PROXY STATEMENT REVISION FOR THE
SPECIAL MEETING OF STOCKHOLDERS TO
BE RECONVENED ON DECEMBER 29, 2020
Dear Landcadia Holdings II, Inc.
Stockholder:
On or about December 2,
2020, Landcadia Holdings II, Inc. (the “Company,” “we,” “us” or “our”) filed
with the U.S. Securities and Exchange Commission (the “SEC”) and mailed to you our definitive proxy statement (the
“Definitive Proxy Statement”) with respect to the special meeting in lieu of the 2020 annual meeting of the Company’s
stockholders (the “special meeting”), held to consider and vote upon a proposal, among other matters, to approve and
adopt the purchase agreement (as amended, the “Purchase Agreement”) by and among the Company, LHGN HoldCo, LLC, a
Delaware limited liability company (“Landcadia HoldCo”), Golden Nugget Online Gaming, LLC, a New Jersey limited liability
company (“GNOG”), as successor-in-interest to Golden Nugget Online Gaming, Inc. (f/k/a Landry’s Finance
Acquisition Co.), GNOG Holdings, LLC, a Delaware limited liability company (“GNOG HoldCo”), and Landry’s Fertitta,
LLC, a Texas limited liability company (“LF LLC”), pursuant to which, subject to the satisfaction or waiver of certain
conditions set forth therein, the Company will acquire GNOG, and the other transactions contemplated by the Purchase Agreement.
The transactions contemplated by the Purchase Agreement are collectively referred to herein as the “transaction.”
The special meeting,
which was originally convened on December 18, 2020, was adjourned and will be reconvened on Tuesday, December 29, 2020,
at 12:00 p.m., Eastern time, at https://www.cstproxy.com/landcadiaholdingsii/sm2020.
Following the mailing
of the Definitive Proxy Statement, we expended considerable efforts to solicit the requisite votes from a majority of the outstanding
shares of our Class A common stock held by Disinterested Stockholders, as required under the Purchase Agreement. Although
the price of our Class A common stock has risen as much as 147% in the months since the announcement of the transaction,
as of date of the special meeting, we had not received sufficient votes from holders of shares of our Class A common stock
to approve the transaction. We believe this is primarily the result of having a significant portion of our stockholder base comprised
of retail stockholders. As of December 18, 2020, we had received the affirmative vote of approximately
40.5% of the outstanding shares of our Class A common stock held by Disinterested Stockholders. Of the shares of Class A
common stock that were voted, however, approximately 99.8% were voted in favor of the Transaction Proposal and over 90% were voted
in favor of the other proposals. We believe that this high favorable voting percentage, and the market price of our Class A
common stock since the transaction announcement, are clear indications that our stockholders support this transaction. We
also believe that prolonging the solicitation period further to obtain additional votes may put the transaction at risk.
Given the overwhelming
support of stockholders who have voted thus far, our board of directors (“Board”) is concerned that further delays
in the closing of (or a failure to close) this transaction could harm our stockholders. As a result,
on December 20, 2020, upon the unanimous recommendation of a committee of disinterested members of our Board, our Board unanimously
approved, and we entered into the Purchase Agreement Amendment to provide that (i) the Transaction Proposal (and certain
related proposals to be presented at the special meeting) must be approved by a majority of our outstanding shares of common stock
that are voted at the special meeting, rather than a majority of the outstanding shares of Class A common stock held by Disinterested
Stockholders, and (ii) the Charter Proposal must be approved by a majority of our outstanding shares of common stock,
rather than a majority of the outstanding shares of Class A common stock held by Disinterested
Stockholders. Assuming that the proxies we previously received from stockholders are not withdrawn, we expect that this change
will create more certainty that the Transaction Proposal and the other proposals to be presented to our stockholders at the reconvened
special meeting on December 29, 2020 will be approved since the shares of common stock held by Tilman J. Fertitta and his
affiliates and Jefferies Financial Group Inc. and its affiliates have been voted “FOR” each of the proposals. We believe
that the benefit to our stockholders from the transaction should not be jeopardized due to an insufficient voting turnout from
our stockholders of record.
The accompanying revision
to the Definitive Proxy Statement (this “Proxy Revision”) contains information that revises the Definitive Proxy Statement
for the foregoing developments. The Company urges you to read this Proxy Revision, together with the Definitive Proxy Statement
previously sent to you regarding the proposed transaction, carefully and in their entirety. Terms used in this Proxy Revision
and not otherwise defined have the meanings set forth in the Definitive Proxy Statement.
The record date for
the special meeting has not changed and remains October 29, 2020. This means that only holders of record of shares of Company
Class A common stock and shares of Company Class B common stock at the close of business on October 29, 2020 are
entitled to notice of and to vote and have their votes counted at the special meeting and any adjournments or postponements of
the special meeting.
Your vote is important
regardless of the number of shares you own. Whether or not you plan to attend the special meeting, please vote as soon as possible
by following the instructions in the Definitive Proxy Statement to make sure that your shares are represented at the special meeting.
If you hold your shares in “street name” through a bank, broker or other nominee, you will need to follow the instructions
provided to you by your bank, broker or other nominee to ensure that your shares are represented and voted at the special meeting.
If you have already submitted your proxy card and do not wish to change your vote, there is no need to submit another proxy
card in response to this Proxy Revision. The Company has extended the deadline by which holders of its Class A common stock
may elect to redeem their shares in connection with the transaction until 4:00 p.m., Eastern time, on December 24, 2020.
On behalf of our board
of directors, we would like to thank you for your support of Landcadia Holdings II, Inc., and we look forward to the successful
completion of the transaction.
December 21, 2020 Sincerely,
/s/ Tilman J. Fertitta
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/s/ Richard Handler
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Tilman J. Fertitta
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Richard Handler
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Co-Chairman and Chief Executive Officer
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Co-Chairman and President
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION
NOR ANY STATE SECURITIES REGULATORY AGENCY HAS APPROVED OR DISAPPROVED THE TRANSACTIONS DESCRIBED IN THE ACCOMPANYING PROXY STATEMENT,
PASSED UPON THE MERITS OR FAIRNESS OF THE TRANSACTIONS OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE DISCLOSURE IN THE ACCOMPANYING
PROXY STATEMENT. ANY REPRESENTATION TO THE CONTRARY CONSTITUTES A CRIMINAL OFFENSE.
This Proxy Revision is dated December 21,
2020, and is expected to be first mailed to our stockholders on or about December 21, 2020.
TABLE OF CONTENTS
INTRODUCTION
As previously disclosed,
on June 28, 2020, Landcadia Holdings II, Inc. (the “Company,” “we,” “us” or “our”),
entered into a Purchase Agreement (as amended, the “Purchase Agreement”) with LHGN HoldCo, LLC, a Delaware limited
liability company and newly formed, wholly-owned subsidiary of the Company (“Landcadia HoldCo”), Landry’s Fertitta,
LLC, a Texas limited liability company (“LF LLC”), GNOG Holdings, LLC, a Delaware limited liability company and newly
formed, wholly-owned subsidiary of LF LLC (“GNOG HoldCo”), and Golden Nugget Online Gaming, LLC, a New Jersey limited
liability company (“GNOG”), as successor-in-interest to Golden Nugget Online Gaming, Inc. (f/k/a Landry’s
Finance Acquisition Co.), a New Jersey corporation and wholly-owned subsidiary of LF LLC, pursuant to which, the Company will
acquire GNOG. The transactions contemplated by the Purchase Agreement are collectively referred to herein as the “transaction.”
