UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

(RULE 14a-101)

 

 

Proxy Statement Pursuant to Section 14(a) of the

Securities Exchange Act of 1934

 

 

Filed by the Registrant  ☒                            Filed by a Party other than the Registrant  ☐

Check the appropriate box:

 

☒		Preliminary Proxy Statement
☐		Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))
☐		Definitive Proxy Statement
☐		Definitive Additional Materials
☐		Soliciting Material under §240.14a-12

Leisure Acquisition Corp.

(Name of Registrant as Specified In Its Charter)

N/A

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

☐		No fee required.
☐		Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
		1)		Title of each class of securities to which transaction applies:   Common Shares, Class B Warrants
		2)		Aggregate number of securities to which transaction applies:   52,130,217
		3)		Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):   $10.40 per share with respect to 22,876,251 common shares; $0.19 per share with respect to 19,253,926 common shares; $0.89 per warrant with respect to 10,000,000 warrants
		4)		Proposed maximum aggregate value of transaction:   $250,471,256.34
		5)		Total fee paid:   $32,511.17
☐		Fee paid previously with preliminary materials.
☒		Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.
		1)		Amount Previously Paid:   $32,511.17
		2)		Form, Schedule or Registration Statement No.:   Form F-4 (File No. 333-236205)
		3)		Filing Party:   GTWY Holdings Limited
		4)		Date Filed:   January 31, 2020

 

 

 

PRELIMINARY PROXY STATEMENT

SUBJECT TO COMPLETION, DATED JANUARY 31, 2020

 

LEISURE ACQUISITION CORP.

250 West 57^th Street, Suite 2223

New York, NY 10107

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD ON                 , 2020

TO THE STOCKHOLDERS OF LEISURE ACQUISITION CORP.:

NOTICE IS HEREBY GIVEN that a special meeting of stockholders of Leisure Acquisition Corp. (“LACQ”), a Delaware corporation, will be held at          a.m. eastern time, on                 , 2020, at the offices of Proskauer Rose LLP, counsel to LACQ, at Eleven Times Square, New York, New York 10036. You are cordially invited to attend the special meeting, which will be held for the following purposes:

 

(1)

to consider and vote upon a proposal to approve the business combination described in this proxy statement/prospectus, including the Agreement and Plan of Merger, dated as of December 27, 2019 (the “Merger Agreement”), by and among LACQ, GTWY Holdings Limited, a Canadian corporation (“Holdings”) and the holding company for Gateway Casinos & Entertainment Limited (“GCEL”), and GTWY Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of Holdings (“Merger Sub”), which, among other things, provides for Merger Sub to be merged with and into LACQ with LACQ being the surviving company and becoming a wholly owned subsidiary of Holdings (the “Merger”); and the other transactions contemplated by the Merger Agreement, including adoption of the amended and restated articles of incorporation of Holdings, (together with the Merger, the “Transactions”) and the related agreements described in this proxy statement/prospectus—we refer to this proposal as the “business combination proposal”; and

 

(2)

to consider and vote upon a proposal to adjourn the special meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies if LACQ is unable to consummate the business combination contemplated by the Merger Agreement—we refer to this proposal as the “adjournment proposal.”

These items of business are described in the attached proxy statement/prospectus, which we encourage you to read in its entirety before voting. Only holders of record of LACQ common stock (“LACQ Shares”) at the close of business on                 , 2020 are entitled to notice of the special meeting and to vote and have their votes counted at the special meeting and any adjournments or postponements of the special meeting.

After careful consideration, LACQ’s board of directors (the “LACQ Board”) has determined that the business combination proposal and the adjournment proposal are fair to and in the best interests of LACQ and its stockholders and unanimously recommends that you vote or give instruction to vote “FOR” the business combination proposal and “FOR” the adjournment proposal, if presented.

Consummation of the Transactions is conditional on approval of the business combination proposal at the special meeting. The adjournment proposal is not conditioned on the approval of any other proposal set forth in this proxy statement/prospectus.

All LACQ stockholders are cordially invited to attend the special meeting in person. To ensure your representation at the special meeting, however, you are urged to complete, sign, date and return the enclosed proxy card as soon as possible. If you are a stockholder of record of LACQ Shares, you may also cast your vote in person at the special meeting. If your shares are held in an account at a brokerage firm or bank, you must

instruct your broker or bank on how to vote your shares or, if you wish to attend the special meeting and vote in person, obtain a proxy from your broker or bank.

A complete list of LACQ stockholders of record entitled to vote at the special meeting will be available for ten days before the special meeting at the principal executive offices of LACQ for inspection by stockholders during ordinary business hours for any purpose germane to the special meeting.

Your vote is important regardless of the number of shares you own. Whether you plan to attend the special meeting or not, please sign, date and return the enclosed proxy card as soon as possible in the envelope provided. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted.

Thank you for your participation. We look forward to your continued support.

 

                , 2020

IF YOU RETURN YOUR PROXY CARD WITHOUT AN INDICATION OF HOW YOU WISH TO VOTE, YOUR SHARES WILL BE VOTED IN FAVOR OF EACH OF THE PROPOSALS. TO EXERCISE YOUR REDEMPTION RIGHTS, YOU MUST ELECT TO HAVE LACQ REDEEM YOUR SHARES FOR A PRO RATA PORTION OF THE FUNDS HELD IN THE TRUST ACCOUNT AND TENDER YOUR SHARES TO LACQ’S TRANSFER AGENT AT LEAST TWO (2) BUSINESS DAYS PRIOR TO THE VOTE AT THE SPECIAL MEETING. YOU MAY TENDER YOUR SHARES BY EITHER DELIVERING YOUR SHARE CERTIFICATE TO THE TRANSFER AGENT OR BY DELIVERING YOUR SHARES ELECTRONICALLY USING THE DEPOSITORY TRUST COMPANY’S DWAC (DEPOSIT AND WITHDRAWAL AT CUSTODIAN) SYSTEM. IF THE BUSINESS COMBINATION IS NOT COMPLETED, THEN THESE SHARES WILL NOT BE REDEEMED FOR CASH. IF YOU HOLD THE SHARES IN STREET NAME, YOU WILL NEED TO INSTRUCT THE ACCOUNT EXECUTIVE AT YOUR BANK OR BROKER TO WITHDRAW THE SHARES FROM YOUR ACCOUNT IN ORDER TO EXERCISE YOUR REDEMPTION RIGHTS. SEE “SPECIAL MEETING OF LACQ STOCKHOLDERS — REDEMPTION RIGHTS” FOR MORE SPECIFIC INSTRUCTIONS.

This proxy statement/prospectus is dated                 , 2020 and is first being mailed to LACQ stockholders, on or about                 , 2020.

The information in this proxy statement/prospectus is not complete and may be changed. We may not issue these securities until the registration statement filed with the Securities and Exchange Commissions is effective. This proxy statement/prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any jurisdiction where the offer or sale is not permitted.

 

PRELIMINARY PROXY STATEMENT

SUBJECT TO COMPLETION, DATED JANUARY 31, 2020

PROXY STATEMENT FOR SPECIAL MEETING OF STOCKHOLDERS OF

LEISURE ACQUISITION CORP

 

 

PROSPECTUS FOR UP TO 42,130,217 SHARES

AND 10,000,000 WARRANTS

OF

GTWY HOLDINGS LIMITED

 

 

The board of directors of Leisure Acquisition Corp., a Delaware corporation (“LACQ”), has unanimously approved the Agreement and Plan of Merger, dated as of December 27, 2019 (the “Merger Agreement”), by and among LACQ, GTWY Holdings Limited, a Canadian corporation (“Holdings”) and the holding company for Gateway Casinos & Entertainment Limited (“GCEL”), and GTWY Merger Sub Corp., a Delaware corporation and a wholly owned subsidiary of Holdings (“Merger Sub”), which, among other things, provides for Merger Sub to be merged with and into LACQ with LACQ being the surviving company and becoming a wholly owned subsidiary of Holdings (the “Merger”). In connection with the consummation of the Merger, (i) each issued and outstanding share of common stock of LACQ will be exchanged for the right to receive one share of common stock of Holdings, (ii) the outstanding public warrants of LACQ will be exchanged for warrants that entitle the holders to purchase shares of Holdings and (iii) the existing shareholders of Holdings will receive common stock and warrants of Holdings pursuant to a plan of arrangement. Accordingly, this proxy statement/prospectus covers an aggregate of 42,130,217 shares of Holdings and 10,000,000 warrants of Holdings issuable to the stockholders of LACQ and Holdings in connection with the Merger.

Proposals to approve the Merger Agreement and the other matters discussed in this proxy statement/prospectus will be presented at the special meeting of stockholders of LACQ scheduled to be held on                 , 2020.

LACQ’s units, common stock and warrants are currently listed on the Nasdaq Capital Market (the “Nasdaq”) under the symbols LACQU, LACQ and LACQW, respectively. In connection with the closing of the transactions contemplated by the Merger Agreement (the “Transactions”), Holdings intends to apply for listing of its shares and warrants on the NYSE and the NYSE American, respectively, under the symbols “GTWY” and “GTWY.WS”, respectively. It is a condition of the consummation of the Transactions that Holdings’ shares and warrants are approved for listing on the NYSE, but there can be no assurance such listing condition will be met. If such listing condition is not met, the Transactions will not be consummated unless the listing condition set forth in the Merger Agreement is waived by the parties thereto.

Each of LACQ and Holdings is an “emerging growth company” as defined in the Jumpstart Our Business Startups Act of 2012 and has elected to comply with certain reduced public company reporting requirements.

 

 

This proxy statement/prospectus provides you with detailed information about the Transactions and other matters to be considered at the special meeting of LACQ’s stockholders. We encourage you to carefully read this entire document. You should also carefully consider the risk factors described in “Risk Factors” beginning on page 23.

These securities have not been approved or disapproved by the Securities and Exchange Commission or any state securities commission nor has the Securities and Exchange Commission or any state securities commission passed upon the accuracy or adequacy of this proxy statement/prospectus. Any representation to the contrary is a criminal offense.

This proxy statement/prospectus is dated                     , 2020, and is first being mailed to LACQ stockholders on or about                     , 2020.

TABLE OF CONTENTS

 

		Page
ABOUT THIS PROXY STATEMENT/PROSPECTUS			iii
INDUSTRY AND MARKET DATA			iii
TRADEMARKS, TRADE NAMES AND SERVICE MARKS			iv
FREQUENTLY USED TERMS			v
PRESENTATION OF FINANCIAL MATTERS AND OTHER INFORMATION			vii
BASIS OF PRESENTATION			x
CURRENCY AND EXCHANGE RATE INFORMATION			xi
SUMMARY OF THE MATERIAL TERMS OF THE TRANSACTIONS			1
QUESTIONS AND ANSWERS ABOUT THE PROPOSALS			3
SUMMARY OF THE PROXY STATEMENT/PROSPECTUS			9
COMPARATIVE PER SHARE DATA			21
RISK FACTORS			23
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS			60
SPECIAL MEETING OF LACQ STOCKHOLDERS			61
THE BUSINESS COMBINATION PROPOSAL			66
THE MERGER AGREEMENT			99
REGULATORY APPROVALS REQUIRED FOR THE MERGER			108
INFORMATION ABOUT EXECUTIVE OFFICERS, DIRECTORS AND NOMINEES			110
EXECUTIVE COMPENSATION			125
DIRECTOR COMPENSATION			140
THE ADJOURNMENT PROPOSAL			141
OTHER INFORMATION RELATED TO LACQ			142
BUSINESS			153
UNAUDITED PRO FORMA CONDENSED COMBINED FINANCIAL INFORMATION			203
SELECTED SUMMARY HISTORICAL FINANCIAL INFORMATION OF GATEWAY			223
SELECTED SUMMARY HISTORICAL FINANCIAL INFORMATION OF LACQ			230
GATEWAY’S MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS			232
BENEFICIAL OWNERSHIP			279
CERTAIN RELATIONSHIPS AND RELATED PERSON TRANSACTIONS			281
DESCRIPTION OF INDEBTEDNESS			286
DESCRIPTION OF SHARE CAPITAL			290
PRICE RANGE OF SECURITIES AND DIVIDENDS			311
APPRAISAL RIGHTS			311
SUBMISSION OF STOCKHOLDER PROPOSALS			311
FUTURE STOCKHOLDER PROPOSALS			311
OTHER STOCKHOLDER COMMUNICATIONS			312

 

i

		Page
EXPERTS			312
CHANGES IN REGISTRANT’S CERTIFYING ACCOUNTANT			312
DELIVERY OF DOCUMENTS TO STOCKHOLDERS			313
ENFORCEABILITY OF CIVIL LIABILITIES			313
WHERE YOU CAN FIND MORE INFORMATION			314
INDEX TO FINANCIAL STATEMENTS			F-1
ANNEX A — MERGER AGREEMENT			A-1
EXHIBIT A — VORA SUBSCRIPTION AGREEMENT			A-A-85
EXHIBIT B — GATEWAY VOTING AGREEMENT			A-B-95
EXHIBIT C — MANAGEMENT EQUITY INCENTIVE PLAN			A-C-105
EXHIBIT D — PLAN OF ARRANGEMENT			A-D-135
EXHIBIT E — REGISTRATION RIGHTS AGREEMENT			A-E-149
EXHIBIT F — SHAREHOLDERS AGREEMENT			A-F-177
EXHIBIT G — TRANSACTION SUPPORT AGREEMENT (INCLUDING AMENDMENT NO. 1)			A-G-195
EXHIBIT H — ARTICLES OF INCORPORATION AND BYLAWS OF THE COMPANY			A-H-231

 

ii

ABOUT THIS PROXY STATEMENT/PROSPECTUS

This document, which forms part of a registration statement on Form F-4 filed with the U.S. Securities and Exchange Commission (the “SEC”) by Holdings (File No. 333-236205), constitutes a prospectus of Holdings under Section 5 of the Securities Act of 1933, as amended (the “Securities Act”), with respect to the Holdings common shares to be issued to LACQ stockholders, as well as the warrants to acquire Holdings common shares to be issued to LACQ warrant holders and the Holdings common shares underlying such warrants, if the Transactions described below are consummated. This document also constitutes a notice of meeting and a proxy statement under Section 14(a) of the U.S. Securities Exchange Act of 1934, as amended, (the “Exchange Act”), with respect to the special meeting of LACQ stockholders at which LACQ stockholders will be asked to consider and vote upon a proposal to approve the business combination by the approval and adoption of the Merger Agreement, among other matters.

Unless otherwise indicated or the context otherwise requires, all references in this proxy statement/prospectus to the terms “Gateway” and the “Company,” refer to GTWY Holdings Limited, together with its subsidiaries. All references to “Holdings” refer to GTWY Holdings Limited and none of its subsidiaries. All references in this proxy statement/prospectus to “GCEL” refer to “Gateway Casinos & Entertainment Limited,” Holdings predecessor company and which is now a wholly owned subsidiary of Holdings. All references in this proxy statement/prospectus to “LACQ” refer to “Leisure Acquisition Corp.”

INDUSTRY AND MARKET DATA

Unless otherwise indicated, information contained in this proxy statement/prospectus concerning Gateway’s industry and the regions in which it operates, including Gateway’s general expectations and market position, market opportunity, market share and other management estimates, is based on information obtained from various independent publicly available sources and reports provided to us (including reports from the British Columbia Lottery Corporation (the “BCLC”), the Alberta Gaming, Liquor and Cannabis Commission (the “AGLC”), the Alcohol and Gaming Commission of Ontario (the “AGCO”), Statistics Canada, the central statistical agency of the Province of British Columbia (“BC Stats”), the Conference Board of Canada (the “CBC”), the Canadian Gaming Association, Tourism British Columbia, Tourism Vancouver, Edmonton Tourism, Destination BC, the Ontario Lottery and Gaming Corporation (the “OLG”), Oxford Economics, Asia Pacific Foundation of Canada, Edmonton Economic Development Corporation, Alberta Culture and Tourism, the University of Las Vegas Center for Gaming Research (“UNLV”), and other industry publications, surveys and forecasts). Gateway has not independently verified the accuracy or completeness of any third-party information. Similarly, internal surveys, industry forecasts and market research, which Gateway believes to be reliable based upon its management’s knowledge of the industry, have not been independently verified. While Gateway believes that the market data, industry forecasts and similar information included in this proxy statement/prospectus are generally reliable, such information is inherently imprecise. In addition, assumptions and estimates of Gateway’s future performance and growth objectives and the future performance of its industry and the markets in which it operates are necessarily subject to a high degree of uncertainty and risk due to a variety of factors, including those discussed under the heading “Risk Factors,” “Cautionary Note Regarding Forward-Looking Statements” and “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” in this proxy statement/prospectus.

In Ontario, OLG is responsible for the conduct and management of the gaming operations on behalf of the government of Ontario pursuant to the Criminal Code of Canada, the Ontario Lottery and Gaming Corporation Act, 1999 and the Gaming Control Act (Ontario). OLG has not passed in any way upon the contents of this proxy statement and does not assume any responsibility therefor.

 

iii

TRADEMARKS, TRADE NAMES AND SERVICE MARKS

Gateway and LACQ own or have rights to trademarks, trade names and service marks that they use in connection with the operation of their respective businesses. In addition, their names, logos and website names and addresses are their trademarks or service marks. Other trademarks, trade names and service marks appearing in this proxy statement/prospectus are the property of their respective owners. Neither Gateway nor LACQ intend their use or display of other companies’ trademarks, service marks, copyrights or trade names to imply a relationship with, or endorsement or sponsorship by, any other company. Solely for convenience, in some cases, the trademarks, trade names and service marks referred to in this proxy statement/prospectus are listed without the applicable ^®, ^™ and ^SM symbols, but they will assert, to the fullest extent under applicable law, their rights to these trademarks, trade names and service marks.

 

iv

FREQUENTLY USED TERMS

As used in this proxy statement/prospectus, “casino” means a gaming property with slot machines and/or table games and “CGC” means a community gaming center property in British Columbia with slot machines and/or bingo. References to the number of “slot machines” and revenue generated from “slot machines” in this proxy statement/prospectus include video lottery terminals, or VLTs, and electronic table games. References to the number of “table games” and revenue generated from “table games” in this proxy statement/prospectus include touch bet roulette and poker tables.

Additionally, as used in this prospectus, the following terms have the meanings set forth below:

 

•

“BOSA” means bingo operating and services agreement;

 

•

“Casino Win” means the aggregate revenue generated by Casinos and CGCs from all gaming products;

 

•

“CGC” means community gaming center property in British Columbia with slot machines and/or bingo;

 

•

“CGCOSA” means community gaming center operating and services agreement;

 

•

“CGU” means cash generating unit;

 

•

“COPE” means the Canadian Office and Professional Employees union;

 

•

“COSA” means casino operating and services agreement;

 

•

“founder shares” means shares of LACQ common stock initially purchased by LACQ’s initial stockholders in a private placement prior to the LACQ IPO;

 

•

“Gaming Authorities” means, collectively, the BCLC and the OLG;

 

•

“Gaming Regulators” means, collectively, the GPEB and the AGCO;

 

•

“GMS” means Gateway’s gaming management system;

 

•

“GPEB” means the British Columbia Gaming Policy and Enforcement Branch, or any successor or replacement thereof;

 

•

“GST” means Goods and Services Tax;

 

•

“HST” means Harmonized Sales Tax;

 

•

“initial stockholders” means the holders of LACQ’s founder shares immediately prior to the LACQ IPO;

 

•

“MCOSA” means multiple casino operating and services agreement;

 

•

“Net Win” means the aggregate of Slot Win and the Table Win less free play and loyalty points redeemed;

 

•

“Poker Rake” means the commission we earn from poker tables and is calculated as a fixed percentage of the amount wagered by our customers, up to a predetermined maximum amount, on every hand of poker played;

 

•

“Slot Coin-in” means the aggregate amount of money customers have wagered on slots and other electronic gaming machines;

 

•

“Slot Win” means the amount of Slot Coin-in retained and recorded as casino revenue;

 

•

“Slot Win %” means the ratio of Slot Win divided by Slot Coin-in;

 

•

“Table Drop” means the aggregate amount of money customers deposit to purchase casino chips to wager on table games, and is commonly computed as the aggregate amount of money and promotional coupons counted in the table games’ drop boxes. Generally, the Table Drop is an indicator of our

 

v

gaming business; however, over the short-term, the Table Drop is subject to shifts in customer behavior around buying, retaining and cashing-in of casino chips;

 

•

“Table Win” means the amount of Table Drop retained and recorded as casino revenue;

 

•

“Table Win %” means the ratio of the Table Win divided by the Table Drop, which fluctuates with the statistical variations or volatility inherent in casino games, as well as with changes in customer behavior around buying, retaining and cashing-in of casino chips;

 

•

“VGT” means a video gaming terminal; and

 

•

“VLT” means a video lottery terminal.

 

vi

PRESENTATION OF FINANCIAL MATTERS AND OTHER INFORMATION

GATEWAY

International Financial Reporting Standards

This proxy statement/prospectus includes Gateway’s audited annual consolidated financial statements or the Financial Statements. Gateway’s audited consolidated financial statements for the years ended December 31, 2018 and 2017 were prepared in accordance with International Financial Reporting Standards (“IFRS”), as issued by the International Accounting Standards Board (“IASB”), the independent, private-sector body that develops and approves IFRS. None of Gateway’s financial statements were prepared in accordance with generally accepted accounting principles in the United States.

Unless indicated otherwise, Gateway’s financial information in this proxy statement/prospectus has been prepared on a basis consistent with IFRS as issued by the IASB. In making an investment decision, investors must rely on their own examination of Gateway’s results and consult with their own professional advisors.

Historical Financial Data Provided for the Ontario Properties

The audited historical financial information and results of the properties in the Southwest Gaming Bundle and North Gaming Bundle properties for their fiscal year ended March 31, 2017 and the audited historical financial information and results of the properties in the Central Gaming Bundle for their fiscal years ended March 31, 2018 and 2017 are included in this proxy statement/prospectus and were prepared or provided by the OLG and consist solely of audited combined schedules of revenue and direct expenses. See “Risk Factors—Risks Related to Our Business and Operations Following the Business Combination—The historical financial information for the Ontario properties prior to our acquisition thereof was prepared or provided by the OLG and consists of audited combined schedules of revenue and direct expenses only and does not represent complete financial statements; care should be taken when relying upon such information.” In addition, the unaudited interim financial data for the Central Ontario properties for the period of January 1, 2018 to July 17, 2018 are included in this proxy statement/prospectus under the heading “Unaudited Pro Forma Condensed Combined Financial Information.” Such unaudited interim financial data is based on unaudited site financial information prepared or provided by the OLG for the period of January 1, 2018 to July 17, 2018 and does not include certain information and adjustments necessary to conform with IFRS as issued by the IASB. See “Risk Factors—Risks Related to Our Business and Operations Following the Business Combination—The pro forma financial information included in this proxy statement/prospectus is presented for illustrative purposes only and may not be an indication of our financial condition or results of operations following the consummation of the Transactions.”

Discontinued Operations

As at September 30, 2019, Gateway made a formal decision to sell its operations in the Edmonton region, comprising Grand Villa Casino Edmonton, Starlight Casino Edmonton, and the regional corporate office in Edmonton (together, the “Edmonton Region”). As a result of these plans, the Edmonton Region has been presented as discontinued operations on a retroactive basis. The term “discontinued operations” is used to distinguish results related to the Edmonton Region operations. The term “continuing operations” is used to distinguish results that have excluded discontinued operations. See also Risk Factors—Risks Related to Our Business and Operations Following the Business Combination—We may not complete a disposition of the Edmonton Region operations in a timely manner or at all, and any such disposition may not be on favorable terms to us,” “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Discontinued Operations,” “Business—Discontinued Operations” and Gateway’s consolidated financial statements (including the notes thereto). Except as otherwise indicated, financial, non-IFRS financial measures, operating and other data presented in this proxy statement/prospectus excludes discontinued operations.

 

vii

Non-IFRS Financial Measures

This proxy statement/prospectus refers to certain non-IFRS financial measures including financial measures commonly used by financial analysts in evaluating the financial performance of companies, including companies in the gaming industry. These measures are not recognized measures under IFRS and do not have a standardized meaning prescribed by IFRS and are therefore unlikely to be comparable to similar measures presented by other companies. Rather, these measures are provided as additional information to complement those IFRS measures by providing further understanding of Gateway’s results of operations from management’s perspective. Accordingly, these measures should not be considered in isolation nor as a substitute for analysis of Gateway’s financial information reported under IFRS.

Gateway uses non-IFRS financial measures including “Adjusted EBITDA,” “Adjusted EBITDA Margin,” “Adjusted Property EBITDA,” “Adjusted Property EBITDA Margin,” “EBITDA,” “Free Cash Flow” and “Free Cash Flow Conversion” (collectively, the “Non-IFRS Financial Measures”). For purposes of this proxy statement/prospectus, these terms are defined as follows:

 

•

“Adjusted EBITDA” means EBITDA plus (i) share-based compensation, (ii) change in fair value of embedded derivative, (iii) change in fair value of cross currency interest rate swaps, (iv) loss on debt extinguishment, (v) loss on debt modification, (vi) foreign exchange (gain) loss, (vii) loss (gain) on sale of property and equipment, (viii) non-cash deferred rent, (ix) tax adjustment for prior periods, (x) business acquisition, transaction, site pre-opening, restructuring and other, and (xi) writedown of non-financial assets.

 

•

“Adjusted EBITDA Margin” means the ratio of Adjusted EBITDA to total revenue.

 

•

“Adjusted Property EBITDA” means the Adjusted EBITDA for each reporting segment or property, as applicable, excluding corporate costs.

 

•

“Adjusted Property EBITDA Margin” means the ratio of Adjusted Property EBITDA for a reporting segment to total revenue of the reporting segment.

 

•

“EBITDA” means, unless otherwise noted or the context otherwise indicates, (loss) income and comprehensive (loss) income for the period plus (i) depreciation of property and equipment and right-of-use assets, (ii) amortization of intangible assets, (iii) interest expense, net (iv) income tax expense, less (v) recovery of income taxes.

 

•

“Free Cash Flow” means Adjusted EBITDA less maintenance capital expenditures, interest expense pertaining to long term debt, amortization of deferred transaction costs and premium on long term debt, current taxes paid and mandatory debt principal repayments.

 

•

“Free Cash Flow Conversion” means Free Cash Flow divided by Adjusted EBITDA.

 

•

“Property Operating Expense” means human resources, operating, marketing and promotion, occupancy and cost of food & beverage service expenses.

Except as otherwise stated herein, each such non-IFRS financial measure excludes amounts attributable to discontinued operations.

Gateway adopted IFRS 16 on January 1, 2019 using the modified retrospective approach and 2018 and 2017 reported figures have not been restated. See “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—New Accounting Standards Applied This Period.” Gateway uses “Adjusted EBITDA (excluding the impact of IFRS 16)” and “Adjusted Property EBITDA (excluding the impact of IFRS 16)”, which deducts cash rent paid, to provide readers with a measure that is comparable to 2018 and 2017 results.

These Non-IFRS Financial Measures are used to provide management and investors with supplemental measures of Gateway’s operating performance and thus highlight trends in its core business that may not

 

viii

otherwise be apparent when relying solely on IFRS measures. Certain of the above Non-IFRS Financial Measures also remove the impact of certain non-routine, non-recurring, and/or non-cash items to enable management, investors and analysts to gain a clearer understanding of the measures underlying Gateway’s financial performance and help to provide a more complete understanding of factors and trends impacting Gateway’s business. Gateway also believes that securities analysts, investors and other interested parties frequently use these Non-IFRS Financial Measures in the evaluation of issuers similar to Gateway. In particular, EBITDA, Adjusted EBITDA, Adjusted EBITDA (excluding the impact of IFRS 16), Adjusted Property EBITDA, Adjusted Property EBITDA (excluding the impact of IFRS 16) and Adjusted EBITDA Margin are non-IFRS financial measures commonly used by financial analysts in evaluating the financial performance of companies, including companies in the gaming industry. Gateway believes Free Cash Flow and Free Cash Flow Conversion are non-IFRS financial measures that are meaningful to investors as they are useful measures of performance and Gateway uses these measures as an indication of the strength of Gateway’s business model and its ability to generate cash. Gateway’s management also uses these Non-IFRS Financial Measures in order to facilitate operating performance comparisons on a consistent basis from period to period, to provide a more complete understanding of factors and trends affecting its business, to prepare annual operating budgets and forecasts and to determine components of management compensation. As there is no generally accepted method of calculating the Non-IFRS Financial Measures, the Non-IFRS Financial Measures as used herein are not necessarily comparable to similarly titled measures of other companies. The items excluded from EBITDA are significant in assessing Gateway’s operating results and liquidity. The Non-IFRS Financial Measures have limitations as analytical tools and should not be considered in isolation from, or as an alternative to, net income, cash flow from operations or other data prepared in accordance with IFRS. Therefore, readers are cautioned that the Non-IFRS Financial Measures do not have a standardized meaning and should not be used in isolation or as a substitute for net (loss) income, cash flows from operating activities or other income or cash flow statement data prepared in accordance with IFRS.

For a presentation and reconciliation of the foregoing Non-IFRS Financial Measures to their most directly comparable measures under IFRS, see “Selected Summary Historical Financial Information of Gateway.”

LACQ

This proxy statement/prospectus includes LACQ’s audited annual financial statements. LACQ’s audited financial statements for the year ended December 31, 2018 and for the period from September 11, 2017 (inception) through December 31, 2017 were prepared in accordance with generally accepted accounting principles in the United States (“US GAAP”). Unless otherwise indicated, LACQ’s financial information in this proxy statement/prospectus has been prepared on a basis consistent with US GAAP. In making an investment decision, investors must rely on their own examination of LACQ’s results and consult with their own professional advisors.

 

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BASIS OF PRESENTATION

Gateway publishes its consolidated financial statements in Canadian dollars. LACQ publishes its financial statements in US dollars. In this proxy statement/prospectus, unless otherwise specified, all monetary amounts are in Canadian dollars, all references to “$” and “C$” mean Canadian dollars and all references to “US$,” “USD” and “dollars” mean US dollars.

This proxy statement/prospectus includes Gateway’s historical audited consolidated financial statements as of and for the years ended December 31, 2018 and 2017, presented in Canadian dollars and prepared in accordance with IFRS as issued by the IASB. Prior to the completion of a reorganization of GCEL on May 3, 2019, pursuant to which the GCEL shareholders transferred their GCEL common shares to Holdings in exchange for common shares of Holdings, on the basis of one Holdings common share for each GCEL common share, Holdings had no material operating, investing or financing activities. Accordingly, the consolidated balance sheet and results of operations of GCEL are substantially identical for the periods for which financial information of Holdings and its subsidiaries are presented in this prospectus. This prospectus includes Gateway’s unaudited condensed consolidated interim financial statements for the nine months ended September 30, 2019 and 2018 presented in Canadian dollars and prepared in accordance with International Accounting Standards (“IAS”) IAS 34, Interim Financial Reporting. None of the Gateway financial statements were prepared in accordance with generally accepted accounting principles in the United States. As a result of the acquisition of the Central Bundle from the OLG in 2018, and the acquisitions of the North and Southwest Bundles in 2017, financial results for the year ended December 31, 2018 are not entirely comparable to the year ended December 31, 2017. In addition, Gateway’s financial results for the nine months ended September 30, 2019 are not entirely comparable to the nine months ended September 30, 2018.

Gateway and LACQ have made rounding adjustments to some of the figures included in this proxy statement/prospectus. Accordingly, numerical figures shown as totals in some tables may not be an arithmetic aggregation of the figures that preceded them.

 

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CURRENCY AND EXCHANGE RATE INFORMATION

The following table sets forth, for each period indicated, the period-end and the high and low exchange rate for US dollars expressed in Canadian dollars, and the average exchange rate for the periods indicated. These rates are based on the noon buying rate certified for custom purposes by the US Federal Reserve Bank of New York set forth in the H.10 statistical release of the Federal Reserve Board. These rates are provided solely for your convenience and are not necessarily the exchange rates that Gateway and LACQ used in this proxy statement/prospectus or will use in the preparation of any other reports or information to be provided to you. Neither Gateway nor LACQ make any representation that any Canadian dollar or US dollar amounts referred to in this proxy statement/prospectus could have been or could be converted into US dollars or Canadian dollars, as the case may be, at any particular rate or at all. Gateway maintains its books and records and has presented its results of operations in Canadian dollars. LACQ maintains its books and records and has presented its results of operations in US dollars.

On                  , 20    , the noon buying rate was US$1.00 = C$        .

 

		Period End				Period Average				Low				High
		(C$ per US$)
Year Ended December 31:
2013			1.0637				1.0300				0.9839				1.0697
2014			1.1601				1.1043				1.0634				1.1644
2015			1.3839				1.2791				1.1725				1.3970
2016			1.3426				1.3243				1.2544				1.4592
2017			1.2517				1.2984				1.2131				1.3745
2018			1.3644				1.3436				1.3190				1.3650
2019			1.2962				1.3269				1.2962				1.3591

 

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SUMMARY OF THE MATERIAL TERMS OF THE TRANSACTIONS

The parties to the Merger Agreement are Holdings, LACQ and Merger Sub. Pursuant to the Merger Agreement, Merger Sub will be merged with and into LACQ with LACQ being the surviving company in the Merger. See “The Merger Agreement.”

Holdings is the direct parent of GCEL. GCEL is one of the largest and most diversified gaming and entertainment companies in Canada with 25 gaming properties in British Columbia and Ontario. As at September 30, 2019, across its entire portfolio (excluding discontinued operations), GCEL currently employs over 7,500 people and features approximately 365 table games (including 40 poker tables), 12,815 slots, 72 food and beverage outlets and 561 hotel rooms. A multi-pronged growth strategy has seen GCEL diversify and expand its product offering, including developing proprietary casino and restaurant brands, dramatically improving the gaming customer experience while attracting new customers. Some of GCEL’s proprietary brands include Match Eatery & Public House, Atlas Steak + Fish and the new Halley’s Club. In 2017, GCEL celebrated 25 years in the business of gaming and entertainment in Canada. Two additional gaming properties in Edmonton, Alberta are being held for sale by GCEL and are presented in this proxy/prospectus as discontinued operations.

Pursuant to the Merger Agreement, stockholders of Holdings will receive an aggregate amount of cash equal to the Company Pre-Closing Distribution Amount (as defined in the Merger Agreement). In addition, immediately prior to the exchange of the LACQ shares (as defined below) for common shares of Holdings (“Holdings Shares”), the Holdings Shares held by the Holdings Owners will be consolidated so that the number of issued and outstanding Holdings Shares immediately after the consolidation will be based on a reference price of US$10.00 per share. See “The Business Combination Proposal—General—Consideration to the stockholders of Holdings.”

Upon the closing of the Transactions (the “Closing”), each outstanding share of common stock of LACQ (“LACQ Shares”) will be exchanged for the right to receive one Holdings Share and the outstanding warrants of LACQ (“LACQ Warrants”) will be exchanged for warrants that entitle the holders to purchase Holdings Shares. Accordingly, at the Closing, the current stockholders of Holdings would hold approximately 43% of the issued and outstanding Holdings Shares and current stockholders of LACQ would hold approximately 57% of the issued and outstanding Holdings Shares (assuming no holder of LACQ Shares exercises redemption rights as described in this proxy statement/prospectus, and based on current estimates of transaction expenses), including Holdings Shares acquired pursuant to the Strategic Investor Subscription Agreement and excluding the impact of (i) the warrants to purchase Holdings Shares (the “Holdings Warrants”) and (ii) 1,280,835 compensatory options issued to GCEL’s management. See “The Business Combination Proposal—General—Pro Forma Ownership of Holdings and LACQ Holders.”

LACQ’s initial stockholders, including Hydra Management, LLC, a Delaware limited liability company, an affiliate of A. Lorne Weil (the “Hydra sponsor”), Matthews Lane Capital Partners LLC, a Delaware limited liability company and an affiliate of Daniel B. Silvers (the “Matthews Lane sponsor” and together with the Hydra sponsor, the “Sponsors”) and HG Vora Capital Management LLC on behalf of one or more funds or accounts managed by it (the “Strategic Investor”), LACQ and Holdings have entered into the Transaction Support Agreement pursuant to which they have agreed to comply with certain provisions of the Merger Agreement as if such persons were original signatories to the Merger Agreement, as well as the covenants set forth in the Transaction Support Agreement, including voting all LACQ Shares beneficially owned by such persons in favor of the Transactions. The Transaction Support Agreement provides that an aggregate of 1,000,000 LACQ Shares held by certain initial stockholders will be forfeited, subject to the Closing of the Transactions. The Transaction Support Agreement also provides that (i) the LACQ Shares and LACQ Warrants held by the initial stockholders, including the Sponsors and the Strategic Investor (excluding LACQ Shares acquired by the Strategic Investor in the initial public offering of LACQ (the “LACQ IPO”), will be subject to certain transfer restrictions until the earlier of the consummation of the Transactions and the termination of the Merger Agreement in accordance with its terms, and (ii) Holdings would make certain advances to A. Lorne Weil and Daniel B. Silvers in the event that

 

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either person is subject to current U.S. federal income tax liability as a result of the Merger failing to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. See “The Business Combination Proposal—Interests of LACQ’s Insiders and Initial Stockholders.”

The Merger Agreement provides that (i) Holdings may terminate the Merger Agreement if the Transactions are not consummated on or before the later of (a) June 1, 2020, and (b) if audited financial statements for the year ended December 31, 2019 are required to be included in this proxy statement/prospectus under the rules and regulations of the SEC, the date that is 45 days after Holdings’ delivery of such audited financial statements to LACQ, and the delay in closing beyond such date is not due to the breach of the Merger Agreement by Holdings (the “Company Outside Date Termination Right”) or (ii) LACQ may terminate the Merger Agreement if the Transactions are not consummated by July 15, 2020, in each case provided that the delay in closing beyond such date is not primarily due to the willful breach of the Merger Agreement by the terminating party. Additionally, the Merger Agreement may be terminated by either LACQ or Holdings, among other reasons, upon a material breach of the other party if not cured within 30 days of delivery to such party of a notice of such breach. Holdings and LACQ are each required to pay the other a termination fee in the event the Merger Agreement is terminated under certain circumstances. See “The Merger Agreement—Conditions to Closing of the Transactions.”

In addition to voting on the Transactions, the stockholders of LACQ will also vote on whether to adjourn the special meeting to a later date, if necessary. See “The Adjournment Proposal.”

The parties expect that upon consummation of the Transactions, the board of directors of Holdings (the “Holdings Board”) will consist of nine directors. Upon completion of the Transactions, the executive officers of Holdings will include Tony Santo (President and Chief Executive Officer), as well as those persons described under “Information about Executive Officers, Directors and Nominees.” In addition, Marc J. Falcone is expected to be appointed President and Chief Executive Officer of Holdings shortly following closing of the Transactions, upon the retirement of Mr. Santo. Mr. Santo currently holds the same positions with Gateway. See “Information about Executive Officers, Directors and Nominees.”

Pursuant to the Registration Rights Agreement, The Catalyst Capital Group (“Catalyst”), the Strategic Investor and the Sponsors will be granted certain rights to have registered, in certain circumstances, for resale under the Securities Act the Holdings Shares received by them in the Transactions and the warrants of Holdings (“Holdings Warrants”), and shares underlying such Warrants, held by them following the consummation of the Transactions, subject to certain conditions set forth therein. See “The Business Combination Proposal—Related Agreements—Registration Rights Agreement.” Pursuant to the Shareholders’ Agreement, Catalyst (and certain of its affiliated investment funds), certain Sponsor parties affiliated with A. Lorne Weil and certain Sponsor parties affiliated with Daniel B. Silvers will be granted certain rights to nominate members of the Holdings Board following the closing of the Transactions, subject to certain conditions set forth therein. See “The Business Combination Proposal—Related Agreements—Shareholders’ Agreement and Strategic Investor Side Letter.”

 

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QUESTIONS AND ANSWERS ABOUT THE PROPOSALS

The questions and answers below highlight only selected information from this proxy statement/prospectus and only briefly address some commonly asked questions about the special meeting and the proposals to be presented at the special meeting, including with respect to the proposed business combination. The following questions and answers do not include all the information that is important to LACQ stockholders. Stockholders are urged to read carefully this entire proxy statement/prospectus, including the Annexes and the other documents referred to herein, to fully understand the proposed business combination and the voting procedures for the special meeting.

 

Q.	Why am I receiving this proxy statement/prospectus?

 

A.

