Form 8-K AG&E HOLDINGS INC. For: Jun 07

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): June 7, 2016

 

AG&E HOLDINGS INC.

(Exact Name of Registrant as Specified in its Charter)

 

 

Illinois	1-8250	36-1944630
(State or other jurisdiction of incorporation)	(Commission file number)	(I.R.S. employer identification no.)
4630 South Arville Street, Suite E, Las Vegas, NV 89103
(Address of principal executive offices) (Zip code)
Registrant’s telephone number, including area code: (702) 798-5752

 

____________________________________________________________

(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 obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

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

 

[X] 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))

 

 

Item 1.01. Entry into a Material Definitive Agreement

 

As previously reported in its Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on April 14, 2016 (the “Prior Form 8-K”), AG&E Holdings Inc., an Illinois corporation (the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with American Gaming & Electronics, Inc., a Nevada corporation and wholly-owned subsidiary of the Company (“Merger Sub”), Advanced Gaming Associates LLC, a Pennsylvania limited liability company (“AGA”), and Anthony Tomasello, as the sole member and representative of AGA (“Mr. Tomasello”). Pursuant to and subject to the terms and conditions of the Merger Agreement, AGA will be merged with and into Merger Sub (the “Merger”), and the separate legal existence of AGA will cease, and Merger Sub will continue as the surviving entity of the Merger and will remain a wholly-owned subsidiary of the Company.

 

On July 20, 2016, the foregoing parties, as applicable, entered into Amendment No. 1 to Agreement and Plan of Merger (the “Merger Agreement Amendment”). Under the Merger Agreement Amendment, the date in which all conditions to closing must be satisfied (also known as the “Drop Dead Date”) has been changed from 120 days after the date of signing of the Merger Agreement to the later of (i) December 31, 2016, or (ii) subject to the satisfaction of certain conditions, the date in which the gaming authorities in the States of Michigan, Delaware and Maryland consent to or reject the Merger. In addition, the Merger Agreement Amendment removes the break-up fee from the Merger Agreement, and no party will be liable for the payment of a break-up fee if the Merger Agreement is terminated.

 

Further, the Merger Agreement Amendment provides that it shall be a condition to closing of the Merger that (i) AGA and/or Mr. Tomasello obtains consent from the gaming authorities of the State of Michigan to proceed with the Merger, and (ii) Merger Sub obtains consent from the gaming authorities of the States of Delaware and Maryland to proceed with the Merger. The Merger Agreement also provides AGA and Mr. Tomasello with additional discretion, subject to certain requirements, related to determining whether they will submit documentation to certain regulatory authorities in connection with the Merger.

 

Other than as expressly modified by the Merger Agreement Amendment, the Merger Agreement, which was previously filed as an exhibit to the Prior Form 8-K, remains in full force and effect as originally executed on April 12, 2016.

 

For additional information relating to the Merger Agreement Amendment, refer to the full text of such document, which is attached as Exhibit 2.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

On June 7, 2016, the board of directors of the Company amended Article III, Section 2 of the Company’s Bylaws to provide that the number of directors of the Company shall be not less than three or more than seven. For additional information regarding the amendment, refer to the full text of the Second Amendment to Amended and Restated Bylaws, which is attached as Exhibit 3.1 to this Current Report on Form 8-K, and is incorporated herein by reference.

 

 

Item 8.01 Other Events.

 

On July 21, 2016, the Company filed a preliminary proxy statement in connection with the Merger. The proxy statement also includes, among other things, a proposal related to the election of directors. The Board has established a record date of August 3, 2016 and a shareholder meeting date of September 14, 2016.

 

Item 9.01. Financial Statements and Exhibits.

