Form 8-K - Current report

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 8-K

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): September 30, 2024

 

BALLY’S CORPORATION

(Exact name of Registrant as Specified in its Charter)

  

Delaware		001-38850		20-0904604
(State or other jurisdiction of incorporation or organization)		(Commission File Number)		(I.R.S. Employer Identification No.)

 

100 Westminster Street Providence, RI		02903
(Address of Principal Executive Offices)		(Zip Code)

 

[phone]

Registrant’s telephone number, including area code

 

N/A

(Former name or former address, if changed since last report)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions:

 

☐	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a.12)

 

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common stock, $0.01 par value		BALY		New York Stock Exchange

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

Emerging growth company ☐

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

 

 

 

Item 1.01 Entry into a Material Definitive Agreement

 

On September 30, 2024, Bally’s Corporation, a Delaware corporation (the “Company”), entered into Amendment No. 2 (“Amendment No. 2”) to the Agreement and Plan of Merger dated as of July 25, 2024 (the “Merger Agreement” and, as amended by Amendment No. 1 (as defined below) and Amendment No. 2, the “Amended Merger Agreement”), by and among the Company, SG Parent LLC, a Delaware limited liability company (“Parent”), The Queen Casino & Entertainment, Inc., a Delaware corporation and affiliate of Parent (“Queen”), Epsilon Sub I, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub I”), Epsilon Sub II, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub II”, and together with the Company and Merger Sub I, the “Company Parties”), and, solely for purposes of specified provisions of the Merger Agreement, SG CQ Gaming LLC, a Delaware limited liability company (“SG Gaming” and together with Parent and Queen, the “Buyer Parties”). The Company Parties and the Buyer Parties entered into Amendment No. 1 to the Merger Agreement (“Amendment No. 1”) on August 27, 2024. Each of the Buyer Parties and the Company Parties is a party to the Amended Merger Amendment and is sometimes referred to herein as a “Party” and collectively as the “Parties.” Capitalized terms used herein but not otherwise defined have the meaning set forth in the Amended Merger Agreement. A copy of the Merger Agreement was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission (the “SEC”) on July 25, 2024 and a copy of Amendment No. 1 was filed as Exhibit 2.1 to the Current Report on Form 8-K filed by the Company with the SEC on August 28, 2024, each of which are incorporated herein by reference.

 

Parent and SG Gaming are owned and controlled by Standard General L.P., a Delaware limited partnership (“Standard General”). Soohyung Kim is the Managing Partner and Chief Investment Officer of Standard General and is the Chairman of the Company’s Board of Directors (the “Board”). According to a Schedule 13D amendment filed by Standard General with the SEC on July 26, 2024, Standard General and Mr. Kim beneficially owned 10,589,849 shares of Company Common Stock, or 26.1 % of the Company Common Stock as calculated in accordance with SEC Rule 13d-3. Standard General and Mr. Kim each disclaim beneficial ownership of such shares except to the extent of its or his pecuniary interest in such shares.

 

Amendment No. 2 was entered into in order to further modify the provisions of the Merger Agreement, as amended by Amendment No. 1, for effecting Rolling Share Elections and providing that the Company will use commercially reasonable efforts to (i) take such actions as are necessary to have assigned to shares of Company Common Stock subject to a Rolling Share Election (“Rolling Company Shares”) a new CUSIP number (the “Rolling Company Share CUSIP”) and (ii) cause the Rolling Company Shares to be eligible for trading on the New York Stock Exchanges (the “NYSE”) under the ticker symbol BALY.T from the Election Deadline until the Company Effective Time. At the Company Effective Time, the Rolling Company Shares (including the Rolling Company Shares held by the parties to the Support Agreements) will be the only shares of Company Common Stock that remain outstanding and it is expected that all such Rolling Company Shares will continue to keep the Rolling Company Share CUSIP and the ticker symbol for such Rolling Company Shares on the NYSE will revert to the original BALY ticker symbol after the Company Merger

 

