000,000 or (iii) any bank whose short-term commercial paper rating from S&P is at least A-1 or the equivalent thereof or from Moody’s is at least P-1 or the equivalent thereof (any such bank being an “Approved Lender”), in each case with maturities of not more than two hundred seventy (270) days from the date of acquisition, (c) commercial paper and variable or fixed rate notes issued by any Approved Lender (or by the parent company thereof) or any variable rate notes issued by, or guaranteed by, any domestic corporation whose senior unsecured indebtedness for borrowed money is rated A-1 (or the equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or better by Moody’s and maturing within six (6) months of the date of acquisition, (d) repurchase agreements with a bank or trust company (including any of the Lenders) or recognized securities dealer having capital and surplus in excess of $500,000,000 for direct obligations issued by or fully guaranteed by the United States of America or any agency or instrumentality thereof in which the Borrowers shall have a perfected first priority security interest (subject to no other Liens) and having, on the date of purchase thereof, a fair market value of at least 100% of the amount of the repurchase obligations, (e) obligations of any state of the United States or any political subdivision thereof, the interest with respect to which is exempt from federal income taxation under Section 103 of the Code, having a long term rating of at least Aa-3 or AA- by Moody’s or S&P, respectively, and maturing within three (3) years from the date of acquisition thereof, (f) Investments in municipal or corporate auction preferred stock (i) rated AAA (or the equivalent thereof) or better by S&P or Aaa (or the equivalent thereof) or better by Moody’s and (ii) with dividends that reset at least once every three hundred sixty-five (365) days and (g) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, as amended, which are administered by reputable financial institutions having capital of at least $100,000,000 and the portfolios of which are limited to Investments of the character described in the foregoing clauses (a) through (f).

 

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Change in Law” means the occurrence, after the date of this Credit Agreement, of any of the following: (a) the adoption or taking effect of any Law, (b) any change in any Law or in the administration, interpretation or application thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (i) the Dodd Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (ii) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued.

Change of Control” means the occurrence of any of the following events:

(a)     the Permitted Transferees shall cease to own and control, of record and beneficially, directly or indirectly, more than fifty-one percent (51%) of the aggregate ordinary voting power represented by the issued and outstanding Capital Stock in Holdings on a fully diluted basis (which for this purpose shall exclude all Capital Stock that have not yet vested);

(b)     the Permitted Transferees shall cease to have the ability, directly or indirectly, to elect or approve the nomination of (in each case, either through share ownership or contractual voting rights) a majority of the board of directors or equivalent governing body of Holdings;

(c)     Holdings shall cease to own and control, of record and beneficially, directly or indirectly, one hundred percent (100%) of the Capital Stock in each Borrower;

(d)     any “Change of Control” (as such term is defined in the 2015 Indenture) shall occur pursuant to the terms of the 2015 Indenture; or

(e)     any “change of control” (such term or any other similar term as used in any documentation governing any Material Indebtedness (other than this Credit Agreement)) shall occur under the documentation governing any Material Indebtedness (other than the Credit Documents).

Class” (a) when used in reference to any Loan or extension of credit, refers to whether such Loan, or the Loans comprising such extension of credit, are Revolving Loans, Term Loan As, Incremental Term Loans, Refinancing Term Loans or Swingline Loans, (b) when used in reference to any Commitment, refers to whether such Commitment is a Revolving Commitment, a Term Loan A Commitment, an Incremental Term Loan Commitment or a Refinancing Term Commitment, and (c) when used in reference to any Lender, refers to whether such Lender has a Loan or a Commitment with respect to a particular Class of Loans or Commitments. Incremental Term Loans and Refinancing Term Loans (together with the respective Commitments in respect thereof) shall, at the election of the Borrowers, be construed to be in different Classes.

Code” means the Internal Revenue Code of 1986, as amended, and any successor thereto, as interpreted by the rules and regulations issued thereunder, in each case as in effect from time to time. References to sections of the Code shall be construed also to refer to any successor sections.

Collateral” means a collective reference to all personal property with respect to which Liens in favor of the Administrative Agent, for the benefit of the Secured Parties, are purported to be granted pursuant to and in accordance with the terms of the Pledge Agreement.

 

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Commitment” means, with respect to any Lender, the Revolving Commitment, the Term Loan A Commitment, any Incremental Term Loan Commitment or any Refinancing Term Commitment of such Lender.

