This Amendment No. 2 (this “Amendment”) amends and supplements the Tender Offer Statement on Schedule TO filed with the Securities and Exchange Commission (the “SEC”) on November 23, 2021, and amended and supplemented by Amendment No. 1 filed with the SEC on December 1, 2021 (the “Schedule TO”) 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 to the Schedule TO as Exhibit (a)(1)(A), and in the related letter of transmittal (the “Letter of Transmittal”, a copy of which is attached to the Schedule TO 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 the Schedule TO, and is supplemented by the information specifically provided in the Schedule TO.
Except as otherwise set forth in this Amendment, the information set forth in the Schedule TO remains unchanged and is incorporated herein by reference to the extent relevant to the items in this Amendment. Capitalized terms used but not defined herein have the meanings assigned to such terms in the Offer to Purchase or in the Schedule TO.
Items 1 through 9 and Item 11
The Offer to Purchase and Items 1 through 9 and Item 11 of the Schedule TO, to the extent such Items incorporate by reference the information contained in the Offer to Purchase, are hereby amended and supplemented as follows:
Section 16 – “Certain Legal Matters; Regulatory Approvals” is amended and supplemented by adding a new subsection immediately following the end of the subsection entitled “Dissenters’ Rights” as follows:
“Litigation
Between December 6, 2021 and December 10, 2021, six actions relating to the Merger Transactions were filed by purported Dover stockholders against Dover, the members of the Dover Board, and as it relates to Hopkins v. Dover (as defined below) Speedway and Purchaser, in (a) the U.S. District Court for the Southern District of New York (Lawton v. Dover Motorsports, Inc. et. al., Case No. 1:21-cv-10414, Wilson v. Dover Motorsports, Inc. et. al., Case No. 1:21-cv-10580, Taylor v. Dover Motorsports, Inc. et. al., Case No. 1:21-cv-10572, Morgan v. Dover Motorsports, Inc. et. al., Case No. 1:21-cv-10592 and Hopkins v. Dover Motorsports, Inc. et. al., Case No. 1:21-cv-10465 (“Hopkins v. Dover”)), and (b) the Delaware Chancery Court (Dugerian v. Dover Motor Sports, Inc. et. al., Case No. 2021-1067) (collectively, the “Complaints”). The Complaints generally allege that the Offer Price is unfair and the Schedule 14D-9 filed by Dover misrepresents or omits material information necessary for Dover stockholders to make an informed decision regarding the Offer, and assert claims for breach of fiduciary duties and/or violation of Sections 14 and 20(a) of the Exchange Act. The Complaints seek, among other things, to enjoin the Offer or, should it be consummated, to rescind it or award damages, as well as an award of the plaintiffs’ attorneys’ fees and costs in the actions.
Speedway and Purchaser have not yet answered or moved to dismiss Hopkins v. Dover and believe it is without merit. We have been told by Dover that Dover and the members of the Dover Board also have not yet answered or moved to dismiss any of the Complaints and believe they are without merit. However, there can be no assurance that Speedway, Purchaser, Dover or the members of the Dover Board will prevail in any lawsuit. We intend to determine the materiality of any additional complaints that may be filed in connection with the Merger Transactions based on whether they contain materially new or different allegations to the Complaints, as well as such other factors as we may deem appropriate.”
