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Texas
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6770
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86-2480942
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(State or other jurisdiction of
incorporation or organization) |
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(Primary Standard Industrial
Classification Code Number) |
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(I.R.S. Employer
Identification Number) |
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Copies to:
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Joel L. Rubinstein
Jonathan P. Rochwarger Elliott M. Smith White & Case LLP 1221 Avenue of the Americas New York, New York 10020 Tel: (212) 819-8200 |
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Jason Osborn
Brad Vaiana Winston & Strawn LLP 200 Park Avenue New York, New York 10166 Tel: (212) 294-6700 |
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Marc D. Jaffe
Ian D. Schuman Latham & Watkins LLP 885 Third Avenue New York, New York 10022 Tel: (212) 906-1200 |
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Ryan J. Maierson
Nick S. Dhesi Latham & Watkins LLP 811 Main Street, Suite 3700 Houston, Texas Tel: (713) 546-5400 |
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☐
Large accelerated filer
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☐
Accelerated filer
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☒
Non-accelerated filer
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☒
Smaller reporting company
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☒
Emerging growth company
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☐
Exchange Act Rule 13e-4(i)
(Cross-Border Issuer Tender Offer)
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☐
Exchange Act Rule 14d-1(d)
(Cross-Border Third-Party Tender Offer)
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Title of Each Class of Securities to be Registered
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Amount to be
Registered(1) |
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Proposed
Maximum Offering Price Per Share |
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Proposed
Maximum Aggregate Offering Price |
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Amount of
Registration Fee |
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Class A common stock, par value $0.0001 per share
|
| | | | 25,000,000(2)(3) | | | | | $ | 12.05(4) | | | | | $ | 301,250,000(4) | | | | | $ | 32,866.38(5) | | |
Warrants
|
| | | | 16,000,000(6) | | | | | $ | 3.55(7) | | | | | $ | 56,800,000(7) | | | | | $ | 6,196.88(5) | | |
Total
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| | | | | | | | | | | | | | | $ | 358,050,000 | | | | | $ | 39,063.26 | | |
| , 2021 | | | By Order of the Board of Directors, | |
| | | |
Sandy Beall
Chief Executive Officer |
|
| | | | | | | |
| | | | 1 | | | |
| | | | 2 | | | |
| | | | 3 | | | |
| | | | 6 | | | |
| | | | 8 | | | |
| | | | 23 | | | |
| | | | 37 | | | |
| | | | 38 | | | |
| | | | 83 | | | |
| | | | 84 | | | |
| | | | 91 | | | |
| | | | 106 | | | |
| | | | 115 | | | |
| | | | 118 | | | |
| | | | 120 | | | |
| | | | 122 | | | |
| | | | 126 | | | |
| | | | 127 | | | |
| | | | 129 | | | |
| | | | 135 | | | |
| | | | 136 | | | |
| | | | 149 | | | |
| | | | 158 | | | |
| | | | 162 | | | |
| | | | 172 | | | |
| | | | 190 | | | |
| | | | 193 | | | |
| | | | 205 | | | |
| | | | 206 | | | |
| | | | 221 | | | |
| | | | 225 | | | |
| | | | 230 | | | |
| | | | 232 | | |
| | | | | | | |
| | | | 238 | | | |
| | | | 244 | | | |
| | | | 245 | | | |
| | | | 246 | | | |
| | | | 247 | | | |
| | | | 248 | | | |
| | | | 249 | | | |
| | | | F-1 | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | | |
| | | | | D-1 | | | |
| | | | | E-1 | | | |
| | | | | F-1 | | | |
| | | | | G-1 | | | |
| | | | | H-1 | | | |
| | | | | I-1 | | | |
| | | | | J-1 | | | |
| | | | | K-1 | | | |
| | | | | L-1 | | |
| | |
Assuming No
Redemptions of Public Shares |
| |
Assuming Maximum
Redemptions of Public Shares(1) |
| ||||||
FAST Stockholders
|
| | | | 3.8% | | | | | | 2.5% | | |
FEI Equityholders(2)
|
| | | | 73.4% | | | | | | 74.3% | | |
PIPE Investors(3)
|
| | | | 22.3% | | | | | | 22.6% | | |
Sponsor
|
| | | | 0.6% | | | | | | 0.6% | | |
| | |
Assuming No
Redemptions of Public Shares |
| |
Assuming Maximum
Redemptions of Public Shares(1) |
| ||||||
FAST Stockholders
|
| | | | 0.5% | | | | | | 0.3% | | |
FEI Equityholders(2)
|
| | | | 96.4% | | | | | | 96.6% | | |
PIPE Investors(3)
|
| | | | 3.0% | | | | | | 3.0% | | |
Sponsor
|
| | | | 0.1% | | | | | | 0.1% | | |
|
Sources
|
| |
Uses
|
| ||||||||||||
|
Golden Nugget Projected Net Debt(1)
|
| | | $ | 4,600 | | | |
Acquisition of Golden Nugget
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| | | $ | 8,442 | | |
|
Equity Issued to Mr. Fertitta(2)
|
| | | | 3,842 | | | |
Paydown of Golden Nugget Debt
|
| | | | 1,240 | | |
|
PIPE Proceeds
|
| | | | 1,240 | | | |
Incremental Cash to Balance Sheet
|
| | | | 120 | | |
|
Cash Held in Trust(3)
|
| | | | 200 | | | |
Transaction Fees
|
| | | | 80 | | |
|
Expected Equity Consideration for Catch Hospitality
|
| | | | 190 | | | |
Expected Purchase of Catch Hospitality
|
| | | | 190 | | |
|
Total Sources
|
| | | $ | 10,072 | | | | Total Uses | | | | $ | 10,072 | | |
| | FAST’S BOARD OF DIRECTORS HAS UNANIMOUSLY DETERMINED THAT THE BUSINESS COMBINATION PROPOSAL AND THE OTHER PROPOSALS TO BE PRESENTED AT THE SPECIAL MEETING ARE IN THE BEST INTERESTS OF AND ADVISABLE TO THE FAST STOCKHOLDERS AND RECOMMENDS THAT YOU VOTE “FOR” EACH OF THE PROPOSALS DESCRIBED ABOVE. | | |
| | |
FEI
|
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Gaming
Comparable Companies |
| |
Restaurant Comparable
Companies |
|
Enterprise Value / 2022E EBITDA(1)
|
| |
10.4x
|
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12.1x
|
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9.7x
|
|
| | |
FEI
|
| |
Gaming
Comparable Companies |
| |
Restaurant Comparable
Companies |
|
Enterprise Value / 2021E EBITDA(2)
|
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11.0x vs. 11.3x in the original deal structure (including GNOG)
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14.2x vs. 15.1x as of January 21, 2021 (for median of land based casnios with online presence and regional gaming operators)
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12.5x (remains unchanged since January 21, 2021on a 2021E EBITDA basis)
|
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Net Debt / CY2021E EBITDA
|
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4.1x vs. 5.6x in the original deal structure
|
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4.3x for land based casinos with online presence and 3.2x for regional operators
|
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1.2x
|
|
|
Advisory Charter
Proposal |
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Current Charter
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Proposed Charter
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Advisory Charter Proposal A — Changes in Share Capital
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The Current Charter authorizes FAST to issue 401,000,000 shares of capital stock, consisting of (a) 400,000,000 shares of common stock, including 380,000,000 shares of Class A common stock, par value $0.0001 per share, and 20,000,000 shares of Class B common stock, par value $0.0001 per share, and (b) 1,000,000 shares of preferred stock, par value $0.0001 per share.
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The Proposed Charter would authorize New FEI to issue shares of capital stock, consisting of (i) shares of New FEI Class A common stock, par value $0.0001 per share, (ii) shares of New FEI Class B common stock, par value $0.0001 per share, and (iii) shares of preferred stock, par value $0.0001 per share.
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|
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Advisory Charter Proposal B — Voting Rights of Common Stock
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The Current Charter provides that each share of FAST Class A common stock and FAST Class B common stock is entitled to one vote per share on each matter properly submitted to FAST’s stockholders entitled to vote.
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The Proposed Charter provides holders of shares of New FEI Class A common stock will be entitled to cast one vote per share of New FEI Class A common stock and holders of shares of New FEI Class B common stock will be entitled to cast ten (10) votes per share of New FEI Class B common stock on each matter properly submitted to New FEI’s stockholders entitled to vote.
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|
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Advisory Charter Proposal C — Declassification of the New FEI Board
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The Current Charter provides that the FAST board of directors has three classes of directors, with only one class of directors being elected in each year and each class serving a three-year term.
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The Proposed Charter provides that each member of the board of directors of New FEI will be elected at each annual meeting of stockholders (or special meeting in lieu thereof).
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Advisory Charter Proposal D — Fixing the Number of Directors
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| |
The Current Charter provides that the FAST board of directors has no fixed number of directors.
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| |
The board of directors of New FEI will be comprised of not less than three (3) and not more than eight (8) directors.
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|
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Advisory Charter Proposal E — Forum Selection
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| |
The Current Charter provides that the Court of Chancery of the State
|
| |
The Proposed Charter provides that, unless New FEI consents in writing to
|
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Advisory Charter
Proposal |
| |
Current Charter
|
| |
Proposed Charter
|
|
| | | |
of Delaware will be the sole and exclusive forum for certain actions and claims.
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| |
the selection of an alternative forum, the Southern District of Texas in the State of Texas shall be the sole and exclusive forum for certain actions and claims.
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|
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Advisory Charter Proposal F — Distribution of Equity Interests of Split-Co
|
| |
The Current Charter provides that the holders of shares of FAST common stock are entitled to receive such dividends and other distributions (payable in cash, property or capital stock of FAST) when, as and if declared thereon by the FAST Board from time to time out of any assets or funds of FAST legally available therefor and shall share equally on a per share basis in such dividends and distributions.
|
| |
The Proposed Charter will expressly provide that the Company may declare and make a special distribution to the shares of New FEI Class B common stock held by Mr. Fertititta of 100% of the equity interests of Splitco.
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|
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Advisory Charter Proposal G — Required Vote to Amend the Charter
|
| |
The Current Charter only requires certain charter amendments to be approved by stockholders in accordance with Delaware law.
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The Proposed Charter provides that amendments to certain provisions of the Proposed Charter relating to the rights of Class A and Class B common stock will require the affirmative vote of (a) a majority of the total voting power of the outstanding shares of capital stock of the Company entitled to vote thereon, voting together as a single class, while the Company is under the control of Tilman J. Fertitta and (b) at least two-thirds of the total voting power of the outstanding shares of capital stock of the Corporation entitled to vote thereon, voting together as a single class, from and after the time that the Corporation ceases to be under the control of Tilman J. Fertitta.
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|
Plan Category
|
| |
Number of Securities
to be Issued Upon Exercise of Outstanding Options, Warrants and Rights |
| |
Weighted Average
Exercise Price of Outstanding Options, Warrants and Rights |
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Number of
Securities Remaining Available for Future Issuance Under Equity Compensation Plans |
| |||||||||
Equity compensation plans approved by security holders
|
| | | | — | | | | | | — | | | | | | — | | |
Equity compensation plans not approved by security holders
|
| | | | — | | | | | | — | | | | | | — | | |
| | |
Scenario 1
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Scenario 2
|
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| | |
Assuming no redemption
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Assuming maximum redemption(2)
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Equity Capitalization Summary
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Shares
|
| |
%
|
| |
Shares
|
| |
%
|
| ||||||||||||
FAST Public Stockholders
|
| | | | 20,000,000 | | | | | | 3.6% | | | | | | 13,164,539 | | | | | | 2.4% | | |
FAST Sponsor
|
| | | | 3,000,000 | | | | | | 0.5% | | | | | | 3,000,000 | | | | | | 0.5% | | |
PIPE Investors(3)
|
| | | | 124,000,000 | | | | | | 22.0% | | | | | | 124,000,000 | | | | | | 22.3% | | |
Total New FEI Class A common stock
|
| | | | 147,000,000 | | | | | | 26.1% | | | | | | 140,164,539 | | | | | | 25.2% | | |
New FEI Class B common stock issued in connection with business combination(1)
|
| | | | 416,158,833 | | | | | | 73.9% | | | | | | 416,158,833 | | | | | | 74.8% | | |
Total New FEI common stock
|
| | | | 563,158,833 | | | | | | 100.0% | | | | | | 556,323,372 | | | | | | 100.0% | | |
| | | | | | | | | | | | | | |
Transactions Accounting
Adjustments |
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||
| | |
FEI
(Historical) |
| |
FAST
(Historical) |
| |
Pro Forma
Adjustments (Note 4) |
| | | | | | | |
Special
Distribution |
| |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Transactions
Accounting Adjustments (Assuming Maximum Redemptions) |
| | | | | | | |
Pro Forma
Combined (Assuming Max Redemptions) |
| |||||||||||||||||||||
Current assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 557,273 | | | | | $ | 514 | | | | | $ | 200,007 | | | | |
|
a
|
| | | | $ | (1,413) | | | | | $ | 665,274 | | | | | $ | (68,355) | | | | |
|
i
|
| | | | $ | 596,919 | | |
| | | | | | | | | | | | | | | | | — | | | | |
|
b
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | (72,914) | | | | |
|
d
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | (7,000) | | | | |
|
e
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | (11,193) | | | | |
|
c
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restricted cash
|
| | | | 55,356 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 55,356 | | | | | | — | | | | | | | | | | | | 55,356 | | |
Accounts receivable – trade and other, net
|
| | | | 68,555 | | | | | | — | | | | | | — | | | | | | | | | | | | (267) | | | | | | 68,288 | | | | | | — | | | | | | | | | | | | 68,288 | | |
Income taxes receivable
|
| | | | 38,307 | | | | | | | | | | | | | | | | | | | | | | | | (38,307) | | | | | | — | | | | | | | | | | | | | | | | | | — | | |
Inventories
|
| | | | 86,971 | | | | | | — | | | | | | — | | | | | | | | | | | | (6,365) | | | | | | 80,606 | | | | | | — | | | | | | | | | | | | 80,606 | | |
Other current assets
|
| | | | 20,047 | | | | | | 352 | | | | | | (315) | | | | |
|
d
|
| | | | | (87) | | | | | | 19,997 | | | | | | — | | | | | | | | | | | | 19,997 | | |
Total current assets
|
| | | | 826,509 | | | | | | 866 | | | | | | 108,585 | | | | | | | | | | | | (46,439) | | | | | | 889,521 | | | | | | (68,355) | | | | | | | | | | | | 821,166 | | |
Property, plant and equipment, net
|
| | | | 2,250,631 | | | | | | — | | | | | | — | | | | | | | | | | | | (145,480) | | | | | | 2,105,151 | | | | | | — | | | | | | | | | | | | 2,105,151 | | |
Operating lease right of use assets, net
|
| | | | 907,007 | | | | | | — | | | | | | — | | | | | | | | | | | | (4,041) | | | | | | 902,966 | | | | | | — | | | | | | | | | | | | 902,966 | | |
Investment in affiliates and joint ventures
|
| | | | 26,840 | | | | | | — | | | | | | — | | | | | | | | | | | | (17,000) | | | | | | 9,840 | | | | | | — | | | | | | | | | | | | 9,840 | | |
Accounts and notes receivable, affiliates
|
| | | | 106,397 | | | | | | — | | | | | | — | | | | | | | | | | | | (106,106) | | | | | | 291 | | | | | | — | | | | | | | | | | | | 291 | | |
Intangible assets, net
|
| | | | 762,142 | | | | | | — | | | | | | — | | | | | | | | | | | | (198) | | | | | | 761,944 | | | | | | — | | | | | | | | | | | | 761,944 | | |
Long-term deferred tax assets
|
| | | | 167,407 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 167,407 | | | | | | — | | | | | | | | | | | | 167,407 | | |
Other assets, net
|
| | | | 89,437 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 89,437 | | | | | | — | | | | | | | | | | | | 89,437 | | |
Investments held in Trust Account
|
| | | | — | | | | | | 200,007 | | | | | | (200,007) | | | | |
|
a
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
Total assets
|
| | | $ | 5,136,370 | | | | | $ | 200,873 | | | | | $ | (91,422) | | | | | | | | | | | $ | (319,264) | | | | | $ | 4,926,557 | | | | | $ | (68,355) | | | | | | | | | | | $ | 4,858,202 | | |
Current liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable
|
| | | | 170,856 | | | | | | 67 | | | | | | (67) | | | | |
|
d
|
| | | | | (2,488) | | | | | | 168,368 | | | | | | — | | | | | | | | | | | | 168,368 | | |
Accrued liabilities
|
| | | | 685,730 | | | | | | 1,568 | | | | | | (4,319) | | | | |
|
d
|
| | | | | (1,332) | | | | | | 670,454 | | | | | | — | | | | | | | | | | | | 670,454 | | |
| | | | | | | | | | | | | | | | | (11,193) | | | | |
|
c
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current portion of long-term debt
|
| | | | 35,705 | | | | | | — | | | | | | (7,503) | | | | |
|
b
|
| | | | | (133) | | | | | | 28,069 | | | | | | — | | | | | | | | | | | | 28,069 | | |
Operating lease liabilities
|
| | | | 113,339 | | | | | | — | | | | | | — | | | | | | | | | | | | (1,481) | | | | | | 111,858 | | | | | | — | | | | | | | | | | | | 111,858 | | |
Total current liabilities
|
| | | | 1,005,630 | | | | | | 1,635 | | | | | | (23,082) | | | | | | | | | | | | (5,434) | | | | | | 978,749 | | | | | | — | | | | | | | | | | | | 978,749 | | |
Long-term debt, net of current portion
|
| | | | 4,740,478 | | | | | | — | | | | | | (1,217,184) | | | | |
|
b
|
| | | | | — | | | | | | 3,523,294 | | | | | | — | | | | | | | | | | | | 3,523,294 | | |
Warrant derivative liabilities
|
| | | | 51,950 | | | | | | 47,240 | | | | | | — | | | | | | | | | | | | — | | | | | | 99,190 | | | | | | — | | | | | | | | | | | | 99,190 | | |
Finance lease obligations
|
| | | | 20,686 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 20,686 | | | | | | — | | | | | | | | | | | | 20,686 | | |
Noncurrent operating lease liabilities
|
| | | | 908,244 | | | | | | — | | | | | | — | | | | | | | | | | | | (2,581) | | | | | | 905,663 | | | | | | — | | | | | | | | | | | | 905,663 | | |
Deferred tax liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
Other noncurrent liabilities
|
| | | | 84,275 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 84,275 | | | | | | — | | | | | | | | | | | | 84,275 | | |
Deferred underwriting commissions in connection with the initial public offering
|
| | | | — | | | | | | 7,000 | | | | | | (7,000) | | | | |
|
e
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
Total liabilities
|
| | | $ | 6,811,263 | | | | | $ | 55,875 | | | | | $ | (1,247,266) | | | | | | | | | | | $ | (8,015) | | | | | $ | 5,611,857 | | | | | $ | — | | | | | | | | | | | $ | 5,611,857 | | |
| | | | | | | | | | | | | | |
Transactions Accounting
Adjustments |
| | | | | | | | | | | | | | | | | | | | | | | | | |||||||||||||||
| | |
FEI
(Historical) |
| |
FAST
(Historical) |
| |
Pro Forma
Adjustments (Note 4) |
| | | | | | | |
Special
Distribution |
| |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Transactions
Accounting Adjustments (Assuming Maximum Redemptions) |
| | | | | | | |
Pro Forma
Combined (Assuming Max Redemptions) |
| |||||||||||||||||||||
Commitments and Contingencies
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Redeemable noncontrolling interest
|
| | | | 2,797 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 2,797 | | | | | | — | | | | | | | | | | | | 2,797 | | |
Class A common stock; 16,083,903 shares subject to possible redemption at $10.00 per share
|
| | | | | | | | | | 139,997 | | | | | | (139,997) | | | | |
|
f
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
Stockholders’ Equity (Deficit) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common stock
|
| | | | — | | | | | | — | | | | | | — | | | | |
|
h
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
Additional paid-in capital
|
| | | | 693,468 | | | | | | 41,975 | | | | | | 1,239,988 | | | | |
|
b
|
| | | | | - | | | | | | 2,009,566 | | | | | | (68,354) | | | | |
|
i
|
| | | | | 1,941,212 | | |
| | | | | | | | | | | | | | | | | (68,843) | | | | |
|
d
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | — | | | | |
|
h
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | 139,996 | | | | |
|
f
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | (37,018) | | | | |
|
g
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accumulated deficit
|
| | | | (1,925,733) | | | | | | (36,976) | | | | | | 36,976 | | | | |
|
g
|
| | | | | (311,249) | | | | | | (2,252,295) | | | | | | — | | | | | | | | | | | | (2,252,295) | | |
| | | | | | | | | | | | | | | | | (15,313) | | | | |
|
b
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accumulated other comprehensive loss
|
| | | | (3,418) | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (3,418) | | | | | | — | | | | | | | | | | | | (3,418) | | |
Class A common stock
|
| | | | — | | | | | | 1 | | | | | | 12 | | | | |
|
b
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
| | | | | | | | | | | | | | | | | (13) | | | | |
|
g
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class B common stock
|
| | | | — | | | | | | 1 | | | | | | — | | | | |
|
h
|
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | |
| | | | | | | | | | | | | | | | | (1) | | | | |
|
g
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
New FEI class A common stock
|
| | | | — | | | | | | — | | | | | | 1 | | | | |
|
f
|
| | | | | — | | | | | | 15 | | | | | | (1) | | | | |
|
i
|
| | | | | 14 | | |
| | | | | | | | | | | | | | | | | 14 | | | | |
|
g
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
New FEI class B common stock
|
| | | | — | | | | | | — | | | | | | 42 | | | | | | | | | | |
|
g
|
| | | | | — | | | | | | 42 | | | | | | | | | | | | 42 | | |
Total equity (deficit) attributable to the
Company |
| | | | (1,235,683) | | | | | | 5,001 | | | | | | 1,295,841 | | | | | | | | | | | | (311,249) | | | | | | (246,090) | | | | | | (68,355) | | | | | | | | | | | | (314,445) | | |
Noncontrolling interests
|
| | | | (442,007) | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (442,007) | | | | | | — | | | | | | | | | | | | (442,007) | | |
Total stockholders’ equity (deficit)
|
| | | | (1,677,690) | | | | | | 5,001 | | | | | | 1,295,841 | | | | | | | | | | | | (311,249) | | | | | | (688,097) | | | | | | (68,355) | | | | | | | | | | | | (756,452) | | |
Total liabilities and equity (deficit)
|
| | | $ | 5,136,370 | | | | | $ | 200,873 | | | | | $ | (91,422) | | | | | | | | | | | $ | (319,264) | | | | | $ | 4,926,557 | | | | | $ | (68,355) | | | | | | | | | | | $ | 4,858,202 | | |
|
| | | | | | | | | | | | | | |
Transactions Accounting
Adjustments |
| |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Transactions
Accounting Adjustments (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming Max Redemptions) |
| ||||||||||||||||||||||||
| | |
FEI
(Historical) |
| |
FAST
(Historical) |
| |
Pro Forma
Adjustments (Note 4) |
| | | | | | | |
Special
Distribution |
| ||||||||||||||||||||||||||||||
REVENUES: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality
|
| | | $ | 441,824 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | $ | 441,824 | | | | | | — | | | | | $ | 441,824 | | |
Gaming:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Casino
|
| | | | 146,829 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 146,829 | | | | | | — | | | | | | 146,829 | | |
Rooms
|
| | | | 26,693 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 26,693 | | | | | | — | | | | | | 26,693 | | |
Food and beverage
|
| | | | 35,908 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 35,908 | | | | | | — | | | | | | 35,908 | | |
Other
|
| | | | 17,089 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 17,089 | | | | | | — | | | | | | 17,089 | | |
Net gaming revenue
|
| | | | 226,519 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 226,519 | | | | | | — | | | | | | 226,519 | | |
Total revenue
|
| | | | 668,343 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 668,343 | | | | | | — | | | | | | 668,343 | | |
OPERATING COSTS AND EXPENSES: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenues
|
| | | | 114,713 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 114,713 | | | | | | — | | | | | | 114,713 | | |
Labor
|
| | | | 107,380 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 107,380 | | | | | | — | | | | | | 107,380 | | |
Other operating expenses
|
| | | | 118,700 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 118,700 | | | | | | — | | | | | | 118,700 | | |
Gaming:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Casino
|
| | | | 63,357 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 63,357 | | | | | | — | | | | | | 63,357 | | |
Rooms
|
| | | | 8,497 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 8,497 | | | | | | — | | | | | | 8,497 | | |
Food and beverage
|
| | | | 20,048 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 20,048 | | | | | | — | | | | | | 20,048 | | |
Other
|
| | | | 56,656 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 56,656 | | | | | | — | | | | | | 56,656 | | |
General and administrative
expense |
| | | | 35,331 | | | | | | 1,902 | | | | | | — | | | | | | | | | | | | — | | | | | | 37,233 | | | | | | — | | | | | | 37,233 | | |
Administrative expenses – related party
|
| | | | — | | | | | | 45 | | | | | | (45) | | | | |
|
d
|
| | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Depreciation and amortization
|
| | | | 50,414 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 50,414 | | | | | | — | | | | | | 50,414 | | |
Gain on disposal of assets
|
| | | | (1,650) | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (1,650) | | | | | | — | | | | | | (1,650) | | |
Pre-opening expenses
|
| | | | 135 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 135 | | | | | | — | | | | | | 135 | | |
Total operating expense
|
| | | | 573,581 | | | | | | 1,947 | | | | | | (45) | | | | | | | | | | | | — | | | | | | 575,483 | | | | | | — | | | | | | 575,483 | | |
Income (loss) from operations
|
| | | | 94,762 | | | | | | (1,947) | | | | | | 45 | | | | | | | | | | | | — | | | | | | 92,860 | | | | | | — | | | | | | 92,860 | | |
Interest expense, net
|
| | | | 69,663 | | | | | | — | | | | | | (17,163) | | | | |
|
a
|
| | | | | — | | | | | | 52,500 | | | | | | — | | | | | | 52,500 | | |
(Gain) loss on warrant derivatives
|
| | | | (81,091) | | | | | | 18,920 | | | | | | — | | | | | | | | | | | | — | | | | | | (62,171) | | | | | | — | | | | | | (62,171) | | |
Other income, net
|
| | | | (1,100) | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | (1,100) | | | | | | — | | | | | | (1,100) | | |
Net gain from investments held in Trust Account
|
| | | | — | | | | | | (25) | | | | | | 25 | | | | |
|
b
|
| | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Income (loss) before income tax
|
| | | | 107,290 | | | | | | (20,842) | | | | | | 17,183 | | | | | | | | | | | | — | | | | | | 103,631 | | | | | | — | | | | | | 103,631 | | |
Provision for income taxes
|
| | | | 6,136 | | | | | | — | | | | | | 4,296 | | | | |
|
c
|
| | | | | — | | | | | | 10,432 | | | | | | — | | | | | | 10,432 | | |
Net income (loss)
|
| | | | 101,154 | | | | | | (20,842) | | | | | | 12,887 | | | | | | | | | | | | — | | | | | | 93,199 | | | | | | — | | | | | | 93,199 | | |
Net income attributable to noncontrolling interests
|
| | | | 75,764 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 75,764 | | | | | | — | | | | | | 75,764 | | |
Net income (loss) attributable to the Company
|
| | | $ | 25,390 | | | | | $ | (20,842) | | | | | $ | 12,887 | | | | | | | | | | | | — | | | | | $ | 17,435 | | | | | | — | | | | | $ | 17,435 | | |
| | | | | | | | | | | | | | |
Transactions Accounting
Adjustments |
| |
Pro Forma
Combined Sub-Total (Assuming No Redemptions) |
| |
Transactions
Accounting Adjustments (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined Sub-Total (Assuming Max Redemptions) |
| ||||||||||||||||||||||||
| | |
FEI
(Historical) |
| |
FAST
(Historical) |
| |
Pro Forma
Adjustments (Note 4) |
| | | | | | | |
Special
Distribution |
| ||||||||||||||||||||||||||||||
REVENUES: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality
|
| | | $ | 1,543,946 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | $ | 1,543,946 | | | | | | — | | | | | $ | 1,543,946 | | |
Gaming:
|
| | | | | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | | | | | | | — | | | | | | | | |
Casino
|
| | | | 452,502 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 452,502 | | | | | | — | | | | | | 452,502 | | |
Rooms
|
| | | | 104,313 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 104,313 | | | | | | — | | | | | | 104,313 | | |
Food and beverage
|
| | | | 131,302 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 131,302 | | | | | | — | | | | | | 131,302 | | |
Other
|
| | | | 58,341 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 58,341 | | | | | | — | | | | | | 58,341 | | |
Net gaming revenue
|
| | | | 746,458 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 746,458 | | | | | | — | | | | | | 746,458 | | |
Total revenue
|
| | | | 2,290,404 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 2,290,404 | | | | | | — | | | | | | 2,290,404 | | |
OPERATING COSTS AND EXPENSES:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenues
|
| | | | 415,313 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 415,313 | | | | | | — | | | | | | 415,313 | | |
Labor
|
| | | | 428,467 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 428,467 | | | | | | — | | | | | | 428,467 | | |
Other operating expenses
|
| | | | 508,527 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 508,527 | | | | | | — | | | | | | 508,527 | | |
Gaming:
|
| | | | | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | | | | | | | — | | | | | | | | |
Casino
|
| | | | 205,803 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 205,803 | | | | | | — | | | | | | 205,803 | | |
Rooms
|
| | | | 36,951 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 36,951 | | | | | | — | | | | | | 36,951 | | |
Food and beverage
|
| | | | 83,493 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 83,493 | | | | | | — | | | | | | 83,493 | | |
Other
|
| | | | 178,244 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 178,244 | | | | | | — | | | | | | 178,244 | | |
General and administrative
expense |
| | | | 142,379 | | | | | | 328 | | | | | | — | | | | | | | | | | | | — | | | | | | 142,707 | | | | | | — | | | | | | 142,707 | | |
Administrative expenses – related party
|
| | | | — | | | | | | 60 | | | | | | (60) | | | | |
|
d
|
| | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Depreciation and amortization
|
| | | | 211,757 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 211,757 | | | | | | — | | | | | | 211,757 | | |
Asset impairment expense
|
| | | | 105,574 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 105,574 | | | | | | — | | | | | | 105,574 | | |
Loss on disposal of assets
|
| | | | 8,466 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 8,466 | | | | | | — | | | | | | 8,466 | | |
Pre-opening expenses
|
| | | | 3,000 | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | 3,000 | | | | | | — | | | | | | 3,000 | | |
Total operating expense
|
| | | | 2,327,974 | | | | | | 388 | | | | | | (60) | | | | | | | | | | | | — | | | | | | 2,328,302 | | | | | | — | | | | | | 2,328,302 | | |
Loss from operations
|
| | | | (37,570) | | | | | | (388) | | | | | | 60 | | | | | | | | | | | | — | | | | | | (37,898) | | | | | | — | | | | | | (37,898) | | |
Interest expense, net
|
| | | | 301,676 | | | | | | — | | | | | | (71,107) | | | | |
|
a
|
| | | | | — | | | | | | 230,569 | | | | | | — | | | | | | 230,569 | | |
(Gain) loss on warrant derivatives
|
| | | | (39,586) | | | | | | 15,340 | | | | | | — | | | | | | | | | | | | — | | | | | | (24,246) | | | | | | — | | | | | | (24,246) | | |
Other expense, net
|
| | | | 18,233 | | | | | | 474 | | | | | | — | | | | | | | | | | | | — | | | | | | 18,707 | | | | | | — | | | | | | 18,707 | | |
Net gain from investments held in Trust Account
|
| | | | — | | | | | | (67) | | | | | | 67 | | | | |
|
b
|
| | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Loss before income tax
|
| | | | (317,893) | | | | | | (16,135) | | | | | | 71,100 | | | | | | | | | | | | — | | | | | | (262,928) | | | | | | — | | | | | | (262,928) | | |
Benefit for income taxes
|
| | | | (106,490) | | | | | | — | | | | | | 17,775 | | | | |
|
c
|
| | | | | — | | | | | | (88,715) | | | | | | — | | | | | | (88,715) | | |
| | | | | | | | | | | | | | |
Transactions Accounting
Adjustments |
| |
Pro Forma
Combined Sub-Total (Assuming No Redemptions) |
| |
Transactions
Accounting Adjustments (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined Sub-Total (Assuming Max Redemptions) |
| |||||||||||||||||||||
| | |
FEI
(Historical) |
| |
FAST
(Historical) |
| |
Pro Forma
Adjustments (Note 4) |
| | | | |
Special
Distribution |
| ||||||||||||||||||||||||||||||
Net loss
|
| | | | (211,403) | | | | | | (16,135) | | | | | | 53,325 | | | | | | | | | — | | | | | | (174,213) | | | | | | — | | | | | | (174,213) | | |
Net income attributable to noncontrolling interests
|
| | | | 24,197 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | 24,197 | | | | | | — | | | | | | 24,197 | | |
Net loss attributable to the Company
|
| | | $ | (235,600) | | | | | $ | (16,135) | | | | | $ | 53,325 | | | | | | | | | — | | | | | $ | (198,410) | | | | | | — | | | | | $ | (198,410) | | |
|
| | |
For the Three Months Ended
March 31, 2021 |
| |