Commitment Fee” means such term as defined in Section 3.4(a).

Commitment Percentage” means (a) the Revolving Commitment Percentage, (b) the Term Loan A Commitment Percentage, (c) in respect of an Incremental Term Loan, with respect to any Lender at any time, the percentage (carried out to the ninth decimal) on Schedule 2.1 as revised pursuant to Section 2.6 and (d) in respect of a Refinancing Term Facility, with respect to any Refinancing Lender at any time, the percentage (carried out to the ninth decimal place) of such Refinancing Term Facility represented by the outstanding principal amount of such Refinancing Lender’s Refinancing Term Loans issued under such Refinancing Term Facility at such time.

Commodity Exchange Act” means the Commodity Exchange Act (7 U.S.C. § 1 et seq.), as amended from time to time, and any successor statute.

Competitor” means any competitor of Holdings or any of its Subsidiaries that is in the same or a similar line of business as Holdings or any of its Subsidiaries.

Consolidated Capital Expenditures” means, for any period, all capital expenditures of Holdings and its Subsidiaries on a consolidated basis for such period, as determined in accordance with GAAP.

Consolidated EBITDA” means, for any period, the sum of (a) Consolidated Net Income for such period, plus (b) an amount which, in the determination of Consolidated Net Income for such period, has been deducted for (i) Consolidated Interest Expense, (ii) total federal, state, local and foreign income, value added and similar taxes, (iii) depreciation and amortization expense, and (iv) cash paid tender premiums or call premiums with respect to the 2015 Senior Notes, all as determined in accordance with GAAP.

Consolidated Interest Coverage Ratio” means the ratio, determined as of the end of the fiscal quarter of Holdings mostly recently ended, of (a) Consolidated EBITDA for the four-quarter period then ended, to (b) Consolidated Interest Expense for the four-quarter period then ended.

Consolidated Interest Expense” means, for any period, with respect to the combined results of Holdings and its Subsidiaries on a consolidated basis, gross interest expense (both expensed and capitalized) for such period, as determined in accordance with GAAP.

Consolidated Net Income” means, for any period, with respect to the combined results of Holdings and its Subsidiaries, the gross revenues from operations (including payments received of interest income) less all operating and non-operating expenses including taxes on income, all determined in accordance with GAAP; but excluding from the calculation of income: (a) net gains on the sale, conversion or other Asset Disposition of capital assets, (b) net gains on the acquisition, retirement, sale or other Asset Disposition of Capital Stock and other securities issued by Holdings and its Subsidiaries, (c) net gains on the collection of proceeds of life insurance policies, (d) any write-up of any asset, (e) non- cash charges and asset impairments relating to the relocation of any NASCAR Premier Cup Race from one facility to another, (f) any other non-cash charges and asset impairments, (g) any other gain or loss of an unusual and infrequent nature as determined in accordance with GAAP and (h) non-cash unamortized loan costs.

 

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Consolidated Total Leverage Ratio” means the ratio, determined as of the end of the fiscal quarter of Holdings mostly recently ended, of (a) Funded Indebtedness of Holdings and its Subsidiaries on a consolidated basis as of the last day of such fiscal quarter, to (b) Consolidated EBITDA for the four- quarter period then ended.

Covered Entity” means any of the following: (a) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (b) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (c) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).

Covered Party” means such term as defined in Section 11.25.

Credit Agreement” means such term as set forth in the introductory paragraph hereof.

Credit Documents” means a collective reference to this Credit Agreement, the Notes, the Pledge Agreement, each Joinder Agreement, each Refinancing Amendment, any intercreditor or subordination agreement contemplated by this Credit Agreement and entered into by the Administrative Agent (in the case of any such intercreditor agreement, to the extent signed by one or more Credit Parties), the Fee Letters and all other related agreements and documents issued or delivered hereunder or thereunder or pursuant hereto or thereto (but specifically excluding any Secured Hedge Agreements or any Secured Treasury Management Agreements) and any amendments, modifications or supplements thereto or to any other Credit Document or waivers hereof or to any other Credit Document.

Credit Party” means any of the Borrowers and the Guarantors.

Debt Transactions” means, with respect to Holdings or any of its Subsidiaries, any sale, issuance or placement of Funded Indebtedness, whether or not evidenced by a promissory note or other written evidence of indebtedness, except for Funded Indebtedness permitted to be incurred pursuant to Section 8.1.

Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.