LACQ and Holdings have agreed to a business combination under the terms of the Merger Agreement that is described in this proxy statement/prospectus. A copy of the Merger Agreement is attached to this proxy statement/prospectus as Annex A and LACQ encourages its stockholders to read it in its entirety. LACQ’s stockholders are being asked to consider and vote upon a proposal to approve the Merger Agreement, which, among other things, provides for Merger Sub to be merged with and into LACQ with LACQ being the surviving corporation in the Merger and becoming a wholly owned subsidiary of Holdings, and the other Transactions contemplated by the Merger Agreement. See “The Business Combination Proposal.”

 

Q.	Are there any other matters being presented to stockholders at the meeting?

 

A.

In addition to voting on the business combination, the stockholders of LACQ will vote on whether to adjourn the meeting to a later date or dates to permit further solicitation and vote of proxies if LACQ would not have been able to consummate the business combination. See “The Adjournment Proposal.”

LACQ will hold the special meeting of its stockholders to consider and vote upon these proposals. This proxy statement/prospectus contains important information about the proposed business combination and the other matters to be acted upon at the special meeting. Stockholders should read it carefully. Consummation of the Transactions is conditional on approval of the business combination proposal at the special meeting.

The vote of LACQ stockholders is important. LACQ Stockholders are encouraged to vote as soon as possible after carefully reviewing this proxy statement/prospectus.

 

Q.	Why is LACQ proposing the business combination?

 

A.	LACQ was organized to effect a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar business combination with one or more businesses or entities.

On December 5, 2017, LACQ completed its initial public offering of units (“LACQ Units”), with each unit consisting of one share of its common stock and one-half of one warrant, each whole warrant to purchase one share of common stock at a price of US$11.50, raising total gross proceeds of approximately US$200,000,000. Since the LACQ IPO, LACQ’s activity has been limited to the evaluation of business combination candidates.

Gateway is one of the largest and most diversified gaming and entertainment companies in Canada. With 25 properties across British Columbia and Ontario—up from 10 in 2015—Gateway has significantly expanded its footprint, while diversifying and expanding its product offering to include well-known proprietary casino and restaurant brands. Gateway has demonstrated a track record of successfully operating, developing and acquiring gaming properties and contributing to the communities in which it operates.

Based on its due diligence investigations of Gateway and the industry in which it operates, including the financial and other information provided by Gateway in the course of their negotiations in connection with

 

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the Merger Agreement, LACQ believes that the Transactions will provide Gateway with a foundation for a very promising future as a leading, diversified gaming and entertainment platform throughout North America. As a result, LACQ believes that a business combination with Gateway will provide LACQ stockholders with an opportunity to participate in the ownership of a company with a solid foundation for ongoing growth. See “The Business Combination Proposal—LACQ’s Board of Directors’ Reasons for Approval of the Transactions.”

 

Q.	Did the LACQ Board obtain a third-party valuation or fairness opinion in determining whether or not to proceed with the business combination?

 

A.

LACQ’s board of directors (the “LACQ Board”) did not obtain a third-party valuation or fairness opinion in connection with their determination to approve the business combination with Gateway. LACQ’s officers and directors each have substantial experience in evaluating the operating and financial merits of companies from a wide range of industries and concluded that their experience and backgrounds, together with the relevant experience and sector expertise of LACQ’s financial advisors, enabled them to make the necessary analyses and determinations regarding the business combination with Gateway. In addition, LACQ’s officers and directors and LACQ’s advisors each have substantial experience with mergers and acquisitions. Accordingly, investors will be relying solely on the judgment of each of the LACQ Board in valuing the Company’s business.

 

Q.	Do I have redemption rights?

 

A.

If you are a holder of public shares, you have the right to demand that LACQ redeem such shares for a pro rata portion of the cash held in LACQ’s trust account (the “Trust Account”), whether or not you vote your public shares for or against the business combination proposal or do not vote your public shares. LACQ sometimes refers to these rights to demand redemption of the public shares as “redemption rights.”

Notwithstanding the foregoing, a holder of public shares, together with any affiliate of his/her or any other person with whom such holder is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act) will be restricted from seeking redemption with respect to more than 20% of the public shares. Accordingly, all public shares in excess of 20% held by a public stockholder, together with any affiliate of such holder or any other person with whom such holder is acting in concert or as a “group,” will not be redeemed.

Under LACQ’s amended and restated certificate of incorporation, as amended, the business combination may be consummated only if LACQ has at least US$5,000,001 of net tangible assets after giving effect to the redemption rights of all holders of public shares that properly demand redemption of their shares for cash. However, Holdings and Merger Sub are not required to consummate the Transactions if immediately prior to the consummation of the Transactions, the amounts of cash in the Trust Account, following the exercise of any applicable redemptions rights by LACQ shareholders, is less than the greater of (i) US$15,000,000 and (ii) LACQ’s transaction expenses.

 

Q.	How do I exercise my redemption rights?

 

A.

If you are a holder of public shares and wish to exercise your redemption rights, you must demand that LACQ redeem your shares into cash no later than the second business day preceding the vote on the business combination proposal by delivering your stock to LACQ’s transfer agent physically or electronically using Depository Trust Company’s DWAC (Deposit and Withdrawal at Custodian) system prior to the vote at the special meeting. Any holder of public shares will be entitled to demand that such holder’s shares be redeemed for a full pro rata portion of the amount then in the Trust Account (which, for illustrative purposes, was approximately US$        , or US$        per share, as of                 , 2020, the record date). Such amount, less any owed but unpaid taxes on the funds in the Trust Account, will be paid promptly upon consummation of the business combination. However, under Delaware law, the proceeds held in the

 

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Trust Account could be subject to claims which could take priority over those of LACQ’s public stockholders exercising redemption rights, regardless of whether such holders vote for or against the business combination proposal. Therefore, the per-share distribution from the Trust Account in such a situation may be less than originally anticipated due to such claims.

Any request for redemption, once made by a holder of public shares, may be withdrawn at any time up to the time the vote is taken with respect to the business combination proposal at the special meeting. If you deliver your shares for redemption to LACQ’s transfer agent and later decide prior to the special meeting not to elect redemption, you may request that LACQ’s transfer agent return the shares (physically or electronically). You may make such request by contacting LACQ’s transfer agent at the address listed at the end of this section.

Any corrected or changed proxy card or written demand of redemption rights must be received by LACQ’s transfer agent prior to the vote taken on the business combination proposal at the special meeting. No demand for redemption will be honored unless the holder’s stock has been delivered (either physically or electronically) to the transfer agent prior to the vote at the special meeting.

If demand is properly made as described above, then, if the business combination is consummated, LACQ will redeem these shares for a pro rata portion of funds deposited in the Trust Account. If you exercise your redemption rights, then you will be exchanging your LACQ Shares for cash and will not be entitled to shares of Holdings upon consummation of the Transactions.

If you are a holder of public shares and you exercise your redemption rights, it will not result in the loss of any LACQ Public Warrants that you may hold. Your whole warrants will become exercisable to purchase one Holdings Share in lieu of one LACQ Share for a purchase price of US$11.50 upon consummation of the business combination.

 

Q.	Do I have appraisal rights if I object to the proposed business combination?

 

A.	No. Neither LACQ stockholders nor its unit or warrant holders have appraisal rights in connection with the business combination under the Delaware General Corporation Law (the “DGCL”). See “Special Meeting of LACQ Stockholders—Appraisal Rights.”

 

Q.	What happens to the funds deposited in the Trust Account after consummation of the business combination?

 

A.

The net proceeds of the LACQ IPO together with the amount raised from the private sale of warrants simultaneously with the consummation of the LACQ IPO, for a total of US$200,000,000, was placed in the Trust Account immediately following the LACQ IPO. In connection with the 2019 Extension Special Meeting (as defined herein), a total of 1,123,749 public shares were redeemed for cash from the Trust Account, for an aggregate redemption amount of approximately US$11.6 million. As of the date of this proxy/prospectus, additional Contributions (as defined herein) totaling approximately US$        million have been deposited into the Trust Account. In connection with the consummation of the business combination, the funds in the Trust Account will be used to pay holders of the public shares who exercise redemption rights, to pay fees and expenses incurred in connection with the business combination (including aggregate fees of up to US$7,000,000 as deferred underwriting commissions), to repay all or a portion of Holdings’ existing holding company loan (the “Holdings Term Loan”) under the Holdings Credit Agreement (as defined herein) which had an estimated outstanding balance of approximately US$153.5 million (equivalent to approximately C$199.4 million as of December 31, 2019) as of December 31, 2019) and to the extent of available funds (i) to fund any cash consideration to existing stockholders of Holdings and (ii) for general corporate purposes of the combined company.

 

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Q.	What happens if a substantial number of public stockholders vote in favor of the business combination proposal and exercise their redemption rights?

 

A.

LACQ’s public stockholders may vote in favor of the business combination and still exercise their redemption rights. Accordingly, the business combination may be consummated even though the funds available from the Trust Account and the number of public stockholders are substantially reduced as a result of redemptions by public stockholders. However, Holdings and Merger Sub are not required to consummate the Transactions if immediately prior to the consummation of the Transactions, the amount of cash in the Trust Account, following the exercise of any applicable redemptions rights by LACQ shareholders, is less than the greater of (i) US$15,000,000 and (ii) LACQ’s transaction expenses. Also, to the extent that there are fewer public shares and public stockholders, the trading market for the Holdings Shares may be less liquid than the market was prior to the Transactions and Holdings may not be able to meet the listing standards of a national securities exchange. In addition, to the extent of any redemptions, fewer funds from the Trust Account would be available to Holdings to be used in its business and Holdings would not be able to achieve the same level of reduction in its outstanding indebtedness.

 

Q.	What happens if the business combination is not consummated?

 

A.

If LACQ does not complete the business combination with Gateway for whatever reason, LACQ may search for another target business with which to complete a business combination. If LACQ does not complete the business combination with Gateway or another target business by April 5, 2020 (or a later date to the extent of a subsequent extension approved by shareholders) (the “completion window”), LACQ must redeem 100% of the outstanding public shares, at a per-share price, payable in cash, equal to the amount then held in the Trust Account divided by the number of outstanding public shares. The LACQ Board, LACQ’s officers and other initial stockholders and their respective affiliates (including the Sponsors) have no redemption rights in the event a business combination is not effected in the required time period, and, accordingly, their founder shares would be worthless. Additionally, in the event of such liquidation, there would be no distribution with respect to the outstanding LACQ Warrants. Accordingly, the warrants would expire worthless.

 

Q.	How do the Sponsors and the Strategic Investor intend to vote on the proposals?

 

A.

LACQ’s initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) own of record and are entitled to vote an aggregate of approximately 25% of the outstanding LACQ Shares. Such parties have agreed to vote any founder shares and any public shares held by them as of the record date, in favor of the business combination.

 

Q.	When do you expect the business combination to be completed?

 

A.

It is currently anticipated that the business combination will be consummated promptly following the LACQ special meeting which is set for                 , 2020; however, such meeting could be adjourned, as described above. The closing of the Transactions is also subject to required regulatory approvals, contractual approvals from Crown agencies, including, but not limited to approvals from the Ontario Lottery and Gaming Corporation (“OLG), approval of the Holdings shareholders and other customary closing conditions. For a description of the conditions to the completion of the business combination, see “The Merger Agreement—Conditions to the Closing of the Transactions.”

 

Q.	What do I need to do now?

 

A.

LACQ urges you to read carefully and consider the information contained in this proxy statement/prospectus, including the annexes, and to consider how the business combination will affect you as a stockholder of LACQ. Stockholders should then vote as soon as possible in accordance with the instructions provided in this proxy statement/prospectus and on the enclosed proxy card.

 

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Q.	How do I vote?

 

A.

If you are a holder of record of LACQ Shares on the record date, you may vote in person at the special meeting or by submitting a proxy for the special meeting. You may submit your proxy by completing, signing, dating and returning the enclosed proxy card in the accompanying pre-addressed postage paid envelope. If you hold your shares in “street name,” which means your shares are held of record by a broker, bank or nominee, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted. In this regard, you must provide the broker, bank or nominee with instructions on how to vote your shares or, if you wish to attend the meeting and vote in person, obtain a proxy from your broker, bank or nominee.

 

Q.	If my shares are held in “street name,” will my broker, bank or nominee automatically vote my shares for me?

 

A.	No. Your broker, bank or nominee cannot vote your shares unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank or nominee.

 

Q.	May I change my vote after I have mailed my signed proxy card?

 

A.

Yes. Stockholders may send a later-dated, signed proxy card to LACQ’s transfer agent at the address set forth at the end of this section so that it is received prior to the vote at the special meeting or attend the special meeting in person and vote. Stockholders also may revoke their proxy by sending a notice of revocation to LACQ’s transfer agent, which must be received prior to the vote at the special meeting.

 

Q.	What happens if I fail to take any action with respect to the special meeting?

 

A.

If you fail to take any action with respect to the special meeting, do not exercise your redemption rights and the business combination is approved by stockholders and consummated, your LACQ Shares will be exchanged for Holdings Shares and/or your warrants will entitle you to purchase Holdings Shares rather than LACQ Shares. If you fail to take any action with respect to the special meeting and the business combination is not approved, you will continue to be a stockholder and/or warrant holder of LACQ.

 

Q.	What should I do with my stock and/or warrants certificates?

 

A.

Those stockholders who do not elect to have their LACQ Shares redeemed for the pro rata share of the Trust Account should not submit their stock certificates now. After the consummation of the business combination, Holdings will send instructions to LACQ stockholders regarding the exchange of their LACQ Shares for Holdings Shares. LACQ stockholders who exercise their redemption rights must deliver their stock certificates to LACQ’s transfer agent (either physically or electronically) prior to the vote at the special meeting as described above.

Upon consummation of the Transactions, the LACQ Public Warrants, by their terms, will entitle holders to purchase shares of Holdings. Therefore, warrant holders need not deliver their warrants to LACQ or Holdings at that time.

 

Q.	What should I do if I receive more than one set of voting materials?

 

A.

Stockholders may receive more than one set of voting materials, including multiple copies of this proxy statement/prospectus and multiple proxy cards or voting instruction cards. For example, if you hold your shares in more than one brokerage account, you will receive a separate voting instruction card for each brokerage account in which you hold shares. If you are a holder of record and your LACQ Shares are registered in more than one name, you will receive more than one proxy card. Please complete, sign, date and return each proxy card and voting instruction card that you receive in order to cast a vote with respect to all of your LACQ Shares.

 

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Q.	Who can help answer my questions?

 

A.	If you have questions about the Transactions or if you need additional copies of the proxy statement/prospectus or the enclosed proxy card you should contact:

Leisure Acquisition Corp.

250 West 57^th Street

Suite 2223

New York, New York 10107

Attention: George Peng, Chief Financial Officer

Tel: (646) 565-6940

or:

Morrow Sodali LLC

470 West Avenue

Stamford, Connecticut 06902

Tel: (800) 662-5200

Banks and brokers can call collect at: (203) 658-9400

Email: LACQ.info@investor.morrowsodali.com

You may also obtain additional information about LACQ from documents filed with the SEC by following the instructions in “Where You Can Find More Information.” If you are a holder of public shares and you intend to seek redemption of your public shares, you will need to deliver your stock (either physically or electronically) to LACQ’s transfer agent at the address below prior to the vote at the special meeting. If you have questions regarding the certification of your position or delivery of your stock, please contact:

Mark Zimkind

Continental Stock Transfer & Trust Company

1 State Street 30^th Floor

New York, New York 10004

Tel: (212) 509-4000

Email: mzimkind@continentialstock.com

 

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RISK FACTORS

Stockholders should carefully consider the following risk factors, together with all of the other information included in this proxy statement/prospectus, before they decide whether to vote or instruct their vote to be cast to approve the proposals described in this proxy statement/prospectus. References to “we,” “us,” and “our” in this section refer to “Gateway” or “the Company.”

Risks Related to Our Business and Operations Following the Business Combination

Our gaming business is subject to extensive governmental regulation. Changes to the regulatory regime governing our business, our inability to renew or obtain new contracts governing our existing gaming operations or our inability to obtain new casino licenses could adversely affect us.

Our gaming operations are highly regulated. Subject to certain exemptions, the Criminal Code of Canada prohibits most forms of gaming and betting activity in Canada. While certain limited licensed gaming activities, such as those conducted and managed by charitable or religious organizations, are permissible, dice games and games operated on or through a computer, video device or slot machine may only be conducted through and managed by provincial governments. Subject to certain conditions, the Criminal Code of Canada also provides exemptions that allow any person, for the purposes of a lawful gaming activity in the applicable province, to do anything in the province, in accordance with the applicable law or license, that is required for the conduct, management or operation of such gaming. Accordingly, as a licensed service provider we must provide gaming-related services in accordance with applicable provincial laws and regulations. Gaming in the provinces in which we currently operate is highly regulated. In addition, the Gaming Authorities and Gaming Regulators may require us to seek their approvals pertaining to other areas of our business and operations. Such approvals may be withheld or delayed and may impact our ability to take timely actions and otherwise negatively impact us.

In addition to the mandate of the Gaming Authorities to, among other things, oversee, conduct and/or manage gaming in British Columbia and Ontario, the Gaming Regulators have certain powers to regulate certain aspects of the gaming industry. There can be no guarantee that such Crown agencies and/or Gaming Regulators will not adopt policies or other changes that have the effect of, among other things, restricting gaming and the involvement or profitability of service providers. Possible restrictions could include, among other things, the hours/days of gaming operations, restrictions on advertising, betting limits, the number of tables or slot machines permitted, ages of permitted gamblers, casino locations and the future availability of, and/or the amount of additional commission available for, future capital expenditures under the Permitted Capital Expenditures Allowance (as described herein), the Minimum Investment Requirement (“MIR”) program or any similar current or future program. There can also be no guarantee that the federal government of Canada or the provincial governments of British Columbia, Ontario or Alberta will not enact, amend or repeal legislation that has the effect of reorganizing or restructuring the regulatory scheme under which we operate and/or the Gaming Authorities and/or Gaming Regulators themselves, which could have a material adverse effect on our business, financial condition or results of operations. In addition, any of the federal government of Canada, the provincial governments of British Columbia, Alberta or Ontario, or any applicable municipal or local government may enact, amend or repeal legislation (including of a public policy or social benefit nature, such as responsible gaming legislation, reduced operating hours or restrictions on marketing and advertising), or there may be changes in the jurisprudence that relate to the gaming industry, in each case that could have a material adverse effect on our business, financial condition or results of operations. Additionally, we may not continue to sustain the level of partnership we now have with the Gaming Authorities and Gaming Regulators, which could also have a material adverse effect on our business, financial condition or results of operations. When our common shares are listed on the NYSE, we intend to continue to follow Canadian corporate governance practices in lieu of the corporate governance requirements of the NYSE solely in respect of the quorum requirement for meetings of our common shareholders as described below.

In British Columbia, we currently receive additional commissions through the BCLC’s MIR program for eligible capital expenditures and operating expenses related to developing and improving our gaming facilities.

 

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Similarly, we receive Permitted Capital Expenditures Allowances from the OLG for gaming-related capital expenditures related to developing and improving our casinos in Ontario. Although we expect past expenditures not yet submitted to the OLG and future capital expenditures to be eligible to earn additional commissions or qualify for Permitted Capital Expenditure Allowances, as applicable, there can be no assurance that this will be the case. If the BCLC or the OLG do not approve our capital expenditures, or if there are changes to the MIR program, or the terms and conditions applicable to the Permitted Capital Expenditure Allowances, our financial condition and results of operations may be adversely impacted and/or our ability to finance these expenditures may be adversely affected.

The contracts and licenses related to our existing operations may be subject to change and our contracts or licenses may be revoked or may not be renewed.

In British Columbia, our operations are conducted pursuant to operational services agreements (“OSAs”) with the BCLC. The OSAs allow us to provide operational services for each casino and CGC for a 20-year term, with an option, exercisable by the BCLC, to extend the term for up to five years at the end of such term.

Renewal is at the discretion of BCLC. Furthermore, a breach of the OSAs could result from certain specified occurrences, including non-performance, bankruptcy or insolvency. In the event of such a breach, the BCLC could suspend or terminate our right to provide the operational services under the OSAs. Suspension or termination of any of the OSAs would result in the loss of our ability to conduct business at our casinos or CGCs located in British Columbia, as applicable. In addition, the BCLC may also make a claim pursuant to the indemnities we provide them under the OSAs for any liability they may suffer from our operations. The occurrence of any of these events could have a significant adverse effect on our business, financial condition and results of operations.

Until we complete a sale of all gaming facilities in Alberta and cease operations in Alberta, we will be subject to regulation by the AGLC. See “—We may not complete a disposition of the Edmonton Region operations in a timely manner or at all, and any such disposition may not be on favorable terms to us.” In Edmonton, each of our casinos can only be operated under casino property licenses granted by the AGLC. Although we have no reason to believe that our licenses will not be reissued upon expiry, there can be no guarantee that the casino property licenses under which our Alberta casinos operate will be reissued, or, if reissued, that they will be on the same or as favorable terms as the existing casino property licenses. The AGLC has enforcement powers with respect to licenses and may impose conditions or fines or suspend or cancel a casino property license for certain reasons, including non-performance or breach and bankruptcy or insolvency. Although it has not been the practice of the AGLC to cancel licenses, suspension or cancellation of such licenses could have a significant adverse effect on our business, financial condition and results of operations.

The Southwest Ontario, North Ontario and Central Ontario properties are operated under casino operating and services agreements (“COSAs”), which were entered into with the OLG at the closing of the acquisition of each such bundle of properties. Renewal of the COSAs is subject to the absolute discretion of the OLG, and we cannot guarantee that the COSAs will be renewed, or, if renewed, that they will be on the same or as favorable terms as the existing COSAs. The COSAs also set out certain events of default, including, among other things, a material adverse effect resulting from our failure to comply with certain obligations set out under the COSAs, an act of insolvency, and any inaccuracy or misrepresentation in any representation or warranty of the service provider in the COSAs. See “Business—Regulatory and Licensing Matters.” Upon the occurrence of an applicable event of default as set out in the COSAs, the OLG could, at its option, suspend or terminate our right to provide all or any part of the services under the COSAs in respect of all or any one or more casinos to which the applicable COSA relates. In addition, the OLG and certain other indemnified persons may make a claim pursuant to the indemnity that we provide them in the applicable COSA, should any of them suffer certain liabilities from our operations or in certain other specified circumstances. The occurrence of any of these events could have a significant adverse effect on our business, financial condition and results of operations.

 

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In addition to the requirements and restrictions pursuant to the COSAs, we are registered with the AGCO as an “operator.” The AGCO has established stringent terms of registration, which must be complied with to maintain our registration in good standing. We may not be able to comply with certain of the terms of registration at all times, and consequentially, the AGCO may discontinue our registration.

At any time, the gaming regulators may conduct inspections to monitor our compliance with legislation, regulations, rules and conditions of registration and operating agreements. We may be subject to disciplinary action by the gaming regulators if we are informed that a person is unsuitable to have a relationship with us and we fail to pursue all lawful efforts to require compliance with gaming control legislation or our operating agreements. If we are unable to comply with any current or future reporting or registration requirement, our registrations as a gaming service provider may be suspended or revoked, which would adversely affect our business.

The Gaming Regulators in the provinces in which we operate may also revoke or refuse to issue or renew our registration or licenses, or refuse to renew the terms of our operating agreements, for reasons including: if we, or one of our directors, officers, employees or associates (i) is considered to be a detriment to the integrity of gaming; (ii) no longer meets a licensing or registration requirement; (iii) has breached a condition of licensing or registration or an operating agreement with a lottery corporation; (iv) has made a material misrepresentation to the Gaming Regulators; (v) has been refused a similar license or registration in another jurisdiction; (vi) has held a similar license or registration, or a license which has been suspended or cancelled; or (vii) has been convicted of an offense that calls into question our integrity.

Our ability to obtain additional casino licenses or operating agreements is not guaranteed.

Any new casino to be operated by us in British Columbia or Ontario will require the entering into or amendment of an operating agreement with the BCLC or the OLG. The process for obtaining a new operating agreement or license (or amending an existing operating agreement or license) is complex and we anticipate that there would be intense competition for new operating agreements or licenses. There can be no guarantee that the BCLC or the OLG will agree to enter into or amend an operating agreement for any new gaming property that we might propose in the provinces of British Columbia or Ontario in the future. Consequently, there can be no assurance that we will be able to expand our business in either of these provinces, which would limit our growth, thereby adversely affecting our growth potential. In addition, if we were to expand our business to other provinces and territories in Canada or other jurisdictions we would be required to comply with the regulatory regimes of such provinces and territories or jurisdictions and obtain licenses to operate therein. As in British Columbia and Ontario, the process for regulatory approval and the obtaining of a new license or operating agreement in other provinces and territories in Canada and in other jurisdictions is complex and there is intense competition for new and operating agreements. Consequently, there can be no assurance that we will be able to expand our business into other provinces and territories in Canada or other jurisdictions.

Liquor laws and associated liquor licenses in British Columbia and Ontario (and, to the extent we retain continuing operations in the Edmonton Region, Alberta) may affect our operations.

The use and sale of alcohol in gaming properties is highly regulated in British Columbia, Ontario and Alberta through the issuance, monitoring and enforcement of liquor license requirements and related liquor license conditions. There is no assurance that the regulation of the use and sale of alcohol in gaming properties will not change in the future. Changes to the regulations regarding the issuance, monitoring and enforcement of liquor license requirements and related liquor license conditions could adversely affect our operations and casino gaming revenue.

Unusual weather, natural disasters, geo-political events or acts of terrorism could adversely affect our operations and financial results.

Extreme weather conditions in the areas in which our properties are located could adversely affect our business. Frequent or unusually heavy snowfall, ice storms, rainstorms, forest fires or other extreme weather

 

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conditions over a prolonged period could make it difficult for our customers to travel to our properties and thereby reduce our revenue or otherwise adversely affect our business. For example, revenues were negatively impacted in the first three quarters of 2017 at our four Thompson-Okanagan casinos. Severe snowfall and subsequent flooding in the Okanagan region depressed revenues during the first and second quarter. During the third quarter, the Okanagan region saw extreme forest fires and many patrons in the area had to be evacuated. The fires caused poor air quality and a sharp decline in local patrons and tourists to these casinos. In addition, revenues and financial results were negatively impacted by severe cold weather in the fourth quarter of 2019 at our Casino Rama Resort and Gateway Innisfil properties in Ontario.

In addition, natural disasters such as hurricanes, tornadoes and earthquakes, or a combination of these or other factors, could severely damage or destroy one or more of our properties located in the affected areas, thereby disrupting our business operations. See “—We may not have or may not be able to obtain adequate insurance to cover all risks incident to our business.”

In addition, unstable political conditions or civil unrest, including terrorist activities, military and domestic disturbances, government shutdowns or threats thereof, changes in trade policy and conflicts, may result in political or economic instability and could have a material adverse effect on our business and results of operations.

The gaming industry is highly competitive and we may lose market share to our local competitors.

Despite the high level of regulation in the provinces in which we operate, we often compete directly with other gaming properties operating in surrounding regions. In recent years, with fewer new gaming regions in Canada for development, competition in existing markets has intensified. As a result, we, along with many other gaming service providers, have invested in expanding existing properties. The expansion and aggressive marketing strategies of our competitors have increased competition in many of the markets in which we operate. If our existing competitors operate more successfully or if new or existing competitors enhance, expand or market their gaming properties more aggressively, or if additional casinos are established in and around the locations in which we conduct business, including in the event federal or provincial regulators with which we work closely alter the manner in which they grant licenses to our competitors, our market share may be eroded. The expansion of casino or other forms of gaming in or near any geographic area from which we attract or expect to attract a significant number of our customers (including outside of Canada) could have a significant adverse effect on our business, financial condition and results of operations.

If we fail to successfully implement our growth strategies, which includes acquiring new properties and expanding, renovating and relocating our existing properties, our ability to increase our revenues could be adversely affected.

Part of our growth strategy includes opportunistically acquiring and operating new gaming properties and improving the customer experience at our existing properties. This will require substantial capital investment, particularly in regions within Canada where we currently do not operate. Our ability to successfully acquire and operate new gaming properties depends on a number of factors that may be outside of our control, including, among others, our ability to:

 

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successfully compete for new gaming contracts;

 

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identify desirable gaming locations;

 

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secure financing on acceptable terms;

 

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secure governmental, municipal and other necessary approvals and permits;

 

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negotiate acceptable lease terms, including favorable levels of tenant improvement allowances;

 

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maintain out-of-pocket build-out costs in line with our economic model, including by managing construction costs at reasonable levels;

 

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hire, train and retain a growing workforce of employees, including key management personnel;

 

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successfully integrate new gaming properties into our existing control structure and operations, including our information technology systems;

 

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increase brand awareness;

 

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identify and satisfy the gaming preferences of our customers in new geographic areas and markets; and

 

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address competitive, marketing, distribution and other challenges encountered in connection with expansion into new geographic areas and markets.

To the extent that we acquire gaming properties in markets where we already have existing gaming properties, we may experience reduced revenues at those existing gaming properties.

There is no guarantee that newly opened gaming properties will be received as well as, or achieve profitability levels comparable to those of, our existing gaming properties within our estimated time periods, or at all. If our gaming properties fail to achieve, or are unable to sustain, acceptable profitability levels, our business may be materially adversely affected and we may incur significant costs associated with closing or relocating gaming properties. In addition, our current expansion plans are only estimates, and the actual number of gaming properties that we open, the timeline on which we do so and the actual number of suitable locations for our new gaming properties could differ significantly from these estimates. If we fail to successfully open and operate new gaming properties and execute our growth plans, the price of our common shares could decline.

We compete with online gaming and entertainment companies that may provide more extensive gaming and entertainment experiences, which could adversely affect our future casino gaming revenue.

In addition to brick-and-mortar casinos, we compete with online gaming and other forms of entertainment. Online gaming platforms and certain provincial gaming corporations offer a variety of online games, many of which simulate the games on our properties. The sophistication and availability of online gaming, both domestically and internationally, is continuing to improve and it is possible that these platforms will develop into a greater form of competition, which could have an adverse impact on our business, financial condition and results of operations.

We also compete with other non-gaming resorts and vacation areas and entertainment businesses. If our national and global competitors offer more attractive gaming and non-gaming experiences, there is a risk that our customers, and particularly the high-limit players that frequent our properties, may choose to travel away from our properties to our competitors or other entertainment destinations. A significant reduction in high-limit play at our properties could have a significant adverse effect on our business, financial condition and results of operations.

There can be no assurance that our anti-money laundering and anti-corruption policies will be effective in preventing the occurrence of money laundering or other illegal activities.

Certain industries in Canada, like the gaming sector, are subject to the federal Proceeds of Crime (Money Laundering) and Terrorist Financing Act (the “PCMLTFA”). Casinos in Canada operate under, and are required to meet, the strict anti-money laundering, customer identification and reporting requirements set out in the PCMLTFA.

A 2016 report commissioned by the GPEB on anti-money laundering practices in British Columbia revealed the existence of an investigation into the alleged flow of unsourced cash at a competitor casino. In September 2017, the British Columbia Government hired an independent investigator, Peter German, to commission a report into money laundering and other illegal practices at casinos in the Lower Mainland of British Columbia, which was received by the Attorney General of British Columbia on April 3, 2018 and released publicly on June 27,

 

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2018. Dr. German’s report focused on the role of partners and agencies, including provincial regulators, federal regulators, law enforcement and operators such as Gateway. The 48 substantive recommendations contained in the report include a potential shift to a new standards based model (more similar to that in Ontario) and a number of recommendations to shift certain responsibilities from the Gaming Regulators to private operators, such as responsibilities with respect to anti-money laundering (“AML”) annual risk assessments, reporting with the Financial Transactions and Reports Analysis Centre of Canada (“FINTRAC”), conducting due diligence on suspicious transactions and overseeing cash alternatives and related compliance. In November 2018, the House of Commons of Canada released the report of the Standing Committee on Finance, which focused on the anti-money laundering and anti-terrorist financing regime’s legislative and regulatory gaps, the exchange of information and the privacy of Canadians, ways of strengthening intelligence capacity and enforcement measures, as well as the modernization of the regime. The substantive recommendations contained in the report include, among others, that (i) the Government of Canada expand FINTRAC oversight to ensure that all casino operators, employees, and frontline gaming personnel are trained in anti-money laundering legislation, (ii) the Government of Canada establish an information sharing regime through FINTRAC and provincial gaming authorities to ensure more accurate and timely reporting, and (iii) the Government of Canada enhance the direct reporting system of casinos to FINTRAC through the suspicious transaction reports to include suspicious activities. In May 2019, the British Columbia Government established the Commission of Inquiry into Money Laundering, or the Cullen Commission, for the province. The mandate of the Cullen Commission is to make findings of fact with respect to:

 

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the extent, growth, evolution and methods of money laundering in British Columbia, with regard to specific economic sectors;

 

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the acts or omissions of responsible regulatory agencies and individuals, and whether those have contributed to money laundering in the province or amount to corruption;

 

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the scope and effectiveness of the AML powers, duties and functions of these regulatory agencies and individuals; and

 

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the barriers to effective law enforcement in relation to money laundering.

In cooperation with the Cullen Commission’s investigative process, we applied for and have been granted standing as a participant to provide evidence and make submissions to the Cullen Commission concerning the gaming and horse racing sectors in British Columbia, which includes the ability to make submissions to the commissioner on any recommendations that the Cullen Commission may make. Since then, the Cullen Commission has provided an informational documentation request, which we are in the process of satisfying. Counsel for the Cullen Commission has also taken tour of the Grand Villa Casino Burnaby facility with our compliance team.

The Cullen Commission is required to deliver an interim report by November 2020 and a final report by May 2021. While we currently believe that the recommendations of the Standing Committee on Finance or the potential recommendations of the Cullen Commission will not have a material impact on our business, there can be no assurance as to what the business, operational and financial impacts from the recommendations or the implementation thereof will be until specific amendments are proposed to gaming laws and regulations.

Although we have a compliance program that addresses anti-money laundering and our properties are subject to AML programs run by the Gaming Authorities, there is no guarantee that our operations are protected from being used to launder illicit funds or that our program will be effective in detecting all such activities. Additionally, casinos and the gaming industry are a regulatory focus for AML violations, and any repeated money laundering violations could affect our access to credit from financial institutions. Thus, any incidents of money laundering, accusations of money laundering or regulatory investigations into possible money laundering activities involving us, our employees or our customers would have a material adverse impact on our reputation, relationship with our regulators, business, cash flows, financial condition, prospects and results of operations.

 

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Our casino gaming revenue is currently concentrated in the Greater Vancouver Region and Ontario, which makes us especially subject to economic and competitive risks associated with the conditions in those areas.

Because our revenue and profits are primarily derived from the Greater Vancouver Region and Ontario, we are subject to greater risks from local conditions than a gaming company with more geographically diverse operations. A decrease in revenue from, or increase in costs for, our casinos located in the Greater Vancouver Region or Ontario is likely to have a disproportionately higher impact on our business, financial condition and results of operations than it would for a gaming company with revenue generated from more geographically diverse operations.

More generally, our net revenues are highly dependent upon the volume and spending levels of our customers. Decreases in discretionary consumer spending brought about by weakened general economic conditions may affect our revenues. Our business results are related to the economic and competitive conditions in the regions we operate in, and any downturn in the economic conditions or increase in competition in these regions will have a material adverse effect on our business, financial condition and results of operations.

Our business is particularly sensitive to reductions in discretionary consumer and corporate spending as a result of global and regional economic conditions.

Consumer demand for casinos and hotels and for the type of amenities that we offer is particularly sensitive to changes in the global economy, which adversely affect discretionary spending on leisure activities. Changes in discretionary consumer spending or consumer preferences brought about by factors such as perceived or actual general global and regional economic conditions, high unemployment, government shutdowns or threats thereof, weakness in housing or oil markets, perceived or actual changes in disposable consumer income and wealth, an economic recession and changes in consumer confidence in the global economy, or fears of war and future acts of terrorism have in the past or could in the future reduce customer demand for the amenities and leisure activities we offer, and may have a significant negative impact on our operating results. Additionally, consumer demographics and preferences may evolve over time, which, for example, has resulted in growth in consumer demand for non-gaming offerings. Our success depends in part on our ability to anticipate the preferences of consumers and react to those trends and any failure to do so may negatively affect our operating results.

Global economic conditions may have a material adverse effect on our business, financial condition and results of operations.

In recent years, global economic conditions have resulted in tighter credit conditions and recessions in most major economies. The Canadian economy, and particularly in British Columbia and Ontario, was not as adversely impacted by these economic conditions as the economies of the United States and other industrialized countries. Although we were not as adversely affected by these recent economic conditions as other gaming companies across North America, future economic downturns may affect our business significantly in a number of ways. For example, our business offers a highly discretionary set of entertainment and leisure activities and amenities, and if a similar global economic downturn occurs, discretionary consumer spending may be adversely affected and our revenue may decrease while some of our costs would remain fixed or increase. Additionally, if we were to require access to the capital markets in the future during such a downturn, there can be no assurance that we will be able to secure financing.

Changes to our customer base may adversely affect our business and results of operations.

We cater to our customer base by providing entertainment suited to the demographics of each local region in which we operate, in order to maximize customer retention and secure repeat visitors. Changes in our customer demographics or to local economic conditions or our potential inability to cater or respond to those changes may have an adverse effect on our business, financial condition and results of operations.

 

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We face the risk of fraud or cheating in our gaming business, which could adversely affect our results of operations.

Players in our casino may commit fraud or cheat in order to increase their winnings. Acts of fraud or cheating could involve the use of counterfeit chips, the exploitation of mechanical or software vulnerabilities, or other tactics, possibly in collusion with our employees. Internal acts of cheating could also be conducted by employees through collusion with dealers, surveillance staff, floor managers or other casino or gaming area staff. Failure to discover such acts, schemes or mechanical or software vulnerabilities in a timely manner would negatively impact our gaming revenue. In addition, negative publicity related to such schemes could have an adverse effect on our reputation and have a significant adverse effect on our business, financial condition and results of operations.

We are subject to the reputational challenge of operating in the gaming industry in Canada.

The gaming industry in Canada is subject to potentially negative publicity relating to perceptions of underage gaming, exploitation of vulnerable customers and the historical link of the gaming industry to criminal enterprises. As an operator within the industry, such negative publicity can adversely affect our reputation and correspondingly affect our financial performance.

Historically, gaming has been considered an undesirable activity in Canada. Until 1969, gaming in most forms, with the exception of horseracing, was a criminal offense. Subject to certain exemptions, the Criminal Code of Canada currently prohibits most forms of gaming and betting activity in Canada. Casino operators still face stigma in many areas of day-to-day operations. Negative public perception of gaming within any region lessens the likelihood that a new casino can be established there or that an existing casino will be financially viable, which could affect possible expansions. Any increase in the negative public perception of gaming could have a negative impact on our business and results of operations.

We are subject to cybersecurity risk.

We maintain confidential information regarding our business plans, strategy and potential strategic opportunities in our computer systems. We also maintain an internet website. Despite the implementation of network security measures, this infrastructure may be subject to physical break-ins, computer viruses, programming errors, attacks by third parties or similar disruptive problems. Advances in computer and software capabilities and encryption technology, new tools and other developments may increase the risk of such a breach. A security breach of computer systems could disrupt operations, damage our reputation, result in legal or regulatory liability and could have a material adverse effect on our business and results of operations.

Compromises of our information systems or unauthorized access to confidential information or our customers’ personal information could materially harm our reputation and business.

We collect and store confidential, personal information relating to our customers for various business purposes, including marketing and financial purposes, and credit card information for processing payments. For example, we handle, collect and store personal information in connection with customers staying at our hotels and enrolling in our customer loyalty programs. We may share this personal and confidential information with vendors or other third parties in connection with processing of transactions, operating certain aspects of our business or for marketing purposes. Our collection and use of personal data are governed by privacy laws and regulations. Privacy law is an area that changes often and varies significantly by jurisdiction. We may incur significant costs in order to ensure compliance with the various applicable privacy requirements. In addition, privacy laws and regulations may limit our ability to market to our customers.

Although we have taken steps designed to safeguard our customers’ confidential personal information, our network and other systems, and those of third parties, such as service providers, could be compromised by a

 

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third-party breach of our system security or that of a third-party provider or as a result of purposeful or accidental actions of third parties, our employees or employees of a third party. Advances in computer and software capabilities and encryption technology, new tools and other developments may increase the risk of such a breach. As a result of any security breach, customer information or other proprietary data may be accessed or transmitted by or to a third party. Despite these measures, there can be no assurance that we are adequately protecting our information.

