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:
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).
x
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.
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Entry into a Material Definitive Agreement.
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Merger Agreement
On July 20, 2019 (the
“Signing Date”), Peak Resorts, Inc., a Missouri corporation (the “Company”), entered into an Agreement
and Plan of Merger (the “Merger Agreement”) with Vail Holdings, Inc., a Colorado corporation (“Parent”),
VRAD Holdings, Inc., a Missouri corporation and direct, wholly-owned subsidiary of Parent (“Merger Sub”), and, solely
for the purposes stated in Section 9.14 of the Merger Agreement, Vail Resorts, Inc., a Delaware corporation, relating to the proposed
acquisition of the Company by Parent.
The Merger Agreement
provides that, upon the terms and subject to the conditions set forth therein, Merger Sub will be merged with and into the Company
(the “Merger”) with the Company continuing as the surviving corporation in the Merger, and, at the effective time of
the Merger (the “Effective Time”): (i) each share of common stock of the Company, par value $0.01 per share (the “Common
Stock”), issued and outstanding immediately prior to the Effective Time, other than Excluded Shares (as defined in the Merger
Agreement), will cease to be outstanding and will be converted into the right to receive $11.00 in cash, without interest (the
“Common Merger Consideration”); (ii) each share of Series A Cumulative Convertible Preferred Stock of the Company,
par value $0.01 per share (the “Series A Preferred Stock”), that is outstanding immediately prior to the Effective
Time, other than Excluded Shares, will be converted into the right to receive an amount equal to the sum of: (a) $1,748.81; plus
(b) the aggregate amount of all accrued and unpaid dividends on the applicable issuance of Series A Preferred Stock as of the Effective
Time, in cash without interest.
Pursuant to the Merger
Agreement, at the Effective Time: (i) each restricted stock unit (“RSU”) that was granted pursuant to the Company’s
2014 Equity Incentive Plan, as amended from time to time (the “Equity Incentive Plan”), that remains outstanding immediately
prior to the Effective Time will become fully vested immediately prior to the Effective Time and will be cancelled and extinguished
in exchange for the right to receive an amount, in cash, without interest, equal to the (a) Common Merger Consideration, multiplied
by (b) number of RSUs held by such holder, less withholdings for any applicable taxes; and (ii) each warrant to purchase shares
of Common Stock that is issued and outstanding immediately prior to the Effective Time (collectively, the “Warrants”),
will be cancelled in exchange for the right to receive an amount in cash, without interest, equal to the product of: (a) the aggregate
number of shares of Common Stock in respect of such Warrant; multiplied by (b) the excess of the Common Merger Consideration over
the per share exercise price under such Warrant.
The board of directors
of the Company (the “Board”) approved, and declared, the Merger Agreement and the transactions contemplated thereby,
including the Merger, to be fair to, advisable and in the best interests of the Company and the Company’s shareholders. Shareholders
of the Company will be asked to vote on the approval of the Merger Agreement at a special shareholders meeting that will be held
on a date to be announced (the “Special Meeting”). The closing of the Merger is subject to, among other conditions,
the approval of the Merger Agreement by the affirmative vote of the holders of at least two-thirds of the outstanding shares of
Common Stock and Series A Preferred Stock entitled to vote at the Special Meeting voting together as a single class on an as-converted
basis (the “Company Shareholder Approval”). Consummation of the Merger is not subject to a financing condition.
In addition to the
Company Shareholder Approval condition, consummation of the Merger is also subject to various customary conditions, including,
but not limited to, the expiration of the applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and that the Company or its subsidiaries shall have, if necessary, obtained any consent, transfer, renewal, issuance
or reissuance with respect to the Company’s United States Forest Service permits.
The Company is subject
to customary restrictions on its ability to solicit, initiate, facilitate or encourage Alternative Proposals (as defined in the
Merger Agreement) from third parties and to provide non-public information to, and participate in discussions and engage in negotiations
with, third parties regarding Alternative Proposals, with customary exceptions regarding the Board’s fiduciary duties under
applicable law. The Board has agreed to recommend that the Company’s shareholders vote to adopt and approve the Merger Agreement,
the Merger and the other transactions contemplated thereby, subject to certain customary exceptions regarding the Board’s
fiduciary duties under applicable law.