Default” means any event, act or condition which, with notice or lapse of time, or both, would constitute an Event of Default.

Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.

Defaulting Lender” means, subject to Section 3.17(c), any Lender that, as determined by the Administrative Agent, (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless one or more conditions precedent to funding has not been satisfied and such Lender notifies the Administrative Agent and the Borrowers in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, the Issuing Lender, the Swingline Lender or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit or Swingline Loans) within two (2) Business Days of the date when due, (b) has notified the Borrowers, the

 

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Administrative Agent, the Issuing Lender or the Swingline Lender in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrowers, to confirm in writing to the Administrative Agent and the Borrowers that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrowers), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity or (iii) become the subject of a Bail-In Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Capital Stock in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 3.17(c)) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrowers, the Issuing Lender, the Swingline Lender and each other Lender promptly following such determination.

Default Rate” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Percentage, if any, applicable to Base Rate Loans plus (iii) two percent (2%) per annum; provided, however, that with respect to a Eurodollar Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Percentage) otherwise applicable to such Loan plus two percent (2%) per annum, and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Percentage plus two percent (2%) per annum.

Designated Jurisdiction” means any country or territory to the extent that such country or territory is the subject of any Sanction.

Disqualified Institution” means, on any date, (a) any Person designated by the Borrowers as a “Disqualified Institution” by written notice delivered to the Joint Lead Arrangers on or prior to July 23, 2019, (b) any other Person that is a Competitor, which Person has been designated by the Borrowers as a “Disqualified Institution” by written notice to the Administrative Agent and the Lenders (by posting such notice to the Platform) not less than two (2) Business Days prior to such date and (c) any Affiliate of any bank, financial institution, Competitor or other Person identified pursuant to clause (a) or clause (b) that, in each case, is obviously (based solely on the similarity of the legal name of such Affiliate to the name of such bank, financial institution, Competitor or other Person) an Affiliate of such Person, financial institution, institutional lender or Competitor; provided that (i) “Disqualified Institutions” shall exclude any Person that the Borrowers have designated as no longer being a “Disqualified Institution” by written notice delivered to the Administrative Agent and the Lenders from time to time, (ii) solely with respect to the foregoing clause (b), “Disqualified Institutions” shall exclude any bona fide fixed income investors or debt funds or investment vehicles that are primarily engaged in making, purchasing, holding or otherwise

 

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investing in commercial loans or bonds and similar extensions of credit in the ordinary course of business and (iii) the foregoing shall not apply to retroactively disqualify any Person that has previously acquired an assignment or participation in the Loans or Commitments under this Credit Agreement to the extent that any such Person was not a Disqualified Institution at the time of the applicable assignment or participation, as the case may be.

Dollars” and “$” means dollars in lawful currency of the United States of America.

Domestic Subsidiary” means, with respect to any Person, any Subsidiary of such Person which is incorporated or organized under the laws of any state of the United States or the District of Columbia.

DQ List” means such term as defined in Section 11.3.

EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a Subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent.

EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein, and Norway.

EEA Resolution Authority” means any public administrative authority or any Person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution.

Effective Date” means the date hereof.

Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 11.3(b)(iii) and (v) (subject to such consents, if any, as may be required under Section 11.3(b)(iii)). For the avoidance of doubt, any Disqualified Institution is subject to Section 11.3(g).

Environmental Laws” means any and all lawful and applicable federal, state, local and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or industrial, toxic or hazardous substances or wastes.

Environmental Liability” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), of any of the Borrowers, any other Credit Party or any of their respective Subsidiaries directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the release or threatened release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

 

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ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute thereto, as interpreted by the rules and regulations thereunder, all as the same may be in effect from time to time. References to sections of ERISA shall be construed also to refer to any successor sections.

ERISA Affiliate” means any trade or business (whether or not incorporated) under common control with the Borrowers within the meaning of Section 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for purposes of provisions relating to Section 412 of the Code).