Any loss, disclosure or misappropriation of, or access to, customers’ or other proprietary information or other breach of our information security could result in legal claims or legal proceedings, including class action litigation and regulatory investigations and actions, or liability for failure to comply with privacy and information security laws, including for failure to protect personal information or for misusing personal information. Such legal claims, legal proceedings or liability could disrupt our operations, damage our reputation and expose us to claims from customers, financial institutions, regulators, payment card associations, employees and other persons, any of which could have an adverse effect on our financial condition, results of operations and cash flow.

Canada’s Anti-Spam Legislation (“CASL”), also restricts our ability to send commercial “electronic messages,” defined to include text, sound, voice and image messages to email, or similar accounts, where the primary purpose is advertising or promoting a commercial product or service to our customers and prospective customers. CASL requires, in part, that a sender have consent to send a commercial electronic message, and provide the customers with an opportunity to opt out from receiving future commercial electronic email messages from the sender. Failure to comply with the terms of CASL or any proposed regulations that may be adopted in the future could have a negative impact on our reputation and subject us to material monetary penalties.

The Canada Revenue Agency (“CRA”) has confirmed various notices of reassessment and/or notices of determination of loss for our taxation years ended December 31, 2010 to 2014 and December 31, 2016, in which the CRA recharacterized certain amounts received by us as income and reclassified certain expenditures made by us. We have appealed these reassessments and loss determinations to the Tax Court of Canada. If such appeal is not successful, the amount of our non-capital loss carryforwards will be reduced and we will begin to incur income tax sooner than otherwise anticipated.

The CRA has issued notices of reassessment and/or notices of determination of loss to GCEL for the taxation years ended December 31, 2010 to 2014 and December 31, 2016 in which the CRA (i) treated amounts received by GCEL from the BCLC on account of facility development commissions (“FDCs”), as taxable income, and (ii) reclassified certain costs incurred by GCEL in 2010 as “eligible capital expenditures” rather than the cost of Class 14 depreciable property. In addition, the CRA has also issued notices of reassessment and/or notices of determination of loss to our subsidiaries Boardwalk Gaming Squamish Inc. (“Boardwalk Squamish”) and 427967 B.C. Ltd. (“427967”) for their taxation years ending December 31, 2011, 2012 and 2014 in which the CRA treated amounts received by them from the BCLC on account of FDCs as taxable income.

We duly filed notices of objection to the reassessments and loss determinations referred to above with the Appeals division of the CRA. In August 2018, we received notices of confirmation from the CRA advising that the CRA had reviewed the objections and was confirming the reassessments and loss determinations.

We disagree with the CRA’s position, and intend to vigorously defend our tax filing position. Accordingly, we have appealed to the Tax Court of Canada with respect to the reassessments and loss determinations. The likely timing to resolve these issues may take several years.

If our appeal is not successful and the CRA’s position ultimately prevails, then based on the notices of reassessment and notices of determination of loss received from the CRA, our net income (loss) for tax purposes for the taxation years ended December 31, 2010 to 2016 would increase by $1.7 million, $30.9 million,

 

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$31.2 million, $30.1 million, $31.8 million, $28.5 million, and $28.5 million respectively. In that case, we have sufficient non-capital loss carry-forwards to offset the additional income reassessed; however, our non-capital losses available for carryforward to subsequent taxation years would be reduced, and we estimate that we would begin to incur liability for income tax sooner than otherwise currently anticipated.

No provision has been made in the historical financial statements or pro forma financial information included in this proxy statement/prospectus for the aforementioned reassessments and/or determinations of loss. As a result, the pro forma financial information may not prove to be accurate to the extent the reassessments and/or determinations of loss are ultimately upheld. For more information, please see note 16 of our audited consolidated financial statements as at December 31, 2018 and 2017, which are attached to this proxy statement/prospectus.

In connection with our acquisition of POM (as defined herein), we acquired POM’s non-capital losses, which NMRC (as defined herein) has represented to be at least $213.0 million. However, our ability to use these or other non-capital losses may be limited in the future.

As of September 30, 2019, we had non-capital loss carryforwards totalling approximately $375 million, of which approximately $162 million were derived from our gaming business and approximately $213 million were acquired by GCEL as part of the POM Acquisition (as defined herein). The POM non-capital losses acquired have been reduced due to temporary differences in accounting treatment since the POM Acquisition, as a result of POM income which exceeded estimates during the period beginning on January 1, 2018 and ending on the date of the POM Acquisition, or July 12, 2018. The reduction in non-capital losses did not require a price adjustment as it was within the limitations agreed to by GCEL and NMRC. The Canadian tax authorities could potentially seek to challenge the amount of such losses or GCEL’s ability to use such losses against future income, in which case we may be subject to income tax sooner than anticipated. In addition, if we were to undergo a change of control for Canadian tax purposes (whether as a result of this transaction or otherwise), we would no longer be able to utilize the POM losses and our ability to utilize any other losses would potentially be subject to certain limitations. Furthermore, our ability to utilize non-capital losses of other companies that we may acquire in future could be subject to limitations.

The Municipal Property Assessment Corporation may, in certain circumstances, increase our assessments for Ontario property tax, which could result in an increase in our total property tax liability.

We are subject to real property tax in Ontario based on the assessed value of our Ontario casinos as determined by the Municipal Property Assessment Corporation (“MPAC”). In our financial statements, we have accrued liability for Ontario real property tax based on the valuations and assessments received from MPAC. In certain cases, however, including if we decide to appeal an assessment, MPAC, or a municipality, is entitled to seek a revision (including an increase) to a previously issued assessment. We would have the ability to contest such a proposed increase. In the event an increase in the assessment is ultimately approved by the Assessment Review Board, there could be an increase in the amount of tax payable and our aggregate property tax liability could be increased, which could have a negative impact on our financial condition.

From time to time, we are a defendant in a variety of litigation matters that may cause us to pay damages if we are unsuccessful in defending against such actions or unable to cover damages with insurance proceeds.

We are involved, from time to time, in a variety of litigation or regulatory investigations arising out of our business, including actions related to patron claims, labor and employees, BCLC’s GameSense Self Exclusion Program, Ontario’s Self Exclusion Program, regulatory compliance and other operational matters. We establish reserves for matters in which losses are probable and can be reasonably estimated. While we believe that we have established adequate accruals for our expected future liability with respect to our pending legal actions and proceedings, our liability with respect to any such action or proceeding may exceed our established accruals. It can be particularly difficult to gauge the potential impact of litigation that involves novel claims, such as claims

 

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based on the BCLC’s GameSense Self Exclusion Program and Ontario’s Self Exclusion Program which are premised on customers’ claims that they were permitted to participate in gaming activities on our gaming properties despite having voluntarily registered themselves with the applicable self-exclusion program. These claims are also frequently pursued as class actions. There can be no assurance that our established accruals or insurance will cover all claims that may be asserted against us. Should any final judgments or settlements not be adequately covered by our established accruals or insurance, such uncovered losses could increase our costs and thereby lower our profitability, as well as adversely affect our cash flows and liquidity.

A significant portion of our labor force is covered by collective bargaining agreements. Wage and/or benefit increases resulting from the renewal of a collective bargaining agreement or our inability to reach an agreement with the unions could have an adverse impact on our operations.

As of September 30, 2019, approximately 53% of our employees were covered by 26 union certifications, each of which must be renegotiated every few years. A prolonged dispute with the unionized employees or any labor unrest, strikes or other business interruptions in connection with labor negotiations or other employee compensation could have an adverse impact on our operations. Further, adverse publicity in the marketplace related to union messaging could further harm our reputation and reduce customer demand for our services.

Strikes, lockouts, work stoppages or similar actions could restrict our ability to operate our properties and service our customers and may negatively affect customer experience and access, as well as our business financial condition and results of operations. For example, from June 2018 to November 2018, we experienced a strike action at our four Thompson-Okanagan properties certified with the BCGEU that adversely affected our financial results from these properties. In addition, wage and benefit increases resulting from new labor agreements and the certification of additional bargaining units at our properties could have an adverse impact on our results of operations. See “Business—Employees.”

Gateway’s success following the business combination will be largely dependent upon the efforts of certain key personnel and management. In addition, Gateway will be in a period of management transition following the business combination.

Loss of key personnel and management or our inability to attract and retain new qualified personnel and management could hurt our business and inhibit our ability to operate and grow successfully. No assurance can be given that our key personnel and management will continue their association or employment with us or that replacement personnel with comparable skills can be found. We have sought to and will continue to ensure that management and any key employees are appropriately compensated, however, their services cannot be guaranteed. If we are unable to attract and retain key personnel, our business may be adversely affected. In addition, we will be in a period of management transition upon consummation of the Transactions. Marc Falcone is expected to become our new Chief Executive Officer and President shortly following the consummation of the Transactions, and we currently do not have a Chief Financial Officer. See “Information about Executive Officers, Directors and Nominees.” We have not yet finalized an employment agreement with Mr. Falcone. As such, we cannot assure you that we will be able to reach a final agreement with Mr. Falcone or, if we are able to reach agreement, the final terms of such agreement. In addition, our board composition will change as described in “Information about Executive Officers, Directors and Nominees.” Management transition periods can be difficult as the new management gains detailed knowledge of our operations, and until we fully integrate our new chief executive officer and a new chief financial officer, the implementation of our business and growth strategies may be delayed. Furthermore, leadership transitions may increase the likelihood of employee turnover, which could result in disruptions to our operations.

 

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If we are unable to attract and retain qualified and skilled employees, our ability to effectively operate our properties may be impaired, which could have a material adverse effect on our businesses and results of operations.

Our businesses are dependent upon attracting and retaining a large number of skilled employees who reflect our brand images and cultures. Many of these employees are in entry level or part-time positions with historically high rates of turnover. If we are unable to hire, train and retain employees capable of consistently providing a high level of service to our customers, we may not be able to maintain our competitive strength in offering our customers a favorable gaming experience or to fully realize the benefits expected to result from our formal customer service initiatives and targeted marketing initiatives, which could lead to decreased foot traffic, as well as to increased costs associated with hiring and training new employees.

Our ability to meet our labor needs while controlling the costs associated with hiring and training new employees is subject to external factors such as unemployment levels, prevailing wage rates, minimum wage legislation and changing demographics in Canada. In particular, proposed minimum wage increases will have an impact on labor costs and our labor force, where the applicable legislation is enacted. Changes that adversely affect our ability to attract and retain quality employees could have a material adverse effect on our businesses and results of operations.

Certain of our executive officers and directors are affiliated with entities engaged in business activities in adjacent sectors to those in which we operate business activities and, accordingly, may have conflicts of interest in (i) determining whether a particular business opportunity should be presented to us or to another entity or (ii) with respect to certain operating decisions we may make in the future.

Certain of our executive officers and directors are affiliated with entities engaged in business activities in adjacent sectors to those in which we operate business activities. As a result, such individuals may become aware of business opportunities which may be appropriate for presentation to us and to other entities to which they owe certain fiduciary or contractual duties. Accordingly, they may have conflicts of interest in (i) determining whether a particular business opportunity should be presented to us or to another entity or (ii) with respect to certain operating decisions we may make in the future. These conflicts may not be resolved in our favor and a potential business opportunity may be presented to another entity prior to its presentation to us. In addition, certain operational decisions may require certain of our executive officers and directors to recuse themselves from such decisions if conflicts of interest arise.

Municipal restrictions or prohibitions may affect our operations.

Municipalities in British Columbia, Ontario and Alberta have the right to restrict or prohibit gaming properties, including slot machines, within their boundaries. Gaming proposals are often controversial land use issues and can be highly contested by local politicians, residents and other intervenors. In the event that a host municipality passes a by-law or zoning change prohibiting or restricting gaming properties, our business, financial conditions and future prospects would be adversely affected.

Renewal of lease agreements for our properties may not be obtained or if obtained, may be on less favorable terms.

A majority of our properties operate out of premises that are subject to lease agreements. There is a risk that we may not be able to negotiate lease renewals with landlords on terms that are commercially reasonable or acceptable to us or that we may not be able to successfully relocate our properties if we decide not to renew any one or more of our leases. This could negatively affect our business and results of operations.

On closing of the Sale and Leaseback Transactions (as defined herein), we transferred our freehold interest in the lands and premises constituting each of the SLB Properties (as defined herein). Although the operation of

 

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the properties on the SLB Properties is expected to continue in the ordinary course, the long-term Leases may, in certain circumstances, be terminated or, subject to the approval of the BCLC, assigned to other third-party landlords. Any such termination or assignment could have a significant adverse effect on our business, financial condition and results of operations at our Grand Villa Casino Burnaby, Starlight Casino New Westminster and Cascades Casino Langley.

The long-term Leases will also require significant periodic cash payments in respect of the required rent thereunder, which we have not historically incurred for the SLB Properties, and other allocated operating and maintenance costs. The increase in our rent expense may have an adverse impact on our future operations and profitability. The sale of each of the SLB Properties also eliminates these significant assets from our real property holdings, which may impact our ability to secure financing in the future (at commercially reasonable interest rates or at all), as the number and value of assets available to us to pledge as collateral is reduced as a result of the Sale and Leaseback Transactions.

The British Columbia tax authorities could take the position that the leases entered into in connection with the Sale and Leaseback Transactions are subject to property transfer tax.

The Property Transfer Tax Act (British Columbia) provides that property transfer tax is payable on registration of a lease with a term (including renewals, whether or not exercised) over 30 years at the time of registration at the British Columbia Land Titles Office. In determining whether or not a lease exceeds 30 years, the statute requires that the term under any option to lease that is registered within 6 months be included. Prior to the closing of the Sale and Leaseback Transactions, certain of the Company’s subsidiaries entered into leases for the SLB Properties for a term of less than 30 years, which leases were registered with the British Columbia Land Titles Office. In connection with the Sale and Leaseback Transactions, the same subsidiaries entered into additional options to lease, which options to lease have not, as of January 30, 2020, been registered with the British Columbia Land Titles Office. To the extent these options to lease are registered with the Land Titles Office in the future, the British Columbia tax authorities could potentially take the position that the renewal period under the options to lease should be included in calculating whether the term of the initial leases exceeded 30 years. If the British Columbia tax authorities were to assert and successfully maintain such a position, our property tax liability could be increased, which could have a negative impact on our financial condition.

Chances Squamish and Casino Rama Resort are leased property on reserve lands (as such term is defined in the Indian Act (Canada)), which means there is no guarantee of title to our property under the Indian Land Registry System and the validity of our lease is subject to potential approval irregularities that can arise with any reserve land.

Chances Squamish is leased property pursuant to a lease with the Government of Canada and the Squamish Indian Band in respect of certain lands on Stawamus Indian Reserve No. 24, which are held by the federal Crown for the use and benefit of the Squamish Indian Band. Our leasehold interest in the Chances Squamish lands is registered in the Indian Land Registry System. The main parcel of the Casino Rama Resort land is subject to a lease between Casino Rama Inc., an affiliate of Rama First Nation, and the Government of Canada pursuant to a commercial ground lease. On May 1, 2018, the Chippewas of Rama First Nation Land Code came into effect, which transferred land administration for these lands from the Government of Canada to Rama First Nation pursuant to the First Nations Land Management Act (Canada). The Casino Rama Resort property is subleased by Casino Rama Inc. to the OLG. The OLG in turn sub-subleases the Casino Rama Resort property to us. Our sub-sub-leasehold interest in the main parcel of the Casino Rama Resort land is registered in a first nations land registry system created pursuant to such First Nation Land Management Act (Canada). Such registry systems are not Torrens systems, and as such do not guarantee title nor provide an assurance fund to indemnify registrants against losses arising from, among other things, errors made by the registrar or from fraud. As with all such lands, potential irregularities in either the approval of the designation of the lands as reserve lands, the lease documents themselves, the registration systems, or the lease approval process of the band council are a risk to the validity of the lease. While we have no reason to believe that any such irregularities have occurred, there can be no assurance in this regard.

 

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The unique ownership structure of the Casino Rama Resort operations adds a heightened level of risk as compared to other casino operations.

The Casino Rama Resort property is subleased by Casino Rama Inc. to the OLG. The OLG in turn sub-subleases the Casino Rama Resort property to us. Certain adjacent lands are also owned by Rama First Nation and leased directly to the OLG, and the OLG then subleases this land to us. Certain rights and obligations of Casino Rama Inc., Rama First Nation and the OLG are documented in other ancillary agreements.

Given the unique ownership structure and the number of interested parties with various rights, including approval rights and rights to consultation, we are likely to encounter more extensive reporting obligations than we do at our other properties and will be required to address the rights held by interested parties, which may result in delays or other issues when making major decisions regarding the operation or development of this property. Moreover, given that (i) our direct contractual relationship is with the OLG, (ii) there are certain communication obligations and rights with Casino Rama Inc. and Rama First Nation that the OLG retains, and (iii) we have no contractual relationship with Rama First Nation, we must rely on the OLG to enforce any rights against Casino Rama Inc. or Rama First Nation.

Delays or impediments to effecting operational or development decisions with respect to the Casino Rama Resort property, or an inability to enforce our rights against one or more interested parties, would have an adverse effect on our business, financial condition and results of operations.

We are dependent upon technology services and electrical power to operate our business, and if we experience damage or service interruptions, we may have to cease some or all of our operations, resulting in a decrease in revenue.

Our gaming operations rely heavily on technology services and an uninterrupted supply of electrical power. Our security system and all our slot machines are controlled by computers and reliant on electrical power to operate. Without electrical power or the supply of technology services needed to run our computers, we may be unable to conduct all or part of our gaming operations. Any unexpected interruption in our technology services or our electrical power supply is likely to result in an immediate, and possibly substantial, loss of revenue due to a shutdown of our gaming operations. Although our systems have been designed around industry-standard architectures to reduce downtime in the event of outages or catastrophic occurrences, they remain vulnerable to damage or interruption from earthquakes, floods, fires, power loss, telecommunication failures, terrorist attacks, computer viruses, computer denial-of-service attacks and similar events. See “—We may not have or may not be able to obtain adequate insurance to cover all risks incident to our business.”

The concentration and evolution of the slot machine manufacturing industry or other technological conditions could impose additional costs on us.

A substantial majority of our revenue will be attributable to slot machines operated by us at our various casinos. It is important that, for competitive reasons, we offer the most popular and up-to-date slot machine games with the latest technology to our guests.

In recent years, the prices of new slot machines with additional features have escalated faster than the general rate of inflation. Furthermore, in recent years, slot machine manufacturers have frequently refused to sell slot machines featuring the most popular games, instead requiring participation lease arrangements in order to acquire the machines. Participation slot machine leasing arrangements typically require the payment of a fixed daily rental. Such agreements may also include a percentage payment of coin-in or net win. Generally, a participation lease is substantially more expensive over the long term than the cost to purchase a new machine. For competitive reasons, we may choose to purchase new slot machines or enter into participation lease arrangements that are more expensive than the costs associated with the continued operation of our existing slot machines. If the newer slot machines do not result in sufficient incremental revenues to offset the increased investment and participation lease costs, it could hurt our profitability.

 

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We rely on a variety of hardware and software products to maximize revenue and efficiency in our operations. Technology in the gaming industry is developing rapidly, and we may need to invest substantial amounts to acquire the most current gaming and hotel technology and equipment in order to remain competitive in the markets in which we operate. In addition, we may not be able to successfully implement and/or maintain any acquired technology.

Hold levels for our gaming operations depend on a variety of factors, some beyond our control. Accordingly, our casino revenue may deviate from theoretical expectations.

The gaming industry is characterized by an element of chance. In addition to the element of chance, hold levels are also affected by other factors, including players’ skill and experience, the mix of games played, the financial resources of players, the spread of table limits, the volume of bets played and the amount of time played. Our casino revenue is mainly derived from the difference between the amount of buy-in of our customers and the payouts to these gaming customers. Due to the factors above, over a limited period of time, the actual hold levels of our casino operations may deviate (higher or lower) from theoretical expectations. In such a situation, the level of our casino revenue could be meaningfully impacted, including that we may suffer losses in our casino operations. To the extent that such a situation occurred, it could have a material adverse effect on our business, financial condition, results of operations and cash flows.

We are subject to many of the operating risks common to the hotel business, which may adversely affect our hotel occupancy and rental rates.

A portion of our revenue is derived from our hotel and convention services. In the nine months ended September 30, 2019 and the years ended December 31, 2018 and 2017, revenue from our hotel and convention services represented 2.5%, 2.6% and 3.0%, respectively, of our consolidated revenue. The hotel business is highly competitive and may be subject to greater volatility than our gaming business. While our hotel business represents a small portion of our operations, operating risks common to the hotel business could adversely affect hotel occupancy and the rates that can be charged for hotel rooms, as well as increase our operating expenses. Such risks include, among other things:

 

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competition from existing hotels in our regions and new hotels entering our region, particularly those providing convention services;

 

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reduced business and leisure travel; and

 

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the quality and performance of the managers and other staff of our hotel.

These factors may affect our occupancy and rental rates, as well as our convention related revenue, and have an adverse effect on our business, financial condition and results of operations.

Furthermore, our hotel services may be provided on the basis of long-term contractual arrangements with hotel operators. There is a risk that we may not be able to negotiate renewals of these contracts on terms that are commercially reasonable or acceptable to us or that we may not be able to successfully replace a hotel operator if we decide not to renew any one or more of such contracts. This could negatively affect our business and results of operations.

We have incurred net losses in the past and may not experience positive net income in the future.

We have incurred net losses in the past and may incur net losses in the future. To the extent that our revenues decline or do not grow at anticipated rates, our expenses increase or we do not operate our business profitably, our net income could be negatively impacted in the future.

 

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If we have a fair value impairment in a business segment, our net earnings and net worth could be materially and adversely affected by a writedown of intangible assets or fixed assets.

We conduct an impairment analysis at the end of each reporting period when events or changes in circumstances indicate that the carrying amount of our assets may not be recoverable. This analysis requires our management to make significant judgments and estimates, primarily regarding expected growth rates, the terminal value calculation for cash flow and the discount rate. We determine expected growth rates based on internally developed forecasts, which consider our future financial plans. We establish the terminal cash flow value based on expected growth rates, capital spending trends and investment in working capital to support anticipated sales growth. We estimate the discount rate used based on an analysis of comparable company weighted average costs of capital, which consider market assumptions obtained from independent sources. The estimates that our management uses in this analysis could be materially impacted by factors such as specific industry conditions, changes in cash flow from operations and changes in growth trends. In addition, the assumptions our management uses are management’s best estimates based on projected results and market conditions as of the date of testing. Significant changes in these key assumptions could result in indicators of impairment when completing the annual impairment analysis. We remain subject to future financial statement risk in the event that goodwill or other identifiable intangible assets become impaired, including in connection with intangible assets acquired in connection with the Ontario acquisitions. For further discussion of key assumptions in our critical accounting estimates, see “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Application of Critical Accounting Estimates and Judgements.”

We may not have or may not be able to obtain adequate insurance to cover all risks incident to our business.

We currently maintain customary insurance of the types and amounts it believes are consistent with prudent industry practice; however, we are not fully insured against all risks incident to our business. We are not obliged to maintain any such insurance if it is not available on commercially reasonable terms other than in Ontario, where our COSAs require us to maintain insurance, and in certain other instances where insurance requirements are customary. There can be no guarantee that such insurance coverage will be available in the future on commercially reasonable terms or at commercially reasonable rates or that the amounts for which we are insured, or the proceeds of such insurance, will compensate us fully for our losses. In addition, the insurance coverage obtained with respect to our business and properties will be subject to limits and exclusions or limitations on coverage. There can be no assurance that the insurance proceeds received by us in respect of a claim will be sufficient in any particular situation to fully compensate us for losses and liabilities suffered. If a significant accident or event occurs that is not fully insured, it could adversely affect our results of operations, financial position or cash flows.

We have a substantial amount of indebtedness, which may adversely affect our ability to operate our business, remain in compliance with debt covenants or make payments on our indebtedness.

We have significant debt obligations. If we are unable to meet our debt obligations, we may need to consider refinancing or amending our debt instruments, reducing or deferring any contemplated dividend payments or adopting alternative strategies to reduce or delay expenditures, such as selling assets or seeking additional equity capital. As of September 30, 2019, we had outstanding indebtedness of approximately $1,133.1 million (excluding the unamortized portion of the deferred transaction costs and debt premium related to the embedded derivative).

Our substantial debt has important consequences. For example, it could:

 

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make it more difficult for us to satisfy our obligations under such indebtedness;

 

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increase our vulnerability to general adverse economic and industry conditions;

 

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require us to dedicate a substantial portion of our cash flow from operations to payments on our debt, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, dividends and other general corporate purposes;

 

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•

limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate;

 

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place us at a competitive disadvantage to our competitors with less debt than us; and

 

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limit, among other things, our ability to borrow additional funds, even when necessary to maintain adequate liquidity or to fund important capital projects, such as new construction, relocations, renovations or equipment upgrades.

We may also incur substantial additional debt in the future, including to fund our capital projects or to refinance existing indebtedness, which could exacerbate the risks above.

We will require a significant amount of cash to service our debt. Our ability to generate cash depends upon many factors beyond our control, and changes in interest rates and credit spreads may cause our debt financing costs to increase. Any failure to meet our debt service obligations could harm our business, financial condition and results of operations.

Our ability to make payments on our indebtedness and to fund working capital needs and planned capital expenditures will depend upon our ability to generate cash in the future. Our ability to do so is largely subject to general economic, financial, competitive, legislative, regulatory and other factors that are beyond our control, including prevailing economic, financial and industry conditions. Our business may not generate sufficient cash flow from operations to repay, and future borrowings may not be available to us in an amount sufficient to enable us to repay our indebtedness or to fund dividends or our other liquidity needs. We may need to refinance all or a portion of our indebtedness at or before maturity. We may not be able to refinance any of such indebtedness on commercially reasonable terms or at all. Our ability to restructure or refinance our indebtedness will depend on the condition of the debt and capital markets and our financial condition at such time. In addition, any refinancing of our indebtedness could be at higher interest rates and may require us to comply with more onerous covenants, which could further restrict our business operations. Any failure to make scheduled payments of interest and principal on our outstanding indebtedness could, among other things, result in an acceleration of our debt repayment obligations. Our inability to generate sufficient cash flow to satisfy our debt service obligations, or to refinance or restructure our obligations on commercially reasonable terms (or at all), could have a material adverse effect on our business, financial condition and results of operations.

Restrictive covenants in the agreements and instruments governing our indebtedness may limit our flexibility in operating our business.

The indenture governing the 8.25% Notes (as defined herein), the A&R Credit Agreement governing the 2018 Senior Secured Credit Facility (as defined herein) and the Holdings Credit Agreement governing the Holdings Term Loan (collectively, the “Debts”) contain provisions that limit our discretion to operate our business by restricting our ability to, among other things:

 

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incur additional indebtedness;

 

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create liens;

 

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make restricted payments;

 

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make certain payments and distributions (including the payment of dividends);

 

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engage in certain business activities;

 

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make investments and capital expenditures; and

 

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engage in mergers, amalgamations, consolidations and certain reorganizations or transfers and sales of assets.

 

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The Holdings Credit Agreement contains a customary passive holding company covenant that restricts Holdings’ ability to engage in business operations unrelated to its equity interest in GCEL. In addition, the Holdings Credit Agreement contains provisions that, depending on the amount of redemptions by LACQ’s public stockholders in connection with the Transactions, may require us to seek a waiver or consent to consummate the Transactions.

The restrictive covenants contained in the Debts may restrict our ability to expand our business or to pursue our business strategies that would be beneficial to us or to our shareholders, including our ability to generate cash flow in the future, borrow under our debt instruments or incur new indebtedness. We cannot assure you that future borrowings will be available to us under our Debts in an amount sufficient to enable us to pay our indebtedness or to fund our other liquidity needs. We cannot assure you that we will be able to access the capital markets in the future to borrow additional indebtedness on terms that are favorable to us. Our ability to comply with these and other provisions may be affected by changes in our business condition or results of operations, adverse regulatory developments or other events beyond our control, including changes in general economic and business conditions. A breach of any of these and other covenants or our inability to comply with required financial ratios could result in us being in default under these agreements, which could materially adversely affect our business, financial conditions, results of operations and liquidity.

Foreign currency exchange rates may adversely affect the Canadian dollar amount of principal and interest payable under our US dollar denominated debt.

We are exposed to foreign exchange rate risks because the Debts are denominated in US dollars. If we are unable to fully mitigate our exposure to these risks, our operating results may be adversely affected. We have entered into cross currency interest rate swaps (“CCIRS”) contracts to manage known currency exposure on its US dollar denominated long-term debt. The CCIRS contracts also convert the interest rate risks on the term loans from being a floating rate to a fixed rate loan. The CCIRS contracts require the periodic exchange of payments with the exchange at maturity of notional principal amounts on which the payments are based.

Currently, the CCIRS contracts cover (i) 75% of the Term Loan B (as defined herein), or, US$330 million, (ii) 75% of the principal of the 8.25% Notes, or US$191 million and a forward contract covers (iii) 90% of the Holdings Term Loan or, US$135 million. The CCIRS contracts pertaining to the Term Loan B: (i) terminate on March 14, 2022; (ii) are fixed at a US dollar foreign exchange rate of 1.3166; and (iii) bear a fixed weighted average interest rate of 4.94%. The CCIRS contracts pertaining to the 8.25% Notes: (i) terminate on March 1, 2021; (ii) are fixed at a US dollar to Canadian dollar foreign exchange rate of 1.3168; and (iii) bear a fixed weighted average interest rate of 7.85%. The forward contract contracts pertaining to the Holdings Term Loan are at a fixed rate of 1.3500 and may be settled at any time prior to May 8, 2020. For more information about our foreign exchange rate risk exposure, see “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Foreign Exchange Rate Risk.”

Changes in accounting standards could affect our reported results.

The IASB, or other regulatory bodies, periodically introduce modifications to financial accounting and reporting standards or issue new financial accounting and reporting standards under which we prepare our consolidated financial statements. These changes can materially affect the means by which we report financial information, affecting our reported results of operations. We could also be required to apply new or revised standards retroactively.

More specifically, several new or amended standards and interpretations to IFRS are expected over the coming years. In particular, both IFRS 9, Financial Instruments and IFRS 15, Revenues from Contracts with Customers went into effect on January 1, 2018 and IFRS 16, Leases went into effect on January 1, 2019. There is a material impact as a result of IFRS 16 due to the recognition of a right-of-use asset and a lease liability for leases that were previously treated as operating leases by us. See “Index to Financial Statements—Notes to GTWY Holdings Limited Consolidated Financial Statements—Note 4.”

 

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The pro forma financial statements and other pro forma financial information included in this proxy statement/prospectus are presented for illustrative purposes only and may not be an indication of our financial condition or results of operations following the consummation of the Transactions.

The pro forma financial statements and other pro forma financial information included in this proxy statement/prospectus are presented for illustrative purposes only, are based on various adjustments and assumptions, and are not necessarily indicative of what the combined company’s actual financial position or results of operations would have been had the Transactions been completed on the dates indicate. The pro forma financial statements and pro forma financial information also may not be an indication of our financial condition or results of operations following the consummation of the Transactions.

The pro forma financial statements for the fiscal year ended December 31, 2018 include assumptions relating to the Central Bundle. Our actual results may have been significantly different if we had owned the Central Bundle for all of fiscal 2018. In addition, the pro forma financial statements for the fiscal year ended December 31, 2018 are based on certain unaudited financial information for the Central Bundle prepared or provided by the OLG. Specifically, the Central Bundle financial information is based on unaudited site financial information prepared or provided by the OLG for the period of January 1, 2018 to July 17, 2018. The unaudited site-level financial information prepared or provided by the OLG for the Central Bundle does not include certain information and adjustments necessary to conform with IFRS as issued by the IASB.

The historical financial information for the Ontario properties prior to our acquisition thereof was prepared or provided by the OLG and consists of audited combined schedules of revenue and direct expenses only and does not represent complete financial statements; care should be taken when relying upon such information.

The audited annual financial information and results of the Southwest Ontario properties, North Ontario properties and Central Ontario properties included in this proxy statement/prospectus were prepared or provided by the OLG and consist of combined audited schedules of revenue and direct expenses that are not fully consistent with the statements provided for significant acquisitions under Sections 13 and 15(d) of the Exchange Act and do not include a balance sheet, statements of cash flows or the related footnotes to such financial statements. In addition, this financial information does not include certain information and adjustments necessary to conform with IFRS as issued by the IASB.

Risks Related to Acquisitions, Dispositions and Capital Projects

We may not realize the anticipated benefits from an acquisition, including the Ontario acquisitions.

Acquisitions, including the Ontario acquisitions, involve the integration of entities that were previously operated independently by other companies or by Crown corporations such as the OLG. The combined operations resulting from acquisitions may not realize anticipated benefits, synergies or cost reductions. In addition, other benefits expected from an acquisition, including the Ontario acquisitions, may not be realized on the timeframe we project or at all. Any acquisition, including the Ontario acquisitions, carries the risk that the resulting changes to our operations, including in respect of property and equipment locations, management and employee base, policies, philosophies and procedures, could have unanticipated effects or require more resources than intended. Although the Ontario acquisitions will generally be subject to risks similar to those to which we are subject in our existing businesses, the new operations may increase these risks. For example, the increase in the scale of our operations may increase our operational risks.

Our ability to realize the benefits associated with the Ontario acquisitions will depend to a significant degree upon our ability to manage our expanded enterprise and the associated increased costs and complexity, as well as the challenges of operating in a new market in which we do not have prior operational experience. In order to support this expanded enterprise, we will need to achieve revenues from the Ontario properties consistent with our business expectations, which may prove more difficult than currently expected. While the purchase prices for the Southwest Ontario properties, North Ontario properties and Central properties were $75.3 million (excluding

 

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cash, cash equivalents, non-cash working capital and taxes), $69.1 million (excluding cash, cash equivalents, non-cash working capital and taxes), and $62.6 million (excluding cash, cash equivalents, non-cash working capital and taxes), respectively, the total cost associated with the Ontario acquisitions, including actual and future development capital expenditures at the respective properties, is expected to be approximately $500 million to $530 million in total through 2022. However, actual capital expenditures at the Southwest Ontario, North Ontario and/or Central Ontario properties may exceed these estimates, which could have an adverse impact on our cash flows and liquidity.

The anticipated cost savings described in this proxy statement/prospectus are based on estimates and assumptions that we consider reasonable but that are inherently uncertain. Our expected cost savings, as well as any revenue or other benefits or synergies, are subject to significant business, economic, regulatory and competitive uncertainties and contingencies, all of which are difficult to predict and many of which are beyond our control. As a result, there can be no assurance that our expected cost savings, as well as any potential revenue or other benefits or synergies, will be realized in the timeframe we currently anticipate or at all. Any failure to achieve our expected benefits could affect our profitability, cash flows and liquidity.

We may experience delayed integration and unanticipated costs and liabilities relating to acquisitions.

Historically, before making an acquisition, we have conducted what we believe to be thorough due diligence. However, when we compete in government procurement processes, like the OLG Modernization Plan (as defined herein), the amount of due diligence that we are able to conduct may be limited by such processes and other constraints. It is possible that we will make an acquisition that may not subsequently perform in line with management’s financial or strategic objectives. Acquisitions may also be subject to regulatory approvals that are beyond our control, which may result in delayed integration and increased costs. Changes in the competitive and economic environment, as well as other factors, may lower revenues. There may also be unexpected delays in implementing certain plans relating to the acquisition, leading to delays in achieving full integration. Delayed integration and increased costs could have a material adverse effect on us.

In connection with acquisitions made by us (including the Ontario acquisitions), there may also be liabilities, such as environmental liabilities (including liabilities related to the presence or migration of contaminants at or from acquired properties), litigation and regulatory liabilities, which we failed to discover or were unable to quantify in the due diligence conducted prior to the respective closing dates. We may not be indemnified for some or all of any undiscovered or contingent liabilities. In addition, although the vendors in our acquisitions may have agreed to indemnify us for certain losses, there is no assurance that such vendors will have sufficient funds available to satisfy the indemnities if called upon to do so. The discovery of any such liabilities could have a material adverse effect on our business, financial condition or future prospects.

We may pursue additional acquisition opportunities and our efforts to integrate recent acquisitions and complete future acquisitions may not be successful and such efforts may subject us to considerable business and financial risks.

We may continue to pursue additional acquisition opportunities. While we evaluate potential acquisitions on an ongoing basis, we may not be successful in assessing the value, strengths and weaknesses of acquisition opportunities or completing acquisitions on acceptable terms. For example, to the extent that our analysis and market studies performed by third parties are not accurate indicators of market, business and gaming trends, we may not appropriately evaluate or realize the future market growth or business opportunities that we expect from an acquisition. Furthermore, we may not be successful in identifying acquisition opportunities, and suitable acquisition opportunities may not be made available or known to us. In addition, we may compete for certain acquisition targets with companies that have greater financial resources than we do. We may finance future acquisitions through cash provided by operating activities, borrowings under our bank credit facility (to the extent allowed by the terms of the credit facility) and/or other debt or equity financing. All of these financing mechanisms could reduce our cash available for other purposes.

 

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We may incur significant expenses while pursuing acquisitions, which could negatively affect our financial condition and results of operations. For example, past acquisitions have presented financial reporting, accounting and internal controls challenges, as we integrate the operations of acquired properties into our centralized financial reporting and accounting systems from their legacy systems. Such financial reporting and accounting integration (including putting in place proper processes, controls and procedures) has diverted management’s time and resources and requires us to put in place additional personnel to help effectively oversee these functions at such properties.

We may not be able to successfully manage acquired businesses or increase our cash flow from these operations. If we are unable to successfully implement our acquisition strategy or address the risks associated with acquisitions, or if we encounter unforeseen expenses, difficulties, complications or delays frequently encountered in connection with the integration of acquired entities and the expansion of operations, our growth and ability to compete may be impaired, we may fail to achieve acquisition synergies and we may be required to focus resources on integration of operations rather than other profitable areas. In addition, the increased costs associated with any acquisitions and related capital expenditures may not be offset by corresponding increases in our revenues, which would decrease our operating margins.

While we intend to complete the gaming properties in London, Sudbury, Kenora, North Bay, Wasaga Beach, Delta and Mission on schedule, these properties may not be completed on a timely basis, on anticipated terms or at all due to unforeseen factors.

As part of our acquisition of the North Ontario properties, we acquired the opportunity to build new gaming properties in both the Kenora and the North Bay areas. In addition, as part of our acquisition of the Central Bundle, we acquired the opportunity to build a new gaming property in either Wasaga Beach or Collingwood. The proposed properties are subject to the necessary government approvals. There is no guarantee we will obtain such approvals. If the new gaming properties and related projects are not completed on schedule, our profitability may suffer. In addition, we may experience unexpected delays or unanticipated capital costs during development, which may have an adverse effect on our financial condition. The expansion, rebranding and/or relocation of the Chances Mission, Delta (relocation of the closed Newton Bingo Country licence), Western Fair District London Slots and Sudbury Downs Slots may not be completed on a timely basis, on anticipated terms or at all.

We have commenced expansion, rebranding and/or relocation efforts at the Chances Mission, Delta, Western Fair District London Slots and Sudbury Downs Slots, which are expected to be completed in the next one to two years. However, there is no guarantee that the scheduled work will be completed on a timely basis, on anticipated terms or at all.

While we have received initial municipal approval for the relocation of its Sudbury Downs Slots facility, an appeal of that decision has been filed in the Local Planning Appeal Tribunal by certain individuals and community groups, which, if successful, would delay the proposed relocation pending further appeals or court challenges. Subject to extension by the tribunal, a first hearing is expected in May 2020 with a decision expected in Summer 2020. Furthermore, an individual has also appealed the decision of Council to the Ontario Superior Court of Justice. That court action is not currently scheduled, but based on the document exchange set, it is expected the hearing will be scheduled for March or April 2020 with a decision due by May 2020. There is no certainty over whether these individuals and community groups will be partially or wholly successful in obtaining the relief sought. If the relief sought is granted, it could have a material adverse effect on the relocation of the Sudbury Downs facility and the anticipated growth therefrom.

We may not complete a disposition of the Edmonton Region operations in a timely manner or at all, and any such disposition may not be on favorable terms to us.

