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Mailstop 3561
September 28,
2018
Tilman J. Fertitta
Chief Executive Officer
Landcadia Holdings, Inc.
1510 WestLoop South
Houston, Texas 77027
Re: Landcadia Holdings, Inc.
Preliminary Proxy Statement on Schedule 14A
Filed August 31, 2018
File No. 001-37788
Dear Mr. Fertitta:
We have reviewed your filing and have the following comments. In
some of our
comments, we may ask you to provide us with information so we may better
understand your
disclosure.
Please respond to this letter by amending your filing and providing
the requested
information. If you do not believe our comments apply to your facts and
circumstances, please
tell us why in your response.
After reviewing your response to these comments, we may have
additional comments.
General
1. Please tell us which exemption you are relying upon to issue the
stock consideration
portion of the merger consideration. In this regard, we note your
disclosure on page 119
regarding meetings held with Waitr shareholders and potential
investors.
2. We note that Jefferies is entitled to deferred underwriting
commissions upon
consummation of your initial business combination for services
rendered in connection
with your IPO and we note from your IPO registration statement on
Form S-1 filed April
28, 2016, that Jefferies agreed to waive their rights to their
deferred underwriting
commission held in the trust account in the event you did not
complete your initial
business combination within 24 months of the closing of your IPO.
Please disclose these
facts, where appropriate, throughout your proxy statement.
Additionally, please include a
risk factor discussing the potential conflict of interest stemming
from Jefferies' interest in
the consummation of the merger transaction and their role as the
board's financial advisor
in connection with the potential acquisition of Waitr or tell us why
you do not believe
such disclosure is required.
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 2
Letter to Shareholders
3. We note your disclosure in the first letter to shareholders that a
stockholder's failure to
vote "will have no effect on the outcome of any vote on the proposals."
However, it
appears that a stockholder's failure to vote will have the effect of
voting against the
Charter Proposals. Please revise.
Risk Factors, page 42
4. Please add a risk factor regarding the fact that the board did not
obtain a fairness opinion
in connection with the proposed business combination, or tell us why you
do not believe
such disclosure is required.
Our sponsors will have significant influence . . . ., page 73
5. Please discuss in this risk factor or in a separate risk factor the fact
that only holders of
your Class F common stock are entitled to elect or remove directors
prior to the
consummation of the business combination and will be entitled to elect
each of the seven
directors that will serve upon consummation of the business combination.
Unaudited Pro Forma Condensed Combined Financial Information, page 80
6. We note your disclosure that the business combination will be accounted
for as a reverse
recapitalization treated as the equivalent of Waitr issuing stock for
the net assets of the
Company with no goodwill or other intangible assets recognized. Please
provide us with
the following information to assist us in understanding how you
concluded this
transaction should be accounted for as a reverse recapitalization:
Tell us how you considered the effect of the cash to be paid to the
Waitr stockholders
as a part of the merger consideration in your analysis, particularly
under the minimum
redemption scenario where it appears that Landcadia's current
stockholders would
hold the greater voting interest in the post-combination company. As
part of your
response, tell us in more detail what types of decisions, if any,
the Landcadia
stockholder group will have control over through its majority of
voting rights under
the minimum redemption scenario.
Tell us the basis for your disclosure that Waitr will have control
of the Chairmanship
of the post-combination company's board of directors along with the
ability to
appoint five of the seven board members. As part of your response,
please reconcile
this disclosure to Proposal No. 7 which appears to require the
approval of
Landcadia's current Class F shareholders for all seven members of
the post-
combination company's board of directors. To assist us in
understanding how the
board of directors will be selected, please describe to us the
process for selecting the
initial group of directors if Landcadia's current Class F
shareholders do not approve
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 3
the slate of directors contained in Proposal No. 7, and separately
explain to us how
board members will be nominated and elected in subsequent years and
the role of the
former Landcadia stockholders in that process.
If the intent of the terms of the business combination is to give
control over the post-
combination company to the current shareholders of Waitr, making
Waitr the
accounting acquirer, please tell us the business reasons why the
transaction is not
structured to give Waitr's shareholders the majority of voting
rights in the combined
entity under all redemption scenarios.
7. We note your disclosure in Note 3 in adjustment (G) to the pro forma
balance sheet you
have reflected the conversion of the $8.5 million of Waitr convertible
notes payable as an
equity transaction. Please tell us in more detail why equity settlement
of these notes does
not result in any additional shares issued to Waitr in the business
combination. We note
your calculation of pro forma common shares outstanding on page 83, and
this
conversion does not appear to have influenced the number of pro forma
common shares
outstanding.