ERISA Event” means (a) a Reportable Event with respect to a Pension Plan; (b) a withdrawal by any of the Borrowers or any ERISA Affiliate from a Pension Plan subject to Section 4063 of ERISA during a plan year in which it was a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation of operations that is treated as such a withdrawal under Section 4062(e) of ERISA; (c) a complete or partial withdrawal by any of the Borrowers or any ERISA Affiliate from a Multiemployer Plan that could reasonably be expected to result in liability of any of the Borrowers in excess of $5,000,000; (d) the filing of a notice of intent to terminate, the treatment of a Plan amendment as a termination under Section 4041 or 4041A of ERISA, or the commencement of proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan that could reasonably be expected to result in liability of any of the Borrowers in excess of $5,000,000; (e) an event or condition which constitutes grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Pension Plan or Multiemployer Plan that could reasonably be expected to result in liability of any of the Borrowers in excess of $5,000,000; or (f) the imposition of any liability under Title IV of ERISA, other than for PBGC premiums due but not delinquent under Section 4007 of ERISA, upon any of the Borrowers or any ERISA Affiliate that could reasonably be expected to result in liability of any of the Borrowers in excess of $5,000,000.

EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time.

Eurodollar Loan” means a Loan that bears interest at a rate based on clause (a) of the definition of “Eurodollar Rate.”

Eurodollar Rate” means:

(a)     for any Interest Period with respect to a Eurodollar Loan, the rate per annum equal to the London Interbank Offered Rate as administered by ICE Benchmark Administration (or any other Person that takes over the administration of such rate for U.S. Dollars for a period equal in length to such Interest Period) (“LIBOR”), as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) (in such case, the “LIBOR Rate”) at or about 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; and

(b)     for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to the LIBOR Rate, at or about 11:00 a.m., London time, two (2) Business Days prior to such date for Dollar deposits with a term of one (1) month commencing that day;

provided, that, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Credit Agreement.

 

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Event of Default” means such term as defined in Section 9.1.

Excess Land” means those approximately 665 acres of land owned by Speedway Motorsports and located in Mecklenburg and Cabarrus Counties, North Carolina, that, as of the Effective Date, is not currently utilized in the operation of Charlotte Motor Speedway or in the operations of the Borrowers or any of their Subsidiaries.

Exchange Act” means the Securities Exchange Act of 1934, as amended, and any successor thereto.

Excluded Subsidiaries” means, collectively, Oil-Chem, NewCo and each subsidiary thereof.

Excluded Swap Obligation” means, with respect to any Credit Party, any Swap Obligation if, and to the extent that, all or a portion of the Guaranty of such Credit Party of, or the grant by such Credit Party of a Lien to secure, such Swap Obligation (or any guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation thereof) by virtue of such Credit Party’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to Section 4.7 and any other “keepwell”, support or other agreement for the benefit of such Credit Party and any and all guarantees of such Credit Party’s Swap Obligations by other Credit Parties) at the time the Guaranty of such Credit Party, or grant by such Credit Party of a Lien, becomes effective with respect to such Swap Obligation. If a Swap Obligation arises under a Master Agreement governing more than one Hedge Agreement, such exclusion shall apply only to the portion of such Swap Obligation that is attributable to Hedge Agreements for which such Guaranty or Lien is or becomes excluded in accordance with the first sentence of this definition.

Excluded Taxes” means, with respect to the Administrative Agent, any Lender, the Issuing Lender or any other recipient of any payment to be made by or on account of any obligation of the Borrowers hereunder, (a) taxes imposed on or measured by net income (however denominated), and franchise taxes imposed on it (in lieu of net income taxes), by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or in which its principal office is located or, in the case of any Lender, in which its applicable Lending Office is located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by any other jurisdiction in which either Borrower is located, (c) any backup withholding tax that is required by the Code to be withheld from amounts payable to a Lender that has failed to comply with clause (A) of Section 3.9(e)(ii), (d) in the case of a Foreign Lender (other than an assignee pursuant to a request by the Borrowers under Section 11.22), any United States withholding tax that (i) is required to be imposed on amounts payable to such Foreign Lender pursuant to the laws in force at the time such Foreign Lender becomes a party hereto (or designates a new Lending Office) or (ii) is attributable to such Foreign Lender’s failure or inability (other than as a result of a Change in Law) to comply with clause (B) of Section 3.9(e)(ii), except to the extent that such Foreign Lender (or its assignor, if any) was entitled, at the time of designation of a new Lending Office (or assignment), to receive additional amounts from the Borrowers with respect to such withholding tax pursuant to Section 3.9(a) and (e) any U.S. federal withholding taxes imposed pursuant to FATCA.

Existing Credit Agreement” means such term as defined in the recitals hereof.