For the Year Ended
December 31, 2020 |
| ||||||||||||||||||
(in thousands, except share
and per share data) |
| |
Scenario 1
Assuming no redemption |
| |
Scenario 2
Assuming maximum redemption |
| |
Scenario 1
Assuming no redemption |
| |
Scenario 2
Assuming maximum redemption |
| ||||||||||||
Pro forma net income (loss)
|
| | | $ | 17,437 | | | | | $ | 17,437 | | | | | $ | (198,410) | | | | | $ | (198,410) | | |
Pro forma Weighted average shares outstanding — basic and diluted
|
| | | | 563,158,833 | | | | | | 556,323,372 | | | | | | 563,158,833 | | | | | | 556,323,372 | | |
Pro forma net income (loss) per share — basic and diluted
|
| | | $ | 0.03 | | | | | $ | 0.03 | | | | | $ | (0.35) | | | | | $ | (0.36) | | |
Pro forma weighted average shares calculation — basic and diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | |
FEI weighted average shares
outstanding |
| | | | 1,000 | | | | | | 1,000 | | | | | | 1,000 | | | | | | 1,000 | | |
FAST weighted average public shares outstanding
|
| | | | 11,000,261 | | | | | | 4,164,800 | | | | | | 11,000,261 | | | | | | 4,164,800 | | |
FAST common stock subject to redemption reclassified to equity
|
| | | | 13,999,739 | | | | | | 13,999,739 | | | | | | 13,999,739 | | | | | | 13,999,739 | | |
FAST Sponsors forfeit founder shares
|
| | | | (2,000,000) | | | | | | (2,000,000) | | | | | | (2,000,000) | | | | | | (2,000,000) | | |
Issuance of FAST common stock in connection with closing of the PIPE transaction
|
| | | | 124,000,000 | | | | | | 124,000,000 | | | | | | 124,000,000 | | | | | | 124,000,000 | | |
Retirement of FEI common stock in connection with business combination
|
| | | | (1,000) | | | | | | (1,000) | | | | | | (1,000) | | | | | | (1,000) | | |
Cancellation of FAST common stock in
exchange of New FEI Class A common stock |
| | | | (147,000,000) | | | | | | (140,164,539) | | | | | | (147,000,000) | | | | | | (140,164,539) | | |
Issuance of New FEI Class A common stock in exchange of FAST common stock
|
| | | | 147,000,000 | | | | | | 140,164,539 | | | | | | 147,000,000 | | | | | | 140,164,539 | | |
Issuance of New FEI Class B common stock in connection with business combination
|
| | | | 416,158,833 | | | | | | 416,158,833 | | | | | | 416,158,833 | | | | | | 416,158,833 | | |
Pro forma weighted average shares outstanding — basic and diluted
|
| | | | 563,158,833 | | | | | | 556,323,372 | | | | | | 563,158,833 | | | | | | 556,323,372 | | |
Name
|
| |
Age
|
| |
Position
|
|
Sandy Beall | | |
71
|
| | Chief Executive Officer and Director | |
Garrett Schreiber | | |
31
|
| | Co-Chief Executive Officer | |
Todd Higgins | | |
49
|
| | Chief Financial Officer | |
Kimberly Grant | | |
50
|
| | Chief Operating Officer | |
Kevin Reddy | | |
63
|
| | Chairman | |
Ramin Arani | | |
51
|
| | Director | |
Sanjay Chadda | | |
45
|
| | Director | |
Alice Elliot | | |
65
|
| | Director | |
Steve Kassin | | |
36
|
| | Director | |
Michael Lastoria | | |
41
|
| | Director | |
Golden Nugget Properties
|
| ||||||||||||||||||||||||||||||
Property
|
| |
Slot
Machines |
| |
Table Games
|
| |
Square Feet
|
| |
Hotel Rooms
|
| |
Restaurants
|
| |||||||||||||||
Lake Charles
|
| | | | 1,600 | | | | | | 87 | | | | | | 73,055 | | | | | | 1,091 | | | | | | 11 | | |
Las Vegas
|
| | | | 980 | | | | | | 65 | | | | | | 54,300 | | | | | | 2,419 | | | | | | 11 | | |
Atlantic City
|
| | | | 1,207 | | | | | | 81 | | | | | | 80,247 | | | | | | 717 | | | | | | 9 | | |
Biloxi
|
| | | | 957 | | | | | | 44 | | | | | | 49,809 | | | | | | 707 | | | | | | 6 | | |
Laughlin
|
| | | | 680 | | | | | | 11 | | | | | | 35,549 | | | | | | 300 | | | | | | 5 | | |
TOTAL | | | | | 5,424 | | | | | | 288 | | | | | | 292,960 | | | | | | 5,234 | | | | | | 42 | | |
| | |
Twelve Months Ended
March 31, 2021 |
| |||||||||
Segment
|
| |
Unit Count
|
| |
Revenue
|
| ||||||
Casual Dining
|
| | | | 301 | | | | | $ | 728,246 | | |
Upscale Dining
|
| | | | 173 | | | | | $ | 580,061 | | |
Casinos
|
| | | | 5 | | | | | $ | 644,102 | | |
Online Gaming
|
| | | | 1 | | | | | $ | 100,526 | | |
Corporate and other
|
| | | | 6 | | | | | $ | 123,801 | | |
| | |
Year End December 31,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Restaurant and hospitality: | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | |
Cost of revenues
|
| | | | 26.9% | | | | | | 25.7% | | | | | | 25.6% | | |
Labor
|
| | | | 27.8% | | | | | | 29.9% | | | | | | 30.0% | | |
Other operating expenses(1)
|
| | | | 32.9% | | | | | | 25.4% | | | | | | 25.6% | | |
Unit level profit(1)
|
| | | | 12.4% | | | | | | 19.0% | | | | | | 18.8% | | |
Gaming: | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | | 100.0% | | | | | | 100.0% | | | | | | 100.0% | | |
Casino costs
|
| | | | 27.6% | | | | | | 26.8% | | | | | | 27.4% | | |
Rooms costs
|
| | | | 5.0% | | | | | | 6.0% | | | | | | 5.9% | | |
Food and beverage costs
|
| | | | 11.2% | | | | | | 16.3% | | | | | | 16.5% | | |
Other operating expenses(1)
|
| | | | 23.9% | | | | | | 21.0% | | | | | | 21.3% | | |
Unit level profit(1)
|
| | | | 32.3% | | | | | | 29.9% | | | | | | 28.9% | | |
| | |
Three Months Ended
March 31, |
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Restaurant and hospitality: | | | | | | | | | | | | | |
Revenues
|
| | | | 100.0% | | | | | | 100.0% | | |
Cost of revenues
|
| | | | 26.0% | | | | | | 26.9% | | |
Labor
|
| | | | 24.3% | | | | | | 32.6% | | |
Other operating expenses(1)
|
| | | | 26.9% | | | | | | 30.0% | | |
Unit level profit(1)
|
| | | | 22.8% | | | | | | 10.5% | | |
Gaming: | | | | | | | | | | | | | |
Revenues
|
| | | | 100.0% | | | | | | 100.0% | | |
Casino costs
|
| | | | 28.0% | | | | | | 29.3% | | |
Rooms costs
|
| | | | 3.8% | | | | | | 6.5% | | |
Food and beverage costs
|
| | | | 8.9% | | | | | | 16.8% | | |
Other operating expenses(1)
|
| | | | 25.0% | | | | | | 23.0% | | |
Unit level profit(1)
|
| | | | 34.3% | | | | | | 24.4% | | |
| | |
Three months ended
March 31, |
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Net cash provided by (used in): | | | | | | | | | | | | | |
Operating activities
|
| | | $ | 101,789 | | | | | $ | (94,790) | | |
Investing activities
|
| | | | (11,645) | | | | | | (19,512) | | |
Financing activities
|
| | | | 67,082 | | | | | | 198,925 | | |
Effect of exchange rate changes on cash
|
| | | | (264) | | | | | | (69) | | |
Net increase in cash, cash equivalents and restricted cash
|
| | | $ | 156,962 | | | | | $ | 84,554 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Net cash provided by (used in): | | | | | | | | | | | | | | | | | | | |
Operating activities
|
| | | $ | 89,292 | | | | | $ | 387,890 | | | | | $ | 419,263 | | |
Investing activities
|
| | | | (119,209) | | | | | | (570,201) | | | | | | (168,254) | | |
Financing activities
|
| | | | 345,260 | | | | | | 208,584 | | | | | | (229,526) | | |
Effect of exchange rate changes on cash
|
| | | | (224) | | | | | | (234) | | | | | | 186 | | |
Net increase in cash, cash equivalents and restricted cash
|
| | | $ | 315,119 | | | | | $ | 26,039 | | | | | $ | 21,669 | | |
| | |
Goodwill Sensitivity
|
| |
Trademark Sensitivity
|
| ||||||||||||||||||
(in thousands)
|
| |
Amount by Which
Fair Value Exceeded Carrying Value |
| |
Impact to Fair Value
from a 1% Increase in Discount Rate |
| |
Amount by Which
Fair Value Exceeded Carrying Value |
| |
Impact to Fair Value
from a 1% Increase in Discount Rate |
| ||||||||||||
Del Frisco’s
|
| | | $ | 48,569 | | | | | $ | (20,604) | | | | | $ | 1,447 | | | | | $ | (5,094) | | |
Mastro’s
|
| | | | 156,506 | | | | | | (25,813) | | | | | | 12,320 | | | | | | (4,694) | | |
McCormick & Schmick’s(1)
|
| | | | 87,686 | | | | | | (9,236) | | | | | | — | | | | | | (314) | | |
Morton’s
|
| | | | 230,786 | | | | | | (22,164) | | | | | | — | | | | | | (1,828) | | |
Bubba Gump(2)
|
| | | | 235,837 | | | | | | (19,424) | | | | | | — | | | | | | — | | |
The Palm
|
| | | | — | | | | | | — | | | | | | 310 | | | | | | (2,300) | | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
|
Authorized Capital Stock
|
| | The Current Charter authorizes 401,000,000 shares of capital stock, consisting of (a) 400,000,000 shares of common stock, including 380,000,000 shares of Class A common stock and 20,000,000 shares of Class B common stock, and (b) 1,000,000 shares of preferred stock. | | |
New FEI will be authorized to issue shares of Class A common stock, par value $0.0001 per share, shares of Class B common stock, par value $0.0001 per share and shares of preferred stock.
After giving effect to the Business Combination and based on the number of FAST Shares outstanding as of the record date, New FEI will have approximately shares of New FEI Class A common stock outstanding (assuming no redemptions), shares of New FEI Class B common stock outstanding and no shares of preferred stock issued and outstanding.
|
|
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
|
Rights of Preferred Stock
|
| | The Current Charter permits FAST’s board of directors to provide out of the unissued shares of preferred stock for one or more series of preferred stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preference and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof. | | | The New FEI board will be authorized, subject to limitations prescribed by the TBOC and the Proposed Charter, to determine the terms and conditions of the preferred stock, including whether the shares of preferred stock will be issued in one or more series, the number of shares to be included in each series and the powers (including the voting power), designations, preferences and rights of the shares. The New FEI board also will be authorized to designate any qualifications, limitations or restrictions on the shares without any further vote or action by the stockholders. | |
|
Number and Qualification of Directors
|
| | The Current Charter provides that the number of directors of FAST, other than those who may be elected by the holders of one or more series of preferred stock voting separately by class or series, will be fixed from time to time exclusively by FAST’s board of directors pursuant to a resolution adopted by a majority of FAST’s board of directors. | | |
New FEI’s board of directors must consist of not less than three and not more than eight members and the number of members is to be increased or decreased from time to time by resolution of the board.
Directors of New FEI’s board following the Business Combination need not be stockholders of New FEI.
|
|
|
Classification of the Board of Directors
|
| | Delaware law permits a corporation to classify its board of directors into as many as three classes with staggered terms of office. Under the Current Charter, the FAST Board is classified into three classes of directors with staggered terms of office. | | | The New FEI board will not be classified. | |
|
Election and Removal of Directors
|
| | Under the DGCL, holders of a majority of shares of each class entitled to vote at an election of directors may vote to remove any director or the entire board without cause unless (i) the board is a classified board, in which case directors may be removed only for cause, or (ii) the corporation has cumulative voting, in which case, if less than the entire board is to be removed, no director may be removed without cause if the votes cast | | | Under Texas law, directors are elected by a plurality of the votes cast by the shareholders entitled to vote in the election of directors at a meeting of shareholders at which a quorum is present, unless otherwise provided in the certificate of formation or the bylaws of a corporation. Unless otherwise provided in the certificate of formation or the bylaws of a corporation, Texas law provides that at any meeting of shareholders called expressly | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | |
against his or her removal would be sufficient to elect such director. Thus, under the DGCL, a director of a corporation that does not have a classified board or permit cumulative voting may be removed, without cause, by the affirmative vote of a majority of the outstanding shares entitled to vote at an election of directors.
The Current Charter provides that any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then-outstanding shares of capital stock of FAST entitled to vote generally in the election of directors, voting together as a single class.
|
| |
for the purpose of removing a director, any director or the entire board of directors may be removed, with or without cause, by a vote of at least a majority of the shares then entitled to vote at any election of directors
Except for directors for which holders of any series of outstanding preferred stock are entitled to elect and subject to obtaining any required stockholder votes or consents under the Stockholders’ Agreement, any director or the entire New FEI board may be removed from office at any time, with or without cause and only by the affirmative vote of the holders of a majority of the total voting power of the outstanding shares of New FEI capital stock entitled to vote generally in the election of directors, voting together as a single class.
|
|
|
Voting
|
| | The Current Charter provides that the holders of the Class A common stock and the Class B common stock exclusively possess all voting power with respect to FAST. The holders of FAST’s common stock shall be entitled to one vote for each such share on each matter properly submitted to FAST’s stockholders on which the holders of FAST’s common stock are entitled to vote. | | | Holders of New FEI Class A common stock are entitled to one vote per share on all matters submitted to the stockholders for their vote or approval. Holders of New FEI Class B common stock are entitled to ten votes per share on all matters submitted to the stockholders for their vote or approval. | |
|
Cumulative Voting
|
| | Delaware law provides that a corporation may grant stockholders cumulative voting rights for the election of directors in its certificate of incorporation; however, the Current Charter does not authorize cumulative voting. | | | Holders of New FEI’s common stock will not have cumulative voting rights. | |
|
Vacancies on the Board of Directors
|
| | The Current Charter provides that vacancies in FAST’s board of directors and newly created directorships resulting from any increase in the authorized number of directors or resulting from death, resignation, retirement, | | | Texas law provides that, unless otherwise authorized by a corporation’s certificate of formation, a vacancy on a corporation’s board of directors which the holders of a class or series of shares, or group of | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | disqualification, removal or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum or by a sole remaining director (and not by stockholders). | | |
classes or series of shares, are entitled to elect, may be filled only by (i) the affirmative vote of the majority of directors in office elected by such class, series or group; (ii) the sole remaining director elected in that manner; or (iii) the affirmative vote of the holders of the outstanding shares of such class, series or group.
Except as otherwise expressly required by law, and subject to the rights of the holders of any one or more series of preferred stock then-outstanding and subject to obtaining any required stockholder votes or consents under the Stockholders’ Agreement (or complying with any stockholders’ designation rights under the Stockholders’ Agreement), any vacancies on New FEI’s board resulting from death, resignation, retirement, disqualification, removal from office or other cause shall be filled solely by the affirmative vote of the remaining directors then in office, even if less than a quorum of the board. Any director so chosen shall hold office until the next annual meeting of stockholders at which his or her term shall expire and until his or her successor shall be duly elected and qualified or until such director’s earlier death, disqualification, resignation or removal. No decrease in the number of directors shall shorten the term of any director then in office.
|
|
|
Special Meeting of the Board of Directors
|
| | There is no such provision in the Current Charter. | | | Special meetings of New FEI’s board for any purpose or purposes may be called at any time by the chairperson of the board or a majority of the total number of directors constituting the board. | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
|
Stockholder Action by Written Consent
|
| |
The DGCL provides that, unless the articles or certificate of incorporation provides otherwise, any action required or permitted to be taken at a meeting of the stockholders may be taken without a meeting if the holders of outstanding stock having at least the minimum number of votes that would be necessary to authorize or take the action at a meeting of stockholders consent to the action in writing. In addition, the DGCL requires a corporation to give prompt notice of the taking of corporate action without a meeting by less than unanimous written consent to those stockholders who did not consent in writing.
Under the Current Charter, any action required or permitted to be taken by the stockholders of FAST must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders, other than with respect to the Class B common stock with respect to which action may be taken by written consent.
|
| | So long as New FEI qualifies as a “controlled company” in Section 303A.00 of the NYSE Listed Company Manual, any action required or permitted to be taken by New FEI’s stockholders may be effected by the consent in writing of the holders of outstanding New FEI capital stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted. | |
|
Amendment of the Charter
|
| | Under Delaware law, an amendment to a charter generally requires the approval of FAST’s board of directors and a majority of the combined voting power of the then-outstanding shares of voting stock, voting together as a single class. | | | Subject to the Stockholders’ Agreement (for so long as it remains in effect), New FEI will reserve the right to amend, alter, change or repeal any provision contained in the Proposed Charter, in the manner prescribed by the Proposed Charter and the TBOC. | |
|
Amendment of the Bylaws
|
| | FAST’s board of directors is expressly authorized to make, alter, amend or repeal the Current Bylaws by an affirmative vote of a majority of the FAST Board. The Current Bylaws may also be adopted, amended, altered or repealed by the FAST Stockholders representing a majority of the voting power of all of the then-outstanding shares | | |
Under Texas law, unless a corporation’s certificate of formation or a bylaw adopted by the shareholders provides otherwise, a corporation’s shareholders may amend the bylaws regardless of whether they may also be amended by the board of directors.
The Proposed Bylaws may be
|
|
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | of capital stock of FAST entitled to vote generally in the election of directors. | | | altered, amended or repealed in whole or in part in accordance with the Proposed Charter, the Stockholders’ Agreement and the TBOC. | |
|
Quorum
|
| |
Board of Directors. A majority of FAST’s board of directors constitutes a quorum at any meeting of FAST’s board of directors.
Stockholders. The presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock representing a majority of the voting power of all outstanding shares of capital stock entitled to vote at such meeting constitutes a quorum.
|
| |
Board of Directors. A majority of the total number of New FEI directors shall constitute a quorum for the transaction of business; provided, that to the fullest extent permitted by the TBOC, the presence of the chairperson of the board shall be necessary in order for a quorum to be obtained at any meeting of New FEI’s board. Notwithstanding the foregoing, in the event that the chairperson of the board is unable to attend any emergency meeting of the board, as determined by the board in good faith, by reason of temporary disability or otherwise, the presence of the chairperson of the board shall not be necessary in order for such quorum to be obtained and the board may appoint a director as interim chairperson of the board to preside over such meeting.
Stockholders. The holders of a majority in voting power of the stock issued and outstanding and entitled to vote, present in person, or by remote communication, if applicable, or represented by proxy, shall constitute a quorum for the transaction of business at all meetings of the stockholders.
|
|
|
Special Meetings of Stockholders
|
| |
Under Delaware law, a special meeting of stockholders may be called by the board of directors or by any other person authorized in the certificate of incorporation or bylaws to call a special stockholder meeting.
The Current Bylaws provide that a special meeting of stockholders may be called by the Secretary of FAST at the written request of the majority of the board of directors of FAST, by the
|
| | Under Texas law, special meetings of the shareholders of a corporation may be called by the president, by the board of directors or by any other person authorized to call special meetings by the certificate of formation or bylaws of the corporation. A special meeting may also be called by the holder of the percentage of shares specified in the certificate of formation, not to exceed 50% of | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | Chairman of the board or by the Chief Executive Officer of FAST. | | |
the shares entitled to vote, or if no percentage is specified, at least 10% of all of the shares of the corporation entitled to vote at the proposed special meeting.
Special meetings of New FEI’s stockholders may be called only by or at the direction of (i) the board of New FEI, (ii) the chairman of such board or (iii) so long as New FEI is a “controlled company,” by the secretary of New FEI at the request of any holder entitled to vote generally in the election of directors.
|
|
|
Notice of Stockholder Meetings
|
| | Whenever notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. | | |
Under Texas law, notice of a meeting of shareholders must be given as required in a corporation’s governing documents, and must state the date of time of the meeting, and the location or conference information used for the meeting.
The notice of any meeting of stockholders shall be sent or otherwise given in accordance with the Proposed Bylaws not less than ten nor more than 60 days before the date of the meeting to each stockholder entitled to vote at such meeting. The notice shall specify the place, if any, date and hour of the meeting, the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining the stockholders entitled to notice of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be mailed to or transmitted electronically to each stockholder of record entitled to vote thereat. Stockholders and proxy holders not physically present at a meeting of
|
|
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | | stockholders may, by means of remote communication participate in a meeting of stockholders be deemed present in person and vote at a meeting of stockholders whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (x) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxyholder; (y) the Corporation shall implement reasonable measures to provide such stockholders and proxyholders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings; and (z) if any stockholder or proxyholder votes or takes other action at the meeting by means of remote communication, a record of such vote or other action shall be maintained by the Corporation. | |
|
Stockholder Proposals (Other than Nominations of Persons for Election as Directors)
|
| | There is no such provision in the Current Charter. | | | At an annual meeting of the stockholders, only such business shall be conducted as shall have been properly brought before the meeting. To be properly brought before an annual meeting, business must be (a) specified in a notice of meeting given by or at the direction of New FEI’s board, (b) if not specified in a notice of meeting, otherwise brought before the meeting by the board or the chairperson of the meeting, or (c) otherwise properly brought before the meeting by a stockholder present in person who (1) was a New FEI stockholder both at the time of | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | | giving required notice and at the time of the meeting, (2) is entitled to vote at the meeting and (3) has complied with notice procedures. | |
|
Stockholder Nominations of Persons for Election as Directors
|
| | Nominations of persons for election to FAST’s board of directors may be made at a special meeting of stockholders at which directors are to be elected pursuant to FAST’s notice of meeting only by giving notice to the secretary must be received by the secretary at the principal executive offices of FAST (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date (or if there has been no prior annual meeting), notice by the stockholder to be timely must be so received no earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by FAST; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by FAST. | | | Nominations of any person for election to New FEI’s board at an annual meeting may be made at such meeting only (a) by or at the direction of the board, including by any committee or persons authorized to do so by the board or the Proposed Bylaws, or (b) by a stockholder present in person who (1) was a beneficial owner of New FEI shares both at the time of giving required notice and at the time of the meeting, (2) is entitled to vote at the meeting and (3) has complied with notice and nomination procedures set forth in the Proposed Bylaws. | |
|
Limitation of Liability of Directors and Officers
|
| | The DGCL permits limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with | | | Texas law provides that the certificate of formation of a corporation may provide that a director of the corporation is not | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | |
regard to breaches of the duty of loyalty, intentional misconduct, unlawful repurchases or dividends, or improper personal benefit.
The Current Charter provides that no director will be personally liable, except to the extent an exemption from liability or limitation is not permitted under the DGCL, unless a director violated his or her duty of loyalty to the FAST or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from his or her actions as a director.
|
| |
liable, or is liable only to the extent provided by the certificate of formation to the corporation or its shareholders for monetary damages for an act or omission by the person in the person’s capacity as a director.
The Proposed Charter will limit the liability of the New FEI directors to the fullest extent permitted by the TBOC.
|
|
|
Indemnification of Directors and Officers
|
| |
The DGCL generally permits a corporation to indemnify its directors and officers acting in good faith. Under the DGCL, the corporation through its stockholders, directors or independent legal counsel, will determine that the conduct of the person seeking indemnity conformed with the statutory provisions governing indemnity.
The Current Charter provides that FAST will indemnify each director and officer to the fullest extent permitted by applicable law.
|
| | Under Texas law, a corporation must indemnify a director for his service at the corporation and for service at the corporation as a representative of another entity against reasonable expenses actually incurred by the director in connection with a proceeding because of such service if the director is wholly successful, on the merits or otherwise, in the defense of the proceeding. If a court determines that a director, former director or representative is entitled to indemnification, the court will order indemnification by the corporation and award the person expenses incurred in securing the indemnification. Texas law also permits corporations to indemnify present or former directors and representatives of other entities serving as such directors in certain situations where indemnification is not mandated by law; however, such permissive indemnification is subject to various limitations. Under Texas law, a court may also order indemnification under various | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | |
circumstances, and officers must be indemnified to the same extent as directors.
The Proposed Charter provides that New FEI will provide directors with customary indemnification and advancement of expenses. New FEI expects to enter into customary indemnification agreements with each of its executive officers and directors that provide them, in general, with customary indemnification in connection with their service to New FEI or on its behalf.
|
|
|
Dividends
|
| |
Unless further restricted in the certificate of incorporation, the DGCL permits a corporation to declare and pay dividends out of either (i) surplus, or (ii) if no surplus exists, out of net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year (provided that the amount of capital of the corporation is not less than the aggregate amount of the capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets). The DGCL defines surplus as the excess, at any time, of the net assets of a corporation over its stated capital. In addition, the DGCL provides that a corporation may redeem or repurchase its shares only when the capital of the corporation is not impaired and only if such redemption or repurchase would not cause any impairment of the capital of a corporation.
The Current Charter provides that, subject to applicable law, the rights, if any, of the holders of any outstanding series of preferred stock and the charter requirements relating to business combinations, holders of shares of common stock are entitled to
|
| |
The holders of New FEI Class A common stock and New FEI Class B common stock will be entitled to receive dividends, as and if declared by the New FEI board, out of legally available funds. Under the Proposed Charter, dividends may not be declared or paid in respect of the New FEI Class A common stock or the New FEI Class B common stock unless they are declared or paid in the same amount in respect of the other class of Economic Rights Stock.
For any Convertible Security declared as a dividend or paid as a dividend on the Class A common stock and the Class B common stock, each voting security of New FEI underlying such Convertible Security paid to holders of Class B common stock will be convertible into the voting security underlying the Convertible Security paid to the holders of Class A common stock upon terms and conditions that are substantially similar to the terms and conditions applicable to the conversion of Class B common stock into Class A common stock.
|
|
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | receive such dividends and other distributions (payable in cash, property or capital stock of FAST) when, as and if declared thereon by FAST’s board of directors from time to time out of any assets or funds legally available therefor and will share equally on a per share basis in such dividends and distributions. | | | | |
|
Liquidation
|
| | In the event of any voluntary or involuntary liquidation, dissolution or winding up of FAST, after payment or provision for payment of the debts and other liabilities of FAST, the holders of shares of common stock shall be entitled to receive all the remaining assets of FAST available for distribution to its stockholders, ratably in proportion to the number of shares of common stock held by them. | | | Upon New FEI’s liquidation or dissolution, the holders of common stock are entitled to their respective par value, and will be entitled to share ratably in those of New FEI’s assets that are legally available for distribution to stockholders after payment of liabilities and subject to the prior rights of any holders of preferred stock then outstanding. | |
|
Supermajority Voting Provisions
|
| | Amendments to Article VIII (Indemnification) of the Current Charter require the affirmative vote of FAST’s stockholders holding at least two-thirds of the voting power of all outstanding shares of capital stock of FAST. | | | In addition to any affirmative vote of the holders of any particular class or series of capital stock of New FEI required by law or by the Proposed Bylaws or by the Proposed Charter, any alteration, amendment or repeal of the sections of the Proposed Charter concerning the board of directors; meetings of stockholders; corporate opportunities; limitation of liability; indemnification; adoption, amendment and repeal of the Proposed Charter; or forum for adjudication of disputes will require the affirmative vote of (a) a majority of the total voting power of the outstanding shares of capital stock of New FEI entitled to vote thereon, voting together as a single class, while shares representing a majority of the voting power of all the then-outstanding shares of capital stock of New FEI entitled to vote at an annual or special meeting | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | | duly noticed and called in accordance with the Proposed Charter are owned by Mr. Tillman J. Fertitta (“Founder Control”); or (b) at least two-thirds of the total voting power of the outstanding shares of capital stock of New FEI entitled to vote thereon, voting together as a single class, from and after the time that New FEI ceases to be under Founder Control. | |
|
Anti-Takeover Provisions and Other Stockholder Protections
|
| | The anti-takeover provisions and other stockholder protections in the Current Charter include the staggered board, blank check preferred stock, and an election to be subject to Section 203 of the DGCL, which regulates corporate takeovers, among others. | | |
The affiliated business combinations provisions of Chapter 21, Subchapter M of the TBOC (Sections 21.601 through 21.610) provide that a Texas corporation may not engage in certain business combinations, including mergers, consolidations and asset sales, with a person, or an affiliate or associate of such person, who is an “Affiliated Shareholder” (generally defined as the holder of 20% or more of the corporation’s voting shares) for a period of three years from the date such person became an Affiliated Shareholder unless: (1) the business combination or purchase or acquisition of shares made by the Affiliated Shareholder was approved by the board of directors of the corporation before the Affiliated Shareholder became an Affiliated Shareholder or (2) the business combination was approved by the affirmative vote of at least two-thirds majority of the outstanding voting shares of the corporation not beneficially owned by the Affiliated Shareholder, at a meeting of shareholders called for that purpose (and not by written consent), not less than six months after the Affiliated Shareholder became an Affiliated Shareholder.
