Post-effective Amendment Filed Solely to Add Exhibits to a Registration Statement (pos Ex)
May 01 2020 - 5:26PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on May
1, 2020
Registration Nos. 333-237693 and 333-237693-01
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1 TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DraftKings Inc.
(Exact name of registrant as specified in
its charter)
Nevada
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7990
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84-4052441
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification No.)
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222 Berkeley Street, 5th Floor
Boston, Massachusetts
02116
(617) 986-6744
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
R. Stanton Dodge
222 Berkeley Street,
5th Floor
Boston, Massachusetts
02116
(617) 986-6744
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies
to:
Scott D. Miller
Sullivan & Cromwell LLP
125 Broad Street
New York, New York 10004
Tel: (212) 558-4000
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Approximate date of commencement of proposed
sale to the public: From time to time after this Registration Statement becomes effective.
If any of the securities being registered
on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933 check the
following box: x
If this form is filed to register additional
securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment
filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. ¨
If this form is a post-effective amendment
filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same offering. x Registration Nos. 333-237693 and 333-237693-01
Indicate by check mark whether the registrant
is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company, or an emerging growth company.
See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,”
and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
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Smaller reporting company
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x
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Emerging growth company
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x
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If an emerging growth company, indicate
by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. x
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (the “Amendment”)
to the registrant’s Registration Statement on Form S-1 (the “Registration Statement”) is filed pursuant to Rule
462(d) solely to add exhibits with respect to such Registration Statement. The sole purpose of the Amendment is to furnish Exhibit
101 to the Registration Statement. Exhibit 101 provides the financial statements and related notes formatted in XBRL (eXtensible
Business Reporting Language).
Item 16. Exhibits and Financial Statements.
(a) Exhibits. The following exhibits
are being followed herewith:
Exhibit No.
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Description
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2.1†*
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Business
Combination Agreement, dated as of December 22, 2019, among DraftKings Inc., SBTech (Global) Limited, SBTech’s shareholders,
Diamond Eagle Acquisition Corp., DEAC NV Merger Corp. and a wholly-owned subsidiary of DEAC (incorporated by reference to
Exhibit 2.1 of DEAC NV Merger Corp.’s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the
SEC on April 14, 2020).
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2.2*
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Form
of Stockholders Agreement (incorporated by reference to Exhibit 2.2 of DEAC NV Merger Corp.’s Registration Statement
on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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2.3*
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Agreement
and Plan of Merger, dated as of March 12, 2020, by and among Diamond Eagle Acquisition Corp. and DEAC NV Merger Corp. (incorporated
by reference to Exhibit 2.3 of DEAC NV Merger Corp.’s Registration Statement on Form S-4 (Reg. No. 333-235805),
filed with the SEC on April 14, 2020).
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2.4*
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Amendment
to Business Combination Agreement, dated as of April 7, 2020, among DraftKings Inc., SBTech (Global) Limited, SBTech’s
shareholders, Diamond Eagle Acquisition Corp., DEAC NV Merger Corp. and a wholly-owned subsidiary of DEAC (incorporated by
reference to Exhibit 2.4 of DEAC NV Merger Corp.’s Registration Statement on Form S-4 (Reg. No. 333-235805),
filed with the SEC on April 14, 2020).
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3.1*
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Articles
of Incorporation of DEAC NV Merger Corp (incorporated by reference to Exhibit 3.1 of DEAC NV Merger Corp.’s Registration
Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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3.2*
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Bylaws
of DEAC NV Merger Corp (incorporated by reference to Exhibit 3.2 of DEAC NV Merger Corp.’s Registration Statement on
Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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3.3*
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Form
of Amended and Restated Articles of Incorporation of New DraftKings (incorporated by reference to Exhibit 3.3 of DEAC NV Merger
Corp.’s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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3.4*
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Form
of Amended and Restated Bylaws of New DraftKings (incorporated by reference to Exhibit 3.1 of DEAC NV Merger Corp.’s
Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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4.1*
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Specimen
Class A Common Stock Certificate of New DraftKings (incorporated by reference to Exhibit 4.1 of DEAC NV Merger Corp.’s
Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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4.2*
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Warrant
Agreement, dated May 10, 2019, by and between Diamond Eagle Acquisition Corp. and Continental Stock Transfer & Trust Company,
as warrant agent (incorporated by reference to Exhibit 4.1 of Diamond Eagle Acquisition Corp.’s Current Report on Form
8-K filed on May 14, 2019).