Amendment No. 2 provides that, in making any Rolling Share Election, each holder of shares of Company Common Stock (other than the Company or its Subsidiaries) will have the option to make a Rolling Share Election with respect to all or any portion of its shares of Company Common Stock, which may be rejected under certain circumstances, as set forth in the Amended Merger Agreement, by the Company or Parent. To be effective, Company Stockholders desiring to make a Rolling Share Election must properly complete, sign and submit to the Payment Agent a Rollover Share Election form (the “Election Form”) by 5:00 p.m. Eastern time on the date of the Special Meeting, or such later date mutually agreed by Parent and the Company (the “Election Deadline”). In making any Rolling Share Election, each record holder making such election that is accepted will be deemed to have elected and consented to have each such Rolling Company Share be assigned the Rolling Company Share CUSIP. In order to validly make Rolling Share Elections, stockholders desiring to make a Rolling Share Election will be required to waive appraisal rights in respect of any shares of Company Common Stock that they hold or may acquire that are subject to a Rolling Share Election. Any record holder of Company Common Stock who fails to properly submit an Election Form on or before the Election Deadline with respect to all or any portion of such holder’s shares of Company Common Stock will be deemed to have not made a Rolling Share Election with respect to such shares. Parent and the Company (subject to the prior approval by the Special Committee) reserve the right to cause one or more periods for Rolling Share Elections to be made prior to the Company Effective Time subject to such deadlines and procedures as they may determine to be necessary or appropriate.

 

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As promptly as practicable after the Election Deadline (or any applicable election deadline following the initial Election Deadline), Bally’s will take such actions necessary to have assigned to the Rolling Company Shares the Rolling Company Share CUSIP and will use commercially reasonable efforts to cause the Rolling Company Shares assigned the new Rolling Company Share CUSIP to be eligible for trading on the NYSE under the ticker symbol BALY.T, from the Election Deadline until the Company Effective Time.

 

The Election Form may provide that the Company Stockholders making a Rolling Share Election agree (i) not to effect any sales or other transfers of the shares of Company Common Stock subject to the Rolling Share Election from the time of submission of the Election Form until the earliest of the Election Deadline, the proper revocation of a Rolling Share Election or the valid termination of the Amended Merger Agreement pursuant to the termination provisions thereof and (ii) after the Election Deadline, not to effect any sales or other transfer of any share of Company Common Stock subject to the Rolling Share Election (i.e., a Rolling Company Share) unless and until the Rolling Company Share CUSIP is assigned in respect of such Rolling Company Share until the earliest of the Company Effective Time, the revocation of a Rolling Share Election by Parent and/or the Company, as applicable, or the valid termination of the Amended Merger Agreement pursuant to the termination provisions thereof.

 

Any Election Form may be revoked by the applicable record holder of Company Common Stock prior to the Election Deadline. All Rolling Share Elections will be revoked automatically if the Payment Agent is notified in writing by Parent and the Company prior to or after the Election Deadline that the Amended Merger Agreement has been terminated pursuant to the termination provisions thereof. In addition, each of Parent and the Company will have the authority to revoke all or any part of a Rolling Share Election at any time prior to the Company Effective Time (both before or after the Election Deadline) if it determines in good faith that such election is reasonably likely to delay or prevent receipt of any of the Requisite Gaming Approvals or the holding of shares of Company Common Stock after Closing by the holder thereof is reasonably likely to adversely affect the conduct of Gaming Activities by the Surviving Corporation or any of its Subsidiaries after the Closing. If Rolling Share Elections are revoked in accordance with the foregoing provisions, the Company will notify promptly the applicable stockholder(s) thereof and follow the additional procedures set forth in Amendment No. 2.

 

Neither the Special Committee nor the Bally’s Board has made any recommendation with regard to whether any stockholders of the Company should take the Rolling Share Election or retain and hold the Rolling Company Shares, has not considered the terms and conditions of the Rolling Share Election or the Rolling Company Shares, and has not made any recommendation with regard to or the merits of retaining an investment in the Company.

 

The foregoing description of Amendment No. 2 is not complete and is subject to and qualified in its entirety by reference to Amendment No. 2, a copy of which is filed as Exhibit 2.1 to this Current Report on Form 8-K and is incorporated herein by reference.