 

(d)     Exhibits

 

As described above, the following exhibits are filed as part of this report:

 

Exhibit No.		Description
2.1		Amendment No. 1 to Agreement and Plan of Merger, dated as of July 20, 2016, by and among AG&E Holdings Inc., American Gaming and Electronics, Inc., Advanced Gaming Associates LLC and Anthony Tomasello, in his capacity as the sole member and representative of Advanced Gaming Associates LLC
3.1		Second Amendment to Amended and Restated Bylaws

 

 

Cautionary Note Regarding Forward-Looking Statements

 

This report contains forward-looking statements within the meaning of the federal securities laws. The Private Securities Litigation Reform Act of 1995 provides a safe harbor for such forward-looking statements. The words believe, expect, anticipate, estimate, intend, will, and other similar statements of expectation identify forward-looking statements. Those statements include statements regarding the intent, belief or expectations of the Company and its management. Readers are cautioned that the forward-looking statements are not guarantees of future performance and involve a number of risks and uncertainties, and that actual results could differ materially from those expressed in any forward-looking statement. These forward-looking statements are subject to a variety of risks and uncertainties. Consequently, actual results and experience may differ materially from those contained in any forward-looking statements. Such risks and uncertainties include: the failure to obtain shareholder approval of the Merger Agreement and the transactions contemplated thereby, including the Merger; the possibility that the closing conditions to the Merger Agreement may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant a necessary regulatory approval; delay in the Closing or the possibility of non-consummation of the transactions contemplated by the Merger Agreement, including the Merger; the occurrence of any event that could give rise to termination of the Merger Agreement; the risk that shareholder litigation in connection with the transactions contemplated by the Merger Agreement, including the Merger, may affect the timing or occurrence of the Closing or result in significant costs of defense, indemnification and liability; risks related to the disruption of the Merger to the Company and its management; the effect of announcement of the Merger on the Company’s ability to retain and hire key personnel and maintain relationships with suppliers and other third parties; the Company’s loss of employees and executives; and its failure to meet listing requirements. The Company assumes no obligation to update the information contained in this report to reflect events or circumstances after the date of this report or to reflect the occurrence of unanticipated events.

 

Additional Information and Where to Find It

 

This communication may be deemed to be solicitation material in respect of the Merger. In connection with the solicitation of proxies for the Merger, the Company filed a proxy statement in preliminary form on July 21, 2016, and intends to file a proxy statement in definitive form. The definitive proxy statement will contain important information about the proposed Merger and related matters. BEFORE MAKING A VOTING DECISION, SHAREHOLDERS OF THE COMPANY ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT AND OTHER RELEVANT MATERIALS CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY AND THE MERGER. Shareholders will be able to obtain copies of the proxy statement and other relevant materials (when they become available) and any other documents filed by the Company with the SEC for no charge at the SEC’s website at www.sec.gov. In addition, shareholders will be able to obtain free copies of the proxy statement from the Company by contacting the Company’s Investor Relations Department by telephone at 702.798.5752, by mail to the Company, Attention: Investor Relations Department, 4630 South Arville Street, Suite E, Las Vegas, NV 89103, or by going to the Company’s Investor Relations page on its corporate website at http://www.americangaminginc.com.

 

 

Participants in the Proxy Solicitation

 

The Company and certain of its directors, executive officers and other employees may be deemed to be participants in the solicitation of proxies from the Company’s shareholders in respect of the Merger. Information concerning the ownership of the Company’s securities by the Company’s directors and executive officers is included in their SEC filings on Forms 3, 4, and 5, and additional information about the Company’s directors and executive officers is also available in the Company’s Form 10-K for the year ended December 31, 2015 filed with the SEC on March 30, 2016, and is supplemented by other public filings made, and to be made, with the SEC by the Company. Other information regarding persons who may be deemed participants in the proxy solicitation, including their respective interests by security holdings or otherwise, will be set forth in the definitive proxy statement that the Company intends to file with the SEC. These documents can be obtained free of charge from the sources indicated above.

 

 

SIGNATURE

 

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.