We are reviewing various strategic alternatives for a disposition of the Edmonton Region operations. However, there can be no assurance that a disposition will be completed in a timely manner or at all. The

 

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Edmonton Region operations are presented in our consolidated financial statements as discontinued operations. In the event we do not complete a disposition in a timely manner, we may be required to again reflect the Edmonton Region operations as part of our continuing operations for financial accounting and reporting purposes. Such a change would also require us to recast our financial statements retrospectively for all reportable periods, which would change the information being reported herein for those periods. Any disposition of the Edmonton Region operations would be subject to receipt of third-party consents and regulatory approvals, and may not be on favorable terms to us. The consummation of the Transactions is not conditioned on completion of the sale of the Edmonton Region operations. The Merger Agreement permits, but does not require, the sale of the Edmonton Region operations prior to the consummation of the Transactions. For more information regarding the Edmonton Region, including financial information, see the discussion and financial information relating to discontinued operations in the “Business” and “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations” sections of this proxy statement/prospectus, and “Note 19—Discontinued operations” to our Unaudited Condensed Consolidated Interim Financial Statements included in this proxy statement/prospectus and “Note 26— Discontinued operations” to our audited consolidated financial statements included in this proxy statement/prospectus.

Construction may interfere with our operations.

Capital projects to improve our properties and our guest experience may result in construction disruptions and may affect our properties’ appearances in the short-term. Such disruptions may have an adverse impact on attendance at our properties, resulting in a negative impact on our revenues. Construction and development costs may be higher than expected and we may not have the funds required to pay any excess costs. Some of our major construction projects may entail other significant risks, such as shortages of material or labor, unanticipated cost increases or work stoppages.

Our efforts to grow through the acquisition, location, relocation and development of new gaming operations may not be successful.

The acquisition and development of our gaming operations involves significant risks and is dependent on our ability to identify, acquire and develop suitable sites for potential development of new properties or acquisition of existing properties in both new and existing markets. The cost of acquiring or developing a new property is substantial, and success is not assured. The expansion of our gaming operations is also contingent upon receiving and maintaining all regulatory licenses, permits, approvals, registrations and findings of suitability. The timely and successful completion of any acquisition or capital development is subject to regulatory and municipal approvals and we may not be able to determine when, or if, the necessary approvals will be granted.

We may experience difficulties with our internal systems and controls during periods of growth.

As a result of acquisitions and property developments, there may be significant demands that are placed on our managerial, operational and financial resources, including its personnel and systems. In particular, there may be demands on our operational and accounting information systems and controls and other accounting systems resulting from growth in our operations. No assurance can be given that our systems, procedures and controls will be adequate to support the expansion of our operations resulting from growth. While we take action to maintain internal systems and controls, future operating results could be affected by the ability of our officers and key employees to manage changing business conditions, expansion opportunities and acquisitions, and to upgrade, implement and/or improve operational and financial controls and reporting systems.

Our capital projects, including our growth initiatives, may not receive the required resources.

The nature of our business and our growth strategy dictates a significant amount of expenditure on physical premises, associated amenities and related technologies. In addition, capital projects are often encouraged by the

 

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Gaming Regulators and Crown corporations to ensure modernization. If our capital projects are not managed effectively, or are not allocated sufficient financial and managerial resources, we may be unable to effectively manage the cost of construction, third-party contractors and the third-party consultants engaged in our capital projects. As such, our profitability may suffer.

Risks Related to Ownership of Holdings Common Shares

Shareholders will be subject to certain ownership constraints, which limit the number of common shares that a shareholder may acquire without the prior written approval of the Gaming Authorities and Gaming Regulators.

Our common shares are subject to share constraints pursuant to the provincial statutes and regulations that govern our business and certain of our gaming operating agreements.

In British Columbia, approval of the GPEB is required in advance of the acquisition or disposition of a 5% or greater ownership or beneficial ownership of common shares by any person or group of persons acting in concert. Further, through the OSAs, the BCLC restricts share ownership of our common shares without approval from the BCLC and GPEB. No person or group of persons acting jointly or in concert may hold or beneficially own a Significant Interest without obtaining prior written consent of GPEB and the BCLC. In addition, any person or group of persons acting jointly or in concert holding or beneficially owning, either directly or indirectly, a Significant Interest in our common shares must obtain GPEB and the BCLC’s consent prior to disposing or acquiring common shares or disposing of any part of that interest if such disposition or acquisition would result in a change of control of Gateway. A “Significant Interest” for purposes of the BCLC and the OSA is an interest greater than 5% of our issued and outstanding common shares.

In Ontario, the common shares are also subject to the restrictions set out in the COSAs. Under each COSA, we must disclose when any person becomes the holder or beneficial owner of our voting securities (or securities convertible or exchangeable for voting securities) or the voting securities (or securities convertible or exchangeable for voting securities) of one of our control persons holding, in the aggregate, more than 5% of the votes attaching to the total of such voting securities, within 30 days of the transaction. Further, each COSA provides that no person may beneficially acquire, directly or indirectly, more than 10% of our voting securities or the voting securities of one of our control persons without the consent of the OLG.

Until we have completed the sale of the Edmonton Region properties, the common shares will be subject to restrictions under Alberta regulations. See “—We may not complete a disposition of the Edmonton Region operations in a timely manner or at all, and any such disposition may not be on favorable terms to us.” In Alberta, any sale, assignment or transfer of a 5% or greater interest in Gateway must be disclosed to the AGLC within 10 business days after the effective date of the transaction and approved by the board of the AGLC. Prior approval of the AGLC is required for the acquisition of any “financial interest” in us, our business or in a property to which our AGLC license relates, in a manner other than by way of a sale, assignment or transfer. See “Business—Operating Agreements and Licenses” and “Description of Share Capital—Common Share Constraints Required by Gaming Regulators and Change of Control.”

The approval processes may require a shareholder to divulge extensive personal information to the Gaming Authorities and/or Gaming Regulators. As a result, a shareholder may incur significant expenses over a lengthy period of time before obtaining the required approvals. Furthermore, such approvals are granted at the discretion of the Gaming Authorities and Gaming Regulators, as applicable, and are not, in any circumstances, guaranteed. These share constraints may, if triggered, also reduce the liquidity of a shareholder’s investment.

Our amended and restated articles of incorporation and bylaws and certain Canadian legislation contain provisions that may have the effect of delaying or preventing a change in control.

We intend to adopt amended and restated articles of incorporation and bylaws in connection with the closing of the Transactions. Certain provisions of our amended and restated articles of incorporation and bylaws,

 

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together or separately, could discourage potential acquisition proposals, delay or prevent a change in control and limit the price that certain investors may be willing to pay for our common shares. For instance, our articles, to be effective upon the completion of the Transactions, will contain provisions that establish certain advance notice procedures for nomination of candidates for election as directors at shareholders’ meetings. The material differences between the CBCA and the DGCL, that may have the greatest such effect include, but are not limited to, the following: (i) for certain corporate transactions (such as mergers and amalgamations or amendments to our articles) the CBCA generally requires the voting threshold to be a special resolution approved by 66 2/3% of shareholders, whereas DGCL generally only requires a majority vote; and (ii) under the CBCA a holder of 5% or more of our common shares can requisition a special meeting of shareholders, whereas such right does not exist under the DGCL.

In addition, a non-Canadian must file an application for review with the Minister responsible for the Investment Canada Act and obtain approval of the Minister prior to acquiring control of a “Canadian Business” within the meaning of the Investment Canada Act, where prescribed financial thresholds are exceeded. Finally, limitations on the ability to acquire and hold our common shares may be imposed by the Competition Act (Canada). The Competition Act (Canada) establishes a pre-merger notification regime for certain types of merger transactions that exceed certain statutory shareholding and financial thresholds. Transactions that are subject to notification cannot be closed until the required materials are filed and the applicable statutory waiting period has expired or been waived by the Commissioner. The Commissioner of Competition still retains the authority under the Competition Act (Canada) to review any acquisition or establishment, directly or indirectly, including through the acquisition of shares, of control over or of a significant interest in us, whether or not it is subject to mandatory notification. Otherwise, there are no limitations either under the laws of Canada or British Columbia, or in our articles on the rights of non-Canadians to hold or vote our common shares. Any of these provisions may discourage a potential acquirer from proposing or completing a transaction that may have otherwise presented a premium to our shareholders. We cannot predict whether investors will find our company and our common shares less attractive because we are governed by foreign laws.

Share ownership constraints imposed by the Gaming Regulators and certain provisions in our articles and governing documents might delay or deter acquisition attempts.

Ownership of common shares is subject to certain restrictions, constraints and conditions imposed by the applicable gaming legislation and the terms and conditions of our operating agreements and/or licenses. Shareholders must either submit to an advance approval process or obtain registration when certain ownership thresholds are met. Our articles also contain provisions that make our acquisition by a third party more difficult without the required approvals of the Gaming Regulators.

These various restrictions and gaming regulations could discourage, materially delay or prevent a transaction involving a change in control or discourage proxy contests, even if such transactions or events would benefit our shareholders.

If the Merger does not qualify as a reorganization under Section 368(a) of the Code, is taxable under Section 367 of the Code, or is otherwise taxable to U.S. holders of LACQ Shares, then the Merger would be taxable with respect to such holders.

The Merger (i) is intended to qualify as a reorganization within the meaning of Section 368(a) of the Code (a “reorganization”), and (ii) should not result in gain being recognized by U.S. holders of LACQ Shares and LACQ Warrants immediately prior to the effective time of the Merger under Section 367(a) of the Code (other than with respect to any such holder that would own, actually or constructively, 5% or more (by vote or value) of the outstanding shares of Holdings stock immediately after the Merger) (together, the “Intended Tax Treatment”). The parties intend to report the Merger in a manner consistent with the Intended Tax Treatment. However, there are significant factual and legal uncertainties as to whether the Merger will qualify for the Intended Tax Treatment. For example, under Section 368(a) of the Code, the acquiring corporation (or, in the

 

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case of certain reorganizations structured as the Merger, its corporate parent) must continue, either directly or indirectly through certain controlled corporations, either a significant line of the acquired corporation’s historic business or use a significant portion of the acquired corporation’s historic business assets in a business. Moreover, Section 367(a) of the Code and the applicable Treasury regulations promulgated thereunder provide that where a U.S. shareholder exchanges stock in a U.S. corporation for stock in a non-U.S. corporation in a transaction that would otherwise qualify as a reorganization within the meaning of Section 368(a) of the Code, the U.S. shareholder is required to recognize gain, but not loss, realized on such exchange unless certain requirements are met. There are significant factual and legal uncertainties concerning the determination of certain of these requirements. Moreover, the closing of the Merger is not conditioned upon the receipt of an opinion of counsel that the Merger will qualify for the Intended Tax Treatment, and neither LACQ nor Holdings intends to request a ruling from the IRS regarding the U.S. federal income tax treatment of the Merger. Accordingly, no assurance can be given that the IRS will not challenge the Intended Tax Treatment or that a court will not sustain a challenge by the IRS.

If, at the effective time of the Merger, any requirement for Section 368(a) of the Code is not met, then a U.S. holder of LACQ Shares would recognize gain or loss in an amount equal to the difference, if any, between the fair market value (as of the closing date of the Merger) of Holdings Shares and the amount of cash received in the Merger, over such holder’s aggregate tax basis in the LACQ Shares surrendered by such holder in the Merger.

If, at the effective time of the Merger, any requirement for Section 367(a) of the Code is not satisfied, then a U.S. holder of LACQ Shares would recognize gain (but not loss) in an amount equal to the excess, if any, of the fair market value as of the closing date of the Merger of Holdings Shares and the amount of cash received in the Merger, over such holder’s aggregate tax basis in the LACQ Shares surrendered by such holder in the Merger.

For a further discussion, see “The Business Combination Proposal—Material U.S. Federal Income Tax Considerations of the Merger to Holders of LACQ Shares and LACQ Warrants—U.S. Federal Income Tax Considerations of the Merger—U.S. Federal Income Tax Considerations to U.S. Holders.”

Changes to tax laws may have an adverse impact on us and holders of Holdings Shares.

Changes in tax laws, including amendments to tax laws, changes in the interpretation of tax laws, or changes in the administrative pronouncements or positions by the CRA may have a material adverse effect on us. In addition, tax authorities could disagree with us on tax filing positions taken by us and any reassessment of our tax filings could result in material adjustments of tax expense, income taxes payable and deferred income taxes.

Changes in tax laws, including amendments to tax laws, changes in the interpretation of tax laws or changes in the administrative pronouncements or positions by the CRA, may also have a material adverse effect on our investors and their investments in Holdings Shares. Investors in Holdings Shares should consult their tax advisors regarding the potential tax consequences associated with the acquisition, holding and disposition of Holdings Shares in their particular circumstances.

U.S. holders of Holdings Shares may suffer adverse tax consequences if Holdings is treated as a passive foreign investment company.

A non-U.S. corporation generally will be treated as a “passive foreign investment company” (“PFIC”) for U.S. federal income tax purposes, in any taxable year if either (1) at least 75% of its gross income for such year is passive income (such as interest income) or (2) at least 50% of the value of its assets (based on an average of the quarterly values of the assets) during such year is attributable to assets that produce or are held for the production of passive income. Based on the current and anticipated composition of the income, assets and operations of Holdings and its subsidiaries, we do not believe that Holdings will be a PFIC for U.S. federal income tax purposes for the taxable year that includes the Merger or for future taxable years. However, this is a

 

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factual determination that depends on, among other things, the composition of Holdings’ income and assets, and the market value of its shares and assets, including the composition of income and assets and the market value of shares and assets of its subsidiaries, from time to time, and thus the determination can only be made annually after the close of each taxable year. In addition, the application of the PFIC rules is subject to certain ambiguities, and moreover, proposed U.S. Treasury Regulations governing PFICs, which, if enacted, may further change the rules for determining PFIC status. Therefore, no assurance can be given that Holdings will not be classified as a PFIC for the current taxable year or any future taxable year. If Holdings is a PFIC for any taxable year, a U.S. holder (as defined in “Material U.S. Federal Income Tax Considerations of the Merger to Holders of LACQ Shares and LACQ Warrants”) of Holdings Shares may be subject to adverse tax consequences and may incur certain information reporting obligations. Under the PFIC rules, unless such U.S. holder makes an election available under the Code (which election could itself have adverse consequences for such U.S. holders), such U.S. holder may be subject to U.S. federal income tax at the then prevailing maximum rates on ordinary income and possibly an “interest” charge, in respect of “excess distributions” and upon any gain from the disposition of Holdings Shares, as if the excess distribution or gain had been recognized ratably over the holder’s holding period of the Holdings Shares. For a further discussion, see “Material U.S. Federal Income Tax Considerations of the Merger to Holders of LACQ Shares and LACQ Warrants—U.S. Federal Income Tax Considerations of the Ownership and Disposition of Holdings Shares and Holdings Warrants—U.S. Holders—Passive foreign investment company status.” U.S. investors should consult their own advisors regarding the potential application of these rules to an investment in Holdings Shares.

If a U.S. person is treated as owning at least 10% of Holdings Shares, such holder may be subject to adverse U.S. federal income tax consequences.

If a U.S. person is treated as owning (directly, indirectly or constructively) at least 10% of the value or voting power of Holdings Shares, such person may be treated as a “United States shareholder” with respect to each “controlled foreign corporation” (“CFC”) in the Holdings group. Certain United States shareholders of a CFC may be required to annually report and include in its U.S. taxable income its pro rata share of “Subpart F income,” “global intangible low-taxed income” and certain investments in U.S. property by controlled foreign corporations, whether or not Holdings make any distributions to such United States shareholder. An individual that is a United States shareholder with respect to a CFC generally would not be allowed certain tax deductions or foreign tax credits that would be allowed to a United States shareholder that is a U.S. corporation. A failure to comply with these reporting obligations may subject a United States shareholder to significant monetary penalties and may prevent the statute of limitations with respect to a United States shareholder’s U.S. federal income tax return for the year for which reporting was due from starting. Furthermore, there can be no assurance that Holdings will have sufficient information to assist investors in determining whether Holdings or any of its subsidiaries are treated as a CFC or whether such holder is treated as a United States shareholder with respect to any of such CFC. In addition, Holdings cannot guarantee that it will be in a position to furnish to any United States shareholder information that may be necessary to comply with the aforementioned reporting and tax paying obligations. For a further discussion, see “Material U.S. Federal Income Tax Considerations of the Merger to Holders of LACQ Shares and LACQ Warrants—U.S. Federal Income Tax Considerations of the Ownership and Disposition of Holdings Shares and Holdings Warrants—U.S. Holders—Characterization of Holdings as a “controlled foreign corporation” for U.S. federal income tax purposes.” U.S. investors should consult their own advisors regarding the potential application of these rules to an investment in Holdings Shares.

Affiliates of Catalyst will have effective control over us after completion of the Transactions and will be able to exert significant control over matters subject to shareholder approval.

Upon consummation of the Transactions, affiliates of Catalyst will beneficially own as much as approximately 67.5% of the voting power of our outstanding common shares. In addition, regardless of the amount of LACQ’s existing shares redeemed in connection with approval of the Transaction, affiliates of Catalyst will be able to nominate a majority of the members of our board of directors. Accordingly, affiliates of Catalyst will continue to effectively control us through its board rights and equity ownership position. Because

 

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we are incorporated in Canada, certain matters, such as amendments to our articles of incorporation or votes regarding a potential merger or a sale of all or substantially all of our assets, require approval of at least two-thirds of our shareholders; following consummation of the Transactions, Catalyst’s approval will likely be required to achieve any such threshold. For example, Catalyst may be able to control elections of directors, amendments of our organizational documents or approval of any merger, sale of assets or other major corporate transaction. Catalyst’s interests may not always coincide with our corporate interests or the interests of other shareholders, and it may act in a manner with which you may not agree or that may not be in the best interests of our other shareholders. Catalyst is in the business of making investments in companies and may acquire and hold interests in businesses that compete directly or indirectly with us. Catalyst may also pursue acquisition opportunities that may be complementary to our business, and, as a result, those acquisition opportunities may not be available to us. So long as affiliates of Catalyst continues to own a significant amount of our equity, it will continue to be able to strongly influence or effectively control our decisions.

If securities or industry analysts do not publish research or reports about our business, or publish negative reports about our business, our share price and trading volume could decline.

The trading market for our common shares may depend, in part, on the research and reports that securities or industry analysts publish about us or our business. We do not have any control over these analysts. If our financial performance fails to meet analyst estimates or one or more of the analysts who cover us, to the extent any analysts do cover us, downgrade our common shares or change their opinion of our common shares, our share price would likely decline. If one or more of these analysts cease coverage of our company or fail to regularly publish reports on us, we could lose visibility in the financial markets, which could cause our share price or trading volume to decline.

The market price of our common shares is likely to be highly volatile, and you may lose some or all of your investment.

The market price of our common shares is likely to be highly volatile and may be subject to wide fluctuations in response to a variety of factors, including the following:

 

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market conditions in the broader stock market in general;

 

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actual or anticipated fluctuations in our results of operations;

 

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introduction of new products or services by us or our competitors;

 

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issuance of new or changed securities analysts’ reports or recommendations;

 

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additions or departures of our executive officers and other key personnel;

 

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changes in the economic performance or market valuations of other companies that prospective purchasers deem comparable to us;

 

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litigation and governmental or regulatory investigations;

 

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changes in gaming laws and regulations;

 

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economic and political conditions or events;

 

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significant acquisitions or business combinations, strategic partnerships, joint ventures or capital commitments by or involving us or our competitors;

 

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trends, concerns, technological or competitive developments, regulatory changes and other related issues in our business or target markets;

 

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sales of our common shares by us or our shareholders in the future;

 

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trading volume of our common shares; and

 

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the other factors described in this “Risk Factors” section.

 

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In addition, the stock markets have experienced extreme price and volume fluctuations that have affected and continue to affect the market prices of equity securities of many companies. These fluctuations have often been unrelated or disproportionate to the operating performance of those companies. Broad market and industry factors, as well as general economic, political, regulatory and market conditions, may negatively affect the market price of our common shares, regardless of our actual operating performance. Furthermore, in the past, securities class action litigation has often been brought against a company following a decline in the market price of its securities. If we face such litigation, it could result in substantial costs and a diversion of management’s attention and resources, which could harm our business.

Because we are a corporation incorporated under the federal laws of Canada and some of our directors and officers are residents of Canada, it may be difficult for investors in the United States to enforce civil liabilities against us based solely upon the U.S. federal securities laws. Similarly, it may be difficult for Canadian investors to enforce civil liabilities against our directors and officers residing outside of Canada.

We are a corporation incorporated under the federal laws of Canada with our principal place of business in Burnaby, British Columbia, Canada. Some of our directors and officers and the auditors or other experts named herein are residents of Canada and all or a substantial portion of our assets and those of such persons are located outside the United States. Consequently, it may be difficult for U.S. investors to effect service of process within the United States upon us or our directors or officers or such auditors who are not residents of the United States, or to realize in the United States upon judgments of courts of the United States predicated upon civil liabilities under the U.S. federal securities laws. Investors should not assume that Canadian courts: (1) would enforce judgments of U.S. courts obtained in actions against us or such persons predicated upon the civil liability provisions of the U.S. federal securities laws or the securities or blue sky laws of any state within the United States or (2) would enforce, in original actions, liabilities against us or such persons predicated upon the U.S. federal securities laws or any such state securities or blue sky laws. See “Enforceability of Civil Liabilities.”

Fluctuations in foreign currency exchange rates could harm our results of operations as well as the price of our common shares.

The presentation of currency in our consolidated financial statements is the Canadian dollar. Because we expect to continue recognizing revenue in Canadian dollars, if the U.S. dollar weakens against the Canadian dollar, it may have a negative impact on the value of our common shares in U.S. dollars. The variations in the value of the Canadian dollar relative to the U.S. dollar have been significant in the past, and current foreign exchange rates may not be indicative of future exchange rates.

Our earnings per share are reported in Canadian dollars and, accordingly, may be translated into U.S. dollars by analysts or our investors. As a result, the value of an investment in our common shares to a U.S. shareholder will fluctuate as the U.S. dollar rises or falls against the Canadian dollar. As a result, U.S. and other shareholders seeking U.S. dollar returns, including increases in the share price, are subject to foreign exchange risk as the U.S. dollar rises and falls against the Canadian dollar.

We are a foreign private issuer under the rules and regulations of the SEC and, thus, are exempt from a number of rules under the Exchange Act and are permitted to file less information with the SEC than a company incorporated in the U.S.

As a foreign private issuer under the Exchange Act, we are exempt from certain rules under the Exchange Act, including the proxy rules, which impose certain disclosure and procedural requirements for proxy solicitations. Moreover, we are not required to file periodic reports and financial statements with the SEC as frequently or as promptly as U.S. companies with securities registered under the Exchange Act; we are not required to file financial statements prepared in accordance with U.S. generally accepted accounting principles; and we are not required to comply with SEC Regulation FD, which imposes certain restrictions on the selective disclosure of material information. In addition, our officers, directors and principal shareholders are not subject

 

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to the reporting or short-swing profit recovery provisions of Section 16 of the Exchange Act or the rules under the Exchange Act with respect to their purchases and sales of our common shares. Accordingly, you may receive less information about us than you would receive about a company incorporated in the United States and may be afforded less protection under the U.S. federal securities laws than you would be afforded with respect to a company incorporated in the United States. If we lose our status as a foreign private issuer at some future time, we will no longer be exempt from such rules and, among other things, will be required to file periodic reports and financial statements as if we were a company incorporated in the United States. The costs incurred in fulfilling these additional regulatory requirements could be substantial.

Additionally, pursuant to the NYSE Listing Rules, as a foreign private issuer, we may elect to follow our home country practice in lieu of the corporate governance requirements of the NYSE Listing Rules, with the exception of those rules that are required to be followed pursuant to the provisions of the NYSE Listing Rules.

We are an emerging growth company, and we cannot be certain if the reduced reporting requirements applicable to emerging growth companies will make our common shares less attractive to investors.

We are an emerging growth company, as defined in the JOBS Act. For as long as we continue to be an emerging growth company, we may take advantage of exemptions from various reporting requirements that are applicable to other public companies that are not “emerging growth companies,” including exemption from compliance with the auditor attestation requirements of Section 404, the ability to delay adopting new or revised accounting standards until such time as those standards apply to private companies, reduced disclosure obligations regarding executive compensation and exemptions from the requirements of holding a nonbinding advisory vote on executive compensation and shareholder approval of any golden parachute payments not previously approved. We will remain an emerging growth company until the earlier of (1) the last day of the fiscal year (a) following the fifth anniversary of the date on which Holdings Shares were offered in connection with the Transactions, (b) in which we have total annual gross revenue of at least US$1.07 billion or (c) in which we are deemed to be a large accelerated filer, which means the market value of our common shares that is held by non-affiliates exceeds US$700.0 million as of the prior June 30th, and (2) the date on which we have issued more than US$1.0 billion in non-convertible debt during the prior three-year period.

We cannot predict if investors will find our common shares less attractive because we may rely on these exemptions. If some investors find our common shares less attractive as a result, there may be a less active trading market for our common shares and our share price may be more volatile.

Risks Related to the Business Combination

LACQ will not have any right to make damage claims against Holdings for the breach of any representation, warranty or covenant made by Holdings or Merger Sub.

The Merger Agreement provides that none of the representations, warranties, covenants and agreements in the Merger Agreement survive the Closing, except for those covenants and agreements contained therein which by their terms expressly apply or are to be performed, in whole or in part, after the Closing and then only to such extent. Accordingly, there are no remedies available to the parties with respect to any breach of the representations, warranties, covenants or agreements of the parties to the Merger Agreement after the Closing, except for certain covenants or agreements to be performed in whole or in part after the Closing. As a result, LACQ will have no remedy available to it if the Transactions are consummated and it is later revealed that there was a breach of any of the representations, warranties, covenants or agreements to be performed in whole or in part at or prior to Closing made by Holdings or Merger Sub.

The LACQ board of directors did not obtain a third-party valuation or fairness opinion in determining whether or not to proceed with the business combination.

The LACQ Board did not obtain a third-party valuation or fairness opinion in connection with its determination to approve the business combination with the Company. In analyzing the business combination,

 

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the LACQ Board and management conducted due diligence on the Company and researched the industry in which the Company operates and concluded that the business combination was in the best interest of LACQ’s stockholders. Accordingly, investors will be relying solely on the judgment of the LACQ Board in valuing the Company’s business, and the board of directors may not have properly valued such business. The lack of a third-party valuation or fairness opinion may also lead to an increased number of stockholders to vote against the proposed business combination or demand redemption of their shares for cash, which could potentially impact LACQ’s ability to consummate the business combination.

The grant and future exercise of registration rights may adversely affect the market price of Holdings securities.

Catalyst, the Strategic Investor and the Sponsors will be granted certain rights, pursuant to the Registration Rights Agreement, to require Holdings to register, in certain circumstances, the resale under the Securities Act of Holdings common shares or warrants held by them, subject to certain conditions. The sale or possibility of sale of these securities could have the effect of increasing the volatility in Holdings’ share price or putting significant downward pressure on the price of Holdings securities.

The combined company may issue additional common shares or other equity securities without your approval, which would dilute your ownership interests and may depress the market price of Holdings Shares.

Upon consummation of the business combination, Holdings will have warrants outstanding to purchase an aggregate of 23,719,165 Holdings Shares, and approximately 1,280,835 compensatory options issued to the Company’s management (based on the number of options outstanding as of December 31, 2019), which shall be issued pursuant to the LTIP. Under the LTIP, upon consummation of the business combination, Holdings will have reserved 10% of the number of its common shares outstanding from time to time, for issuance of awards under the LTIP (inclusive of the compensatory options that will be outstanding upon consummation of the business combination). Under the LTIP, the maximum number of common shares that may be issued to any one participant in any calendar year under the LTIP is 6% of the total issued and outstanding common shares at the commencement of such calendar year. For additional information about this plan, please read the discussion under the heading “Executive Compensation—Long-Term Equity Incentive Plan.” Holdings may also issue additional Holdings Shares or other equity securities of equal or senior rank in the future in connection with, among other things, future acquisitions or repayment of outstanding indebtedness, without shareholder approval, in a number of circumstances.

Holdings’ issuance of additional common shares or other equity securities of equal or senior rank would have the following effects:

 

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the existing shareholders’ proportionate ownership interest in us will decrease;

 

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the amount of cash available per share, including for payment of dividends in the future, may decrease;

 

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the relative voting strength of each previously outstanding common share may be diminished; and

 

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the market price of Holdings’ common shares may decline.

The NYSE may not list Holdings Shares, which could limit investors’ ability to make transactions in Holdings Shares and subject Holdings to additional trading restrictions.

Holdings intends to apply to have its securities listed on the NYSE upon consummation of the business combination. Holdings will be required to meet the initial listing requirements to be listed. Holdings may not be able to meet those initial listing requirements. Even if its securities are so listed, Holdings may be unable to maintain the listing of our securities in the future.

 

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If Holdings fails to meet the initial listing requirements and the NYSE does not list its securities and the related closing condition is waived by the parties, Holdings could face significant material adverse consequences, including:

 

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a limited availability of market quotations for its securities;

 

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a limited amount of news and analyst coverage on the Company; and

 

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a decreased ability to issue additional securities or obtain additional financing in the future.

The Sponsors, including LACQ’s officers and directors, beneficially own or have an economic interest in shares of common stock and warrants of LACQ that will be worthless and have incurred reimbursable expenses and have made, and may in the future make additional, loans that may not be reimbursed or repaid if the Transactions or other business combinations are not approved. Such interests may have influenced their decision to approve the Transactions.

The Sponsors and LACQ’s officers and directors and/or their affiliates, beneficially own or have an economic interest in founder shares and LACQ Private Placement Warrants that they purchased prior to, or simultaneously with, the LACQ IPO. Such persons have no redemption rights with respect to these securities in the event a business combination is not effected in the required time period. Therefore, if the Transactions or another business combination are not approved within the required time period, such securities held by such persons will be worthless. Such securities had an aggregate market value of US$         based upon the closing prices of the shares and warrants on the Nasdaq on the record date. See “The Business Combination Proposal—Interests of LACQ’s Insiders and Initial Stockholders.”

In addition, the Sponsors and Strategic Investor have, as of the date of this proxy/prospectus, loaned LACQ US$1,000,000 under the Expense Advance Agreement to fund the Contributions to the Trust Account. LACQ may seek additional loans from the Sponsors and/or Strategic Investor to fund future Contributions to the Trust Account or other general corporate uses. In the event that the Transactions or another business combination are not approved within the required time period, LACQ may not have sufficient funds to repay these loans in full or at all.

These financial interests may have influenced the decision of the LACQ Board to approve the Transactions and to continue to pursue such business combination. In considering the recommendations of the LACQ Board to vote for the business combination proposal and other proposals, its stockholders should consider these interests.

The exercise of LACQ’s directors’ and officers’ discretion in agreeing to changes or waivers in the terms of the business combination may result in a conflict of interest when determining whether such changes to the terms of the business combination or waivers of conditions are appropriate and in LACQ’s stockholders’ best interest.

In the period leading up to the closing of the business combination, events may occur that, pursuant to the Merger Agreement, would require LACQ to agree to amend the Merger Agreement, to consent to certain actions taken by the Company or to waive rights that LACQ is entitled to under the Merger Agreement. Such events could arise because of changes in the course of the Company’s business, a request by the Company to undertake actions that would otherwise be prohibited by the terms of the Merger Agreement or the occurrence of other events that would have a material adverse effect on the Company and would entitle LACQ to terminate the Merger Agreement. In any of such circumstances, it would be at LACQ’s discretion, acting through its board of directors, to grant its consent or waive those rights. The existence of the financial and personal interests of LACQ’s officers and directors described in the preceding risk factors may result in a conflict of interest on the part of one or more of the directors between what he or they may believe is best for LACQ and what he or they may believe is best for himself or themselves in determining whether or not to take the requested action. As of the date of this proxy statement, LACQ does not believe there will be any changes or waivers that LACQ’s

 

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directors and officers would be likely to make after stockholder approval of the business combination proposal has been obtained. While certain changes could be made without further stockholder approval, LACQ will circulate a new or amended proxy statement and re-solicit LACQ’s stockholders if changes to the terms of the transaction that would have a material impact on its stockholders are required prior to the vote on the business combination proposal.

If LACQ is unable to complete the business combination and fails to complete an alternative initial business combination by April 5, 2020, LACQ will cease all operations except for the purpose of winding up, redeeming 100% of LACQ Shares and dissolving and liquidation, in which case LACQ public stockholders may only receive US$10.00 per share, or less than such amount in certain circumstances, and LACQ Warrants will expire worthless.

If LACQ has not completed a business combination by April 5, 2020 (or a later date to the extent of a subsequent extension approved by shareholders), LACQ will: (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem the LACQ Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account including interest earned on the funds held in the Trust Account and not previously released to LACQ to pay its franchise and income taxes (less up to US$75,000 of interest to pay dissolution expenses), divided by the number of then outstanding public shares, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the LACQ remaining stockholders and the LACQ Board, dissolve and liquidate, subject in each case to LACQ’s obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law. In such case, LACQ public stockholders may only receive US$10.00 per share, and LACQ Warrants will expire worthless. In certain circumstances, LACQ public stockholders may receive less than US$10.00 per share on the redemption of their shares.

In the event of liquidation by LACQ, third parties may bring claims against LACQ and, as a result, the proceeds held in the Trust Account could be reduced and the per-share liquidation price received by stockholders could be less than US$10.00 per share.

Under the terms of LACQ’s amended and restated certificate of incorporation, as amended, LACQ must complete a business combination by April 5, 2020, or LACQ must cease all operations except for the purpose of winding up, redeeming 100% of the outstanding public shares and, subject to the approval of its remaining stockholders and its board of directors, dissolving and liquidating. In such event, third parties may bring claims against LACQ. Although LACQ has obtained waiver agreements from certain vendors and service providers it has engaged and owes money to, and the prospective target businesses it has negotiated with, whereby such parties have waived any right, title, interest or claim of any kind they may have in or to any monies held in the Trust Account, there is no guarantee that they or other vendors who did not execute such waivers will not seek recourse against the Trust Account notwithstanding such agreements. Furthermore, there is no guarantee that a court will uphold the validity of such agreements. Accordingly, the proceeds held in the Trust Account could be subject to claims which could take priority over those of LACQ’s public stockholders. If LACQ is unable to complete a business combination within the required time period, LACQ’s Sponsors have agreed they will be personally liable under certain circumstances to ensure that the proceeds in the Trust Account are not reduced by the claims of target businesses or claims of vendors or other entities that are owed money by LACQ for services rendered or contracted for or products sold to LACQ. However, the Sponsors may not be able to meet such obligation. Therefore, the per-share distribution from the Trust Account in such a situation may be less than US$10.00 due to such claims.

Additionally, if LACQ is forced to file a bankruptcy case or an involuntary bankruptcy case is filed against it which is not dismissed, or if LACQ otherwise enters compulsory or court supervised liquidation, the proceeds held in the Trust Account could be subject to applicable bankruptcy law, and may be included in its bankruptcy

 

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estate and subject to the claims of third parties with priority over the claims of its stockholders. To the extent any bankruptcy claims deplete the Trust Account, LACQ may not be able to return to its public stockholders at least US$10.00.

LACQ’s stockholders may be held liable for claims by third parties against LACQ to the extent of distributions received by them.

If LACQ has not completed a business combination by April 5, 2020 (or a later date to the extent of a subsequent extension approved by shareholders), LACQ will (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter, redeem 100% of the outstanding public shares, which redemption will completely extinguish public stockholders’ rights as stockholders (including the right to receive further liquidation distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of its remaining stockholders and its board of directors, dissolve and liquidate, subject (in the case of  (ii) and (iii) above) to its obligations under Delaware law to provide for claims of creditors and the requirements of other applicable law. LACQ cannot assure you that it will properly assess all claims that may be potentially brought against LACQ. As such, LACQ’s stockholders could potentially be liable for any claims to the extent of distributions received by them (but no more) and any liability of its stockholders may extend well beyond the third anniversary of the date of distribution. Accordingly, LACQ cannot assure you that third parties will not seek to recover from its stockholders amounts owed to them by LACQ.

If LACQ is forced to file a bankruptcy case or an involuntary bankruptcy case is filed against it which is not dismissed, any distributions received by stockholders could be viewed under applicable debtor/creditor and/or bankruptcy laws as either a “preferential transfer” or a “fraudulent conveyance.” As a result, a bankruptcy court could seek to recover all amounts received by LACQ’s stockholders. Furthermore, because LACQ intends to distribute the proceeds held in the Trust Account to its public stockholders promptly after the expiration of the time period to complete a business combination, this may be viewed or interpreted as giving preference to its public stockholders over any potential creditors with respect to access to or distributions from its assets. Furthermore, the LACQ Board may be viewed as having breached their fiduciary duties to LACQ’s creditors and/or may have acted in bad faith, and thereby exposing itself and LACQ to claims of punitive damages, by paying public stockholders from the Trust Account prior to addressing the claims of creditors. LACQ cannot assure you that claims will not be brought against it for these reasons.

Activities taken by existing LACQ stockholders to increase the likelihood of approval of the business combination proposal and other proposals could have a depressive effect on LACQ’s stock.

At any time prior to the special meeting, during a period when they are not then aware of any material nonpublic information regarding LACQ or its securities, the Sponsors and Strategic Investor, including LACQ’s officers, directors and initial stockholders, the Company, Catalyst and/or their respective affiliates may purchase shares from institutional and other investors who vote, or indicate an intention to vote, against the business combination proposal, or execute agreements to purchase such shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire LACQ Shares or vote their shares in favor of the business combination proposal. The purpose of such share purchases and other transactions would be to increase the likelihood of satisfaction of the requirements to consummate the Transactions where it appears that such requirements would otherwise not be met. Entering into any such arrangements may have a depressive effect on LACQ Shares. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares at a price lower than market and may therefore be more likely to sell the shares he owns, either prior to or immediately after the special meeting.

In addition, if such purchases are made, the public “float” of LACQ’s common stock and the number of beneficial holders of our securities may be reduced, possibly making it difficult to obtain or maintain the quotation, listing or trading of our securities on the Nasdaq or another national securities exchange or reducing the liquidity of the trading market for LACQ’s common stock.

 

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LACQ’s initial stockholders have agreed to vote in favor of the business combination, regardless of how LACQ public stockholders vote.

Unlike many other blank check companies in which the initial stockholders agree to vote their founder shares in accordance with the majority of the votes cast by the public stockholders in connection with a business combination, after approval of the LACQ board of directors, LACQ’s initial stockholders have agreed to vote their founder shares, as well as any LACQ Shares purchased during or after the LACQ IPO, in favor of the business combination. As of the record date, the LACQ initial stockholders own shares representing approximately 25% of LACQ’s outstanding shares of common stock. Accordingly, it is more likely that the necessary stockholder approval will be received than would be the case if LACQ’s initial stockholders agreed to vote their founder shares in accordance with the majority of the votes cast by LACQ public stockholders.

LACQ and Holdings will incur significant transaction and transition costs in connection with the Transactions.

LACQ and Holdings have both incurred and expect to incur significant, non-recurring costs in connection with consummating the Transactions and operating as a public company following the consummation of the Transactions. Gateway may also incur additional costs to retain key employees. All expenses incurred in connection with the Merger Agreement and the transactions contemplated thereby (including the Transactions), including all legal, accounting, consulting, investment banking and other fees, expenses and costs, will be for the account of the party incurring such fees, expenses and costs or paid by Holdings following the closing of the Transactions.

Subsequent to the completion of the business combination, the combined company may be required to take write-downs or write-offs, restructuring and impairment or other charges that could have a significant negative effect on its financial condition, results of operations and the combined company’s stock price, which could cause you to lose some or all of your investment.

Although LACQ has conducted extensive due diligence on Gateway, LACQ cannot assure you that this diligence will surface all material issues that may be present in Gateway’s business, that it would be possible to uncover all material issues through a customary amount of due diligence, or that factors outside of Gateway’s business and outside of its control will not later arise. As a result of these factors, the combined company may be forced to later write-down or write-off assets, restructure its operations, or incur impairment or other charges that could result in its reporting losses. Even if LACQ’s due diligence successfully identified certain risks, unexpected risks may arise and previously known risks may materialize in a manner not consistent with LACQ’s preliminary risk analysis. Even though these charges may be non-cash items and would not have an immediate impact on the combined company’s liquidity, the fact that the combined company reports charges of this nature could contribute to negative market perceptions about the combined company or its securities. In addition, charges of this nature may cause the combined company to violate net worth or other covenants to which the combined company may be subject as a result of assuming pre-existing debt held by Gateway’s business or by virtue of the combined company obtaining post-combination debt financing. Accordingly, any stockholders who choose to remain stockholders following the business combination could suffer a reduction in the value of their shares. Such stockholders are unlikely to have a remedy for such reduction in value.

The Holdings securities to be received by LACQ’s stockholders as a result of the Transactions will have different rights from LACQ securities.

