OF CAPITAL STOCK
following summary of the material provisions of our capital stock is based on and qualified by our Second Amended and Restated
Certificate of Incorporation (the “Charter”), our Bylaws, and our Warrant Agreement dated October 24, 2014 between
the Company and Continental Stock Transfer & Trust Company (“Warrant Agreement”) each of which is incorporated
by reference as an exhibit to the Annual Report on Form 10-K of which this Exhibit 4.4 is a part. The summary below is also qualified
by reference to provisions of the Delaware General Corporation Law (“DGCL”).
Charter authorizes the issuance of 50,000,000 shares, consisting of 49,000,000 shares of common stock, $0.0001 par value per share
(“Common Stock”), and 1,000,000 shares of preferred stock, $0.0001 par value (“Preferred Stock”).
of March 22, 2021, there were 23,218,323 shares of Common Stock issued and outstanding. The outstanding shares of Common Stock
are duly authorized, validly issued, fully paid and non-assessable.
as otherwise required by law or as provided in any certificate of designation for any series of Preferred Stock, the holders of
Common Stock possess all the voting power for the election of our directors and all other matters requiring stockholder action.
Holders of Common Stock are entitled to one vote per share held of record on matters to be voted on by stockholders.
of Common Stock will be entitled to receive such dividends, if any, as may be declared from time to time by our board of directors
in its discretion out of funds legally available therefor and shall share equally on a per share basis in such dividends and distributions,
provided that such holder is not an Unsuitable Person (as defined below).
Dissolution and Winding-Up
the event of our voluntary or involuntary liquidation, dissolution, distribution of assets or winding-up, the holders of our Common
Stock will be entitled to receive an equal amount per share of all of our assets of whatever kind available for distribution to
stockholders, after the rights of our creditors and the rights of holders of Preferred Stock, if any, have been satisfied.
or Other Rights
are no sinking fund provisions applicable to the Common Stock. Our stockholders have no preemptive or other subscription rights.
board of directors has the authority to issue up to an aggregate of 1,000,000 shares of Preferred Stock in one or more series,
and to fix the designations, preferences, rights, qualifications, limitations and restrictions thereof or thereon, without any
further vote or action by the stockholders. No shares of Preferred Stock are outstanding at March 22, 2021.
and Regulatory Matters – Unsuitable Persons
Charter provides the Company with the ability to restrict securities ownership by persons (“Unsuitable Person”) who
fail to comply with informational or other regulatory requirements under applicable gaming laws, who are found unsuitable to hold
the Company’s securities by gaming authorities or who could by holding the Company’s securities cause the Company
or any affiliate to fail to obtain, maintain, renew or qualify for a license, contract, franchise or other regulatory approval
from a gaming authority.
pursuant to our Charter, we may redeem the shares of capital stock owned or controlled by a stockholder or its affiliates to the
extent required by the relevant gaming authority making a determination of unsuitability, or to the extent our board of directors
determines, in its sole discretion, that a person is likely to jeopardize the Company’s or any affiliate’s application
for, receipt of, approval for, right to the use of, or entitlement to, any gaming license. The redemption price would be determined
either by the gaming authority making the finding of unsuitability, or if such gaming authority does not require a certain price
to be paid, by our board of directors, which would determine the price based on the fair value of the securities to be redeemed;
provided, however, that the price per share represented by the redemption price shall in no event be in excess of the closing
sales price per share of the Company’s shares on the principal national securities exchange on which such shares are then
listed on the trading date on the day before we notify the holder of such redemption. The redemption price may be paid in cash,
by promissory note, or both as required pursuant to the terms established by the applicable gaming authority and, if there are
no such terms, as we elect.
of March 22, 2021, there were 19,079,130 warrants outstanding exercisable for 9,539,565 shares of Common Stock, consisting of
7,999,900 of our public stockholders’ warrants (“Public Warrants”) and 11,079,230 of our private placement warrants
Company’s Public Warrants were originally issued as part of the units sold in the Company’s IPO. Pursuant to the terms
of the Warrant Agreement, each such warrant entitles the registered holder to purchase one-half of one share of our Common Stock
at a price of $5.75 (or $11.50 per whole share), subject to adjustment as discussed below. Such warrants may be exercised only
for a whole number of shares of our Common Stock. The Public Warrants became exercisable on January 23, 2017 and will expire five
years after the completion of our Business Combination, at 5:00 p.m., New York City time on December 23, 2021, or earlier upon
redemption or liquidation.