Capitalized terms used but not defined herein have the means set forth in the Definitive Proxy Statement.
For more information
on the Purchase Agreement and the transaction, see the Definitive Proxy Statement.
Purchase Agreement Amendment
On December 20,
2020, the Company entered into the Second Amendment to the Purchase Agreement (the “Purchase Agreement Amendment”)
by and among the Company, Landcadia HoldCo, LF LLC, GNOG HoldCo and GNOG, pursuant to which the parties agreed to amend the definition
of “Landcadia Stockholder Approval” in the Purchase Agreement to remove the requirement that the affirmative vote
of a majority of the shares of Company Class A common stock outstanding and held by the Disinterested Stockholders (as defined
in the Purchase Agreement) is needed to approve each of Transaction Proposal, the Nasdaq Proposal, the Incentive Plan Proposal
and the Charter Proposal.
As a result of the
Purchase Agreement Amendment, (i) approval of the Transaction Proposal, the Nasdaq Proposal and the Incentive Plan Proposal
requires the affirmative vote of a majority of the shares of Company common stock that are voted at the special meeting, and (ii) approval
of the Charter Proposal requires the affirmative vote of a majority of the outstanding shares of Company’s common stock.
The foregoing description of the Purchase
Agreement Amendment does not purport to be complete and is qualified in its entirety by the terms and conditions of the Purchase
Agreement Amendment, a copy of which is attached to this Proxy Revision as Annex A.
UPDATES TO QUESTIONS AND ANSWERS ABOUT
THE PROPOSALS
The following questions
and answers are intended to address briefly some common anticipated questions regarding this Proxy Revision. The following questions
and answers do not include all the information that is important to our stockholders. We urge our stockholders to read carefully
the Definitive Proxy Statement, this Proxy Revision and the annexes attached thereto and hereto.
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Q:
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Why am I receiving this Proxy Revision?
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A:
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On December 20, 2020, the Company entered into the Purchase Agreement Amendment. This
Proxy Revision provides information regarding such agreement, describes the impact such agreement will have on the transaction
and updates the Definitive Proxy Statement accordingly.
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Q:
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Do I still need to read the Definitive Proxy Statement?
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A:
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Yes. This Proxy Revision is intended to revise certain disclosure in the Definitive Proxy
Statement. However, this Proxy Revision does not contain all of the information that you need to know about the transaction,
and we urge you to read the Definitive Proxy Statement in conjunction with this Proxy Revision, all of the annexes thereto
and hereto, and the other documents to which we refer you.
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Q:
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Has the record date or agenda for the special meeting changed?
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A:
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No. Holders of Company Class A common stock and Company Class B common stock
at the close of business on October 29, 2020 (the “Record Date”) are entitled to vote at the special meeting.
The agenda for the special meeting has not been changed.
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Q:
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Has the date and time of the special meeting changed from the Definitive Proxy Statement?
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A:
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Yes. The special meeting, which was originally convened on December 18, 2020, was adjourned
and will be reconvened on Tuesday, December 29, 2020, at 12:00 p.m., Eastern time, at https://www.cstproxy.com/landcadiaholdingsii/sm2020.
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Q:
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What is the effect of the Purchase Agreement Amendment?
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A:
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The Purchase Agreement Amendment
amended the definition of “Landcadia Stockholder Approval” in the Purchase Agreement to remove the requirement
that the affirmative vote of a majority of the shares of Company Class A common stock outstanding and held by the
Disinterested Stockholders is needed to approve each of Transaction Proposal, the Nasdaq Proposal, the Incentive Plan
Proposal and the Charter Proposal.
As a result of the Purchase Agreement
Amendment, approval of the Transaction Proposal, the Nasdaq Proposal and the Incentive Plan Proposal requires the affirmative
vote of a majority of the shares of Company common stock that are voted at the special meeting, and approval of the Charter
Proposal requires the affirmative vote of a majority of the shares of Company’s common stock outstanding.
As a result of the Purchase Agreement
Amendment, assuming no previously submitted proxies are withdrawn, the Company expects that it will have sufficient votes
to approve each of the condition precedent proposals and consummate the transaction at the reconvened special meeting.
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Q:
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Why did the parties enter into the Purchase Agreement Amendment?
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A:
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Following
the mailing of the Definitive Proxy Statement, we expended considerable efforts to solicit the requisite votes from a
majority of the outstanding shares of our Class A common stock held by Disinterested Stockholders, as required under
the Purchase Agreement. Although the price of our Class A common stock has risen as much as 147% in the months since
the announcement of the transaction, as of date of the special meeting, we had not received sufficient votes from holders
of shares of our Class A common stock to approve the transaction. We believe this is
primarily the result of having a significant portion of our stockholder base comprised of retail stockholders. As of December 18,
2020, we had received the affirmative vote of approximately 40.5% of the outstanding shares of our Class A common
stock held by Disinterested Stockholders. Of the shares of Class A common stock that were voted, however, approximately
99.8% were voted in favor of the Transaction Proposal and over 90% were voted in favor of the other proposals. We believe
that this high favorable voting percentage, and the market price of our Class A
common stock since the transaction announcement, are clear indications that our stockholders support this transaction.
We also believe that prolonging the solicitation period further to obtain additional votes may put the transaction at
risk.
Given
the overwhelming support of stockholders who have voted thus far, our board of directors (“Board”) is concerned
that further delays in the closing of (or a failure to close) this transaction could harm our stockholders. As a result,
on December 20, 2020, upon the unanimous recommendation of a committee of disinterested members of our Board, our
Board unanimously approved, and we entered into the Purchase Agreement Amendment to provide that (i) the Transaction
Proposal (and certain related proposals to be presented at the special meeting) must be approved by a majority of our
outstanding shares of common stock that are voted at the special meeting, rather than a majority of the outstanding shares
of Class A common stock held by Disinterested Stockholders, and (ii) the Charter Proposal must be approved
by a majority of our outstanding shares of common stock, rather than a majority of the outstanding
shares of Class A common stock held by Disinterested Stockholders. Assuming that the proxies we previously
received from stockholders are not withdrawn, we expect that this change will create more certainty that the Transaction
Proposal and the other proposals to be presented to our stockholders at the reconvened special meeting on December 29,
2020 will be approved since the shares of common stock held by Tilman J. Fertitta and his affiliates and Jefferies Financial
Group Inc. and its affiliates have been voted “FOR” each of the proposals. We
believe that the benefit to our stockholders from the transaction should not be jeopardized due to an insufficient voting
turnout from our stockholders of record.
