United States securities and exchange commission logo
October 6, 2020
Eli Baker
President, Chief Financial Officer and Secretary
Flying Eagle Acquisition Corp.
2121 Avenue of the Stars, Suite 2300
Los Angeles, CA 90067
Re: Flying Eagle
Acquisition Corp.
Registration
Statement on Form S-4
Filed September 8,
2020
File No. 333-248638
Dear Mr. Baker:
We have reviewed your 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.
Form S-4 filed September 8, 2020
Cover Page
1. You disclose here and
elsewhere how the Cash Consideration will be calculated and total
merger consideration
will be determined. We encourage you to provide context to this
discussion by
explaining the reasons for structuring the consideration in this manner. For
example, explain why
you are offering both cash and stock, why the amount of cash that
can be elected has been
capped in both total amount and the percentage of a Skillz
stockholder's total
shares, why you are subtracting $250 million from the cash
consideration and why
certain shareholders have entered into irrevocable cash and stock
elections (disclosing
the amount of New Skillz shares represented by the stock elections).
Furthermore, please
provide an estimated range of the Cash Consideration based upon no
redemptions, the
maximum amount of redemptions that allow the company to meet the
Eli Baker
FirstName LastNameEli
Flying Eagle AcquisitionBaker
Corp.
Comapany
October NameFlying Eagle Acquisition Corp.
6, 2020
October
Page 2 6, 2020 Page 2
FirstName LastName
Minimum Proceeds Condition of $550 million, and the current or
estimated amount of
Skillz' cash and cash equivalents. Finally, provide a cross-reference
to disclosure later in
the document that provides examples of the amount of cash and New
Skillz shares a Skillz
shareholder could receive per share under different scenarios.
2. You disclose that Mr. Andrew Paradise, your founder and CEO, is
expected to have over
80% of the combined voting power of the company and will control it.
Please revise to
clarify that the company will be a "controlled company" pursuant to
NYSE listing
standards and provide a cross-reference to a longer discussion of the
effects of this status.
3. Disclosure indicates that the percentage of outstanding shares of FEAC
Class A common
stock subject to the Voting Agreements, taken together with the
Sponsor's agreement to
vote in favor of the Business Combination, is approximately 28%.
Please separately
disclose the percentage of FEAC Class A common stock subject to Voting
Agreements
that are not held by any of the Sponsors.
What FEAC Stockholder vote is required for the approval of each proposal
brought before the
Special Meeting...?, page 10
4. You disclose that FEAC stockholders owning approximately 28% of the
shares have
entered into voting agreements to vote in favor of the business
combination proposal.
You then disclose the percentage of remaining shares needed to vote
for the business
combination proposal if all FEAC's outstanding shares were voted.
Since the business
combination proposal requires only the affirmative vote of the
majority of the votes cast
by FEAC stockholders, also disclose the percentage of remaining shares
needed to vote
for the business combination proposal if only a quorum of FEAC shares
are present.
What equity stake will current FEAC Stockholders and Skillz stockholders
hold...?, page 12
5. To balance the disclosure about the equity stake in New Skillz after
the business
combination, please provide a separate question and answer with a
table regarding the
voting interests after the business combination. In each table,
provide a separate row for
Mr. Andrew Paradise and his affiliates and for the PIPE investors.
What happens if a substantial number of the public stockholders vote in
favor...?, page 13
6. You state here that the consummation of the Business Combination is
conditioned upon
FEAC having a certain amount of cash available at closing. Please
quantify this
Minimum Proceeds Condition. In the event Skillz does waive this
condition, please
clarify how you intend to communicate this to your stockholders.
Summary of the Proxy Statement/Prospectus
FEAC s Board of Directors Reasons for Approval of the Business
Combination, page 27
7. In discussing Skillz user engagement you refer to customers that have
proven engaging
and sticky. You further state that as its platform offers more
content, Skillz customers
Eli Baker
Flying Eagle Acquisition Corp.