Facility Termination Date” means the date as of which all of the following shall have occurred: (a) the Commitments have terminated, (b) all Obligations have been paid in full (other than contingent indemnification obligations), and (c) all Letters of Credit have terminated or expired (other than Letters of Credit as to which other arrangements with respect thereto satisfactory to the Administrative Agent and the Issuing Lender shall have been made).

 

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FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Credit Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

Federal Funds Rate” means, for any day, the rate per annum calculated by the Federal Reserve Bank of New York based on such day’s federal funds transactions by depository institutions (as determined in such manner as the Federal Reserve Bank of New York shall set forth on its public website from time to time) and published on the next succeeding Business Day by the Federal Reserve Bank of New York as the federal funds effective rate; provided that if the Federal Funds Rate as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Credit Agreement.

Fees” means all fees payable pursuant to Section 3.4.

Fee Letters” means (a) the Agent’s Fee Letter, (b) that certain Amended and Restated Fee Letter (Bank of America) dated as of August 29, 2019 between Bank of America, BofA Securities, Inc. and SFC, (c) that certain Co-Syndication Agent Fee Letter dated as of August 29, 2019 between Wells Fargo Bank, National Association, JPMorgan Chase Bank, National Association and SFC, (d) that certain SunTrust Bank Fee Letter dated as of August 29, 2019 between SunTrust Robinson Humphrey, Inc. and SFC, (e) that certain Co-Documentation Agent Fee Letter dated as of August 29, 2019 between First Tennessee Bank National Association, PNC Bank, National Association, PNC Capital Markets LLC, Fifth Third Bank National Association and SFC, (f) that certain Comerica Bank Fee Letter dated as of August 29, 2019 between Comerica Bank and SFC and (g) that certain Joint Fee Letter dated as of August 29, 2019 between Bank of America, SunTrust Bank, JPMorgan Chase Bank, National Association, Wells Fargo Bank, National Association, First Tennessee Bank National Association, PNC Bank, National Association, Comerica Bank, Fifth Third Bank National Association, the Joint Lead Arrangers and SFC.

Foreign Lender” means any Lender that is organized under the laws of a jurisdiction other than that in which either Borrower is resident for tax purposes (including such a Lender when acting in the capacity of the Issuing Lender). For purposes of this definition, the United States, each state thereof and the District of Columbia shall be deemed to constitute a single jurisdiction.

Foreign Subsidiary” means any Subsidiary of Holdings that is not a Domestic Subsidiary.

Fronting Exposure” means, at any time there is a Defaulting Lender, (a) with respect to the Issuing Lender, such Defaulting Lender’s Revolving Commitment Percentage of the outstanding LOC Obligations other than LOC Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof, and (b) with respect to the Swingline Lender, such Defaulting Lender’s Revolving Commitment Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

 

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Funded Indebtedness” means, with respect to any Person, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)     the outstanding principal amount of (i) all obligations for borrowed money, whether current or long-term (including the Obligations hereunder and all Indebtedness evidenced by the 2015 Senior Notes, any Permitted Pari Passu Indebtedness and any Permitted Junior Indebtedness), and (ii) all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(b)     the outstanding principal amount of (i) all purchase money indebtedness (including indebtedness and obligations in respect of conditional sales and title retention arrangements, except for customary conditional sales and title retention arrangements with suppliers that are entered into in the ordinary course of business) and (ii) all indebtedness and obligations in respect of the deferred purchase price of property or services (other than trade accounts payable incurred in the ordinary course of business and payable on customary trade terms);

(c)     the maximum amount available to be drawn on all direct obligations under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments (including bank guaranties, surety bonds, comfort letters, keep-well agreements and capital maintenance agreements to the extent such instruments or agreements support financial, rather than performance, obligations);

(d)     the amount of obligations (determined in accordance with GAAP) under any Capital Lease and the principal balance outstanding under any Synthetic Lease;

(e)     the attributed principal amount of any Securitization Transaction;

(f)     all preferred stock and comparable equity interests providing for mandatory redemption, sinking fund or other like payments having a first call of fifteen (15) years or less;

(g)     Guaranty Obligations with respect to outstanding Indebtedness of the types specified in clauses (a) through (f) above of another Person; and

(h)     all Indebtedness of the types referred to in clauses (a) through (g) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.

Funding Indemnity Letter” means a funding indemnity letter, in form and substance satisfactory to the Administrative Agent.

GAAP” means generally accepted accounting principles in the United States applied on a consistent basis and subject to the terms of Section 1.3 hereof.