Following completion of the Transactions, LACQ’s public stockholders will no longer be stockholders of LACQ but will instead be shareholders of Holdings. There will be important differences between your current rights as a LACQ stockholder and your rights as a Holdings shareholder. See “Description of Share Capital—Comparison of Shareholder Rights” for a discussion of the different rights associated with the Holdings securities.

 

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LACQ’s stockholders will have a reduced ownership and voting interest after consummation of the business combination and will exercise less influence over management.

After the completion of the business combination, LACQ’s stockholders will own a smaller percentage of the combined company than they currently own of LACQ. At the closing of the Transactions, Existing Holders would hold approximately 43% of the issued and outstanding Holdings Shares and current stockholders of LACQ would hold approximately 57% of the issued and outstanding Holdings Shares (assuming no holder of LACQ Shares exercises redemption rights as described in this proxy statement/prospectus, and based on current estimates of transaction expenses), including Holdings Shares acquired pursuant to the Strategic Investor Subscription Agreement and excluding the impact of (i) the Holdings Warrants and (ii) 1,280,835 compensatory options issued to Holdings’ management. Consequently, LACQ’s stockholders, as a group, will have reduced ownership and voting power in the combined company compared to their ownership and voting power in LACQ.

Even if we consummate the business combination, there is no guarantee that the LACQ Public Warrants will ever be in the money, and they may expire worthless and the terms of our warrants may be amended.

The exercise price for the LACQ Public Warrants is US$11.50 per share of common stock. There is no guarantee that the warrants, following the business combination, will ever be in the money prior to their expiration, and as such, the warrants may expire worthless.

Holdings will incur increased costs and obligations as a result of being a public company.

As a privately held company, Holdings has not been required to comply with certain corporate governance and financial reporting practices and policies required of a publicly traded company. As a publicly traded company, Holdings will incur significant legal, accounting and other expenses that we were not required to incur in the recent past, particularly after we are no longer an “emerging growth company” as defined under the JOBS Act. In addition, new and changing laws, regulations and standards relating to corporate governance and public disclosure, including the Dodd Frank Wall Street Reform and Consumer Protection Act and the rules and regulations promulgated and to be promulgated thereunder, as well as under the Sarbanes-Oxley Act, the JOBS Act, and the rules and regulations of the SEC and national securities exchanges have created uncertainty for public companies and increased the costs and the time that our board of directors and management must devote to complying with these rules and regulations. We expect these rules and regulations to increase our legal and financial compliance costs and lead to a diversion of management time and attention from revenues generating activities.

Furthermore, the need to establish the corporate infrastructure demanded of a public company may divert management’s attention from implementing our growth strategy, which could prevent us from improving our business, results of operations and financial condition. We have made, and will continue to make, changes to our internal controls and procedures for financial reporting and accounting systems to meet our reporting obligations as a publicly traded company. However, the measures we take may not be sufficient to satisfy our obligations as a publicly traded company.

If we do not develop and implement all required accounting practices and policies, we may be unable to provide the financial information required of a U.S. publicly traded company in a timely and reliable manner.

If we fail to develop and maintain effective internal controls and procedures and disclosure procedures and controls, we may be unable to provide financial information and required SEC reports that a U.S. publicly traded company is required to provide in a timely and reliable fashion. Any such delays or deficiencies could penalize us, including by limiting our ability to obtain financing, either in the public capital markets or from private sources and hurt our reputation and could thereby impede our ability to implement our growth strategy. In addition, any such delays or deficiencies could result in our failure to meet the requirements for listing of our shares on a national securities exchange.

 

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Risks Related to the Redemption

LACQ does not have a specified maximum percentage redemption threshold. The absence of such a redemption threshold may make it possible for LACQ to consummate the business combination even if a substantial majority of LACQ’s stockholders do not agree.

LACQ’s amended and restated certificate of incorporation, as amended, does not provide a specified maximum redemption threshold, except that in no event will LACQ redeem its public shares in an amount that would cause its net tangible assets to be less than US$5,000,001 (such that LACQ is not subject to the SEC’s “penny stock” rules) or any greater net tangible asset or cash requirement which may be contained in the agreement relating to an initial business combination. It is a condition to closing under the Merger Agreement, however, that LACQ has Available Cash (as defined in the Merger Agreement) in the Trust Account of no less than the greater of (i) US$15 million and (ii) LACQ’s transaction expenses incurred in connection with the business combination. If redemptions by LACQ’s public stockholders cause LACQ to be unable to meet this closing condition, then Holdings and Merger Sub will not be required to consummate the business combination, although they may, in their sole discretion, waive this condition. In the event that Holdings and Merger Sub waive this condition, LACQ does not intend to seek additional stockholder approval or to extend the time period in which its public stockholders can exercise their redemption rights. In no event, however, will LACQ redeem public shares in an amount that would cause LACQ’s net tangible assets to be less than US$5,000,001.

The ability of LACQ public stockholders to exercise redemption rights with respect to a large number of LACQ Shares could increase the probability that the business combination would be unsuccessful and that you would have to wait for liquidation in order to redeem LACQ stock.

The obligations of Holdings and Merger Sub to consummate the business combination is conditioned upon, among other things, LACQ having an amount of available cash in its Trust Account, following payment by LACQ to its stockholders who have validly elected to redeem their shares of LACQ common stock, of no less than (i) US$15 million and (ii) LACQ’s transaction expenses incurred in connection with the business combination. If the business combination is not consummated, you would not receive your pro rata portion of the Trust Account until the Trust Account is liquidated. If you are in need of immediate liquidity, you could attempt to sell your LACQ Shares in the open market; however, at such time LACQ Shares may trade at a discount to the pro rata amount per share in the Trust Account. In either situation, you may suffer a material loss on your investment or lose the benefit of funds expected in connection with LACQ’s redemption until LACQ liquidates or you are able to sell your LACQ Shares in the open market.

Public stockholders, together with any affiliates of theirs or any other person with whom they are acting in concert or as a “group,” will be restricted from seeking redemption rights with respect to more than 20% of the public shares.

A public stockholder, together with any affiliate or any other person with whom such stockholder is acting in concert or as a “group,” will be restricted from seeking redemption rights with respect to more than 20% of the public shares. Accordingly, if you hold more than 20% of the public shares and the business combination proposal is approved, you will not be able to seek redemption rights with respect to the full amount of your shares and may be forced to hold the shares in excess of 20% or sell them in the open market. LACQ cannot assure you that the value of such excess shares will appreciate over time following a business combination or that the market price of LACQ Shares will exceed the per-share redemption price.

If LACQ’s stockholders fail to properly demand redemption rights, they will not be entitled to redeem their LACQ Shares for a pro rata portion of the Trust Account.

LACQ stockholders holding public shares may demand that LACQ redeem their shares for a pro rata portion of the Trust Account, calculated as of two business days prior to the consummation of the business combination. LACQ stockholders who seek to exercise this redemption right must deliver their stock (either

 

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physically or electronically) to LACQ’s transfer agent prior to the vote at the meeting. Any LACQ stockholder who fails to properly demand redemption rights will not be entitled to redeem his, her or its shares for a pro rata portion of the Trust Account. See the section entitled “Special Meeting of LACQ Stockholders—Redemption Rights” for the procedures to be followed if you wish to redeem your shares for cash.

There is no guarantee that a LACQ stockholder’s decision to redeem its shares for a pro rata portion of the Trust Account will put the stockholder in a better future economic position.

There is no assurance as to the price at which an LACQ stockholder may be able to sell its Holdings Shares in the future following the completion of the Transactions or shares with respect to any alternative business combination. Certain events following the consummation of any initial business combination, including the Transactions, may cause an increase in the share price, and may result in a lower value realized now than a stockholder of LACQ might realize in the future had the stockholder not redeemed his, her or its shares. Similarly, if a stockholder does not redeem its shares, the stockholder will bear the risk of ownership of the public shares after the consummation of any initial business combination, and there can be no assurance that a stockholder can sell its shares in the future for a greater amount than the redemption price set forth in this proxy statement/prospectus. A shareholder should consult the shareholder’s tax and/or financial advisor for assistance on how this may affect his, her or its individual situation.

Risks Related to the Adjournment Proposal

If the adjournment proposal is not approved, and an insufficient number of votes have been obtained to authorize the consummation of the business combination, the LACQ Board will not have the ability to adjourn the special meeting to a later date in order to solicit further votes, and, therefore, the business combination will not be approved.

The LACQ Board is seeking approval to adjourn the special meeting to a later date or dates if, at the special meeting, LACQ is unable to consummate the business combination. If the adjournment proposal is not approved, the LACQ Board will not have the ability to adjourn the special meeting to a later date and, therefore, the business combination would not be completed.

 

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CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS

This proxy statement/prospectus contains forward-looking statements that relate to current expectations and views of future events. These forward-looking statements include all matters that are not historical facts. They appear in a number of places throughout this proxy statement/prospectus and include statements regarding our intentions, beliefs or current expectations concerning, among other things, the Transactions, the benefits and synergies of the Transactions, results of operations, financial condition, liquidity, prospects, growth and strategies. Such forward-looking statements are based on available current market material and management’s expectations, beliefs and forecasts concerning future events impacting LACQ and Gateway.

In some cases, these forward-looking statements can be identified by words or phrases such as “may,” “will,” “expect,” “anticipate,” “could,” “project,” “aim,” “project,” “budget,” “estimate,” “intend,” “plan,” “goal,” “forecast,” “target,” “believe,” “potential,” “continue,” “is/are likely to” or other similar expressions and the negative of such expressions.

These forward-looking statements are subject to risks, uncertainties and assumptions, some of which are beyond the control of LACQ and Gateway. In addition, these forward-looking statements reflect LACQ’s and Gateway’s current views with respect to future events and are not a guarantee of future performance. Actual outcomes may differ materially from the information contained in the forward-looking statements as a result of a number of factors, including, without limitation, the factors discussed under the headings “Risk Factors,” “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations,” and “Business;” estimates regarding future revenue, expenses and needs for additional financing; and Gateway’s ability to keep and retain key employees. Additional risks and uncertainties not currently known to LACQ or Gateway or that LACQ and Gateway currently deem to be immaterial also may materially adversely affect the Company’s business, financial condition or operating results.

The forward-looking statements made in this proxy statement/prospectus relate only to events or information as of the date on which the statements are made in this proxy statement/prospectus. Except as required by law, neither LACQ nor Gateway undertake any obligation to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, after the date on which the statements are made or to reflect the occurrence of unanticipated events. You should read this proxy statement/prospectus and the documents that are referenced in this proxy statement/prospectus and that have been filed as exhibits to the registration statement, of which this proxy statement/prospectus is a part, completely and with the understanding that our actual future results or performance may be materially different from what we expect.

 

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SPECIAL MEETING OF LACQ STOCKHOLDERS

General

LACQ is furnishing this proxy statement/prospectus to its stockholders as part of the solicitation of proxies by the LACQ Board for use at the special meeting of LACQ stockholders to be held on                 , 2020, and at any adjournment or postponement thereof. This proxy statement/prospectus provides LACQ’s stockholders with information they need to know to be able to vote or instruct their vote to be cast at the special meeting.

Date, Time and Place of Special Meeting of LACQ’s Stockholders

The special meeting of stockholders of LACQ will be held at                a.m. eastern time, on                 , 2020, at the offices of Proskauer Rose LLP, counsel to LACQ, at Eleven Times Square, New York, New York 10036.

Purpose of the LACQ Special Meeting

At the special meeting, LACQ is asking holders of LACQ Shares to:

 

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consider and vote upon a proposal to approve the business combination described in this proxy statement/prospectus, including the Merger Agreement, the other Transactions contemplated by the Merger Agreement and the related agreements described in this proxy statement / prospectus (the business combination proposal); and

 

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consider and vote upon a proposal to adjourn the special meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that LACQ is unable to consummate the business combination (the adjournment proposal).

Recommendation of LACQ Board of Directors

The LACQ Board has unanimously determined that the business combination proposal is fair to and in the best interests of LACQ and its stockholders; has unanimously approved the business combination proposal; unanimously recommends that stockholders vote “FOR” the business combination proposal and unanimously recommends that stockholders vote “FOR” an adjournment proposal, if presented.

Record Date; Persons Entitled to Vote

LACQ has fixed the close of business on                 , 2020, as the “record date” for determining LACQ stockholders entitled to notice of and to attend and vote at the special meeting. As of the close of business on the record date there were                LACQ Shares outstanding and entitled to vote. Each share of LACQ Share is entitled to one vote per share at the special meeting.

The LACQ Board, LACQ’s officers and other initial stockholders and their respective affiliates (including the Sponsors and the Strategic Investor) own of record and are entitled to vote an aggregate of 6,000,000 shares and have agreed to vote in favor of the business combination proposal.

Quorum

The presence, in person or by proxy, of a majority of all the outstanding shares of common stock entitled to vote constitutes a quorum at the special meeting.

Abstentions and Broker Non-Votes

Proxies that are marked “abstain” will be treated as shares present for purposes of determining the presence of a quorum on all matters.

 

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Under the rules of various national and regional securities exchanges, your broker, bank or other nominee cannot vote your shares with respect to non-discretionary matters unless you provide instructions on how to vote in accordance with the information and procedures provided to you by your broker, bank or other nominee. LACQ believes the proposals presented to its stockholders will be considered non-discretionary and therefore your broker, bank or other nominee cannot vote your shares without your instructions. If you do not provide instructions with your proxy, your broker, bank or other nominee may deliver a proxy card expressly indicating that it is NOT voting your shares; this indication that a broker, bank or nominee is not voting your shares is referred to as a “broker non-vote.”

Vote Required

The approval of the business combination proposal will require the affirmative vote for the proposal by the holders of a majority of the then outstanding shares of common stock. Abstentions and broker non-votes have the same effect as a vote against the proposal.

The approval of the adjournment proposal, if presented, will require the affirmative vote of a majority of the votes cast by holders of LACQ Shares represented in person or by proxy and entitled to vote thereon at the meeting. Abstentions and broker non-votes will have no effect on the proposal.

Voting Your Shares

Each share of LACQ Shares that you own in your name entitles you to one vote. Your proxy card shows the number of LACQ Shares that you own. If your shares are held in “street name” or are in a margin or similar account, you should contact your broker to ensure that votes related to the shares you beneficially own are properly counted.

There are two ways to vote your LACQ Shares at the special meeting:

 

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You Can Vote By Signing and Returning the Enclosed Proxy Card. If you vote by proxy card, your “proxy,” whose name is listed on the proxy card, will vote your shares as you instruct on the proxy card. If you sign and return the proxy card but do not give instructions on how to vote your shares, your shares will be voted as recommended by the LACQ Board “FOR” the business combination proposal and “FOR” the adjournment proposal, if presented. Votes received after a matter has been voted upon at the special meeting will not be counted.

 

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You Can Attend the Special meeting and Vote in Person. You will receive a ballot when you arrive. However, if your shares are held in the name of your broker, bank or another nominee, you must get a proxy from the broker, bank or other nominee. That is the only way LACQ can be sure that the broker, bank or nominee has not already voted your shares.

Revoking Your Proxy

If you are a stockholder and you give a proxy, you may revoke it at any time before it is exercised by doing any one of the following:

 

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you may send another proxy card with a later date;

 

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you may notify LACQ’s Secretary in writing before the special meeting that you have revoked your proxy; or

 

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you may attend the special meeting, revoke your proxy, and vote in person, as indicated above.

Who Can Answer Your Questions About Voting Your Shares

If you are a stockholder and have any questions about how to vote or direct a vote in respect of your LACQ Shares, you may call Morrow Sodali LLC, LACQ’s proxy solicitor, at (800) 662-5200 or LACQ at (646) 565-6940.

 

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Redemption Rights

Holders of public shares may seek to redeem their shares for cash, regardless of whether they vote for or against the business combination proposal or do not vote their public shares. Any stockholder holding public shares as of the record date may demand that LACQ redeem such shares for a full pro rata portion of the Trust Account (which, for illustrative purposes, was US$        per share as of the record date), calculated as of two business days prior to the anticipated consummation of the business combination. If a holder properly seeks redemption as described in this section and the business combination with Holdings is consummated, LACQ will redeem these shares for a pro rata portion of funds deposited in the Trust Account and the holder will no longer own these shares following the business combination.

Notwithstanding the foregoing, a holder of public shares, together with any affiliate of his/her or any other person with whom he/she is acting in concert or as a “group” (as defined in Section 13(d)(3) of the Exchange Act), will be restricted from seeking redemption rights with respect to more than 20% of the public shares. Accordingly, all public shares in excess of 20% held by a public stockholder, together with any affiliate of such holder or any other person with whom such holder is acting in concert or as a “group,” will not be redeemed for cash.

LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors) have agreed to waive their redemption rights with respect to any founder shares and any public shares held by them in connection with the consummation of the Transactions.

Holders may demand redemption by delivering their stock, either physically or electronically using Depository Trust Company’s DWAC System, to LACQ’s transfer agent prior to the vote at the special meeting. If you hold the shares in street name, you will have to coordinate with your broker to have your shares certificated or delivered electronically. Certificates that have not been tendered (either physically or electronically) in accordance with these procedures will not be redeemed for cash. There is a nominal cost associated with this tendering process and the act of certificating the shares or delivering them through the DWAC system. The transfer agent will typically charge the tendering broker US$100 and it would be up to the broker whether or not to pass this cost on to the redeeming stockholder. In the event the proposed business combination is not consummated this may result in an additional cost to stockholders for the return of their shares.

Any request to redeem such shares, once made, may be withdrawn at any time up to the vote on the business combination proposal. Furthermore, if a holder of a public share delivered its certificate in connection with an election of its redemption and subsequently decides prior to the applicable date not to elect to exercise such rights, it may simply request that the transfer agent return the certificate (physically or electronically).

If the business combination is not approved or completed for any reason, then LACQ’s public stockholders who elected to exercise their redemption rights will not be entitled to redeem their shares for a full pro rata portion of the Trust Account, as applicable. In such case, LACQ will promptly return any shares delivered by public holders. If LACQ would be left with less than US$5,000,001 of net tangible assets as a result of the holders of public shares properly demanding redemption of their shares for cash, LACQ will not be able to consummate the business combination.

The closing price of LACQ Shares on the record date, was US$        per share. The cash held in the Trust Account on such date was approximately US$                 (US$        per public share). Prior to exercising redemption rights, stockholders should verify the market price of LACQ Shares as they may receive higher proceeds from the sale of their common stock in the public market than from exercising their redemption rights if the market price per share is higher than the redemption price. LACQ cannot assure its stockholders that they will be able to sell their LACQ Shares in the open market, even if the market price per share is higher than the redemption price stated above, as there may not be sufficient liquidity in its securities when its stockholders wish to sell their shares.

 

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If a holder of public shares exercises its redemption rights, then it will be exchanging its LACQ Shares for cash and will no longer own those shares. You will be entitled to receive cash for these shares only if you properly demand redemption no later than the close of the vote on the business combination proposal by delivering your stock certificate (either physically or electronically) to LACQ’s transfer agent prior to the vote at the special meeting, and the business combination is consummated.

Appraisal Rights

Neither stockholders, unitholders nor warrant holders of LACQ have appraisal rights in connection the business combination under the DGCL.

Proxy Solicitation Costs

LACQ is soliciting proxies on behalf of its board of directors. This solicitation is being made by mail but also may be made by telephone or in person. LACQ and its directors, officers and employees may also solicit proxies in person, by telephone or by other electronic means. LACQ will bear the cost of the solicitation.

LACQ has hired Morrow Sodali LLC to assist in the proxy solicitation process. LACQ will pay that firm a fee of US$8,750 plus disbursements. Such payment will be made from non-Trust Account funds.

LACQ will ask banks, brokers and other institutions, nominees and fiduciaries to forward the proxy materials to their principals and to obtain their authority to execute proxies and voting instructions. LACQ will reimburse them for their reasonable expenses.

Our Sponsors and Strategic Investor

As of the record date, LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) held of record and were entitled to vote an aggregate of 5,000,000 founder shares. Certain of these initial stockholders also purchased an aggregate of 6,825,000 LACQ Private Placement Warrants simultaneously with the consummation of the LACQ IPO. In addition, the Strategic Investor purchased an additional 1,000,000 units in the LACQ IPO. Shares held by the LACQ Board, LACQ’s officers and other initial stockholders and their respective affiliates currently constitute approximately 25% of the outstanding shares of LACQ’s common stock.

The Strategic Investor has also agreed to purchase directly from Holdings an aggregate of 3,000,000 units of Holdings, each unit consisting of one share of Holdings and one half of one warrant to purchase one share of Holdings, immediately following the effective time of the Recapitalization for an aggregate purchase price of US$30,000,000.

LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) have agreed to vote any founder shares and any public shares held by them as of the record date in favor of the Transactions. The LACQ Board, LACQ’s officers and other initial stockholders and their respective affiliates (including the Sponsors) have agreed to waive their redemption rights with respect to any founder shares and any public shares held by them in connection with the consummation of the Transactions. Additionally, LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) have agreed to waive their redemption rights with respect to any founder shares held by them if LACQ fails to consummate its initial business combination within the completion window. However, if these initial stockholders have acquired or will acquire public shares, they will be entitled to liquidating distributions from the Trust Account with respect to such public shares if LACQ fails to consummate LACQ’s initial business combination within the completion window. If LACQ does not complete its initial business combination within such applicable time period, the proceeds of the sale of the LACQ Private Placement Warrants held in the Trust Account would be used to fund the redemption of LACQ’s public shares, and the LACQ Private Placement Warrants would expire worthless.

 

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The founder shares will not be transferable, assignable or salable by LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) until the earlier of: (1) one year after the completion of LACQ’s initial business combination; or (2) subsequent to the completion of LACQ’s initial business combination, (x) the date on which LACQ consummates a liquidation, merger, stock exchange, reorganization or other similar transaction that results in all of LACQ’s public stockholders having the right to exchange their shares of common stock for cash, securities or other property, or (y) the last reported sales price of LACQ’s common stock equals or exceeds US$12.00 per share (as adjusted for stock splits, stock dividends, reorganizations, recapitalizations and the like) for any 20 trading days within any 30-trading day period commencing at least 150 days after LACQ’s initial business combination.

Since LACQ’s directors and officers and their respective affiliates (including the Sponsors) directly or indirectly own LACQ common stock and warrants, LACQ’s officers and directors may have a conflict of interest in determining whether a particular target business is an appropriate business with which to effectuate LACQ’s initial business combination.

At any time prior to the special meeting, during a period when they are not then aware of any material nonpublic information regarding LACQ or its securities, LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor) may purchase shares from institutional and other investors who vote, or indicate an intention to vote, against the business combination proposal, or execute agreements to purchase shares from such investors in the future, or they may enter into transactions with such investors and others to provide them with incentives to acquire shares of LACQ’s common stock or vote their shares in favor of the business combination proposal. The purpose of such share purchases and other transactions would be to increase the likelihood of satisfaction of the requirements that the holders of a majority of the shares outstanding vote in favor of the business combination and that LACQ has in excess of the required amount of cash following the exercise of redemption rights to consummate the business combination under the Merger Agreement, where it appears that such requirements would otherwise not be met. Entering into any such arrangements may have a depressive effect on LACQ’s common stock. For example, as a result of these arrangements, an investor or holder may have the ability to effectively purchase shares at a price lower than market and may therefore be more likely to sell the shares he owns, either prior to or immediately after the special meeting.

If such transactions are effected, the consequence could be to cause the business combination to be approved in circumstances where such approval could not otherwise be obtained. Purchases of shares by the persons described above would allow them exert more influence over the approval of the proposals to be presented at the special meeting and would likely increase the chances that such proposals would be approved. Moreover, any such purchases may make it more likely that LACQ will have in excess of the required amount of required amount of cash following the exercise of redemption rights to consummate the business combination as described above.

As of the date of this proxy statement/prospectus, no agreements dealing with the above have been entered into by the LACQ Board, LACQ’s officers and other initial stockholders and their respective affiliates (including the Sponsors and Strategic Investor). LACQ will file a Current Report on Form 8-K to disclose any arrangements entered into or significant purchases made by any of the aforementioned persons that would affect the vote on the business combination proposal or the satisfaction of any closing conditions. Any such report will include descriptions of any arrangements entered into or significant purchases by any of the aforementioned persons.

 

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THE BUSINESS COMBINATION PROPOSAL

The discussion in this proxy statement/prospectus of the business combination and the principal terms of the Merger Agreement is subject to, and is qualified in its entirety by reference to, the Merger Agreement. A copy of the Merger Agreement is attached as Annex A to this proxy statement/prospectus.

General

Structure of the Transactions

Pursuant to the Merger Agreement, a business combination between LACQ and Holdings will be effected through the Merger, whereby Merger Sub shall merge with and into LACQ with LACQ surviving the Merger. Immediately following the Merger, both LACQ and GCEL will be wholly-owned subsidiaries of Holdings.

Consideration to the security holders of LACQ

In connection with the Merger, each issued and outstanding LACQ Share, excluding any Excluded Shares, will be exchanged for the right to receive one Holdings Share and each issued and outstanding LACQ Warrant will be exchanged for one Holdings Warrant, in each case subject to equitable adjustments, in accordance with the terms of the Merger Agreement.

Consideration to the existing stockholders of Holdings

Pursuant to the Plan of Arrangement, and prior to the effective time of the Merger (as defined in the Merger Agreement), the existing holders of Holdings Shares (the “Existing Holders”) will be entitled to receive a cash distribution in an aggregate amount equal to the Company Pre-Closing Distribution Amount, if any. In addition, pursuant to the Plan of Arrangement, and prior to the Merger Effective Time (as defined in the Merger Agreement), the issued and outstanding Holdings Shares, which are expected to have an aggregate value of approximately US$222,917,162 (subject to certain adjustments for transaction expenses and deduction of the Company Pre-Closing Distribution Amount), will be consolidated so that the number of issued and outstanding Holdings Shares immediately after the consolidation will be based on a reference price of US$10.00 per share. Further, immediately prior to the Merger Effective Time, Holdings shall issue to the Existing Holders, on a pro rata basis in accordance with their proportionate ownership of Holdings Shares, (i) four million seven hundred and forty-three thousand, eight hundred and thirty-three (4,743,833) Class A Warrants (as defined in the Merger Agreement), (ii) six million three hundred and twenty-five thousand, one hundred and ten and seven tenths (6,325,111) Class B Warrants (as defined in the Merger Agreement), Series I, (iii) six million three hundred and twenty-five thousand, one hundred and ten and seven tenths (6,325,111) Class B Warrants, Series II (as defined in the Merger Agreement)    and (iv) six million three hundred and twenty-five thousand, one hundred and ten and seven tenths (6,325,111) Class B Warrants, Series III (as defined in the Merger Agreement).

Pro Forma Ownership of Holdings and LACQ Holders

At the closing of the Transactions, assuming no holder of LACQ Shares exercises redemption rights as described in this proxy statement/prospectus, and based on current estimates of transaction expenses, Existing Holders would hold approximately 43% of the issued and outstanding Holdings Shares and current stockholders of LACQ would hold approximately 57% of the issued and outstanding Holdings Shares, including Holdings Shares acquired pursuant to the Strategic Investor Subscription Agreement and excluding the impact of (i) the Holdings Warrants and (ii) 1,280,835 compensatory options issued to Holdings’ management.

Related Agreements

Transaction Support Agreement

In connection with the execution of the Merger Agreement, the Sponsors and certain other existing stockholders of LACQ entered into a Transaction Support Agreement pursuant to which they have agreed to

 

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comply with the provisions of the Merger Agreement applicable to such persons as well as the covenants set forth in the Transaction Support Agreement, including voting all LACQ Shares beneficially owned by such persons in favor of the Transactions.

The Transaction Support Agreement also provides (i) for the forfeiture, termination and cancellation of 1,000,000 LACQ Shares held by certain existing LACQ stockholders prior to the effective time of the Merger, (ii) for the amendment of the LACQ Warrant Agreement to amend the terms of certain warrants held by the Sponsors and certain other existing stockholders of LACQ, (iii) that between the date of the Merger Agreement and the earlier of the Closing and the termination of the Merger Agreement, restrictions on transfer with respect to LACQ Shares held by the parties to the Transaction Support Agreement (with (i) customary exceptions for transfers in connection with estate planning purposes and transfers to other parties to the Transaction Support Agreement and (ii) exceptions for LACQ Shares acquired by the Strategic Investor in the LACQ IPO), (iv) that any LACQ Shares acquired by any party to Transaction Support Agreement will be subject to the terms of the Transaction Support Agreement, (v) that LACQ and the parties to the Transaction Support Agreement will cause the existing Registration Rights Agreement of LACQ to be terminated upon the effective time of the Merger and (vi) that Holdings would make certain advances to A. Lorne Weil and Daniel B. Silvers in the event that either person is subject to current U.S. federal income tax liability as a result of the Merger failing to qualify as a “reorganization” within the meaning of Section 368(a) of the Code.

Catalyst Voting Agreement

In connection with the Merger Agreement, Catalyst and certain of its affiliated investment funds (collectively, the “Catalyst Group”) entered into a Voting and Support Agreement with LACQ, pursuant to which the Catalyst Group agreed, amongst other things, to (i) cause any Holdings Shares held by the Catalyst Group to be present for purposes of determining quorum and to exercise all voting rights attached to such shares in favor of the consummation of the Arrangement (as defined in the Merger Agreement) and the Transactions, (ii) deliver, or cause to be delivered, duly executed proxies in favor of the Arrangement Resolution and any other matters which are necessary, proper or advisable for the consummation of the Arrangement and the Transactions, (iii) not exercise or cause to be exercised any dissent rights in connection with the Arrangement, (iv) not sell, transfer, pledge or otherwise encumber any Holdings Shares held by the Catalyst Group and (v) not to engage, directly or indirectly, in any transactions involving the securities of LACQ without the prior consent of LACQ.

Registration Rights Agreement

The Catalyst Group, the Strategic Investor and certain existing stockholders of LACQ (collectively, the “Registration Rights Holders”) will be granted certain rights, pursuant to a registration rights agreement which will be entered into at the Closing of the Transactions (the “Registration Rights Agreement”). Pursuant to the Registration Rights Agreement, such persons will be entitled to have registered, in certain circumstances, the resale of the Holdings Shares held by them, subject to certain conditions set forth therein. Subject to the terms and conditions set forth in the Registration Rights Agreement, the Catalyst Group and the Strategic Investor will be entitled to “demand registration rights” which may be in the form of a “shelf registration” made pursuant to Rule 415 under the Securities Act; provided, however, that neither the Catalyst Group nor the Strategic Investor shall be permitted to make more than two demand registrations in any calendar year and no more than three demand registrations in any two calendar year period. Additionally, subject to the terms and conditions set forth in the Registration Rights Agreement, the Registration Rights Holders will have “piggyback registration rights” under the Registration Rights Agreement.

Shareholders’ Agreement and Strategic Investor Side Letter

In connection with the Merger Agreement, Holdings entered into a Shareholders’ Agreement with the Catalyst Group and each Sponsor, pursuant to which, among other things, effective as of and following the Closing (i) the Catalyst Group, certain Sponsor parties affiliated with Daniel B. Silvers (collectively, “DS”) and

 

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certain Sponsor parties affiliated with A. Lorne Weil (collectively, “LW”) will be granted certain rights to nominate members of the Holdings Board, subject to certain conditions set forth in the Shareholders’ Agreement, including, without limitation, satisfaction of certain minimum ownership requirements; (ii) Holdings has agreed to offer at least one Sponsor nominee (in each case to be selected by DS and LW) who is elected to the Holdings Board the opportunity to serve on each committee of the Holdings Board for so long as a nominee of either DS or LW continues to serve on the Holdings Board; (iii) Holdings has agreed to file certain quarterly and annual financial and other information, subject to certain exceptions described in the Shareholders’ Agreement; and (iv) the parties to the Shareholders’ Agreement have agreed to vote their Holdings Shares and take all necessary steps within their control to cause each other’s nominees nominated in accordance with the Shareholders’ Agreement to be elected to the Holdings Board and otherwise implement the terms and conditions of the Shareholders’ Agreement.

The Shareholders’ Agreement provides that, following the Closing, the Catalyst Group, DS and LW will be granted rights to nominate five, one and one director(s), respectively, to the Holdings Board in the applicable classes set forth in the Shareholders’ Agreement, subject to satisfaction of certain minimum ownership requirements. In the event that either of DS or LW (and/or their affiliates), respectively, cease to beneficially own at least 80% of the shares of Holdings held by either of DS or LW (as applicable) as of the Closing, DS or LW (as applicable) will no longer be entitled to nominate a director to the Holdings Board. The number of nominees that the Catalyst Group is entitled to designate pursuant to the Shareholders’ Agreement decreases as follows:

 

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Five directors, so long the Catalyst Group beneficially owns a number of Holdings Shares greater than or equal to 50% of the Holdings Shares held by them as of Closing;

 

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Four directors, so long the Catalyst Group beneficially owns a number of Holdings Shares greater than or equal to 40% but less than 50% of the Holdings Shares held by them as of Closing;

 

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Three directors, so long the Catalyst Group beneficially owns a number of Holdings Shares greater than or equal to 30% but less than 40% of the Holdings Shares held by them as of Closing;

 

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Two directors, so long the Catalyst Group beneficially owns a number of Holdings Shares greater than or equal to 20% but less than 30% of the Holdings Shares held by them as of Closing; and

 

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One director, so long the Catalyst Group beneficially owns a number of Holdings Shares greater than or equal to 5% but less than 20% of the Holdings Shares held by them as of Closing.

Once the Catalyst Group (and its affiliates) ceases to beneficially own at least 5% of the Holdings Shares held by them as of the Closing, the Catalyst Group will not be entitled to nominate any directors to the Holdings Board.

The Shareholders’ Agreement provides that Gabriel de Alba, an affiliate of Catalyst, will serve as Executive Chairman of the Holdings Board until the first annual shareholder meeting of Holdings following the Closing, and thereafter, the Catalyst Group will have the right to designate the individual to serve as Executive Chairman of the Holdings Board and the Holdings Board shall elect such designee to such position, so long as the Catalyst Group beneficially owns, in the aggregate, at least five percent (5%) of the total issued and outstanding Holdings Shares.

The Shareholders’ Agreement will only become effective upon the Closing and may terminate thereafter in certain limited circumstances pursuant to the terms thereof. In addition, (i) the rights and obligations of each of DS and LW, respectively, will terminate upon the earlier of (x) DS’s or LW’s (as applicable) loss of nomination rights or (y) the removal or resignation of DS’s or LW’s nominee (as applicable) from the Holdings Board under certain circumstances based on a failure to satisfy applicable minimum ownership requirements; and (ii) the rights and obligations of the Catalyst Group will terminate in the event the Catalyst Group (and its affiliates) ceases to beneficially own at least 5% of the issued and outstanding Holdings Shares for any continuous 15-day period, in each case, in accordance with the terms of the Shareholders’ Agreement.

Pursuant to a letter agreement entered into between the Strategic Investor and Holdings concurrently with the execution of the Shareholders’ Agreement (the “Strategic Investor Side Letter”), the Strategic Investor has

 

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also agreed to support each nominee nominated for election to the Holdings Board pursuant to the Shareholders’ Agreement through the first annual shareholder meeting of Holdings following the Closing (provided that such annual shareholder meeting occurs on or prior to June 30, 2021). For each subsequent annual shareholder meeting, Holdings will provide the Strategic Investor with a written notice of each individual nominated and recommended by the Holdings Board to be elected to the Holdings Board. If the Strategic Investor indicates in writing to Holdings that it will support such nominees to the Holdings Board, then the Strategic Investor must vote for such nominees at the annual shareholder meeting at which such nominees are to be elected. The Strategic Investor’s obligations under the Strategic Investor Side Letter shall terminate upon the earlier of (i) the Strategic Investor ceasing to beneficially own an aggregate of at least five percent (5%) of the issued and outstanding Holdings Shares and (ii) the first annual shareholder meeting for which the Strategic Investor has declined to support one or more nominee to the Holdings Board.

Headquarters; Stock Symbols

After completion of the Transactions:

 

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the corporate headquarters and principal executive office of the Company will be located 100-4400 Dominion Street, Burnaby, British Columbia V5G 4G3, Canada, which is Holdings’ corporate headquarters; and

 

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if Holdings’ application for listing is approved, Holdings Shares and Holdings Warrants are expected to be traded on the NYSE and the NYSE American, respectively, under the symbols “GTWY” and “GTWY.WS”, respectively.

Background of the Transactions

LACQ is a blank check company incorporated in Delaware on September 11, 2017 for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization, recapitalization or other similar business combination with one or more businesses. The proposed business combination with the Company is the result of an extensive search for a potential transaction drawing upon the network, investing experience and operating background of LACQ’s management team and the LACQ Board. The terms of the proposed Transactions are the result of extensive arm’s length negotiations between LACQ’s independent directors and management team, the Sponsors, the Strategic Investor, representatives of LACQ, Catalyst and the Company. The following is a brief description of the background of these negotiations, the Transactions and related matters.

Prior to the consummation of LACQ’s IPO, neither LACQ, nor anyone on its behalf, contacted any prospective targets or had any substantive discussions, formal or otherwise, with respect to a transaction with LACQ.

Following LACQ’s IPO, LACQ commenced an active search for prospective target businesses, prioritizing the gaming and leisure sector and leisure-related businesses which complemented LACQ’s management team’s sector and operating expertise. The general criteria that LACQ used in evaluating prospective target business opportunities included:

 

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businesses with market and/or cost leadership positions;

 

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businesses that would benefit from our management team’s collective expertise;

 

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businesses with experienced management teams;

 

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businesses with untapped potential for expansion opportunities; and

 

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businesses that would benefit from being a public company.

 

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As part of the search process, representatives of LACQ contacted, and were contacted by, a number of individuals and entities with respect to business combination opportunities. Such individuals and entities included investment bankers, private equity firms, consulting firms and LACQ’s financial and other professional advisors and the Strategic Investor. LACQ maintained a list, which was updated and supplemented from time to time, of high priority potential targets. This target list emphasized, but was not limited to, companies within the gaming, lodging, leisure, restaurant, consumer packaged goods and entertainment sectors in North America and abroad. This target list and related developments were discussed regularly with the LACQ Board.

During this period, LACQ and its representatives:

 

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reviewed more than 85 potential acquisition targets (other than the Company) (the “Other Potential Targets”);

 

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engaged in preliminary discussions with 75 Other Potential Targets or their advisors;

 

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signed confidentiality agreements with 51 Other Potential Targets and performed due diligence (subject to the respective confidentiality agreements) on many of these targets; and

 

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submitted letters of intent and commenced further substantive due diligence with respect to five Other Potential Targets (other than the Company), identified below as Company A, Company B, Company C, Company D, and Company E.

The five other potential acquisition targets included: (i) a gaming and entertainment company with operations in Europe (“Company A”), (ii) an online social gaming business (“Company B”), (iii) a family entertainment and dining company (“Company C”), (iv) a gaming and entertainment company with operations in Mexico (“Company D”), and (v) a medical device company (“Company E”).

LACQ engaged in discussions with Company A from August 2018 through December 2018, at which time LACQ advised Company A that it was withdrawing from discussions until it could determine how Company A’s operating performance would be impacted by certain regulatory changes. LACQ engaged in discussions with Company B from September 2018 through July 2019, at which time the owners of Company B informed LACQ that Company B would not be pursuing a transaction. LACQ engaged in discussions with Company C from December 2018 through January 2019, at which time the controlling shareholder of Company C indicated that it would enter into a transaction with another acquirer, which Company C ultimately entered. LACQ engaged in discussions with Company D from March 2019 through September 2019, at which time the parties determined that they could not reach acceptable terms and LACQ terminated discussions with Company D. LACQ engaged in discussions with Company E from July 2019 through October 2019, at which time Company E informed LACQ that it was pursuing other opportunities.

In mid-December 2017, Daniel Silvers, our Chief Executive Officer, called a representative of Morgan Stanley, the Company’s financial advisor, to inquire as to whether the Company would be amenable to discussing a business combination with LACQ. Morgan Stanley informed Mr. Silvers that the Company was not in a position to enter into a dialogue at that time.

In mid-May 2018, a representative of Morgan Stanley, the Company’s financial advisor, contacted Mr. Silvers to indicate to Mr. Silvers that it would be an appropriate time to begin a dialogue regarding a potential business combination between the Company and LACQ. Mr. Silvers had several calls with representatives of Morgan Stanley during the second half of May 2018 during which the parties discussed the timing considerations of a potential transaction. During these conversations, the Morgan Stanley representatives discussed with Mr. Silvers the Company’s pricing expectations with respect to a potential transaction, as well as the interest of the Company’s shareholders in retaining a portion of their respective ownership in the Company following a transaction.