The provisions of the Proposed Charter and Proposed Bylaws
|
|
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | | and of the TBOC may have an anti-takeover effect and may delay, defer or prevent a tender offer or takeover attempt that you might consider in your best interest, including an attempt that might result in your receipt of a premium over the market price for your shares of New FEI Class A common stock. See “Description of New FEI Securities – Anti-Takeover Effects of Provisions of the Proposed Charter and Proposed Bylaws” for a description of the relevant provisions in the Proposed Charter and Proposed Bylaws. | |
|
Preemptive Rights
|
| | There are no preemptive rights provisions in the Current Charter. | | | There are no preemptive rights provisions in the Proposed Charter. | |
|
Choice of Forum
|
| | The Current Charter generally designates the Court of Chancery of the State of Delaware as the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of FAST, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of FAST to FAST or FAST’s stockholders, (iii) any action asserting a claim against FAST, its directors, officers or employees arising pursuant to any provision of the DGCL or its charter or bylaws, or (iv) any action asserting a claim against FAST, its directors, officers or employees governed by the internal affairs doctrine and, if brought outside of Delaware, the stockholder bringing the suit will be deemed to have consented to service of process on such stockholder’s counsel, subject to certain exceptions. | | | The Proposed Charter provides that, to the fullest extent permitted by law, and unless New FEI provides notice in writing to the selection of an alternative forum, the Southern District of Texas in the State of Texas will be the sole and exclusive forum for (i) any derivative action or proceeding brought on behalf of New FEI, (ii) any action asserting a claim of breach of a fiduciary duty owed by any of New FEI’s directors, officers, employees or agents to New FEI or its stockholders, (iii) any action asserting a claim against New FEI, its directors, officers, employees or agents arising pursuant to any provision of the TBOC, the Proposed Charter or Proposed Bylaws or as to which the TBOC confers jurisdiction on the Southern District of Texas in the State of Texas or (iv) any action asserting a claim against New FEI, its directors, officers, employees or agents governed by the internal affairs doctrine, in each such case subject to such Southern District of Texas having personal jurisdiction over the indispensable parties named as | |
| | | |
FAST Stockholder Rights
|
| |
New FEI Stockholder Rights
|
|
| | | | | | | defendants therein. The Proposed Charter will further provide that the federal district courts of the United States will be the exclusive forum for resolving any complaint asserting a cause of action arising under the Securities Act. There is uncertainty as to whether a court would enforce such a provision relating to causes of action arising under the Securities Act, and investors cannot waive compliance with the federal securities laws and the rules and regulations thereunder. The clauses described above will not apply to suits brought to enforce a duty or liability created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. | |
| | |
Before the Business
Combiantion |
| |
After the Business Combiantion
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | |
Assuming No Redemption
|
| |
Assuming Redemption
of 6,835,461 shares of Company Class A common stock |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | | | | | |
New FEI Class
A common stock |
| |
New FEI Class B
common stock |
| |
New FEI Class
A common stock |
| |
New FEI Class B
common stock |
| ||||||||||||||||||||||||||||||||||||||||||||||||
Name and Address of
Beneficial Owner(1) |
| |
Number of
shares of common stock |
| |
%
|
| |
% of
Total Voting Power** |
| |
Number
of shares |
| |
% of
Total New FEI Class A common stock |
| |
Number
of shares |
| |
% of
Total New FEI Class B common stock |
| |
% of
Total Voting Power** |
| |
Number
of shares |
| |
% of
Total New FEI Class A common stock |
| |
Number
of shares |
| |
% of
Total New FEI Class B common stock |
| |
% of
Total Voting Power** |
| |||||||||||||||||||||||||||||||||||||||
Sandy Beall
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Garrett Schreiber
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Todd Higgins
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Kimberly Grant
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Kevin Reddy
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Ramin Arani
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Sanjay Chadda
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Alice Elliot
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Steve Kassin
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Michael Lastoria
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All officers and
directors as a group (ten individuals) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Five Percent Holders | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
FAST Sponsor, LLC(3)
|
| | | | 5,000,000(2) | | | | | | 20.0 | | | | | | 20.0 | | | | | | 3,000,000 | | | | | | * | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | | | | | 3,000,000 | | | | | | * | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | |
Sculptor Capial LP(4)
|
| | | | 1,737,700 | | | | | | 6.9 | | | | |
|
—
|
| | | | | 1,737,700 | | | | | | * | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | | | | | 1,737,700 | | | | |
|
*
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
*
|
| |
Scopus Capital, Inc.(5)
|
| | | | 1,250,000 | | | | | | 5.0 | | | | |
|
—
|
| | | | | 1,250,000 | | | | | | * | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | | | | | 1,250,000 | | | | |
|
*
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
*
|
| |
Chatham Asset Management, LLC(6)
|
| | | | 3,574,862 | | | | | | 13.5 | | | | |
|
—
|
| | | | | 52,545,062 | | | | | | 3.6 | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | | | | | 52,545,062 | | | | | | 3.7 | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
*
|
| |
Eagle Asset Management, Inc.(7)
|
| | | | 2,593,758 | | | | | | 10.4 | | | | |
|
—
|
| | | | | 1,737,700 | | | | | | * | | | | |
|
—
|
| | | |
|
—
|
| | | | | * | | | | | | 1,737,700 | | | | |
|
*
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
*
|
| |
Directors and Officers
of New FEI after the transaction |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Tilman J. Fertitta(8)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 416,158,833 | | | | | | 100.0% | | | | | | 96.7% | | | | | | — | | | | | | — | | | | | | 416,158,833 | | | | | | 100% | | | | | | 96.9% | | |
Richard H. Liem
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Steven L. Scheinthal
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Michael S. Chadwick
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
G. Michael Stevens
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Scott Kelly
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All officers and
directors as a group (eight individuals) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 416,158,833 | | | | | | 100.0% | | | | | | 96.7% | | | | | | — | | | | | | — | | | | | | 416,158,833 | | | | | | 100% | | | | | | 96.9% | | |
Name
|
| |
Age
|
| |
Position
|
|
Tilman J. Fertitta | | |
63
|
| | Chairman, Chief Executive Officer, President and Director Nominee | |
Richard H. Liem | | |
67
|
| |
Executive Vice President, Chief Financial Officer and Director Nominee
|
|
Steven L. Scheinthal | | |
59
|
| | Executive Vice President, General Counsel and Director Nominee | |
Michael S. Chadwick | | |
59
|
| | Director Nominee | |
G. Michael Stevens | | |
60
|
| | Director Nominee | |
Scott Kelly | | |
57
|
| | Director Nominee | |
Name and Principal Position
|
| |
Year
|
| |
Salary ($)(1)
|
| |
Bonus ($)
|
| |
All Other
Compensation ($) |
| |
Total ($)
|
| |||||||||||||||
Tilman Fertitta
|
| | | | 2020 | | | | | | 2,092,193 | | | | | | — | | | | | | 380,531(2) | | | | | | 2,472,724 | | |
President and Chief Executive Officer
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Rick Liem
|
| | | | 2020 | | | | | | 576,044 | | | | | | 1,000,000 | | | | | | 24,333(3) | | | | | | 1,600,377 | | |
Treasurer, Executive Vice President and Chief Financial Officer
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Steve Scheinthal
|
| | | | 2020 | | | | | | 674,333 | | | | | | 1,000,000 | | | | | | 32,773(3) | | | | | | 1,707,106 | | |
Secretary, Executive Vice President and General Counsel
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
Pre-Adjustment 2020
Annual Base Salary (Prior to March 23, 2020) |
| |
Post-Adjustment
2020 Annual Base Salary (Effective March 23, 2020) |
| |
Post-Adjustment
2020 Annual Base Salary (Effective July 16, 2020) |
| |
Post-Adjustment
2020 Annual Base Salary (Effective October 1, 2020) |
| ||||||||||||
Tilman Fertitta
|
| | | $ | 2,833,530.24 | | | | | $ | 1,416,765.12 | | | | | $ | 1,983,471.17 | | | | | $ | 2,266,824.19 | | |
Rick Liem
|
| | | $ | 848,720.16 | | | | | $ | 424,360.08 | | | | | $ | 522,104.16 | | | | | $ | 608,776.08 | | |
Steve Scheinthal
|
| | | $ | 901,765.20 | | | | | $ | 450,882.60 | | | | | $ | 631,235.76 | | | | | $ | 721,412.16 | | |
| | |
Page
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| | | | F-6 | | | |
| | | | F-7 | | |
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| | | | F-27 | | | |
| | | | F-28 | | | |
| | | | F-29 | | | |
| | | | F-30 | | | |
| | | | F-31 | | |
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| | | | F-45 | | | |
| | | | F-48 | | | |
| | | | F-50 | | | |
| | | | F-51 | | | |
| | | | F-52 | | | |
| | | | F-53 | | | |
| | | | F-54 | | | |
| | | | F-55 | | |
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Page
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| | | | F-86 | | | |
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| | | | F-88 | | | |
| | | | F-89 | | | |
| | | | F-90 | | | |
| | | | F-91 | | |
| Assets: | | | | | | | |
| Current assets: | | | | | | | |
|
Cash
|
| | | $ | 1,039,484 | | |
|
Prepaid expenses
|
| | | | 294,916 | | |
|
Total current assets
|
| | | | 1,334,400 | | |
|
Investments held in Trust Account
|
| | | | 200,067,535 | | |
|
Total Assets
|
| | | $ | 201,401,935 | | |
| Liabilities and Stockholders’ Equity: | | | | | | | |
| Current liabilities: | | | | | | | |
|
Accounts payable
|
| | | $ | 5,580 | | |
|
Accrued expenses
|
| | | | 123,300 | | |
|
Franchise tax payable
|
| | | | 114,023 | | |
|
Total current liabilities
|
| | | | 242,903 | | |
|
Derivative warrant liabilities
|
| | | | 28,320,000 | | |
|
Deferred underwriting commissions in connection with the initial public offering
|
| | | | 7,000,000 | | |
|
Total liabilities
|
| | | | 35,562,903 | | |
| Commitments and Contingencies | | | | | | | |
|
Class A common stock; 16,083,903 shares subject to possible redemption at $10.00 per share
|
| | | | 160,839,030 | | |
| Stockholders’ Equity: | | | | | | | |
|
Preferred stock, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class A common stock, $0.0001 par value; 380,000,000 shares authorized; 3,916,097 shares
issued and outstanding (excluding 16,083,903 shares subject to possible redemption) |
| | | | 392 | | |
|
Class B common stock, $0.0001 par value; 20,000,000 shares authorized; 5,000,000 shares issued and outstanding
|
| | | | 500 | | |
|
Additional paid-in capital
|
| | | | 21,133,625 | | |
|
Accumulated deficit
|
| | | | (16,134,515) | | |
|
Total stockholders’ equity
|
| | | | 5,000,002 | | |
|
Total Liabilities and Stockholders’ Equity
|
| | | $ | 201,401,935 | | |
|
General and administrative expenses
|
| | | $ | 213,673 | | |
|
Administrative expenses – related party
|
| | | | 60,000 | | |
|
Franchise tax expense
|
| | | | 114,023 | | |
|
Loss from operations
|
| | | | (387,696) | | |
|
Other income (expense)
|
| | | | | | |
|
Change in the fair value of derivative warrant liabilities
|
| | | | (15,340,000) | | |
|
Financing costs – derivative warrant liabilities
|
| | | | (474,390) | | |
|
Net gain from investments held in Trust Account
|
| | | | 67,571 | | |
|
Net loss
|
| | | $ | (16,134,515) | | |
|
Weighted average shares outstanding of Class A common stock
|
| | | | 20,000,000 | | |
|
Basic and diluted net loss per share, Class A common stock
|
| | | $ | — | | |
|
Weighted average shares outstanding of Class B common stock
|
| | | | 5,000,000 | | |
|
Basic and diluted net loss per share, Class B common stock
|
| | | $ | (3.23) | | |
| | |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||
| | |
Class A
Shares |
| |
Amount
|
| |
Class B
Shares |
| |
Amount
|
| ||||||||||||||||||||||||||||||
| | | | | | | | | |||||||||||||||||||||||||||||||||||
Balance – June 4, 2020 (inception)
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B common stock to Sponsor
|
| | | | — | | | | | | — | | | | | | 5,750,000 | | | | | | 575 | | | | | | 24,425 | | | | | | — | | | | | | 25,000 | | |
Sale of units in initial public offering, less fair value of public warrants
|
| | | | 20,000,000 | | | | | | 2,000 | | | | | | — | | | | | | — | | | | | | 191,998,000 | | | | | | — | | | | | | 192,000,000 | | |
Offering costs
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (11,071,453) | | | | | | — | | | | | | (11,071,453) | | |
Excess of cash received over fair value of private placement warrants
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,020,000 | | | | | | — | | | | | | 1,020,000 | | |
Forfeiture of Class B common stock
|
| | | | — | | | | | | — | | | | | | (750,000) | | | | | | (75) | | | | | | 75 | | | | | | — | | | | | | — | | |
Common stock subject to possible redemption
|
| | | | (16,083,903) | | | | | | (1,608) | | | | | | — | | | | | | — | | | | | | (160,837,422) | | | | | | — | | | | | | (160,839,030) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (16,134,515) | | | | | | (16,134,515) | | |
Balance – December 31, 2020
|
| | | | 3,916,097 | | | | | $ | 392 | | | | | | 5,000,000 | | | | | $ | 500 | | | | | $ | 21,133,625 | | | | | $ | (16,134,515) | | | | | $ | 5,000,002 | | |
| Cash Flows from Operating Activities: | | | | | | | |
|
Net loss
|
| | | $ | (16,134,515) | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
|
Change in fair value of derivative liabilities
|
| | | | 15,340,000 | | |
|
Financing cost – derivative warrant liabilities
|
| | | | 474,390 | | |
|
Net gain from investments held in Trust Account
|
| | | | (67,535) | | |
| Changes in operating assets and liabilities: | | | | | | | |
|
Accounts payable
|
| | | | 5,580 | | |
|
Prepaid expenses
|
| | | | (294,916) | | |
|
Accrued expenses
|
| | | | 38,300 | | |
|
Franchise tax payable
|
| | | | 114,023 | | |
|
Net cash used in operating activities
|
| | | | (524,673) | | |
| Cash Flows from Investing Activities | | | | | | | |
|
Cash deposited in Trust Account
|
| | | | (200,000,000) | | |
|
Net cash used in investing activities
|
| | | | (200,000,000) | | |
| Cash Flows from Financing Activities: | | | | | | | |
|
Proceeds from issuance of Class B common stock to Sponsor
|
| | | | 25,000 | | |
|
Proceeds from note payable to related party
|
| | | | 300,000 | | |
|
Repayment of note payable to related party
|
| | | | (300,000) | | |
|
Advances from related party
|
| | | | 53,947 | | |
|
Repayment of advances from related party
|
| | | | (53,947) | | |
|
Proceeds received from initial public offering, gross
|
| | | | 200,000,000 | | |
|
Proceeds received from private placement
|
| | | | 6,000,000 | | |
|
Offering costs paid
|
| | | | (4,460,843) | | |
|
Net cash provided by financing activities
|
| | | | 201,564,157 | | |
|
Net increase in cash
|
| | | | 1,039,484 | | |
|
Cash – beginning of the period
|
| | |
|
—
|
| |
|
Cash – end of the period
|
| | | $ | 1,039,484 | | |
| Supplemental disclosure of noncash activities: | | | | | | | |
|
Forfeiture of Class B common stock
|
| | | $ | 75 | | |
|
Offering costs included in accrued expenses
|
| | | $ | 85,000 | | |
|
Deferred underwriting commissions in connection with the initial public offering
|
| | | $ | 7,000,000 | | |
|
Initial value of Class A common stock subject to possible redemption
|
| | | $ | 176,448,260 | | |
|
Change in initial value of Class A common stock subject to possible redemption
|
| | | $ | (15,609,230) | | |
| | |
As of December 31, 2020
|
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Balance Sheet | | | | | | | | | | | | | | | | | | | |
Total assets
|
| | | $ | 201,401,935 | | | | | $ | — | | | | | $ | 201,401,935 | | |
Liabilities and stockholders’ equity | | | | | | | | | | | | | | | | | | | |
Total current liabilities
|
| | | $ | 242,903 | | | | | $ | — | | | | | $ | 242,903 | | |
Deferred underwriting commissions
|
| | | | 7,000,000 | | | | | | — | | | | | | 7,000,000 | | |
Derivative warrant liabilities
|
| | | | — | | | | | | 28,320,000 | | | | | | 28,320,000 | | |
Total liabilities
|
| | | | 7,242,903 | | | | | | 28,320,000 | | | | | | 35,562,903 | | |
Class A common stock, $0.0001 par value; shares subject to
possible redemption |
| | | | 189,159,030 | | | | | | (28,320,000) | | | | | | 160,839,030 | | |
Stockholders’ equity | | | | | | | | | | | | | | | | | | | |
Preferred stock- $0.0001 par value
|
| | | | — | | | | | | — | | | | | | — | | |
Class A common stock – $0.0001 par value
|
| | | | 108 | | | | | | 284 | | | | | | 392 | | |
Class B common stock – $0.0001 par value
|
| | | | 500 | | | | | | — | | | | | | 500 | | |
Additional paid-in-capital
|
| | | | 5,319,519 | | | | | | 15,814,106 | | | | | | 21,133,625 | | |
| | |
As of December 31, 2020
|
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Accumulated deficit
|
| | | | (320,125) | | | | | | (15,814,390) | | | | | | (16,134,515) | | |
Total stockholders’ equity
|
| | | | 5,000,002 | | | | | | — | | | | | | 5,000,002 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 201,401,935 | | | | | $ | — | | | | | $ | 201,401,935 | | |
|
| | |
Period From June 4, 2020 (Inception)
Through December 31, 2020 |
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Statement of Operations | | | | | | | | | | | | | | | | | | | |
Loss from operations
|
| | | $ | (387,696) | | | | | $ | — | | | | | $ | (387,696) | | |
Other (expense) income:
|
| | | | | | | | | | | | | | | | | | |
Change in fair value of derivative warrant liabilities
|
| | | | — | | | | | | (15,340,000) | | | | | | (15,340,000) | | |
Financing costs – derivative warrant liabilities
|
| | | | — | | | | | | (474,390) | | | | | | (474,390) | | |
Net gain from investments held in Trust Account
|
| | | | 67,571 | | | | | | — | | | | | | 67,571 | | |
Total other (expense) income
|
| | | | 67,571 | | | | | | (15,814,390) | | | | | | (15,746,819) | | |
Net loss
|
| | | $ | (320,125) | | | | | $ | (15,814,390) | | | | | $ | (16,134,515) | | |
Basic and Diluted weighted-average Class A common stock outstanding
|
| | | | 20,000,000 | | | | | | — | | | | | | 20,000,000 | | |
Basic and Diluted net loss per Class A common shares
|
| | | $ | 0.00 | | | | | | — | | | | | $ | — | | |
Basic and Diluted weighted-average Class B common stock outstanding
|
| | | | 5,000,000 | | | | | | — | | | | | | 5,000,000 | | |
Basic and Diluted net loss per Class B common shares
|
| | | $ | (0.06) | | | | | $ | (3.17) | | | | | $ | (3.23) | | |
| | |
Period From June 4, 2020 (Inception)
Through December 31, 2020 |
| |||||||||||||||
| | |
As
Previously Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Statement of Cash Flows | | | | | | | | | | | | | | | | | | | |
Net loss
|
| | | $ | (320,125) | | | | | $ | (15,814,390) | | | | | $ | (16,134,515) | | |
Change in fair value of derivative warrant liabilities
|
| | | $ | — | | | | | $ | 15,340,000 | | | | | $ | 15,340,000 | | |
Financing Costs – derivative warrant liabilities
|
| | | $ | — | | | | | $ | 474,390 | | | | | $ | 474,390 | | |
Initial value of Class A common stock subject to possible redemption
|
| | | $ | 189,429,260 | | | | | $ | (12,981,000) | | | | | $ | 176,448,260 | | |
Change in fair value of Class A common stock subject to possible redemption
|
| | | $ | 95,610 | | | | | $ | (15,704,840) | | | | | $ | (15,609,230) | | |
| | |
As of
August 25, 2020 |
| |
As of
September 30, 2020 |
| |
As of
December 31, 2020 |
| |||||||||
Stock Price
|
| | | $ | 9.60 | | | | | $ | 9.58 | | | | | $ | 10.24 | | |
Volatility
|
| | | | 15.5% | | | | | | 15.5% | | | | | | 24.0% | | |
Expected life of the options to convert
|
| | | | 6 | | | | | | 5.75 | | | | | | 5.5 | | |
Risk-free rate
|
| | | | 0.40% | | | | | | 0.35% | | | | | | 0.43% | | |
Dividend yield
|
| | | | 0.0% | | | | | | 0.0% | | | | | | 0.0% | | |
|
Issuance of Public and Private Warrants, Level 3 measurments
|
| | | $ | 12,980,000 | | |
|
Transfer out of Public Public Warrants to Level 1
|
| | | | (7,900,000) | | |
|
Change in fair value of derivative warrant liabilities measured with Level 3 inputs
|
| | | | 5,840,000 | | |
|
Derivative warrant liabilities measured with Level 3 inputs, December 31, 2020
|
| | | $ | 10,920,000 | | |
| Current | | | | | | | |
|
Federal
|
| | | $ | (22,355) | | |
|
State
|
| | | | — | | |
| Deferred | | | | | | | |
|
Federal
|
| | | | (44,871) | | |
|
State
|
| | | | — | | |
|
Change in valuation allowance
|
| | | | 67,226 | | |
|
Income tax provision
|
| | | $ | — | | |
|
| Deferred tax asset: | | | | | | | |
|
Start-up/organization costs
|
| | | $ | 44,871 | | |
|
Net operating loss carryforwards
|
| | | | 22,355 | | |
|
Total deferred tax assets
|
| | | | 67,226 | | |
|
Valuation allowance
|
| | | | (67,226) | | |
|
Deferred tax asset, net of allowance
|
| | | $ | — | | |
|
Statutory Federal income tax rate
|
| | | | 21.0% | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (20.0) | | |
|
Financing cost on derivative warrant liabilities
|
| | | | (0.6) | | |
|
Change in Valuation Allowance
|
| | | | (0.4)% | | |
|
Effective tax rate
|
| | | | 0.0% | | |
| | |
As of September 30, 2020
|
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Unaudited Condensed Balance Sheet | | | | | | | | | | | | | | | | | | | |
Total assets
|
| | | $ | 201,529,675 | | | | | $ | — | | | | | $ | 201,529,675 | | |
Liabilities and stockholders’ equity
|
| | | | | | | | | | | | | | | | | | |
Total current liabilities
|
| | | $ | 197,020 | | | | | $ | — | | | | | $ | 197,020 | | |
Deferred underwriting commissions
|
| | | | 7,000,000 | | | | | | — | | | | | | 7,000,000 | | |
Derivative warrant liabilities
|
| | | | — | | | | | | 12,640,000 | | | | | | 12,640,000 | | |
Total liabilities
|
| | | | 7,197,020 | | | | | | 12,640,000 | | | | | | 19,837,020 | | |
Class A common stock, $0.0001 par value; shares subject to
possible redemption |
| | | | 189,332,650 | | | | | | (12,640,000) | | | | | | 176,692,650 | | |
Stockholders’ equity
|
| | | | | | | | | | | | | | | | | | |
Preferred stock- $0.0001 par value
|
| | | | — | | | | | | — | | | | | | — | | |
Class A common stock – $0.0001 par value
|
| | | | 107 | | | | | | 126 | | | | | | 233 | | |
Class B common stock – $0.0001 par value
|
| | | | 575 | | | | | | — | | | | | | 575 | | |
Additional paid-in-capital
|
| | | | 5,145,825 | | | | | | 134,264 | | | | | | 5,280,089 | | |
Accumulated deficit
|
| | | | (146,502) | | | | | | (134,390) | | | | | | (280,892) | | |
Total stockholders’ equity
|
| | | | 5,000,005 | | | | | | — | | | | | | 5,000,005 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 201,529,675 | | | | | $ | — | | | | | $ | 201,529,675 | | |
| | |
Three Months Ended
September 30, 2020 |
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Unaudited Condensed Statement of Operations | | | | | | | | | | | | | | | | | | | |
Loss from operations
|
| | | $ | (146,829) | | | | | $ | — | | | | | $ | (146,829) | | |
Other (expense) income:
|
| | | | | | | | | | | | | | | | | | |
Change in fair value of derivative warrant liabilities
|
| | | | — | | | | | | 340,000 | | | | | | 340,000 | | |
Financing cost – derivative warrant liabilities
|
| | | | — | | | | | | (474,390) | | | | | | (474,390) | | |
Net gain from investments held in Trust Account
|
| | | | 18,534 | | | | | | — | | | | | | 18,534 | | |
Total other (expense) income
|
| | | | 18,534 | | | | | | (134,390) | | | | | | (115,856) | | |
Net loss
|
| | | $ | (128,295) | | | | | $ | (134,390) | | | | | $ | (262,685) | | |
Basic and Diluted weighted-average Class A common shares outstanding
|
| | | | 20,000,000 | | | | | | — | | | | | | 20,000,000 | | |
Basic and Diluted net loss per Class A common shares
|
| | | $ | 0.00 | | | | | | — | | | | | $ | 0.00 | | |
Basic and Diluted weighted-average Class B common shares outstanding
|
| | | | 5,000,000 | | | | | | — | | | | | | 5,000,000 | | |
Basic and Diluted net loss per Class B common shares
|
| | | $ | (0.03) | | | | | $ | (0.02) | | | | | $ | (0.05) | | |
| | |
Period From June 4, 2020 (Inception)
Through September 30, 2020 |
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Unaudited Condensed Statement of Operations | | | | | | | | | | | | | | | | | | | |
Loss from operations
|
| | | $ | (165,036) | | | | | $ | — | | | | | $ | (165,036) | | |
Other (expense) income:
|
| | | | | | | | | | | | | | | | | | |
Change in fair value of derivative warrant liabilities
|
| | | | — | | | | | | 340,000 | | | | | | 340,000 | | |
Financing cost – derivative warrant liabilities
|
| | | | — | | | | | | (474,390) | | | | | | (474,390) | | |
Net gain from investments held in Trust Account
|
| | | | 18,534 | | | | | | — | | | | | | 18,534 | | |
Total other (expense) income
|
| | | | 18,534 | | | | | | (134,390) | | | | | | (115,856) | | |
Net loss
|
| | | $ | (146,502) | | | | | $ | (134,390) | | | | | $ | (280,892) | | |
Basic and Diluted weighted-average Class A common shares outstanding
|
| | | | 20,000,000 | | | | | | — | | | | | | 20,000,000 | | |
Basic and Diluted net loss per Class A share
|
| | | $ | 0.00 | | | | | | — | | | | | $ | 0.00 | | |
Basic and Diluted weighted-average Class B common shares outstanding
|
| | | | 5,000,000 | | | | | | — | | | | | | 5,000,000 | | |
Basic and Diluted net loss per Class B share
|
| | | $ | (0.03) | | | | | $ | (0.03) | | | | | $ | (0.06) | | |
| | |
Period From June 4, 2020 (Inception)
Through September 30, 2020 |
| |||||||||||||||
| | |
As Previously
Reported |
| |
Restatement
Adjustment |
| |
As Restated
|
| |||||||||
Unaudited Condensed Statement of Cash Flows | | | | | | | | | | | | | | | | | | | |
Net loss
|
| | | $ | (146,502) | | | | | $ | (134,390) | | | | | $ | (280,892) | | |
Change in fair value of derivative warrant liabilities
|
| | | $ | — | | | | | $ | (340,000) | | | | | $ | (340,000) | | |
Financing Costs – derivative warrant liabilities
|
| | | $ | — | | | | | $ | 474,390 | | | | | $ | 474,390 | | |
Initial value of Class A common stock subject to possible redemption
|
| | | $ | 189,429,260 | | | | | $ | (12,981,000) | | | | | $ | 176,448,260 | | |
Change in fair value of Class A common stock subject to possible redemption
|
| | | $ | 95,610 | | | | | $ | 148,780 | | | | | $ | 244,390 | | |
| | |
March 31,
2021 |
| |
December 31,
2020 |
| ||||||
| | |
(Unaudited)
|
| | | | | | | |||
Assets: | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash
|
| | | $ | 514,050 | | | | | $ | 1,039,484 | | |
Prepaid expenses
|
| | | | 351,166 | | | | | | 294,916 | | |
Total current assets
|
| | | | 865,216 | | | | | | 1,334,400 | | |
Investments held in Trust Account
|
| | | | 200,007,439 | | | | | | 200,067,535 | | |
Total Assets
|
| | | $ | 200,872,655 | | | | | $ | 201,401,935 | | |
Liabilities and Stockholders’ Equity: | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 67,395 | | | | | $ | 5,580 | | |
Accrued expenses
|
| | | | 1,519,094 | | | | | | 123,300 | | |
Franchise tax payable
|
| | | | 48,767 | | | | | | 114,023 | | |
Total current liabilities
|
| | | | 1,635,256 | | | | | | 242,903 | | |
Derivative warrant liabilities
|
| | | | 47,240,000 | | | | | | 28,320,000 | | |
Deferred underwriting commissions in connection with the initial public offering
|
| | | | 7,000,000 | | | | | | 7,000,000 | | |
Total liabilities
|
| | | | 55,875,256 | | | | | | 35,562,903 | | |
Commitments and Contingencies | | | | | | | | | | | | | |
Class A common stock; 13,999,739 and 16,083,903 shares subject to possible redemption at 10.00 per share as of March 31, 2021 and December 31,2020, respectively
|
| | | | 139,997,390 | | | | | | 160,839,030 | | |
Stockholders’ Equity: | | | | | | | | | | | | | |
Preferred stock, 0.0001 par value; 1,000,000 shares authorized; none issued
and outstanding |
| | | | — | | | | | | — | | |
Class A common stock, 0.0001 par value; 380,000,000 shares authorized; 6,000,261 and 3,916,097 shares issued and outstanding (excluding 13,999,739 and 16,083,903 shares subject to possible redemption) as of March 31, 2021 and December 31, 2020, respectively
|
| | | | 600 | | | | | | 392 | | |
Class B common stock, 0.0001 par value; 20,000,000 shares authorized; 5,000,000 shares issued and outstanding as of March 31, 2021 and December 31, 2020
|
| | | | 500 | | | | | | 500 | | |
Additional paid-in capital
|
| | | | 41,975,057 | | | | | | 21,133,625 | | |
Accumulated deficit
|
| | | | (36,976,148) | | | | | | (16,134,515) | | |
Total stockholders’ equity
|
| | | | 5,000,009 | | | | | | 5,000,002 | | |
Total Liabilities and Stockholders’ Equity
|
| | | $ | 200,872,655 | | | | | $ | 201,401,935 | | |
|
General and administrative expenses
|
| | | $ | 1,851,442 | | |
|
Administrative expenses – related party
|
| | | | 45,000 | | |
|
Franchise tax expense
|
| | | | 50,095 | | |
|
Loss from operations
|
| | | | (1,946,537) | | |
| Other (expense) income: | | | | | | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | (18,920,000) | | |
|
Net gain from investments held in Trust Account
|
| | | | 24,904 | | |
|
Net loss
|
| | | $ | (20,841,633) | | |
|
Weighted average shares outstanding of Class A common stock
|
| | | | 20,000,000 | | |
|
Basic and diluted net loss per share, Class A common stock
|
| | | $ | — | | |
|
Weighted average shares outstanding of Class B common stock
|
| | | | 5,000,000 | | |
|
Basic and diluted net loss per share, Class B common stock
|
| | | $ | (4.17) | | |
| | |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| ||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance – December 31, 2020
|
| | | | 3,916,097 | | | | | $ | 392 | | | | | | 5,000,000 | | | | | $ | 500 | | | | | $ | 21,133,625 | | | | | $ | (16,134,515) | | | | | | 5,000,002 | | |
Common stock subject to possible redemption
|
| | | | 2,084,164 | | | | | | 208 | | | | | | — | | | | | | — | | | | | | 20,841,432 | | | | | | — | | | | | | 20,841,640 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (20,841,633) | | | | | | (20,841,633) | | |
Balance – March 31, 2021
(unaudited) |
| | | | 6,000,261 | | | | | $ | 600 | | | | | | 5,000,000 | | | | | $ | 500 | | | | | $ | 41,975,057 | | | | | $ | (36,976,148) | | | | | $ | 5,000,009 | | |
| Cash Flows from Operating Activities: | | | | | | | |
|
Net loss
|
| | | $ | (20,841,633) | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
|
Change in fair value of derivative warrant liabilities
|
| | | | 18,920,000 | | |
|
Net gain from investments held in Trust Account
|
| | | | (24,904) | | |
| Changes in operating assets and liabilities: | | | | | | | |
|
Accounts payable
|
| | | | 61,815 | | |
|
Prepaid expenses
|
| | | | (56,250) | | |
|
Accrued expenses
|
| | | | 1,395,794 | | |
|
Franchise tax payable
|
| | | | (65,256) | | |
|
Net cash used in operating activities
|
| | | | (610,434) | | |
| Cash Flows from Financing Activities: | | | | | | | |
|
Interest released from Trust Account
|
| | | | 85,000 | | |
|
Net cash provided by financing activities
|
| | | | 85,000 | | |
|
Net decrease in cash
|
| | | | (525,434) | | |
|
Cash – beginning of the period
|
| | |
|
1,039,484
|
| |
|
Cash – end of the period
|
| | | $ | 514,050 | | |
| Supplemental disclosure of noncash activities: | | | | | | | |
|
Change in value of Class A common stock subject to possible redemption
|
| | | $ | (20,841,640) | | |
Description
|
| |
Quoted Prices in
Active Markets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant Other
Unobservable Inputs (Level 3) |
| |||||||||
Assets | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account
|
| | | $ | 200,007,439 | | | | | $ | — | | | | | $ | — | | |
Liabilities | | | | | | | | | | | | | | | | | | | |
Derivative warrant liabilities -Public Warrants
|
| | | $ | 29,000,000 | | | | | $ | — | | | | | $ | — | | |
Derivative warrant liabilities -Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 18,240,000 | | |
Description
|
| |
Quoted Prices in
Active Markets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant Other
Unobservable Inputs (Level 3) |
| |||||||||
Assets: | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account
|
| | | $ | 200,067,535 | | | | | $ | — | | | | | $ | — | | |
Liabilities | | | | | | | | | | | | | | | | | | | |
Derivative warrant liabilities – Public Warrants
|
| | | $ | 17,400,000 | | | | | $ | — | | | | | $ | — | | |
Derivative warrant liabilities – Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 10,920,000 | | |
| | |
As of
March 31, 2021 |
| |||
Stock Price
|
| | | $ | 12.52 | | |
Volatility
|
| | | | 20.5% | | |
Expected life of the options to convert
|
| | | | 5.25 | | |
Risk-free rate
|
| | | | 0.98% | | |
Dividend yield
|
| | | | 0.0% | | |
|
Warrant liabilities at January 1, 2021
|
| | | $ | 28,320,000 | | |
|
Change in fair value of warrant liabilities
|
| | | | 18,920,000 | | |
|
Warrant liabilities at March 31, 2021
|
| | | $ | 47,240,000 | | |
|
|
| | | |
|
|
| |
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
|
|
| | | |
Board of Directors and Shareholder
Fertitta Entertainment, Inc. |
|
| | | |
Opinion on the financial statements
We have audited the accompanying consolidated balance sheets of Fertitta Entertainment, Inc. (a Nevada corporation) and subsidiaries (the “Company”) as of December 31, 2020 and 2019, the related consolidated statements of operations, comprehensive income, changes in accumulated deficit, and cash flows for each of the three years in the period ended December 31, 2020, and the related notes (collectively referred to as the “financial statements”). In our opinion, the consolidated financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2020 and 2019, and the results of its operations and its cash flows for each of the three years in the period ended December 31, 2020, in conformity with accounting principles generally accepted in the United States of America.