will not be obligated to deliver any shares of Common Stock pursuant to the exercise of a Public Warrant and will have no obligation
to settle such warrant exercise unless a registration statement under the Securities Act with respect to the shares of Common
Stock underlying such warrants is then effective and a prospectus relating thereto is current, subject to our satisfying our obligations
described below with respect to registration. No such warrant will be exercisable, and we will not be obligated to issue any shares
to holders seeking to exercise their Public Warrants, unless the issuance of the shares upon such exercise is registered and qualified
under the securities laws of the state of the exercising holder, unless exemptions therefrom are available. In the event that
the conditions in the two immediately preceding sentences are not satisfied with respect to a Public Warrant, the holder of such
warrant will not be entitled to exercise such warrant and such warrant may have no value and may expire worthless. In no event
will we be required to net cash settle any Public Warrant.
will use our best efforts to maintain the effectiveness of a registration statement, and a current prospectus relating thereto,
until the expiration or redemption of the Public Warrants in accordance with the provisions of the Warrant Agreement. Notwithstanding
the above, if our Common Stock is at the time of any exercise of a Public Warrant not listed on a national securities exchange
such that it satisfies the definition of a “covered security” under Section 18(b)(1) of the Securities Act, we may,
at our option, require holders of Public Warrants who exercise their warrants to do so on a “cashless basis” in accordance
with Section 3(a)(9) of the Securities Act and, in the event we so elect, we will not be required to file or maintain in effect
a registration statement or qualify the underlying shares under state blue sky laws.
may call the Public Warrants for redemption:
whole and not in part;
a price of $0.01 per warrant;
not less than 30 days’ prior written notice of redemption (the “30-day redemption
period”) to each warrant holder; and
and only if, the reported last sale price of the Common Stock equals or exceeds $24.00
per share for any 20 trading days within a 30-trading day period ending on the third
trading day prior to the date we send the notice of redemption to the warrant holders.
and when the Public Warrants become redeemable by us, we may exercise our redemption right even if we are unable to register the
underlying securities for sale or qualify then under applicable state securities laws.
have established the last of the redemption conditions discussed above to prevent a redemption call unless there is, at the time
of the call, a significant premium to the warrant exercise price. If the foregoing conditions are satisfied and we issue a notice
of redemption of the Public Warrants, each warrant holder will be entitled to exercise his, her or its warrant prior to the scheduled
redemption date. However, the price of the Common Stock may fall below the $24.00 redemption trigger price as well as the warrant
exercise price of $5.75 per one-half of one share ($11.50 per whole share) after the redemption notice is issued.
we call the Public Warrants for redemption as described above, our management will have the option to require holders that wish
to exercise their warrants to do so on a “cashless basis.” In determining whether to require holders to exercise their
warrants on a “cashless basis,” our management will consider, among other factors, our cash position, the number of
warrants that are outstanding and the dilutive effect on our stockholders of issuing the maximum number of shares of Common Stock
issuable upon the exercise of our warrants. If our management takes advantage of this option, all holders of warrants would pay
the exercise price by surrendering their warrants for that number of shares of Common Stock equal to the quotient obtained by
dividing (x) the product of the number of shares of Common Stock underlying the warrants, multiplied by the difference between
the exercise price of the warrants and the “fair market value” (defined below), by (y) the fair market value. The
“fair market value” shall mean the average reported last sale price of the Common Stock for the 10 trading days ending
on the third trading day prior to the date on which the notice of redemption is sent to the holders of warrants. If our management
takes advantage of this option, the notice of redemption will contain the information necessary to calculate the number of shares
of Common Stock to be received upon exercise of the warrants, including the fair market value in such case. If we call our warrants
for redemption and our management does not take advantage of this option, the initial purchasers of the private placement warrants
and their permitted transferees would still be entitled to exercise their Private Warrants for cash or on a cashless basis using
the same formula described above.
