425

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): December 1, 2021

FAST ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware	001-39462	85-1338207
(State or other jurisdiction of incorporation)	(Commission File Number)	(IRS Employer Identification No.)

109 Old Branchville Rd.

Ridgefield, CT 06877

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (201) 956-1969

Not Applicable
(Former name or former address, if changed since last report)

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

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Units, each consisting of one share of Class A common stock and one-half of one redeemable warrant	FST.U	The New York Stock Exchange
Class A common stock, par value $0.0001 per share	FST	The New York Stock Exchange
Redeemable warrants, each whole warrant exercisable for one share of Class A common stock, each at an exercise price of $11.50 per share	FST WS	The New York Stock Exchange

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:

☒ 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))

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 8.01. Other Events.

As previously disclosed, on February 1, 2021, FAST Acquisition Corp. (the “Company”) entered into an Agreement and Plan of Merger (as amended, the “Merger Agreement”) with Fertitta Entertainment, Inc., a Texas corporation (“FEI”), and the other parties thereto, pursuant to which, among other things, FEI would become a wholly owned subsidiary of FAST Merger Corp. (the “Business Combination”). On December 1, 2021, the Company received a notice from FEI that purported to terminate the Merger Agreement pursuant to Section 9.01(a) thereof (the “Purported Termination Notice”), which provides that the Merger Agreement may be terminated by either the Company or FEI if the closing of the Business Combination (the “Closing”) has not occurred by December 1, 2021 (the “Termination Date”), provided that such right to terminate is not available to any party whose action or failure to fulfill any obligation under the Merger Agreement was the primary cause of such failure of the Closing to occur on or prior to such date. A copy of the Purported Termination Notice is attached as Exhibit 99.1 hereto and is incorporated herein by reference.

On December 1, 2021, the Company sent a letter to FEI in response to the Purported Termination Notice stating, among other things, that FEI is not permitted to terminate the Merger Agreement pursuant to Section 9.01(a) because FEI’s actions and failures to fulfill its obligations under the Merger Agreement, including, without limitation, FEI’s failure to deliver the financial statements required by Section 7.01(a) of the Merger Agreement no later than March 31, 2021, are unquestionably the primary cause of the failure of the Closing to occur by the Termination Date, and, as such, FEI continues to be bound to its obligations under the Merger Agreement in all respects. The Company further stated that it intends to take all necessary steps to protect itself and its investors. A copy of the Company’s letter is attached as Exhibit 99.2 hereto and is incorporated herein by reference.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

Exhibit Number	Description
99.1	Notice of Termination, dated December 1, 2021.
99.2	Letter to FEI, dated December 1, 2021.
104	Cover Page Interactive Data File (embedded within the Inline XBRL document).

Important Information about the Business Combination and Where to Find It

In connection with the proposed Business Combination, FAST Merger Corp., a wholly owned subsidiary of the Company, filed a registration statement on Form S-4 (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”), which includes a proxy statement/prospectus, and certain other related documents, which is both the proxy statement that was distributed to holders of shares of the Company’s common stock in connection with its solicitation of proxies for the vote by the Company’s stockholders with respect to the Business Combination and other matters as may be described in the Registration Statement, as well as the prospectus relating to the offer and sale of the securities of FAST Merger Corp. to be issued in the Business Combination. The Company’s stockholders and other interested persons are advised to read the definitive proxy statement/prospectus, which was filed with the SEC, as it contains important information about the parties to the Merger Agreement, the Company and the Business Combination. The Registration Statement was declared effective on November 24, 2021 and the definitive proxy statement/prospectus was mailed to stockholders of the Company as of the record date established for voting on the Business Combination and the other matters described in the definitive proxy statement/prospectus. Stockholders may also obtain copies of the definitive proxy statement/prospectus and other documents filed with the SEC that are incorporated by reference in the proxy statement/prospectus, without charge, at the SEC’s website at www.sec.gov, or by directing a request to: FAST Acquisition Corp., 109 Old Branchville Rd. Ridgefield, CT 06877, Attention: Sandy Beall, Chief Executive Officer.

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Participants in the Solicitation

The Company and its directors and executive officers may be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the Business Combination. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the definitive proxy statement/prospectus and is available free of charge from the sources indicated above.

FEI and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination is contained in the definitive proxy statement/prospectus. 

No Offer or Solicitation

This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act.

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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.

	FAST ACQUISITION CORP.
	By:	/s/ Sandy Beall
		Name: Sandy Beall
		Title: Chief Executive Officer
Dated: December 2, 2021

3

EX-99.1

Exhibit 99.1

 

Steven L. Scheinthal

Executive vice President

and General Counsel

December 1, 2021

FAST Acquisition Corp.

3 Minetta Street

New York, NY 10012

Attn: Sandy Beall and Garrett Schreiber

cc: Winston & Strawn LLP

200 Park Avenue

New York, NY 10166

Atten: Brad Vaiana and Jason Osborn

Delivered via Email and FEDEX

Re: Termination of Merger Agreement

Gentlemen:

Reference is made to that certain Argeement and plan of Merger, dated as of February 1, 2021 and amended on June 30, 2021 (as amended, the “Merger Agreement”), by and among Fertitta Entertainment, Inc., a Texas corporation (“Florida”), FAST Acquistion Corp., a Delaware corporation (“SPAC”), FAST Merger Corp., a Texas corportion and direct, wholly owned subsidiary of SPAC (“SPAC Newco”), and FAST Merger Sub Inc., a Texas corportion and direct, wholly owned subsidiary of SPAC (“ Merger Sub”). Capitalized terms used but not defined herein have the meaning given to such terms in the Merger Agreement.