The Merger Agreement
contains certain termination rights, including the right of the Company to terminate the Merger Agreement to accept a Superior
Proposal (as defined in the Merger Agreement), and provides that, upon termination of the Merger Agreement by the Company or Parent
upon specified conditions, the Company will be required to pay Parent a termination fee of $9.22 million (the “Termination
Fee”). If the Merger Agreement is terminated by Parent or the Company following the failure to obtain the Company Shareholder
Approval at the Special Meeting absent a pending Alternative Proposal, then the Company must reimburse Parent all of its fees and
expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby, up to $3.0 million in the
aggregate. In addition, subject to certain exceptions and limitations set forth in the Merger Agreement, either party may terminate
the Merger Agreement if the Merger is not consummated by January 21, 2020 (the “End Date”), subject to the ability
of either party to twice extend the End Date for an additional 90 days each time, in certain circumstances. Subject to certain
conditions and limitations set forth in the Merger Agreement, upon the termination of the Merger Agreement by the Parent or Company,
the Merger Agreement also provides for the payment by the Company to Parent of the Termination Fee if the Company consummates a
transaction with respect to an Alternative Proposal within 12 months after such termination, or signs a definitive agreement with
respect to such Alternative Proposal within 12 months after such termination and such transaction is subsequently consummated.
The Company has made
customary representations, warranties and covenants in the Merger Agreement, including, among others, covenants (1) to conduct
its business in the ordinary course during the period between the Signing Date and the Effective Time, (2) not to engage in certain
types of transactions during this period unless agreed to in writing by Parent, (3) to convene and hold the Special Meeting for
the purpose of obtaining the Company Shareholder Approval, (4) subject to certain conditions, not to withhold, withdraw, amend
or modify in a manner adverse to Parent or Merger Sub, the recommendation of the Board that the Company’s shareholders approve
the adoption of the Merger Agreement, and (5) to take any and all action needed to obtain any required antitrust approval for the
Merger.
The foregoing summary
of the Merger Agreement does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the
Merger Agreement, which is attached as Exhibit 2.1 to this Current Report on Form 8-K and incorporated by reference herein.
The Merger Agreement
has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information
about the Company. The representations, warranties and covenants contained in the Merger Agreement were made only for purposes
of the Merger Agreement as of the specific dates therein, were solely for the benefit of the parties to the Merger Agreement, may
be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for
the purposes of allocating contractual risk between the parties to the Merger Agreement instead of establishing these matters as
facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to
investors.
Investors are not third-party
beneficiaries under the Merger Agreement and should not rely on the representations, warranties and covenants or any descriptions
thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries
or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date
of the Merger Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures.
Voting and Support Agreements
On the Signing Date,
concurrently with the execution of the Merger Agreement, Cap 1 LLC, an affiliate of a member of the Board (“Cap 1”),
Richard S. Sackler, M.D. (“RS”), the Richard and Beth Sackler Foundation, Inc. (the “Foundation”), David
Sackler (“DS”), Timothy D. Boyd, the Company’s Chief Executive Officer, President, Chairman of the Board (“TB”),
the Timothy D. Boyd Revocable Trust U/A 8/27/1996, for which Mr. Boyd is the trustee (the “TB Trust”), the Timothy
D. Boyd 2011 Family Trust U/A 1/28/2011, for which Melissa K. Boyd, Mr. Boyd’s spouse, is the trustee (the “TB Family
Trust”), the Melissa K. Boyd Revocable Trust U/A 8/27/1996, for which Ms. Boyd is the trustee (the “MB Trust”),
and Jesse Boyd and Jessica Boyd JTWROS, Mr. Boyd’s son and daughter in law (“JB” and, together with Cap 1, RS,
the Foundation, DS, TB, the TB Trust, the TB Family Trust and the MB Trust, the “Supporting Shareholders” and, each,
a “Supporting Shareholder”), collectively, the Company’s largest shareholders, entered into Voting and Support
Agreements (each, a “Support Agreement” and, collectively, the “Support Agreements”) with Parent.
Pursuant to the Support
Agreements, each Supporting Shareholder agreed to, prior to the Expiration Date (as defined below) (i) vote (a) all shares of capital
stock of the Company owned, beneficially or of record, by such Supporting Shareholder as of the Signing Date, and (b) all additional
shares of capital stock of the Company acquired by the Supporting Shareholder, beneficially or of record, including by way of converting
any convertible securities, during the period commencing with the execution and delivery of such Support Agreement and expiring
on the Expiration Date, among other things, (1) in favor of the adoption of the Merger Agreement and the approval of the other
transactions contemplated thereby (collectively, the “Proposed Transaction”), (2) against the approval or adoption
of any Alternative Proposal or any other proposal made in opposition to, or in competition with, the Proposed Transaction, and
(3) against any Alternative Proposal or any other action that would reasonably be expected to impede, interfere with, delay, postpone,
discourage or adversely affect the consummation of the Proposed Transaction, and (ii) not approve any Alternative Transaction (as
defined in the Support Agreements) by written consent. Notwithstanding the foregoing, the Supporting Shareholders entered into
the Support Agreements solely in their capacities as beneficial or record owners, and nothing therein limits or affects the actions
taken by any director or officer of the Company affiliated with the Supporting Shareholder solely in his capacity as a director
or officer of the Company in the exercise of his fiduciary duties as a director or officer of the Company.