 

Amendment No. 2 and the above description of Amendment No. 2 have been included to provide investors with information regarding the terms of Amendment No. 2 and the transaction contemplated thereby and by the Amended Merger Agreement. Amendment No. 2 and the above description of Amendment No. 2 are not intended to provide any other factual information about the Company Parties, Buyer Parties or their respective subsidiaries or affiliates.

 

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Cautionary Statement Concerning Forward-Looking Statements

 

Certain of the matters discussed in this communication constitute forward-looking statements within the meaning of the federal securities laws. Forward-looking statements in this communication include, but are not limited to, statements regarding the proposed transaction, the ability of the Company to complete the proposed transaction and the expected timing thereof and statements regarding the future prospects of the Company following the completion of the proposed transaction. By their nature, forward-looking statements involve risks and uncertainties because they relate to events and depend on circumstances that may or may not occur in the future. As a result, these statements are not guarantees of future performance and actual events may differ materially from those expressed in or suggested by the forward-looking statements. Any forward-looking statement made by the Company in this report filed with the SEC and other public statements made from time-to-time speak only as of the date made. New risks and uncertainties come up from time to time, and it is impossible for the Company to predict or identify all such events or how they may affect it. The Company has no obligation, and does not intend, to update any forward-looking statements after the date hereof, except as required by federal securities laws. Factors that could cause these differences include, but are not limited to those included in the Company’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q and other reports filed by the Company with the SEC. These statements constitute the Company’s cautionary statements under the Private Securities Litigation Reform Act of 1995.

 

There are a number of factors that could have material adverse effects on our future results, performance or achievements and cause our actual results to differ materially from the forward-looking statements. These factors include, but are not limited to, (1) the timing, receipt and terms and conditions of any required governmental or regulatory approvals of the Mergers, (2) the ability of the parties to satisfy the conditions precedent and consummate the proposed Mergers, (3) the timing of consummation of the proposed Mergers, (4) the ability of the parties to secure any required stockholder approval in a timely manner or on the terms desired or anticipated, (5) failure of the parties to obtain the financing required to consummate the Company Merger, (6) the ability to achieve anticipated benefits and savings expected from the proposed Mergers, (7) risks related to the potential disruption of management’s attention from the ongoing business operations of the Company due to the pending Mergers, (8) the Company’s operating results and businesses generally, (9) the outcome of any legal proceedings related to the proposed Mergers and (10) the general risks associated with the respective businesses of the Company and Queen, including the general volatility of the capital markets, terms and employment of capital, the volatility of the Company’s share price, interest rates or general economy, potential adverse effects or changes to the relationships with the parties’ customers, competitors, suppliers or employees or other parties resulting from the announcement, pendency or completion of the proposed Mergers, unpredictability and severity of catastrophic events, including but not limited to the risks related to the effects of pandemics and global outbreaks of contagious diseases (such as the COVID-19 pandemic) and domestic or geopolitical crises, such as terrorism, military conflict (including the outbreak of hostilities between Russia and Ukraine and Israel and Hamas), war or the perception that hostilities may be imminent, political instability or civil unrest, or other conflict.

 

Additional Information and Where to Find It

 