Governmental Authority” means any federal, state, local or foreign court or governmental agency, authority, instrumentality or regulatory body (including any supra-national bodies such as the European Union or the European Central Bank).

 

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Guarantors” means, collectively, (a) Holdings and each other Person identified as a “Guarantor” on the signature pages hereto, (b) each Additional Credit Party which may hereafter execute a Joinder Agreement, (c) with respect to obligations under any Secured Hedge Agreement or Secured Treasury Management Agreement, the Borrowers, (d) with respect to any Swap Obligation of a Specified Loan Party (determined before giving effect to Sections 4.1 and 4.11) under the Guaranty, each Borrower, and (e) the successors and permitted assigns of the foregoing.

Guaranty” means Section 4 hereof.

Guaranty Obligations” means, with respect to any Person, without duplication, any obligations of such Person (other than endorsements in the ordinary course of business of negotiable instruments for deposit or collection) guaranteeing or intended to guarantee any Indebtedness of any other Person in any manner, whether direct or indirect, and including without limitation any obligation, whether or not contingent, (a) to purchase any such Indebtedness or any Property constituting security therefor, (b) to advance or provide funds or credit support for the payment or purchase of any such Indebtedness or to maintain working capital, solvency or other balance sheet condition of such other Person (including without limitation keep well agreements, maintenance agreements, comfort letters or similar agreements or arrangements) for the benefit of any holder of Indebtedness of such other Person, (c) to lease or purchase Property, securities or services primarily for the purpose of assuring the holder of such Indebtedness, or (d) to otherwise assure or hold harmless the holder of such Indebtedness against loss in respect thereof. The amount of any Guaranty Obligation hereunder shall (subject to any limitations set forth therein) be deemed to be an amount equal to the outstanding principal amount (or maximum principal amount, if larger) of the Indebtedness in respect of which such Guaranty Obligation is made.

Hazardous Materials” means any substance, material or waste defined or regulated in or under any Environmental Laws.

Hedge Agreements” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing), whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “Master Agreement”), including any such obligations or liabilities under any Master Agreement.

Hedge Bank” means any Person in its capacity as a party to a Hedge Agreement that, (a) at the time it enters into a Hedge Agreement not prohibited under Section 7 or 8, is a Lender or an Affiliate of a Lender, or (b) at the time it (or its Affiliate) becomes a Lender, is a party to a Hedge Agreement not prohibited under Section 7 or 8, in each case, in its capacity as a party to such Hedge Agreement (even if such Person ceases to be a Lender or such Person’s Affiliate ceased to be a Lender); provided, in the case of a Secured Hedge Agreement with a Person who is no longer a Lender (or Affiliate of a Lender), such Person shall be considered a Hedge Bank only through the stated termination date (without extension or renewal) of such Secured Hedge Agreement and provided further that for any of the foregoing to be included as a “Secured Hedge Agreement” on any date of determination by the Administrative Agent, the applicable Hedge Bank (other than the Administrative Agent or an Affiliate of the Administrative Agent) must have delivered a Secured Party Designation Notice to the Administrative Agent prior to such date of determination.

 

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Holdings” means such term as defined in the introductory paragraph hereof.

Honor Date” means such term as defined in Section 2.4(d)(i).