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5.1*
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Opinion
of Greenberg Traurig, LLP as to the validity of the shares of New DraftKings common stock.
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5.2*
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Opinion
of Winston & Strawn LLP as to the validity of the warrants of New DraftKings.
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10.1*
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Form
of DraftKings Inc. 2020 Incentive Award Plan (incorporated by reference to Exhibit 10.1 of DEAC NV Merger Corp.’s Registration
Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020.
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10.2*
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Form
of Subscription Agreement, dated December 22, 2019, by and between Diamond Eagle Acquisition Corp. and the undersigned subscriber
party thereto (incorporated by reference to Exhibit 10.2 of DEAC NV Merger Corp.’s Registration Statement on Form S-4
(Reg. No. 333-235805), filed with the SEC on April 14, 2020.
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10.3*
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Executive
Employment Agreement, dated May 30, 2019, between DraftKings Inc. and Jason Park (incorporated by reference to Exhibit 10.3
of DEAC NV Merger Corp.’s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April
14, 2020.
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10.4*
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Form
of DraftKings Inc. Employee Stock Purchase Plan (incorporated by reference to Exhibit 10.4 of DEAC NV Merger Corp.’s
Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020.
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10.5*†**
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Agreement
for the Provision of a Sports Betting Solution (“License Agreement”), between Sports Information Services Limited
and Crown Gaming Inc., dated as of June 19, 2018 (incorporated by reference to Exhibit 10.5 of DEAC NV Merger Corp.'s Registration
Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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10.6*†**
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Addendum
to License Agreement, between Sports Information Services Limited and Crown Gaming Inc., dated as of August 22, 2019 (incorporated
by reference to Exhibit 10.6 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with
the SEC on April 14, 2020).
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10.7*
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Amended
and Restated Loan and Security Agreement (the ‘‘LSA’’), dated October 21, 2016, by and between DraftKings
Inc. and Pacific Western Bank (incorporated by reference to Exhibit 10.7 of DEAC NV Merger Corp.'s Registration Statement
on Form S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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10.8*
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First
Amendment to the LSA, dated July 28, 2017, by and between DraftKings Inc. and Pacific Western Bank (incorporated by reference
to Exhibit 10.8 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on
April 14, 2020).
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10.9*
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Second
Amendment to the LSA, dated December 28, 2017, by and between DraftKings Inc. and Pacific Western Bank (incorporated by reference
to Exhibit 10.9 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805), filed with the SEC on
April 14, 2020).
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10.10*
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Third
Amendment and Joinder to the LSA, dated July 3, 2018, by and among DraftKings Inc., Crown Gaming Inc., Crown DFS Inc. and
Pacific Western Bank (incorporated by reference to Exhibit 10.10 of DEAC NV Merger Corp.'s Registration Statement on Form
S-4 (Reg. No. 333-235805), filed with the SEC on April 14, 2020).
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10.11*
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Fourth
Amendment to the LSA, dated December 19, 2018, by and among DraftKings Inc., Crown Gaming Inc., Crown DFS Inc. and Pacific
Western Bank (incorporated by reference to Exhibit 10.11 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg.
No. 333-235805), filed with the SEC on April 14, 2020).
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10.12*
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Fifth
Amendment to the LSA, dated March 28, 2019 by and among DraftKings Inc., Crown Gaming Inc., Crown DFS Inc. and Pacific Western
Bank (incorporated by reference to Exhibit 10.12 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805),
filed with the SEC on April 14, 2020).
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10.13*
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Sixth
Amendment to the LSA, dated August 15, 2019, by and among DraftKings Inc., Crown Gaming Inc., Crown DFS Inc. and Pacific Western
Bank (incorporated by reference to Exhibit 10.13 of DEAC NV Merger Corp.'s Registration Statement on Form S-4 (Reg. No. 333-235805),
filed with the SEC on April 14, 2020).
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23.1*
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Consent
of WithumSmith+Brown, PC, independent registered public accounting firm of Diamond Eagle Acquisition Corp.