This communication is being made in respect of the proposed transaction involving the Company, Standard General, and Queen. In connection with the proposed transaction, (i) the Company filed with the SEC a preliminary proxy statement on Schedule 14A on August 28, 2024 and an amended preliminary copy of which was filed with the SEC on September 30, 2024, and (ii) certain participants in the transaction, including the Company, Standard General and Queen, jointly filed with the SEC a Schedule 13E-3 Transaction Statement on August 28, 2024, and an Amendment thereto was filed with the SEC on September 30, which will contain important information on the Company, Standard General, Queen and the transaction, including the terms and conditions of the transaction. Promptly after filing its definitive proxy statement with the SEC, the Company will mail the definitive proxy statement, the Schedule 13E-3 and a proxy card to each stockholder of the Company entitled to vote at the Company Stockholders Meeting. Prior to the closing, the Company will distribute election forms to its stockholders for use by stockholders to consider making a rollover election with respect to all or a portion of their stock in the Company. This communication is not a substitute for the proxy statement, the Schedule 13E-3 Transaction Statement, the election form or any other document that the Company may file with the SEC or send to its stockholders in connection with the proposed transaction. The materials to be filed by the Company will be made available to the Company’s investors and stockholders at no expense to them and copies may be obtained free of charge on the Company’s website at www.ballys.com. In addition, all of those materials will be available at no charge on the SEC’s website at www.sec.gov. Investors and stockholders of the Company are urged to read the proxy statement, the Schedule 13E-3 Transaction Statement, the election form and the other relevant materials when they become available before making any voting or investment decision with respect to the proposed transaction because they contain important information about the Company, Standard General, Queen and the proposed transaction. This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval.

 

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Participants in the Proxy Solicitation:

 

The Company and its directors, executive officers, other members of its management and employees, and Standard General, Queen and their respective directors, executive officers and other members of their respective management and employees, may be deemed to be participants in the solicitation of proxies of the Company stockholders in connection with the proposed transaction under SEC rules. Investors and stockholders may obtain more detailed information regarding the names, affiliations and interests of the Company’s executive officers and directors in the solicitation by reading the Company’s proxy statement on Schedule 14A filed with the SEC on April 5, 2024, in connection with its 2024 annual meeting of stockholders. Investors and stockholders may obtain more detailed information regarding the names, affiliations and interests of the other participants in the solicitation by reading the proxy statement, the Schedule 13E-3 Transaction Statement, the election form and other relevant materials that have been or will be filed with the SEC in connection with the proposed transaction when they become available. Information concerning the interests of the Company’s participants in the solicitation, which may, in some cases, be different than those of the Company’s stockholders generally, will be set forth in such proxy statement relating to the proposed transaction, a preliminary copy of which was filed with the SEC on August 28, 2024 and an amended preliminary copy of which was filed with the SEC on September 30, 2024, Amendment No. 1 which was filed with the SEC on August 28, 2024, Amendment No. 2 which was filed with the SEC on September 30, 2024 and the Schedule 13E-3 Transaction Statement which was filed with the SEC on August 28, 2024, and an Amendment thereto was filed with the SEC on September 30, 2024.

 

STOCKHOLDERS OF THE COMPANY ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING THE PROXY STATEMENT, THE SCHEDULE 13E-3 TRANSACTION STATEMENT, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS, CAREFULLY WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT TRANSACTION.

 

Item 9.01 Financial Statements and Exhibits.

 

Exhibit Number		Description
2.1*		Amendment No. 2 to the Agreement and Plan of Merger, dated as of September 30, 2024, by and among Parent, Queen, Merger Sub I, Merger Sub II, the Company and, solely for purposes of specified provisions of the Merger Agreement, SG Gaming.
104		Cover Page Interactive Data File (embedded within the Inline XBRL document).

 

*	Schedules (or similar attachments) have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The registrant will furnish copies of any such schedules or similar attachments to the SEC upon request.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

	BALLY’S CORPORATION.
Date: September 30, 2024	By:	/s/ Kim M. Barker
		Kim M. Barker
		Chief Legal Officer

 

 

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Exhibit 2.1

 

AMENDMENT NO. 2

 

TO

 

AGREEMENT AND PLAN OF MERGER

 

This AMENDMENT NO. 2 (this “Amendment”), dated as of September 30, 2024 to the Agreement and Plan of Merger dated as of July 25, 2024 (as the same has been and may be amended, modified or supplemented in accordance with its terms, the “Merger Agreement”) is entered into by and among Bally’s Corporation, a Delaware corporation (the “Company”), SG Parent LLC, a Delaware limited liability company (“Parent”), The Queen Casino & Entertainment, Inc., a Delaware corporation and Affiliate of Parent (“Queen”), Epsilon Sub I, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub I”), Epsilon Sub II, Inc., a Delaware corporation and wholly owned subsidiary of the Company (“Merger Sub II”, and together with the Company and Merger Sub I, the “Company Parties”), and, solely for purposes of specified provisions of the Merger Agreement, SG CQ Gaming LLC, a Delaware limited liability company (“SG Gaming” and together with Parent and Queen, the “Buyer Parties”). Each of the Buyer Parties and the Company Parties is sometimes referred to as a “Party” and collectively as the “Parties.”