On May 29, 2018, to facilitate LACQ’s due diligence review with respect to a potential business combination involving the Company, LACQ entered into a confidentiality agreement with the Company and

 

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began receiving and reviewing preliminary diligence materials. Following the execution of the confidentiality agreement, LACQ’s management team, led by Mr. Silvers, commenced diligence efforts based on information provided by the Company and conducted research on the Company, the industry in which the Company operates and comparable companies in the gaming and entertainment sector. This due diligence review continued through the signing of the Merger Agreement on December 27, 2019 (in conjunction with a replacement confidentiality agreement that was entered into on September 19, 2019). During such period, various representatives of LACQ, the Strategic Investor, Proskauer, Miller Thomson LLP, Credit Suisse Securities (USA) LLC (“Credit Suisse”), Ernst & Young LLP and certain other consultants engaged by LACQ conducted extensive due diligence of the Company through document review and numerous telephonic conferences and in-person meetings, covering various areas, including, but not limited to, financial, legal, tax, information technology, gaming and regulatory due diligence. On or about June 6, 2018, the Company provided LACQ with financial and other information for the Company.

On June 8, 2018, LACQ held a meeting of the LACQ Board. During this meeting, management updated the LACQ Board on the status of LACQ’s review of the potential business combination with the Company, including (i) the ongoing discussions with Morgan Stanley with respect to the then-proposed transaction structure and terms, and (ii) due diligence performed to-date. At this meeting, representatives of Proskauer, gave a presentation regarding the fiduciary duties of directors in connection with a potential business combination with the Company. At subsequent meetings of the LACQ Board, Proskauer provided additional presentations on this topic in light of the stage of discussions regarding a potential business combination and answered questions from directors regarding the same. Additionally, the LACQ Board received an overview of the due diligence process and plan with respect to the proposed business combination, including the engagement of various third-party due diligence consultants with respect to legal, tax, technology, market and regulatory matters.

On June 14, 2018, a representative of Morgan Stanley informed Mr. Silvers that the Company was prepared to move forward, subject to resolution of certain business terms, but that it would not provide LACQ with exclusivity. Instead, the parties agreed to an expense reimbursement agreement in favor of LACQ to the extent that the parties were not able to enter into a transaction by July 8, 2018, subject to certain conditions. Also, on June 14, 2018, representatives of management of each of LACQ and the Company met in Ontario to conduct a business review of the Company and to conduct site visits of certain of the Company’s properties.

On June 18, 2018, LACQ and the Company executed an expense reimbursement agreement, pursuant to which the Company agreed to reimburse LACQ up to US$450,000 for its out-of-pocket due diligence expenses, subject to certain conditions, to the extent that the parties did not enter into a definitive agreement covering a business combination. This expense reimbursement agreement was subsequently amended on each of June 28, 2018, July 4, 2018, July 11, 2018, and July 24, 2018, to reflect (i) extensions to the expiry of the agreement, and (ii) an increase in the amount of the maximum reimbursement to US$600,000.

On June 18, 2018, Latham & Watkins LLP (“Latham”), as counsel to the Company, provided an initial draft of a proposed share purchase agreement (the “SPA”) to Proskauer.

On June 19 and 20, 2018, representatives of LACQ management conducted site visits of certain of the Company’s properties in Alberta and Ontario.

On June 27 and 28, 2018, representatives of management of LACQ and the Company met in Vancouver, Canada, to conduct further due diligence and site visits.

On June 25, 2018, Proskauer responded to Latham’s draft SPA. From June 25, 2018 through mid-August of 2018, Latham and Proskauer negotiated the terms of, and exchanged several drafts of, the definitive agreements for the potential business combination, including the SPA.

On June 28, 2018, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to

 

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(i) management’s preliminary views regarding valuation, and (ii) the status and findings of due diligence performed to date and the plan for continuing diligence. At this meeting, Credit Suisse reviewed with the LACQ Board certain financial aspects relating to a potential business combination with the Company, including on topics of structure, valuation and current and projected business performance.

On July 3, 2018, Lorne Weil, Executive Chairman of LACQ, Mr. Silvers, Gabriel de Alba, Managing Director of Catalyst and Executive Chairman of the Company, and a representative of Morgan Stanley met in Toronto to discuss the corporate governance structure of the combined company.

On July 4, 2018, LACQ finalized the engagement of Credit Suisse as its financial advisor. Later that day, LACQ delivered to Morgan Stanley a non-binding indication of interest expressing LACQ’s interest in pursuing a potential business combination with the Company. The indication of interest contemplated a valuation for the Company at a multiple reflective of the equity trading levels of its public gaming company peers at that time. The non-binding indication of interest also expressed LACQ’s desire to continue diligence and requested that the Company enter into exclusive negotiations with LACQ.

On July 5, 2018, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to: (i) required SEC financial statement requirements, (ii) amendments to the expense reimbursement agreement (discussed above), and (iii) the status and findings of due diligence performed to-date and plan for continuing diligence. Credit Suisse also provided updates to their previous discussion with the LACQ Board at this meeting.

On July 12, 2018, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to: (i) required SEC financial statement requirements, (ii) amendments to the expense reimbursement agreement (discussed above), and (iii) the status and findings of due diligence performed to-date and plan for continuing diligence. Credit Suisse also provided updates to their previous discussion with the LACQ Board at this meeting.

On July 23, 2018, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to the status and findings of due diligence performed to-date and plan for continuing diligence. Third-party legal due diligence providers presented their findings to the LACQ Board. Credit Suisse provided updates to their previous discussion with the LACQ Board at this meeting and reviewed projections relating to the Company provided by the Company. In addition, Proskauer reviewed with the LACQ Board the principal terms and conditions of the then-current proposed draft SPA.

On August 29, 2018, a representative of Morgan Stanley informed LACQ that the Company intended to pursue other strategic alternatives, including an initial public offering, and, therefore, would be terminating discussions with LACQ.

On September 4, 2018, LACQ held a meeting of the LACQ Board during which management informed the LACQ Board that discussions with the Company had been terminated for the reasons described above. At this meeting, management provided an update on the status of LACQ’s review of certain Other Potential Targets.

On September 5, 2018, LACQ received funds in the amount of approximately US$600,000, satisfying the Company’s obligation under the expense reimbursement agreement.

In late July and early August 2019, representatives of Morgan Stanley contacted Mr. Silvers and indicated that the Company was still considering strategic alternatives to its initial public offering and might be interested in renewing discussions regarding a potential business combination. During August 2019, Mr. Silvers had several discussions with representatives of Morgan Stanley regarding the timing of such potential discussions with the

 

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Company. During these conversations, the Morgan Stanley representatives also discussed with Mr. Silvers the Company’s revised pricing expectations with respect to a potential transaction, as well as the continued interest of the Company’s shareholders in retaining a portion of their respective ownership in the combined company following the transaction.

On August 24, 2019, Morgan Stanley communicated to Mr. Silvers that it believed that an in-person meeting with the Company should be scheduled for early-September 2019. On August 28, 2019, a representative of Morgan Stanley requested an in-person meeting between representatives of the Company, Catalyst, LACQ and Morgan Stanley to be held on September 5, 2019 in New York.

On September 5, 2019, Mr. Weil and Mr. Silvers met with representatives of the Company, including Mr. de Alba, and Morgan Stanley in New York. At the meeting, Mr. Santo provided a general update on the Company’s operations. Following the meeting, the parties agreed that they would seek to put in place a revised confidentiality agreement to facilitate the exchange of additional information.

On September 19, 2019, a revised confidentiality agreement was entered into by the parties. On such date, Mr. Weil and Mr. Silvers met with Mr. de Alba and Morgan Stanley in New York. During this meeting, the parties discussed certain aspects of the timing of a potential transaction. Additionally, due diligence of the Company restarted and discussions continued between the parties regarding the structure of a potential transaction. The Company and LACQ, as well as their financial advisors, Morgan Stanley and Credit Suisse, respectively, held a series of organizational, due diligence and structuring phone calls related to the proposed transaction during the ensuing period through October 4, 2019.

On September 24, 2019, Mr. Weil and Mr. Silvers met with representatives of the Company, the Strategic Investor and Morgan Stanley in New York. During this meeting, at the direction of the Company, Morgan Stanley orally presented the terms upon which the Company might be willing to re-start negotiations regarding a potential business combination. As part of this presentation, Morgan Stanley proposed that a transaction contemplate a valuation for the Company at a multiple of approximately seven-and-a-half times projected Adjusted EBITDA for the twelve months ended December 31, 2020 on a cash-free and debt-free basis. Additionally, Morgan Stanley proposed, on behalf of the Company, that a transaction should include an “earn out” concept whereby the Company’s existing shareholders could receive additional benefits tied to any increases in the combined company’s stock price over a period of time. Between September 24, 2019 and October 4, 2019, Mr. Silvers had a number of conversations with representatives of Morgan Stanley regarding the terms of any potential transaction with the Company.

On September 25, 2019, Mr. Weil and Mr. Silvers met with Mr. de Alba in New York. At the meeting, they held a general discussion regarding the corporate governance structure that had been discussed in the context of the Company’s previously proposed initial public offering. Messrs. Weil, Silvers and de Alba continued to have discussions regarding the corporate governance structure of the combined company throughout the period between September 25, 2019 and December 24, 2019.

On September 26, 2019, the Company provided LACQ with financial information, including certain financial projections, for the Company.

On September 27, 2019, Messrs. Weil and Silvers had a phone conversation with representatives of the Strategic Investor during which such representatives shared their preliminary views regarding valuation considerations for the Company. Later that day, Mr. Silvers had a phone conversation with representatives of the Company, Morgan Stanley and the Strategic Investor regarding the parties’ respective preliminary views as to valuation, as well as to discuss the timing of a potential transaction.

On September 30, 2019, representatives of LACQ, the Company, Morgan Stanley and the Strategic Investor participated in a conference call to discuss the anticipated timeline and structure of LACQ’s financial due diligence investigation.

 

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On October 2, 2019, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on Other Potential Targets and informed the LACQ Board that LACQ had restarted discussions with the Company about a potential transaction. Management provided an update to the LACQ Board with respect to capital markets activity the Company had undertaken since September 2018. At this meeting, Credit Suisse reviewed with the LACQ Board certain financial aspects relating to a potential business combination with the Company, including on topics of and updated proposed transaction structure, valuation and current and projected business performance.

On October 4, 2019, LACQ received from Morgan Stanley a formal proposal for terms on which the Company would be willing to pursue a business combination (the “October 4 Proposal”). Following receipt and review of the October 4 Proposal, Messrs. Weil and Silvers had a phone call with a representative of Morgan Stanley to express LACQ’s general unwillingness to proceed with a transaction on the terms contained in such proposal.

On October 15, 2019, Mr. Weil and Mr. Silvers met with Mr. Santo in Las Vegas to discuss whether there was flexibility on the Company’s part with respect to the October 4 Proposal to allow discussions to continue. Mr. Santo indicated that he would have further discussions with the Holdings Board.

On October 21, 2019, Mr. Weil and Mr. Silvers met with representatives of Morgan Stanley and Mr. de Alba, in New York. During the meeting, the parties discussed various aspects of the October 4 Proposal. The parties agreed to reconvene the following day.

On October 22, 2019, Mr. Weil and Mr. Silvers met with representatives of Morgan Stanley and Mr. de Alba, in New York. During the meeting, the parties agreed to pursue a transaction with certain changes to the October 4 Proposal.

During October and November 2019, LACQ re-engaged third-party advisors to conduct due diligence on the Company for the benefit of Company management and the LACQ Board.

On October 23, 2019, representatives of LACQ, including Mr. Silvers, representatives of the Company, including Mr. de Alba, and Morgan Stanley held a conference call during which they discussed strategies to obtain new or rollover capital investments from institutional investors in conjunction with the potential business combination. Between October 23, 2019 and November 14, 2019, the parties had additional conversations regarding such potential investments from institutional investors. During this period, Morgan Stanley had discussions with representatives of both the Company and LACQ regarding the multiple roles Morgan Stanley would be required to serve in the business combination if it assisted both parties with outreach to institutional investors concerning investments in LACQ, the Company or the combined company. Both parties stated that they understood the implications and each separately agreed that Morgan Stanley was best placed to assist given Morgan Stanley’s detailed knowledge of the Company and the potential business combination, its industry leadership and capital markets expertise. On November 14, 2019, LACQ and the Company authorized Morgan Stanley to initiate conversations with various potential investors regarding capital investments which would occur in connection with a potential transaction, either concurrent with announcement or in connection with the consummation of the transaction. Between November 14, 2019 and November 29, 2019, Morgan Stanley arranged meetings for LACQ and the Company with several institutional investors, including investors with existing investments in the Company or LACQ, regarding the Company and its business, the potential transaction, and opportunities for capital investment in a combined company. Morgan Stanley provided updates to LACQ and the Company throughout this period.

On October 24, 2019, Mr. Silvers and Marc Falcone, an independent director of LACQ, had lunch with Mr. de Alba in New York. During the lunch, the parties discussed various aspects of the potential transaction as well as Mr. Falcone’s impressions of the Company.

 

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On October 25, 2019, representatives of LACQ, the Company, Morgan Stanley and the respective legal advisors to each of LACQ and the Company held a conference call to discuss the process for the proposed business combination transaction.

On October 25, 2019, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to: (i) the ongoing discussions with the Company, and Morgan Stanley on its behalf, with respect to the contemplated transaction structure and terms, and (ii) due diligence performed to-date and LACQ’s plans for the remainder of its due diligence investigation, including the expected timeline on which information and reports were expected to be received. Credit Suisse reviewed with the LACQ Board, among other things, certain key business terms of the proposed transaction, preliminary illustrative financial analysis, including with respect to valuation, of the proposed transaction and a summary of the Company’s historical and projected financials.

On November 12, 2019, Latham provided an initial draft of the Merger Agreement to Proskauer based on the draft SPA negotiated in 2018. From November 12, 2019, through the evening of December 27, 2019, Latham and Proskauer negotiated the terms of, and exchanged several drafts of, the Merger Agreement and ancillary agreements for the potential business combination, including the Merger Agreement.

On November 15, 2019, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to: (i) the ongoing discussions with the Company, and Morgan Stanley on its behalf, regarding the transaction structure and potential investments from institutional investors and (ii) due diligence performed to-date and its plans for the remainder of its due diligence investigation, including the expected timeline on which information and reports were expected to be received. Credit Suisse provided updates to its prior discussions with the LACQ Board.

On November 18, 2019, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to LACQ’s ongoing diligence efforts with respect to the Company as well as management’s prospective due diligence plan including the expected timeline on which information and reports were expected to be received.

On November 19, 2019, Latham delivered drafts of certain ancillary agreements to Proskauer, including an initial draft of the Shareholders’ Agreement. Latham’s draft of the Shareholders’ Agreement covered board nomination and voting rights with respect to the nomination of Catalyst-appointed nominees to the post-Closing board of directors of the combined company. Latham and Proskauer had a call the following day to discuss various issues, including extending similar nomination rights with respect to the Sponsors and voting obligations with respect to Catalyst, the Sponsors and the Strategic Investor. On November 21, 2019, Proskauer responded to Latham’s draft with a list of issues to facilitate continuing discussions among the parties on several remaining open points, including corporate governance structure.

On November 26, 2019, LACQ held a special meeting of stockholders at which its stockholders approved a proposal to amend LACQ’s amended and restated certificate of incorporation to extend the completion window from December 5, 2019 to April 5, 2020.

On or about December 1, 2019, representatives of LACQ, the Company, and Morgan Stanley held a series of phone calls regarding potential investments from institutional investors, during which the parties determined that it would be preferable to focus on capital investment from institutional investors in connection with consummation of the transaction.

Between December 3, 2019 and December 5, 2019, LACQ, the Company and their respective legal and financial advisors engaged in negotiations surrounding the documentation for the potential business combination. On December 3, 2019, Latham provided updated drafts of the Merger Agreement, Shareholders’ Agreement and certain other ancillary agreements to Proskauer. Latham’s revised draft of the Merger Agreement reflected,

 

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among other things, the Company’s proposal on certain termination rights. Latham’s revised draft of the Shareholders’ Agreement, which responded to the issues list previously delivered by Proskauer, reflected the parties’ preliminary resolution on certain of the open issues, including an affirmative grant of continuing board nomination rights to Catalyst and the Sponsors following the Closing (subject to, in each case, satisfaction of certain minimum ownership requirements).

On December 4, 2019, Proskauer returned revised drafts of the Merger Agreement and certain ancillary agreements to Latham. On December 5, 2019, Latham responded to Proskauer’s revised Merger Agreement. The open issues included, among others, (i) the scope of certain interim operating covenants and representations and warranties given by the Company; (ii) certain provisions regarding termination rights, including the outside date; (iii) the treatment of the repayment of loans extended to LACQ by the Sponsors and the Strategic Investor in order to fund corporate expenses; and (iv) the Company’s ability to make distributions to its shareholders prior to the Closing.

On December 4, 2019, LACQ held a meeting of the LACQ Board during which management provided the LACQ Board with an update on the potential transaction with the Company, including with respect to (i) the status and current terms of the transaction documentation, and (ii) the proposed composition of the Holdings Board following consummation of the Transactions, including that Messrs. Weil and Silvers would join the Holdings Board. The LACQ Board also discussed the potential liquidation and dissolution of LACQ in light of the requirement to deposit additional funds into the Trust Account to extend LACQ’s corporate life beyond December 5, 2019.

On December 5, 2019, the Company provided an update to LACQ, the Strategic Investor, Morgan Stanley and Credit Suisse that results for the month of November 2019 were below prior estimates, and therefore results for the fourth quarter of 2019 could fall below previously communicated expectations (based upon the projections provided on September 26, 2019). After analyzing information conveyed by the Company, LACQ informed the Company that it would require additional time to review fourth-quarter 2019 to-date results. However, LACQ informed Morgan Stanley that it was unwilling to deposit additional funds into its Trust Account in order to extend the corporate life beyond December 5, 2019 to allow for such further review. Following a further discussion that day between representatives of LACQ, the Holdings Board, the Strategic Investor and Morgan Stanley, in light of the on-going constructive discussions between the parties, the Company agreed to enter into a note with LACQ in order to fund the required contribution to the Trust Account of approximately US$566,000 to secure the extension of LACQ’s corporate existence through January 5, 2020.

On December 9, 2019, representatives of LACQ, the Company, the Holdings Board, the Strategic Investor and Morgan Stanley met in New York. At the meeting, the parties discussed the Company’s operating performance during October and November 2019. Following the meeting, the parties agreed that the Company would review performance to-date for the fourth quarter 2019 and provide LACQ with updates, if any, to its previously-provided (on September 26, 2019) projections.

Between December 9, 2019 and December 25, 2019, Mr. Silvers had frequent phone conversations with representatives of Morgan Stanley regarding various potential timelines, and related considerations, of any potential business combination between LACQ and the Company.

On December 12, 2019, LACQ held a meeting of the LACQ Board to update the LACQ Board on the proposed business combination with the Company.

On December 16, 2019, Morgan Stanley, at the direction of the Company, provided LACQ with updated Company projections for 2019 as previously discussed on December 9, 2019 with respect to the fourth quarter.

On December 17 and 18, 2019, Mr. Silvers had a number of phone calls with representatives of Morgan Stanley and the Strategic Investor. On these calls, the parties discussed their respective views surrounding the

 

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updated 2019 Company projections and Company management. Also on these dates, Mr. Silvers held a number of phone calls with Mr. de Alba and a representative of Morgan Stanley during which the parties discussed the calls with the Strategic Investor. Following these discussions, Mr. Silvers and Mr. de Alba agreed that it would be advantageous to discuss with the Strategic Investor the potential for the Strategic Investor to lower its new investment from US$62.5 million to US$30.0 million. Also on December 17, 2019, a representative of the Strategic Investor and Mr. Falcone discussed Mr. Falcone’s views of the Company and whether Mr. Falcone would be interested in discussing, with the Company, a role on the Company’s management team following the business combination. Between December 17, 2019 and December 24, 2019, Mr. Falcone and representatives of the Strategic Investor had additional discussions with respect to Mr. Falcone’s views on the Company. On December 18, 2019, Messrs. Weil, Silvers and de Alba held a series of calls in which they discussed the ongoing governance structure of the combined company and their common belief that it would be advantageous for Mr. Falcone to serve as a member of the Holdings Board following consummation of the Transactions given his experience as an executive of a large casino company. Further, Messrs. Weil, Silvers and de Alba agreed that it would make sense to enlarge the Holdings Board following consummation of the Transactions from seven to nine members. Mr. de Alba asked Mr. Silvers to discuss with Mr. Falcone his willingness to serve on the board of directors of the combined company. Mr. Silvers spoke to Mr. Falcone later that day, at which time Mr. Falcone indicated that he would be willing to serve in such a capacity, subject to visiting some of the Company’s properties the following day. Mr. Silvers then reported back to Messrs. Weil and de Alba that Mr. Falcone had indicated a willingness to serve in such a capacity, subject to the proposed site visits. Between December 18–24, 2019, Mr. de Alba and Mr. Falcone held a number of conversations regarding potential management roles for Mr. Falcone and potential compensation arrangements for these roles. Each of Messrs. de Alba and Falcone regularly updated Mr. Silvers of these conversations.

Also on December 18, 2019, LACQ held a meeting of the LACQ Board to provide the LACQ Board with an update of conversations with the Company, the Holdings Board, the Strategic Investor and Morgan Stanley since the December 12, 2019 Board meeting, including (among other things) conversations regarding certain changes to senior management of the Company, including succession planning for Mr. Santo. Following the discussion, the LACQ Board reiterated its direction to management to continue to explore the potential business combination with the Company and to update the LACQ Board as the discussions progressed.

Between December 18, 2019 and December 27, 2019, LACQ, the Holdings Board, the Company and their respective legal and financial advisors engaged in negotiations and documentation regarding the potential business combination.

On December 19, 2019, Morgan Stanley, at the direction of the Company, provided LACQ with updated Company projections for 2020-2023, which had been revised to reflect current information, resulting in lower projected EBITDA for each of the years 2020 through 2023. LACQ and the Holdings Board agreed that the transaction would continue to value the Company at a multiple of seven-and-a-half times projected Adjusted EBITDA for the twelve months ended December 31, 2020 on a cash-free and debt-free basis. Also on this date, Mr. Falcone conducted site visits to a number of the Company’s properties in British Columbia and a third party due diligence provider to LACQ conducted site visits to a number of the Company’s properties in Ontario. The third party due diligence provider’s site visits continued through December 20, 2019.

On December 19, 2019, LACQ held a meeting of the LACQ Board to provide an update on the proposed business combination with the Company. During this meeting, representatives of Proskauer reviewed with the directors the terms of the transaction documents, including a summary of key terms and the scope of the representations, warranties, covenants and conditions to closing of the proposed business combination in the Merger Agreement, as well as the final terms, including the size, of the Strategic Investor’s equity investment and other key terms of the transaction. Mr. Silvers also informed the LACQ Board regarding the Company’s updated projections for 2020 through 2023, as discussed above, that LACQ had received from the Company. Following the discussion, the LACQ Board reiterated its direction to management to continue to explore the potential business combination with the Company and to update the LACQ Board as the discussions progressed.

 

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On December 21, 2019, representatives of LACQ, Credit Suisse and Morgan Stanley had a business due diligence update call with representatives of the Company.

On December 24, 2019, Mr. de Alba and Mr. Falcone held a call during which they reached an understanding regarding primary economic terms of a potential employment agreement, to be negotiated at a later date, pursuant to which Mr. Falcone would be announced as the incoming Chief Executive Officer of the Company to be effective shortly following closing of the business combination.

On December 24—25, 2019, Mr. Silvers called each of the other members of the LACQ Board to brief them on the various discussions that had taken place between Messrs. de Alba and Falcone.

On December 26, 2019, representatives of LACQ, Credit Suisse and Morgan Stanley had a business due diligence update call with representatives of the Company.

On December 26, 2019, LACQ held a meeting of the LACQ Board to discuss final transaction terms and evaluate the business combination. All members of management of LACQ, representatives of Proskauer and representatives of Credit Suisse were in attendance by invitation of the LACQ Board. During this meeting, representatives of Proskauer reminded the directors that, at prior meetings of the LACQ Board, Proskauer had delivered presentations detailing the scope of their fiduciary duties in connection with the potential business combination and encouraged directors to ask questions regarding their fiduciary duties. Representatives of Credit Suisse provided a presentation to the LACQ Board that included, among other things, an overview of the proposed transaction and certain financial aspects and analysis of the proposed transaction. Thereafter, representatives of Proskauer reviewed with the LACQ Board the proposed terms of the business combination, including the Merger Agreement and the other definitive agreements, copies of which had been provided to the LACQ Board in advance of the meeting. The LACQ Board concluded, after a thorough review of other business combination opportunities reasonably available to LACQ, that the proposed business combination represented the best potential business combination for LACQ based upon the process utilized to evaluate and assess other potential acquisition targets, and the LACQ Board’s and management’s belief that such processes had not presented a better alternative. After discussion and upon a motion duly made and seconded, the LACQ Board unanimously resolved that the Merger Agreement, each of the related ancillary agreements and the proposed business combination transaction be approved, subject in each case to routine finalization of documentation.

On December 27, 2019, representatives of LACQ, Credit Suisse and Morgan Stanley had a business due diligence update call with representatives of the Company.

On December 27, 2019, the parties executed the Merger Agreement and other documentation related thereto. On the evening of December 27, 2019, after the stock market closed, LACQ and the Company jointly announced the execution of the Merger Agreement and the business combination.

On December 31, 2019, a Form 8-K was filed describing the Transactions in further detail and filing a copy of the Agreement and Plan of Merger.

On January 7, 2020, Messrs. Weil, Silvers, Falcone, de Alba and Santo, as well as Queenie Wong, Chief Accounting Officer of the Company and George Peng, Chief Financial Officer of LACQ, held an investor conference call to discuss the Transactions.

The parties and their respective representatives have continued and expect to continue regular discussions regarding the consummation of the proposed business combination.

LACQ’s Board of Directors’ Reasons for Approval of the Transactions

The LACQ Board, in evaluating the Transactions, consulted with LACQ’s management and legal and financial advisors, as well as other third-party due diligence providers. In the LACQ IPO prospectus, LACQ set

 

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forth its acquisition process for evaluating a prospective target business. Specifically, it expected to conduct a thorough due diligence review of the prospective target business that would encompass, among other things, meetings with incumbent management and employees, document reviews, inspection of facilities, as well as a review of financial, operational, legal and other information that would be made available to LACQ. In connection with the evaluation of the Company, LACQ’s management (in consultation with legal and financial advisors and its third-party advisors) conducted such a due diligence review and presented the findings to the LACQ Board so that it could benefit from such evaluation in connection with its evaluation of the Transactions.

In the LACQ IPO prospectus, LACQ identified the following general criteria and guidelines that it believed were important in evaluating prospective target businesses, although it indicated that it may decide to enter into an initial business combination with a target business that does not meet such criteria and guidelines.

 

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Business with Market and/or Cost Leadership Positions. LACQ will seek to acquire one or more businesses with market and/or cost leadership positions in their respective niches.

 

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Business that will Benefit from its Management Expertise. LACQ will seek to acquire one or more businesses with assets that are fundamentally sound yet are underperforming their potential.

 

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Experienced Management Team. LACQ will seek to acquire one or more businesses with an experienced management team that provides a platform for it to further develop the management capabilities of the acquired business.

 

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Businesses with Untapped Potential. LACQ will seek to acquire one or more businesses that have significant embedded and/or underexploited expansion opportunities, have been underinvested in by current owners, and/or exhibited unrecognized value or other characteristics. LACQ’s management team has significant experience in identifying businesses with opportunities to accelerate organic growth and/or add on attractive acquisition targets.

 

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Businesses that will Benefit from Being a Public Company. LACQ intends to acquire one or more businesses that will benefit from being publicly traded.

In light of the number and wide variety of factors, the LACQ Board did not consider it practicable to and did not attempt to quantify or otherwise assign relative weights to the specific factors it considered in reaching its determination. The proposed business combination with Gateway meets the criteria and guidelines LACQ disclosed in the LACQ IPO prospectus, in addition to certain other factors that were considered by the LACQ Board and that are included below. The LACQ Board viewed its position as being based on all of the information available to it and the factors presented to and considered by it. In addition, individual directors may have given different weight to different factors. This explanation of LACQ’s reasons for the Transactions and all other information presented in this section is forward-looking in nature and, therefore, should be read in light of the factors discussed under “Cautionary Note Regarding Forward-Looking Statements” and “Risk Factors.”

In reaching its unanimous resolution (i) that the terms and conditions of the Merger Agreement, including the proposed Transactions, are advisable, fair to, and in the best interests of LACQ and its stockholders and (ii) to recommend that stockholders adopt and approve the Merger Agreement and approve the Transactions contemplated therein, the LACQ Board considered a range of factors, including but not limited to, the factors discussed below.

The LACQ Board considered a number of factors as generally supporting its decision to enter into the Merger Agreement and the Transactions, including but not limited to, the following material factors:

 

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Leading Diversified Gaming and Entertainment Company. Gateway is one of the largest and most diversified gaming and entertainment companies in Canada, featuring 25 gaming properties across British Columbia and Ontario. The LACQ Board considered the leading market position that Gateway occupies in each of its markets. In addition, the LACQ Board reviewed, with the assistance of LACQ’s management and its advisors, each of the markets in which Gateway operates and its individual

 

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properties. In assessing the performance of the Gateway properties, individually and in the aggregate, the LACQ Board reviewed a variety of financial and operating metrics.

 

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Potential Significant Benefits from LACQ Management Expertise. Upon closing of the Transactions, A. Lorne Weil, Daniel B. Silvers and Marc J. Falcone, Leisure’s Executive Chairman, Chief Executive Officer and Director, respectively, are expected to join the Company’s board of directors. With their decades of experience in the leisure and gaming industry, and significant experience in capital markets, public company governance and operations in the sector, the LACQ Board believes they will provide effective and strategic oversight. In addition, Mr. Falcone is expected to lead the combined company as President and Chief Executive Officer. Mr. Falcone is a highly respected executive with extensive experience in leadership roles in the leisure and gaming industry. The LACQ Board believes that these additions to the Gateway management team will support and further accelerate Gateway’s growth strategy.

 

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Experienced Management Team. Mr. Falcone is expected to be supported in his new role as President and Chief Executive Officer by Gateway’s experienced management team. Gateway’s management team has deep industry knowledge and a strong operating track record through the transformation of Gateway’s business model, increase in revenues over the last five years and significant expansion of its property portfolio. The LACQ Board expects that the operating and financial abilities of Mssrs. Weil, Silvers and Falcone will complement the capabilities of the existing management team.

 

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Unique Opportunity to Accelerate Growth. The LACQ Board considered the growth prospects for Gateway’s business and, among other things, identified the following as opportunities to sustain and accelerate growth:

 

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Gateway’s markets are in high population areas, but, based on LACQ’s analysis, are underpenetrated, have limited potential competitive supply and have the potential to experience increases in customer demand. Gateway’s well-known proprietary casino and restaurant brands have the potential to drive revenue and growth in these markets.

 

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Gateway’s existing growth strategies and investments are expected to generate near-term returns and plans for implementing additional growth strategies are expected to be considered shortly following closing of the Transactions. The LACQ Board reviewed and considered the implementation of Gateway’s growth strategies at certain of its existing Ontario properties and its planned expansion of such strategies to other Gateway properties. In addition, the LACQ Board reviewed and considered Gateway’s plans for expansions and relocations in both the Ontario and British Columbia markets as well as Gateway’s planned exit from the Edmonton market.

 

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Gateway’s business model has characteristics, which include lower maintenance capital expenditures than certain of its peers, as well as large existing NOL balances, that is expected to drive strong free cash flow conversion in comparison to its peers. This free cash flow is expected to be utilized to fund growth strategies and de-lever the business.

 

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Benefits from Access to the Public Capital Markets. Access to the public capital markets, together with Gateway’s strong free cash flow and capital structure, is expected to favorably position the company to accelerate its existing growth strategies and take advantage of additional acquisition or development opportunities as they may arise.

 

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Business and Financial Condition and Prospects. Through its diligence process, the LACQ Board gained a knowledge of and familiarity with Gateway’s business, financial condition, results of operations and future growth prospects. The LACQ Board viewed Gateway’s projected strong revenue growth, consistent Adjusted EBITDA growth and strong free cash flow conversion as positive business and financial factors. In addition to the considerations given to Gateway’s growth prospects, as discussed above, the LACQ Board also discussed and considered factors such as Gateway’s historical and projected financials, planned growth capital expenditures, capital and debt structure, discounted cash flow analysis, as well as valuations, trading and other financial metrics of publicly traded companies in similar and adjacent sectors.

 

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Attractive Regulatory Environment; Resilient Markets. Gateway operates in a regulatory environment that provides for long-term operating agreements and licenses and in which there are high barriers to entry. In addition, Gateway’s markets demonstrated resilience during the most recent economic downturn as compared to top U.S. locals-driven markets.

 

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Backing by Experienced Gaming Investors. The Strategic Investor has committed more than US$100 million, in total, to Holdings, including previously invested capital. Catalyst is expected to continue supporting Gateway as the company’s largest shareholder upon closing of the Transactions. Additionally, Mr. de Alba is expected to continue in his role as Executive Chairman.

 

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Extensive Opportunity to Assess Gateway’s Business. Because LACQ previously considered a business combination with Gateway (See “The Business Combination Proposal—Background of the Transactions”), it has had the opportunity to assess the Gateway business model, operations and management team through a lengthy due diligence process. The opportunity to track the Company’s growth and evolution over an extended period aided the LACQ Board in reaching its conclusion that the Transactions are advisable, fair to and in the best interest of LACQ and its stockholders.

 

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Terms of the Business Combination and Deal Certainty. The financial and other terms and conditions of the Merger Agreement, as reviewed by the LACQ Board, and their belief that such terms and conditions are reasonable and were the product of arm’s-length negotiations among the parties. Further, the Merger Agreement contains limited conditions to closing and the LACQ Board believes that the Transactions will be completed in a timely manner.

 

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Other Alternatives. The LACQ Board’s belief, after a thorough review of other business combination opportunities reasonably available to LACQ, that the proposed Transactions represent the best potential business combination for LACQ and the most attractive opportunity for LACQ management to accelerate its business plan based upon the process utilized to evaluate and assess other potential acquisition targets, and the LACQ Board’s belief that such processes had not presented a better alternative.

The LACQ Board also considered a variety of uncertainties and risks and other potentially negative factors concerning the Merger Agreement and Transactions, including, but not limited to, the following:

 

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Macroeconomic Risks. Macroeconomic uncertainty and the effects it could have on the combined company’s revenues.

 

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Benefits May Not Be Achieved. The risk that the potential benefits of the Transactions may not be fully achieved or may not be achieved within the expected timeframe.

 

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Growth Strategies May Not be Achieved. The risk that Gateway’s existing and/or future growth strategies, and their associated financial results, may not be fully achieved or may not be achieved within the expected timeframe.

 

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Discontinued Operations. The risk that Gateway is unable to complete the sale of its discontinued operations in the Edmonton Region on the expected timeframe or at all. An inability to complete the sale of these operations could have a negative effect on the combined company’s financial condition and performance.

 

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Foreign Holding Company Structure. The added risks that would be present in the proposed post-merger structure, such as the risk of being able to enforce future judgments against a foreign company, that would not have been present if the combined company remained a U.S. domiciled entity.

 

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No Third-Party Valuation. The risk that LACQ did not obtain a third-party valuation or fairness opinion in connection with the Transactions.

 

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Achievability of Financial Forecasts. The risks relating to the achievability of the forecasted financial information that was provided by Gateway to the LACQ Board and that were utilized by the LACQ Board as a component in its overall evaluation of Gateway’s business and growth prospects.

 

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•

Catalyst Nomination Rights. The risks relating to the rights granted to Catalyst pursuant to the Shareholders Agreement, including rights to nominate a majority of the directors of the combined company.

 

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Approvals Required. The risks relating to obtaining the gaming authority approvals that are required for the Company and its subsidiaries to continue operating after consummation of the Transactions, and the risks relating to obtaining shareholder approval of the Transactions within the timeframe required by the Merger Agreement.

 

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Company Termination Right. Pursuant to the Merger Agreement, the Company has certain termination rights commencing as early as June 1, 2020. See “The Merger Agreement.” In the event the Company terminates the Merger Agreement pursuant to such right, the LACQ Board does not expect that it would be able to complete an alternative business combination prior to the date set forth in its charter by which it must complete a business combination. In such event, LACQ would be forced to liquidate.

 

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Litigation. The possibility of litigation challenging the Transactions or that an adverse judgment granting permanent injunctive relief could indefinitely enjoin consummation of the Transactions.

 

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Fees and Expenses. The fees and expenses associated with completing the Transactions.

 

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Other Risks. Various other risks associated with the business of the Company, as described in the section entitled “Risk Factors” appearing elsewhere in this proxy statement/prospectus.

In addition to considering the factors described above, the LACQ Board also considered that some officers and directors of LACQ have interests in the Transactions as individuals that are in addition to, and that are different from, the interests of LACQ’s stockholders (see “The Business Combination Proposal—Interests of LACQ’s Insiders and Initial Stockholders”). LACQ’s independent directors reviewed and considered these interests during the negotiation of the Transactions and in evaluating and unanimously approving, as members of the LACQ Board, the Merger Agreement and the Transactions.

The LACQ Board concluded that the potential benefits that it expected LACQ and its stockholders to achieve as a result of the Transactions outweighed the potentially negative factors associated with the Transactions. The LACQ Board also noted that the LACQ stockholders would have a substantial economic interest in the combined company (depending on the level of LACQ stockholders that may seek redemption of their public shares into cash). Accordingly, the LACQ Board unanimously determined that the Merger Agreement and the Transactions contemplated therein, were advisable, fair to, and in the best interests of the LACQ and its stockholders.

In approving the Transactions, the LACQ Board determined not to obtain a fairness opinion. The officers and directors of LACQ have substantial experience in evaluating the operating and financial merits of companies from a wide range of industries, including the gaming and entertainment sector, and concluded that their experience and backgrounds, together with the experience and sector expertise of LACQ’s financial advisor, Credit Suisse, enabled them to make the necessary analyses and determinations regarding the Transactions with the Company. In addition, LACQ’s officers and directors and advisors have substantial experience with mergers and acquisitions, including in connection with transactions involving special purpose acquisition companies.

Certain Forecasted Financial Information for the Company

The Company provided LACQ with certain internally prepared projections for the fiscal years ending December 31, 2019, 2020, 2021, 2022 and 2023. This prospective financial information was not prepared with a view toward compliance with published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants for preparation and presentation of prospective financial information. The forecasts were prepared solely for internal use, capital budgeting and other management purposes. As such,

 

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they include certain pro forma adjustments that are permissible under the covenants in the Company’s loan agreements. In addition, the prospective financial information excluded the discontinued operations. The forecasts are subjective in many respects and therefore susceptible to varying interpretations and the need for periodic revision based on actual experience and business developments, and were not intended for third-party use, including by investors or holders. You are cautioned not to rely on the forecasts in making a decision regarding the transaction, as the forecasts may be materially different than actual results.

The forecasts reflect numerous assumptions, including assumptions with respect to general business, economic, market, regulatory and financial conditions and various other factors, all of which are difficult to predict and many of which are beyond LACQ and the Company’s control, such as the risks and uncertainties contained in “Risk Factors.” The financial forecasts are forward-looking statements that are based on growth assumptions that are inherently subject to significant uncertainties and contingencies, many of which are beyond LACQ and the Company’s control. There will be differences between actual and projected results, and actual results may be materially greater or materially less than those contained in the projections. The inclusion of the projections in this proxy statement/prospectus should not be regarded as an indication that LACQ or its representatives considered or consider the projections to be a reliable prediction of future events, and reliance should not be placed on the projections.

The forecasts were requested by, and disclosed to, LACQ for use as a component in its overall evaluation of the Company, and are included in this proxy statement/prospectus on that account. The Company has not warranted the accuracy, reliability, appropriateness or completeness of the forecasts to anyone, including to LACQ. Neither the Company’s management nor any of its representatives has made or makes any representation to any person regarding the ultimate performance of the Company compared to the information contained in the forecasts, and none of them intends to or undertakes any obligation to update or otherwise revise the forecasts to reflect circumstances existing after the date when made or to reflect the occurrence of future events in the event that any or all of the assumptions underlying the forecasts are shown to be in error. Accordingly, they should not be looked upon as “guidance” of any sort. The Company will not refer back to these forecasts in its future periodic reports filed under the Exchange Act. The forecasts reflect the consistent application of the accounting policies of the Company and should be read in conjunction with the accounting policies included in “Note 4—Significant accounting policies” to our audited consolidated financial statements included in this proxy statement/prospectus.