We did not audit the financial statements of Golden Nugget Online Gaming, LLC, (“GNOG”), a wholly-owned subsidiary, which statements reflect total assets constituting 4% of consolidated total assets as of December 31, 2020, and total revenues of 4% of consolidated total revenues for the year then ended. Those statements were audited by other auditors, whose report has been furnished to us, and our opinion, insofar as it relates to the amounts included for GNOG, is based solely on the report of the other auditors.
Basis for opinion
These financial statements are the responsibility of the Company’s management. Our responsibility is to express an opinion on the Company’s financial statements based on our audits. We are a public accounting firm registered with the Public Company Accounting Oversight Board (United States) (“PCAOB”) and are required to be independent with respect to the Company in accordance with U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audits in accordance with the standards of the PCAOB and in accordance with auditing standards generally
|
|
|
|
|
| | | | accepted in the United States of America. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. The Company is not required to have, nor were we engaged to perform, an audit of its internal control over financial reporting. As part of our audits we are required to obtain an understanding of internal control over financial reporting but not for the purpose of expressing an opinion on the effectiveness of the Company’s internal control over financial reporting. Accordingly, we express no such opinion. | |
| | | |
Our audits included performing procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to those risks. Such procedures include examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical audit matter
The critical audit matter communicated below is the matter arising from the current period audit of the financial statements that was communicated or required to be communicated to those charged with governance and that: (1) relates to accounts or disclosures that are material to the financial statements and (2) involved our especially challenging, subjective, or complex judgments. The communication of a critical audit matter does not alter in any way our opinion on the financial statements, taken as a whole, and we are not, by communicating the critical audit matter below, providing a separate opinion on the critical audit matter or on the accounts or disclosures to which it relates.
Impairment of Trademarks
As described in Note 1 to the financial statements, the Company’s intangible assets with indefinite lives, which include certain trademarks, are not subject to amortization but instead tested for impairment annually or as facts and circumstances may dictate. Certain trademarks are amortized over their estimated useful lives using the straight-line method and are reviewed for impairment whenever events or circumstances indicate that the carrying value may not be recoverable. When the Company is required to perform an analysis of the fair value of the trademarks it will recognize an impairment loss when the fair value is less than the carrying amount. Following certain restaurant closures and observation of certain market and other conditions described in Note 6 to the financial statements, the Company concluded a triggering event occurred and performed an interim impairment assessment. The determination of the fair value of trademarks required management to make significant estimates and develop assumptions related to revenue growth rates for future periods, royalty rates, and appropriate discount rates, all of which require subjective judgments. Changes in these assumptions could have a significant impact on the trademarks’ estimated fair value.
|
|
| | | | We identified the impairment assessment of trademarks as a critical audit matter. The principal consideration for our determination that trademarks impairment assessment is a critical audit matter was the degree of complexity and subjectivity inherent in determining management’s estimates. | |
| | | |
The audit procedures related to the trademarks impairment assessment included the following, among others:
•
We assessed the qualifications and competence of management and evaluated the methodologies used to determine the fair value of trademarks;
•
We obtained an understanding of the processes and controls related to the accounting for impairment, including processes and controls relating to management’s development of forecasts for revenue growth rates, royalty rates and discount rates;
•
We evaluated the reasonableness of management’s revenue forecasts including revenue growth rates by comparing to historical revenues, publicly available information and industry reports;
•
We utilized our valuation professionals with specialized skills and knowledge to assist in:
—
Evaluating the royalty rates, including testing of underlying sources of information and the mathematical accuracy of the calculations, and developing a range of independent estimates and comparing those to the royalty rates used by management;
—
Evaluating the discount rates, including testing of underlying source information and the mathematical accuracy of the calculations, and developing a range of independent estimates and comparing those to the discount rates selected by management;
—
Performing sensitivity analysis to evaluate the change in the fair value estimates that would result from changes in the revenue forecast, discount rate and royalty rate assumptions.
•
We evaluated whether the assumptions used were consistent with evidence obtained in other areas of the audit.
|
|
| | | | We have served as the Company’s auditor since 2004. | |
| | | |
Houston, Texas
August 2, 2021 |
|
| | |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||
ASSETS
|
| | | | | | | | | | | | |
CURRENT ASSETS: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 401,097 | | | | | $ | 102,462 | | |
Restricted cash
|
| | | | 54,570 | | | | | | 38,086 | | |
Accounts receivable – trade and other, net
|
| | | | 61,433 | | | | | | 85,411 | | |
Income taxes receivable
|
| | | | 38,321 | | | | | | 5,008 | | |
Inventories
|
| | | | 90,610 | | | | | | 121,848 | | |
Other current assets
|
| | | | 24,595 | | | | | | 27,140 | | |
Total current assets
|
| | | | 670,626 | | | | | | 379,955 | | |
PROPERTY AND EQUIPMENT, net
|
| | | | 2,281,618 | | | | | | 2,432,648 | | |
OPERATING LEASE RIGHT-OF-USE ASSETS, net
|
| | | | 905,159 | | | | | | 914,814 | | |
INVESTMENT IN AFFILIATES AND JOINT VENTURES
|
| | | | 26,745 | | | | | | 26,308 | | |
ACCOUNTS AND NOTES RECEIVABLE, affiliates
|
| | | | 108,691 | | | | | | 85,148 | | |
GOODWILL
|
| | | | 449,369 | | | | | | 453,276 | | |
INTANGIBLE ASSETS, net
|
| | | | 312,698 | | | | | | 350,513 | | |
LONG-TERM DEFERRED TAX ASSETS
|
| | | | 181,254 | | | | | | 152,395 | | |
OTHER ASSETS, net
|
| | | | 69,069 | | | | | | 67,235 | | |
Total assets
|
| | | $ | 5,005,229 | | | | | $ | 4,862,292 | | |
LIABILITIES AND STOCKHOLDERS’ DEFICIT
|
| | | | | | | | | | | | |
CURRENT LIABILITIES: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 168,507 | | | | | $ | 227,414 | | |
Accrued liabilities
|
| | | | 649,176 | | | | | | 566,808 | | |
Income taxes payable
|
| | | | 184 | | | | | | 5,622 | | |
Current portion of long-term debt
|
| | | | 37,045 | | | | | | 30,576 | | |
Operating lease liabilities
|
| | | | 117,817 | | | | | | 116,741 | | |
Total current liabilities
|
| | | | 972,729 | | | | | | 947,161 | | |
LONG-TERM DEBT, net of current portion
|
| | | | 4,763,628 | | | | | | 4,322,048 | | |
FINANCE LEASE OBLIGATIONS
|
| | | | 19,656 | | | | | | 16,144 | | |
NONCURRENT OPERATING LEASE LIABILITIES
|
| | | | 900,186 | | | | | | 897,065 | | |
WARRANT DERIVATIVE LIABILITIES
|
| | | | 176,359 | | | | | | — | | |
OTHER LIABILITIES
|
| | | | 81,796 | | | | | | 76,403 | | |
Total liabilities
|
| | | | 6,914,354 | | | | | | 6,258,821 | | |
COMMITMENTS AND CONTINGENCIES (Note 15) | | | | | | | | | | | | | |
REDEEMABLE NONCONTROLLING INTEREST
|
| | | | 2,736 | | | | | | 2,492 | | |
STOCKHOLDERS’ DEFICIT: | | | | | | | | | | | | | |
Common stock, $0.01 par value, 60,000 shares authorized, 1 shares issued and outstanding
|
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | 703,722 | | | | | | 640,800 | | |
Accumulated deficit
|
| | | | (1,749,661) | | | | | | (2,040,166) | | |
Accumulated other comprehensive loss
|
| | | | (3,557) | | | | | | (3,644) | | |
FEI stockholder’s deficit
|
| | | | (1,049,496) | | | | | | (1,403,010) | | |
NONCONTROLLING INTERESTS
|
| | | | (862,365) | | | | | | 3,989 | | |
Total stockholders’ deficit
|
| | | | (1,911,861) | | | | | | (1,399,021) | | |
Total liabilities and stockholders’ deficit
|
| | | $ | 5,005,229 | | | | | $ | 4,862,292 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
REVENUES: | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality
|
| | | $ | 1,543,946 | | | | | $ | 2,391,304 | | | | | $ | 2,505,857 | | |
Gaming:
|
| | | | | | | | | | | | | | | | | | |
Casino
|
| | | | 452,502 | | | | | | 543,961 | | | | | | 548,712 | | |
Rooms
|
| | | | 104,313 | | | | | | 171,660 | | | | | | 174,189 | | |
Food and beverage
|
| | | | 131,302 | | | | | | 272,878 | | | | | | 280,199 | | |
Other
|
| | | | 58,341 | | | | | | 104,734 | | | | | | 98,501 | | |
Net gaming revenue
|
| | | | 746,458 | | | | | | 1,093,233 | | | | | | 1,101,601 | | |
Total revenue
|
| | | | 2,290,404 | | | | | | 3,484,537 | | | | | | 3,607,458 | | |
OPERATING COSTS AND EXPENSES: | | | | | | | | | | | | | | | | | | | |
Restaurant and hospitality:
|
| | | | | | | | | | | | | | | | | | |
Cost of revenues
|
| | | | 415,313 | | | | | | 615,021 | | | | | | 640,319 | | |
Labor
|
| | | | 428,467 | | | | | | 715,671 | | | | | | 752,771 | | |
Other operating expenses
|
| | | | 508,527 | | | | | | 608,576 | | | | | | 642,011 | | |
Gaming:
|
| | | | | | | | | | | | | | | | | | |
Casino
|
| | | | 205,803 | | | | | | 292,801 | | | | | | 301,924 | | |
Rooms
|
| | | | 36,951 | | | | | | 65,136 | | | | | | 65,498 | | |
Food and beverage
|
| | | | 83,493 | | | | | | 177,911 | | | | | | 181,676 | | |
Other
|
| | | | 178,244 | | | | | | 229,255 | | | | | | 234,581 | | |
General and administrative expense
|
| | | | 142,379 | | | | | | 147,729 | | | | | | 129,375 | | |
Depreciation and amortization
|
| | | | 211,757 | | | | | | 206,109 | | | | | | 226,787 | | |
Asset impairment expense
|
| | | | 105,574 | | | | | | 26,034 | | | | | | 19,853 | | |
(Gain) loss on disposal of assets
|
| | | | 8,466 | | | | | | (137) | | | | | | (1,491) | | |
Pre-opening expenses
|
| | | | 3,000 | | | | | | 7,788 | | | | | | 11,181 | | |
Total operating costs and expenses
|
| | | | 2,327,974 | | | | | | 3,091,894 | | | | | | 3,204,485 | | |
OPERATING INCOME (LOSS)
|
| | | | (37,570) | | | | | | 392,643 | | | | | | 402,973 | | |
OTHER EXPENSE: | | | | | | | | | | | | | | | | | | | |
Interest expense, net
|
| | | | 301,676 | | | | | | 279,360 | | | | | | 279,290 | | |
Gain on warrant derivatives
|
| | | | (39,586) | | | | | | — | | | | | | — | | |
Other expense (income), net
|
| | | | 18,233 | | | | | | (4,007) | | | | | | 7,780 | | |
Total other expense
|
| | | | 280,323 | | | | | | 275,353 | | | | | | 287,070 | | |
Income (loss) before income taxes
|
| | | | (317,893) | | | | | | 117,290 | | | | | | 115,903 | | |
Provision (benefit) for income taxes
|
| | | | (106,490) | | | | | | 21,442 | | | | | | 28,173 | | |
Net income (loss)
|
| | | | (211,403) | | | | | | 95,848 | | | | | | 87,730 | | |
Net income attributable to noncontrolling interests
|
| | | | 24,197 | | | | | | 2,689 | | | | | | 3,277 | | |
Net income (loss) attributable to FEI
|
| | | $ | (235,600) | | | | | $ | 93,159 | | | | | $ | 84,453 | | |
Basic and diluted net income (loss) per share: | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | $ | (235,600) | | | | | $ | 93,159 | | | | | $ | 84,453 | | |
Weighted-average number of common shares outstanding: | | | | | | | | | | | | | | | | | | | |
Basic and diluted
|
| | | | 1 | | | | | | 1 | | | | | | 1 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Net income (loss)
|
| | | $ | (211,403) | | | | | $ | 95,848 | | | | | $ | 87,730 | | |
Other comprehensive income (loss), net of tax: | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | 110 | | | | | | 201 | | | | | | (751) | | |
Total other comprehensive income (loss), before tax
|
| | | | 110 | | | | | | 201 | | | | | | (751) | | |
Deferred income tax expense (benefit) on other comprehensive income (loss)
|
| | | | (23) | | | | | | (44) | | | | | | 158 | | |
Other comprehensive income (loss), net of tax
|
| | | | 87 | | | | | | 157 | | | | | | (593) | | |
Comprehensive income (loss)
|
| | | | (211,316) | | | | | | 96,005 | | | | | | 87,137 | | |
Less: other comprehensive income (loss) attributable to noncontrolling interests
|
| | | | 24,197 | | | | | | 2,689 | | | | | | 3,277 | | |
Comprehensive income (loss) attributable to FEI
|
| | | $ | (235,513) | | | | | $ | 93,316 | | | | | $ | 83,860 | | |
| | | | | | | | |
FEI Stockholder’s Deficit
|
| | | |||||||||||||||||||||||||||||||||||||
| | |
Mandatory
Redeemable Noncontrolling Interest |
| |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Accumulated
Other Comprehensive Loss |
| |
Noncontrolling
Interests |
| | |||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Total
|
| |||||||||||||||||||||||||||||||||||||||
Balance, December 31, 2017
|
| | | $ | 2,014 | | | | | | 1 | | | | | $ | — | | | | | $ | 620,567 | | | | | $ | (2,212,814) | | | | | $ | (3,208) | | | | | $ | 6,248 | | | | | $ | (1,589,207) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 84,453 | | | | | | — | | | | | | 3,277 | | | | | | 87,730 | | |
Accretion of mandatory redeemable noncontrolling interest
|
| | | | 234 | | | | | | — | | | | | | — | | | | | | (234) | | | | | | — | | | | | | — | | | | | | — | | | | | | (234) | | |
Dividend to noncontrolling interest owners
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (2,366) | | | | | | (2,366) | | |
Distributions to Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (2,500) | | | | | | — | | | | | | — | | | | | | (2,500) | | |
Contributions from Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | 8,896 | | | | | | — | | | | | | — | | | | | | — | | | | | | 8,896 | | |
Other comprehensive loss, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (593) | | | | | | — | | | | | | (593) | | |
Balance, December 31, 2018
|
| | | | 2,248 | | | | | | 1 | | | | | | — | | | | | | 629,229 | | | | | | (2,130,861) | | | | | | (3,801) | | | | | | 7,159 | | | | | | (1,498,274) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 93,159 | | | | | | — | | | | | | 2,689 | | | | | | 95,848 | | |
Dissolution of joint venture
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (475) | | | | | | (475) | | |
Accretion of mandatory redeemable noncontrolling interest
|
| | | | 244 | | | | | | — | | | | | | — | | | | | | (244) | | | | | | — | | | | | | — | | | | | | — | | | | | | (244) | | |
Dividend to noncontrolling interest owners
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (5,384) | | | | | | (5,384) | | |
Distributions to Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (2,464) | | | | | | — | | | | | | — | | | | | | (2,464) | | |
Contributions from Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | 11,815 | | | | | | — | | | | | | — | | | | | | — | | | | | | 11,815 | | |
Other comprehensive income, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 157 | | | | | | — | | | | | | 157 | | |
Balance, December 31, 2019
|
| | | | 2,492 | | | | | | 1 | | | | | | — | | | | | | 640,800 | | | | | | (2,040,166) | | | | | | (3,644) | | | | | | 3,989 | | | | | | (1,399,021) | | |
Net income (loss)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (235,600) | | | | | | — | | | | | | 24,197 | | | | | | (211,403) | | |
Accretion of mandatory redeemable noncontrolling interest
|
| | | | 244 | | | | | | — | | | | | | — | | | | | | (244) | | | | | | — | | | | | | — | | | | | | — | | | | | | (244) | | |
Dividend to noncontrolling interest owners
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,402) | | | | | | (1,402) | | |
Distributions to Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (400,292) | | | | | | — | | | | | | — | | | | | | (400,292) | | |
Contributions from Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | 63,166 | | | | | | — | | | | | | — | | | | | | — | | | | | | 63,166 | | |
Acquisition of interest in joint venture
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1,818 | | | | | | 1,818 | | |
Recapitalization of GNOG
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 282,351 | | | | | | — | | | | | | (246,956) | | | | | | 35,395 | | |
Stock based compensation of GNOG
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 35 | | | | | | 35 | | |
Redemption value adjustment of interest in GNOG
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 644,046 | | | | | | — | | | | | | (644,046) | | | | | | — | | |
Other comprehensive income, net of tax
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 87 | | | | | | — | | | | | | 87 | | |
Balance, December 31, 2020
|
| | | $ | 2,736 | | | | | | 1 | | | | | $ | — | | | | | $ | 703,722 | | | | | $ | (1,749,661) | | | | | $ | (3,557) | | | | | $ | (862,365) | | | | | $ | (1,911,861) | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
CASH FLOWS FROM OPERATING ACTIVITIES: | | | | | | | | | | | | | | | | | | | |
Net income (loss)
|
| | | $ | (211,403) | | | | | $ | 95,848 | | | | | $ | 87,730 | | |
Adjustments to reconcile net income (loss) to net cash provided by operating activities:
|
| | | | | | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 211,757 | | | | | | 206,109 | | | | | | 226,787 | | |
Asset impairment expense
|
| | | | 105,574 | | | | | | 26,034 | | | | | | 19,853 | | |
(Gain) loss on disposal of assets
|
| | | | 8,466 | | | | | | (137) | | | | | | (1,491) | | |
Gain on GNOG warrant derivatives
|
| | | | (39,586) | | | | | | — | | | | | | — | | |
Deferred tax benefit
|
| | | | (63,831) | | | | | | (11,720) | | | | | | (3,043) | | |
Stock based compensation
|
| | | | 35 | | | | | | — | | | | | | — | | |
Amortization of debt issuance costs, discounts and other
|
| | | | 50,531 | | | | | | 12,101 | | | | | | 12,287 | | |
Equity in income of joint ventures
|
| | | | (436) | | | | | | (781) | | | | | | (593) | | |
Deferred rent
|
| | | | — | | | | | | — | | | | | | 13,242 | | |
Changes in assets and liabilities, net and other
|
| | | | | | | | | | | | | | | | | | |
(Increase) decrease in trade and other receivables
|
| | | | 6,041 | | | | | | (1,053) | | | | | | (2,928) | | |
(Increase) decrease in inventories
|
| | | | 33,528 | | | | | | (8,082) | | | | | | (2,517) | | |
(Increase) decrease in prepaid expenses and other current assets
|
| | | | 3,267 | | | | | | 20,194 | | | | | | (5,236) | | |
(Increase) decrease in other assets
|
| | | | (5,371) | | | | | | (634) | | | | | | 2,317 | | |
Increase in operating lease assets, net of liabilities
|
| | | | (7,153) | | | | | | (9,610) | | | | | | — | | |
(Decrease) increase in accounts payable and accrued liabilities
|
| | | | (2,127) | | | | | | 59,621 | | | | | | 72,855 | | |
Total adjustments
|
| | | | 300,695 | | | | | | 292,042 | | | | | | 331,533 | | |
Net cash provided by operating activities
|
| | | | 89,292 | | | | | | 387,890 | | | | | | 419,263 | | |
CASH FLOWS FROM INVESTING ACTIVITIES: | | | | | | | | | | | | | | | | | | | |
Property and equipment additions and other
|
| | | | (58,847) | | | | | | (160,516) | | | | | | (162,526) | | |
Proceeds from disposition of assets
|
| | | | 10,066 | | | | | | 6,241 | | | | | | 9,850 | | |
CRDA investment
|
| | | | (1,194) | | | | | | (2,472) | | | | | | (2,594) | | |
Insurance proceeds from property claims
|
| | | | 4,795 | | | | | | — | | | | | | 7,429 | | |
Proceeds from sale of interest in joint venture
|
| | | | — | | | | | | 350 | | | | | | — | | |
Issuance of notes receivable to affiliates
|
| | | | (50,092) | | | | | | (15,025) | | | | | | (20,413) | | |
Repayment of notes receivable to affiliates
|
| | | | 16,792 | | | | | | — | | | | | | — | | |
Business acquisitions, net of cash acquired
|
| | | | (40,729) | | | | | | (398,779) | | | | | | — | | |
Net cash used in investing activities
|
| | | | (119,209) | | | | | | (570,201) | | | | | | (168,254) | | |
CASH FLOWS FROM FINANCING ACTIVITIES: | | | | | | | | | | | | | | | | | | | |
Proceeds from equipment loans
|
| | | | — | | | | | | 6,625 | | | | | | — | | |
Proceeds from finance lease obligations
|
| | | | 3,474 | | | | | | 13,079 | | | | | | — | | |
Proceeds from debt issuance
|
| | | | 488,000 | | | | | | 300,000 | | | | | | — | | |
Payments of debt
|
| | | | (202,203) | | | | | | (89,468) | | | | | | (141,717) | | |
Debt issuance and retirement costs
|
| | | | (37,696) | | | | | | (8,304) | | | | | | (1,701) | | |
Proceeds from revolving credit facility
|
| | | | 441,836 | | | | | | 674,700 | | | | | | 740,800 | | |
Payments on revolving credit facility
|
| | | | (292,023) | | | | | | (674,700) | | | | | | (815,042) | | |
Dividend to noncontrolling interest owners
|
| | | | (1,402) | | | | | | (5,384) | | | | | | (2,366) | | |
Distributions to Parent
|
| | | | (400,292) | | | | | | (2,464) | | | | | | (2,500) | | |
Contributions from Parent
|
| | | | 50,700 | | | | | | — | | | | | | — | | |
Payment of mandatory redeemable noncontrolling interest
|
| | | | (5,500) | | | | | | (5,500) | | | | | | (7,000) | | |
Cash from GNOG reverse merger
|
| | | | 300,366 | | | | | | — | | | | | | — | | |
Net cash provided by (used in) financing activities
|
| | | | 345,260 | | | | | | 208,584 | | | | | | (229,526) | | |
EFFECT OF EXHANGE RATE CHANGES ON CASH
|
| | | | (224) | | | | | | (234) | | | | | | 186 | | |
NET INCREASE IN CASH, CASH EQUIVALENTS AND RESTRICTED CASH
|
| | | | 315,119 | | | | | | 26,039 | | | | | | 21,669 | | |
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT BEGINNING OF PERIOD
|
| | | | 140,548 | | | | | | 114,509 | | | | | | 92,840 | | |
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT END OF PERIOD
|
| | | $ | 455,667 | | | | | $ | 140,548 | | | | | $ | 114,509 | | |
RECONCILIATION OF CASH, CASH EQUIVALENTS AND RESTRICTED CASH TO AMOUNTS REPORTED WITHIN THE CONSOLIDATED BALANCE SHEETS:
|
| | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 401,097 | | | | | $ | 102,462 | | | | | $ | 99,958 | | |
Restricted cash
|
| | | | 54,570 | | | | | | 38,086 | | | | | | 14,551 | | |
TOTAL CASH, CASH EQUIVALENTS AND RESTRICTED CASH
|
| | | $ | 455,667 | | | | | $ | 140,548 | | | | | $ | 114,509 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Rooms
|
| | | $ | 34,377 | | | | | $ | 55,059 | | | | | $ | 55,274 | | |
Food and beverage
|
| | | | 29,718 | | | | | | 61,462 | | | | | | 65,908 | | |
Other
|
| | | | 6,665 | | | | | | 17,595 | | | | | | 17,696 | | |
| | | | $ | 70,760 | | | | | $ | 134,116 | | | | | $ | 138,877 | | |
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Balance at January 1,
|
| | | $ | 8,122 | | | | | $ | 7,678 | | | | | $ | 7,202 | | |
Additions charged to expense
|
| | | | 990 | | | | | | 1,658 | | | | | | 1,967 | | |
Deductions (write-offs, net of recoveries)
|
| | | | (432) | | | | | | (1,214) | | | | | | (1,491) | | |
Balance at December 31,
|
| | | $ | 8,680 | | | | | $ | 8,122 | | | | | $ | 7,678 | | |
| | |
December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Food, beverage and supplies
|
| | | $ | 77,222 | | | | | $ | 104,626 | | |
Retail goods
|
| | | | 13,388 | | | | | | 17,222 | | |
| | | | $ | 90,610 | | | | | $ | 121,848 | | |
| | |
December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Gift cards
|
| | | $ | 132,331 | | | | | $ | 137,014 | | | | | $ | 114,374 | | |
Customer deposits
|
| | | | 10,385 | | | | | | 13,000 | | | | | | 11,070 | | |
Restaurant loyalty programs
|
| | | | 24,990 | | | | | | 27,092 | | | | | | 17,941 | | |
Online gaming contract liabilities
|
| | | | 3,269 | | | | | | 2,113 | | | | | | 9,436 | | |
| | | | $ | 170,975 | | | | | $ | 179,219 | | | | | $ | 152,821 | | |
| | |
December 31,
|
| |||||||||||||||
Gaming related
|
| |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Slot and player club loyalty programs
|
| | | $ | 11,604 | | | | | $ | 17,201 | | | | | $ | 16,224 | | |
Online gaming loyalty program
|
| | | | 46 | | | | | | 25 | | | | | | 26 | | |
| | |
December 31,
|
| |||||||||||||||
Other liabilities
|
| |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Deferred franchise fees (non-current)
|
| | | $ | 1,420 | | | | | $ | 1,539 | | | | | $ | 1,216 | | |
Online gaming contract liabilities (non-current)
|
| | | | 5,821 | | | | | | 4,612 | | | | | | — | | |
Gift Cards
|
| |
December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Beginning balance
|
| | | $ | 137,014 | | | | | $ | 114,374 | | | | | $ | 112,595 | | |
Activations
|
| | | | 32,487 | | | | | | 41,829 | | | | | | 40,382 | | |
Acquisitions
|
| | | | 3,050 | | | | | | 23,604 | | | | | | — | | |
Redemptions and breakage
|
| | | | (40,220) | | | | | | (42,793) | | | | | | (38,603) | | |
Ending balance
|
| | | $ | 132,331 | | | | | $ | 137,014 | | | | | $ | 114,374 | | |
Loyalty Programs
|
| |
December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Beginning balance
|
| | | $ | 44,318 | | | | | $ | 34,191 | | | | | $ | 36,809 | | |
Points and rewards earned
|
| | | | 23,520 | | | | | | 35,006 | | | | | | 34,191 | | |
Acquisitions
|
| | | | 10,620 | | | | | | 9,312 | | | | | | — | | |
Redemptions and breakage
|
| | | | (41,818) | | | | | | (34,191) | | | | | | (36,809) | | |
Ending balance
|
| | | $ | 36,640 | | | | | $ | 44,318 | | | | | $ | 34,191 | | |
Online Gaming Agreements
|
| |
December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Beginning balance
|
| | | $ | 6,725 | | | | | $ | 9,436 | | | | | $ | 2,797 | | |
Cash received
|
| | | | 5,194 | | | | | | — | | | | | | 7,599 | | |
Royalty revenue recognized
|
| | | | (2,829) | | | | | | (2,711) | | | | | | (960) | | |
Ending balance
|
| | | $ | 9,090 | | | | | $ | 6,725 | | | | | $ | 9,436 | | |
| Estimated fair value of assets acquired | | | | | | | |
|
Current assets
|
| | | $ | 1,376 | | |
|
Property and equipment
|
| | | | 35,256 | | |
|
Operating right-of-use assets
|
| | | | 27,205 | | |
|
Intangible assets
|
| | | | 13,387 | | |
|
Other long term assets
|
| | | | 547 | | |
|
Total assets acquired
|
| | | | 77,771 | | |
| Estimated fair value of liabilities assumed | | | | | | | |
|
Current liabilities
|
| | | | (15,012) | | |
|
Current portion of lease liabilities
|
| | | | (4,403) | | |
|
Noncurrent lease liabilities
|
| | | | (23,272) | | |
|
Total liabilites assumed
|
| | | | (42,687) | | |
|
Goodwill
|
| | | | 1,056 | | |
|
Allocated purchase price
|
| | | | 36,140 | | |
|
Less: Cash acquired
|
| | | | (59) | | |
|
Net cash paid
|
| | | $ | 36,081 | | |
| Estimated fair value of assets acquired | | | | | | | |
|
Current assets
|
| | | $ | 25,564 | | |
|
Property and equipment
|
| | | | 154,849 | | |
|
Operating right-of-use assets
|
| | | | 160,491 | | |
|
Intangible assets
|
| | | | 72,264 | | |
|
Other long term assets
|
| | | | 135 | | |
|
Total assets acquired
|
| | | | 413,303 | | |
| Estimated fair value of liabilities assumed | | | | | | | |
|
Current liabilities
|
| | | | (33,424) | | |
|
Current portion of lease liabilities
|
| | | | (10,445) | | |
|
Noncurrent lease liabilities
|
| | | | (146,596) | | |
|
Other long term liabilities
|
| | | | (990) | | |
|
Total liabilites assumed
|
| | | | (191,455) | | |
|
Goodwill
|
| | | | 102,738 | | |
|
Allocated purchase price
|
| | | | 324,585 | | |
|
Less: Cash acquired
|
| | | | (1,390) | | |
|
Net cash paid
|
| | | $ | 323,195 | | |
| Estimated fair value of assets acquired | | | | | | | |
|
Current assets
|
| | | $ | 3,106 | | |
|
Property and equipment
|
| | | | 36,244 | | |
|
Operating right-of-use assets
|
| | | | 48,713 | | |
|
Intangible assets
|
| | | | 10,583 | | |
|
Other long term assets
|
| | | | 28 | | |
|
Total assets acquired
|
| | | | 98,674 | | |
| Estimated fair value of liabilities assumed | | | | | | | |
|
Current liabilities
|
| | | | (14,278) | | |
|
Current portion of lease liabilities
|
| | | | (6,155) | | |
|
Noncurrent lease liabilities
|
| | | | (41,408) | | |
|
Total liabilites assumed
|
| | | | (61,841) | | |
|
Allocated purchase price
|
| | | | 36,833 | | |
|
Less: Cash acquired
|
| | | | (157) | | |
|
Net cash paid
|
| | | $ | 36,676 | | |
| Estimated fair value of assets acquired | | | | | | | |
|
Current assets
|
| | | $ | 136 | | |
|
Property and equipment
|
| | | | 7,405 | | |
|
Operating right-of-use assets
|
| | | | 7,168 | | |
|
Other long term assets
|
| | | | 104 | | |
|
Total assets acquired
|
| | | | 14,813 | | |
| Estimated fair value of liabilities assumed | | | | | | | |
|
Current liabilities
|
| | | | (115) | | |
|
Current portion of lease liabilities
|
| | | | (851) | | |
|
Noncurrent lease liabilities
|
| | | | (6,317) | | |
|
Total liabilites assumed
|
| | | | (7,283) | | |
|
Allocated purchase price
|
| | | | 7,530 | | |
|
Less: Cash acquired
|
| | | | (17) | | |
|
Net cash paid
|
| | | $ | 7,513 | | |
| Estimated fair value of assets acquired | | | | | | | |
|
Current assets
|
| | | $ | 4,256 | | |
|
Property and equipment
|
| | | | 30,315 | | |
|
Operating right-of-use assets
|
| | | | 65,902 | | |
|
Intangible assets
|
| | | | 23,170 | | |
|
Other long term assets
|
| | | | 616 | | |
|
Total assets acquired
|
| | | | 124,259 | | |
| Estimated fair value of liabilities assumed | | | | | | | |
|
Current liabilities
|
| | | | (18,465) | | |
|
Current portion of lease liabilities
|
| | | | (4,831) | | |
|
Noncurrent lease liabilities
|
| | | | (62,091) | | |
|
Total liabilites assumed
|
| | | | (85,387) | | |
|
Noncontrolling interests
|
| | | | (1,817) | | |
|
Goodwill
|
| | | | 1,421 | | |
|
Allocated purchase price
|
| | | | 38,476 | | |
|
Less: Cash acquired
|
| | | | (1,012) | | |
|
Net cash paid
|
| | | $ | 37,464 | | |
| | |
Year Ended December 31,
|
| |||||||||
(in thousands, except per share data)
|
| |
2019
|
| |
2018
|
| ||||||
Total revenue
|
| | | $ | 4,060,302 | | | | | $ | 4,103,295 | | |
Net income (loss) attributable to FEI
|
| | | $ | 129,060 | | | | | $ | 122,398 | | |
Basic and diluted net income (loss) per share
|
| | | $ | 129,060 | | | | | $ | 122,398 | | |
| | |
December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Land
|
| | | $ | 236,727 | | | | | $ | 233,396 | | |
Buildings and improvements
|
| | | | 1,638,181 | | | | | | 1,642,743 | | |
Furniture, fixtures and equipment
|
| | | | 1,182,317 | | | | | | 1,166,845 | | |
Leasehold improvements
|
| | | | 1,069,783 | | | | | | 1,059,829 | | |
Construction in progress
|
| | | | 62,880 | | | | | | 73,419 | | |
| | | | | 4,189,888 | | | | | | 4,176,232 | | |
Less – accumulated depreciation
|
| | | | (1,908,270) | | | | | | (1,743,584) | | |
Property and equipment, net
|
| | | $ | 2,281,618 | | | | | $ | 2,432,648 | | |
| | |
Casual
Dining |
| |
Upscale
Dining |
| |
Consolidated
Total |
| |||||||||
Year Ended December 31, 2018
|
| | | $ | 99,465 | | | | | $ | 246,110 | | | | | $ | 345,575 | | |
Additions
|
| | | | 1,056 | | | | | | 106,645 | | | | | | 106,645 | | |
Year Ended December 31, 2019
|
| | | $ | 100,521 | | | | | $ | 352,755 | | | | | $ | 453,276 | | |
Adjustments(a) | | | | | — | | | | | | (3,907) | | | | | | — | | |
Year Ended December 31, 2020
|
| | | $ | 100,521 | | | | | $ | 348,848 | | | | | $ | 449,369 | | |
| | |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||||||||||||||||||||
|
Weighted
Average Remaining Useful Life (in years) |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |||||||||||||||||||||||
Amortizing intangible assets:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trademarks
|
| | | | 7.05 | | | | | $ | 68,948 | | | | | $ | (31,898) | | | | | $ | 37,050 | | | | | $ | 96,998 | | | | | $ | (24,325) | | | | | $ | 72,673 | | |
Non-amortizing intangible assets:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trademarks
|
| | | | | | | | | | | | | | | | | | | | | | 242,381 | | | | | | | | | | | | | | | | | | 244,573 | | |
Gaming licenses
|
| | | | | | | | | | | | | | | | | | | | | | 33,267 | | | | | | | | | | | | | | | | | | 33,267 | | |
| | | | | | | | | | | | | | | | | | | | | | | 275,648 | | | | | | | | | | | | | | | | | | 277,840 | | |
Total intangible assets
|
| | | | | | | | | | | | | | | | | | | | | $ | 312,698 | | | | | | | | | | | | | | | | | $ | 350,513 | | |
Year Ended December 31,
|
| | | | | | |
2021
|
| | | $ | 5,383 | | |
2022
|
| | | | 5,383 | | |
2023
|
| | | | 5,383 | | |
2024
|
| | | | 5,383 | | |
2025
|
| | | | 5,297 | | |
Thereafter
|
| | | | 10,221 | | |
| | | | $ | 37,050 | | |
Description
|
| |
December 31, 2020
|
| |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
Impairments |
| |||||||||||||||
Property and equipment held and used
|
| | | $ | 10,986 | | | | | $ | — | | | | | $ | — | | | | | $ | 10,986 | | | | | $ | 31,324 | | |
Operating lease right-of-use
assets |
| | | | 17,095 | | | | | | — | | | | | | — | | | | | | 17,095 | | | | | | 20,959 | | |
Trademarks
|
| | | | 52,806 | | | | | | — | | | | | | — | | | | | | 52,806 | | | | | | 53,291 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 105,574 | | |
Description
|
| |
December 31, 2019
|
| |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
Impairments |
| |||||||||||||||
Property and equipment held and used
|
| | | $ | 10,216 | | | | | $ | — | | | | | $ | — | | | | | $ | 10,216 | | | | | $ | 16,969 | | |
Operating lease right-of-use
assets |
| | | | 6,020 | | | | | | — | | | | | | — | | | | | | 6,020 | | | | | | 9,065 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 26,034 | | |
Description
|
| |
December 31, 2020
|
| |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total Gain
on Warrants |
| |||||||||||||||
Public Warrants
|
| | | $ | 94,875 | | | | | $ | 94,875 | | | | | $ | — | | | | | $ | — | | | | | $ | (14,758) | | |
Sponsor Warrants
|
| | | | 81,484 | | | | | | — | | | | | | — | | | | | | 81,484 | | | | | $ | (24,828) | | |
| | | | $ | 176,359 | | | | | | | | | | | | | | | | | | | | | | | $ | (39,586) | | |
| | |
December 29, 2020
|
| |
December 31, 2020
|
| ||||||
Stock price
|
| | | $ | 25.45 | | | | | $ | 19.70 | | |
Strike price
|
| | | $ | 11.50 | | | | | $ | 11.50 | | |
Public warrant price
|
| | | $ | 10.40 | | | | | $ | 9.00 | | |
Term (in years)
|
| | | | 5.00 | | | | | | 4.99 | | |
Volatility
|
| | | | 65% | | | | | | 75% | | |
Risk-free yield
|
| | | | 0.37% | | | | | | 0.36% | | |
Dividend yield
|
| | | | 0.00% | | | | | | 0.00% | | |
Fair value of warrants
|
| | | $ | 18.07 | | | | | $ | 13.85 | | |
| | |
December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Payroll and related costs
|
| | | $ | 80,664 | | | | | $ | 85,776 | | |
Gaming related, excluding taxes
|
| | | | 81,385 | | | | | | 69,154 | | |
Insurance
|
| | | | 82,262 | | | | | | 71,526 | | |
Taxes, other than payroll and income taxes
|
| | | | 65,956 | | | | | | 57,012 | | |
Deferred revenue
|
| | | | 170,975 | | | | | | 179,219 | | |
Accrued interest
|
| | | | 52,265 | | | | | | 54,683 | | |
Accrued rent
|
| | | | 61,633 | | | | | | 17,769 | | |
Mandatory redeemable noncontrolling interest
|
| | | | 5,219 | | | | | | 5,167 | | |
Other
|
| | | | 48,817 | | | | | | 26,502 | | |
| | | | $ | 649,176 | | | | | $ | 566,808 | | |
| | |
December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
|
(in thousands)
|
| |||||||||||
$265.0 million 2016 Revolving Credit Facility, Libor + 3.25%, $255.0 million due October 2022 and $10.0 million due October 2021
|
| | | $ | 149,813 | | | | | $ | — | | |
$2,585.6 million 2016 Term Loan, Libor (floor 0.75%) + 2.50%,
principal paid quarterly, due October 2023, net of unamortized discount based upon a 3.3% imputed interest rate of $3.1 million for 2020 and $4.2 million for 2019 and debt issuance costs of $23.1 million for 2020 and $26.3 million for 2019 |
| | | | 2,537,717 | | | | | | 2,362,328 | | |
$1,345.0 million Senior Unsecured Notes 6.75% ($745.0 million sold at
a 1% discount), interest paid semi-annually due October 2024, net of unamortized discount based upon a 6.8% imputed interest rate of $4.0 million for 2020 and $5.1 million for 2019 and debt issuance costs of $17.8 million for 2020 and $21.9 million for 2019 |
| | | | 1,301,199 | | | | | | 1,317,997 | | |
$670.0 million Senior Subordinated Notes 8.75%, interest paid semi-annually due October 2025, net of debt issuance costs of $11.5 million for 2020 and $13.3 million for 2019
|
| | | | 658,523 | | | | | | 656,720 | | |
$300.0 million GNOG term loan, Libor (floor 1.0%) + 12%, due
October 2023, net of unamortized discount based upon a 13.0% imputed interest rate of $5.0 million for 2020 and debt issuance costs of $3.3 million for 2020 |
| | | | 141,727 | | | | | | — | | |
$4.0 million seller note, 5.0% interest only paid monthly, due November 2024
|
| | | | 4,000 | | | | | | 4,000 | | |
8.98% Mortgage loan, principal and interest paid monthly beginning
January 2012, due April 2021, including unamortized premium based upon a 6.4% imputed interest rate of less than $0.1 million for both 2020 and 2019 |
| | | | 143 | | | | | | 555 | | |
5.0% Term loan, principal and interest paid monthly beginning October 2016, due September 2021
|
| | | | 209 | | | | | | 538 | | |
Joint venture loans payable
|
| | | | 5,033 | | | | | | 4,929 | | |
Various equipment loans, 5.0% – 5.5%, principal and interest paid monthly or quarterly, due January 2021 through March 2023
|
| | | | 2,309 | | | | | | 5,557 | | |
Total debt, net of unamortized discounts and debt issuance
costs |
| | | | 4,800,673 | | | | | | 4,352,624 | | |
Less current portion
|
| | | | (37,045) | | | | | | (30,576) | | |
Long-term portion
|
| | | $ | 4,763,628 | | | | | $ | 4,322,048 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Current income taxes (benefit) | | | | | | | | | | | | | | | | | | | |
Federal
|
| | | $ | (44,958) | | | | | $ | 16,338 | | | | | $ | 11,515 | | |
State and local
|
| | | | 1,705 | | | | | | 15,613 | | | | | | 18,074 | | |
Foreign
|
| | | | 594 | | | | | | 1,211 | | | | | | 1,627 | | |
| | | | $ | (42,659) | | | | | $ | 33,162 | | | | | $ | 31,216 | | |
Deferred income taxes (benefit) | | | | | | | | | | | | | | | | | | | |
Federal
|
| | | $ | (54,666) | | | | | $ | (12,563) | | | | | $ | (1,247) | | |
State and local
|
| | | | (8,094) | | | | | | (420) | | | | | | (1,762) | | |
Foreign
|
| | | | (1,071) | | | | | | 1,263 | | | | | | (34) | | |
| | | | $ | (63,831) | | | | | $ | (11,720) | | | | | $ | (3,043) | | |
Provision (benefit) for income taxes
|
| | | $ | (106,490) | | | | | $ | 21,442 | | | | | $ | 28,173 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Statutory rate
|
| | | | 21.0% | | | | | | 21.0% | | | | | | 21.0% | | |
FICA and other tax credits
|
| | | | 0.0% | | | | | | (17.8)% | | | | | | (20.0)% | | |
State income tax, net of federal tax benefit
|
| | | | 2.1% | | | | | | 11.7% | | | | | | 10.0% | | |
Noncontrolling interest and non-deductible expense
|
| | | | (0.4)% | | | | | | 1.2% | | | | | | 1.6% | | |
Valuation allowance attributable to the Tax Acts
|
| | | | 6.3% | | | | | | 0.0% | | | | | | 11.6% | | |
Non-taxable gain on warrant derivatives
|
| | | | 2.6% | | | | | | 0.0% | | | | | | 0.0% | | |
Other
|
| | | | 1.9% | | | | | | 2.2% | | | | | | 0.1% | | |
| | | | | 33.5% | | | | | | 18.3% | | | | | | 24.3% | | |
| | |
December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Deferred tax assets: | | | | | | | | | | | | | |
AMT credit, FICA credit carryforwards, and other
|
| | | $ | 238,295 | | | | | $ | 216,190 | | |
Federal and state net operating loss carryforwards
|
| | | | 31,635 | | | | | | 27,933 | | |
Lease liabilities
|
| | | | 240,444 | | | | | | 239,487 | | |
| | |
December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Accruals and other
|
| | | | 77,450 | | | | | | 52,944 | | |
Interest expense limitation
|
| | | | 8,372 | | | | | | 39,491 | | |
GNOG investment in partnership
|
| | | | 96,934 | | | | | | — | | |
Valuation allowance
|
| | | | (93,947) | | | | | | (29,583) | | |
| | | | | 599,183 | | | | | | 546,462 | | |
Deferred tax liabilities | | | | | | | | | | | | | |
Lease assets
|
| | | | (213,791) | | | | | | (215,808) | | |
FEI investment in partnership
|
| | | | (30,710) | | | | | | — | | |
Property and other
|
| | | | (179,106) | | | | | | (183,426) | | |
| | | | | (423,607) | | | | | | (399,234) | | |
Net deferred tax asset
|
| | | $ | 175,576 | | | | | $ | 147,228 | | |
|
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Balance at January 1,
|
| | | $ | 29,583 | | | | | $ | 25,298 | | | | | $ | 12,435 | | |
Additions charged to expense
|
| | | | 1,655 | | | | | | 4,285 | | | | | | 13,387 | | |
Deductions
|
| | | | (7,192) | | | | | | — | | | | | | (524) | | |
Recapitalization of GNOG
|
| | | | 67,386 | | | | | | — | | | | | | — | | |
Acquisitions
|
| | | | 2,515 | | | | | | — | | | | | | — | | |
Balance at December 31,
|
| | | $ | 93,947 | | | | | $ | 29,583 | | | | | $ | 25,298 | | |
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Balance at beginning of year
|
| | | $ | 16,642 | | | | | $ | 15,652 | | | | | $ | 15,033 | | |
Additions (reductions) based on tax positions related to the current year
|
| | | | (3,105) | | | | | | (84) | | | | | | 68 | | |
Additions based on tax positions related to prior years and acquisitions
|
| | | | 810 | | | | | | 1,112 | | | | | | 930 | | |
Expiration of statute of limitations
|
| | | | (719) | | | | | | (38) | | | | | | (379) | | |
Balance at end of year
|
| | | $ | 13,628 | | | | | $ | 16,642 | | | | | $ | 15,652 | | |
| | |
Year Ended December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Operating lease cost
|
| | | $ | 185,182 | | | | | $ | 160,498 | | |
Variable lease cost
|
| | | | 16,273 | | | | | | 66,011 | | |
Finance lease amortization
|
| | | | 600 | | | | | | 294 | | |
Interest on finance lease obligations
|
| | | | 1,204 | | | | | | 411 | | |
Short-term lease cost
|
| | | | 632 | | | | | | 659 | | |
Total lease costs, net
|
| | | $ | 203,891 | | | | | $ | 227,873 | | |
| | |
December 31, 2020
|
| |||||||||
|
Operating leases
|
| |
Finance leases
|
| ||||||||
2021
|
| | | $ | 180,101 | | | | | $ | 1,379 | | |
2022
|
| | | | 170,171 | | | | | | 1,379 | | |
2023
|
| | | | 153,934 | | | | | | 1,379 | | |
2024
|
| | | | 138,090 | | | | | | 1,379 | | |
2025
|
| | | | 123,234 | | | | | | 1,379 | | |
Thereafter
|
| | | | 701,602 | | | | | | 18,883 | | |
Total future minimum lease payments
|
| | | | 1,467,132 | | | | | | 25,778 | | |
Less – Interest
|
| | | | (449,129) | | | | | | (6,122) | | |
Present value of future minimum lease liabilities
|
| | | | 1,018,003 | | | | | | 19,656 | | |
Less – Current portion
|
| | | | (117,817) | | | | | | — | | |
Long-term lease obligations
|
| | | $ | 900,186 | | | | | $ | 19,656 | | |
| | |
December 31, 2020
|
| |
December 31, 2019
|
|
Weighted average remaining lease term | | | | | | | |
Operating leases
|
| |
10.7 years
|
| |
12.0 years
|
|
Finance leases
|
| |
18.7 years
|
| |
19.6 years
|
|
Weighted average discount rate | | | | | | | |
Operating leases
|
| |
6.65%
|
| |
6.16%
|
|
Finance leases
|
| |
7.00%
|
| |
7.00%
|
|
| | |
Year Ended December 31,
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Cash flows from operating activities: | | | | | | | | | | | | | |
Payments for operating leases
|
| | | $ | 112,893 | | | | | $ | 169,577 | | |
Supplemental non-cash information: | | | | | | | | | | | | | |
Lease assets obtained in exchange for new lease liabilities
|
| | | | 50,756 | | | | | | 53,317 | | |
Pension Fund
|
| |
EIN/Pension
Plan Number |
| |
Pension
Protection Act Zone |
| |
FIP/RP
Status |
| |
Company Contributions
|
| |
Surcharge
Imposed |
| |
Expiration Date of
Collective-Bargaining Agreement |
| |||||||||||||||
|
Pending/Implemented
|
| |
2020
|
| |
2019
|
| |
2018
|
| |||||||||||||||||||||||
Southern Nevada Culinary and Bartenders Pension Plan
|
| |
88-6016617-001
|
| |
Green
|
| |
No
|
| | | $ | 1,366 | | | | | $ | 2,690 | | | | | $ | 2,794 | | | |
No
|
| |
5/31/2023
|
|
International Painter and Allied Trades Industry Pension Plan
|
| |
52-6073909-001
|
| |
Red
|
| |
Yes, Implemented
|
| | | | 102 | | | | | | 240 | | | | | | 238 | | | |
No
|
| |
3/1/2025
|
|
Southwest Carpenters Pension
Plan |
| |
95-6042875-001
|
| |
Green
|
| |
No
|
| | | | 55 | | | | | | 141 | | | | | | 138 | | | |
No
|
| |
7/31/2024
|
|
Local 68 Engineers Union Pension Plan
|
| |
51-0176618-001
|
| |
Yellow
|
| |
Yes, Implemented
|
| | | | 237 | | | | | | 453 | | | | | | 443 | | | |
No
|
| |
Local 68 Operating Engineer exp.