 

WHEREAS, the Parties entered into the Merger Agreement as of July 25, 2024 (the “Original Execution Date”) and Amendment No. 1 to the Merger Agreement as of August 27, 2024;

 

WHEREAS, Section 11.13 of the Merger Agreement permits the Parties to amend the Merger Agreement prior to the Closing by an instrument in writing signed by the Parties; and

 

WHEREAS, the Parties desire to amend certain terms of the Merger Agreement to the extent provided herein.

 

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:

 

Section 1. Defined Terms; References. Unless otherwise specifically defined herein, each capitalized term used herein that is defined in the Merger Agreement has the meaning assigned to such term in the Merger Agreement.

 

Section 2. Amendments to the Merger Agreement.

 

(a) Section 1.1 of the Merger Agreement is hereby amended to delete therefrom the defined term, and definition of, “Class A Common Stock” in its entirety.

 

(b) Sections 2.8(a), (b), (c) and (d) of the Merger Agreement are amended to read as follows:

 

(a) Elections. Each Person (other than the Company and its Subsidiaries) who is a record holder of shares of Company Common Stock on the Election Form Record Date, or who becomes a record holder of shares of Company Common Stock during the period between the Election Form Record Date and the Election Deadline and has received the Election Form and related materials pursuant to Section 2.8(c), may submit an Election Form specifying the number of shares of Company Common Stock held by such Person that such Person elects to have remain issued and outstanding in the Company Merger (each such share of Company Common Stock for which such election is validly made and not revoked in accordance herewith, a “Rolling Company Share,” and each such election, a “Rolling Share Election”). In making any Rolling Share Election, each such record holder making such election shall be deemed to have elected and consented to have each Rolling Company Share subject to such Rolling Share Election be assigned a new CUSIP number that will identify the Rolling Company Shares (the “Rolling Company Share CUSIP”) as set forth in Section 2.8(c). Any record holder who fails to properly submit an Election Form on or before the Election Deadline in accordance with the procedures set forth in this Section 2.8(a) with respect to all or any portion of such holder’s shares of Company Common Stock shall be deemed to have not made a Rolling Share Election with respect to such shares. Holders of record of shares of Company Common Stock who hold such shares of Company Common Stock as nominees, trustees or in other representative capacities may submit a separate Election Form on or before the Election Deadline with respect to each beneficial owner for whom such nominee, trustee or representative holds shares of Company Common Stock. The Parties agree to treat each Rolling Share Election as a non-realization event for U.S. federal income tax purposes.

 

 

 

 

(b) Appointment of Payment Agent. Prior to the mailing of the Proxy Statement by the Company to the Company Stockholders: (i) Parent and the Company shall mutually agree on the appointment of a bank or trust company to act as payment and exchange agent (the “Payment Agent”) in respect of the Rolling Share Election, Company Merger and payment of the Per Share Price; and (ii) the Company will enter into a paying agent agreement, in form and substance reasonably acceptable to Parent and the Company, with such Payment Agent, to which Parent shall be a third-party beneficiary.

 