The prospective financial information included in this proxy statement/prospectus has been prepared by, and is the responsibility of, the Company’s management. Grant Thornton LLP has not audited, reviewed, examined, compiled nor applied agreed upon procedures with respect to the accompanying prospective financial information and, accordingly, Grant Thornton LLP does not express an opinion or any other form of assurance with respect thereto. The Grant Thornton LLP report included in this proxy statement/prospectus relates to the Company’s previously issued financial statements. It does not extend to the prospective financial information and should not be read to do so.

The key elements of the projections are summarized below (in millions of Canadian dollars).

 

		Fiscal Year Ended December 31,(1)
		2019E				2020E				2021E				2022E				2023E
Revenue		$	797.2			$	865.1			$	928.7			$	1,037.0			$	1,072.4
Adjusted Property EBITDA		$	215.8			$	245.0			$	266.1			$	302.3			$	318.9
Adjusted EBITDA		$	175.9			$	195.0			$	215.0			$	250.2			$	265.8
Net Income		$	(63.3	)		$	41.2			$	60.0			$	100.0			$	119.5
Adjusted Free Cash Flow(2)		$	151.7			$	177.1			$	194.4			$	230.8			$	246.1

 

(1)	The projections exclude the impact of discontinued operations. See “Risk Factors—Risks Related to Our Business and Operations Following the Business Combination—We may not complete a disposition of the

 

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Edmonton Region operations in a timely manner or at all, and any such disposition may not be on favorable terms to us” and “Gateway’s Management’s Discussion and Analysis of Financial Condition and Results of Operations—Discontinued Operations.”

(2)	Adjusted Free Cash Flow is defined as Adjusted EBITDA less maintenance capex and cash taxes.

Satisfaction of 80% Test

It is a requirement under LACQ’s amended and restated certificate of incorporation, as amended, that any business acquired by LACQ have a fair market value equal to at least 80% of the balance of the funds in the Trust Account at the time of the execution of a definitive agreement for an initial business combination (excluding any deferred underwriting commissions and taxes payable on the income earned in the Trust Account). As of December 27, 2019, the date of the execution of the Merger Agreement, the balance of the funds in the Trust Account was approximately US$188.3 million (excluding up to US$7.0 million of deferred underwriting commissions and taxes payable) and 80% thereof represents approximately US$150.6 million. The LACQ Board determined that the fair market value of the Company was in excess of such amount and the 80% test was met.

In reaching its conclusion on the 80% test, the LACQ Board used as a fair market value the approximately US$1.1 billion enterprise value for the Company, which was implied based on the terms of the Transactions agreed to by parties in negotiating the Merger Agreement. This fair market value was implied based on adding (all amounts assume no redemptions from the Trust Account): (i) approximately US$180.5 million of equity consideration in the post-combination company to be issued to the existing Holdings shareholders; (ii) approximately US$42.4 million of gross cash consideration payable to the existing Holdings shareholders at the closing of the business combination (including amounts to pay transaction fees and expenses incurred by Holdings); (iii) the assumption of approximately US$675.4 million of the Company’s existing net indebtedness; (iv) the repayment of approximately US$164.4 million of the Company’s existing indebtedness; (v) the payment of approximately US$12.0 million of certain transaction costs, net of assumed accrued interest (and Contributions from the Sponsors and the Strategic Investor under the Expense Advancement Agreement) in the Trust Account and (iv) the retention of founder shares by LACQ’s initial stockholders valued (assuming a stock price of US$10.00 per share) at US$40 million. The parties to the Merger Agreement considered factors such as the Company’s historical financial results, the future growth outlook and financial plan, as well as valuations and trading of publicly traded companies in similar and adjacent sectors. The LACQ Board determined that the consideration being paid in the Merger, which amount was negotiated at arms-length, was fair to, and in the best interests of, LACQ and its stockholders and appropriately reflected the Company’s value.

The LACQ Board based this conclusion on (i) a comparison of  (a) the ratio of enterprise value over estimated 2020 Adjusted EBITDA of 7.5x, before fees and expenses, for the Company, based on an approximate US$1.1 billion enterprise value of the Company after giving effect to the Transactions, to (b) the median and mean enterprise values over estimated 2020 Adjusted EBITDA of 9.4x and 8.5x, respectively, for the selected comparable companies; (ii) a discounted cash flow analysis of the Company; (iii) a review of the 2020-2023 forecasts, as described in “—Certain Forecasted Financial Information for the Company”; and (iv) a range of qualitative and quantitative factors such as the Company’s diversified portfolio of gaming and entertainment destinations, leading market positions, demonstrated track record, proven brands, defensible barriers to entry, strong Adjusted EBITDA growth and free cash flow conversion, and growth expansion opportunities.

The LACQ Board believes that because of the financial skills and background of its directors, it was qualified to conclude that the acquisition of the Company met the 80% requirement. Based on the fact that the approximate US$1.1 billion fair market value of the Company as described above, is in excess of the threshold of approximately US$150.6 million, representing 80% of the balance of the funds in the Trust Account (excluding the deferred underwriting commissions), the LACQ Board determined that the fair market value of the Company was substantially in excess of 80% of the funds in the Trust Account and that the 80% test was met.

 

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Interests of LACQ’s Insiders and Initial Stockholders

In considering the recommendation of the LACQ Board to vote in favor of approval of the business combination proposal and the adjournment proposal, stockholders should keep in mind that LACQ’s directors, officers and other initial stockholders and their respective affiliates, including the Sponsors and the Strategic Investor, have interests in such proposals that are different from, or in addition to, those of LACQ stockholders generally. In particular:

 

•

LACQ’s directors, officers and other initial stockholders and their respective affiliates (including the Sponsors) have agreed not to redeem any LACQ Shares held by them in connection with a stockholder vote to approve a proposed initial business combination;

 

•

If the business combination with the Company or another business combination is not consummated by April 5, 2020 (or a later date to the extent of a subsequent extension approved by shareholders), the 5,000,000 founder shares held by LACQ’s initial stockholders, which were acquired prior to the LACQ IPO for an aggregate purchase price of US$25,000, would be worthless (as the holders have waived liquidation rights with respect to such shares), as would the 6,825,000 LACQ Private Placement Warrants that were acquired simultaneously with the LACQ IPO for an aggregate purchase price of US$6,825,000 (as they would expire). Such common stock and warrants had an aggregate market value of approximately US$        based on the last sale price of Holdings’ public shares and warrants of US$        and US$        , respectively, on Nasdaq on                 , 2020. In connection with the Transactions, certain initial LACQ stockholders will forfeit 1,000,000 founder shares and the terms of the LACQ Private Placement Warrants will be amended. See “Summary of the Material Terms of the Transactions.”

 

•

In connection with the LACQ IPO, to protect the amounts held in the Trust Account, the Sponsors agreed to be liable to LACQ if and to the extent any claims by a vendor for services rendered or products sold to the LACQ, or a prospective target business with which LACQ has discussed entering into a transaction agreement, reduce the amount of funds in the Trust Account to below the lesser of (i) US$10.00 per public share or (ii) such lesser amount per share held in the Trust Account on the liquidation date due to reductions in the value of the trust assets, in each case net of the amount of interest withdrawn to pay LACQ’s franchise and income tax obligations, but only if such a vendor or target business has not executed a waiver of claims against the Trust Account and except as to claims under LACQ’s indemnity of the underwriters of the LACQ IPO against certain liabilities.

 

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All rights specified in LACQ’s amended and restated certificate of incorporation, as amended, relating to the right of officers and directors to be indemnified by LACQ, and of LACQ’s officers and directors to be exculpated from monetary liability with respect to prior acts or omissions, will continue after a business combination. If the business combination is not approved and the LACQ liquidates, the LACQ will not be able to perform its obligations to its officers and directors under those provisions;

 

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LACQ’s Sponsors and Strategic Investor had committed to advance an aggregate of up to US$1,000,000 to LACQ in exchange for unsecured promissory notes in the event that funds held outside of the Trust Account were insufficient to fund LACQ’s expenses prior to the business combination. LACQ has utilized these commitments in full and expects to repay such loaned amounts, including any additional amounts that may be advanced to LACQ to fund the Contributions or otherwise, out of the proceeds of the Trust Account released upon completion of a business combination. Alternatively, the Sponsors and Strategic Investor may convert the promissory notes to warrants to purchase Holdings Shares upon completion of the business combination. Otherwise, such loans would be repaid only out of funds held outside the Trust Account. In the event LACQ does not complete the business combination, it may use a portion of the working capital held outside the Trust Account to repay such loaned amounts but no proceeds from the Trust Account would be used for such repayment. Accordingly, if a business combination is not completed, LACQ would, most likely, not be able to repay the loans;

 

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•

None of LACQ’s officers or directors or other personnel have received any cash compensation for services rendered to the LACQ. Certain of LACQ’s officers, directors or other personnel, including Mssrs. Weil, Silvers and Falcone, have already agreed to, and others may agree to, join the Company after the completion of a business combination if they are able to negotiate employment or consulting agreements in connection with the business combination or join the Holdings Board. See “Executive Compensation” and “Director Compensation.” Such discussions and negotiations may take place simultaneously with the negotiation of the business combination and could provide for such individuals to receive compensation in the form of cash payments and/or securities for services they would render to the Company after the completion of the business combination.

 

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LACQ’s Sponsors, Strategic Investor, officers and directors will not be eligible to be reimbursed from the funds held in the Trust Account for out-of-pocket expenses incurred by them on LACQ’s behalf such as identifying potential target businesses and performing due diligence on suitable business combinations if the business combination is not completed. LACQ’s audit committee determines which fees and expenses and the amount of expenses are eligible for reimbursement and reviews the reimbursements made to such persons on a quarterly basis. As of December 31, 2019, the aggregate amount of unreimbursed expenses was approximately US$1,000.

 

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The Transaction Support Agreement provides that Holdings would make certain advances to A. Lorne Weil and Daniel B. Silvers in the event that either person is subject to current U.S. federal income tax liability as a result of the Merger failing to qualify as a “reorganization” within the meaning of Section 368(a) of the Code. See “The Business Combination Proposal—Interests of LACQ’s Insiders and Initial Stockholders.”

 

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The Registration Rights Agreement provides for certain demand and piggyback registration rights for the Strategic Investors and the Sponsors (and their respective affiliates and permitted transferees).

 

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The Strategic Investor has also agreed to purchase directly from Holdings in a private placement an aggregate of 3,000,000 units of Holdings, each unit consisting of one share of Holdings and one half of one warrant to purchase one share of Holdings, immediately following the effective time of the Recapitalization for an aggregate purchase price of US$30,000,000.

 

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The Strategic Investor is a lender under the Holdings Credit Agreement and holds approximately US$81.8 million of the US$153.5 million outstanding under the Holdings Term Loan, as of December 31, 2019. Amounts outstanding under the Holdings Term Loan may be repaid in part or in full as part of the Transactions at the closing of the business combination.

 

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Mr. Silvers holds, through a family investment vehicle over which he does not exercise either voting control or investment power, an indirect, non-controlling economic interest in a fund managed by the Strategic Investor that is a lender under the Holdings Credit Agreement. Mr. Silvers’ indirect economic interest in this loan (through this investment in the fund) is in an amount less than US$50,000.

After careful consideration of the matters described above, particularly Gateway’s demonstrated track record of successfully operating, developing and acquiring gaming properties and contributing to the communities in which it operates, and the combined company’s promising future as a leading, diversified gaming and entertainment platform throughout North America, the LACQ Board determined unanimously that each of the business combination proposal and the adjournment proposal, if presented, is fair to and in the best interests of LACQ and its stockholders. The LACQ Board has approved and declared advisable and unanimously recommend that you vote or give instructions to vote “FOR” each of these proposals.

The foregoing discussion of the information and factors considered by the LACQ board of directors is not meant to be exhaustive, but includes the material information and factors considered by the LACQ board of directors.

 

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Material U.S. Federal Income Tax Considerations of the Merger to Holders of LACQ Shares and LACQ Warrants

The following is a summary of material U.S. federal income tax consequences of the Merger to holders of LACQ Shares and LACQ Warrants. This discussion is based on provisions of the Code, the Treasury regulations promulgated thereunder, administrative rulings of the Internal Revenue Service (the “IRS”), judicial decisions, all as in effect on the date hereof, and all of which are subject to change, possibly with retroactive effect. Any such change could affect the accuracy of the statements and conclusions set forth herein. No ruling has been requested or will be obtained from the IRS regarding the U.S. federal income tax consequences of the Merger or any other related matter; accordingly, there can be no assurance that the IRS will not challenge the U.S. federal income tax treatment described below or that, if challenged, such treatment will be sustained by a court.

This summary is for general purposes only and does not purport to be a complete summary of all potential U.S. federal income tax considerations that may apply to holders of LACQ Shares or LACQ Warrants as a result of the Merger or as a result of the ownership and disposition of Holdings Shares and Holdings Warrants. This discussion does not address any transactions entered into prior to the effective time of the Merger. It is not intended to be, and should not be construed as, tax advice.

This summary does not address any tax consequences arising under any state, local, or non-U.S. tax laws.

This summary is limited to U.S. federal income tax considerations relevant to holders that hold their securities as “capital assets” within the meaning of Section 1221 of the Code and does not address all the U.S. federal income tax consequences (including any alternative minimum tax consequences or the impact of the Medicare contribution tax on net investment income) that may be relevant to particular holders in light of their individual circumstances or to holders that are subject to special rules under U.S. federal income tax law, such as:

 

•

the Sponsors and their affiliates;

 

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banks, thrifts, mutual funds, or other financial institutions, underwriters or insurance companies;

 

•

real estate investment trusts and regulated investment companies;

 

•

partnerships or other entities treated as partnerships for U.S. federal income tax purposes;

 

•

owners or beneficiaries of any holder;

 

•

tax-exempt organizations, qualified retirement plans, individual retirement accounts, or other tax-deferred accounts;

 

•

dealers or traders in securities, commodities or currencies;

 

•

traders in securities that elect to apply a mark-to-market method of accounting;

 

•

grantor trusts;

 

•

U.S. persons whose “functional currency” is not the U.S. dollar;

 

•

persons who received LACQ Shares through the exercise of incentive stock options or through the issuance of restricted stock under an equity incentive plan or through a tax-qualified retirement plan or otherwise as compensation;

 

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except to the limited extent described below, holders that own or are treated as owning (through attribution) 5% or more (by vote or value) of either issued and outstanding shares of LACQ stock or, after the Merger, issued and outstanding shares of Holdings stock; and

 

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persons holding LACQ Shares or LACQ Warrants as part of a “straddle,” “hedge,” “conversion transaction,” “synthetic security” or other integrated investment.

 

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For purposes of this summary, a U.S. holder is a beneficial owner of LACQ Shares or LACQ Warrants or, after the Merger, Holdings Shares and Holdings Warrants, that is any of the following for U.S. federal income tax purposes:

 

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an individual who is a citizen or resident of the United States;

 

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a corporation, including any entity treated as a corporation for U.S. federal income tax purposes, that is created or organized in or under the laws of the United States, any state thereof or the District of Columbia;

 

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an estate if its income is subject to U.S. federal income taxation regardless of its source; or

 

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a trust if (i) a court within the United States can exercise primary supervision over its administration and one or more U.S. persons have the authority to control all of its substantial decisions, or (ii) it has in effect a valid election under applicable Treasury regulations to be treated as a U.S. person for U.S. federal income tax purposes.

For purposes of this summary, a “non-U.S. Holder” is a beneficial owner of LACQ Shares or LACQ Warrants or, after the Merger, Holdings Shares and Holdings Warrants, that is not a U.S. holder.

THE U.S. FEDERAL INCOME TAX TREATMENT OF THE MERGER AND THE U.S. FEDERAL INCOME TAX TREATMENT OF HOLDERS OF LACQ SHARES AND LACQ WARRANTS DEPENDS IN SOME INSTANCES ON DETERMINATIONS OF FACT AND INTERPRETATIONS OF COMPLEX PROVISIONS OF U.S. FEDERAL INCOME TAX LAW FOR WHICH NO CLEAR PRECEDENT OR AUTHORITY MAY BE AVAILABLE. IN ADDITION, THE U.S. FEDERAL INCOME TAX TREATMENT OF THE MERGER AND THE U.S. FEDERAL INCOME TAX TREATMENT OF OWNING HOLDINGS SHARES AND HOLDINGS WARRANTS TO ANY PARTICULAR HOLDER WILL DEPEND ON THE HOLDER’S PARTICULAR TAX CIRCUMSTANCES. YOU ARE URGED TO CONSULT YOUR TAX ADVISOR REGARDING THE U.S. FEDERAL, STATE, AND LOCAL, AND NON-U.S. INCOME AND OTHER TAX CONSEQUENCES TO YOU, IN LIGHT OF YOUR PARTICULAR INVESTMENT OR TAX CIRCUMSTANCES, OF ACQUIRING, HOLDING, AND DISPOSING OF HOLDINGS SHARES AND HOLDINGS WARRANTS.

U.S. Federal Income Tax Considerations of the Merger

U.S. Federal Income Tax Treatment of Holdings as a Result of the Merger

A corporation is generally considered for U.S. federal income tax purposes to be a tax resident in the jurisdiction of its organization or incorporation. Accordingly, Holdings, which is incorporated under the laws of the Canada, would be treated as a non-U.S. corporation (and, therefore, not a U.S. tax resident) for U.S. federal income tax purposes. Under Section 7874 of the Code, a corporation created or organized outside the United States (i.e., a non-U.S. corporation) will nevertheless be treated as a U.S. corporation for U.S. federal income tax purposes (and, therefore, as a U.S. tax resident subject to U.S. federal income tax on its worldwide income) if: (i) the non-U.S. corporation, directly or indirectly, acquires substantially all of the properties held directly or indirectly by a U.S. corporation (including indirectly acquiring assets by acquiring all of the outstanding shares of the U.S. corporation); (ii) the non-U.S. corporation’s “expanded affiliated group” does not have “substantial business activities” in the non-U.S. corporation’s country of organization or incorporation relative to the expanded affiliated group’s worldwide activities; and (iii) after the acquisition, the former shareholders of the acquired U.S. corporation hold at least 80% (by either vote or value) of the shares of the non-U.S. acquiring corporation by reason of holding shares in the U.S. acquired corporation (taking into account the receipt of the non-U.S. corporation’s shares in exchange for the U.S. corporation’s shares). The rules under Section 7874 of the Code are complex and there is limited guidance regarding their application. However, it is expected that, after the Merger, (i) Holdings, including its “expanded affiliated group” (which includes GCEL), will continue to have “substantial business activities” in Canada within the meaning of Section 7874 of the Code, and (ii) based on the

 

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rules for determining share ownership under Section 7874 of the Code and certain factual assumptions, the holders of LACQ Shares and LACQ Warrants are expected to be treated as holding less than 80% (by both vote and value) of Holdings Shares and Holdings Warrants by reason of their ownership of LACQ Shares and LACQ Warrants. As a result, under current law, Holdings is expected to be treated as a non-U.S. corporation for U.S. federal income tax purposes under Section 7874 of the Code.

The remainder of this discussion assumes that Holdings will be treated as a non-U.S. corporation for U.S. federal income tax purposes under Section 7874 of the Code.

U.S. Federal Income Tax Considerations of U.S. Holders

Tax Treatment of the Merger under Section 368(a) of the Code

The parties to the Merger intend that the Merger qualify as a reorganization within the meaning of Section 368(a) of the Code (a “reorganization”). To qualify as a reorganization, a transaction must satisfy certain requirements, including, among others, that the acquiring corporation (or, in the case of certain reorganizations structured as the Merger, its corporate parent) continue, either directly or indirectly through certain controlled corporations, either a significant line of the acquired corporation’s historic business or use a significant portion of the acquired corporation’s historic business assets in a business, in each case, within the meaning of Treasury regulations Section 1.368-1(d). Holdings (the parent of Merger Sub, the acquiring corporation) intends to continue a significant line of LACQ’s historic business, or use a significant portion of LACQ’s historic business assets in a business, within the meaning of the regulations. However, there are significant factual and legal uncertainties as to whether the Merger will satisfy this requirement and, in turn, qualify as a reorganization. Moreover, the closing of the Merger is not conditioned upon the receipt of an opinion of counsel that the Merger will qualify as a reorganization, and neither LACQ nor Holdings intends to request a ruling from the IRS regarding the U.S. federal income tax treatment of the Merger. Accordingly, no assurance can be given that the IRS will not challenge the Merger’s qualification as a reorganization or that a court will not sustain a challenge by the IRS.

If, notwithstanding the above, at the effective time of the Merger, any requirement for Section 368(a) is not met, a U.S. holder of LACQ Shares would recognize gain or loss in an amount equal to the difference, if any, between the fair market value as of the closing date of the Merger of Holdings Shares and the amount of cash received in the Merger over such holder’s tax basis in the LACQ Shares surrendered by such holder in the Merger. Any gain or loss so recognized would generally be long-term capital gain or loss if the U.S. holder had held the LACQ Shares for more than one year (or short-term capital gain otherwise). Long-term capital gains of non-corporate U.S. holders (including individuals) currently are eligible for preferential U.S. federal income tax rates. However, the deductibility of capital losses is subject to limitations. A U.S. holder’s holding period in the Holdings Shares received in the Merger, if any, would not include the holding period for the block of LACQ Shares surrendered in exchange therefor.

The remainder of this discussion assumes that the Merger will qualify as a reorganization.

Tax Treatment of the Merger under Section 367(a) of the Code

Section 367 of the Code and the Treasury regulations promulgated thereunder provide that, where a U.S. holder exchanges stock or securities in a U.S. corporation for stock or securities in a non-U.S. corporation in a transaction that would otherwise qualify under Section 368(a) of the Code, the U.S. holder is required to recognize any gain (but not loss) realized on such exchange unless certain requirements are satisfied. In general, for the Merger to meet these additional requirements, certain reporting requirements must be satisfied and (i) no more than 50% of both the total voting power and the total value of the stock of the transferee non-U.S. corporation is received, in the aggregate, by the “U.S. transferors” (as defined in the Treasury regulations and computed taking into account direct, indirect and constructive ownership) in the transaction; (ii) no more than

 

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50% of each of the total voting power and the total value of the stock of the transferee non-U.S. corporation is owned, in the aggregate, immediately after the transaction by “U.S. persons” (as defined in the Treasury regulations) that are either officers or directors or “five-percent target shareholders” (as defined in the Treasury regulations and computed taking into account direct, indirect and constructive ownership) of the transferred U.S. corporation; and (iii) the “active trade or business test” as defined in Treasury regulations Section 1.367(a)-3(c)(3) must be satisfied. It is currently expected that conditions (i), (ii), and (iii) will be met and that, as a result, the Merger is intended to satisfy the applicable requirements under Section 367 of the Code on account of such conditions. Accordingly, it is intended that the Merger not require gain recognition by a U.S. holder exchanging LACQ Shares for Holdings Shares so long as either (A) the U.S. holder is not a “five-percent transferee shareholder” (as defined in the Treasury regulations and computed taking into account direct, indirect and constructive ownership) of the transferee non-U.S. corporation (by total voting power or by total value) or (B) the U.S. holder is a “five-percent transferee shareholder” of the transferee non-U.S. corporation and enters into an agreement with the IRS to recognize gain under certain circumstances. All U.S. holders that will own 5% or more of either the total voting power or the total value of the outstanding shares of Holdings stock after the Merger (taking into account, for this purpose, ownership of Holdings Shares, and any shares of Holdings stock not acquired in connection with the Merger) may want to enter into a valid “gain recognition agreement” under applicable Treasury regulations and are strongly urged to consult their own tax advisors to determine the particular consequences to them of the Merger.

Whether the requirements described above are met will depend on facts existing at the effective time of the Merger, and the closing of the Merger is not conditioned upon the receipt of an opinion of counsel that the Merger will not result in gain being recognized by U.S. holders of LACQ securities under Section 367(a) of the Code (other than any such holder that would own, actually or constructively, 5% or more (by vote or value) of outstanding shares of Holdings stock immediately after the Merger). In addition, no assurance can be given that the IRS will not challenge that the relevant requirements under Section 367(a) of the Code and the Treasury regulations promulgated thereunder have been met with respect to the Merger, or that a court would not sustain such a challenge.

If, at the effective time of the Merger, any requirement for Section 367(a) of the Code not to impose gain on U.S. holders is not satisfied, then a U.S. holder of LACQ Shares would recognize gain (but not loss) in an amount equal to the excess, if any, of the fair market value as of the closing date of the Merger of Holdings Shares and the amount of cash received in the Merger over such holder’s tax basis in the LACQ Shares surrendered by such holder in the Merger. Any gain so recognized would generally be long-term capital gain if the U.S. holder had held the LACQ Shares for more than one year at the effective time of the Merger (or short-term capital gain otherwise). Long-term capital gain of non-corporate U.S. holders (including individuals) currently is eligible for preferential U.S. federal income tax rates. A U.S. holder’s holding period in the Holdings Shares received in the Merger, if any, would not include the holding period for the block of LACQ Shares surrendered in exchange therefor.

The remainder of this discussion assumes that the Merger will not result in gain being recognized by U.S. holders of LACQ securities under Section 367(a) of the Code (other than any such holder that would own, actually or constructively, 5% or more (by vote or value) of outstanding shares of Holdings stock immediately after the Merger).

U.S. holders exchanging LACQ securities for Holdings securities

For U.S. federal income tax purposes, the exchange in the Merger of LACQ Warrants for Holdings Warrants should be treated as a surrender of LACQ Warrants and the receipt of Holdings Warrants. This summary, including the discussion that follows, does not specifically address all of the consequences to U.S. holders who hold different blocks of LACQ Shares (generally, LACQ Shares purchased or acquired on different dates or at different prices) and holders of LACQ Shares who receive a mixture of cash and Holdings Shares in exchange for their LACQ Shares; such holders are urged to consult their tax advisors to determine how the applicable rules apply to them.

 

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U.S holders exchanging LACQ securities for Holdings securities

A U.S. holder generally should not recognize gain or loss if, pursuant to the Merger, the U.S. holder either (i) exchanges only LACQ Shares (but not LACQ Warrants) for Holdings Shares, (ii) exchanges LACQ Warrants for Holdings Warrants, or (iii) both exchanges LACQ Shares for Holdings Shares and exchanges its LACQ Warrants for Holdings Warrants.

The aggregate tax basis of the Holdings Shares received by a U.S. holder in the Merger should be equal to the aggregate adjusted tax basis of the LACQ Shares surrendered in exchange therefor. The tax basis in a Holdings Warrant received by a U.S. holder in the Merger should be equal to the adjusted tax basis of the LACQ Warrant exchanged therefor.

The holding period of the Holdings Shares and warrants received by a U.S. holder in the Merger should include the period during which the LACQ Shares and warrants exchanged therefor were held by such U.S. holder.

U.S. holders redeeming LACQ Shares for cash and not receiving any other consideration in the Transactions

The treatment for U.S. federal income tax purposes of a U.S. holder receiving cash for LACQ Shares will depend on whether the Transaction qualifies as a sale of such shares or whether the U.S. holder will be treated as having received a corporate distribution. Whether the U.S. holder’s receipt of cash for LACQ Shares qualifies as a sale will depend largely on the total number of LACQ Shares treated as held by the U.S. holder (including any shares constructively owned by the U.S. holder as a result of, among other things, owning warrants) relative to all of the LACQ Shares both before and after the redemption, taking into account other transactions occurring in connection with the redemption (including transactions pursuant to the Merger Agreement). The redemption of shares generally will be treated as a sale of the shares (rather than as a corporate distribution) if the redemption is “substantially disproportionate” with respect to the U.S. holder, (ii) results in a “complete termination” of the U.S. holder’s interest in LACQ or (iii) is “not essentially equivalent to a dividend” with respect to the U.S. holder. These tests are explained more fully below.

In determining whether any of the foregoing tests are satisfied, a U.S. holder takes into account LACQ Shares actually and constructively owned by the U.S. holder. A U.S. holder may constructively own LACQ Shares owned by certain related individuals and entities in which the U.S. holder has an interest or that have an interest in such U.S. holder, as well as any LACQ Shares that the U.S. holder has a right to acquire by exercise of an option, which generally would include LACQ Shares that could be acquired pursuant to the exercise of LACQ Warrants. First, to meet the substantially disproportionate test, the percentage of LACQ’s outstanding voting stock actually and constructively owned by the U.S. holder immediately following the redemption of LACQ Shares must, among other requirements, be less than 80% of the percentage of LACQ’s outstanding voting stock actually and constructively owned by the U.S. holder immediately before the redemption. Second, a U.S. holder’s interest in LACQ will completely terminate if either (i) all the LACQ Shares actually and constructively owned by the U.S. holder are redeemed, or (ii)(x) all the LACQ Shares actually owned by the U.S. holder are redeemed, (y) the U.S. holder does not constructively own any other LACQ shares, and (z) the U.S. holder is eligible to waive, and effectively waives in accordance with specific rules, the attribution of LACQ shares owned by certain family members. Third, the redemption of the LACQ Shares will not be essentially equivalent to a dividend if a U.S. holder’s redemption results in a “meaningful reduction” of the U.S. holder’s proportionate interest in LACQ. Whether the redemption will result in such a “meaningful reduction” will depend on the particular facts and circumstances. However, the IRS has indicated in a published ruling that even a small reduction in the proportionate interest in a publicly held corporation of a small minority stockholder who exercises no control over, and does not participate in, management or corporate affairs may constitute such a “meaningful reduction.” A U.S. holder should consult with its tax advisors as to the tax consequences of a redemption of its LACQ Shares.

If the redemption qualifies as a sale of shares by the U.S. holder under Section 302 of the Code, the U.S. holder generally will be required to recognize gain or loss in an amount equal to the difference, if any, between

 

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the amount of cash received and the tax basis of the LACQ Shares redeemed. Gain or loss must be calculated separately for each block of LACQ Shares, if blocks of LACQ Shares were acquired at different times for different prices. Such gain or loss will be treated as capital gain or loss, and will be treated long-term capital gain or loss if the shares were held by the U.S. holder for more than one year (or short-term capital gain or loss otherwise). A U.S. holder’s tax basis in such holder’s LACQ Shares generally will equal the cost of such shares. A U.S. holder that purchased LACQ Units would have been required to allocate the cost of the LACQ Units between the LACQ Shares and the LACQ Warrants comprising the LACQ Units based on their relative fair market values at the time of the purchase.

If the redemption does not qualify as a sale of stock under Section 302 of the Code, then the U.S. holder will be treated as receiving a corporate distribution. Such distribution generally will constitute a dividend for U.S. federal income tax purposes to the extent paid from current or accumulated earnings and profits of LACQ, as determined under U.S. federal income tax principles. Distributions in excess of current and accumulated earnings and profits of LACQ will constitute a return of capital that will be applied against and reduce (but not below zero) the U.S. holder’s adjusted tax basis in such U.S. holder’s LACQ Shares. Any remaining excess will be treated as gain realized on the sale or other disposition of the LACQ Shares.

U.S. holders redeeming LACQ Shares for cash and exchanging LACQ Warrants for Holdings Warrants

A U.S. holder receiving cash for LACQ Shares whose LACQ Warrants are exchanged for Holdings Warrants generally will not recognize gain or loss with respect to the warrant conversion portion of the transaction.

If the exercise of redemption rights by U.S. holders with respect to LACQ Shares is treated as a separate transaction from the reorganization in connection with the Merger, a U.S. holder that exercises redemption rights and elects to receive cash in exchange for its LACQ Shares should, with respect to such redemption, generally be treated as recognizing gain or loss (or be treated as receiving a corporate distribution) in a manner similar to that described above in the section titled “U.S. holders redeeming LACQ Shares for cash and not receiving any other consideration in the Transactions.”

If a U.S. holder who exercises redemption rights and elects to receive cash in exchange for its LACQ Shares is treated as having received such cash in the reorganization, then such U.S. holder will generally recognize gain (but not loss) on such exchange equal to the difference between the amount of cash received and such U.S. holder’s adjusted basis in the LACQ Shares exchanged therefor.

The discussion in the preceding paragraphs in this section assumes that a U.S. holder receiving cash for LACQ Shares and whose LACQ Warrants are exchanged for Holdings Warrants will be treated (where such exchanges are not considered to be made in connection with a reorganization) as separate exchanges of LACQ Shares for cash received in the redemption and of LACQ Warrants for Holdings Warrants received in the conversion. It also assumes that if a U.S. holder receiving cash for LACQ Shares and whose LACQ Warrants are exchanged for Holdings Warrants is treated as having undertaken those transactions as part of a reorganization, the terms of the transactions specifying that cash received in the redemption will be received in exchange for LACQ Shares and that the Holdings Warrants received in the exchange will be received in exchange for LACQ Warrants will be considered economically reasonable for applicable tax purposes.

The character of any gain recognized and the tax basis and holding period of an exchange of LACQ Warrants for Holdings Warrants will depend on a number of factors, including whether the U.S. holder holds different blocks of LACQ Shares, whether the redemption is treated as a separate transaction from the Merger (or as part of a reorganization in connection with the Merger) for U.S. federal income tax purposes, whether the redemption of LACQ Shares and conversion of LACQ Warrants have the effect of the distribution of a dividend for applicable U.S. federal income tax purposes, or whether the redemption is “substantially disproportionate” with respect to the U.S. holder or is “not essentially equivalent to a dividend” under the applicable U.S. federal

 

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income tax rules more fully described below. U.S. holders are urged to consult their tax advisors regarding the U.S. federal income tax consequences if they intend to redeem their LACQ Shares but exchange LACQ Warrants.

U.S. Federal Income Tax Considerations to Non-U.S. Holders

A non-U.S. holder will generally be treated in the same manner as a U.S. holder for U.S. federal income tax purposes except that any such non-U.S. holder who would otherwise recognize gain (or loss if the Merger fails to qualify as a reorganization) under the rules described above for U.S. holders will not be subject to U.S. federal income tax on the exchange of such non-U.S. holder’s LACQ Shares or LACQ Warrants unless (i) the gain (or loss) is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States, and if required by an applicable tax treaty, is attributable to a permanent establishment maintained by the non-U.S. holder within the United States or (ii) the non-U.S. holder is a non-resident alien individual present in the United States for 183 days or more during the taxable year in which the Merger takes place and certain other requirements are met.

If a non-U.S. holder receives cash for LACQ Shares, and the redemption is treated as a corporate distribution (rather than a sale of stock under Section 302 of the Code), the non-U.S. holder will be subject to a 30% withholding tax (unless otherwise reduced by an applicable income tax treaty) on dividends to the extent the distribution is paid from current or accumulated earnings and profits, as determined under U.S. federal income tax principles.

U.S. Federal Income Tax Considerations of the Ownership and Disposition of Holdings Shares and Holdings Warrants

U.S. Holders

Distributions on Holdings Shares

Subject to the discussion below under “Passive foreign investment company status,” the gross amount of any distribution on Holdings Shares generally will be includible in a U.S. holder’s gross income as dividend income on the date of receipt, but only to the extent the distribution is paid out of Holdings’ current or accumulated earnings and profits (as determined under U.S. federal income tax principles). Any such dividends will not be eligible for the dividends received deduction allowed to corporations in respect of dividends received from other U.S. corporations. To the extent that the amount of the distribution exceeds Holdings’ current and accumulated earnings and profits (as determined under U.S. federal income tax principles), such excess amount will be treated first as a non-taxable return of a U.S. holder’s tax basis in the Holdings Shares, and then to the extent such excess amount exceeds such holder’s tax basis in such Holding Shares, as capital gain. Holdings currently does not, and it does not intend to, calculate its earnings and profits under U.S. federal income tax principles. Therefore, U.S. holders should expect that a distribution will generally be reported as a dividend even if that distribution would otherwise be treated as a non-taxable return of capital or as capital gain under the rules described above.

With respect to certain non-corporate U.S. holders, including individual U.S. holders, dividends may be taxed at the lower capital gain rates applicable to “qualified dividend income,” so long as certain holding period and at risk requirements are met, Holdings is not a passive foreign investment company (as discussed below) and Holdings is eligible for the benefit of the income tax treaty between the United States and Canada (the “Treaty”). U.S. holders should consult their tax advisors regarding the availability of the reduced tax rate on dividends with respect to distributions on Holdings Shares in light of their particular circumstances.

The amount of any distribution paid in foreign currency that will be included in the gross income of a U.S. holder will be the U.S. dollar value of the distribution payment based on the exchange rate in effect on the date such distribution is included in such holder’s income, whether or not the payment is converted into U.S. dollars

 

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at that time. The amount of any distribution of property other than cash will be the fair market value of such property on the date of distribution.

Any dividends paid by Holdings with respect to Holdings Shares will constitute foreign source income for foreign tax credit limitation purposes. If the dividends are taxed as qualified dividend income (as discussed above), the amount of the dividend taken into account for purposes of calculating the foreign tax credit limitation will, in general, be limited to the gross amount of the dividend, multiplied by the reduced tax rate applicable to qualified dividend income and divided by the highest tax rate normally applicable to dividends. The limitation on foreign taxes eligible for credit is calculated separately with respect to specific classes of income. Dividends paid by Holdings with respect to Holdings Shares will generally constitute “passive category income” for purposes of the foreign tax credit.

If Canadian withholding taxes apply to any dividends paid to a U.S. holder with respect to Holdings Shares, subject to certain conditions and limitations, such withholding taxes may be treated as foreign taxes eligible for credit against such holder’s U.S. federal income tax liability. Instead of claiming a credit, a U.S. holder may elect to deduct such taxes in computing taxable income, subject to applicable limitations. If a refund of the tax withheld is available under the applicable laws of Canada or under the Treaty, the amount of tax withheld that is refundable will not be eligible for such credit against a U.S. holder’s U.S. federal income tax liability (and will not be eligible for the deduction against such holder’s U.S. federal taxable income). The rules relating to the determination of the foreign tax credit are complex, and U.S. holders should consult their tax advisors regarding the availability of a foreign tax credit in their particular circumstances, including the effects of the Treaty.

Sale, exchange, redemption or other taxable disposition of Holdings Shares or Holdings Warrants

Subject to the discussion below under “Passive Foreign Investment Company Status,” a U.S. holder generally will recognize capital gain or loss on any sale, exchange, redemption or other taxable disposition of Holdings Shares or Holdings Warrants in an amount equal to the difference between (i) the amount realized on the disposition and (ii) such U.S. holder’s adjusted tax basis in such Holding Shares or such Holdings Warrants. Any gain or loss recognized by a U.S. holder will be long-term capital gain or loss if the holder’s holding period in such shares or such warrants exceeds one year at the time of the disposition. Long-term capital gains of non-corporate U.S. holders generally will be subject to U.S. federal income tax at reduced tax rates. The deductibility of capital losses is subject to limitations.

Any gain or loss on the sale or other disposition of Holdings Shares or warrants generally will be treated as U.S.-source income or loss. Accordingly, in the event any Canadian tax (including withholding tax) is imposed upon such sale or other disposition, you may not be able to utilize foreign tax credits unless such holder has foreign source income or gain in the same category from other sources.

Exercise or lapse of a Holdings Warrant

Subject to the PFIC rules discussed below, a U.S. holder generally will not recognize gain or loss upon the acquisition of a Holdings Share on the exercise of a Holdings Warrant for cash. A U.S. holder’s tax basis in a Holdings Share received upon exercise of the Holdings Warrant generally will be an amount equal to the sum of the U.S. holder’s tax basis in the Holdings Warrant exchanged therefor and the exercise price. The U.S. holder’s holding period for a Holdings Share received upon exercise of the Holdings Warrant will begin on the date following the date of exercise (or possibly the date of exercise) of the Holdings Warrant and will not include the period during which the U.S. holder held the Holdings Warrant. If a Holdings Warrant is allowed to lapse unexercised, a U.S. holder generally will recognize a capital loss equal to such holder’s tax basis in the Holdings Warrant.

Passive foreign investment company status

The treatment of U.S. holders of the Holdings Shares could be materially different from that described above, if Holdings is treated as a “passive foreign investment company” for U.S. federal income tax purposes. A

 

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non-U.S. entity treated as a corporation for U.S. federal income tax purposes generally will be a PFIC for U.S. federal income tax purposes for any taxable year if either:

 

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at least 75% of its gross income for such year is passive income (such as interest income); or

 

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at least 50% of the value of its assets (based on an average of the quarterly values of the assets) during such year is attributable to assets that produce passive income or are held for the production of passive income.