holder of a Public Warrant may notify us in writing in the event the holder elects to be subject to a requirement that such holder
will not have the right to exercise such warrant, to the extent that after giving effect to such exercise, such person (together
with such person’s affiliates), to the warrant agent’s actual knowledge, would beneficially own in excess of 9.8%
(or such other amount as such holder may specify) of the shares of Common Stock outstanding immediately after giving effect to
the number of outstanding shares of Common Stock is increased by a stock dividend payable in shares of Common Stock, a split of
shares of common stock or other similar event, then, on the effective date of such stock dividend, split or similar event, the
number of shares of Common Stock issuable on exercise of each Public Warrant will be increased in proportion to such increase
in the outstanding shares of Common Stock. A rights offering to holders of Common Stock entitling holders to purchase shares of
Common Stock at a price less than the fair market value will be deemed to be a stock dividend of a number of shares of Common
Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under
any other equity securities sold in such rights offering that are convertible into or exercisable for Common Stock) multiplied
by (ii) one minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the fair
market value. For these purposes: (i) if the rights offering is for securities convertible into or exercisable for Common Stock,
in determining the price payable for Common Stock, there will be taken into account any consideration received for such rights,
as well as any additional amount payable upon exercise or conversion, and (ii) fair market value means the volume weighted average
price of Common Stock as reported during the 10 trading day period ending on the trading day prior to the first date on which
the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive
addition, if we, at any time that the Public Warrants are outstanding and unexpired, pay a dividend or make a distribution in
cash, securities or other assets to the holders of Common Stock on account of such shares of Common Stock (or other shares of
our capital stock into which the warrants are convertible), other than (a) as described above, or (b) certain ordinary cash dividends,
then the warrant exercise price will be decreased, effective immediately after the effective date of such event, by the amount
of cash or the fair market value of any securities or other assets paid on each share of Common Stock in respect of such event.
the number of outstanding shares of our Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification
of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock
split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Public Warrant will
be decreased in proportion to such decrease in outstanding shares of Common Stock.
the number of shares of Common Stock purchasable upon the exercise of the Public Warrants is adjusted, as described above, the
warrant exercise price will be adjusted by multiplying the warrant exercise price immediately prior to such adjustment by a fraction
(x) the numerator of which will be the number of shares of Common Stock purchasable upon the exercise of the warrants immediately
prior to such adjustment, and (y) the denominator of which will be the number of shares of Common Stock so purchasable immediately
case of any reclassification or reorganization of the outstanding shares of our Common Stock (other than those described above
or that solely affect the par value of such shares of Common Stock), or in the case of any merger or consolidation of us with
or into another corporation (other than a consolidation or merger in which we are the continuing corporation and which does not
result in any reclassification or reorganization of our outstanding shares of Common Stock), or in the case of any sale or conveyance
to another corporation or entity of the assets or other property of us as an entirety or substantially as an entirety in connection
with which we are dissolved, the holders of the Public Warrants will thereafter have the right to purchase and receive, upon the
basis and upon the terms and conditions specified in the warrants and in lieu of the shares of our Common Stock immediately theretofore
purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of stock or other
securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon
a dissolution following any such sale or transfer, that the holder of the warrants would have received if such holder had exercised
their warrants immediately prior to such event. However, if such holders were entitled to exercise a right of election as to the
kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities,
cash or other assets for which each warrant will become exercisable will be deemed to be the weighted average of the kind and
amount received per share by such holders in such consolidation or merger that affirmatively make such election, and if a tender,
exchange or redemption offer has been made to and accepted by such holders under circumstances in which, upon completion of such
tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under
the Exchange Act) of which such maker is a part, and together with any affiliate or associate (within the meaning of Rule 12b-2
under the Exchange Act) of such maker and any members of any such group of which any such affiliate or associate is a part, own
beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the outstanding shares of Common Stock,
the holder of a warrant will be entitled to receive the highest amount of cash, securities or other property to which such holder
would actually have been entitled as a stockholder if such warrant holder had exercised the warrant prior to the expiration of
such tender or exchange offer, accepted such offer and all of the Common Stock held by such holder had been purchased pursuant
to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as
nearly equivalent as possible to the adjustments provided for in the Warrant Agreement. Additionally, if less than 70% of the
consideration receivable by the holders of Common Stock in such a transaction is payable in the form of Common Stock in the successor
entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or
is to be so listed for trading or quoted immediately following such event, and if the registered holder of the warrant properly
exercises the warrant within thirty days following public disclosure of such transaction, the warrant exercise price will be reduced
as specified in the Warrant Agreement based on the per share consideration minus the Black Scholes value (as defined in the Warrant
Agreement) of the warrant.