 

 

 

	AG&E HOLDINGS INC.
	By:	/s/ Anthony Spier
	Name:	Anthony Spier
	Title:	Chief Executive Officer

 

 

Date:     July 22, 2016

 

 

EXHIBIT INDEX

 

 

Exhibit No.		Description
2.1		Amendment No. 1 to Agreement and Plan of Merger, dated as of July 20, 2016, by and among AG&E Holdings Inc., American Gaming and Electronics, Inc., Advanced Gaming Associates LLC and Anthony Tomasello, in his capacity as the sole member and representative of Advanced Gaming Associates LLC
3.1		Second Amendment to Amended and Restated Bylaws

 

 

Exhibit 2.1

 

 

AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER

 

This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) dated as of July 20, 2016 is entered into by and among AG&E Holdings Inc., an Illinois corporation (“Parent”), American Gaming & Electronics, Inc., a Nevada corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”), Advanced Gaming Associates LLC, a Pennsylvania limited liability company (the “Company”), the Company Member (as defined in the Original Agreement), and Anthony Tomasello, in his capacity as the Company representative (the “Company Representative”).

 

A.     The parties entered into that certain Agreement and Plan of Merger, dated as of April 12, 2016 (the “Original Agreement”), whereby the parties intend to effect a merger of the Company with and into Merger Sub in accordance with the Original Agreement (the “Merger”) and the applicable Merger Statutes. Upon consummation of the Merger at Closing, the Company will cease to exist, and Merger Sub will remain a direct wholly-owned Subsidiary of Parent.

 

B.     Capitalized terms not defined in this Amendment shall have the meanings ascribed to them in the Original Agreement.

 

C.     The parties now desire to amend certain provisions of the Original Agreement, as set forth below.

 

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and intending to be legally bound hereby, the parties agree as follows:

 

1.            Amendments to the Original Agreement. As of the Effective Date (defined below), the Original Agreement is hereby amended or modified as follows:

 

(a)     The definition of “Drop Dead Date” now appearing in Section 1.01 of the Original Agreement is hereby amended in its entirety to read as follows:

 

“Drop Dead Date” shall mean the later of (i) December 31, 2016, or (ii) provided that the requirements set forth in Section 5.17(b) herein have been met, the date in which all Consents are obtained by the Company and/or the Company Member, as applicable, from the State of Michigan and by the Parent and Merger Sub from the State of Delaware and the State of Maryland; provided, however, that if any of the foregoing states rejects or refuses to provide any such Consent, the Drop Dead Date shall be the date of such rejection or refusal, as the case may be.

 

(b)     Section 2.03(a) of the Original Agreement is hereby amended in its entirety to read as follows:

(a) Closing. Subject to the satisfaction or waiver of the conditions set forth in Article VI, the consummation of the transactions contemplated by this Agreement (the “Closing”) will take place at the offices of Fox Rothschild LLP, 353 N. Clark Street, Suite 3650, Chicago, Illinois 60654, at 10:00 a.m. on a Business Day to be agreed upon by the parties, which, unless the parties otherwise mutually agree in writing, shall be no earlier than the fifth Business Day and no later than the tenth Business Day after satisfaction or waiver of the conditions set forth in Article VI, other than those conditions that by their nature are to be satisfied at the Closing, but subject to the fulfillment or waiver of those conditions; provided, however, that the parties may attend

the Closing by means of remote communication and shall not be required to personally attend. The date on which the Closing actually takes place is referred to in the Agreement as the “Closing Date.”

 

 

(c)     Section 8.01(b)(ii) of the Original Agreement is hereby amended by deleting the words “the date that is 120 days after the date hereof (the “Drop Dead Date”)” and substituting in lieu thereof the words “the Drop Dead Date”.

 

(d)     Section 5.17 of the Original Agreement is hereby amended in its entirety to read as follows:

 

5.17     Regulatory Matters.

 