(c) Mailing of Election Form; Election Deadline; Assignment of Rolling Company Share CUSIP. Parent shall prepare, and the Company shall direct the Payment Agent to mail, a form of election, which form shall be subject to the reasonable approval of the Company (the “Election Form”), at least twenty (20) days prior to the Company Stockholder Meeting, as reasonably determined by Parent and the Company, to the record holders of Company Common Stock on the record date for the Company Stockholder Meeting (the “Election Form Record Date”), which Election Form shall permit each record holder of shares of Company Common Stock (other than the Company and its Subsidiaries) who wishes to make a Rolling Share Election to specify the number of shares of Company Common Stock with respect to which each such holder elects the Rolling Share Election; provided that the Company shall use commercially reasonable efforts to mail or otherwise make available (by posting on the Company’s website or otherwise) the Election Form and related materials to all Persons who become record holders of Company Common Stock during the period between the Election Form Record Date and the Election Deadline for use by such holders who desire to make a Rolling Share Election. Any such holder’s Rolling Share Election shall have been properly made only if the Payment Agent shall have received at its designated office, by 5:00 p.m. Eastern time on the date of the Company Stockholder Meeting or such later date mutually agreed by Parent and the Company (the “Election Deadline”), an Election Form properly completed and signed and, if the shares of Company Common Stock in respect of which such election is sought to be made are represented by a certificate or certificates (the “Certificates”), such Election Form shall be accompanied by such Certificate or Certificates (or by an appropriate guarantee of delivery of such Certificate or Certificates as set forth in the Election Form from 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), provided that such Certificate or Certificates are in fact delivered to the Payment Agent within five (5) Business Days after receipt by the Payment Agent of such guarantee of delivery. The Election Form may provide that the stockholders making a Rolling Share Election agree (i) not to effect any sales or other transfers of any share of Company Common Stock subject to the Rolling Share Election from the time of submission of the related Election Form until the earliest of (A) the valid termination of this Agreement pursuant to Article X, (B) the Election Deadline and (C) the proper revocation of a Rolling Share Election to which such shares of Company Common Stock relate, in accordance with Section 2.8(d); provided that if a Rolling Share Election is revoked only in part, the applicable stockholders may only effect a sale or other transfer of the shares of Company Common Stock in respect of which such Rolling Share Election was revoked and (ii) after the Election Deadline, not to effect any sales or other transfers of any share of Company Common Stock subject to the Rolling Share Election (i.e., a Rolling Company Share) unless and until the Rolling Company Share CUSIP is assigned in respect of such Rolling Company Share until the earliest of (A) the valid termination of this Agreement pursuant to Article X, (B) the Company Effective Time and (C) the proper revocation of a Rolling Share Election to which such shares of Company Common Stock relate, in accordance with Section 2.8(d)(ii); provided that if a Rolling Share Election is revoked only in part, the applicable stockholders may only effect a sale or other transfer of the shares of Company Common Stock not bearing the Rolling Company Share CUSIP in respect of which such Rolling Share Election was revoked. As promptly as practicable after the Election Deadline (or any applicable election deadline following the initial Election Deadline in accordance with Section 2.8(g)), but subject to the receipt of the Requisite Stockholder Approval and Section 2.8(d), (i) the Company shall use commercially reasonable efforts to take such actions necessary to have assigned to the Rolling Company Shares the Rolling Company Share CUSIP and (ii) any stockholder that submitted to the Payment Agent in connection with the stockholder’s submission of its Election Form Certificate(s) representing shares of Company Common Stock that became Rolling Company Shares will have returned to such stockholder such Certificate(s) (or replacement Certificate(s)) representing such Rolling Company Shares bearing a legend (or other identifier) identifying such shares as being subject to the Rolling Company Share CUSIP (a “Rolling Company Share CUSIP Legend”). The Company shall use commercially reasonable efforts to cause the Rolling Company Shares assigned the Rolling Company Share CUSIP to be eligible for trading on the NYSE during regular trading hours under the ticker symbol BALY.T, from the Election Deadline until the Company Effective Time. Promptly after the Company Effective Time, the Rolling Company Shares shall, if determined by the Surviving Corporation in its discretion to be necessary to allow for the sale and transfer thereof, be assigned a CUSIP number other than the Rolling Company Share CUSIP and shall thereupon become transferable on the stock transfer books and ledger of the Company with such reassigned CUSIP number.

 

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(d) Ability to Revoke Rolling Share Elections.