As
such, the Purchase Agreement Amendment provides that stockholders who vote have the ability to approve the transaction
at the special meeting and provides greater certainty that the transaction will close, which the we believe is
in the best interest of our stockholders.
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Q:
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What vote is required to approve the proposals presented at the special
meeting?
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A:
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Approval of the Transaction Proposal,
the Nasdaq Proposal and the Incentive Plan Proposal requires the affirmative vote of a majority of the shares of
the Company’s common stock that are voted at the special meeting and approval of the Charter Proposal requires the
affirmative vote of a majority of the outstanding shares of the Company’s common stock.
Approval of the Advisory Charter
Proposals, each of which is a non-binding vote, the Auditor Ratification Proposal and the Adjournment Proposal requires
the affirmative vote of holders of a majority of the votes cast by our stockholders present in person (which would include
presence at the virtual special meeting) or represented by proxy at the special meeting and entitled to vote thereon.
The election of directors is decided
by a plurality of the votes cast by the stockholders present in person (which would include presence at the virtual special
meeting) or represented by proxy at the special meeting and entitled to vote on the election of directors. This means
that each of the director nominees will be elected if they receive more affirmative votes than any other nominee for the
same position. Stockholders may not cumulate their votes with respect to the election of directors.
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting)
will not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and
broker non-votes will be counted in connection with the determination of whether a valid quorum is established. Each of
the failure to vote by proxy or to vote in person (which would include voting at the virtual special meeting), an abstention
from voting and a broker non-vote on the Charter Proposal will have the same effect as a vote “AGAINST”
such proposal. Each of the failure to vote by proxy or to vote in person (which would include voting at the virtual special
meeting), an abstention from voting and a broker non-vote on any of the Transaction Proposal, the Nasdaq Proposal, Advisory
Charter Proposals, the Director Election Proposal, the Incentive Plan Proposal, the Auditor Ratification Proposal
and the Adjournment Proposal will have no effect on the outcome of any such proposal.
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Q:
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I have already voted and do not wish to change my vote. Do
I need to do anything?
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A:
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No. If you have already voted and do not wish
to change your vote, you do not have to take any further action at this time. If you have already voted and wish to change
your vote and are a holder of record of our common stock as of the close of business on October 29, 2020, the record
date, you can change or revoke your proxy before it is voted at the special meeting by:
· delivering
a signed written notice of revocation to our Secretary at Landcadia Holdings II, Inc. 1510 West Loop South,
Houston, Texas 77027, bearing a date later than the date of the proxy, stating that the proxy is revoked;
· signing
and delivering a new proxy, relating to the same shares and bearing a later date; or
· attending
and voting at the special meeting and voting, although attendance at the special meeting will not, by itself, revoke a
proxy.
If you have already voted and wish to change your vote
and are a beneficial owner of our common stock as of the close of business on the record date, you must follow the instructions
of your broker, bank or other nominee to revoke or change your voting instructions.
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Q:
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May I still exercise my redemption rights?
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A:
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Yes. The deadline to exercise
your redemption right has been extended to 4:00 p.m., Eastern time, on December 24, 2020. If you are a holder of
public shares and wish to exercise your right to redeem your public shares, you must:
(i)(a) hold public
shares or (b) hold public shares through units and you elect to separate your units into the underlying
public shares and public warrants prior to exercising your redemption rights with respect to the public shares; and
(ii) prior to
4:00 p.m., Eastern time, on December 24, 2020, (a) submit a written request to the Transfer Agent that
the Company redeem your public shares for cash and (b) deliver your public shares to the Transfer Agent, physically
or electronically through DTC.
Holders of units must elect
to separate the underlying public shares and public warrants prior to exercising redemption rights with respect to the
public shares. Any demand for redemption, once made, may be withdrawn at any time until the deadline for exercising redemption
requests and thereafter, with our consent, until the Closing. If you deliver your shares for redemption to the Transfer
Agent and later decide prior to the special meeting not to elect redemption, you may request that the Company instruct
the Transfer Agent to return the shares (physically or electronically). You may make such request by contacting the Transfer
Agent at the phone number or address listed under the question “Who can help answer my questions?”
below.
Additionally, shares properly
tendered for redemption will only be redeemed if the transaction is consummated; otherwise holders of such shares will
only be entitled to a pro rata portion of the trust account, including interest not previously released to us to
pay our taxes (less up to $100,000 of interest to pay dissolution expenses) in connection with the liquidation of the
trust account, unless we complete an alternative business combination prior to May 9, 2021. Pursuant to our current
charter, we are required to pay the redemption price to public stockholders who properly exercise their redemption rights
as promptly as practical following the Closing. Please see the Definitive Proxy Statement for further details on how to
redeem your public shares.
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Q:
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Who can help answer my questions?
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A:
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If you have questions about the transaction or if you need additional copies
of the Definitive Proxy Statement or this Proxy Revision you should contact:
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Landcadia Holdings II, Inc.
1510 West Loop South
Houston, Texas 77027
Telephone: (713) 850-1010
Attention: Steven L. Scheinthal
You may also contact our proxy solicitor
at:
Morrow Sodali LLC
470 West Avenue
Stamford, CT 06902
Telephone: (800) 662-5200
(Banks and brokers can call: (203) 658-9400)
Email: LCA.info@investor.morrowsodali.com
You also may obtain
additional information about the Company from documents filed with the SEC by following the instructions in the section entitled
“Where You Can Find More Information.” If you are a holder of public shares and you intend to seek redemption
of your shares, you will need to deliver your public shares to the transfer agent at the address below prior to 4:00 p.m., Eastern
time, on December 24, 2020. If you have questions regarding the certification of your position or delivery of your shares,
please contact:
Mark Zimkind
Continental Stock Transfer & Trust
Company
One State Street Plaza, 30th
Floor
New York, New York 10004
E-mail: mzimkind@continentalstock.com
The foregoing updates
the disclosures in the section entitled “Questions and Answers About the Proposals for Stockholders” on pages 18 – 41
and any other applicable section of the Definitive Proxy Statement.
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING
STATEMENTS
This Proxy Revision
contains forward-looking statements. These forward-looking statements relate to expectations for future financial performance,
business strategies or expectations for our (or GNOG’s) business (as applicable), and the timing and ability for us to complete
the transaction. Specifically, forward-looking statements may include statements relating to:
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the
benefits of the transaction;
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the
future financial performance of New GNOG following the transaction;
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expansion
plans and opportunities; and
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other
statements preceded by, followed by or that include the words “may,” “can,”
“should,” “will,” “estimate,” “plan,”
“project,” “forecast,” “intend,” “expect,”
“anticipate,” “believe,” “seek,” “target”
or similar expressions.
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These
forward-looking statements are based on information available as of the date of this Proxy Revision and our management’s
and GNOG’s management’s current expectations, forecasts and assumptions, and involve a number of judgments, risks
and uncertainties. Accordingly, forward-looking statements should not be relied upon as representing our (or GNOG’s) views
as of any subsequent date. We do not undertake any obligation to update forward-looking statements to reflect events or circumstances
after the date they were made, whether as a result of new information, future events or otherwise, except as may be required under
applicable securities laws.