Incremental Equivalent Indebtedness” means any Indebtedness incurred by the Borrowers in the form of (x) one or more series of secured or unsecured bonds, debentures, notes or similar instruments or (y) term loans; provided, that, (a) with respect to any such Indebtedness that is secured, such Indebtedness (i) shall either be secured (A) by a Lien on the Collateral ranking pari passu (but without regard to the control of remedies) to the Lien securing the Obligations or (B) by a Lien on the Collateral ranking junior to the Lien securing the Obligations, (ii) shall be subject to an intercreditor agreement on terms and conditions reasonably satisfactory to the Administrative Agent and (iii) shall not be secured by any assets not constituting Collateral, (b) if such Indebtedness is unsecured or secured by a Lien on the Collateral ranking junior to the Lien securing the Obligations, then such Indebtedness shall not mature, and no scheduled principal payments, prepayments (other than customary mandatory prepayments for change of control), repurchases, redemptions or sinking fund or like payments of any kind shall be required at any time before the 91st day following the Latest Maturity Date in effect at the time of incurrence thereof, (c) if such Indebtedness is secured by a Lien on the Collateral ranking pari passu (but without regard to the control of remedies) to the Lien securing the Obligations, then (i) such Indebtedness does not mature earlier than the Latest Maturity Date in effect hereunder at the time of incurrence thereof and (ii) the Weighted Average Life to Maturity of such Indebtedness shall not be less than the remaining Weighted Average Life to Maturity of any Term Loan (as reasonably determined by the Administrative Agent in accordance with customary financial practice), (d) the terms and conditions (taken as a whole) applicable to such Indebtedness are customary for similar Indebtedness in light of then-prevailing market conditions and shall not be more restrictive (as determined by the Administrative Agent) than the terms and conditions of this Credit Agreement and the other Credit Documents (taken as a whole) (except for covenants or other provisions applicable only to periods after the Latest Maturity Date); provided, that, the Borrowers shall have the right to unilaterally provide the Lenders with additional rights and benefits under this Credit Agreement and the other Credit Documents and the foregoing standard in this clause (d) shall be determined after giving effect to such additional rights and benefits, (e) any such Indebtedness that is structured as a term loan b (as reasonably determined by the Administrative Agent) shall be subject to any applicable “most favored nation” pricing protection provisions established in connection with any existing Incremental Term Loan or Refinancing Term Loan structured as a term loan b (as reasonably determined by the Administrative Agent) for which such protections were required by the Lenders providing such Incremental Term Loan or Refinancing Term Loan, as applicable, and (f) such Indebtedness is not guaranteed by any Person other than the Credit Parties.

Incremental Term Loan” means such term as defined in Section 2.6.

Incremental Term Loan Commitment” means, for each Lender, the commitment of such Lender to make a portion of any Incremental Term Loan; provided that, at any time after funding of such Incremental Term Loan determinations of “Required Lenders” shall be based on the outstanding principal amount of such Incremental Term Loan.

Incremental Term Loan Note” or “Incremental Term Loan Notes” means the promissory notes of the Borrowers in favor of each of the Lenders with an Incremental Term Loan Commitment, evidencing its Incremental Term Loans in a form reasonably acceptable to the Administrative Agent, individually or collectively, as appropriate, as such promissory notes may be amended, restated, modified, supplemented, extended, renewed or replaced from time to time.

 

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Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a)     all Funded Indebtedness;

(b)     all contingent obligations under letters of credit (including standby and commercial), bankers’ acceptances and similar instruments (including bank guaranties, surety bonds, comfort letters, keep-well agreements and capital maintenance agreements to the extent such instruments or agreements support financial, rather than performance, obligations);

(c)     net obligations under any Hedge Agreement;

(d)     Guaranty Obligations in respect of Indebtedness of another Person; and

(e)     Indebtedness of any partnership or joint venture or other similar entity in which such Person is a general partner or joint venturer, and, as such, has personal liability for such obligations, but only to the extent there is recourse to such Person for payment thereof.

Indemnified Taxes” means Taxes arising from any payment made by a Credit Party under this Credit Agreement other than Excluded Taxes.

Indemnitee” means such term as defined in Section 11.5(b).

Intellectual Property” means such term as defined in Section 6.9.

Intercompany Indebtedness” means any Indebtedness (a) owing by any Credit Party to any other Credit Party or any Subsidiary, (b) owing by any Subsidiary that is not a Credit Party to (i) any Credit Party in an aggregate principal amount not to exceed $20,000,000 at any one time outstanding or (ii) any other Subsidiary that is not a Credit Party and (c) owing by Oil-Chem to Speedway Motorsports in an aggregate principal amount not to exceed $50,000,000 at any one time outstanding.

Interest Payment Date” means (a) as to any Base Rate Loan (including Swingline Loans) the last Business Day of each March, June, September and December, the date of repayment of principal of such Loan and the Termination Date (or, in the case of a Refinancing Term Loan, the Refinancing Term Facility Maturity Date) and the date of the final principal amortization installment on any Term Loan, as applicable, and (b) as to any Eurodollar Loan, the last day of each Interest Period for such Loan, the date of repayment of principal of such Loan and the Termination Date (or, in the case of a Refinancing Term Loan, the Refinancing Term Facility Maturity Date) and the date of the final principal amortization installment on any Term Loan, as applicable, and in addition where the applicable Interest Period is more than three (3) months, then also on the date three (3) months from the beginning of the Interest Period, and each three (3) months thereafter. If an Interest Payment Date falls on a date which is not a Business Day, such Interest Payment Date shall be deemed to be the next succeeding Business Day, except that in the case of Eurodollar Loans where the next succeeding Business Day falls in the next succeeding calendar month, then on the preceding Business Day.