 

(i) Any Election Form may be revoked by the record holders of Company Common Stock submitting it to the Payment Agent only by written notice received by the Payment Agent prior to the Election Deadline. If an Election Form is properly revoked by the record holder of Company Common Stock, any Certificate(s) (or guarantees of delivery, as appropriate) for the shares of Company Common Stock to which such Election Form relates shall be promptly returned to the stockholder that submitted the same to the Payment Agent and shares represented by such Certificates and Book-Entry Shares in respect of which an Election Form was previously submitted shall thereupon become transferable on the stock transfer books and ledger of the Company with the CUSIP number borne by such shares of Company Common Stock at the time of submission of the Election Form submitted in connection therewith.

 

(ii) All Rolling Share Elections shall automatically be revoked if the Payment Agent is notified in writing by Parent and the Company prior to or after the Election Deadline that this Agreement has been terminated pursuant to Article X. In addition, each of Parent and the Company shall have the authority to revoke all or any part of a Rolling Share Election at any time prior to the Company Effective Time (both before or after the Election Deadline) if it determines in good faith that such election is reasonably likely to delay or prevent receipt of any of the Requisite Gaming Approvals or the holding of shares of Company Common Stock after Closing by the holder thereof is reasonably likely to adversely affect the conduct of Gaming Activities by the Surviving Corporation or any of its Subsidiaries after the Closing. If a Rolling Share Election is revoked in whole or in part in accordance with the foregoing provisions of this Section 2.8(d)(ii), (i) the Company shall promptly notify the applicable stockholder of such revocation, including the number of shares of Company Common Stock in respect of which such Rolling Share Election was revoked, (ii) the shares of Company Common Stock in respect of which such Rolling Share Election was revoked shall be promptly reassigned the CUSIP number borne by such shares of Company Common Stock at the time of submission of the Election Form submitted in connection therewith and shall thereupon become transferable on the stock transfer books and ledger of the Company with such reassigned CUSIP number and (iii) to the extent any shares of Company Common Stock in respect of which such Rolling Share Election was revoked were represented by Certificate(s), the Company shall provide the applicable stockholder with Certificate(s) (or replacement Certificate(s)) representing such shares without any Rolling Company Share CUSIP Legend (if applicable, in exchange for Certificates repressing such shares containing a Rolling Company Share CUSIP Legend), all in accordance with such procedures as the Company and Parent shall determine to be necessary or appropriate.

 

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(c) Section 2.8(f) of the Merger Agreement is amended to read as follows:

 

(f) Notification of Rolling Company Shares. The Company shall provide, or cause to be provided, prompt notice (but in any event within two (2) Business Days following each applicable Election Deadline) to each Company Stockholder who submits a Rolling Share Election of the number of shares of Company Common Stock held by such Company Stockholder that will be Rolling Company Shares; provided that none of Parent, Merger Sub I or the Company shall be under any obligation to notify any Person of any defect in an Election Form.

 

(d) Each of Section 2.8(g) and Section 2.8(i) of the Merger Agreement is hereby deleted in its entirety.

 

(e) Section 2.8(h) of the Merger Agreement is hereby redesignated as Section 2.8(g) of the Merger Agreement and amended to read as follows:

 

(g) Reopening of Rolling Share Elections. After receipt of the Requisite Stockholder Approval and subject to compliance with applicable law, notwithstanding the foregoing provisions of this Section 2.8, Parent and the Company (subject to the prior approval by the Special Committee) may elect to cause one or more periods for Rolling Share Elections to be made prior to the Company Effective Time subject to such deadlines and procedures as they may determine to be necessary or appropriate. In connection with Rolling Share Elections made and not revoked in any such period, shares of Company Common Stock with respect to which a Rolling Share Election is made shall be assigned the Rolling Company Share CUSIP in respect of such Rolling Company Shares as contemplated by Section 2.8(c) of this Agreement. The Company shall notify Company Stockholders of each such period and the related deadlines and procedures by the filing with the SEC of a Form 8-K or such other report or schedule as may be appropriate. In the event any such additional period for Rolling Share Elections is elected by Parent and the Company (subject to the prior approval by the Special Committee), Rolling Share Elections made in any prior period for Rolling Share Elections, including those made prior to the original Election Deadline, may not be revoked by the applicable Company stockholder who made such prior Rolling Share Election.