You should not place
undue reliance on these forward-looking statements in deciding how your vote should be cast or in voting your shares on the proposals
set forth in the Definitive Proxy Statement. As a result of a number of known and unknown risks and uncertainties, our actual
results or performance may be materially different from those expressed in or implied by these forward-looking statements. Some
factors that could cause actual results to differ include, among others:
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the
occurrence of any event, change or other circumstances that could delay the transaction
or give rise to the termination of the Purchase Agreement;
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the
outcome of any legal proceedings that may be instituted against GNOG or the Company following
the announcement of the transaction, relating to the transaction, the Definitive Proxy
Statement or this Proxy Revision;
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the
inability to complete the transaction due to the failure to obtain approval of the stockholders
of the Company, or other conditions to closing in the Purchase Agreement;
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the
Company’s inability to consummate another initial business combination if it is
unable to consummate the transaction;
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the
inability to obtain or maintain the listing of New GNOG’s common stock on Nasdaq
following the transaction;
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the
risk that the transaction disrupts current plans and operations as a result of the announcement
and consummation of the transaction described herein;
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the
ability to recognize the anticipated benefits of the transaction, which may be affected
by, among other things, competition, and the ability of the combined business to grow
and manage growth profitably;
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costs
related to the transaction;
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factors
relating to the future business, operations and financial performance of GNOG, including:
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GNOG’s
inability to compete with other forms of entertainment for consumers’ discretionary
time and income;
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market
conditions and global and economic factors beyond GNOG’s control, including the
potential adverse effects of the ongoing global COVID-19 pandemic and reductions in discretionary
consumer spending, among others;
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GNOG’s
inability to attract and retain users;
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GNOG’s
inability to profitably expand into new markets;
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changes
in applicable laws or regulations;
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the
failure of third-party service providers to perform services and protect intellectual
property rights required for the operation of GNOG’s business;
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the
possibility that the Company, GNOG or New GNOG may be adversely affected by other economic,
business, and/or competitive factors; and
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other
risks and uncertainties indicated in the Definitive Proxy Statement, including those
set forth in the section entitled “Risk Factors.”
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REVISIONS TO THE DEFINITIVE PROXY STATEMENT
The following disclosures
revise certain of the disclosures contained in the Definitive Proxy Statement and should be read in conjunction with the disclosures
contained in the Definitive Proxy Statement, which should be read in its entirety. To the extent the information set forth herein
differs from or updates information contained in Definitive Proxy Statement, the information set forth herein shall supersede
or supplement the information in the Definitive Proxy Statement. All page and paragraph references used herein refer to the
Definitive Proxy Statement before any additions or deletions resulting from the revised disclosures, and terms used below, unless
otherwise defined, have the meanings set forth in the Definitive Proxy Statement. Underlined text shows text being added to and
strikethrough text shows text being removed from a referenced disclosure in the Definitive Proxy Statement.
The cover of the Definitive Proxy Statement is hereby revised
as follows:
The seventeenth and nineteenth paragraphs
on the cover of the Definitive Proxy Statement are amended and restated as follows:
In accordance with the terms
of the Purchase Agreement, approval of the Transaction Proposal, the Nasdaq Proposal and the Incentive Plan Proposal requires
the approval at the special meeting by (i) a majority of the shares of the Company’s common stock
that are voted at the special meeting and (ii) a majority of the shares of Company Class A common stock outstanding
and held by the stockholders of the Company other than those shares beneficially owned by Tilman J. Fertitta, JFG Sponsor and
their respective affiliates (collectively, the “Disinterested Stockholders”). Approval of the Charter Proposal
requires approval at the special meeting by (i) a majority of the shares of the Company’s common stock
outstanding and (ii) a majority of the shares of Company Class A common stock outstanding and held by the Disinterested
Stockholders. We refer to the requisite approvals of the proposals described above collectively as the “Stockholder
Approval.” Approval of the Advisory Charter Proposals, each of which is a non-binding vote, the Auditor Ratification Proposal
and the Adjournment Proposal requires the affirmative vote of holders of a majority of the votes cast by our stockholders present
in person (which would include presence at the virtual special meeting) or represented by proxy at the special meeting and entitled
to vote thereon.
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting) will
not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and broker non-votes
will be counted in connection with the determination of whether a valid quorum is established. Each of the failure to vote by
proxy or to vote in person (which would include voting at the virtual special meeting), an abstention from voting and a broker
non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive
Plan Proposal will have the same effect as a vote “AGAINST” any such proposal.
Each of the failure to vote by proxy or to vote in person (which would include voting at the virtual special meeting), an abstention
from voting and a broker non-vote on any of the Transaction Proposal, the Nasdaq Proposal, Advisory Charter Proposals,
the Director Election Proposal, the Incentive Plan Proposal, the Auditor Ratification Proposal and the Adjournment Proposal
will have no effect on the outcome of any such proposal.
The Notice of Special Meeting in Lieu of the 2020 Annual
Meeting of Stockholders of Landcadia Holdings II, Inc. is hereby revised as follows:
The fourth and second to last paragraphs
in the Notice of Special Meeting in Lieu of the 2020 Annual Meeting of Stockholders of Landcadia Holdings II, Inc. in the
Definitive Proxy Statement are amended and restated as follows:
Approval of the Transaction
Proposal, the Nasdaq Proposal and the Incentive Plan Proposal requires the approval at the special meeting by (i) a
majority of the shares of the Company’s common stock that are voted at the special meeting and (ii) a majority
of the shares of Company Class A common stock outstanding and held by the stockholders of the Company other than those shares
beneficially owned by Tilman J. Fertitta, JFG Sponsor and their respective affiliates (collectively, the “Disinterested
Stockholders”). Approval of the Charter Proposal requires approval at the special meeting by (i) a
majority of the shares of the Company’s common stock outstanding and (ii) a majority of the shares of Company
Class A common stock outstanding and held by the Disinterested Stockholders. We refer to the requisite approvals
of the proposals described above collectively as the “Stockholder Approval.” Approval of the Advisory Charter Proposals,
each of which is a non-binding vote, the Auditor Ratification Proposal and the Adjournment Proposal requires the affirmative vote
of holders of a majority of the votes cast by our stockholders present in person (which would include presence at the virtual
special meeting) or represented by proxy at the special meeting and entitled to vote thereon.
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting) will
not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and broker non-votes
will be counted in connection with the determination of whether a valid quorum is established. Each of the failure to vote by
proxy or to vote in person (which would include voting at the virtual special meeting), an abstention from voting and a broker
non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive
Plan Proposal will have the same effect as a vote “AGAINST” any such proposal.
Each of the failure to vote by proxy or to vote in person (which would include voting at the virtual special meeting), an abstention
from voting and a broker non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Advisory Charter Proposals,
the Director Election Proposal, the Incentive Plan Proposal, the Auditor Ratification Proposal and the Adjournment Proposal
will have no effect on the outcome of any such proposal.