The shares
covered by the Support Agreements constitute approximately 45% of the issued and outstanding shares of Common Stock entitled to notice of, and to vote at, the Special Meeting, as of the date hereof, assuming the conversion of the Series A
Preferred Stock, as of the date hereof.
The Support Agreements
will terminate upon the earliest of (the “Expiration Date”): (i) such date and time as the Merger Agreement shall have
been validly terminated pursuant to the terms of Article VIII thereof; (ii) the Effective Time; (iii) the date of any amendment,
modification or supplement to the Merger Agreement that decreases the amount, or changes the form, of Merger Consideration (as
defined in the Merger Agreement) payable to such Supporting Shareholder; (iv) the date upon which Parent and the Supporting Shareholder
agree to terminate such Support Agreement in writing; and (v) the date upon which the Board or any committee thereof makes a Company
Adverse Recommendation Change (as defined in the Merger Agreement).
The Company,
Snow Time Acquisition, Inc., a direct, wholly-owned subsidiary of the Company, and certain of its subsidiaries listed on the signature pages to the Cap 1 Support Agreement as “Subsidiary Guarantors” are also party
to the Cap 1 Support Agreement. In addition to the provisions set forth in the other Support Agreements, the Cap 1 Support
Agreement provides for, among other things, the consent of Cap 1, in its capacity as lender with respect to certain of
the Company’s indebtedness, to the Merger.
The foregoing summary
of the Support Agreements does not purport to be complete and is subject to, and qualified in its entirety by, as applicable,
the full text of each of the (i) Support Agreement between Parent and Cap 1, which is attached as Exhibit 10.1 to this Current
Report on Form 8-K, (ii) Support Agreement between Parent and RS, which is attached as Exhibit 10.2 to this Current Report on
Form 8-K, (iii) Support Agreement between Parent and the Foundation, which is attached as Exhibit 10.3 to this Current Report
on Form 8-K, (iv) Support Agreement between Parent and DS, which is attached as Exhibit 10.4 to this Current Report on Form 8-K,
(v) Support Agreement between Parent and TB, which is attached as Exhibit 10.5 to this Current Report on Form 8-K, (vi) Support
Agreement between Parent and the TB Trust, which is attached as Exhibit 10.6 to this Current Report on Form 8-K, (vii) Support
Agreement between Parent and the TB Family Trust, which is attached as Exhibit 10.7 to this Current Report on Form 8-K, (viii)
Support Agreement between Parent and the MB Trust, which is attached as Exhibit 10.8 to this Current Report on Form 8-K, and (ix)
Support Agreement between Parent and JB, which is attached as Exhibit 10.9 to this Current Report on Form 8-K, each of which is
incorporated by reference herein.
Item 5.02.
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Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers.
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In connection with
the Merger and in accordance with the Board’s authority under the Equity Incentive Plan, the Board approved the acceleration
of the vesting immediately prior to the Effective Time of each RSU that was granted pursuant to the Equity Incentive Plan that
remains outstanding and unvested immediately prior to the Effective Time, including certain RSUs held by the members of the Board
and the Company’s executive officers, including the Company’s named executive officers.
Item 5.03.
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Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
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On July 19, 2019, the
Board approved an amendment (the “By-laws Amendment”) to the Company’s Amended and Restated By-laws (as amended
to date, the “By-laws”), effective July 19, 2019, to add an exclusive forum provision as a new Article 11 of the By-laws.
The By-laws Amendment
provides at Section 11.1 of the By-laws that, unless the Company consents in writing to the selection of an alternative forum,
the Circuit Court of St. Louis County, Missouri (21st Judicial Circuit) or if it has or can acquire jurisdiction, the United States
District Court for the Eastern District of Missouri, Eastern Division shall, to the fullest extent permitted by law, be the sole
and exclusive forum for (a) any derivative action or proceeding brought on behalf of the Company, (b) any action asserting a claim
of breach of a fiduciary duty owed by any current or former director, officer, other employee or shareholder of the Company to
the Company or the Company’s shareholders, (c) any action asserting a claim arising pursuant to any provision of the General
and Business Corporation Law of the State of Missouri (the “MGBCL”), the Company’s articles of incorporation
or the By-laws or as to which the MGBCL confers jurisdiction on the Circuit Court of St. Louis County, Missouri (21st Judicial
Circuit) or if it has or can acquire jurisdiction, the United States District Court for the Eastern District of Missouri, Eastern
Division, or (d) any action asserting a claim governed by the internal affairs doctrine.