Public Warrants were issued in registered form under the Warrant Agreement with Continental Stock Transfer & Trust Company,
as warrant agent, and us. You should review a copy of the Warrant Agreement for a complete description of the terms and conditions
applicable to the warrants. The Warrant Agreement provides that the terms of the warrants may be amended without the consent of
any holder to cure any ambiguity or correct any defective provision, but requires the approval by the holders of at least 65%
of the then outstanding Public Warrants to make any change that adversely affects the interests of the registered holders of Public
warrants may be exercised upon surrender of the warrant certificate on or prior to the expiration date at the offices of the warrant
agent, with the exercise form on the reverse side of the warrant certificate completed and executed as indicated, accompanied
by full payment of the exercise price by certified or official bank check payable to us (or on a cashless basis, if applicable),
for the number of warrants being exercised. The warrant holders do not have the rights or privileges of holders of Common Stock
nor any voting rights until they exercise their warrants and receive shares of Common Stock. After the issuance of shares of Common
Stock upon exercise of the warrants, each holder will be entitled to one vote for each share held of record on all matters to
be voted on by stockholders.
fractional shares will be issued upon exercise of the Public Warrants. If, upon exercise of the warrants, a holder would be entitled
to receive a fractional interest in a share, we will, upon exercise, round down to the nearest whole number the number of shares
of Common Stock to be issued to the warrant holder.
Company’s Private Warrants are identical to the Public Warrants sold in the IPO, including as to exercise price, exercisability
and exercise period, except that, if held by the initial private placement purchasers or their permitted assigns, they (a) may
be exercised for cash or on a cashless basis; and (b) are not subject to being called for redemption. If the Private Warrants
are held by holders other than the initial private placement purchasers or their permitted transferees, the Private Warrants will
be redeemable by us and exercisable by the holders on the same basis as the Public Warrants.
holders of the Private Warrants elect to exercise them on a cashless basis, they would pay the exercise price by surrendering
their warrants for that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number
of shares of Common Stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and
the “fair market value” (defined below) by (y) the fair market value. The “fair market value” shall mean
the average reported last sale price of the Common Stock for the 10 trading days ending on the third trading day prior to the
date on which the notice of warrant exercise is sent to the warrant agent.
Anti-Takeover Provisions of Our Charter and Bylaws and Certain Provisions of Delaware Law
Company’s Charter and Bylaws contain provisions that could have the effect of delaying or preventing changes in control
or changes in our management without the consent of our board of directors. These provisions include:
cumulative voting in the election of directors, which limits the ability of minority
stockholders to elect director candidates;
exclusive right of our board of directors to elect a director to fill a vacancy created
by the expansion of the board of directors or the resignation, death, or removal of a
director with or without cause by stockholders, which prevents stockholders from being
able to fill vacancies on our board of directors;
ability of our board of directors to determine whether to issue shares of our Preferred
Stock and to determine the price and other terms of those shares, including preferences
and voting rights, without stockholder approval, which could be used to significantly
dilute the ownership of a hostile acquirer;
the liability of, and providing indemnification to, our directors and officers;
the Court of Chancery of the State of Delaware as the exclusive forum for adjudication
over the procedures for the conduct and scheduling of stockholder meetings; and
notice procedures that stockholders must comply with in order to nominate candidates
to our board of directors or to propose matters to be acted upon at a stockholders’
meeting, which may discourage or deter a potential acquirer from conducting a solicitation
of proxies to elect the acquirer’s own slate of directors or otherwise attempting
to obtain control of the Company.
provisions, singly or together, could delay hostile takeovers and changes in control of the Company or changes in our board of
directors and management.
a Delaware corporation, we are also subject to provisions of Delaware law, including Section 203 of the DGCL, which prevents some
stockholders holding more than 15% of our outstanding Common Stock from engaging in certain business combinations without approval
of the holders of substantially all of our outstanding Common Stock. Any provision of our Charter, Bylaws, or Delaware law that
has the effect of delaying or deterring a change in control could limit the opportunity for our stockholders to receive a premium
for their shares of our Common Stock and could also affect the price that some investors are willing to pay for our Common Stock.