The section of the Definitive Proxy Statement entitled “Certain
Defined Terms” is hereby revised as follows:
The definition of “Disinterested Stockholders”
on page 4 of the Definitive Proxy Statement is deleted in its entirety.
The definition of “Stockholder Approval” on
page 7 of the Definitive Proxy Statement is amended and restated by deleting the following strikethrough text:
“Stockholder Approval”
means, collectively, the approval at the special meeting by (A) with respect to the Transaction Proposal, the Nasdaq Proposal
and the Incentive Plan Proposal, (i) a majority of the shares of the Company’s common stock that
are voted at the special meeting and (ii) a majority of the shares of Company Class A common stock outstanding
and held by the Disinterested Stockholders and (B) with respect to the Charter Proposal, (i) a
majority of the shares of the Company’s common stock outstanding and (ii) a majority of the shares of Company
Class A common stock outstanding and held by the Disinterested Stockholders.
The section of the Definitive Proxy Statement entitled “Questions
and Answers about the Proposals for Stockholders” is hereby revised as follows:
The first paragraph on page 32
of the Definitive Proxy Statement under the subsection entitled “Q: What vote is required to approve the proposals presented
at the special meeting?” is amended and restated as noted in the section of this Proxy Revision entitled “Updates
to Questions and Answers about the Proposals” above.
The first paragraph on page 39
of the Definitive Proxy Statement under the subsection entitled “What will happen if I abstain from voting or fail to vote
at the special meeting?” is amended and restated as follows:
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting) will
not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and broker non-votes
will be counted in connection with the determination of whether a valid quorum is established. Each of the failure to vote by
proxy or to vote in person (which would include voting at the virtual special meeting), an abstention from voting and a broker
non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive
Plan Proposal will have the same effect as a vote “AGAINST” any such proposal.
Each of the failure to vote by proxy or to vote in person (which would include voting at the virtual special meeting), an abstention
from voting and a broker non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Advisory Charter Proposals,
the Director Election Proposal, the Incentive Plan Proposal, the Auditor Ratification Proposal and the Adjournment Proposal
will have no effect on the outcome of any such proposal.
The section of the Definitive Proxy
Statement entitled “Summary of the Proxy Statement” is hereby revised as follows:
The second paragraph on page 60
of the Definitive Proxy Statement under the subsection entitled “Quorum and Required Vote for Proposals for the Special
Meeting” is amended and restated by deleting the following strikethrough text:
Approval of the Transaction
Proposal, the Nasdaq Proposal and the Incentive Plan Proposal requires the approval at the special meeting by (i) a
majority of the shares of the Company’s common stock that are voted at the special meeting and (ii) a majority
of the shares of Company Class A common stock outstanding and held by the Disinterested Stockholders. Approval of
the Charter Proposal requires approval at the special meeting by (i) a majority of the shares of the Company’s
common stock outstanding and (ii) a majority of the shares of Company Class A common stock outstanding and held
by the Disinterested Stockholders. Approval of the Advisory Charter Proposals, each of which is a non-binding vote, the
Auditor Ratification Proposal and the Adjournment Proposal requires the affirmative vote of holders of a majority of the votes
cast by our stockholders present in person (which would include presence at the virtual special meeting) or represented by proxy
at the special meeting and entitled to vote thereon.
The section of the Definitive Proxy
Statement entitled “Special Meeting of Stockholders” is hereby revised as follows:
The first and third paragraphs starting
on page 132 of the Definitive Proxy Statement under the subsection entitled “Quorum and Required Vote for Proposals
for the Special Meeting” are amended and restated as follows:
Approval of the Transaction
Proposal, the Nasdaq Proposal and the Incentive Plan Proposal requires the approval at the special meeting by (i) a
majority of the shares of the Company’s common stock that are voted at the special meeting and (ii) a majority
of the shares of Company Class A common stock outstanding and held by the Disinterested Stockholders. Approval of
the Charter Proposal requires approval at the special meeting by (i) a majority of the shares of the Company’s
common stock outstanding and (ii) a majority of the shares of Company Class A common stock outstanding and held
by the Disinterested Stockholders. Approval of the Advisory Charter Proposals, each of which is a non-binding vote, the
Auditor Ratification Proposal and the Adjournment Proposal requires the affirmative vote of holders of a majority of the votes
cast by our stockholders present in person (which would include presence at the virtual special meeting) or represented by proxy
at the special meeting and entitled to vote thereon.
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting) will
not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and broker non-votes
will be counted in connection with the determination of whether a valid quorum is established. Each of the failure to vote by
proxy or to vote in person (which would include voting at the virtual special meeting), an abstention from voting and a broker
non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive
Plan Proposal will have the same effect as a vote “AGAINST” any such proposal.
Each of the failure to vote by proxy or to vote in person (which would include voting at the virtual special meeting), an abstention
from voting and a broker non-vote on any of the Transaction Proposal, the Nasdaq Proposal, the Advisory Charter Proposals,
the Director Election Proposal, the Incentive Plan Proposal, the Auditor Ratification Proposal and the Adjournment Proposal
will have no effect on the outcome of any such proposal.
The paragraphs starting on page 133
of the Definitive Proxy Statement under the subsection entitled “Broker Non-Votes and Abstentions” are amended and
restated as follows:
A stockholder’s failure
to vote by proxy or to vote in person at the special meeting (which would include voting at the virtual special meeting) will
not be counted towards the number of shares of common stock required to validly establish a quorum. Abstentions and broker non-votes
will be counted in connection with the determination of whether a valid quorum is established. Failure to vote by proxy or to
vote in person (which would include voting at the virtual special meeting) or an abstention from voting on any of the
Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive Plan Proposal
will have the same effect as a vote “AGAINST” any such proposal. Failure to vote by proxy
or to vote in person (which would include voting at the virtual special meeting) or an abstention from voting on any of the
Transaction Proposal, the Nasdaq Proposal, the Advisory Charter Proposals, the Director Election Proposal, the Incentive
Plan Proposal, the Auditor Ratification Proposal and the Adjournment Proposal will have no effect on the outcome of any such
proposal.
In general, if your shares
are held in “street” name and you do not instruct your broker, bank or other nominee on a timely basis on how to vote
your shares, your broker, bank or other nominee, in its sole discretion, may either leave your shares unvoted or vote your shares
on routine matters, but not on any non-routine matters. A broker non-vote will have the same effect as a vote “AGAINST”
the Transaction Proposal, the Nasdaq Proposal, the Charter Proposal and the Incentive Plan Proposal.
A broker non-vote will have no effect on the outcome of any of the Transaction Proposal, the Nasdaq Proposal, the Advisory
Charter Proposal, the Director Election Proposal, the Incentive Plan Proposal and the Adjournment Proposal. All
of the proposals at the special meeting are non-routine matters except for the Auditor Ratification Proposal. As such, without
your voting instructions, your brokerage firm cannot vote your shares on any proposal to be voted on at the special meeting other
than the Auditor Ratification Proposal.