4/30/2022 and Local 68A- Entertainment expires 6/30/2022 |
|
New Jersey Carpenters Pension
Plan |
| |
22-6174423-001
|
| |
Green
|
| |
No
|
| | | | 61 | | | | | | 140 | | | | | | 141 | | | |
No
|
| |
4/30/2022
|
|
| | | | | | | | |
Total Contributions
|
| | | $ | 1,821 | | | | | $ | 3,664 | | | | | $ | 3,754 | | | | | | | | |
| | |
Casual
Dining |
| |
Upscale
Dining |
| |
Casinos
|
| |
Online
Gaming |
| |
Corporate and
Other |
| |
Consolidated
Total |
| ||||||||||||||||||
Year Ended December 31, 2020
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 803,360 | | | | | $ | 616,038 | | | | | $ | 655,338 | | | | | $ | 91,120 | | | | | $ | 124,548 | | | | | $ | 2,290,404 | | |
Segment level profit
|
| | | | 87,407 | | | | | | 70,490 | | | | | | 217,285 | | | | | | 24,682 | | | | | | 33,742 | | | | | | 433,606 | | |
Segment assets
|
| | | | 1,018,011 | | | | | | 1,383,171 | | | | | | 1,612,308 | | | | | | 178,725 | | | | | | 813,014 | | | | | | 5,005,229 | | |
Asset impairments
|
| | | | 49,700 | | | | | | 55,874 | | | | | | — | | | | | | — | | | | | | — | | | | | | 105,574 | | |
Capital expenditures
|
| | | | 21,757 | | | | | | 14,642 | | | | | | 17,791 | | | | | | 59 | | | | | | 4,598 | | | | | | 58,847 | | |
Year Ended December 31, 2019
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 1,341,654 | | | | | $ | 817,687 | | | | | $ | 1,037,812 | | | | | $ | 55,421 | | | | | $ | 231,963 | | | | | $ | 3,484,537 | | |
Segment level profit
|
| | | | 224,122 | | | | | | 155,285 | | | | | | 310,359 | | | | | | 17,771 | | | | | | 72,629 | | | | | | 780,166 | | |
Segment assets
|
| | | | 1,127,550 | | | | | | 1,387,483 | | | | | | 1,620,981 | | | | | | 47,205 | | | | | | 679,073 | | | | | | 4,862,292 | | |
Asset impairments
|
| | | | 11,489 | | | | | | 14,545 | | | | | | — | | | | | | — | | | | | | — | | | | | | 26,034 | | |
Capital expenditures
|
| | | | 79,758 | | | | | | 31,050 | | | | | | 31,981 | | | | | | — | | | | | | 17,727 | | | | | | 160,516 | | |
Year Ended December 31, 2018
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 1,505,239 | | | | | $ | 772,684 | | | | | $ | 1,058,700 | | | | | $ | 42,901 | | | | | $ | 227,934 | | | | | $ | 3,607,458 | | |
Segment level profit
|
| | | | 239,992 | | | | | | 155,485 | | | | | | 305,921 | | | | | | 12,001 | | | | | | 75,279 | | | | | | 788,678 | | |
Segment assets
|
| | | | 700,883 | | | | | | 704,757 | | | | | | 1,568,953 | | | | | | 21,539 | | | | | | 549,917 | | | | | | 3,546,049 | | |
Asset impairments
|
| | | | 19,287 | | | | | | 566 | | | | | | — | | | | | | — | | | | | | — | | | | | | 19,853 | | |
Capital expenditures
|
| | | | 91,520 | | | | | | 24,641 | | | | | | 34,373 | | | | | | 73 | | | | | | 11,919 | | | | | | 162,526 | | |
| | |
Year Ended December 31,
|
| |||||||||||||||
|
2020
|
| |
2019
|
| |
2018
|
| |||||||||||
Segment level profit
|
| | | $ | 433,606 | | | | | $ | 780,166 | | | | | $ | 788,678 | | |
Less:
|
| | | | | | | | | | | | | | | | | | |
Depreciation, amortization and impairment
|
| | | | 317,331 | | | | | | 232,143 | | | | | | 246,640 | | |
General and administrative expense
|
| | | | 142,379 | | | | | | 147,729 | | | | | | 129,375 | | |
(Gain) loss on disposal of assets
|
| | | | 8,466 | | | | | | (137) | | | | | | (1,491) | | |
Pre-opening expenses
|
| | | | 3,000 | | | | | | 7,788 | | | | | | 11,181 | | |
Operating income (loss)
|
| | | $ | (37,570) | | | | | $ | 392,643 | | | | | $ | 402,973 | | |
| | |
2020
|
| |
2019
|
| |
2018
|
| |||||||||
Cash paid for interest
|
| | | $ | 297,810 | | | | | $ | 269,616 | | | | | $ | 253,371 | | |
Cash paid (refunded) for income taxes
|
| | | $ | (25,829) | | | | | $ | 26,283 | | | | | $ | 25,160 | | |
Non-cash investing activities and financing activities: | | | | | | | | | | | | | | | | | | | |
Accounts payable included in (excluded from) property and equipment additions
|
| | | $ | 594 | | | | | $ | 11,405 | | | | | $ | (2,263) | | |
Reclassification of mandatory redeemable noncontrolling interest
|
| | | $ | 244 | | | | | $ | 244 | | | | | $ | 234 | | |
PIK interest added to notes receivable
|
| | | $ | 1,042 | | | | | $ | 920 | | | | | $ | 681 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
ASSETS
|
| | | | | | | | | | | | |
CURRENT ASSETS: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 557,273 | | | | | $ | 401,097 | | |
Restricted cash
|
| | | | 55,356 | | | | | | 54,570 | | |
Accounts receivable – trade and other, net
|
| | | | 68,555 | | | | | | 61,433 | | |
Income taxes receivable
|
| | | | 38,307 | | | | | | 38,321 | | |
Inventories
|
| | | | 86,971 | | | | | | 90,610 | | |
Other current assets
|
| | | | 20,047 | | | | | | 24,595 | | |
Total current assets
|
| | | | 826,509 | | | | | | 670,626 | | |
PROPERTY AND EQUIPMENT, net
|
| | | | 2,250,631 | | | | | | 2,281,618 | | |
OPERATING LEASE RIGHT-OF-USE ASSETS, net
|
| | | | 907,007 | | | | | | 905,159 | | |
INVESTMENT IN AFFILIATES AND JOINT VENTURES
|
| | | | 26,840 | | | | | | 26,745 | | |
ACCOUNTS AND NOTES RECEIVABLE, affiliates
|
| | | | 106,397 | | | | | | 108,691 | | |
INTANGIBLE ASSETS, net
|
| | | | 762,142 | | | | | | 762,067 | | |
LONG-TERM DEFERRED TAX ASSETS
|
| | | | 167,407 | | | | | | 181,254 | | |
OTHER ASSETS, net
|
| | | | 89,437 | | | | | | 69,069 | | |
Total assets
|
| | | $ | 5,136,370 | | | | | $ | 5,005,229 | | |
LIABILITIES AND STOCKHOLDERS’ DEFICIT
|
| | | | | | | | | | | | |
CURRENT LIABILITIES: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 170,856 | | | | | $ | 168,507 | | |
Accrued liabilities
|
| | | | 685,730 | | | | | | 649,360 | | |
Current portion of long-term debt
|
| | | | 35,705 | | | | | | 37,045 | | |
Operating lease liabilities
|
| | | | 113,339 | | | | | | 117,817 | | |
Total current liabilities
|
| | | | 1,005,630 | | | | | | 972,729 | | |
LONG-TERM DEBT, net of current portion
|
| | | | 4,740,478 | | | | | | 4,763,628 | | |
FINANCE LEASE OBLIGATIONS
|
| | | | 20,686 | | | | | | 19,656 | | |
NONCURRENT OPERATING LEASE LIABILITIES
|
| | | | 908,244 | | | | | | 900,186 | | |
WARRANT DERIVATIVE LIABILITIES
|
| | | | 51,950 | | | | | | 176,359 | | |
OTHER LIABILITIES
|
| | | | 84,275 | | | | | | 81,796 | | |
Total liabilities
|
| | | | 6,811,263 | | | | | | 6,914,354 | | |
COMMITMENTS AND CONTINGENCIES (Note 10) | | | | | | | | | | | | | |
REDEEMABLE NONCONTROLLING INTEREST
|
| | | | 2,797 | | | | | | 2,736 | | |
STOCKHOLDERS’ DEFICIT: | | | | | | | | | | | | | |
Common stock, $0.01 par value, 60,000 shares authorized, 1 shares issued and outstanding
|
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | 693,468 | | | | | | 703,722 | | |
Accumulated deficit
|
| | | | (1,925,733) | | | | | | (1,749,661) | | |
Accumulated other comprehensive loss
|
| | | | (3,418) | | | | | | (3,557) | | |
FEI stockholder’s deficit
|
| | | | (1,235,683) | | | | | | (1,049,496) | | |
NONCONTROLLING INTERESTS
|
| | | | (442,007) | | | | | | (862,365) | | |
Total stockholders’ deficit
|
| | | | (1,677,690) | | | | | | (1,911,861) | | |
Total liabilities and stockholders’ deficit
|
| | | $ | 5,136,370 | | | | | $ | 5,005,229 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
REVENUES: | | | | | | | | | | | | | |
Restaurant and hospitality
|
| | | $ | 441,824 | | | | | $ | 553,661 | | |
Gaming:
|
| | | | | | | | | | | | |
Casino
|
| | | | 146,829 | | | | | | 121,472 | | |
Rooms
|
| | | | 26,693 | | | | | | 33,949 | | |
Food and beverage
|
| | | | 35,908 | | | | | | 53,984 | | |
Other
|
| | | | 17,089 | | | | | | 20,293 | | |
Net gaming revenue
|
| | | | 226,519 | | | | | | 229,698 | | |
Total revenue
|
| | | | 668,343 | | | | | | 783,359 | | |
OPERATING COSTS AND EXPENSES: | | | | | | | | | | | | | |
Restaurant and hospitality:
|
| | | | | | | | | | | | |
Cost of revenues
|
| | | | 114,713 | | | | | | 148,715 | | |
Labor
|
| | | | 107,380 | | | | | | 180,260 | | |
Other operating expenses
|
| | | | 118,700 | | | | | | 166,252 | | |
Gaming:
|
| | | | | | | | | | | | |
Casino
|
| | | | 63,357 | | | | | | 67,304 | | |
Rooms
|
| | | | 8,497 | | | | | | 14,830 | | |
Food and beverage
|
| | | | 20,048 | | | | | | 38,587 | | |
Other
|
| | | | 56,656 | | | | | | 52,769 | | |
General and administrative expense
|
| | | | 35,331 | | | | | | 32,803 | | |
Depreciation and amortization
|
| | | | 50,414 | | | | | | 52,277 | | |
Asset impairment expense
|
| | | | — | | | | | | 7,483 | | |
Gain on disposal of assets
|
| | | | (1,650) | | | | | | (8,452) | | |
Pre-opening expenses
|
| | | | 135 | | | | | | 2,023 | | |
Total operating costs and expenses
|
| | | | 573,581 | | | | | | 754,851 | | |
OPERATING INCOME
|
| | | | 94,762 | | | | | | 28,508 | | |
OTHER EXPENSE: | | | | | | | | | | | | | |
Interest expense, net
|
| | | | 69,663 | | | | | | 69,160 | | |
Gain on warrant derivatives
|
| | | | (81,091) | | | | | | — | | |
Other (income) expense, net
|
| | | | (1,100) | | | | | | 4,820 | | |
Total other (income) expense
|
| | | | (12,528) | | | | | | 73,980 | | |
Income (loss) before income taxes
|
| | | | 107,290 | | | | | | (45,472) | | |
Provision (benefit) for income taxes
|
| | | | 6,136 | | | | | | (19,211) | | |
Net income (loss)
|
| | | | 101,154 | | | | | | (26,261) | | |
Net income (loss) attributable to noncontrolling interests
|
| | | | 75,764 | | | | | | (6) | | |
Net income (loss) attributable to FEI
|
| | | $ | 25,390 | | | | | $ | (26,255) | | |
Basic and diluted net income (loss) per share: | | | | | | | | | | | | | |
Basic and diluted
|
| | | $ | 25,390 | | | | | $ | (26,255) | | |
Weighted-average number of common shares outstanding: | | | | | | | | | | | | | |
Basic and diluted
|
| | | | 1 | | | | | | 1 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Net income (loss)
|
| | | $ | 101,154 | | | | | $ | (26,261) | | |
Other comprehensive income (loss), net of tax: | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | 176 | | | | | | (560) | | |
Total other comprehensive income (loss), before tax
|
| | | | 176 | | | | | | (560) | | |
Deferred income tax (expense) benefit on other comprehensive income
|
| | | | (37) | | | | | | 117 | | |
Other comprehensive income (loss), net of tax
|
| | | | 139 | | | | | | (443) | | |
Comprehensive income (loss)
|
| | | | 101,293 | | | | | | (26,704) | | |
Less: other comprehensive income (loss) attributable to noncontrolling
interests |
| | | | 75,764 | | | | | | (6) | | |
Comprehensive income (loss) attributable to FEI
|
| | | $ | 25,529 | | | | | $ | (26,698) | | |
| | | | | | | | |
FEI Stockholder’s Deficit
|
| | | | | | | | | | | | | |||||||||||||||||||||||||||
| | |
Mandatory
Redeemable Noncontrolling Interest |
| |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Accumulated
Other Comprehensive Loss |
| |
Noncontrolling
Interests |
| |
Total
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||
Balance, December 31, 2020
|
| | | $ | 2,736 | | | | | | 1 | | | | | $ | — | | | | | $ | 703,722 | | | | | $ | (1,749,661) | | | | | $ | (3,557) | | | | | $ | (862,365) | | | | | $ | (1,911,861) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 25,390 | | | | | | — | | | | | | 75,764 | | | | | | 101,154 | | |
Accretion of mandatory redeemable noncontrolling interest
|
| | | | 61 | | | | | | — | | | | | | — | | | | | | (61) | | | | | | — | | | | | | — | | | | | | — | | | | | | (61) | | |
Distributions to Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | (3,275) | | | | | | (12,570) | | | | | | — | | | | | | — | | | | | | (15,845) | | |
Stock based compensation of GNOG
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,290 | | | | | | 2,290 | | |
GNOG warrant exercises
|
| | | | — | | | | | | — | | | | | | — | | | | | | (6,918) | | | | | | — | | | | | | — | | | | | | 153,412 | | | | | | 146,494 | | |
Redemption value adjustment
of interest in GNOG |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (188,892) | | | | | | — | | | | | | 188,892 | | | | | | — | | |
Other comprehensive income,
net of tax |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 139 | | | | | | — | | | | | | 139 | | |
Balance, March 31, 2021
|
| | | $ | 2,797 | | | | | | 1 | | | | | $ | — | | | | | $ | 693,468 | | | | | $ | (1,925,733) | | | | | $ | (3,418) | | | | | $ | (442,007) | | | | | $ | (1,677,690) | | |
| | | | | | | | |
FEI Stockholder’s Deficit
|
| | | | | | | | | | | | | |||||||||||||||||||||||||||
| | |
Mandatory
Redeemable Noncontrolling Interest |
| |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Accumulated
Deficit |
| |
Accumulated
Other Comprehensive Loss |
| |
Noncontrolling
Interests |
| |
Total
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||
Balance, December 31, 2019
|
| | | | 2,492 | | | | | | 1 | | | | | | — | | | | | | 640,800 | | | | | | (2,040,166) | | | | | | (3,644) | | | | | | 3,989 | | | | | | (1,399,021) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (26,255) | | | | | | — | | | | | | (6) | | | | | | (26,261) | | |
Accretion of mandatory redeemable noncontrolling interest
|
| | | | 61 | | | | | | — | | | | | | — | | | | | | (61) | | | | | | — | | | | | | — | | | | | | — | | | | | | (61) | | |
Dividend to noncontrolling interest owners
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,249) | | | | | | (1,249) | | |
Distributions to Parent
|
| | | | — | | | | | | — | | | | | | — | | | | | | (22) | | | | | | (200,000) | | | | | | — | | | | | | — | | | | | | (200,022) | | |
Other comprehensive loss, net
of tax |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (399) | | | | | | — | | | | | | (399) | | |
Balance, March 31, 2020
|
| | | $ | 2,553 | | | | | | 1 | | | | | $ | — | | | | | $ | 640,717 | | | | | $ | (2,266,421) | | | | | $ | (4,043) | | | | | $ | 2,734 | | | | | $ | (1,627,013) | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
CASH FLOWS FROM OPERATING ACTIVITIES: | | | | | | | | | | | | | |
Net income (loss)
|
| | | $ | 101,154 | | | | | $ | (26,261) | | |
Adjustments to reconcile net income (loss) to net cash provided by (used in)
operating activities: |
| | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 50,414 | | | | | | 52,277 | | |
Asset impairment expense
|
| | | | — | | | | | | 7,483 | | |
Gain on disposal of assets
|
| | | | (1,650) | | | | | | (8,452) | | |
Stock based compensation
|
| | | | 2,290 | | | | | | — | | |
Gain on GNOG warrant derivatives
|
| | | | (81,091) | | | | | | — | | |
Changes in assets and liabilities, net and other
|
| | | | 30,672 | | | | | | (119,837) | | |
Total adjustments
|
| | | | 635 | | | | | | (68,529) | | |
Net cash provided by (used in) operating activities
|
| | | | 101,789 | | | | | | (94,790) | | |
CASH FLOWS FROM INVESTING ACTIVITIES: | | | | | | | | | | | | | |
Property and equipment additions and other
|
| | | | (14,533) | | | | | | (21,543) | | |
Proceeds from disposition of assets
|
| | | | 250 | | | | | | 10,020 | | |
CRDA investment
|
| | | | (374) | | | | | | (476) | | |
Insurance proceeds from property claims
|
| | | | 4,433 | | | | | | — | | |
Business acquisitions, net of cash acquired
|
| | | | (1,421) | | | | | | (7,513) | | |
Net cash used in investing activities
|
| | | | (11,645) | | | | | | (19,512) | | |
CASH FLOWS FROM FINANCING ACTIVITIES: | | | | | | | | | | | | | |
Proceeds from finance lease obligations
|
| | | | — | | | | | | 2,239 | | |
Proceeds from debt issuance
|
| | | | — | | | | | | 200,000 | | |
Payments of debt
|
| | | | (18,854) | | | | | | (8,211) | | |
Cash from GNOG warrant exercises, net
|
| | | | 110,066 | | | | | | — | | |
Debt issuance and retirement costs
|
| | | | (1,560) | | | | | | (5,831) | | |
Proceeds from revolving credit facility
|
| | | | — | | | | | | 388,500 | | |
Payments on revolving credit facility
|
| | | | (10,000) | | | | | | (171,023) | | |
Distributions to Parent
|
| | | | (12,570) | | | | | | (200,000) | | |
Dividend to noncontrolling interest owners
|
| | | | — | | | | | | (1,249) | | |
Payment of mandatory redeemable noncontrolling interest
|
| | | | — | | | | | | (5,500) | | |
Net cash provided by financing activities
|
| | | | 67,082 | | | | | | 198,925 | | |
EFFECT OF EXCHANGE RATE CHANGES ON CASH
|
| | | | (264) | | | | | | (69) | | |
NET INCREASE IN CASH, CASH EQUIVALENTS AND RESTRICTED CASH
|
| | | | 156,962 | | | | | | 84,554 | | |
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT BEGINNING OF PERIOD
|
| | | | 455,667 | | | | | | 140,548 | | |
CASH, CASH EQUIVALENTS AND RESTRICTED CASH AT END OF PERIOD
|
| | | $ | 612,629 | | | | | $ | 225,102 | | |
RECONCILIATION OF CASH, CASH EQUIVALENTS AND RESTRICTED CASH TO AMOUNTS REPORTED WITHIN THE CONSOLIDATED BALANCE SHEETS:
|
| | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 557,273 | | | | | $ | 201,457 | | |
Restricted cash
|
| | | | 55,356 | | | | | | 23,645 | | |
TOTAL CASH, CASH EQUIVALENTS AND RESTRICTED CASH
|
| | | $ | 612,629 | | | | | $ | 225,102 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Rooms
|
| | | $ | 10,785 | | | | | $ | 10,819 | | |
Food and beverage
|
| | | | 8,454 | | | | | | 11,963 | | |
Other
|
| | | | 1,627 | | | | | | 2,618 | | |
| | | | $ | 20,866 | | | | | $ | 25,400 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||||||||||||||||||||||||||||||||
| | |
Weighted
Average Remaining Useful Life (in years) |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |||||||||||||||||||||
Amortizing intangible assets:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Trademarks
|
| | | | 6.81 | | | | | $ | 68,948 | | | | | $ | (33,243) | | | | | $ | 35,705 | | | | | $ | 68,948 | | | | | $ | (31,898) | | | | | $ | 37,050 | | |
Non-amortizing intangible assets:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Goodwill
|
| | | | | | | | | | | | | | | | | | | | | | 450,789 | | | | | | | | | | | | | | | | | | 449,369 | | |
Trademarks
|
| | | | | | | | | | | | | | | | | | | | | | 242,381 | | | | | | | | | | | | | | | | | | 242,381 | | |
Gaming licenses
|
| | | | | | | | | | | | | | | | | | | | | | 33,267 | | | | | | | | | | | | | | | | | | 33,267 | | |
| | | | | | | | | | | | | | | | | | | | | | | 726,437 | | | | | | | | | | | | | | | | | | 725,017 | | |
Total goodwill and intangible assets
|
| | | | | | | | | | | | | | | | | | | | | $ | 762,142 | | | | | | | | | | | | | | | | | $ | 762,067 | | |
| | |
March 31,
|
| |
December 31,
|
| ||||||
| | |
2021
|
| |
2020
|
| ||||||
Gift cards
|
| | | $ | 124,385 | | | | | $ | 132,331 | | |
Customer deposits
|
| | | | 14,041 | | | | | | 10,385 | | |
Restaurant loyalty programs
|
| | | | 19,631 | | | | | | 24,990 | | |
Online gaming contract liabilities
|
| | | | 3,139 | | | | | | 3,269 | | |
| | | | $ | 161,196 | | | | | $ | 170,975 | | |
| | |
March 31,
|
| |
December 31,
|
| ||||||
Gaming related
|
| |
2021
|
| |
2020
|
| ||||||
Slot and player club loyalty programs
|
| | | $ | 13,191 | | | | | $ | 11,604 | | |
Online gaming loyalty program
|
| | | | 67 | | | | | | 46 | | |
| | |
March 31,
|
| |
December 31,
|
| ||||||
Other liabilities
|
| |
2021
|
| |
2020
|
| ||||||
Deferred franchise fees (non-current)
|
| | | $ | 1,459 | | | | | $ | 1,420 | | |
Online gaming contract liabilities (non-current)
|
| | | | 5,163 | | | | | | 5,821 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
Gift Cards
|
| |
2021
|
| |
2020
|
| ||||||
Beginning balance
|
| | | $ | 132,331 | | | | | $ | 137,014 | | |
Activations
|
| | | | 5,496 | | | | | | 7,744 | | |
Redemptions and breakage
|
| | | | (13,442) | | | | | | (18,490) | | |
Ending balance
|
| | | $ | 124,385 | | | | | $ | 126,268 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
Loyalty Programs
|
| |
2021
|
| |
2020
|
| ||||||
Beginning balance
|
| | | $ | 36,640 | | | | | $ | 44,318 | | |
Points and rewards earned
|
| | | | 6,827 | | | | | | 13,694 | | |
Redemptions and breakage
|
| | | | (10,578) | | | | | | (22,178) | | |
Ending balance
|
| | | $ | 32,889 | | | | | $ | 35,834 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
Online Gaming Agreements
|
| |
2021
|
| |
2020
|
| ||||||
Beginning balance
|
| | | $ | 9,090 | | | | | $ | 6,725 | | |
Cash received
|
| | | | 425 | | | | | | 6 | | |
Revenue recognized
|
| | | | (1,213) | | | | | | (708) | | |
Ending balance
|
| | | $ | 8,302 | | | | | $ | 6,023 | | |
Description
|
| |
March 31, 2020
|
| |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total
Impairments |
| |||||||||||||||
Property and equipment held and
used |
| | | $ | 961 | | | | | $ | — | | | | | $ | — | | | | | $ | 961 | | | | | $ | 4,831 | | |
Operating lease right-of-use assets
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,652 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | $ | 7,483 | | |
Description
|
| |
March 31, 2021
|
| |
Quoted Prices
in Active Markets for Identical Assets (Level 1) |
| |
Significant Other
Observable Inputs (Level 2) |
| |
Significant
Unobservable Inputs (Level 3) |
| |
Total Gain
on Warrants |
| |||||||||||||||
Public Warrants
|
| | | $ | — | | | | | $ | (51,557) | | | | | $ | — | | | | | $ | — | | | | | $ | (51,557) | | |
Sponsor Warrants
|
| | | | 51,950 | | | | | | — | | | | | | — | | | | | | (29,534) | | | | | $ | (29,534) | | |
| | | | $ | 51,950 | | | | | | | | | | | | | | | | | | | | | | | $ | (81,091) | | |
| | |
March 31, 2021
|
| |||
Stock price
|
| | | $ | 13.50 | | |
Strike price
|
| | | $ | 11.50 | | |
Term (in years)
|
| | | | 4.75 | | |
Volatility
|
| | | | 80.0% | | |
Risk-free yield
|
| | | | 0.85% | | |
Dividend yield
|
| | | | 0.00% | | |
Fair value of warrants
|
| | | $ | 8.83 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
Payroll and related costs
|
| | | $ | 94,145 | | | | | $ | 80,664 | | |
Gaming related, excluding taxes
|
| | | | 80,324 | | | | | | 81,385 | | |
Insurance
|
| | | | 82,331 | | | | | | 82,262 | | |
Taxes, other than payroll and income taxes
|
| | | | 62,526 | | | | | | 65,956 | | |
Deferred revenue
|
| | | | 161,196 | | | | | | 170,975 | | |
Accrued interest
|
| | | | 78,659 | | | | | | 52,265 | | |
Accrued rent
|
| | | | 58,824 | | | | | | 61,633 | | |
Mandatory redeemable noncontrolling interest
|
| | | | 5,532 | | | | | | 5,219 | | |
Income taxes payable
|
| | | | 5,909 | | | | | | 184 | | |
Other
|
| | | | 56,284 | | | | | | 48,817 | | |
| | | | $ | 685,730 | | | | | $ | 649,360 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
| | |
(in thousands)
|
| |||||||||
$265.0 million 2016 Revolving Credit Facility, Libor + 3.25%, $255.0 million
due October 2022 and $10.0 million due October 2021 |
| | | $ | 139,813 | | | | | $ | 149,813 | | |
$2,585.6 million 2016 Term Loan, Libor (floor 0.75%) + 2.50%, principal paid quarterly, due October 2023, net of unamortized discount based upon a 3.3% imputed interest rate of $2.8 million for 2021 and $3.1 million for 2020 and debt issuance costs of $21.1 million for 2021 and $23.1 million for 2020
|
| | | | 2,532,694 | | | | | | 2,537,717 | | |
$1,345.0 million Senior Unsecured Notes 6.75% ($745.0 million sold at a 1%
discount), interest paid semi-annually due October 2024, net of unamortized discount based upon a 6.8% imputed interest rate of $3.7 million for 2021 and $4.0 million for 2020 and debt issuance costs of $16.8 million for 2021 and $17.8 million for 2020 |
| | | | 1,302,442 | | | | | | 1,301,199 | | |
$670.0 million Senior Subordinated Notes 8.75%, interest paid semi-annually due October 2025, net of debt issuance costs of $11.0 million for 2021 and $11.5 million for 2020
|
| | | | 659,001 | | | | | | 658,523 | | |
$300.0 million GNOG term loan, Libor (floor 1.0%) + 12%, due
October 2023, net of unamortized discount based upon a 13.0% imputed interest rate of $4.3 million for 2021 and $5.0 million for 2020 and debt issuance costs of $2.7 milllion for 2021 and $3.3 million for 2020 |
| | | | 132,310 | | | | | | 141,727 | | |
$4.0 million seller note, 5.0% interest only paid monthly, due November 2024
|
| | | | 4,000 | | | | | | 4,000 | | |
8.98% Mortgage loan, principal and interest paid monthly beginning January 2012, due April 2021, including unamortized premium based upon a 6.4% imputed interest rate of less than $0.1 million for both 2021 and 2020
|
| | | | 36 | | | | | | 143 | | |
5.0% Term loan, principal and interest paid monthly beginning October 2016, due September 2021
|
| | | | 133 | | | | | | 209 | | |
Joint venture loans payable
|
| | | | 4,264 | | | | | | 5,033 | | |
Various equipment loans, 5.0% — 5.5%, principal and interest paid monthly
or quarterly, due January 2021 through March 2023 |
| | | | 1,490 | | | | | | 2,309 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Total debt, net of unamortized discounts and debt issuance costs
|
| | | | 4,776,183 | | | | | | 4,800,673 | | |
Less current portion
|
| | | | (35,705) | | | | | | (37,045) | | |
Long-term portion
|
| | | $ | 4,740,478 | | | | | $ | 4,763,628 | | |
|
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Operating lease cost
|
| | | $ | 43,605 | | | | | $ | 48,249 | | |
Variable lease cost
|
| | | | 4,573 | | | | | | 13,550 | | |
Finance lease amortization
|
| | | | 206 | | | | | | 114 | | |
Interest on finance lease obligations
|
| | | | 392 | | | | | | 277 | | |
Short-term lease cost
|
| | | | 98 | | | | | | 220 | | |
Total lease costs
|
| | | $ | 48,874 | | | | | $ | 62,410 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Cash flows from operating activities: | | | | | | | | | | | | | |
Payments for operating leases
|
| | | $ | 41,257 | | | | | $ | 49,142 | | |
Supplemental non-cash information: | | | | | | | | | | | | | |
Lease assets obtained in exchange for new lease liabilities
|
| | | | 29,218 | | | | | | 10,572 | | |
| | |
Casual
Dining |
| |
Upscale
Dining |
| |
Casinos
|
| |
Online
Gaming |
| |
Corporate
and Other |
| |
Consolidated
Total |
| ||||||||||||||||||
Three Months Ended March 31, 2021
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 219,074 | | | | | $ | 178,179 | | | | | $ | 199,770 | | | | | $ | 26,749 | | | | | $ | 44,571 | | | | | $ | 668,343 | | |
Segment level profit
|
| | | | 43,256 | | | | | | 39,058 | | | | | | 83,776 | | | | | | (5,815) | | | | | | 18,717 | | | | | | 178,992 | | |
Segment assets
|
| | | | 1,007,966 | | | | | | 1,370,453 | | | | | | 1,618,149 | | | | | | 281,617 | | | | | | 858,185 | | | | | | 5,136,370 | | |
Capital expenditures
|
| | | | 3,517 | | | | | | 2,435 | | | | | | 6,708 | | | | | | 6 | | | | | | 1,867 | | | | | | 14,533 | | |
Three Months Ended March 31, 2020
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 294,187 | | | | | $ | 214,155 | | | | | $ | 212,355 | | | | | $ | 17,343 | | | | | $ | 45,319 | | | | | $ | 783,359 | | |
Segment level profit
|
| | | | 23,745 | | | | | | 22,888 | | | | | | 50,283 | | | | | | 5,925 | | | | | | 11,801 | | | | | | 114,642 | | |
Segment assets
|
| | | | 1,115,830 | | | | | | 1,422,689 | | | | | | 1,688,317 | | | | | | 35,654 | | | | | | 674,546 | | | | | | 4,937,036 | | |
Asset impairments
|
| | | | 3,251 | | | | | | 4,232 | | | | | | — | | | | | | — | | | | | | — | | | | | | 7,483 | | |
Capital expenditures
|
| | | | 10,202 | | | | | | 4,949 | | | | | | 2,636 | | | | | | — | | | | | | 3,756 | | | | | | 21,543 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Segment level profit
|
| | | $ | 178,992 | | | | | $ | 114,642 | | |
Less:
|
| | | | | | | | | | | | |
Depreciation, amortization and impairment
|
| | | | 50,414 | | | | | | 59,760 | | |
General and administrative expense
|
| | | | 35,331 | | | | | | 32,803 | | |
(Gain) loss on disposal of assets
|
| | | | (1,650) | | | | | | (8,452) | | |
Pre-opening expenses
|
| | | | 135 | | | | | | 2,023 | | |
Operating income
|
| | | $ | 94,762 | | | | | $ | 28,508 | | |
| | |
Three Months Ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Cash paid for interest
|
| | | $ | 28,545 | | | | | $ | 47,973 | | |
Cash paid (refunded) for income taxes
|
| | | $ | (873) | | | | | $ | 183 | | |
Non-cash investing activites and financing activities: | | | | | | | | | | | | | |
Accounts payable included in (excluded from) property and equipment additions
|
| | | $ | (1,378) | | | | | $ | 458 | | |
Reclassification of mandatory redeemable noncontrolling interest
|
| | | $ | 61 | | | | | $ | 61 | | |
PIK interest added to notes receivable
|
| | | $ | — | | | | | $ | 15 | | |
Non-cash proceeds on GNOG warrant exercises
|
| | | $ | 43,346 | | | | | $ | — | | |
| | |
Page
|
| |||
ARTICLE I
DEFINED TERMS |
| | | | | | |
Section 1.01
Certain Defined Terms
|
| | | | A-3 | | |
Section 1.02
Other Defined Terms
|
| | | | A-13 | | |
Section 1.03
Interpretation and Rules of Construction
|
| | | | A-15 | | |
ARTICLE II
THE TRANSACTIONS |
| | | | | | |
Section 2.01
The TX Merger
|
| | | | A-16 | | |
Section 2.02
The Merger
|
| | | | A-16 | | |
Section 2.03
Closing
|
| | | | A-17 | | |
Section 2.04
Effective Time
|
| | | | A-17 | | |
Section 2.05
Organizational Documents of SPAC Newco.
|
| | | | A-17 | | |
Section 2.06
Post-Closing Merger
|
| | | | A-17 | | |
Section 2.07
Principal offices: Name; Trading Symbol
|
| | | | A-17 | | |
ARTICLE III
EFFECT OF THE TRANSACTIONS |
| | | | | | |
Section 3.01
Effect on Capital Stock
|
| | | | A-18 | | |
Section 3.02
Stock Transfer Books
|
| | | | A-18 | | |
Section 3.03
No Appraisal Rights
|
| | | | A-19 | | |
Section 3.04
Adjustment to Merger Consideration
|
| | | | A-19 | | |
Section 3.05
Payment of Expenses
|
| | | | A-19 | | |
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF FLORIDA |
| | | | | | |
Section 4.01
Organization and Qualification
|
| | | | A-19 | | |
Section 4.02
Due Authorization
|
| | | | A-19 | | |
Section 4.03
Capitalization
|
| | | | A-20 | | |
Section 4.04
Florida Subsidiaries
|
| | | | A-20 | | |
Section 4.05
No Conflict
|
| | | | A-21 | | |
Section 4.06
Governmental Consents and Approvals
|
| | | | A-21 | | |
Section 4.07
Financial Information
|
| | | | A-22 | | |
Section 4.08
Internal Controls
|
| | | | A-22 | | |
Section 4.09
Absence of Changes
|
| | | | A-22 | | |
Section 4.10
Undisclosed Liabilities
|
| | | | A-23 | | |
Section 4.11
Litigation
|
| | | | A-23 | | |
Section 4.12
Information Supplied
|
| | | | A-23 | | |
Section 4.13
Compliance with Laws
|
| | | | A-23 | | |
Section 4.14
Licenses
|
| | | | A-24 | | |
Section 4.15
Intellectual Property; IT; Data Security
|
| | | | A-25 | | |
Section 4.16
Real Property
|
| | | | A-26 | | |
Section 4.17
Employee Benefit Matters
|
| | | | A-27 | | |
Section 4.18
Labor Matters
|
| | | | A-28 | | |
Section 4.19
Taxes
|
| | | | A-29 | | |
| | |
Page
|
| |||
Section 4.20
Material Contracts
|
| | | | A-29 | | |
Section 4.21
Environmental Matters
|
| | | | A-31 | | |
Section 4.22
Brokers
|
| | | | A-31 | | |
Section 4.23
Affiliates
|
| | | | A-31 | | |
Section 4.24
Sufficiency of Assets
|
| | | | A-31 | | |
Section 4.25
No Additional Representations and Warranties
|
| | | | A-31 | | |
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF SPAC, SPAC NEWCO AND MERGER SUB |
| | | | | | |
Section 5.01
Organization and Qualification; Subsidiaries
|
| | | | A-32 | | |
Section 5.02
Due Authorization
|
| | | | A-32 | | |
Section 5.03
Capitalization
|
| | | | A-33 | | |
Section 5.04
No Conflict
|
| | | | A-34 | | |
Section 5.05
Governmental Consents and Approvals
|
| | | | A-35 | | |
Section 5.06
SEC Filings; Financial Information
|
| | | | A-35 | | |
Section 5.07
Absence of Changes
|
| | | | A-36 | | |
Section 5.08
Litigation
|
| | | | A-36 | | |
Section 5.09
Information Supplied
|
| | | | A-36 | | |
Section 5.10
Material Adverse Effect
|
| | | | A-36 | | |
Section 5.11
Compliance with Laws
|
| | | | A-37 | | |
Section 5.12
Title to Property
|
| | | | A-37 | | |
Section 5.13
Employee Benefit Matters
|
| | | | A-37 | | |
Section 5.14
Taxes
|
| | | | A-37 | | |
Section 5.15
SPAC Material Contracts
|
| | | | A-38 | | |
Section 5.16
Valid Issuance
|
| | | | A-39 | | |
Section 5.17
No Shareholder Rights Plan; No Antitakeover Law
|
| | | | A-39 | | |
Section 5.18
Financial Ability; Trust Account
|
| | | | A-39 | | |
Section 5.19
Business Activities
|
| | | | A-40 | | |
Section 5.20
No Discussions
|
| | | | A-41 | | |
Section 5.21
No Outside Reliance
|
| | | | A-41 | | |
Section 5.22
NYSE Market Quotation
|
| | | | A-42 | | |
Section 5.23
Investment Company Act
|
| | | | A-42 | | |
Section 5.24
Affiliate Agreements
|
| | | | A-42 | | |
Section 5.25
PIPE Investment Amount; Subscription Agreements
|
| | | | A-42 | | |
Section 5.26
Brokers
|
| | | | A-43 | | |
Section 5.27
No Additional Representations and Warranties
|
| | | | A-43 | | |
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER |
| | | | | | |
Section 6.01
Conduct of Florida Business Pending the Merger
|
| | | | A-43 | | |
Section 6.02
Conduct of SPAC Business Pending the Merger
|
| | | | A-45 | | |
| | |
Page
|
| |||
ARTICLE VII
ADDITIONAL AGREEMENTS |
| | | | | | |
Section 7.01
Registration Statement; Special Meeting; SPAC Stockholder Approval
|
| | | | A-45 | | |
Section 7.02
No Solicitation of Transactions
|
| | | | A-47 | | |
Section 7.03
Access to Information
|
| | | | A-47 | | |
Section 7.04
Directors’ and Officers’ Indemnification
|
| | | | A-48 | | |
Section 7.05
Regulatory and Other Authorizations; Notices and Consents
|
| | | | A-49 | | |
Section 7.06
Tax Matters
|
| | | | A-50 | | |
Section 7.07
Control of Other Party’s Business
|
| | | | A-51 | | |
Section 7.08
Trust Account
|
| | | | A-51 | | |
Section 7.09
No Claim Against the Trust Account
|
| | | | A-51 | | |
Section 7.10
SPAC NYSE Listing
|
| | | | A-52 | | |
Section 7.11
SPAC Public Filings
|
| | | | A-52 | | |
Section 7.12
PIPE Financing
|
| | | | A-52 | | |
Section 7.13
Section 16 Matters
|
| | | | A-53 | | |
Section 7.14
SPAC Director and Officer Appointments
|
| | | | A-53 | | |
Section 7.15
Confidentiality; Material Non-Public Information
|
| | | | A-53 | | |
Section 7.16
Change of Name; Ticker Symbol
|
| | | | A-54 | | |
Section 7.17
Public Announcements
|
| | | | A-54 | | |
Section 7.18
Support of Transaction
|
| | | | A-54 | | |
Section 7.19
Further Actions.
