Exhibit 3.1
AMENDMENT
TO THE
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
LANDCADIA HOLDINGS, INC.
Pursuant to Section 242 of the
Delaware General Corporation Law
The undersigned, being a duly authorized officer ofLANDCADIA HOLDINGS, INC. (the “Corporation”), a corporation existing under the laws of the State of Delaware, does hereby certify as follows:
| 1. | The name of the Corporation is Landcadia Holdings, Inc. |
| 2. | The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware on November 19, 2008 and was amended and restated on September 15, 2015 and further amended on October 1, 2015 (the “Original Certificate”). |
| 3. | The second amended and restated certificate of incorporation, which restated and further amended the provisions of the Original Certificate, was filed with the Secretary of State of the State of Delaware on May 25, 2016 (the “Amended and Restated Certificate”). |
| 4. | This Amendment to the Amended and Restated Certificate (this “Amendment”) amends the Amended and Restated Certificate. |
| 5. | This Amendment was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. |
| 6. | The text of Section 9.1(b) is hereby amended and restated to read in full as follows: |
“(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, as initially filed with the Securities and Exchange Commission on April 28, 2016, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay franchise and income taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earlier of (i) the completion of the initial Business Combination, (ii) the redemption of any Offering Shares (as defined below) as described inSection 9.7 and (iii) the redemption of 100% of the Offering Shares if the Corporation is unable to complete its initial Business Combination by December 14, 2018. Holders of shares of the Corporation’s Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are affiliates of Fertitta Entertainment, Inc. or Jefferies Financial Group Inc. (f/k/a Leucadia National Corporation) (collectively, the “Sponsors”)) are referred to herein as “Public Stockholders.”
| 7. | The text of Section 9.2(d) is hereby amended and restated to read in full as follows: |
“(d) In the event that the Corporation has not consummated a Business Combination by December 14, 2018, the Corporation shall (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 subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes (less up to $50,000 of such net interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public 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 the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.”
| 8. | The text of Section 9.7 is hereby amended and restated to read in full as follows: |
“Section 9.7Additional Redemption Rights. If, in accordance withSection 9.1(a), any amendment is made toSection 9.2(d) that would affect the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated a Business Combination by December 14, 2018, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes, divided by the number of then outstanding Offering Shares. The Corporation’s ability to provide such opportunity is subject to the Redemption Limitation.”
IN WITNESS WHEREOF, I have signed this Amendment this 30th day of May, 2018.
| /s/ Steven L. Scheinthal | |
| Name: Steven L. Scheinthal | |
| Title: Vice President, General Counsel and Secretary |
[Signature Page to Amendment to Second Amended and Restated Certificate of Incorporation]