The section of the Definitive Proxy
Statement entitled “Proposal No. 1 – The Transaction Proposal” is hereby revised as follows:
The second paragraph on page 138
of the Definitive Proxy Statement is amended and restated by deleting the following strikethrough text:
We may consummate the transaction
only with the approval at the special meeting by (A)(i) a majority of the shares of the Company’s
common stock that are voted at the special meeting and (ii) a majority of the shares of Company Class A common
stock outstanding and held by the Disinterested Stockholders and (B) with respect to the amendments to the Company’s
Certificate of Incorporation necessary to effect the transaction, (i) a majority of the shares of the Company’s
common stock outstanding and (ii) a majority of the shares of Company Class A common stock outstanding and held
by the Disinterested Stockholders.
The second and third paragraphs on
page 190 of the Definitive Proxy Statement under the subsection entitled “Vote Required for Approval” are amended
and restated as follows:
The approval of the Transaction
Proposal requires the approval at the special meeting by (i) a majority of the shares of the Company’s
common stock that are voted at the special meeting and (ii) a majority of the shares of Company Class A common
stock outstanding and held by the Disinterested Stockholders that are voted in person or represented by proxy at the special meeting
(which would include presence at the virtual special meeting) and entitled to vote thereon vote “FOR” the
Transaction Proposal.
Failure to vote by proxy or
to vote in person (which would include voting at the virtual special meeting), an abstention from voting, or a broker non-vote
will have the same effect as a vote “AGAINST” no effect on the outcome of the
Transaction Proposal.
The section of the Definitive Proxy
Statement entitled “Proposal No. 2 – The Nasdaq Proposal” is hereby revised as follows:
The first and second paragraphs on
page 193 of the Definitive Proxy Statement under the subsection entitled “Vote Required for Approval” are amended
and restated as follows:
The approval of the Nasdaq
Proposal requires the approval at the special meeting by (i) a majority of the shares of the Company’s
common stock that are voted at the special meeting and (ii) a majority of the shares of Company Class A common
stock outstanding and held by the Disinterested Stockholders.
Failure to vote by proxy or
to vote in person (which would include voting at the virtual special meeting), an abstention from voting, or a broker non-vote
will have the same effect as a vote “AGAINST” no effect on the outcome of the
Nasdaq Proposal.
The section of the Definitive Proxy
Statement entitled “Proposal No. 3 – The Charter Proposal” is hereby revised as follows:
The first paragraph on page 196
of the Definitive Proxy Statement under the subsection entitled “Vote Required for Approval” is amended and restated
by deleting the following strikethrough text:
The approval of the Charter
Proposal requires approval at the special meeting of (i) a majority of the shares of the Company’s
common stock outstanding and (ii) a majority of the shares of Company Class A common stock outstanding and held
by the Disinterested Stockholders entitled to vote thereon.
The section of the Definitive Proxy
Statement entitled “Proposal No. 6 – The Incentive Plan Proposal” is hereby revised as follows:
The first and second paragraphs on
page 216 of the Definitive Proxy Statement under the subsection entitled “Vote Required for Approval” are amended
and restated as follows:
The approval of the Incentive
Plan Proposal requires the approval at the special meeting by (i) a majority of the shares of the Company’s
common stock that are voted at the special meeting and (ii) a majority of the shares of Company Class A common
stock outstanding and held by the Disinterested Stockholders.
Failure to vote by proxy or to vote in person (which
would include voting at the virtual special meeting), an abstention from voting, or a broker non-vote will have the same
effect as a vote “AGAINST” no effect on the outcome of the Incentive Plan Proposal.
WHERE YOU CAN FIND MORE INFORMATION
The Company files
reports, proxy statements and other information with the SEC as required by the Exchange Act. You can read the Company’s
SEC filings, including this proxy statement, over the Internet at the SEC’s website at http://www.sec.gov.
If you would like additional copies of
the Definitive Proxy Statement or this Proxy Revision or if you have questions about the transaction you should contact the Company
at the following address and telephone number:
Landcadia Holdings II, Inc.
1510 West Loop South
Houston, Texas 77027
(713) 850-1010
Attention: Steven L. Scheinthal
You may also obtain these documents by
requesting them in writing or by telephone from the Company’s proxy solicitation agent at the following address and telephone
number:
Morrow Sodali LLC
470 West Avenue
Stamford, CT 06902
Telephone: (800) 662-5200
(Banks and brokers can call: (203) 658-9400)
Email: LCA.info@investor.morrowsodali.com
If you are a stockholder
and would like to request documents, please do so no later than five business days before the special meeting in order to receive
them before the special meeting. If you request any documents from the Company, the Company will mail them to you by first
class mail, or another equally prompt means.
All information contained
in this Proxy Revision relating to the Company has been supplied by the Company, and all such information relating to GNOG has
been supplied by GNOG. Information provided by either the Company or GNOG does not constitute any representation, estimate or
projection of the other.
This document is
a Proxy Revision to the Definitive Proxy Statement of the Company for the special meeting. The Company has not authorized anyone
to give any information or make any representation about the transaction, the Company or GNOG that is different from, or in addition
to, that contained in this Proxy Revision or the Definitive Proxy Statement. Therefore, if anyone does give you information of
this sort, you should not rely on it. The information contained in this Proxy Revision speaks only as of the date of this document
unless the information specifically indicates that another date applies.
ANNEX A
Second Amendment to the Purchase
Agreement
This Second Amendment
to the Purchase Agreement (this “Amendment”), dated as of December 20, 2020 (the “Amendment Date”),
amends that certain Purchase Agreement, dated as of June 28, 2020, as amended by that certain Amendment to the Purchase Agreement,
dated as of September 17, 2020, by and among Landcadia Holdings II, Inc., a Delaware corporation, LHGN HoldCo, LLC,
a Delaware limited liability company, Golden Nugget Online Gaming, LLC, a New Jersey limited liability company, as successor-in-interest
to Golden Nugget Online Gaming, Inc. (f/k/a Landry’s Finance Acquisition Co.), a New Jersey corporation, GNOG Holdings,
LLC, a Delaware limited liability company, and Landry’s Fertitta, LLC, a Texas limited liability company, (as amended, restated
or supplemented from time to time, the “Purchase Agreement”). All capitalized terms used in this Amendment
but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Purchase Agreement.
WHEREAS, pursuant
to Section 8.1 of the Purchase Agreement, the Parties may amend the Purchase Agreement prior to the Closing by a duly authorized
agreement in writing executed in the same manner as the Purchase Agreement and which makes reference to the Purchase Agreement;
WHEREAS, the
Parties have determined that it is in the best interest of the Parties that the Closing occur no later than on December 31,
2020;
WHEREAS, pursuant
to the Purchase Agreement, approval of each Transaction Proposal requires, among other things, the affirmative vote of a majority
of the shares of Landcadia Class A Common Stock outstanding and held by the Landcadia Disinterested Stockholders, approving
such Transaction Proposal;
WHEREAS, at
the time of the Special Meeting, convened on December 18, 2020 for the purpose of approval of the Transaction Proposals,
the holders of a majority of the shares of Landcadia Class A Common Stock outstanding and held by the Landcadia Disinterested
Stockholders had not cast a vote with respect to the Transaction Proposals;
WHEREAS, in
accordance with Section 5.5. of the Purchase Agreement, the Special Meeting was adjourned to December 29, 2020.