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23.2*
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Consent
of BDO USA, LLP, independent registered public accounting firm of DraftKings Inc.
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23.3*
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Consent
of Ziv Haft, CPA (Isr.), a BDO Member Firm, independent registered public accounting firm of SBTech (Global) Limited.
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23.4*
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Consent
of Greenberg Traurig, LLP, (included as part of Exhibit 5.1).
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23.5*
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Consent
of Winston & Strawn LLP (includes as part of Exhibit 5.2).
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24.1+
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Power of Attorney.
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99.1*
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Consent
of Michael Gavin Isaacs.
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99.2*
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Consent
of Matthew Kalish.
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99.3*
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Consent
of Woodrow H. Levin.
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99.4*
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Consent
of Paul Liberman.
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99.5*
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Consent
of Shalom Meckenzie.
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99.6*
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Consent
of Ryan R. Moore.
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99.7*
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Consent
of Steven J. Murray.
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99.8*
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Consent
of Hany M. Nada.
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99.9*
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Consent
of Jason D. Robins.
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99.10*
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Consent
of Richard Rosenblatt.
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99.11*
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Consent
of John S. Salter.
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99.12*
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Consent
of Harry E. Sloan.
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99.13*
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Consent
of Marni M. Walden.
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101.INS+
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XBRL Instance Document
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101.SCH+
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XBRL Taxonomy Extension Schema Document
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101.CAL+
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XBRL Taxonomy Extension Calculation Linkbase Document
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101.DEF+
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XBRL Taxonomy Extension Definition Linkbase Document
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101.LAB+
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XBRL Taxonomy Extension Label Linkbase Document
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101.PRE+
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XBRL Taxonomy Extension Presentation Linkbase Document
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† Certain
of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(a)(5). The Registrant
agrees to furnish a copy of all omitted exhibits and schedules to the SEC upon its request.
* Previously filed.
** Certain portions of this exhibit have
been omitted pursuant to Regulation S-K Item 601(b)(10)(iv). The Registrant agrees to furnish an unredacted copy of the exhibit
to the SEC upon its request.
+ Filed herewith.
(b) Financial Statements. The financial
statements filed as part of this registration statement are listed in the index to the financial statements immediately preceding
such financial statements, which index to the financial statements is incorporated herein by reference.
SIGNATURES
Pursuant to the requirements of the
Securities Act of 1933, as amended, the registrant has duly caused this Post-Effective Amendment No. 1 to the Registration
Statement on Form S-1 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Boston, State
of Massachusetts, on the 1st day of May, 2020.
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DraftKings Inc.
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By:
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/s/
R. Stanton Dodge
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Name:
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R. Stanton Dodge
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Title:
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Chief Legal Officer and Secretary
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Pursuant to the requirements of the Securities
Act of 1933, as amended, this Post-Effective Amendment No. 1 to the Registration Statement on Form S-1 has been signed by the following persons in the capacities indicated
on the 1st day of May, 2020.
Name
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Position
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Date
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*
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Chief Executive Officer and Chairman
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May 1, 2020
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Jason D. Robins
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(Principal Executive Officer)
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*
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Chief Financial Officer
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May 1, 2020
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Jason K. Park
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(Principal Financial and Accounting Officer)
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Vice Chairman
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May 1, 2020
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Harry Evans Sloan
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*
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Director
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May 1, 2020
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Michael Gavin Isaacs
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*
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Director
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May 1, 2020
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Matthew Kalish
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*
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Director
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May 1, 2020
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Woodrow H. Levin
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*
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Director
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May 1, 2020
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Paul Liberman
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*
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Director
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May 1, 2020
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Shalom Meckenzie
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*
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Director
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May 1, 2020
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Ryan R. Moore
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*
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Director
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May 1, 2020
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Steven J. Murray
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*
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Director
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May 1, 2020
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Hany M. Nada
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*
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Director
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May 1, 2020
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Richard Rosenblatt
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*
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Director
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May 1, 2020
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John S. Salter
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*
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Director
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May 1, 2020
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Marni M. Walden
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* By:
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/s/ R. Stanton Dodge
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R. Stanton Dodge
As Attorney-in-Fact
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