(a)     Subject to the limitations imposed by Section 5.17(b), the parties hereto shall cooperate with each other and use Commercially Reasonable Efforts promptly to prepare and file all necessary documentation, to effect all applications, notices, petitions and filings, and to obtain as promptly as practicable all Consents of all third parties and Governmental Entities which are necessary or advisable to consummate the transactions contemplated by this Agreement (including without limitation the Merger); for the avoidance of doubt, the foregoing shall apply to any and all applications, notices, petitions and filings, made by Parent and Merger Sub, in their sole discretion, to any Governmental Entity that regulates the gaming industry and investigation or change in control approval process arising therefrom. Notwithstanding the foregoing, other than with respect to Michigan (as defined in (b) below), if the Company and/or the Company Member, as applicable, reasonably determines, based upon factual information and well-reasoned analysis, that any Governmental Entity is unwilling to grant such Consents based solely upon the prior history of Par-4, Inc., then the Company and/or the Company Member, as applicable, shall not be required under this section to submit any documentation to such Governmental Entity; provided that the Company and/or the Company Member, as applicable, shall provide to the Parent and Merger Sub prompt written notice of its determination, which notice shall include the name of the applicable jurisdiction and a reasonably detailed description of the factual information and analysis used to make such determination. The Company and Parent shall have the right to review in advance, and to the extent practicable each will reasonably consult with the other on, in each case subject to Applicable Laws relating to the exchange of information, all the information relating to the Company, the Company Member, Parent or Merger Sub, as the case may be, which appear in any filing made with or written materials submitted to, any third party or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing right, each of the parties hereto shall act reasonably and as promptly as practicable. The parties hereto agree that they will reasonably consult with each other with respect to the obtaining of all Consents of all third parties and Governmental Entities necessary to consummate the transactions contemplated by this Agreement and each party will keep the other reasonably apprised of the status of matters relating to completion of the transactions contemplated herein. Parent (or Merger Sub as the case may be) and the Company (or the Company Member, as the case may be) shall promptly furnish each other with copies of written communications received by Parent, Merger Sub, the Company, and the Company Member, as the case may be, from or delivered by any of the foregoing to or from, any Governmental Entity in respect of the transactions contemplated hereby. The parties agree that if any jurisdiction requires the Company and/or the Company Member to withdraw or surrender an application (a “Withdrawal”), such Withdrawal is not deemed to be a Consent hereunder.

 

 

(b)     (i) The Company and/or the Company Member, as applicable, shall prepare and, on or before August 15, 2016, file all documentation necessary so that Consent to the Merger and related transactions can be obtained from the Michigan Gaming Control Board (“Michigan”) on or before the Drop Dead Date, and the Company and/or the Company Member, as applicable, shall work expeditiously to obtain such Consent from Michigan as soon as practicable, including promptly responding to all follow-up requests; (ii) the Parent and Merger Sub shall use Commercially Reasonable Efforts to file all documentation necessary so that Consent to the Merger and related transactions can be obtained from the New York State Gaming Commission as soon as practicable; and (iii) the Parent and Merger Sub shall prepare and, on or before August 15, 2016, file all documentation necessary to obtain the Consent to the Merger and related transactions from the Delaware Division of Gaming Enforcement (“Delaware”) and Maryland Lottery and Gaming Control Agency (“Maryland”) so that the Parent and Merger Sub can, upon and after Closing of the Merger, continue the business conducted by the Company in Delaware and Maryland prior to the Merger without interruption, and Parent and Merger Sub shall work expeditiously to obtain such Consents from Delaware and Maryland as soon as practicable, including promptly responding to all follow-up requests.

 

(e)     Schedule 6.01(c)-2 to the Original Agreement, which sets forth certain Consents that Parent and Merger Sub must receive for the mutual condition to Closing set forth in Section 6.01(c) of the Original Agreement to be satisfied, is hereby amended in its entirety to read as follows:

 

1.     Consent to the Merger by the Michigan Gaming Control Board shall have been obtained by Parent and Merger Sub prior to Closing, which such consent shall include but not be limited to permitting Parent and Merger Sub, after the Closing, to conduct the business being conducted by the Parent and Merger Sub prior to the Closing.

 

2.     Consent to the Merger by the Delaware Division of Gaming Enforcement and Maryland Lottery and Gaming Control Agency shall have been obtained by the Parent and Merger Sub prior to Closing, which such consent shall include but not be limited to permitting Parent and Merger Sub, after the Closing, to conduct the business being conducted by the Company prior to the Closing.

 

(f)     Section 6.02(a) of the Original Agreement is hereby amended by adding “3.04(c)” in each place it currently lists “Section 3.01, 3.02, 3.03 and 3.13”

 

(g)     Section 8.01(b)(v) of the Original Agreement and the definition of “Break-Up Fee” contained in Section 1.01 of the Original Agreement are each hereby deleted in its entirety.