Interest Period” means, as to each Eurodollar Loan, the period commencing on the date such Eurodollar Loan is disbursed or converted to or continued as a Eurodollar Loan and ending on the date

 

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one (1), two (2), three (3) or six (6) months thereafter (in each case, subject to availability), as selected by the applicable Borrower in its Notice of Borrowing; provided, that:

(a)     any Interest Period that would otherwise end on a day that is not a Business Day shall be extended to the next succeeding Business Day unless such next succeeding Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b)     any Interest Period that begins on the last Business Day of a calendar month (or on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period) shall end on the last Business Day of the calendar month at the end of such Interest Period; and

(c)     no Interest Period shall extend beyond the Termination Date (or, in the case of a Refinancing Term Loan, the applicable Refinancing Term Facility Maturity Date).

Investment”, in any Person, means any loan or advance to such Person, any purchase or other acquisition of any Capital Stock, warrants, rights, options, obligations or other securities of such Person, any capital contribution to such Person or any other investment in such Person, including, without limitation, any Guaranty Obligation incurred for the benefit of such Person.

IRS” means the United States Internal Revenue Service.

ISP” means, with respect to any Letter of Credit, the “International Standby Practices 1998” published by the Institute of International Banking Law & Practice, Inc. (or such later version thereof as may be in effect at the time of issuance).

Issuing Lender” means Bank of America.

Issuing Lender Fees” means such term as defined in Section 3.4(b)(ii).

Joinder Agreement” means a Joinder Agreement substantially in the form of Schedule 7.12 hereto, executed and delivered by an Additional Credit Party in accordance with the provisions of Section 7.12.

Joint Lead Arrangers” means BofA Securities, Inc., Wells Fargo Securities, LLC, JPMorgan Chase Bank, N.A., and SunTrust Robinson Humphrey, Inc.

Junior Indebtedness Payment” means such term as defined in Section 8.16(b).

Latest Maturity Date” means, at any date of determination, the latest of the Termination Date, the then latest maturity date of any then existing Incremental Term Loan and the then latest Refinancing Term Facility Maturity Date of any then existing Refinancing Term Facility.

Laws” means, collectively, all international, foreign, federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities, including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

Lenders” means each of the Persons identified as a “Lender” on the signature pages hereto, each other Person that becomes a “Lender” in accordance with this Credit Agreement (including any Refinancing Lender) and, their successors and assigns and, unless the context requires otherwise, includes the Swingline Lender.

 

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Lending Office” means, as to the Administrative Agent, the Issuing Lender or any Lender, the office or offices of such Person described as such in such Person’s Administrative Questionnaire, or such other office or offices as such Person may from time to time notify the Borrowers and the Administrative Agent; which office may include any Affiliate of such Person or any domestic or foreign branch of such Person or such Affiliate.

Letter of Credit” means (a) any letter of credit issued by the Issuing Lender for the account of the Borrowers or any of their Subsidiaries in accordance with the terms of Section 2.4 and (b) existing letters of credit issued by the Issuing Lender for the account of any Credit Party and set forth on Schedule 1.1B (each, an “Existing Letter of Credit”). A Letter of Credit shall be a standby letter of credit.

Letter of Credit Fee” means such term as defined in Section 3.4(b)(i).

LIBOR Screen Rate” means the LIBOR quote on the applicable screen page the Administrative Agent designates to determine LIBOR (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time).

LIBOR Successor Rate” means such term as defined in Section 3.8.

LIBOR Successor Rate Conforming Changes” means, with respect to any proposed LIBOR Successor Rate, any conforming changes to the definition of Base Rate, Interest Period, timing and frequency of determining rates and making payments of interest and other technical, administrative or operational matters as may be appropriate, in the discretion of the Administrative Agent, to reflect the adoption and implementation of such LIBOR Successor Rate and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent determines that adoption of any portion of such market practice is not administratively feasible or that no market practice for the administration of such LIBOR Successor Rate exists, in such other manner of administration as the Administrative Agent determines is reasonably necessary in connection with the administration of this Credit Agreement).

Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, security interest, encumbrance, lien (statutory or otherwise), preference, priority or charge of any kind (including any agreement to give any of the foregoing or any conditional sale o