|
| | | | A-54 | | |
Section 7.20
SPAC Newco Omnibus Incentive Plan
|
| | | | A-54 | | |
Section 7.21
Takeover Statutes
|
| | | | A-54 | | |
Section 7.22
Defense of Litigation
|
| | | | A-55 | | |
ARTICLE VIII
CONDITIONS TO THE MERGER |
| | | | | | |
Section 8.01
Conditions to the Obligations of Each Party
|
| | | | A-55 | | |
Section 8.02
Conditions to the Obligations of SPAC, SPAC Newco and Merger Sub
|
| | | | A-56 | | |
Section 8.03
Conditions to the Obligations of Florida
|
| | | | A-56 | | |
ARTICLE IX
TERMINATION |
| | | | | | |
Section 9.01
Termination
|
| | | | A-57 | | |
Section 9.02
Effect of Termination
|
| | | | A-58 | | |
ARTICLE X
GENERAL PROVISIONS |
| | | | | | |
Section 10.01
Non-Survival of Representations, Warranties, Covenants and Agreements
|
| | | | A-58 | | |
Section 10.02
Notices
|
| | | | A-58 | | |
Section 10.03
Severability
|
| | | | A-59 | | |
Section 10.04
Entire Agreement
|
| | | | A-59 | | |
Section 10.05
Assignment
|
| | | | A-59 | | |
Section 10.06
Amendment
|
| | | | A-59 | | |
Section 10.07
Waiver
|
| | | | A-59 | | |
Section 10.08
No Third-Party Beneficiaries
|
| | | | A-59 | | |
| | |
Page
|
| |||
Section 10.09
Specific Performance
|
| | | | A-60 | | |
Section 10.10
Governing Law
|
| | | | A-60 | | |
Section 10.11
Waiver of Jury Trial
|
| | | | A-60 | | |
Section 10.12
Counterparts
|
| | | | A-61 | | |
Section 10.13
Interpretation
|
| | | | A-61 | | |
Section 10.14
Headings and Captions
|
| | | | A-61 | | |
Exhibits | | | | | | | |
Exhibit A — Form of Separation Agreement
|
| | | | A-1 | | |
Exhibit B — Form of Subscription Agreement
|
| | | | B-1 | | |
Exhibit C — Form of Sponsor Agreement
|
| | | | C-1 | | |
Exhibit D — Form of Registration Rights Agreement
|
| | | | D-1 | | |
Exhibit E — Form of Stockholders Agreement
|
| | | | E-1 | | |
Exhibit F — Form of Lockup Agreement
|
| | | | F-1 | | |
Exhibit G — Form of SPAC Newco A&R Bylaws
|
| | | | G-1 | | |
Exhibit H — Form of SPAC Newco A&R Charter
|
| | | | H-1 | | |
Exhibit I — Form of SPAC Newco Omnibus Incentive Plan
|
| | | | I-1 | | |
Exhibit J — Form of Split-Off Agreement
|
| | | | J-1 | | |
Exhibit K — Agreement and Plan of Merger for the TX Merger
|
| | | | K-1 | | |
Exhibit L — Form of LLC Sub Merger Agreement
|
| | | | L-1 | | |
Defined Term
|
| |
Location of Definition
|
|
Additional Proposal | | |
Section 7.01(d)
|
|
Amendment Proposal | | |
Section 7.01(d)
|
|
Antitrust Remedial Actions | | |
Section 7.05(c)
|
|
Certificate of Merger | | |
Section 2.04
|
|
Closing | | |
Section 2.03
|
|
Florida Affiliate Agreement | | |
Section 4.23
|
|
Confidentiality Agreement | | |
Section 7.15(a)
|
|
Copyrights | | |
Section 1.01
|
|
Effective Time | | |
Section 2.04
|
|
ERISA | | |
Section 4.17(a)
|
|
ERISA Affiliate | | |
Section 4.17(d)
|
|
Florida | | |
Preamble
|
|
Florida Board | | |
Recitals
|
|
Florida Benefit Plan | | |
Section 4.17(a)
|
|
Florida Data Room | | |
Section 1.03(a)
|
|
Florida Distribution Tax Counsel | | |
Section 7.06(b)
|
|
Florida Distribution Tax Opinions | | |
Section 7.06(b)
|
|
Florida Financial Statements | | |
Section 4.07
|
|
Florida IP Contracts | | |
Section 4.20(a)(iv)
|
|
Florida Marks | | |
Section 4.15(c)
|
|
Florida Material Contracts | | |
Section 4.20(a)
|
|
Defined Term
|
| |
Location of Definition
|
|
Florida Merger Tax Counsel | | |
Section 7.06(b)
|
|
Florida Merger Tax Opinion | | |
Section 7.06(b)
|
|
Florida Preliminary Unaudited Financial Statements | | |
Section 4.07
|
|
Florida Real Property Leases | | |
Section 4.20(a)(v)
|
|
Florida Tax Opinions | | |
Section 7.06(b)
|
|
Florida Unaudited Financial Statements | | |
Section 4.07
|
|
Intended Tax Treatment | | |
Recitals
|
|
Interim Period | | |
Section 6.01
|
|
IPO | | |
Section 7.09
|
|
IPO Prospectus | | |
Section 7.09
|
|
LLC Sub | | |
Recitals
|
|
LLC Sub Merger | | |
Recitals
|
|
LLC Sub Merger Agreement | | |
Section 2.06
|
|
Lockup Agreements | | |
Recitals
|
|
Marks | | |
Section 1.01
|
|
Merger | | |
Section 2.02
|
|
Merger Consideration Calculation | | |
Section 3.01(a)
|
|
Merger Sub | | |
Preamble
|
|
Multiemployer Plan | | |
Section 4.17(d)
|
|
NYSE Proposal | | |
Section 7.01(d)
|
|
NYSE Listing Application | | |
Section 7.10(b)
|
|
Offer | | |
Recitals
|
|
Patents | | |
Section 1.01
|
|
PIPE Investment Amount | | |
Section 5.25
|
|
Proposals | | |
Section 7.01(d)
|
|
Registration Rights Agreement | | |
Recitals
|
|
Released Claims | | |
Section 7.09
|
|
Released Parties | | |
Section 7.09
|
|
Required Florida Stockholder Approval | | |
Recitals
|
|
Separation Agreement | | |
Recitals
|
|
Shares | | |
Section 3.01(b)
|
|
SPAC | | |
Preamble
|
|
SPAC Newco A&R Bylaws | | |
Recitals
|
|
SPAC Newco A&R Charter | | |
Recitals
|
|
SPAC Affiliate Agreement | | |
Section 5.24
|
|
SPAC Benefit Plans | | |
Section 5.13
|
|
SPAC Board | | |
Recitals
|
|
SPAC Board Recommendation | | |
Section 7.01(e)
|
|
SPAC Change in Recommendation | | |
Section 7.01(e)
|
|
SPAC Material Contracts | | |
Section 5.15(a)
|
|
SPAC Newco Omnibus Incentive Plan | | |
Recitals
|
|
SPAC Newco Omnibus Incentive Plan Proposal | | |
Section 7.01(d)
|
|
SPAC Stockholder Approval | | |
Section 5.02(b)
|
|
Defined Term
|
| |
Location of Definition
|
|
Special Meeting | | |
Section 5.02(b)
|
|
Split-Off Agreement | | |
Recitals
|
|
Sponsor Agreement | | |
Recitals
|
|
Stockholders Agreement | | |
Recitals
|
|
Subscribers | | |
Recitals
|
|
Subscription Agreements | | |
Recitals
|
|
Surviving Corporation | | |
Section 2.02
|
|
Termination Date | | |
Section 9.01(a)
|
|
Terminating SPAC Breach | | |
Section 9.01(d)
|
|
Terminating Florida Breach | | |
Section 9.01(e)
|
|
Texas Certificate of Merger | | |
Section 2.01
|
|
Third Party Target | | |
Section 5.20
|
|
Trade Secrets | | |
Section 1.01
|
|
Transaction Proposal | | |
Section 7.01(d)
|
|
Trust Account | | |
Section 5.18
|
|
Trust Agreement | | |
Section 5.18
|
|
Trustee | | |
Section 5.18
|
|
TX Merger Effective Time | | |
Section 2.01
|
|
Written Consent | | |
Recitals
|
|
| | |
Page
|
| |||
Article I DEFINITIONS AND INTERPRETATION
|
| | | | 8 | | |
Section 1.1
General
|
| | | | 8 | | |
Section 1.2
References; Interpretation
|
| | | | 16 | | |
Article II THE SEPARATION
|
| | | | 17 | | |
Section 2.1
Restructuring; Transfer of Assets; Assumption of Liabilities
|
| | | | 17 | | |
Section 2.2
Intercompany Accounts and Intercompany Agreements
|
| | | | 18 | | |
Section 2.3
Limitation of Liability
|
| | | | 18 | | |
Section 2.4
Specified Consents
|
| | | | 19 | | |
Section 2.5
Treatment of Shared Contracts
|
| | | | 20 | | |
Section 2.6
Disclaimer of Representations and Warranties
|
| | | | 21 | | |
Section 2.7
Cash Management
|
| | | | 22 | | |
Section 2.8
Insurance
|
| | | | 22 | | |
Section 2.9
Ancillary Agreements
|
| | | | 22 | | |
Section 2.10
Issuance of SpinCo Common Units
|
| | | | 23 | | |
Article III THE DISTRIBUTION
|
| | | | 23 | | |
Section 3.1
Distribution
|
| | | | 23 | | |
Section 3.2
Conditions to Distribution
|
| | | | 23 | | |
Article IV CERTAIN COVENANTS
|
| | | | 23 | | |
Section 4.1
Further Assurances
|
| | | | 23 | | |
Section 4.2
Removal of Florida Assets
|
| | | | 23 | | |
Section 4.3
Florida Marks
|
| | | | 24 | | |
Article V INDEMNIFICATION
|
| | | | 24 | | |
Section 5.1
Release of Pre-Distribution Claims
|
| | | | 24 | | |
Section 5.2
Indemnification by Florida
|
| | | | 25 | | |
Section 5.3
Indemnification by SpinCo
|
| | | | 26 | | |
Section 5.4
Procedures for Indemnification
|
| | | | 26 | | |
Section 5.5
Indemnification Obligations Net of Insurance Proceeds and Other Amounts
|
| | | | 27 | | |
Section 5.6
Contribution
|
| | | | 28 | | |
Section 5.7
Additional Matters; Survival of Indemnities
|
| | | | 28 | | |
Article VI PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE
|
| | | | 29 | | |
Section 6.1
Generally
|
| | | | 29 | | |
Section 6.2
Financial Statements and Accounting
|
| | | | 30 | | |
Section 6.3
Witness Services
|
| | | | 30 | | |
Section 6.4
Reimbursement
|
| | | | 31 | | |
Section 6.5
Retention of Information
|
| | | | 31 | | |
Section 6.6
Confidentiality
|
| | | | 31 | | |
Section 6.7
Privilege Matters
|
| | | | 32 | | |
Section 6.8
Ownership of Information
|
| | | | 33 | | |
Section 6.9
Other Agreements
|
| | | | 33 | | |
Defined Term
|
| |
Section
|
|
Action | | |
1.1(1)
|
|
Additional Insured Members | | |
2.8(a)
|
|
Affiliate | | |
1.1(2)
|
|
Agreement | | |
Preamble
|
|
Ancillary Agreement | | |
1.1(3)
|
|
Appointed Representative | | |
7.1(a)
|
|
Assets | | |
1.1(4)
|
|
Assume | | |
2.1(b)(iii)
|
|
Board | | |
Recitals
|
|
Business Day | | |
1.1(5)
|
|
Claiming Party | | |
5.4(b)
|
|
Closing | | |
1.1(6)
|
|
Code | | |
1.1(7)
|
|
Confidential Information | | |
1.1(8)
|
|
Confidentiality Agreement | | |
1.1(9)
|
|
Consents | | |
1.1(10)
|
|
Contract | | |
1.1(11)
|
|
control | | |
1.1(12)
|
|
Conveyance and Assumption Instruments | | |
1.1(13)
|
|
Designated Florida Subsidiaries | | |
1.1(14)
|
|
Direct Claim | | |
5.4(a)(ii)
|
|
Disclosure Letters | | |
1.1(15)
|
|
Distribution | | |
Recitals
|
|
Distribution Date | | |
1.1(16)
|
|
Distribution Effective Time | | |
1.1(17)
|
|
Exchange Act | | |
1.1(18)
|
|
Expenses | | |
8.5
|
|
Florida | | |
Preamble
|
|
Florida Assets | | |
1.1(19)
|
|
Florida Business | | |
1.1(20)
|
|
Florida Cash and Cash Equivalents | | |
1.1(21)
|
|
Florida Claim | | |
5.3
|
|
Florida Common Stock | | |
1.1(21)
|
|
Florida Designees | | |
1.1(23)
|
|
Florida Facilities | | |
1.1(24)
|
|
Florida Group | | |
1.1(25)
|
|
Florida Indemnitees | | |
1.1(26)
|
|
Florida Liabilities | | |
1.1(27)
|
|
Florida Marks | | |
1.1(28)
|
|
Gaming Approvals | | |
1.1(29)
|
|
Governmental Authority | | |
1.1(30)
|
|
Defined Term
|
| |
Section
|
|
Group | | |
1.1(31)
|
|
Indebtedness | | |
1.1(32)
|
|
Indemnifiable Losses | | |
1.1(33)
|
|
Indemnifying Party | | |
1.1(34)
|
|
Indemnitee | | |
1.1(35)
|
|
Indemnity Payment | | |
5.5(a)
|
|
Insurance Proceeds | | |
1.1(36)
|
|
Intellectual Property | | |
1.1(37)
|
|
Intercompany Account | | |
1.1(38)
|
|
Intercompany Agreement | | |
1.1(39)
|
|
Internal Contribution | | |
1.1(40)
|
|
Internal Reorganization | | |
1.1(41)
|
|
Law | | |
1.1(42)
|
|
Liabilities | | |
1.1(43)
|
|
Marks | | |
1.1(44)
|
|
Merger | | |
Recitals
|
|
Merger Agreement | | |
Recitals
|
|
Merger Effective Time | | |
1.1(45)
|
|
Merger Sub | | |
Recitals
|
|
Organizational Documents | | |
1.1(46)
|
|
Partial Payoff | | |
Recitals
|
|
Party | | |
Preamble
|
|
Person | | |
1.1(47)
|
|
Policies | | |
1.1(48)
|
|
Prime Rate | | |
1.1(49)
|
|
Privilege | | |
6.7(a)
|
|
Privileged Information | | |
6.7(a)
|
|
Record Date | | |
1.1(50)
|
|
Record Holders | | |
1.1(51)
|
|
Registered | | |
1.1(52)
|
|
Representatives | | |
1.1(53)
|
|
Restructuring Steps Memo | | |
1.1(54)
|
|
Retained Florida Information | | |
1.1(55)
|
|
Retained SpinCo Information | | |
1.1(56)
|
|
SEC | | |
1.1(57)
|
|
Securities Act | | |
1.1(58)
|
|
Separation | | |
Recitals
|
|
Separation Agreement Disputes | | |
7.1(b)
|
|
Shared Contract | | |
1.1(59)
|
|
Shared Information | | |
1.1(60)
|
|
Shared Policies | | |
2.8(a)
|
|
Shared Policy Separation Date | | |
2.8(b)
|
|
Software | | |
1.1(61)
|
|
Defined Term
|
| |
Section
|
|
SPAC | | |
Recitals
|
|
SPAC Stockholder Approval | | |
1.1(62)
|
|
Specified Consent | | |
2.4(a)
|
|
SpinCo | | |
Preamble
|
|
SpinCo Assets | | |
1.1(63)
|
|
SpinCo Business | | |
1.1(64)
|
|
SpinCo Cash and Cash Equivalents | | |
1.1(65)
|
|
SpinCo Claim | | |
5.2
|
|
SpinCo Common Unit | | |
1.1(66)
|
|
SpinCo Contractor | | |
1.1(67)
|
|
SpinCo Designees | | |
1.1(68)
|
|
SpinCo Employee | | |
1.1(69)
|
|
SpinCo Facilities | | |
1.1(70)
|
|
SpinCo Group | | |
1.1(71)
|
|
SpinCo Indemnitees | | |
1.1(72)
|
|
SpinCo Liabilities | | |
1.1(73)
|
|
Split-Off | | |
Recitals
|
|
Split-Off Effective Time | | |
1.1(74)
|
|
SplitCo | | |
Recitals
|
|
SplitCo Assets | | |
1.1(75)
|
|
SplitCo Business | | |
1.1(76)
|
|
SplitCo Group | | |
1.1(77)
|
|
SplitCo Liabilities | | |
1.1(78)
|
|
Subsidiary | | |
1.1(79)
|
|
Tax | | |
1.1(80)
|
|
Tax Benefit | | |
1.1(81)
|
|
Tax Contest | | |
1.1(82)
|
|
Tax Matters Agreement | | |
1.1(83)
|
|
Tax Records | | |
1.1(84)
|
|
Tax Return | | |
1.1(85)
|
|
Term Loan Agreement | | |
Recitals
|
|
Third Party | | |
1.1(86)
|
|
Third Party Claim | | |
5.4(b)
|
|
Third Party Proceeds | | |
5.5(a)
|
|
Trade Secrets | | |
1.1(87)
|
|
Transaction Agreement | | |
1.1(88)
|
|
Transfer | | |
2.1(b)(i)
|
|
Transferred Leased Real Property | | |
1.1(89)
|
|
Transferred Owned Real Property | | |
1.1(90)
|
|
| | |
Page
|
| |||
Article I DEFINITIONS AND INTERPRETATION
|
| | | | 2 | | |
Section 1.1
General
|
| | | | 2 | | |
Section 1.2
References; Interpretation
|
| | | | 10 | | |
Article II THE SPLIT-OFF SEPARATION
|
| | | | 11 | | |
Section 2.1
Restructuring; Transfer of Assets; Assumption of Liabilities
|
| | | | 11 | | |
Section 2.2
Intercompany Accounts and Intercompany Agreements
|
| | | | 12 | | |
Section 2.3
Limitation of Liability
|
| | | | 13 | | |
Section 2.4
Specified Consents
|
| | | | 13 | | |
Section 2.5
Treatment of Shared Contracts.
|
| | | | 15 | | |
Section 2.6
Disclaimer of Representations and Warranties
|
| | | | 15 | | |
Section 2.7
Cash Management
|
| | | | 16 | | |
Section 2.8
Insurance
|
| | | | 16 | | |
Section 2.9
Ancillary Agreements
|
| | | | 17 | | |
Article III THE SPLIT-OFF
|
| | | | 17 | | |
Section 3.1
Split-Off
|
| | | | 17 | | |
Section 3.2
Conditions to Split-Off
|
| | | | 17 | | |
Article IV CERTAIN COVENANTS
|
| | | | 18 | | |
Section 4.1
Further Assurances
|
| | | | 18 | | |
Section 4.2
Removal of Company Assets
|
| | | | 18 | | |
Section 4.3
Company and SplitCo Marks
|
| | | | 18 | | |
Section 4.4
Prepaid Expense True-Up
|
| | | | 18 | | |
Article V INDEMNIFICATION
|
| | | | 19 | | |
Section 5.1
Release of Pre-Split-Off Claims
|
| | | | 19 | | |
Section 5.2
Indemnification by Company
|
| | | | 20 | | |
Section 5.3
Indemnification by SplitCo
|
| | | | 20 | | |
Section 5.4
Procedures for Indemnification
|
| | | | 20 | | |
Section 5.5
Indemnification Obligations Net of Insurance Proceeds and Other Amounts
|
| | | | 22 | | |
Section 5.6
Contribution
|
| | | | 23 | | |
Section 5.7
Additional Matters; Survival of Indemnities
|
| | | | 23 | | |
Article VI PRESERVATION OF RECORDS; ACCESS TO INFORMATION; CONFIDENTIALITY; PRIVILEGE
|
| | | | 24 | | |
Section 6.1
Generally
|
| | | | 24 | | |
Section 6.2
Financial Statements and Accounting
|
| | | | 25 | | |
Section 6.3
Witness Services
|
| | | | 25 | | |
Section 6.4
Reimbursement
|
| | | | 25 | | |
Section 6.5
Retention of Information
|
| | | | 25 | | |
Section 6.6
Confidentiality
|
| | | | 26 | | |
Section 6.7
Privilege Matters
|
| | | | 26 | | |
Section 6.8
Ownership of Information
|
| | | | 28 | | |
Section 6.9
Other Agreements
|
| | | | 28 | | |
| | |
Page
|
| |||
Article VII DISPUTE RESOLUTION
|
| | | | 28 | | |
Section 7.1
Dispute Resolution Procedures
|
| | | | 28 | | |
Article VIII MISCELLANEOUS
|
| | | | 28 | | |
Section 8.1
Entire Agreement; Construction
|
| | | | 28 | | |
Section 8.2
Transaction Agreements
|
| | | | 29 | | |
Section 8.3
Counterparts
|
| | | | 29 | | |
Section 8.4
Survival of Agreements
|
| | | | 29 | | |
Section 8.5
Expenses
|
| | | | 29 | | |
Section 8.6
Notices
|
| | | | 29 | | |
Section 8.7
Amendment and Waivers
|
| | | | 30 | | |
Section 8.8
Termination
|
| | | | 30 | | |
Section 8.9
Assignment
|
| | | | 30 | | |
Section 8.10
Successors and Assigns
|
| | | | 30 | | |
Section 8.11
Payment Terms
|
| | | | 30 | | |
Section 8.12
Subsidiaries
|
| | | | 31 | | |
Section 8.13
Third Party Beneficiaries
|
| | | | 31 | | |
Section 8.14
Exhibit and Schedules
|
| | | | 31 | | |
Section 8.15
Governing Law
|
| | | | 31 | | |
Section 8.16
Waiver of Jury Trial
|
| | | | 31 | | |
Section 8.17
Specific Performance
|
| | | | 32 | | |
Section 8.18
Severability
|
| | | | 32 | | |
Section 8.19
Interpretation
|
| | | | 32 | | |
Section 8.20
No Duplication; No Double Recovery
|
| | | | 32 | | |
Section 8.21
No Admission of Liability
|
| | | | 32 | | |
Section 8.22
Headings and Captions
|
| | | | 32 | | |
Section 8.23
Plan of Reorganization
|
| | | | 32 | | |
| Schedule 1.1(26) | | | Designated Company Subsidiaries | |
| Schedule 1.1(61) | | | Specified Intercompany Agreements | |
| Schedule 1.1(66)(i) | | | SplitCo Assets | |
| Schedule 1.1(77)(v) | | | SplitCo Liabilities | |
| Schedule 1.1(89)(i) | | | Transferred Leased Real Property | |
| Schedule 1.1(90)(i) | | | Transferred Owned Real Property | |
| Schedule 2.3 | | | Post-Split-Off Liabilities | |
| Schedule 2.4(a) | | | Third Party Consents | |
| Schedule 4.3 | | |
SplitCo Marks
|
|
| Exhibit A | | | Split-Off Restructuring Steps Memo | |
Defined Term
|
| |
Section
|
|
Action | | |
1.1(1)
|
|
Additional Insured Members | | |
2.8(a)
|
|
Affiliate | | |
1.1(2)
|
|
Agreement | | |
Preamble
|
|
Ancillary Agreement | | |
1.1(3)
|
|
Appointed Representative | | |
7.1(a)
|
|
Assets | | |
1.1(4)
|
|
Assume | | |
2.1(b)(iii)
|
|
Board | | |
Recitals
|
|
Business Day | | |
1.1(5)
|
|
Claiming Party | | |
5.4(b)
|
|
Closing | | |
1.1(6)
|
|
Code | | |
1.1(7)
|
|
Company | | |
Preamble
|
|
Company Assets | | |
1.1(8)
|
|
Company Business | | |
1.1(9)
|
|
Company Cash and Cash Equivalents | | |
1.1(10)
|
|
Company Claim | | |
5.3
|
|
Company Class A Common Stock | | |
1.1(11)
|
|
Company Class B Common Stock | | |
1.1(12)
|
|
Company Common Stock | | |
1.1(13)
|
|
Company Designees | | |
1.1(14)
|
|
Company Facilities | | |
1.1(15)
|
|
Company Group | | |
1.1(16)
|
|
Company Indemnitees | | |
1.1(17)
|
|
Company Liabilities | | |
1.1(18)
|
|
Company Marks | | |
1.1(19)
|
|
Confidential Information | | |
1.1(20)
|
|
Confidentiality Agreement | | |
1.1(21)
|
|
Consents | | |
1.1(22)
|
|
Contract | | |
1.1(23)
|
|
control | | |
1.1(24)
|
|
Conveyance and Assumption Instruments | | |
1.1(25)
|
|
Designated Company Subsidiaries | | |
1.1(26)
|
|
Direct Claim | | |
5.4(a)(ii)
|
|
Disclosure Letters | | |
1.1(27)
|
|
Encumbrance | | |
1.1(28)
|
|
Exchange Act | | |
1.1(29)
|
|
Expenses | | |
8.5
|
|
First Merger | | |
Recitals
|
|
Florida | | |
Recitals
|
|
Defined Term
|
| |
Section
|
|
Gaming Approvals | | |
1.1(30)
|
|
Governmental Authority | | |
1.1(31)
|
|
Group | | |
1.1(32)
|
|
Indebtedness | | |
1.1(33)
|
|
Indemnifiable Losses | | |
1.1(34)
|
|
Indemnifying Party | | |
1.1(35)
|
|
Indemnitee | | |
1.1(36)
|
|
Indemnity Payment | | |
5.5(a)
|
|
Insurance Proceeds | | |
1.1(37)
|
|
Intellectual Property | | |
1.1(38)
|
|
Intercompany Account | | |
1.1(39)
|
|
Intercompany Agreement | | |
1.1(40)
|
|
Internal Split-Off Contribution | | |
1.1(41)
|
|
Landry’s | | |
Recitals
|
|
Law | | |
1.1(42)
|
|
Liabilities | | |
1.1(43)
|
|
LLC Sub | | |
Recitals
|
|
Marks | | |
1.1(44)
|
|
Mergers | | |
Recitals
|
|
Merger Agreement | | |
Recitals
|
|
Merger Sub | | |
Recitals
|
|
Organizational Documents | | |
1.1(45)
|
|
Partial Payoff | | |
1.1(46)
|
|
Party | | |
Preamble
|
|
Permitted Encumbrances | | |
1.1(47)
|
|
Person | | |
1.1(48)
|
|
Policies | | |
1.1(49)
|
|
Pre-Closing Steps | | |
1.1(50)
|
|
Prime Rate | | |
1.1(51)
|
|
Privilege | | |
6.7(a)
|
|
Privileged Information | | |
6.7(a)
|
|
Registered | | |
1.1(52)
|
|
Representatives | | |
1.1(53)
|
|
Retained Company Information | | |
1.1(54)
|
|
Retained SplitCo Information | | |
1.1(55)
|
|
SEC | | |
1.1(56)
|
|
Second Merger | | |
Recitals
|
|
Securities Act | | |
1.1(57)
|
|
Shared Contract | | |
1.1(58)
|
|
Shared Information | | |
1.1(59)
|
|
Shared Policies | | |
2.8(a)
|
|
Shared Policy Separation Date | | |
2.8(b)
|
|
Software | | |
1.1(60)
|
|
Defined Term
|
| |
Section
|
|
Specified Consent | | |
2.4(a)
|
|
Specified Intercompany Agreements | | |
1.1(61)
|
|
Split-Off | | |
Recitals
|
|
Split-Off Agreement Disputes | | |
7.1(b)
|
|
Split-Off Date | | |
1.1(62)
|
|
Split-Off Effective Time | | |
1.1(63)
|
|
Split-Off Internal Reorganization | | |
1.1(64)
|
|
Split-Off Restructuring Steps Memo | | |
1.1(65)
|
|
Split-Off Separation | | |
Recitals
|
|
SplitCo | | |
Preamble
|
|
SplitCo Assets | | |
1.1(66)
|
|
SplitCo Business | | |
1.1(67)
|
|
SplitCo Cash and Cash Equivalents | | |
1.1(68)
|
|
SplitCo Claim | | |
5.2
|
|
SplitCo Common Stock | | |
1.1(69)
|
|
SplitCo Contractor | | |
1.1(70)
|
|
SplitCo Designees | | |
1.1(71)
|
|
SplitCo Employee | | |
1.1(72)
|
|
SplitCo Facilities | | |
1.1(73)
|
|
SplitCo Financial Statements | | |
1.1(74)
|
|
SplitCo Group | | |
1.1(75)
|
|
SplitCo Indemnitees | | |
1.1(76)
|
|
SplitCo Liabilities | | |
1.1(77)
|
|
SplitCo Marks | | |
1.1(78)
|
|
Subsidiary | | |
1.1(79)
|
|
Tax | | |
1.1(80)
|
|
Tax Benefit | | |
1.1(81)
|
|
Tax Contest | | |
1.1(82)
|
|
Tax Matters Agreement | | |
1.1(83)
|
|
Tax Records | | |
1.1(84)
|
|
Tax Return | | |
1.1(85)
|
|
Term Loan Agreement | | |
Recitals
|
|
Third Party | | |
1.1(86)
|
|
Third Party Claim | | |
5.4(b)
|
|
Third Party Proceeds | | |
5.5(a)
|
|
Trade Secrets | | |
1.1(87)
|
|
Transaction Agreement | | |
1.1(88)
|
|
Transfer | | |
2.1(b)(i)
|
|
Transferred Leased Real Property | | |
1.1(89)
|
|
Transferred Owned Real Property | | |
1.1(90)
|
|
| | | | FAST ACQUISITION CORP. | |
| | | |
By:
Name: Sandy Beall
Title: Chief Executive Officer |
|
| | | | FAST MERGER CORP. | |
| | | |
By:
Name: Sandy Beall
Title: President |
|
| | |
Page
|
| |||
Article I – Corporate Offices
|
| | | | F-4 | | |
1.1
Registered Office
|
| | | | F-4 | | |
1.2
Other Offices
|
| | | | F-4 | | |
Article II – Meetings of Stockholders
|
| | | | F-4 | | |
2.1
Place of Meetings
|
| | | | F-4 | | |
2.2
Annual Meeting
|
| | | | F-4 | | |
2.3
Special Meeting
|
| | | | F-4 | | |
2.4
Advance Notice Procedures for Business Brought before a Meeting
|
| | | | F-4 | | |
2.5
Advance Notice Procedures for Nominations of Directors
|
| | | | F-7 | | |
2.6
Notice of Stockholders’ Meetings; Remote Communications
|
| | | | F-10 | | |
2.7
Manner of Giving Notice; Affidavit of Notice
|
| | | | F-11 | | |
2.8
Quorum
|
| | | | F-11 | | |
2.9
Adjourned Meeting; Notice
|
| | | | F-11 | | |
2.10
Conduct of Business
|
| | | | F-11 | | |
2.11
Voting
|
| | | | F-12 | | |
2.12
Record Date for Stockholder Meetings and Other Purposes
|
| | | | F-12 | | |
2.13
Proxies
|
| | | | F-12 | | |
2.14
List of Stockholders Entitled to Vote
|
| | | | F-13 | | |
2.15
Inspectors of Election
|
| | | | F-13 | | |
Article III – Directors
|
| | | | F-14 | | |
3.1
Powers
|
| | | | F-14 | | |
3.2
Number of Directors
|
| | | | F-14 | | |
3.3
Election, Qualification and Term of Office of Directors
|
| | | | F-14 | | |
3.4
Resignation and Vacancies
|
| | | | F-14 | | |
3.5
Place of Meetings; Meetings by Telephone
|
| | | | F-14 | | |
3.6
Regular Meetings
|
| | | | F-14 | | |
3.7
Special Meetings; Notice
|
| | | | F-14 | | |
3.8
Quorum
|
| | | | F-15 | | |
3.9
Action by Written Consent without a Meeting
|
| | | | F-15 | | |
3.10
Fees and Compensation of Directors
|
| | | | F-15 | | |
3.11
Remote Meetings
|
| | | | F-15 | | |
3.12
Removal of Directors
|
| | | | F-15 | | |
Article IV – Committees
|
| | | | F-16 | | |
4.1
Committees of Directors
|
| | | | F-16 | | |
4.2
Committee Minutes
|
| | | | F-16 | | |
4.3
Meetings and Actions of Committees
|
| | | | F-16 | | |
Article V – Officers
|
| | | | F-17 | | |
5.1
Officers
|
| | | | F-17 | | |
5.2
Appointment of Officers
|
| | | | F-17 | | |
5.3
Subordinate Officers
|
| | | | F-17 | | |
5.4
Removal and Resignation of Officers
|
| | | | F-17 | | |
| | |
Page
|
| |||
5.5
Vacancies in Offices
|
| | | | F-17 | | |
5.6
Representation of Shares of Other Corporations
|
| | | | F-17 | | |
5.7
Authority and Duties of Officers
|
| | | | F-18 | | |
Article VI – Records
|
| | | | F-18 | | |
Article VII – General Matters
|
| | | | F-18 | | |
7.1
Execution of Corporate Contracts and Instruments
|
| | | | F-18 | | |
7.2
Stock Certificates
|
| | | | F-18 | | |
7.3
Lost Certificates
|
| | | | F-18 | | |
7.4
Shares Without Certificates
|
| | | | F-18 | | |
7.5
Construction; Definitions
|
| | | | F-19 | | |
7.6
Dividends
|
| | | | F-19 | | |
7.7
Fiscal Year
|
| | | | F-19 | | |
7.8
Seal
|
| | | | F-19 | | |
7.9
Transfer of Stock
|
| | | | F-19 | | |
7.10
Stock Transfer Agreements
|
| | | | F-19 | | |
7.11
Registered Stockholders
|
| | | | F-19 | | |
7.12
Waiver of Notice
|
| | | | F-20 | | |
7.13
Inconsistent Provisions; Changes in Texas Law.