NOW, THEREFORE,
in consideration of the foregoing and the promises and covenants contained herein, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the undersigned hereby
agree as follows:
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1.
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Amendments
to the Purchase Agreement. Pursuant to Section 8.1 of the Purchase Agreement,
the Parties agree to amend the Purchase Agreement as follows with immediate effect:
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A. The
definition of “Landcadia Disinterested Stockholders” contained in Section 1.1 of the Purchase Agreement is hereby
deleted in its entirety.
B. The
definition of “Landcadia Stockholder Approval” contained in Section 1.1 of the Purchase Agreement is hereby deleted
in its entirety and replaced with the following:
“Landcadia Stockholder
Approval” means, collectively, assuming a quorum is present, (a) the affirmative vote of a majority of the shares
of Landcadia Capital Stock that are voted at the Special Meeting (as defined below), approving (i) the entry into this Agreement
by the Landcadia Parties and any Ancillary Agreement to which such Landcadia Party is a party, (ii) each of the Transaction
Proposals (as defined below), other than Transaction Proposal (C), and (iii) the consummation of the Transactions,
and (b) in the case of Transaction Proposal (C), the affirmative vote of a majority of the shares of Landcadia Capital
Stock outstanding, adopting and approving the Landcadia Fourth A&R Certificate of Incorporation.
C. The
language “Landcadia Disinterested Stockholders” is hereby deleted from Section 5.5 of the Purchase Agreement
and replaced with: “Landcadia Common Stockholders”.
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2.
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Governing
Law. This Amendment, and all claims or causes of action based upon, arising out of,
or related to this Amendment, shall be governed by, and construed in accordance with,
the Laws of the State of Delaware, without giving effect to principles or rules of
conflict of laws to the extent such principles or rules would require or permit
the application of Laws of another jurisdiction.
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3.
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Full
Force and Effect. Except as amended hereby, the Purchase Agreement shall remain in
full force and effect.
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4.
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Additional
Provisions. Article I (Definitions)
(as amended hereby) and Sections 8.1 (Modification or Amendment),
8.2 (Extension; Waiver), 8.4 (Entire
Agreement), 8.5 (Assignment),
8.7 (No Third-Party Beneficiaries), 8.9
(Consent to Jurisdiction), 8.10 (Waiver
of Trial by Jury) and 8.11 (Severability)
of the Purchase Agreement shall apply mutatis mutandis to this Amendment.
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5.
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Counterparts.
This Amendment may be executed in multiple counterparts, each of which when executed
and delivered shall thereby be deemed to be an original and all of which taken together
shall constitute one and the same instrument. Any party may deliver signed counterparts
of this Amendment to the other Parties by means of facsimile or portable document format
(.PDF) signature.
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6.
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Headings.
Headings in this Amendment are included for reference only and shall have no effect upon
the construction or interpretation of any part of this Amendment.
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7.
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Redline.
Attached hereto as Exhibit A for reference only is a redline comparison of
the amended provisions of the Purchase Agreement after giving effect to this Amendment
(the “Redline”).
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[Remainder of Page Intentionally
Left Blank]
IN WITNESS WHEREOF,
the Parties have caused this Amendment to be executed and delivered as of the date first written above by their respective officers
thereunto duly authorized.
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LANDCADIA
HOLDINGS II, INC.
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By:
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/s/ Steven L. Scheinthal
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Name:
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Steven L. Scheinthal
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Title:
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Vice President and Secretary
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LHGN
HOLDCO, LLC
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By:
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/s/ Steven L. Scheinthal
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Name:
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Steven L. Scheinthal
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Title:
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Vice President and Secretary
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LANDRY’S
FERTITTA, LLC
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By:
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/s/ Rick H. Liem
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Name:
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Rick H. Liem
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Title:
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Vice President and Treasurer
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GNOG
HOLDINGS, LLC
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By:
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/s/ Rick H. Liem
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Name:
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Rick H. Liem
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Title:
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Vice President and Treasurer
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GOLDEN
NUGGET ONLINE GAMING, INC.
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By:
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/s/ Rick H. Liem
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Name:
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Rick H. Liem
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Title:
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Vice President and Treasurer
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[Signature Page
to Second Amendment to the Purchase Agreement]
EXHIBIT A
Redline Showing Amendment
“ Landcadia Common Stockholders”
means, collectively, the holders of Landcadia Class A Common Stock and Landcadia Class B Common Stock.
“Landcadia
Disinterested Directors” means the directors on the Landcadia Board excluding Tilman J. Fertitta and Richard Handler.
“Landcadia
Disinterested Stockholders” means, collectively, all Landcadia Common Stockholders other than (a) Tilman J. Fertitta,
the Seller Parties and Related Persons of the foregoing, (b) Jefferies and any of its Related Persons, and (c) any other Person
not deemed disinterested in the Transactions under the Laws of the State of Delaware, and their respective Affiliates and Related
Persons.
“Landcadia Financial
Statements” has the meaning set forth in Section 4.9(a).
“Landcadia Fourth A&R
Certificate of Incorporation” has the meaning set forth in the Recitals.
“Landcadia
Fundamental Representations” means the representations of Landcadia and Landcadia HoldCo set forth in Section 4.1,
Section 4.2, Section 4.3, Section 4.7, and Section 4.13.
“Landcadia HoldCo”
has the meaning set forth in the Preamble.
“Landcadia HoldCo A&R LLCA”
has the meaning set forth in the Recitals. “Landcadia HoldCo Class A Units” has the meaning set forth in the
Recitals.
“Landcadia
HoldCo Class B Units” means the Class B membership interests in Landcadia HoldCo, which shall have no voting rights and
which shall be exchangeable into Landcadia Class A Common Stock in accordance with the Landcadia Organizational Documents, the
Landcadia HoldCo A&R LLCA and this Agreement.
“Landcadia
Material Adverse Effect” means (a) any change, event or effect that would prevent or materially delay the ability of
any Landcadia Party to perform its obligations under this Agreement or (b) any change, event or effect relating to any Landcadia
Party that would have a material adverse effect on the business, results of operations, workforce, properties, assets, liabilities
or financial condition of the Landcadia Parties, taken as a whole.
“Landcadia
Non-Fundamental Representations” means all of the representations of Landcadia and Landcadia HoldCo set forth in Article
V, other than the Landcadia Fundamental Representations.
“Landcadia Organizational
Documents” means the Organizational Documents of Landcadia. “Landcadia Party” means any of Landcadia
and Landcadia HoldCo.
“Landcadia Purchase
Proxy Statement” has the meaning set forth in Section 3.7.
“Landcadia
Record Date” means the record date used for determining the Landcadia Common Stockholders entitled to vote at the Special
Meeting.
“Landcadia Releasing
Parties” has the meaning set forth in Section 8.18(b).