October 6, 2020
Page 3
have played more games. Please clarify how you define customers in
this disclosure or
consider revising such reference. In this regard, we note that Skillz
has determined that
the game developer is their customer for financial reporting purposes.
This comment
applies to disclosure throughout your filing.
Risk Factors
New Skillz's certificate of incorporation designates the Court of Chancery...,
page 52
8. We note that your exclusive forum provision designates the federal
district courts of the
United States as the exclusive forum for Securities Act claims. Please
state that investors
cannot waive compliance with the federal securities laws and the rules
and regulations
thereunder. Additionally, highlight potential enforceability concerns
in light of the fact
that Section 22 of the Securities Act creates concurrent jurisdiction
for federal and state
courts over all suits brought to enforce any duty or liability created
by the Securities Act
or the rules and regulations thereunder.
We rely on games developed by a limited number of third party developer
partners. . ., page 54
9. You disclose that the agreements with game developers are subject to
termination in
certain circumstances. Please revise to describe the termination
provisions related to these
agreements. In this regard, on page F-33 you state that agreements
with game developers
can generally be terminated for convenience by either party upon
thirty days prior written
notice.
10. You disclose that games provided by two developer partners accounted
for 83% and 7%
of your revenue for the year ended December 31, 2019 and 66% and 21%
of your revenue
for the 6 months ended June 30, 2020. Please revise here or elsewhere
to identify these
two developers and to summarize the material terms of your agreements
with these
developers, such as the terms of the agreements, termination
provisions or exclusivity
provisions. Additionally, in light of the significance of the
developer whose games
accounted for 83% and 66% of your revenue for the year ended December
31, 2019
and the 6 months ended June 30, 2020, respectively, please file
material agreements with
this developer or tell us why this is not required. Consider Item
601(b)(10)(ii)(b) of
Regulation S-K. Lastly, to the extent any single game accounted for a
material portion of
your revenue, please revise to identify the game and to include a
discussion of the related
risks.
Vote Required
FirstName and FEACBaker
LastNameEli Board Recommendation, page 80
Comapany
11. NameFlying
Please Eagle Acquisition
disclose whether Corp. Class A and Class B common
stock will vote
holders of FEAC
Octobertogether
6, 2020asPage
a single
3 class on the proposals.
FirstName LastName
Eli Baker
FirstName LastNameEli
Flying Eagle AcquisitionBaker
Corp.
Comapany
October NameFlying Eagle Acquisition Corp.
6, 2020
October
Page 4 6, 2020 Page 4
FirstName LastName
The Business Combination Proposal
Background of the Business Combination, page 88
12. You indicate that the FEAC board supported the retention of Skillz's
super-voting
governance structure. Please indicate how the combined company's
super-voting
corporate governance structure compares to Skillz's corporate
governance structure. For
example, disclose whether Mr. Paradise will have more votes or other
rights in the
combined company than he currently has in Skillz.
FEAC's Board of Directors' Reasons for Approval of the Business Combination,
page 91
13. You discuss many positive factors related to Skillz's business that
FEAC's board
considered when deciding to approve the acquisition. While we note a
discussion of
certain negative factors, it appears they would be applicable to any
acquisition FEAC
would make. Accordingly, please revise to balance your disclosure by
also discussing
material negative factors related to Skillz's business and the
structure of the business
combination that were considered by the FEAC board. For example, if
the board
considered regulatory risks related to Skillz's business operations,
its reliance on two
game developers or the institution of a dual-class, super-voting
governance structure,
please discuss these and other material negative factors here and in
the related Q&A on
page 14.
Satisfaction of 80% Test, page 94
14. Please discuss how the FEAC board determined the $3.5 billion
valuation of Skillz.
Discuss the material projections and other analyses the board
considered. In this regard,
we note references on pages 89-93 to the evaluation of financial
information, projections
and comparable companies, including the creation of an independent
financial model in
conjunction with management of Skillz, financial models prepared by
each respective
company, and projections of net revenue and gross margin for 2020 and
of EBIDTA
margins in the future.