|
| | | | F-20 | | |
Article VIII – Amendments
|
| | | | F-20 | | |
Article IX – Definitions
|
| | | | F-20 | | |
| | | | FAST ACQUISITION CORP. | |
| | | |
By:
Name:
|
|
| | | |
Title:
|
|
| | | | Address for Notices: | |
| | | |
3 Minetta Street
New York, New York 10012 |
|
| | | | FAST MERGER CORP. | |
| | | |
By:
Name:
Title: |
|
| | | | Address for Notices: | |
| | | |
3 Minetta Street
New York, New York 10012 |
|
| | | | SUBSCRIBER: | |
| | | |
Print
Name:
|
|
| | | |
By:
Name:
Title: |
|
| | | | Address for Notices: | |
| | | |
|
|
| | | |
|
|
| | | | Name in which shares are to be registered: | |
| | | |
|
|
|
Number of Subscribed Shares subscribed for:
|
| |
|
| |||
|
Price Per Subscribed Share:
|
| | | $ | 10.00 | | |
|
Aggregate Purchase Price:
|
| | | $ | | |
| | |
Page
|
| |||
Article I.
INTRODUCTORY MATTERS
|
| | | | H-1 | | |
Section 1.01
Defined Terms
|
| | | | H-1 | | |
Section 1.02
Construction
|
| | | | H-3 | | |
Article II.
CORPORATE GOVERNANCE MATTERS
|
| | | | H-4 | | |
Section 2.01
Election of Directors
|
| | | | H-4 | | |
Section 2.02
Other Rights of Sponsor Designee
|
| | | | H-5 | | |
Section 2.03
Compliance of Sponsor Designee
|
| | | | H-5 | | |
Article III.
GENERAL PROVISIONS
|
| | | | H-5 | | |
Section 3.01
Effectiveness; Termination
|
| | | | H-5 | | |
Section 3.02
Notices
|
| | | | H-5 | | |
Section 3.03
Amendment; Waiver
|
| | | | H-5 | | |
Section 3.04
Further Assurances
|
| | | | H-6 | | |
Section 3.05
Assignment
|
| | | | H-6 | | |
Section 3.06
Third Parties
|
| | | | H-6 | | |
Section 3.07
Governing Law
|
| | | | H-6 | | |
Section 3.08
Jurisdiction; Waiver of Jury Trial
|
| | | | H-6 | | |
Section 3.09
Specific Performance
|
| | | | H-7 | | |
Section 3.10
Entire Agreement
|
| | | | H-7 | | |
Section 3.11
Severability
|
| | | | H-7 | | |
Section 3.12
Table of Contents, Headings and Captions
|
| | | | H-7 | | |
Section 3.13
Counterparts
|
| | | | H-7 | | |
Section 3.14
No Recourse
|
| | | | H-7 | | |
| If to the Sponsor, to: | | |||
|
FAST Acquisition Corp.
3 Minetta Street New York, NY 10012 |
| |||
| Attn: | | | Sandy Beall and Garrett Schreiber | |
| Email: | | | sandy@Beallinvestmentpartners.com and gs@andvest.co | |
| with a copy to (which shall not constitute notice): | | |||
|
Winston & Strawn LLP
200 Park Avenue New York, NY 10166 |
| |||
| Attn: | | | Brad Vaiana and Jason Osborn | |
| Email: | | | BVaiana@winston.com and JOsborn@winston.com | |
| FAST ACQUISITION CORP. | | |||
|
/s/ Sandy Beall
Name: Sandy Beall
Title: Chief Executive Officer |
| |
| FAST SPONSOR, LLC | | |||
|
/s/ William Douglas Jacob
Name: William Douglas Jacob
Title: Manager |
| |
| | | | TILMAN J. FERTITTA | |
| | | |
By:
/s/ Tilman J. Fertitta
|
|
| | | | [NEW STOCKHOLDER PARTY] | |
| | | |
By:
Name:
Title: |
|
| | | | FERTITTA ENTERTAINMENT, INC. | |
| | | |
By:
Name:
Title: |
|
| | | | Sincerely, | |
| | | | FAST SPONSOR, LLC | |
| | | |
/s/ William Douglas Jacob
Name: William Douglas Jacob Title: Manager
|
|
| | | |
/s/ William Douglas Jacob
William Douglas Jacob
|
|
| | | |
/s/ Sandy Beall
Sandy Beall
|
|
| | | |
/s/ Kevin Reddy
Kevin Reddy
|
|
| | | |
/s/ Garrett Schreiber
Garrett Schreiber
|
|
| | | |
/s/ Todd Higgins
Todd Higgins
|
|
| | | |
/s/ Kimberly Grant
Kimberly Grant
|
|
| | | |
/s/ Ramin Arani
Ramin Arani
|
|
| | | |
/s/ Alice Eilliot
Alice Eilliot
|
|
| | | |
/s/ Sanjay Chadda
Sanjay Chadda
|
|
| | | |
/s/ Steve Kassin
Steve Kassin
|
|
| By: | | |
/s/ Sandy Beall
Name: Sandy Beall
Title: Chief Executive Officer |
| | | |
| By: | | |
/s/ Tilman J. Fertitta
Name: Tilman J. Fertitta
Title: Chief Executive Officer |
| | | |
Sponsor
|
| |
Founder
Shares |
| |
Private
Placement Warrants |
| ||||||
FAST Sponsor, LLC
|
| | | | 5,000,000 | | | | | | 6,000,000 | | |
Total | | | | | 5,000,000 | | | | | | 6,000,000 | | |
|
Exhibit
|
| |
Description
|
|
|
2.1†
|
| | Agreement and Plan of Merger, dated as of February 1, 2021, by and among FAST Acquisition Corp., Fertitta Entertainment, Inc., FAST Merger Corp., and FAST Merger Sub Inc. (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex A). | |
| 2.2† | | | Amendment No. 1 to Agreement and Plan of Merger, dated as of June 30, 2021, by and among Fertitta Entertainment, Inc., FAST Acquisition Corp., FAST Merger Corp. and FAST Merger Sub Inc. (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex B). | |
|
3.1
|
| | Certificate of Incorporation of FAST Merger Corp. | |
|
3.2
|
| | | |
|
3.3
|
| | Form of Amended and Restated Articles of Incorporation of New FEI (included as Annex E to this proxy statement/prospectus). | |
|
3.4
|
| | Form of Amended and Restated Bylaws of New FEI (included as Annex F to this proxy statement/prospectus). | |
|
4.1**
|
| | Specimen Class A Common Stock Certificate. | |
|
4.2
|
| | Warrant Agreement, dated as of August 20, 2020, between the Registrant and Continental Stock Transfer & Trust Company (incorporated by reference to Exhibit 4.1 of FAST Acquisition Corp.’s Current Report on Form 8-K filed on August 26, 2020). | |
|
5.1**
|
| | Opinion of White & Case LLP as to the validity of the securities being registered. | |
|
8.1**
|
| | Opinion of White & Case LLP regarding certain federal income tax matters. | |
| 10.1 | | | Form of Fertitta Entertainment, Inc. 2021 Incentive Award Plan (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex L). | |
| 10.2 | | | Form of Subscription Agreement, dated as of February 1, 2021, by and among FAST Acquisition Corp., FAST Merger Corp. and the subscribers party thereto (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex G). | |
| 10.3 | | | Amended and Restated Registration Rights Agreement, dated as of February 1, 2021, by and among FAST Acquisition Corp., FAST Sponsor, LLC, FAST Merger Corp. and the certain equityholders of Fertitta Entertainment, Inc. as set forth on Schedule A thereto (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex I). | |
| 10.4 | | | Stockholders Agreement, dated as of February 1, 2021, by and among FAST Acquisition Corp, FAST Merger Corp., FAST Sponsor, LLC and Tilman J. Fertitta (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex H). | |
| 10.5 | | | Sponsor Agreement, dated as of February 1, 2021, by and among FAST Sponsor, LLC, FAST Acquisition Corp. and Fertitta Entertainment, Inc. (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex K). | |
| 10.6 | | | Lockup Agreement, dated as of February 1, 2021, by and among FAST Acquisition Corp., FAST Merger Corp. and Tilman J. Fertitta (attached to the proxy statement/prospectus which forms a part of this registration statement as Annex J). | |
| 10.7** | | | Fertitta Entertainment, Inc. Amended and Restated Deferred Compensation Plan | |
| 23.1 | | | | |
| 23.2 | | | Consent of Grant Thornton LLP.. | |
| 23.3 | | | Consent of White & Case LLP (included in Exhibit 5.1 hereto). | |
| 23.4 | | | Consent of White & Case LLP (included in Exhibit 8.1 hereto). | |
| 24.1 | | | | |
| 99.1** | | | Form of Preliminary Proxy Card. | |
|
Exhibit
|
| |
Description
|
|
| 99.2 | | | | |
| 99.3 | | | | |
| 99.4 | | | | |
| 99.5 | | | | |
| 99.6 | | | | |
| 99.7 | | | |
| | | | FAST MERGER CORP. | | |||
| | | | By: | | |
/s/ Sandy Beall
Sandy Beall
Chief Executive Officer |
|
|
Name
|
| |
Title
|
| |
Date
|
|
|
/s/ Sandy Beall
Sandy Beall
|
| |
Chief Executive Officer
(Principal Executive Officer) |
| |
August 2, 2021
|
|
|
/s/ Garrett Schreiber
Garrett Schreiber
|
| |
Chief Financial Officer
(Principal Financial and Accounting Officer) |
| |
August 2, 2021
|
|
Exhibit 3.1
Corporations Section P.O.Box 13697 Austin, Texas 78711-3697
|
|
Ruth R. Hughs Secretary of State
|
Office of the Secretary of State
CERTIFICATE OF FILING
OF
FAST Merger Corp.
File Number: 803908114
The undersigned, as Secretary of State of Texas, hereby certifies that a Certificate of Formation for the above named Domestic For-Profit Corporation has been received in this office and has been found to conform to the applicable provisions of law.
ACCORDINGLY, the undersigned, as Secretary of State, and by virtue of the authority vested in the secretary by law, hereby issues this certificate evidencing filing effective on the date shown below.
The issuance of this certificate does not authorize the use of a name in this state in violation of the rights of another under the federal Trademark Act of 1946, the Texas trademark law, the Assumed Business or Professional Name Act, or the common law.
Dated: 01/20/2021
Effective: 01/20/2021
|
|
/s/ Ruth R. Hughs | |
Ruth R. Hughs | |
Secretary of State |
Come visit us on the internet at https://www.sos.texas.gov/
Phone: (512) 463-5555 | Fax: (512) 463-5709 | Dial: 7-1-1 for Relay Services |
Prepared by: Elizabeth "Annie" Denton | TID: 10306 | Document: 1021776360002 |
Filing#:803908114 Document#:1021776360002 Filed On 1/20/2021 received by Upload
Form 201 (Revised 05/11)
Submit in duplicate to: Secretary of State P.O. Box 13697 Austin, TX 78711-3697 512 463-5555 FAX: 512/463-5709 Filing FEE: $300 |
Certificate of Formation For-Profit Corporation |
This space reserved for office use. |
Article 1 - Entity Name and Type
The filing entity being formed is a for-profit corporation. The name of the entity is:
FAST Merger Corp.
The name must contain the word “corporation,” “company,” “incorporated,” “limited” or an abbreviation of one of these terms.
Article 2 - Registered Agent and Registered Office
(See instructions. Select and complete either A or B complete C.)
x A. The initial registered agent is an organization (cannot be entity named above) by the name of:
Capitol Corporate Services, Inc
OR
¨ B. The initial registered agent is an individual resident of the state whose is set forth below:
First name | M.I. | Last Name | Suffix |
C. The business address of the registered agent and the registered office address is:
206 E. 9th St., Ste. 1300 | Austin | TX | 78701 |
Street Address | City | State | Zipcode |
Article 3 - Directors
(A minimum of 1 director is required.)
The number of directors constituting the initial board of directors and the names and address of the person or persons who are to serve as directors until the first annual meeting of shareholders or until their successors are elected and qualified are as follows:
Director 1 | |||||
Garrett | Schreiber | ||||
First Name | M.I. | Last Name | Suffix | ||
3 Minetta Street | New York | NY | 10012 | USA | |
Street or Mailing Address | City | State | Zip Code | Country |
Form 201
4 |
Director 2 | |||||
Sandy | Beall | ||||
First Name | M.I. | Last Name | Suffix | ||
3 Minetta Street | New York | NY | 10012 | USA | |
Street or Mailing Address | City | State | Zip Code | Country |
Director 3 | |||||
First Name | M.I. | Last Name | Suffix | ||
Street or Mailing Address | City | State | Zip Code | Country |
Article 4 — Authorized Shares
(Provide the number of shares in the space below, then select option A or option B, do not select both.)
The total number of shares the corporation is authorized to issue is; | 200 |
x A. The par value of each of the authorized shares is: | $0.0001 |
OR
¨ B. The shares shall have no par value.
If the shares are to be divided into classes, you must set forth the designation of each class, the number of shares of each class, the par value (or statement of no par value), and the preferences, limitations, and relative rights of each class in the space provided for supplemental information on this form.
Article 5 — Purpose
The purpose for which the corporation is formed is for the transaction of any and all lawful business for which a for-profit corporation may be organized under the Texas Business Organizations Code.
Supplemental Provisions/Information
Text Area: [The attached addendum, if any, is incorporated herein by reference.]
The authorized shares are divided into two classes: 100 Class A shares, par value $0.0001 per share and 100 Class B shares, par value $0.0001 per share. |
Form 201
5 |
Organizer
The name and address of the organizer:
Roman Ibragimov
Name
200 Park Avenue | New York | NY | 10166 |
Street or Mailing Address | City | State | Zip Code |
Effectiveness of Filing (Select either A, B, or C.)
A. x This document becomes effective when the document is filed by the secretary of state.
B. ¨ This document becomes effective at a later date, which is not more than ninety (90) days from the date of signing. The delayed effective date is:____________________________
C. ¨ This document takes effect upon the occurrence of a future event or fact, other than the passage of time. The 90th day after the date of signing is: __________________________________
The following event or fact will cause the document to take effect in the manner described below:
Execution
The undersigned affirms that the person designated as registered agent has consented to the appointment. The undersigned signs this document subject to the penalties imposed by law for the submission of a materially false or fraudulent instrument and certifies under penalty of perjury that the undersigned is authorized to execute the filing instrument.
Date: | January 20, 2021 | |||
/s/ Roman Ibragimov | ||||
Signature of organizer | ||||
Roman lbragimov | ||||
Printed or typed name of organizer |
Form 201
6 |
Exhibit 3.2
BY LAWS
OF
FAST Merger Corp.
(THE “CORPORATION”)
ARTICLE I
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation within the State of Texas shall be located at either (a) the principal place of business of the Corporation in the State of Texas or (b) the office of the corporation or individual acting as the Corporation’s registered agent in Texas.
Section 1.2. Additional Offices. The Corporation may, in addition to its registered office in the State of Texas, have such other offices and places of business, both within and outside the State of Texas, as the Board of Directors of the Corporation (the “Board”) may from time to time determine or as the business and affairs of the Corporation may require.
ARTICLE II
STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Texas, and time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a). At each annual meeting, the stockholders entitled to vote on such matters shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting.
Section 2.2. Special Meetings. Subject to the rights of the holders of any outstanding series of the preferred stock of the Corporation (“Preferred Stock”), and to the requirements of applicable law, special meetings of stockholders, for any purpose or purposes, may be called only by the Chairman of the Board, President, or the Board pursuant to a resolution adopted by a majority of the Board, and may not be called by any other person. Special meetings of stockholders shall be held at such place, either within or without the State of Texas, and at such time and on such date as shall be determined by the Board and stated in the Corporation’s notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a).
Section 2.3. Notices. Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10 nor more than 60 days before the date of the meeting unless otherwise required by Section 21.353 of the Texas Business Organizations Code (the “TBOC”). If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.
Section 2.4. Quorum. Except as otherwise provided by applicable law, the Corporation’s Certificate of Formation, as the same may be amended or restated from time to time (the “Certificate of Formation”) or these By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5. Voting of Shares.
(a) Voting Lists. The Secretary of the Corporation (the “Secretary”) shall prepare, or shall cause the officer or agent who has charge of the stock ledger of the Corporation to prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting; provided, however, that if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order and showing the address and the number and class of shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. If a meeting of stockholders is to be held solely by means of remote communication as permitted by Section 9.5(a), the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
(b) Manner of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority. No stockholder shall have cumulative voting rights.
(i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder. Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
(d) Required Vote. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is present, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is present shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Formation, these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.
(e) Inspectors of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may appoint one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
Section 2.6. Adjournments. Any meeting of stockholders, annual or special, may be adjourned by the chairman of the meeting, from time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance with Section 9.2, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
Section 2.7. Advance Notice for Business.
(a) Annual Meetings of Stockholders. No business may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting (or any supplement thereto) given by or at the direction of the Board, (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote at such annual meeting on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 3.2 will be considered for election at such meeting.
(i) In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary and such business must otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary with respect to such business, to be timely, must be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the opening of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date (or if there has been no prior annual meeting), notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By Laws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
(iii) The foregoing notice requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.7(a) shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairman of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a) or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter may have been received by the Corporation.
(iv) In addition to the provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.2.
(c) Public Announcement. For purposes of these By Laws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed or furnished by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any successor thereto).
Section 2.8. Conduct of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the President (if he or she shall be a director) or, in the absence (or inability or refusal to act of the President or if the President is not a director, such other person as shall be appointed by the Board. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at a meeting shall be announced at the meeting by the chairman of the meeting. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE III
DIRECTORS
Section 3.1. Powers; Number. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Formation or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Texas. Subject to the Certificate of Formation, the number of directors shall be fixed exclusively by resolution of the Board.
Section 3.2. Advance Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation (x) who is a stockholder of record entitled to vote in the election of directors on the date of the giving of the notice provided for in this Section 3.2 and on the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.2.
(b) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary. To be timely, a stockholder’s notice to the Secretary must be received by the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 60 days after such anniversary date (or if there has been no prior annual meeting), notice by the stockholder to be timely must be so received not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 3.2.
(c) Notwithstanding anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of business on the 90th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s notice required by this Section 3.2 shall also be considered timely, but only with respect to nominees for the additional directorships created by such increase that are to be filled by election at such annual meeting, if it shall be received by the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which such public announcement was first made by the Corporation.
(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially or of record by the person and (D) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder; and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder as they appear on the Corporation’s books and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other person or persons (including their names), (D) a representation that such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
(e) If the Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.2, or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 3.2, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.2, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.
(f) In addition to the provisions of this Section 3.2, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 3.2 shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Formation.
Section 3.3. Compensation. Unless otherwise restricted by the Certificate of Formation or these By Laws, the Board shall have the authority to fix the compensation of directors, including for service on a committee of the Board, and may be paid either a fixed sum for attendance at each meeting of the Board or other compensation as director. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like compensation and reimbursement of expenses for service on the committee.
ARTICLE IV
BOARD MEETINGS
Section 4.1. Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or without the State of Texas) as shall from time to time be determined by the Board.
Section 4.3. Special Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or the President and (b) shall be called by the Chairman of the Board, the President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may be, and shall be held at such time, date and place (within or without the State of Texas) as may be determined by the person calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Formation, or these By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice if all the directors are present or if those not present waive notice of the meeting in accordance with Section 9.4.
Section 4.4. Quorum; Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate of Formation or these By Laws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5. Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of Formation or these By Laws, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 4.6. Organization. The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
ARTICLE V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment. The Board may by resolution of the Board designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by the resolution designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section 5.2. Available Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3. Alternate Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 5.4. Procedures. Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Formation, these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business pursuant to Article III and Article IV of these By Laws.
ARTICLE VI
OFFICERS
Section 6.1. Officers. The officers of the Corporation elected by the Board shall be a President, a Chief Financial Officer, a Secretary and such other officers (including without limitation, a Chairman of the Board, Vice Presidents, Partners, Managing Directors, Senior Managing Directors, Assistant Secretaries and a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and duties as from time to time may be conferred by the Board. The President may also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these By Laws or as may be prescribed by the Board or, if such officer has been appointed by the President, as may be prescribed by the appointing officer.
(a) Chairman of the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability or refusal to act) of the Chairman of the Board, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board). The position of Chairman of the Board and the President may be held by the same person.
(b) President. The President shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal to act) of the Chairman of the Board, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board.
(d) Vice Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board or the President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.
(ii) The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number and date of certificates cancelled.
(f) Assistant Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Treasurer. The Treasurer shall perform all duties commonly incident to that office (including, without limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into the Treasurer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board or the President may authorize).
Section 6.2. Term of Office; Removal; Vacancies. The elected officers of the Corporation shall be appointed by the Board and shall hold office until their successors are duly elected and qualified by the Board or until their earlier death, resignation, retirement, disqualification, or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the President may also be removed, with or without cause, by the President, as the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any office appointed by the President may be filled by the President unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.
Section 6.3. Other Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the power to remove same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Formation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Texas.
ARTICLE VII
SHARES
Section 7.1. Certificated and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of the Board and the requirements of the TBOC.
Section 7.2. Multiple Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights.
Section 7.3. Signatures. Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman of the Board, the President or a Vice President and (b) the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration and Payment for Shares.
(a) Subject to applicable law and the Certificate of Formation, shares of stock may be issued for such consideration, having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration may consist of any tangible or intangible property or any benefit to the Corporation including cash, promissory notes, services performed, contracts for services to be performed or other securities, or any combination thereof.
(b) Subject to applicable law and the Certificate of Formation, shares may not be issued until the full amount of the consideration has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated shares are issued.
Section 7.5. Lost, Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate representing such shares has been surrendered;
(ii)(A) with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement or instruction is genuine and authorized as the Corporation may request; and
(v) such other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do so.
Section 7.7. Registered Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Regulations. The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
ARTICLE VIII
INDEMNIFICATION
Section 8.1. Right to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board.
Section 8.2. Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the TBOC requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that, the Indemnitee has not met any applicable standard for indemnification set forth in the TBOC. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the TBOC, nor an actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.
Section 8.4. Non-Exclusivity of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Formation, these By Laws, an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the TBOC.
Section 8.6. Indemnification of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments. Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these By Laws inconsistent with this Article VIII, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders holding at least 66.7% of the voting power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner not opposed to the best interest of the Corporation for purposes of Section 21.401 of the TBOC.
Section 8.9. Contract Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 8.10. Severability. If any provision or provisions of this Article VIII shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
ARTICLE IX
MISCELLANEOUS
Section 9.1. Place of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.
Section 9.2. Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 9.2(a) at the adjourned meeting.
(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice.
(a) Notice to Directors. Whenever under applicable law, the Certificate of Formation or these By Laws notice is required to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice to Stockholders. Whenever under applicable law, the Certificate of Formation or these By Laws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by the TBOC. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
(c) Electronic Transmission. “Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process, including but not limited to transmission by telex, facsimile telecommunication, electronic mail, telegram and cablegram.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the TBOC, the Certificate of Formation or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under the TBOC, the Certificate of Formation or these By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Texas, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required to be given by the Corporation, under any provision of the TBOC, the Certificate of Formation or these By Laws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Texas, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to the TBOC. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
Section 9.4. Waiver of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Formation, or these By Laws, a written waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.5. Meeting Attendance via Remote Communication Equipment.
(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders entitled to vote at such meeting and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and, if entitled to vote, to vote on matters submitted to the applicable stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of Formation or these By Laws, members of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.6. Dividends. The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Formation.
Section 9.7. Reserves. The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 9.8. Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Formation or these By Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the President, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board, the President, the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 9.9. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books and Records. The books and records of the Corporation may be kept within or outside the State of Texas at such place or places as may from time to time be designated by the Board.
Section 9.12. Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman of the Board, the President or the Secretary. The resignation shall take effect at the time it is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
Section 9.13. Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, the President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and by such surety companies as the Chairman of the Board, the President or the Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 9.14. Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, the President, any Vice President or any officers authorized by the Board. Any such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments. The Board shall have the power to adopt, amend, alter or repeal the By Laws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By Laws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Formation, the affirmative vote of the holders of at least a majority of the voting power (except as otherwise provided in Section 8.7) of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the By Laws.
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in the Prospectus constituting a part of this Registration Statement on Form S-4 of our report dated May 13, 2021, relating to the financial statements of FAST Acquisition Corp., which is contained in that Prospectus. We also consent to the reference to our Firm under the caption “Experts” in the Prospectus.
/s/ WithumSmith+Brown, PC | |
New York, New York | |
July 30, 2021 |
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated August 2, 2021, with respect to the consolidated financial statements of Fertitta Entertainment, Inc. contained in the Registration Statement and Proxy Statement/Prospectus. We consent to the use of the aforementioned report in the Registration Statement and Proxy Statement/Prospectus, and to the use of our name as it appears under the caption “Experts.”
/s/ Grant Thornton LLP | |
Houston, Texas | |
August 2, 2021 |
Exhibit 99.2
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ Tilman J. Fertitta |
Signature |
Exhibit 99.3
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ Richard H. Liem |
Signature |
Exhibit 99.4
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ Steven L. Scheinthal |
Signature |
Exhibit 99.5
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ Michael S. Chadwick |
Signature |
Exhibit 99.6
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ G. Michael Stevens |
Signature |
Exhibit 99.7
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by FAST Merger Corp. of the Registration Statement on Form S-4 with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement and any and all amendments and supplements thereto as a member of the board of directors of FAST Merger Corp. following the consummation of the business combination. I also consent to the filing of this consent as an exhibit to such Registration Statement and any amendments thereto.
Date: July 30, 2021 | /s/ Scott Kelley |
Signature |