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March 23, 2020
Eli Baker
Secretary and Vice Chairman
DEAC NV Merger Corp.
2121 Avenue of the Stars, Suite 2300
Los Angeles, California 90067
Re: DEAC NV Merger Corp.
Amendment No. 2 to Registration Statement on Form S-4
Filed March 12, 2020
File No. 333-235805
Dear Mr. Baker:
We have reviewed your amended registration statement and have the
following
comments. In some of our comments, we may ask you to provide us with
information so we
may better understand your disclosure.
Please respond to this letter by amending your registration statement
and providing the
requested information. If you do not believe our comments apply to your facts
and
circumstances or do not believe an amendment is appropriate, please tell us why
in your
response.
After reviewing any amendment to your registration statement and the
information you
provide in response to these comments, we may have additional comments. Unless
we note
otherwise, our references to prior comments are to comments in our March 3,
2020 letter.
Amendment No. 2 to Registration Statement on Form S-4 filed March 12, 2020
The Private Placement, page 96
1. We note your response to comment 7, but we are not persuaded by your
response. It
appears from the disclosure in your filing and subscription agreement
that investors in the
private placement invested with the expectation of receiving shares of
New DraftKings
and not shares of DEAC. Because such investors have already been offered
shares of
New DraftKings, and have made an investment decision to pay for and take
delivery of
shares of New DraftKings, it appears the issuance of such shares to
these investors was
conducted through the private placement. Because the private placement
of the shares of
New DraftKings to these investors appears to be complete, this
transaction would not be
registered on the Form S-4. Therefore, please remove the private
placement shares from
Eli Baker
FirstName LastNameEli Baker
DEAC NV Merger Corp.
Comapany2020
March 23, NameDEAC NV Merger Corp.
March 23, 2020 Page 2
Page 2
FirstName LastName
your proxy/registration statement, or provide us with a detailed legal
analysis as to why
you are eligible to register these shares on this S-4
proxy/registration statement.
Notes to the Unaudited Pro Forma Combined financial Statements
Basis of Presentation, page 163
2. You continue to disclose herein you are evaluating the accounting
treatment of the
issuance of New DraftKings Class B common stock in connection with the
Business
Combination. Please provide us and disclose the basis for your
accounting treatment
when the evaluation is completed.
Management's Discussion and Analysis of Financial Condition and Results of
Operations, page
181
3. We note your disclosure on page 47 that "[t]he occurrence and threat
of coronavirus could
cause professional sports leagues in the United States to cancel or
postpone sporting
events or hold them without live spectators. In the event that a
public health pandemic,
such as the coronavirus, results in cancellation of sporting events or
significant changes in
how they are conducted, this could reduce customers' use of, or
spending on, our product
offerings, which could adversely impact our business, financial
condition and results of
operations." We note that the NBA has suspended the remainder of this
year's season, the
NHL has suspended the remainder of this year's season, the NCAA Men's
basketball
tournament has been cancelled, and the MLB has delayed its 2020
baseball season, all due
to the spread of COVID-19. We further note the "Important Coronavirus
Update"
contained on your website relating to refunds you will issue and the
closure of certain
retail sportsbook operations. Please revise your disclosure to explain
how the sporting
event cancellations and the continued spread of the virus have
materially impacted, or
may materially impact, your financial condition and results of
operations.
DraftKings' Executive and Director Compensation
Summary Compensation Table, page 292
4. Please update your Executive Compensation Disclosure to include
non-equity incentive
plan bonus amounts for 2019. In this regard, we note that footnote 3
to your Summary
Compensation Table states that "[t]he bonus earned by each Named
Executive Officer
under [y]our annual bonus plan for 2019 is . . . expected to be
determined by March 13,
2020."
Item 21. Exhibits and Financial Statement Schedules, page II-1
5. We note that you have filed a "form of" tax opinion of Winston &
Strawn LLP as an
exhibit to your registration statement, and the footnotes to your
exhibit index indicate that
this exhibit 8.1 was previously filed. Please amend your filing to
include an executed tax
opinion, or tell us why you are not required to do so. See Item
601(b)(8) of Regulation S-
Eli Baker
DEAC NV Merger Corp.
March 23, 2020
Page 3
K, and Section III.A. of Staff Legal Bulletin 19, Legality and Tax
Opinions in Registered
Offerings.
General
6. We note that, in your letter dated February 13, 2020, in response to
comment 9 in our
comment letter dated February 2, 2020, you stated that "DraftKings is
currently reviewing
the Kambi agreement and believes that it contains confidentially
sensitive information, but
will file a redacted copy of the agreement in a subsequent filing of the
proxy
statement/prospectus, subject to first seeking confidential treatment for
certain
competitively sensitive information contained in the agreement." It
appears that you did
not file this exhibit with your amended proxy/registration statement.
Please amend your
filing to include this exhibit, or tell us why you do not believe you are
required to do so,
considering that you have undertaken to do so in a previous response
letter.
You may contact Aamira Chaudhry at (202) 551-3389 or Doug Jones at
(202) 551-
3309 if you have questions regarding comments on the financial statements and
related
matters. Please contact Katherine Bagley at (202) 551-2545 or Erin Jaskot at
(202) 551-
3442 with any other questions.
Sincerely,
FirstName LastNameEli Baker
Division of
Corporation Finance
Comapany NameDEAC NV Merger Corp.
Office of Trade &
Services
March 23, 2020 Page 3
cc: Elliott Smith
FirstName LastName