 

(h)     Section 10.01(a) of the Original Agreement is hereby amended in its entirety to read as follows:

 

if to Parent, Merger Sub, or the Surviving Entity, to:

 

AG&E Holdings Inc.

4630 South Arville Street, Suite E

Las Vegas, NV 89103

Attn: Chief Executive Officer

Phone: 708.290.2100

E-mail: [email protected]

 

 

with a copy (which shall not constitute notice) to:

 

Fox Rothschild LLP

353 N. Clark Street

Suite 3650

Chicago, IL 60654

Phone: 312.517.9215

Facsimile: 312.517.9201

Email: [email protected]

Attention: Donna More, Esq.

 

2.     Date of Effectiveness; Limited Effect. This Amendment will be deemed effective as of the date first written above (the “Effective Date”). Except as expressly provided in this Amendment, all of the terms and provisions of the Original Agreement are and will remain in full force and effect and are hereby ratified and confirmed by the parties. Without limiting the generality of the foregoing, the amendments contained herein will not be construed as an amendment to or waiver of any other provision of the Original Agreement or as a waiver of or consent to any further or future action on the part of either party that would require the waiver or consent of the other party. On and after the Effective Date, each reference in the Original Agreement to “this Agreement,” “the Agreement,” “hereunder,” “hereof,” “herein” or words of like import, and each reference to the Original Agreement in any other agreements, documents or instruments executed and delivered pursuant to, or in connection with, the Original Agreement, will mean and be a reference to the Original Agreement as amended by this Amendment. If there is a conflict between the terms and conditions of this Amendment and the terms and conditions in the Original Agreement, the terms and conditions of this Amendment shall control.

 

3.     Preliminary Proxy Statement. As promptly as practicable (but in no event more than 14 days) after the date hereof, Parent shall prepare and shall cause to be filed with the SEC in preliminary form a proxy statement relating to the Original Agreement and the transactions contemplated thereby.

 

4.     Miscellaneous.

 

(a)     This Amendment shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction).

 

(b)     This Amendment may be executed in counterparts, each of which shall be deemed an original, but all of which together shall be deemed to be one and the same agreement. A signed copy of this Amendment delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of this Amendment.

 

(c)     This Amendment constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 

[Signature Page Follows.]

 

 

IN WITNESS WHEREOF, the parties have executed this Amendment as of the date first above written.

 

PARENT:

 

AG&E HOLDINGS INC.

 

 

By: /s/ Anthony Spier                   

Name: Anthony Spier

Title: Chief Executive Officer

 

 

MERGER SUB:

 

American Gaming & Electronics, Inc.

 

 

By:/s/ Anthony Spier                    

Name: Anthony Spier

Title: Chief Executive Officer

 

 

COMPANY:

 

Advanced Gaming Associates LLC

 

 

By:/s/ Anthony Tomasello           

Name: Anthony Tomasello

Title: Managing Member, CEO and President

 

 

COMPANY MEMBER:

 

 

/s/ Anthony Tomasello                 

Anthony Tomasello

 

 

COMPANY REPRESENTATIVE:

 

 

/s/ Anthony Tomasello                 

Anthony Tomasello

 

 

 

[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]

 

Exhibit 3.1

 

SECOND AMENDMENT TO

AMENDED AND RESTATED BYLAWS

of

ag&e hOLDINGS iNC.

 

 

 

This Second Amendment to Amended and Restated Bylaws of AG&E Holdings Inc., an Illinois corporation (the “Company”), was approved on the 7th day of June, 2016, by the board of directors of the Company.

 

The Amended and Restated Bylaws of the Company, as amended by that First Amendment thereto (collectively, the “Bylaws”), are amended hereby as follows:

 

The first sentence of Article III, Section 2 is deleted and hereby replaced with the following:

 

The number of directors of the Corporation shall be from three (3) to seven (7) as fixed from time to time by the Board of Directors, but no decrease in the number of directors shall shorten the term of any incumbent director.

 

All other terms of the Bylaws shall remain in full force and effect.

 

 

 

 

 

/s/ Anthony Spier          

 

As of June 7, 2016

 

 

 

 

 

 

 

 

 

 

 

 

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