 

(f) Section 8.9 of the Merger Agreement is hereby amended by deleting the following phrase that appears immediately after the words “the Queen Merger”: “or any exchange of shares of Company Common Stock for shares of Class A Common Stock or exchange of conversion of shares of Class A Common Stock to shares of Common Stock”, and replacing such phrase by inserting the following phrase: “or any assignment (or reassignment) of a CUSIP number in respect of Rolling Company Shares as contemplated by this Section 2.8”.  

 

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Section 3. Company Disclosure Letter. The Company Disclosure Letter is amended as set forth on Annex A to this Amendment. Each part of the Company Disclosure Letter corresponds to the numbered and lettered sections and subsections of the Merger Agreement, it being understood that any matter disclosed in any section or subsection of the Company Disclosure Letter will be deemed to be disclosed with respect to each other section or subsection of the Agreement to the extent that it is reasonably apparent on the face of such disclosure that it is applicable to such other section or subsection of the Merger Agreement.

 

Section 4. Effect of Amendment. From and after the date hereof, each reference in the Merger Agreement (or in any and all instruments or documents provided for in the Merger Agreement or delivered or to be delivered thereunder or in connection therewith) to “this Agreement”, “hereunder”, “hereof”, “herein”, or words of like import shall, except where the context otherwise requires, be deemed a reference to the Merger Agreement as amended hereby. No reference to this Amendment need be made in any instrument or document at any time referring to the Merger Agreement, and a reference to the Merger Agreement in any of such instruments or documents will be deemed to be a reference to the Merger Agreement as amended hereby. The parties hereto agree that all references in the Merger Agreement to “the date hereof” or “the date of this Agreement” shall refer to the Original Execution Date. The Merger Agreement shall not be modified by this Amendment in any respect except as expressly set forth herein.

 

Section 5. Other Provisions. This Amendment hereby incorporates the provisions of Section 1.3 and Article XI (General Provisions) of the Merger Agreement as if fully set forth herein, mutatis mutandis.

 

[Signature Page Follows]

 

-5-

 

 

IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their respective duly authorized officers as of the date first written above.

 

	SG PARENT LLC
	By	/s/ Soohyung Kim
	Name:	Soohyung Kim
	Title:	Chief Executive Officer
	THE QUEEN CASINO & ENTERTAINMENT, INC.
	By	/s/ Vladimira Mircheva
	Name:	Vladimira Mircheva
	Title:	Chief Financial Officer
	SG CQ GAMING LLC
	By	/s/ Soohyung Kim
	Name:	Soohyung Kim
	Title:	Manager
	BALLY’S CORPORATION
	By	/s/ Marcus Glover
	Name:	Marcus Glover
	Title:	Chief Financial Officer
	EPSILON SUB I, INC.
	By	/s/ Marcus Glover
	Name:	Marcus Glover
	Title:	Director and Chief Financial Officer
	EPSILON SUB II, INC.
	By	/s/ Marcus Glover
	Name:	Marcus Glover
	Title:	Director and Chief Financial Officer

 

[Signature Page to Amendment No. 2 to Merger Agreement]

 

 

 

Annex A

 

AMENDMENT TO COMPANY DISCLOSURE LETTER

 

Sections 4.7(a), 4.7(b) and Section 7.2 of the Company Disclosure Letter are hereby amended to incorporate the transactions contemplated by the Amendment and to delete any reference to the Certificate of Amendment and the Class A Common Stock contemplated by Amendment No. 1 to the Merger Agreement.

 

 

 

 

Cover	Sep. 30, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 30, 2024
Entity File Number	001-38850
Entity Registrant Name	BALLY’S CORPORATION
Entity Central Index Key	0001747079
Entity Tax Identification Number	20-0904604
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	100 Westminster Street
Entity Address, City or Town	Providence
Entity Address, State or Province	RI
Entity Address, Postal Zip Code	02903
City Area Code	401
Local Phone Number	475-8474
Written Communications	false
Soliciting Material	true
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common stock, $0.01 par value
Trading Symbol	BALY
Security Exchange Name	NYSE
Entity Emerging Growth Company	false

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