In addition, the By-laws
Amendment provides at Section 11.2 of the By-laws that, if any action or proceeding the subject matter of which is within the scope
of Section 11.1 of the By-laws is filed in a court other than a court located in the Circuit Court of St. Louis County, Missouri
(21st Judicial Circuit) or if it has or can acquire jurisdiction, the United States District Court for the Eastern District of
Missouri, Eastern Division (a “Foreign Action”) in the name of any shareholder, such shareholder shall be deemed to
have consented to (a) the personal jurisdiction of the Circuit Court of St. Louis County, Missouri (21st Judicial Circuit) or if
it has or can acquire jurisdiction, the United States District Court for the Eastern District of Missouri, Eastern Division in
connection with any action brought in any such court to enforce Section 11.1 of the By-laws (an “FSC Enforcement Action”)
and (b) having service of process made upon such shareholder in any such FSC Enforcement Action by service upon such shareholder’s
counsel in the Foreign Action as agent for such shareholder.
The foregoing summary
of the By-laws Amendment does not purport to be complete and is subject to, and qualified in its entirety by, the full text of
the By-laws Amendment, which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated by reference herein.
On July 22, 2019, the
Company issued a press release announcing the execution of the Merger Agreement. A copy of the press release is attached as Exhibit
99.1 to this Current Report on Form 8-K and incorporated by reference herein.
Also, on July 22, 2019, the Company issued a communication to its employees and volunteers concerning the Merger Agreement
and the proposed Merger. A copy of that communication is filed as Exhibit 99.2 to this this Current Report on Form 8-K and
incorporated by reference herein.
Item 9.01.
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Financial Statements and Exhibits.
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(d)
Exhibits
Exhibit No.
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Description of
Exhibit
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2.1*
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Agreement and Plan of Merger, dated as of July 20, 2019, by and among Vail Holdings, Inc., VRAD Holdings, Inc., Peak Resorts, Inc. and, solely for the purposes stated in Section 9.14, Vail Resorts, Inc.
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3.1
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Amendment to Amended and Restated By-laws of Peak Resorts, Inc.
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10.1
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Voting, Support and Consent Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc., Cap 1, LLC, Peak Resorts, Inc., Snow Time Acquisition, Inc. and the subsidiary guarantors listed on the signature pages thereto.
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10.2
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and Richard S. Sackler, M.D.
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10.3
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and the Richard and Beth Sackler Foundation, Inc.
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10.4
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and David Sackler.
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10.5
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and Timothy D. Boyd.
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10.6
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and the Timothy D. Boyd Revocable Trust U/A 8/27/1996.
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10.7
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and the Timothy D. Boyd 2011 Family Trust U/A 1/28/2011.
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10.8
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and the Melissa K. Boyd Revocable Trust U/A 8/27/1996.
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10.9
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Voting and Support Agreement, dated as of July 20, 2019, by and among Vail Holdings, Inc. and Jesse Boyd and Jessica Boyd JTWROS.
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99.1
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Press Release, dated July 22, 2019.
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99.2
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Letter to Employees & Volunteers, dated July 22, 2019.
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*
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Schedules have been omitted pursuant to Item 601(b)(2)
of Regulation S-K. The Company hereby undertakes to supplementally furnish copies of any omitted schedules to the Securities and
Exchange Commission upon request.
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Additional Information and Where to
Find It
In connection with the proposed Merger,
the Company will file a preliminary proxy statement and file or furnish other relevant materials with the Securities and Exchange
Commission (the “SEC”). Once the SEC completes its review of the preliminary proxy statement, a definitive proxy statement
and a form of proxy will be filed with the SEC and mailed or otherwise furnished to the shareholders of the Company.
BEFORE
MAKING ANY VOTING DECISION, THE COMPANY’S SHAREHOLDERS ARE URGED TO READ THE PROXY STATEMENT IN ITS ENTIRETY WHEN IT BECOMES
AVAILABLE AND ANY OTHER DOCUMENTS TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED MERGER OR INCORPORATED BY REFERENCE
IN THE PROXY STATEMENT, IF ANY, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED MERGER AND THE PARTIES TO THE
PROPOSED MERGER.