8. We note your disclosure in Note 3 in adjustment (G) to the pro forma
balance sheet that
the holders of the Waitr convertible notes may choose cash settlement
rather than equity
settlement. To allow your investors to better understand the range of
possible outcomes
of settling these convertible notes, please revise your description of
adjustment (G) to
quantify the estimated cash settlement amount and to explain how this
would impact
other pro forma adjustments, such as adjustment (I) and the calculation
of pro forma EPS
under the maximum redemption scenario, to allow you to maintain a cash
balance of $75
million under the maximum redemption scenario.
9. In Note 4 on page 90 you disclose that the private placement warrants
were excluded
from the computation of diluted pro forma EPS because including these
warrants would
be antidilutive. Please tell us why you believe your current disclosure
is meaningful,
including why you highlighted these specific antidilutive securities in
your disclosure but
did not mention other antidilutive securities such as the public
warrants sold in your IPO.
Comparative Per Share Information, page 91
10. We are unable to calculate the amounts presented for your historical
and pro forma
combined net tangible book value per share. Please revise or provide us
with your
computations. Please also revise the caption for book value per share
to eliminate "basic
and diluted" from the description as book value per share is computed
based on historical
or pro forma shares outstanding at the balance sheet date.
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 4
Background of the Business Combination, page 115
11. Please briefly disclose the general criteria, if any, that management
considered in
evaluating prospective candidates for a business combination.
12. Please briefly disclose why you determined not to pursue the
acquisition of the operating
casino business in May 2017 and why you determined in March 2018 that
the potential
transaction with the restaurant company affiliated with your sponsors
was not feasible.
13. Please clarify whether Mr. Phalen was acting on behalf of Waitr or by
virtue of another
relationship or affiliation with your company or management when he
e-mailed Mr. Liem
on April 10, 2018.
14. Please provide more detail regarding the substance of the "subsequent
discussions" that
occurred at the April 18, 2018 meeting following the presentation and
valuation
discussions. Please also briefly disclose why the initial offer was
rejected by Waitr, and
briefly describe the terms of the transaction discussed between Mr.
Scheinthal and Mr.
Meaux. In doing so, expand the disclosure to include a more detailed
description of the
negotiations surrounding the material terms of the merger agreement.
For example,
please specify which of the parties recommended the initial
consideration, explain how
that amount was determined, and describe how the consideration changed
over the course
of the negotiations until the parties arrived at the final
consideration amount. Please
provide similar disclosure with respect to the form and mix of
consideration.
15. Please tell us more about the discussions Messrs. Meaux, Pringle, and
Scheinthal had
with potential investors in May 2018, including whether any capital was
raised as a result
of these meetings and the intended purpose of such meetings.
Our Board's Reasons for the Approval of the Business Combination, page 119
16. We note your disclosure that Jefferies made a "financial valuation
presentation" to your
Board prior to the Board's vote to adopt the merger agreement. Please
provide the
information required by Item 1015(b) of Regulation M-A, or provide us
with a detailed
analysis as to why such information is not required. Refer to Item
14(b)(6) of Schedule
14A.
17. Please revise to elaborate upon how the Board concluded that the
proposed business
combination "represents the best potential business combination for the
Company based
upon the process utilized to evaluate and assess other potential
acquisition targets."
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 5
Certain Company Projected Financial Information, page 121
18. We note your disclosure on pages 121 and 122 cautioning security
holders against relying
upon the projections provided. Please revise this disclosure, as
security holders are
entitled to rely upon your disclosures.
19. Please briefly disclose the material assumptions underlying the
projections presented in
this section and tell us whether Waitr management provided you with any
projections
pertaining to projected costs.
Proposal No. 6--Charter Proposal D, page 139
20. Please revise throughout your proxy statement to disclose the changes
proposed in
Charter Proposal D that you disclose in this section. In this regard,
we note, for example,
that your summary on page 30 does not discuss the proposed adoption of
a forum
selection by-law provision or the amendments relating to
indemnification and
advancement of expenses to directors and officers.
21. Please revise your risk factors section to discuss the risks related to
the adoption of a
forum selection by-law provision that provides the Court of Chancery of
the State of
Delaware and the United States District Court for the District of
Delaware as the sole and
exclusive forums for stockholder actions.
Conflicts of Interest, page 156
22. We note the chart summarizing the entities to which your executive
officers and directors
currently have fiduciary duties or contractual obligations. Please
revise the chart to
indicate whether the relationship that each individual has to each
entity is fiduciary or
contractual and the priority and preference such entities have relative
to your Company
with respect to the performance of obligations and the presentation of
business
opportunities.