Pursant to Sectoin 10.02 of the Merger Agreement, Florida hereby provides SPAC, SPAC Newco and Merger Sub with written notice of its election to terminate the Merger Agreement and abandon the transactions contemplated thereby pursuant to Section 9.01(a) thereof due to the failure of the Closing to have occurred by the Termination Date.

The contents of this written notice are without prejudice to any rights which Flordia may have pursuant to the Merger Agreement or otherwise, which are hereby expressly reserved. Nothing herein is intended to limit or waive any rights of Florida related to the Merger Agreement or otherwise.

[Signature Page Follows]

Fertitta Entertainment, Inc.
By:	/s/ Steven L. Scheinthal
Name:	Steven L. Scheinthal
Title:	General Counsel

cc: Latham & Watkins LLP

811 Main Street, Suite 3700

Houston, TX 77002

Attn:	Marc D. Jaffe; Ian D. Schuman;
	Ryan J. Maierson; Nick S. Dhesi

Signature Page to Termination Notice

EX-99.2

Exhibit 99.2

December 1, 2021

VIA EMAIL AND FEDEX

Fertitta Entertainment, Inc.

1510 West Loop South

Houston, TX 77027

Attn: Steven L. Scheinthal, General Counsel

Email: sscheinthal@ldry.com

Cc:	Latham & Watkins LLP
	811 Main Street, Suite 3700
	Houston, TX 77002
	Attn:	Marc D. Jaffe
		Ian D. Schuman
		Ryan J. Maierson
		Nick S. Dhesi
	Email:	marc.jaffe@lw.com
		ian.schuman@lw.com
		ryan.maierson@lw.com
		nick.dhesi@lw.com

Re: Response to Purported Notice re Termination of Merger Agreement

Gentlemen:

Reference is made to (1) that certain Agreement and Plan of Merger, dated as of February 1, 2021 and amended on June 30, 2021 (as amended, the “Merger Agreement”), by and among Fertitta Entertainment, Inc., a Texas corporation (“Florida”), FAST Acquisition Corp., a Delaware corporation (“SPAC”), FAST Merger Corp., a Texas corporation and direct, wholly owned subsidiary of SPAC (“SPAC Newco”), and FAST Merger Sub Inc., a Texas corporation and direct, wholly-owned subsidiary of SPAC (“Merger Sub”); and (2) that purported notice re Termination of Merger Agreement (the “Purported Notice”), dated as of December 1, 2021, delivered by Florida to SPAC on December 1, 2021. Capitalized but undefined terms herein have the meanings ascribed to them in the Merger Agreement.

The letter is being provided in response to the Purported Notice. Florida is not permitted to terminate the Merger Agreement pursuant to Section 9.01(a) because “the right to terminate this Agreement under this Section 9.01(a) shall not be available to any party hereto whose action or failure to fulfill any obligation under this Agreement or the Separation Agreement shall have been the primary cause of the failure of the Closing to occur on or prior to such date”. Florida’s actions and failures to fulfill its obligations under the Merger Agreement, including, without limitation, Florida’s failure to deliver the financial statements required by Section 7.01(a) of the Merger Agreement until July 2021, despite being required to provide them no later than March 31, 2021, are unquestionably the primary cause of the failure of the Closing to occur by the Termination Date.

Accordingly, the Purported Notice is invalid, unenforceable, of no legal force and effect and is hereby rejected.  We hereby demand that Florida withdraw the Purported Notice immediately and take all necessary steps to consummate the transactions contemplated by the Merger Agreement forthwith. The Purported Notice and any further failure to comply with Florida’s ongoing obligations under the Merger Agreement constitute a material breach. Florida remains bound by its obligations pursuant to the Merger Agreement, including, without limitation, the obligation set forth in Section 7.18(b) of the Merger Agreement to, and to cause its Subsidiaries to, use reasonable efforts to obtain all material consents and approvals of third parties and to take such other action as may be reasonably necessary to satisfy the conditions set forth in the Merger Agreement and to otherwise comply with the Merger Agreement and consummate the Transactions as soon as practicable. 

Florida’s material breach has and will cause irreparable injury, and we intend to take all necessary steps to protect the SPAC and its investors. You are hereby placed on notice of breach and that should your breach not be immediately remedied, we intend to initiate litigation.

The contents of this written notice are without prejudice to any rights which SPAC, SPAC Newco or Merger Sub may have pursuant to the Merger Agreement or otherwise, which are hereby expressly reserved. Nothing herein is intended to limit or waive any rights of SPAC, SPAC Newco or Merger Sub related to the Merger Agreement or otherwise.

[Signature page to follow]

Sincerely,
FAST ACQUISITION CORP.
By:	/s/ Garrett Schreiber
Name:	Garrett Schreiber
Title:	Chief Financial Officer

cc:	Simpson Thacher & Bartlett LLP
	425 Lexington Avenue
	New York, New York 10017
	Jonathan K. Youngwood, Esq.
	jyoungwood@stblaw.com
	Stephen P. Blake, Esq.
	sblake@stblaw.com
	Winston & Strawn LLP
	200 Park Avenue
	New York, NY 10166
	Attn: Brad Vaiana and Jason Osborn
	Email: BVaiana@winston.com and JOsborn@winston.com