For this purpose, Holdings will be treated as owning its proportionate share of the assets and earning its proportionate share of the income of any other entity treated as a corporation for U.S. federal income tax purposes in which Holdings own, directly or indirectly, 25% or more (by value) of the stock.

Under the PFIC rules, if Holdings were considered a PFIC at any time that a U.S. holder owns Holdings Shares, Holdings would continue to be treated as a PFIC with respect to such investment unless (i) it ceased to be a PFIC and (ii) the U.S. holder made a “deemed sale” election under the PFIC rules. If such election is made, a U.S. holder will be deemed to have sold its Holdings Shares at their fair market value on the last day of the last taxable year in which Holdings is classified as a PFIC, and any gain from such deemed sale would be subject to the consequences described below. After the deemed sale election, the Holdings Shares with respect to which the deemed sale election was made will not be treated as shares in a PFIC unless Holdings subsequently becomes a PFIC.

Based on the current and anticipated composition of the income, assets and operations of Holdings and its subsidiaries, it is not expected that Holdings will be a PFIC for U.S. federal income tax purposes for the taxable year the includes the Merger or for future taxable years. However, this is a factual determination that depends on, among other things, the composition of Holdings’ income and assets, and the market value of its shares and assets, including the composition of income and assets and the market value of shares and assets of its subsidiaries, from time to time, and thus the determination can only be made annually after the close of each taxable year. In addition, the application of the PFIC rules is subject to certain ambiguities and, moreover, proposed U.S. Treasury Regulations governing PFICs, if enacted, may further change the rules for determining PFIC status. Therefore, no assurance can be given that Holdings will not be classified as a PFIC for the current taxable year or any future taxable year.

If Holdings is considered a PFIC at any time that a U.S. holder holds Holdings Shares, any gain recognized by the U.S. holder on a sale or other disposition of the Holdings Shares, as well as the amount of any “excess distribution” (defined below) received by the U.S. holder, generally would be allocated ratably over the U.S. holder’s holding period for the Holdings Shares. The amounts allocated to the taxable year of the sale or other disposition (or the taxable year of receipt, in the case of an excess distribution) and to any year before Holdings became a PFIC would be taxed as ordinary income. The amount allocated to each other taxable year would be subject to tax at the highest rate in effect for individuals or corporations, as appropriate, for that taxable year, and an interest charge would be imposed. For the purposes of these rules, an excess distribution is the amount by which any distribution received by a U.S. holder on Holdings Shares exceeds 125% of the average of the annual distributions on the Holdings Shares received during the preceding three years or the U.S. holder’s holding period, whichever is shorter. In addition, if Holdings is a PFIC and any of its subsidiaries is also a PFIC, a U.S. holder may also be subject to the adverse tax consequences described above with respect to any gain or “excess distribution” realized or deemed realized in respect of such subsidiary PFIC. Certain elections may be available that would result in alternative treatments (such as mark-to-market treatment or treatment as a qualified electing fund (“QEF”)) of Holdings Shares if Holdings is considered a PFIC. However, Holdings cannot provide any assurances that it will assist holders of Holdings Shares in determining whether Holdings or any of its subsidiaries is a PFIC for any taxable year, and if Holdings were a PFIC, it does not expect to furnish holders of the Holdings Shares with the tax information necessary to enable a U.S. holder to make a QEF election. In addition, an election for mark-to-market treatment is unlikely to be available to mitigate any adverse tax consequences with respect to a subsidiary that is also a PFIC. If Holdings is considered a PFIC, a U.S. holder will

 

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also be subject to annual information reporting requirements. U.S. holders should consult their tax advisors about the potential application of the PFIC rules to an investment in Holdings Shares and the potential consequences related thereto.

Characterization of Holdings as a “controlled foreign corporation” for U.S. federal income tax purposes

Special rules would apply if Holdings is treated as a “controlled foreign corporation” for U.S. federal income tax purposes. Holdings will generally be treated as a CFC if more than 50% of its outstanding shares, measured by reference to voting power or value, are owned (directly, indirectly or by attribution) by “United States shareholders.” For this purpose, a “United States shareholder” is any U.S. person that owns directly, indirectly or by attribution, 10% or more of the total voting power of stock of a foreign corporation or 10% or more of the total value of shares of all classes of stock of such foreign corporation. If Holdings were to be treated as a CFC, each United States shareholder with respect to Holdings may be subject to U.S. federal income taxation at ordinary income tax rates on all or a portion of Holdings’ undistributed earnings and profits attributable to certain categories of passive income and certain other income described in Subpart F of the Code, and may also be subject to U.S. federal income taxation at ordinary income tax rates on any gain realized on a sale of Holdings Shares, to the extent of the current and accumulated earnings and profits of Holdings attributable to such shares.

In addition, each person who is a United States shareholder must include in gross income for U.S. federal income tax purposes such United States shareholder’s global intangible low-taxed income (“GILTI”) for the taxable year. In general, GILTI with respect to a United States shareholder is the excess (if any) of its “net CFC tested income” (as described below) over its “net deemed tangible income return” (generally representing a 10% deemed return on tangible business assets). A United States shareholder’s “net CFC tested income” is generally equal to the excess of its aggregate pro rata share of the “tested income” of each CFC with respect to which it is a United States shareholder over its aggregate pro rata share of the “tested loss” of each such CFC. The “tested income” or “tested loss” of a CFC is generally determined by subtracting from the CFC’s gross income (excluding any Subpart F income and certain other amounts) the amount of any deductions properly allocable to such gross income. If Holdings or any of its non-U.S. subsidiaries is a CFC, any United States shareholder with respect to Holdings who owns Holdings Shares directly, or indirectly through non-U.S. entities, on the last day in such company’s taxable year for which it is a CFC must take into account its pro rata share (based on direct or indirect ownership of value) of such company’s “tested income” or “tested loss” for purposes of determining the amount of GILTI that such United States shareholder must include in gross income.

If Holdings or one of its non-U.S. subsidiaries is a CFC, the rules relating to PFICs generally would not apply to a United States shareholder of such CFC.

The CFC rules are complex and U.S. holders that are, or may be, a United States shareholder with respect to Holdings are urged to consult their own tax advisors regarding the possible application of the CFC rules to them in their particular circumstances.

Additional reporting requirements

Certain U.S. holders may be required to report information relating to an interest in Holdings Shares, subject to certain exceptions (including an exception for Holdings Shares held in accounts maintained by U.S. financial institutions). Penalties can apply if a U.S. holder fails to satisfy such reporting requirements, and the statute of limitations on the assessment and collection of all U.S. federal income taxes of such U.S. holder for the related tax year may not close before the date which is three years after the date on which such information is required to be reported. U.S. holders should consult their tax advisors regarding the effect, if any, of these rules on the ownership and disposition of Holdings Shares.

 

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Non-U.S. Holders

In general, a non-U.S. holder of Holdings Shares or Holdings Warrants will not be subject to U.S. federal income tax or, subject to the discussion below under “Information Reporting and Backup Withholding,” U.S. federal withholding tax on any dividends received on Holdings Shares or any gain recognized on a sale or other disposition of Holdings Shares (including any distribution to the extent it exceeds the non-U.S. holder’s tax basis in such Holding Shares) or Holdings Warrants unless:

 

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the dividend or gain is effectively connected with the non-U.S. holder’s conduct of a trade or business within the United States and, if required by an applicable tax treaty, is attributable to a permanent establishment maintained by the non-U.S. holder within the United States; or

 

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in the case of gain only, the non-U.S. holder is a nonresident alien individual present in the United States for 183 days or more during the taxable year of the sale or disposition, and certain other requirements are met.

A non-U.S. holder that is a corporation also may be subject to a branch profits tax at a rate of 30% (or such lower rate specified by an applicable tax treaty) with respect to such dividends or gains on such non-U.S. holder’s effectively connected earnings and profits for the taxable year, as adjusted for certain items. Non-U.S. holders should consult their tax advisors regarding any applicable tax treaties that may provide for different rules.

Information Reporting and Backup Withholding

In general, information reporting requirements may apply to dividends received by U.S. holders of Holdings Shares, and the proceeds received on the sale, exchange or redemption of Holdings Shares or Holdings Warrants effected within the United States (and, in certain cases, outside the United States), in each case other than U.S. holders that are exempt recipients (such as corporations). Backup withholding (currently at a rate of 24%) may apply to such amounts if the U.S. holder fails to provide an accurate taxpayer identification number (generally on an IRS Form W-9 provided to the paying agent of the U.S. holder’s broker) or is otherwise subject to backup withholding. U.S. holders should consult their tax advisors regarding the application of the U.S. information reporting and backup withholding rules.

Information returns may be filed with the IRS in connection with, and non-U.S. holders may be subject to backup withholding on, dividends on Holdings Shares or proceeds from the sale, exchange or redemption of Holdings Shares or Holdings Warrants, in each case, received through certain U.S.-related financial intermediaries, unless the non-U.S. holder furnishes to the applicable withholding agent the required certification as to its non-U.S. status, such as by providing a valid IRS Form W-8BEN, IRS Form W-8BEN-E or IRS Form W-8ECI, as applicable, or the non-U.S. holder otherwise establishes an exemption, and otherwise complies with the applicable requirements of the backup withholding rules.

Backup withholding is not an additional tax. Amounts withheld as backup withholding may be credited against a holder’s U.S. federal income tax liability, and a holder may obtain a refund of any excess amounts withheld under the backup withholding rules by timely filing the appropriate claim for a refund with the IRS and furnishing any required information in a timely manner.

This discussion is intended to provide only a summary of certain U.S. federal income tax consequences of the Merger to holders of LACQ Shares and LACQ Warrants, or, after the Merger, holders of Holdings Shares and Holdings Warrants. It does not address tax consequences that may vary with, or are contingent on, your individual circumstances. In addition, the discussion does not address any non-income tax or any non-U.S. or U.S. state or local tax consequences of the Merger. Accordingly, you are strongly urged to consult with your tax advisor to determine the particular U.S. federal, state, local or non-U.S. income or other tax consequences to you of the Merger.

 

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Anticipated Accounting Treatment

The Transactions will be accounted for in accordance with IFRS. LACQ will be treated as the acquired company for financial reporting purposes. No goodwill or other intangible assets will be recorded. The net assets of LACQ were recognized at fair value (which was consistent with carrying value), with no goodwill or other intangible assets recorded. All direct costs of the Transactions will be expensed. Holdings has been determined to be the accounting acquirer based on evaluation of the following facts and circumstances:

 

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Holdings’ shareholders will have the largest ownership interest and voting interest in the combined entity under the no redemptions and maximum redemptions scenarios (in each case, based on current estimates of transaction expenses) with approximately 41% and 70% ownership voting interest, respectively;

 

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the combined company’s board of directors is expected to initially consist of nine directors; Catalyst will have the ability to appoint five directors and is expected to control, and continue to control the combined company’s board of directors until it sells more than 50% of the common shares held by it at Closing; and

 

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Holdings is the larger entity, in terms of both revenues and total assets.

Other factors were considered, including composition of management, purpose and intent of the Transactions and the location of the combined company’s headquarters, noting that the preponderance of evidence as described above is indicative that the Holdings is the accounting acquirer in the Transactions.

Regulatory Matters

For a description of certain regulatory matters and consents required in connection with the Transactions, please see the information set forth in “Regulatory Approvals Required for the Merger.”

Required Vote

The approval of the business combination proposal will require the affirmative vote of the holders of a majority of the then outstanding LACQ Shares entitled to vote at the meeting. Additionally, the business combination will not be consummated if LACQ has less than US$5,000,001 of net tangible assets after taking into account the holders of public shares that properly demanded that LACQ redeem their public shares for their pro rata share of the Trust Account. Further, the Merger Agreement provides that Holdings and Merger Sub are not required to consummate the Transactions if immediately prior to the consummation of the Transactions, the amount of cash in the Trust Account is less than the greater of (i) US$15,000,000 and (ii) LACQ’s transaction expenses. If Holdings does not waive its termination right and LACQ has less than the required amount in trust, the Transactions will not be consummated.

The approval of the business combination proposal by LACQ stockholders is a condition to the consummation of the business combination.

THE LACQ BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT THE LACQ STOCKHOLDERS VOTE “FOR” THE APPROVAL OF THE BUSINESS COMBINATION PROPOSAL.

 

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THE MERGER AGREEMENT

For a discussion of the merger structure and merger consideration provisions of the Merger Agreement, see the section entitled “The Business Combination Proposal.” Such discussion and the following summary of other material provisions of the Merger Agreement is qualified by reference to the complete text of the Merger Agreement, a copy of which is attached as Annex A to this proxy statement/prospectus. All stockholders are encouraged to read the Merger Agreement in its entirety for a more complete description of the terms and conditions of the business combination.

Closing and Effective Time of the Transactions

The closing of the Transactions will take place on the date which is three business days following the satisfaction of the conditions set forth in the Merger Agreement and summarized below under the subsection entitled “—Conditions to Closing of the Transactions,” unless LACQ and Holdings agree in writing to another time or unless the Merger Agreement is terminated pursuant to its terms. The Transactions are expected to be consummated promptly after the special meeting of LACQ’s stockholders described in this proxy statement/prospectus.

Representations and Warranties

The Merger Agreement contains representations and warranties of LACQ relating, among other things, to:

 

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the authorization, delivery and enforceability of the Merger Agreement;

 

•

governmental authorities and consents;

 

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corporate organization;

 

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capitalization;

 

•

material contracts;

 

•

business activities;

 

•

no conflict;

 

•

litigation and proceedings;

 

•

compliance with laws;

 

•

internal controls;

 

•

NASDAQ listing;

 

•

financial statements;

 

•

absence of undisclosed liabilities;

 

•

absence of certain changes;

 

•

taxes;

 

•

employee matters; benefits;

 

•

brokers’ fees;

 

•

anti-corruption compliance;

 

•

affiliate transactions;

 

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Investment Company Act; JOBS Act;

 

•

indebtedness;

 

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SEC filings;

 

•

Trust Account;

 

•

title to assets;

 

•

this proxy statement/prospectus;

 

•

the Form F-4;

 

•

absence of outside reliance; and

 

•

absence of additional representations or warranties.

The Merger Agreement contains representations and warranties of Holdings relating, among other things, to:

 

•

the authorization, delivery and enforceability of the Merger Agreement;

 

•

governmental authorities and consents;

 

•

proper corporate organization;

 

•

capitalization;

 

•

subsidiaries;

 

•

business activities;

 

•

no conflict;

 

•

contracts;

 

•

legal compliance;

 

•

financial statements;

 

•

absence of undisclosed liabilities;

 

•

absence of certain changes;

 

•

litigation and proceedings;

 

•

taxes;

 

•

intellectual property;

 

•

real and personal property;

 

•

licenses, permits and authorizations;

 

•

insurance;

 

•

environmental matters;

 

•

employment matters;

 

•

collective bargaining agreements;

 

•

pensions and employee benefits;

 

•

brokers’ fees;

 

•

anti-corruption compliance;

 

•

affiliate transactions;

 

•

certain operational matters;

 

•

privacy and security;

 

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this proxy statement/prospectus;

 

•

the Form F-4;

 

•

relationship with First Nations persons and entities; and

 

•

absence of additional representations or warranties.

Covenants

The parties have each agreed to use reasonable best efforts to obtain any required consents and approvals and to take such other actions as may reasonably be necessary to consummate the Transactions. LACQ and Holdings have each also agreed to continue to operate their respective businesses in the ordinary course and substantially in accordance with past practice through the earlier of the closing of the Transactions or the valid termination of the Merger Agreement pursuant to its terms. LACQ and Holdings have agreed that, unless otherwise required or permitted under the Merger Agreement, and subject to certain disclosed exceptions, neither Holdings nor its subsidiaries will take the following actions during the interim period from the date of the Merger Agreement through the earlier of the closing of the Transactions or the valid termination of the merger Agreement pursuant to its terms, among others, without the prior written consent of LACQ (which consent will not be unreasonably conditioned, withheld, delayed or denied):

 

•

change or amend its or any of its subsidiaries’ articles of incorporation, bylaws or other organizational documents;

 

•

other than as permitted under Section 7.2 of the Merger Agreement, make, declare or pay any dividend or distribution in respect of Holdings’ or any of its subsidiaries’ capital stock;

 

•

split, combine, reclassify or otherwise amend any terms of Holdings’ or any of its subsidiaries’ capital stock;

 

•

purchase, repurchase, redeem or otherwise acquire any issued and outstanding share capital, outstanding shares of capital stock, membership interests or other equity securities of Holdings or its subsidiaries;

 

•

materially and/or adversely modify, accelerate, waive or terminate any Material Contract (as defined in the Merger Agreement), enter into or materially and/or adversely modify, accelerate, waiver or terminate any contract with a term of longer than twelve months that cannot be terminated without material penalty upon notice of ninety days or less or that would be a Material Contract;

 

•

enter into or modify, accelerate, waive or terminate any First Nations Contract (as defined in the Merger Agreement);

 

•

enter into or materially and/or adversely modify, accelerate, waive or terminate any contract relating to an Affiliate Transaction (as defined in the Merger Agreement);

 

•

except in the ordinary course of business, sell, assign, transfer, convey, lease, license, abandon or otherwise dispose of any material assets or properties;

 

•

except as otherwise required by law, any collective bargaining agreement or any existing employee benefit plan, (i) take any action with respect to the grant or increase of any severance, retention, change in control or termination or similar pay; (ii) make any material change in the management structure of Holdings or any of its subsidiaries, including the promoting or hiring of employees or officers or the termination of existing employees, other than termination of employees for “cause” and hiring or promotions of non-officer employees in the ordinary course of business; (iii) terminate, adopt, supplement, renew, enter into or materially amend any employee benefit plan, other than in the ordinary course of business or as required by any collective bargaining agreement or contract as in existence on the date of the Merger Agreement; (iv) increase the compensation, bonus opportunity or other remuneration benefits of any of employees, independent contractors or directors of Holdings or

 

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its subsidiaries (other than as disclosed pursuant to the Merger Agreement or increases in the ordinary course of business to any such individuals who are not directors or officers and whose annual compensation does not exceed C$200,000 pursuant to a bona fide arms’ length agreement in the ordinary course of business, not to exceed C$200,000 per individual or C$1,000,000 in the aggregate); (v) establish any trust or make any deposits or contributions of cash or other property to or take any other action to secure the payment of any compensation or benefits, other than in the ordinary course consistent with past practice; or (vi) take any action to accelerate the time of payment or vesting of any compensation or benefit;

 

•

directly or indirectly acquire by merger or consolidation with, or merge or consolidate with, or purchase substantially all of the assets of, any corporation, partnership, association or other business organization or division thereof;

 

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make, enter into, forgive, renew or amend in any respect any loans or advances to any person in excess of C$200,000, except for advances to employees or officers of Holdings or any of its subsidiaries for expenses incurred in the ordinary course of business and repaid prior to the Closing;

 

•

except in the ordinary course of business or as required by applicable law or IFRS, (i) make a material change in any tax or accounting methods, (ii) make, revoke or amend any material tax election, (iii) enter into any material tax closing agreement, (iv) settle or compromise any material tax liability of Holdings or any of its subsidiaries, (v) make or surrender any right to claim a material refund of taxes, (vi) consent to any waiver or extension of the statute of limitations applicable to any material taxes or any material tax return or (vii) file any amended material tax return;

 

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(i) incur or assume any indebtedness or guarantee any indebtedness of another person, issue or sell any debt securities or warrants or other rights to acquire any debt securities of Holdings or any subsidiary or guaranty any debt securities of another person, other than any indebtedness or guarantee (x) incurred in the ordinary course of business in an aggregate amount not to exceed C$1,000,000, (y) incurred under and pursuant to Gateway’s existing credit facilities or (z) incurred between Holdings and any of its wholly-owned subsidiaries or between any of such wholly-owned subsidiaries, or (ii) amend, modify, terminate or seek any waiver of any of the terms and conditions under any Material Debt Contract (as defined in the Merger Agreement) which would result in Holdings’ ability to make permitted distribution pursuant to Section 7.2 of the Merger Agreement which otherwise would not have been permitted under Section 7.2 of the Merger Agreement without such amendment, modification, termination or waiver;

 

•

(i) discharge any secured or unsecured obligation or liability (whether accrued, absolute, contingent or otherwise) which individually or in the aggregate exceeds C$1,000,000, except as otherwise contemplated by the Merger Agreement or pursuant to any Material Debt Contract, or (ii) fail to pay, discharge, amend the terms of (including to expand or reduce flexibility under any restrictive payments basket or similar limitations), engage in any refinancing of or satisfy any obligation under any of Holdings’ or its subsidiaries’ existing debt facilities;

 

•

authorize for issuance, issue, transfer, grant, pledge, encumber, subject to any lien, sell or deliver any Holdings Share, other equity securities, equity securities exercisable for or convertible into Holdings Shares or call, subscription rights or other rights of any kind to acquire additional equity securities;

 

•

form or cause to be formed any new subsidiary that is not a wholly-owned subsidiary;

 

•

other than claims covered by insurance, waive, release, assign, settle, compromise or otherwise resolve any investigation, claim (excluding customer claims in the ordinary course of business that have not resulted in litigation), action, litigation or other legal proceedings, except where such waivers, releases, assignments, settlements or compromises involve only the payment of monetary damages (as well as related non-substantive incidental provisions and other remedies or obligations that are not material in the context of the applicable resolution) in any amount not in excess of C$1,000,000 individually, or C$5,000,000 in the aggregate;

 

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(i) grant or acquire, agree to grant to or acquire from any person a license or sublicense of any material intellectual property of Holdings or any of its subsidiaries or of the business of Holdings or any of its subsidiaries, (ii) sell, transfer, dispose of, abandon, fail to maintain or permit to lapse any rights to any such material intellectual property or (iii) disclose any trade secrets to any third party that is not bound by a legally binding confidentiality obligation of customary duration with respect thereto;

 

•

other than in the ordinary course of business, enter into, extend, amend or terminate any collective bargaining agreement;

 

•

except as expressly contemplated by the Merger Agreement, change any method of accounting, accounting practice or cash management method used by Holdings or its subsidiaries or change the certified public accountants currently engaged by Holdings;

 

•

materially and adversely amend or modify or allow to lapse or consent to the termination of any material permit, including any gaming permits;

 

•

permit the lapse of any existing policy of insurance relating to the business or assets of Holdings and its subsidiaries unless such insurance policy is replaced with a policy that provides substantially similar coverage;

 

•

take, agree to take, or fail to take, any action that could reasonably be expected to prevent the Merger from qualifying for the Intended Tax Treatment (as defined in the Merger Agreement);

 

•

notwithstanding anything to the contrary in the Merger Agreement, reserve at least 50% of the Trust Account Amount (as defined in the Merger Agreement) for continuing use in the gaming business operated by the Holdings and its subsidiaries; and

 

•

enter into any agreement, or otherwise become obligated, to do any of the foregoing.

The Merger Agreement also contains additional covenants of the parties, including among other things, covenants providing for:

 

•

cooperation with respect to any debt or equity financing efforts of Holdings in connection with the Transactions;

 

•

the parties to prepare and file this proxy statement/prospectus and to solicit proxies from the LACQ stockholders to vote on the proposals that will be presented for consideration at the special meeting;

 

•

customary indemnification of, and provision of insurance with respect to, former and current officers and LACQ Board; and

 

•

each party to use commercially reasonable efforts to cause the Merger to qualify for the Intended Tax Treatment (as defined in the Merger Agreement).

Conditions to Closing of the Transactions

General Conditions

Consummation of the Transactions is conditioned on the approval of the business combination proposal as described in this proxy statement/prospectus.

In addition, the consummation of the Transactions contemplated by the Merger Agreement is conditioned upon, among other things:

 

•

the approval of the Transactions by the Holdings stockholders having been obtained;

 

•

the approval of the Plan of Arrangement by the Supreme Court of British Columbia;

 

•

the termination or expiration of the waiting period under any competition laws applicable to the Merger, none of which are currently expected to apply;

 

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each of the permits, regulatory approvals and other third party consents or approvals set forth in the Merger Agreement, in each such case, having been obtained, procured or made, as applicable, without the imposition of a condition or requirement that would or would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, assets, properties, results of operations or financial condition of the Company and its subsidiaries, taken as a whole;

 

•

no order, judgment, injunction, decree, writ, stipulation, determination or award, in each case, entered by or with any governmental authority, or statute, rule or regulation being in effect and enjoining or the consummation of the Transactions;

 

•

the Form F-4 having become effective, no stop order having been issued by the SEC that remains in effect with respect to the Form F-4 and no proceeding seeking such a stop order having been threatened or initiated by the SEC which remains pending;

 

•

the delivery by each party to the other party of a certificate with respect to (i) the truth and accuracy of such party’s representations and warranties as of execution of the Merger Agreement and as of the Closing, (ii) the performance by such party of covenants contained in the Merger Agreement required to be complied with by such party prior to the closing and (iii) no occurrence of any material adverse effect with respect to such party since the date of the Merger Agreement through the date of the closing;

 

•

the approval for listing by the NYSE of the shares and warrants of the Company to be issued in connection with the business combination having been obtained; and

 

•

the Registration Rights Agreement, the Shareholders’ Agreement, the Voting and Support Agreement, the Transaction Support Agreement, the Company Loan Consent Letter, the Strategic Investor Subscription Agreement, the articles of incorporation and bylaws of the Company and such other agreements entered into in accordance with or pursuant to the terms of the Merger Agreement having been duly executed by the parties thereto and remaining in full force and effect.

LACQ’s Conditions to Closing

The obligations of LACQ to consummate the Transactions contemplated by the Merger Agreement also are conditioned upon, among other things:

 

•

the accuracy of the representations and warranties of the Company (subject to customary bring-down standards);

 

•

the covenants of the Company having been performed in all material respects;

 

•

the approval of the Transactions by the Merger Sub stockholders having been obtained;

 

•

the absence of any material adverse effect with respect to the Company since the date of the Merger Agreement through the date of the closing;

 

•

the termination of the Legacy Shareholders’ Agreement;

 

•

the amount of Casino Cash as of 11:59 p.m. (Vancouver time) on the day that is two business days immediately prior to the date of the Closing has been determined in accordance with the Merger Agreement, and the amount of Casino Cash so determined is not less than the amount of Casino Cash that the Company’s businesses are required to have pursuant to applicable law;

 

•

the articles of incorporation and bylaws of Holdings having been amended and restated in their entirety in substantially the forms attached to the Merger Agreement; and

 

•

no more than 5% of Holdings stockholders having exercised dissent rights in connection with the Plan of Arrangement.

 

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The Company’s Conditions to Closing

The obligations of Holdings and Merger Sub to consummate the Transactions contemplated by the Merger Agreement also are conditioned upon, among other things:

 

•

the accuracy of the representations and warranties of LACQ (subject to customary bring-down standards);

 

•

the covenants of LACQ having been performed in all material respects; since the date of the Merger Agreement through the date of the closing, there has not been any material adverse effect with respect to LACQ;

 

•

the approval by Holdings of the new management long term incentive plan;

 

•

Holdings and the Strategic Investor having entered into the Strategic Investor Subscription Agreement, which occurred on December 27, 2019;

 

•

pursuant to the terms of and as further specified in the Transaction Support Agreement, LACQ, the Strategic Investor and the Sponsors having (i) irrevocably caused to be terminated, forfeited and cancelled, for no consideration and without further right, obligation or liability of any kind or nature on the part of LACQ, the Strategic Investor, Merger Sub, the Company, or the Sponsors, 1,000,000 issued and outstanding LACQ Shares, and (ii) amended the LACQ Warrant Agreement in accordance with the terms of the Transaction Support Agreement;

 

•

following payment by LACQ to its stockholders who have validly elected to have their LACQ Shares redeemed for cash pursuant to the LACQ governing documents as part of a LACQ Share redemption, the amount of cash in the Trust Account is not less than the greater of (i) US$15,000,000 and (ii) LACQ’s transaction expenses; and

 

•

LACQ having made all necessary arrangements with Continental Stock Transfer & Trust Company to have the funds contained in the Trust Account disbursed or available to LACQ, in accordance with the Trust Agreement and the Merger Agreement, immediately prior to the closing, and all such funds released from the Trust Account to LACQ are available to LACQ (and, following the Merger, the combined company).

Waiver

Any party to the Merger Agreement may, at any time prior to the closing of the Transactions, by action taken by its board of directors, board of managers or others performing similar functions with respect to such party, or officers thereunto duly authorized, waive any of the terms or conditions of the Merger Agreement. Notwithstanding the foregoing, pursuant to LACQ’s current second amended and restated certificate of incorporation, LACQ cannot consummate the proposed business combination if it has less than US$5,000,001 of net tangible assets remaining after the Closing.

Termination

The Merger Agreement may be terminated at any time, but not later than the closing of the Transactions, as follows:

 

•

by mutual written consent of LACQ and Holdings;

 

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by either LACQ or Holdings if, at the LACQ stockholder special meeting, the Transactions fail to be approved by holders of outstanding LACQ Shares (subject to any adjournment or postponement of the meeting);

 

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by either LACQ or Holdings if the other party has materially breached any of its representations, warranties, covenants or other agreements set forth in the Merger Agreement, such that a condition to closing would not be satisfied and such other party has not cured such breach, if curable, within thirty days of the receipt of a notice of such breach;

 

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by either LACQ or Holdings if the consummation of the Transaction is permanently enjoined, prohibited or otherwise restrained or made illegal by the terms of a final, non-appealable order or judgment of a court of competent jurisdiction;

 

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by LACQ if the Transactions are not consummated on or before July 15, 2020, and the delay in closing beyond such date is not primarily due to the willful breach of the Merger Agreement by LACQ;

 

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by LACQ at any time prior to the adoption and approval of the Merger Agreement by LACQ’s stockholders if the LACQ Board determines to accept a Superior Business Combination Proposal (as defined in the Merger Agreement), provided that LACQ has complied with the provisions of Section 8.1 of the Merger Agreement;

 

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by Holdings if the Transactions are not consummated on or before the later of (a) June 1, 2020 (subject to certain extensions) and (b) if audited financial statements for the year ended December 31, 2019 are required to be included in this proxy statement/prospectus under the rules and regulations of the SEC, the date that is 45 days after Holdings’ delivery of such audited financial statements to LACQ, and the delay in closing beyond such date is not primarily due to the willful breach of the Merger Agreement by Holdings (the “Company Outside Date Termination Right”); or

 

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by Holdings if the LACQ Board shall have made a Change of Board Recommendation (as defined in the Merger Agreement).

Effect of Termination

LACQ will be obligated to pay Holdings a one-time termination fee equal to US$9,509,235 if (i) the Merger Agreement is terminated due to the LACQ Board determining to accept a Superior Business Combination Proposal or a Change of Board Recommendation and (ii) LACQ enters into a definitive merger or purchase agreement with respect to such Superior Business Combination Proposal.

In the event that Holdings terminates the Merger Agreement pursuant to the Company Outside Date Termination Right prior to July 15, 2020, subject to the satisfaction of certain other conditions set forth in the Merger Agreement, then Holdings will pay LACQ a one-time termination fee equal to the lesser of (i) US$5,000,000 and (ii) all documented fees and expenses of outside legal counsel, accountants and auditors incurred by or on behalf of LACQ in connection with the Transaction and any amounts necessary to repay any promissory notes outstanding pursuant to that certain Expense Advancement Agreement, dated December 1, 2017, by and among LACQ, the Hydra sponsor, MLCP GLL Funding LLC and the Strategic Investor (the “Expense Advancement Agreement”).

In the event of the termination by either LACQ or Holdings, the Merger Agreement will become void and have no effect (other than with respect to certain surviving obligations specified in the Merger Agreement and, if applicable, the termination fees payable by LACQ described above), without any liability on the part of any party thereto or its respective affiliates, officers, directors or stockholders, other than liability of any party thereto for any intentional and willful breach of the Merger Agreement by such party occurring prior to such termination or any liability arising out of any party’s breach of any covenant of the Merger Agreement prior to such termination or willful and material breach of any representation and warranty set forth in the Merger Agreement prior to such termination.

Fees and Expenses

Except as provided for in the Merger Agreement, all fees and expenses incurred in connection with the Merger Agreement and the Transactions contemplated thereby will be paid by the party incurring such expenses whether or not the Transactions are consummated.

 

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Amendments

The Merger Agreement may be amended by the parties thereto at any time by execution of an instrument in writing signed on behalf of each of the parties; provided, however, that from and after the approval of the Merger Agreement and the Transactions by an affirmative vote of the holders of a majority of the outstanding shares of LACQ Shares, no amendment shall be made to the Merger Agreement that, pursuant to applicable law, would require further approval or adoption by the stockholders of LACQ without such further approval or adoption.

Governing Law; Consent to Jurisdiction

The Merger Agreement is governed by the laws of the State of Delaware. The parties to the Merger Agreement have irrevocably submitted to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, to the extent such Court does not have subject matter jurisdiction, the Superior Court of the State of Delaware), or, if it has or can acquire jurisdiction, in the United States District Court for the District of Delaware.

 

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REGULATORY APPROVALS REQUIRED FOR THE MERGER

General

Holdings and LACQ agreed in the Merger Agreement to use their reasonable best efforts and reasonably cooperate and coordinate to take, or cause to be taken, all things reasonably necessary or desirable under applicable law to consummate the Transactions and the other transactions contemplated by the Merger Agreement. Although Holdings and LACQ expect that all required regulatory clearances and approvals will be obtained, Holdings and LACQ cannot assure that these regulatory clearances and approvals will be obtained in a timely manner or obtained at all, or that the granting of these regulatory clearances and approvals will not involve the imposition of additional conditions on the completion of the Transactions. These conditions or changes could result in the conditions to the closing of the Transactions not being satisfied.

Gaming Regulatory Approval

The gaming operations of Holdings and Gateway are highly regulated. The Criminal Code of Canada, the Gaming Control Act (British Columbia), the Gaming Control Act, 1992 (Ontario), the Gaming, Liquor and Cannabis Act (Alberta), and the regulations, rules, and standards promulgated thereunder, as well as the licenses issued by the Gaming Authorities and/or the Gaming Regulators, and the operating agreements (and related policies and ancillary standards and protocols) entered into between GCEL and the Gaming Authorities and/or the Gaming Regulators, empower the Gaming Authorities and/or Gaming Regulators to oversee and regulate the gaming industry in British Columbia, Alberta, and Ontario. This legislation and these agreements and licenses (i) set out certain registration requirements for service providers and/or key personnel, (ii) prescribe certain ongoing reporting and approval requirements (iii) impose other obligations on service providers, and (iv) retain for the Gaming Regulators and Gaming Authorities the ultimate authority to conduct and manage all casino gaming.

In connection with the Transactions, Holdings and/or GCEL must provide notice to and/or obtain the consent of the Gaming Authorities and Gaming Regulators for various matters, including, but not limited to: (i) the proposed changes to the Holdings Board; (ii) the proposed change in officers of Holdings; (iii) the change in shareholders of Holdings; and (iv) the public disclosure of certain information related to the operation of Holdings and its subsidiaries. If additional consents are required or deemed necessary to consummate the Transactions, Holdings intends to seek such consents. If the sale of the Edmonton Region operations is consummated prior to consummation of Transactions, approval of Gaming Authorities and Gaming Regulators in Alberta would not be required, but approval would be required for the sale.

Although Holdings and LACQ expect that all required regulatory consents will be obtained, Holdings and LACQ cannot assure that these regulatory consents will be obtained in a timely manner or obtained at all, or that the granting of these regulatory consents will not involve the imposition of additional conditions on the completion of the Transactions, including changes to the terms of the Merger Agreement. These conditions or changes could result in the conditions to the closing of the Transactions not being satisfied.

Other

Holdings and LACQ have determined that consummation of the Transactions: (a) does not require notice under Part IX of the Competition Act (Canada); and (b) does not require either a notification filing under Part III of the Investment Canada Act or an application for review filing under Part IV of the Investment Canada Act. As such, consummation of the Transaction is not subject to notification or approval under the Competition Act (Canada) and is not subject to notification, review or approval under the Investment Canada Act.

Plan of Arrangement

The Transactions will be completed by way of a “plan of arrangement” under Section 192 of the CBCA and will involve: (i) obtaining an initial court order establishing certain procedural matters, including arrangements

 

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for Holdings shareholders’ meetings to approve the Transactions and related matters; (ii) holding a meeting of Holdings shareholders to consider and vote on the Plan of Arrangement (at least 66.66% of the shareholders of Holdings will be required to approve the Transactions and related matters); and (iii) obtaining a final court order approving the Plan of Arrangement.

Subsequent to the approval of the Transactions and related matters by the Holdings shareholders in accordance with the interim order, the hearing in respect of a final court order approving the Transactions, will be held. At the hearing, the court will consider, among other things, the fairness and reasonableness of the Transactions. The court may approve the Transactions in any manner it may direct, subject to compliance with such terms and conditions, if any, as it deems fit. Assuming the final order is granted and the conditions to closing contained in the Merger Agreement are satisfied or waived, then the articles of arrangement of Holdings in respect of the arrangement and other required documents will be filed with the director (as appointed under section 1 of the CBCA) to give effect to the Transactions.

Although Holdings expects that all required court orders will be obtained, Holdings cannot assure that these court orders will be obtained in a timely manner or obtained at all, or that the granting of these court orders will not involve the imposition of additional conditions on the completion of the Transactions.

Pursuant to the Plan of Arrangement, shareholders of Holdings may exercise dissent rights in connection with the Transactions pursuant to and in accordance with Section 190 of the CBCA, all as the same may be modified by the initial order or the final order. Such dissent rights must be exercised in a prescribed manner. Any Holdings shareholder which validly exercises its dissent rights shall be entitled to receive the fair market value of the shares held by such shareholder (as determined in accordance with the Plan of Arrangement). It is a condition under the Merger Agreement that no more than 5% of the Holdings shareholders shall have exercised dissent rights.

The securities of Holdings distributed pursuant to the Plan of Arrangement will be free from restriction under applicable Canadian securities legislation on the first trade of such securities provided that (i) Holdings is and has been a reporting issuer in a jurisdiction of Canada for the four months immediately preceding the sale; (ii) the sale is not a “control distribution” (as defined National Instrument 45-102); (iii) no unusual effort is made to prepare the market or to create a demand for securities of Holdings; (iv) no extraordinary commission or consideration is paid to a person or company in respect of such sale; and (v) if the selling security holder is an insider or officer of Holdings, the selling security holder has no reasonable grounds to believe that Holdings is in default of applicable securities laws.

 

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INFORMATION ABOUT EXECUTIVE OFFICERS, DIRECTORS AND NOMINEES

References to “we,” “us,” and “our” in this section refer to “Gateway” or “the Company.”

Executive Officers and Directors

The following table sets forth certain information relating to our directors and executive officers as of the effective time of the Merger in accordance with the terms of the Merger Agreement. Unless otherwise stated, the business address for our directors and officers is c/o Gateway Casinos & Entertainment Limited, 100-4400 Dominion Street, Burnaby, British Columbia V5G 4G3.

 

Name		Age*				Position
Executive Officers
Tony Santo			59			President and Chief Executive Officer and Director(1)
Nevada, U.S.A.
Marc Falcone			46			Incoming President and Chief Executive Officer and Director Nominee(1)(2)
Nevada, U.S.A.
Tolek Strukoff			38			Chief Legal and Administrative Officer
British Columbia, Canada
Terry McInally			47			Chief Compliance and Risk Officer / Chief Information Officer
Ontario, Canada
Carrie Kormos			46			Chief Marketing and Communications Officer
Ontario, Canada
Robert Ward			50			Chief Operating Officer
British Columbia, Canada
Queenie Wong			37			Chief Accounting Officer
British Columbia, Canada
Jagtar Nijjar			53			Executive Vice President, Development and Construction
British Columbia, Canada
Scott Phillips			48			Senior Vice President, Human Resources
British Columbia, Canada
Hargo Roopra			41			Senior Vice President, Operations and Marketing Analytics
British Columbia, Canada
Michael Snider			38			Senior Vice President, Legal Affairs
British Columbia, Canada
Charles (Jamie) Papp			44			Senior Vice President, Casino Operations
Ontario, Canada
Board of Directors(2)
Gabriel de Alba			47			Executive Chairman and Director
Ontario, Canada
Daniel B. Silvers			43			Director Nominee(2)
New York, U.S.A.
A. Lorne Weil			74			Director Nominee(2)
New York, U.S.A.
Lyle Hall			64			Director Nominee(2)
Ontario, Canada
Olga Ilich			69			Director Nominee(2)
British Columbia, Canada
Dr. Michael Percy			72			Director Nominee(2)
Alberta, Canada

 

*	Ages are as of January 31, 2020.

 

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