The Advisory Charter Proposals, page 120
15. We note your disclosure indicating that you are providing shareholders
the opportunity to
separately vote upon numerous charter provisions in the proposed
charter "in accordance
with SEC guidance." Clarify that you are giving shareholders the
opportunity to present
their separate views on important corporate governance provisions.
Unaudited Pro Forma Condensed Combined Financial Statements
Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheet, page 146
16. To facilitate an understanding of the changes to the company's capital
structure, please
provide the number of shares related to each pro forma adjustment.
Also, disclose the
impact of Skillz restricted shares for which vesting will accelerate
upon the merger.
Eli Baker
FirstName LastNameEli
Flying Eagle AcquisitionBaker
Corp.
Comapany
October NameFlying Eagle Acquisition Corp.
6, 2020
October
Page 5 6, 2020 Page 5
FirstName LastName
Lastly, include summarized disclosure of the historical and pro forma
Class A and B
common shares outstanding under each redemption scenario.
Loss per Share, page 147
17. Please discuss your treatment of the dual-class structure for pro
forma loss per share
calculations. Quantify the number of shares underlying the warrants
that were excluded
from the calculation of pro forma diluted loss per share. Also,
explain why the Earnout
Shares are not considered participating securities and disclose
ownership rights that may
exist while such shares are in escrow.
18. Please provide us with your calculations that support the weighted
average Current Skillz
stockholders shares outstanding on both a no redemption and maximum
redemption
basis. Also, explain how this compares to the 297.9 million of Class A
and Class B
common shares being registered in this offering.
Business of New Skillz
Overview, page 162
19. You state that in 2020 you expect to power more than two billion
tournaments
and facilitate $1.6 billion in paid entry fees on your platform.
Please revise to clarify how
you define powering a tournament. Also, tell us and revise to disclose
the number of
tournaments and GMV for each period in which financial statements are
provided.
Lastly, disclose the expected revenues to be generated from the
anticipated fees.
20. Please balance the disclosure of your revenues for 2018, 2019 and the
first six months of
2020 with disclosure of your net losses for the same periods.
Our Developer Community, page 167
21. You state that as of June 30, 2020, you had over 9,000 registered game
developers that
have launched a game on your system. To add context to this
disclosure, please revise
here to also clarify that during fiscal 2019 and to date in fiscal
2020 you generated
approximately 90% and 82% of your revenues, respectively from two
developers. Similar
disclosures should be made in your MD&A Overview discussion.
Regulation, page 172
22. You state that you use proprietary algorithms and data science tools
to ensure that the
degree of skill involved in games on your platform is sufficient to
comply with applicable
state gambling and skill-based gaming laws, and also that these laws
are subject to
interpretation and evolving. Please clarify whether you have received
some type of
confirmation from the relevant government authorities, such as in the
form of a license or
other approval, that the games on your platform are in compliance with
existing federal
and state laws or whether this is based on your belief. In addition,
disclose the 41 states
and jurisdictions in which you operate.
Eli Baker
FirstName LastNameEli
Flying Eagle AcquisitionBaker
Corp.
Comapany
October NameFlying Eagle Acquisition Corp.
6, 2020
October
Page 6 6, 2020 Page 6
FirstName LastName
Management's Discussion and Analysis of Financial Condition and Results of
Operations of
Skillz
Overview, page 176
23. You state that your platform hosts an average of 5 million daily
tournaments. Please
clarify whether this includes both paid and free contests. Also,
balance your disclosure of
GMV with a discussion of revenue here.