This communication is not a substitute for the proxy statement or any
other document that may be filed by the Company with the SEC.
Investors and shareholders may obtain a
free copy of documents filed by the Company with the SEC at the SEC’s website at www.sec.gov. In addition, investors and
shareholders may obtain a free copy of the Company’s filings with the SEC from the Company’s website at www.peakresorts.com
or by directing a request by mail or telephone to: Peak Resorts, Inc., 17409 Hidden Valley Drive, Wildwood, Missouri 63025, Attention:
Corporate Secretary, (636) 938-7474.
Participants in the Solicitation
The Company, Vail Resorts and certain of
their respective directors, executive officers, certain other members of management and employees of the Company and Vail Resorts
and agents retained by the Company may be deemed to be participants in the solicitation of proxies from shareholders of the Company
in favor of the proposed Merger. Information about directors and executive officers of the Company and their beneficial ownership
of the Company’s common stock is set forth in the Company’s definitive proxy statement on Schedule 14A for its 2018
annual meeting of shareholders, as filed with the SEC on August 28, 2018. Certain directors, executive officers, other members
of management and employees of the Company may have direct or indirect interests in the proposed Merger due to securities holdings,
vesting of equity awards and rights to severance payments. Additional information regarding the direct and indirect interests of
these individuals and other persons who may be deemed to be participants in the solicitation will be included in the proxy statement
with respect to the Merger the Company will file with the SEC and furnish to the Company’s shareholders.
Forward-Looking Statements
Statements about the expected timing, completion
and effects of the proposed Merger and related transactions and all other statements in this Current Report on Form 8-K and the
exhibits furnished or filed herewith, other than historical facts, constitute forward-looking statements within the meaning of
the safe harbor provisions of the Private Securities Litigation Reform Act of 1995. When used in this report, the words “expect,”
“believe,” “anticipate,” “goal,” “plan,” “intend,” “estimate,”
“may,” “will” or similar words are intended to identify forward-looking statements. Readers are cautioned
not to place undue reliance on these forward-looking statements and any such forward-looking statements are qualified in their
entirety by reference to the following cautionary statements. All forward-looking statements speak only as of the date hereof and
are based on current expectations and involve a number of assumptions, risks and uncertainties that could cause the actual results
to differ materially from such forward-looking statements. The Company may not be able to complete the proposed Merger on the terms
described above or other acceptable terms or at all because of a number of factors, including, but not limited to: (1) the occurrence
of any event, change or other circumstances that could give rise to the termination of the Merger Agreement, (2) the failure to
obtain Company shareholder approval or the failure to satisfy the closing conditions, (3) the potential for regulatory authorities
to require divestitures, behavioral remedies or other concessions in order to obtain their approval of the proposed Merger, (4)
risks related to disruption of management’s attention from the Company’s ongoing business operations due to the proposed
Merger, (5) the effect of the announcement of the Merger on the ability of the Company to retain and hire key personnel and maintain
relationships with its customers, suppliers, operating results and business generally, (6) the Merger may involve unexpected costs,
liabilities or delays, (7) the Company’s business may suffer as a result of the uncertainty surrounding the Merger, including
the timing of the consummation of the Merger, (8) the outcome of any legal proceeding relating to the Merger, (9) the Company may
be adversely affected by other economic, business and/or competitive factors, and (10) other risks to consummation of the Merger,
including the risk that the Merger will not be consummated within the expected time period or at all, which may adversely affect
the Company’s business and the price of its common stock.
Actual results may differ materially from
those indicated by such forward-looking statements. In addition, the forward-looking statements represent the Company’s views
as of the date on which such statements were made. The Company anticipates that subsequent events and developments may cause its
views to change. However, although the Company may elect to update these forward-looking statements at some point in the future,
it specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the
Company’s views as of any date subsequent to the date hereof. Additional factors that may affect the business or financial
results of the Company are described in the risk factors included in the Company’s filings with the SEC, including the Company’s
Annual Report on Form 10-K for the fiscal year ended April 30, 2019, filed with the SEC on June 28, 2019, as updated by the Company’s
subsequent filings with the SEC. The Company expressly disclaims a duty to provide updates to forward-looking statements, whether
as a result of new information, future events or other occurrences.
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.
Dated: July 22, 2019
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PEAK RESORTS, INC.
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(Registrant)
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By:
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/s/ Christopher J. Bub
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Name:
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Christopher J. Bub
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Title:
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Chief Financial Officer
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