The Company's Management's Discussion and Analysis of Financial Condition and
Results of
Operations
Results of Operations, page 162
23. Please revise your disclosure to provide an explanation of the reasons
for the significant
increase in General and administrative expenses during the three and
six months ended
June 30, 2018 compared to the comparable prior year interim periods.
Please also
provide a discussion of your results of operations for the year ended
December 31, 2017
compared to the year ended December 31, 2016 and for that year compared
to the year
ended December 31, 2015.
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 6
Information About Waitr
Waitr Business Overview, page 164
24. Please disclose the basis for your statement that Waitr is a "leading
online ordering and
delivery platform" or state that it is management's belief, if true.
Please similarly
disclose the basis for your statement that "Waitr has established a
leading position, in
terms of number of restaurants, in nearly all of the markets in which
Waitr operates."
25. Please disclose the portion of Waitr drivers that are independent
contractors and the
portion that are direct employees of Waitr. In this regard, we note
your statement that
Waitr has over 6,100 delivery drivers and your statement on page 174
that nearly all of
Waitr's drivers are Waitr employees. We further note your risk factor
on page 60
discussing Waitr's reliance on independent contractor drivers to
perform the services for
which Waitr contracts with its Restaurant Partners.
Why Drivers Love Waitr, page 168
26. Please clarify whether this disclosure applies to both independent
contractor drivers and
drivers directly employed by Waitr.
Key Business Metrics, page 177
27. Please disclose the portion of Gross Food Sales that is attributable to
gratuities and
delivery fees. In this regard, we note your disclosure on page 174 that
Waitr drivers keep
100% of their gratuities and that you charge Restaurant Partners based
upon an order
value that excludes gratuities and delivery fees.
Waitr Management's Discussion and Analysis of Financial Condition and Results
of Operations
Results of Operations, page 182
28. We note your disclosure that revenue increased by $11,336,000 in the
three months
ended June 30, 2018 and that such increase is "due primarily to
increased transaction
volume and changes in fee structure." Please revise your disclosure to
quantify the
increase in revenue attributable to the increase in transaction volume
and that attributable
to the changes in fee structure, to the extent practicable. Please
refer to Item 303 of
Regulation S-K.
Critical Accounting Policies, page 190
29. Please refer to your critical accounting policy for goodwill beginning
on page 192. It is
unclear from your current disclosure whether you have more than one
reporting unit. It is
also unclear from your current disclosure how you concluded no
impairment was
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 7
necessary for the goodwill resulting from your acquisition of Requested
upon ceasing the
operations of Requested. Please explain these matters to us in more
detail and revise
your critical accounting policy to better explain these matters to your
investors.
Financial Statements of Landcadia Holdings, Inc. for the Year Ended December
31, 2017
Notes to Financial Statements
2. Summary of Significant Accounting Policies, page F-21
30. We note your disclosure of subsequent events on page F-23. Please tell
us whether you
met the June 29, 2018 deadline to regain compliance with NASDAQ's
listing rules. Also
tell us where you have disclosed an update on this matter in your
filing.
Financial Statements of Waitr Incorporated for the Year Ended December 31, 2017
Notes to the Consolidated Financial Statements
9. Convertible Notes, Net, page F-68
31. We note from your disclosures on page F-71 that on December 15, 2017
you amended
the Series 2017 Notes which were originally issued between August 24,
2017 and
December 14, 2017 to add a substantive conversion feature which
resulted in an
extinguishment of the original 2017 Notes and you recorded a loss on
debt
extinguishment of $10,537,000. Please explain to us how the terms of
the original 2017
Notes and the amended 2017 Notes differed and provide us with a
reasonably detailed
analysis of how and why you determined extinguishment accounting was
appropriate,
including how you determined the fair values of these instruments.
Refer to ASC 470-
50-40.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Tilman J. Fertitta
Landcadia Holdings, Inc.
September 28, 2018
Page 8
You may contact Sondra Snyder, Staff Accountant, at (202)551-3332 or
Jennifer
Thompson, Accounting Branch Chief, at (202)551-3737 if you have questions
regarding
comments on the financial statements and related matters. Please contact Danilo
Castelli, Staff
Attorney, at (202)551-6521, Lisa Kohl, Legal Branch Chief, at (202)551-3252, or
me at
(202)551-3720 with any other questions.
Sincerely,
/s/ Lisa M. Kohl for
Mara L. Ransom
Assistant Director
Office of Consumer
Products
cc: Steve Schenithal; Elliot Smith