“Landcadia
SEC Filings” means the forms, reports, schedules and other documents filed by Landcadia with the SEC, including the Landcadia
Purchase Proxy Statement, Additional Landcadia Filings, the Signing Form 8-K and the Closing Form 8-K, and all amendments, modifications
and supplements thereto.
“Landcadia
Stock Redemption” means the election of an eligible holder of Landcadia Class A Common Stock (as determined in accordance
with Landcadia Organizational Documents and the Trust Agreement) to redeem all or a portion of such holder’s shares of Landcadia
Class A Common Stock, at the per-share price, payable in cash, equal to such holder’s pro rata share of the Trust Account
(as determined in accordance with Landcadia Organizational Documents and the Trust Agreement) in connection with the Landcadia
Stockholder Approval.
“Landcadia
Stockholder Approval” means, collectively, assuming a quorum is present, (a) the affirmative vote of both
(i) a majority of the shares of Landcadia Capital Stock that are voted at the Special Meeting (as defined below)
and (ii) a majority of the shares of Landcadia Class A Common Stock outstanding and held by the
Landcadia Disinterested Stockholders, approving (xi)
the entry into this Agreement by the Landcadia Parties and any Ancillary Agreement to which such Landcadia Party is a party, (yii)
each of the Transaction Proposals (as defined below), other than Transaction Proposal (C), and (ziii)
the consummation of the Transactions, and (b) in the case of Transaction Proposal (C), the affirmative vote of both
(i) a majority of the shares of Landcadia Capital Stock outstanding and (ii) a
majority of the shares of Landcadia Class A Common Stock outstanding and held by the Landcadia Disinterested Stockholders,adopting
and approving the Landcadia Fourth A&R Certificate of Incorporation.
“Law” means any common
law, statutes, rules, codes, regulations, ordinances, determinations or orders of, or issued by, a Governmental Authority.
“Lenders”
means the lenders that are named in (and signatories to) the Credit Agreement. “LGL” means Landry’s Gaming,
LLC.
“Liabilities”
shall mean any and all Indebtedness, liabilities and obligations, whether accrued or fixed, known or unknown, absolute or contingent,
matured or unmatured or determined or determinable.
“Lien”
means any mortgage, pledge, easement, security interest, charge, claim, license, option, conditional sale or other title retention
agreement, lien or other encumbrance or right of any third party.
“Lockup
Agreement Amendment” means that certain Amendment to the Letter Agreement, to be entered into at the Closing, by and
among FEI, Jefferies, Landcadia, and the other insider signatories thereto, substantially in the form set forth on Exhibit D.
“Material Contracts”
has the meaning set forth in Section 3.13(a).
“Minimum Cash Balance” means an
amount equal to $80,000,000.
“Minimum Cash Balance Contribution”
has the meaning set forth in the Recitals.
“Nasdaq” means
The Nasdaq Stock Market LLC.
“Nasdaq
Listing Rule 5620(a) Deficiency” means any deficiency under or failure to comply with Nasdaq Listing Rule 5620(a).
“New GNOG” has the meaning set
forth in the Recitals.
“New GNOG Membership Interests”
means the membership interests of GNOG. “New Lease Agreements” has the meaning set forth in the Disclosure Schedules.
“ Nondisclosure
Agreement” means that certain Nondisclosure Agreement, dated as of June 17, 2020, by and between the Company and
Landcadia.
the Company to be
necessary or appropriate in connection with the Transactions, and (G) adjournment of the Special Meeting, if necessary, to permit
further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals
in (A) through (G), collectively, the “Transaction Proposals”). Landcadia shall promptly notify the Company
in writing of any determination to make any withdrawal of such recommendation or amendment, qualification or modification of such
recommendation in a manner adverse to the Company (a “Change in Recommendation”). Landcadia agrees that its
obligation to establish the Landcadia Record Date for, duly call, give notice of, convene and hold the Special Meeting shall not
be affected by any Change in Recommendation, and Landcadia agrees to establish the Landcadia Record Date for, duly call, give
notice of, convene and hold the Special Meeting, regardless of whether or not there shall be any Change in Recommendation. Notwithstanding
anything to the contrary contained in this Agreement, Landcadia shall be entitled to postpone or adjourn the Special Meeting (a)
to ensure that any supplement or amendment to the Landcadia Purchase Proxy Statement that the Landcadia Disinterested Directors
have determined in good faith is required by applicable Law is disclosed to Landcadia Common Stockholders and for such supplement
or amendment to be promptly disseminated to Landcadia Common Stockholders prior to the Special Meeting, (b) if, as of the time
for which the Special Meeting is originally scheduled (as set forth in the Landcadia Purchase Proxy Statement), there are insufficient
Landcadia Common Stockholders to constitute a quorum necessary to conduct the business to be conducted at the Special Meeting,
or (c) by ten (10) Business Days in order to solicit additional proxies from Landcadia DisinterestedCommon
Stockholders in favor of the adoption of the Transaction Proposals; provided, that in the event of a postponement
or adjournment pursuant to clauses (a) or (b) above, the Special Meeting shall be reconvened as promptly as practicable following
such time as the matters described in such clauses have been resolved.
Section 5.6
Closing Form 8-K; Closing Press Release. At least five (5) days prior to Closing, Landcadia shall begin preparing, in consultation
with the Company, a draft Current Report on Form 8-K in connection with and announcing the Closing, together with, or incorporating
by reference, such information that is required to be disclosed with respect to the Transactions pursuant to Form 8-K (the “Closing
Form 8-K”). Prior to the Closing, the Company and Landcadia shall prepare a mutually agreeable press release announcing
the consummation of the Transactions (“Closing Press Release”). Concurrently with the Closing, Landcadia shall
distribute the Closing Press Release, and as soon as practicable thereafter, file the Closing Form 8-K with the SEC.
Section 5.7 Access
to Information. From time to time prior to the Closing, Landcadia and Landcadia HoldCo shall, and GNOG HoldCo and the Company
shall, and shall cause each of the other Acquired Parties to (any such Person in such capacity, a “Disclosing Party”),
afford to the other Parties and their respective Representatives reasonable access, during normal business hours and with reasonable
advance notice, in such manner as to not interfere with the normal operation of such Disclosing Party, to all properties, books,
Contracts, commitments, Tax Returns, records, officers and appropriate employees of such Disclosing Party, and shall furnish such
requesting Party or Representative with all financial and operating data and other information concerning the affairs of such Disclosing
Party as such requesting Party or Representative may reasonably request, in each case, (i) subject to restrictions under applicable
Law and any confidentiality obligations or similar restrictions that may be applicable to information furnished by third parties
that may be in the possession of such Disclosing Party, and (ii) except for any information that in the opinion of legal counsel
of the Disclosing Party would result in the loss of attorney-client privilege or other privilege from disclosure. The Parties shall
use commercially reasonable efforts to make alternative arrangements for such disclosure where the limitations in the preceding
sentence apply. All information obtained by a Party pursuant to this Section 5.7 shall remain subject to the Nondisclosure
Agreement prior to the Closing.
Section 5.8 Commercially
Reasonable Efforts; Consents.