Our Financial Model, page 176
24. On page 71 you identify MAU and ARPU as key metrics. Please disclose
MAU and
ARPU for each period presented, as well as any other metrics you use
in monitoring your
ability to attract and retain users. Also, revise your definition of
MAU to clarify whether
this measure includes both paying and non-paying users. Tell us the
number of paying
users for each period and specifically tell us whether this is a
metric used to manage your
business and if not, explain why. Also, please discuss how you monitor
your ability to
convert active users to paying users, quantifying any additional
metrics used for each
period presented. In this regard, we note your disclosure on page 164
that only 10% of
your MAUs enter into paid contests. Refer to Item 303(a)(3) of
Regulation S-K and
Section I of SEC Release No. 33-10751.
25. In describing the extent of user engagement, you disclose that in 2019
paying users spent
an average of 62 minutes per day on your platform. Please tell us how
this average was
determined and whether it is consistent throughout the year. Also, for
comparison
purposes, disclose the averages for fiscal 2018 and the 6 months ended
June 30, 2020.
26. Throughout the filing, you refer to unit economics numerous times. You
also reference an
estimated four-month customer payback period and a three-year lifetime
value of 4.7
times total user acquisition costs, and you state that once acquired,
each user cohort
contributes predictable revenue over the cohort's life. Please address
the following as it
relates to these disclosures:
Describe what you consider to be the "unit" and the reasons for
this determination;
Disclose how you define cohort and clarify at what point you
consider a user and/or
user cohort to be acquired;
Clarify how you calculate the life-time value of your cohorts and
average payback
period;
Describe the types of costs that are considered user acquisition
costs and clarify
whether this includes referral fees paid to affiliates; and
Explain how user incentives are considered in your unit economics
analyses,
including incentives classified within sales and marketing that
may directly relate to
game play.
27. Please describe your affiliate partner program, the significance of
revenues generated
from affiliate referrals, and how fees paid to affiliates impact your
results of operations.
Also, tell us how you account for such fees, including how they are
presented in your
Eli Baker
FirstName LastNameEli
Flying Eagle AcquisitionBaker
Corp.
Comapany
October NameFlying Eagle Acquisition Corp.
6, 2020
October
Page 7 6, 2020 Page 7
FirstName LastName
income statement. If there are any trends in the proportion of
revenues earned through
affiliates, disclose such trends and the impact on your results
operations. In your
response, please tell us the gross entry fees from users acquired
through affiliate partners,
the net revenues reported, amount of referral fees paid to affiliates,
and the amount of
referral fees shared with game developers based on the developer terms
of service for each
period presented. Please refer to Item 303(a)(3)(ii) of Form 10-K and
Part III.B of SEC
Release 33-8350.
28. You define Take Rate as the percentage of the entry fees retained by
Skillz for each paid
contest, after prizes and incentives for players and the profit share
to developers. Please
clarify the specific costs, prizes, and end user incentives that are
deducted from the player
entry fees in arriving at the amount that is shared with developers.
Clarify what portion of
this amount is paid to the developer. In this regard, you state that
Skillz withholds 16-
20% of the total entry fees when distributing prize money as a
commission. Explain
further how the commissions withheld relates to the portion paid to
the developer. Also,
disclose the specific costs, prizes and end user incentives that are
deducted from the
company s share in arriving at your take rate and specifically
address how league prizes
are factored into your calculations.
Material U.S. Federal Income Tax Considerations, page 234
29. You state that this section "is a discussion of certain material U.S.
federal income tax
considerations for holders of shares of FEAC Class A common stock that
receive shares
of FEAC Class A common stock in the Business Combination or that elect
to have their
FEAC Class A common stock redeemed for cash if the Business
Combination is
completed." Please revise to discuss the material tax consequences of
the business
combination to each company's shareholders and the company. In this
regard, the merger
agreement indicates that the parties intend for the merger and related
transactions to be tax
free either under Section 368(a) or Section 351 of the Internal
Revenue Code. If you
believe the business combination will be tax free, please disclose an
opinion of counsel
that supports this conclusion. Furthermore, indicate that the receipt
of a tax opinion as to
the tax free nature of the transaction is not a condition to the
merger. Also provide
summary and risk factor disclosure to address the tax consequences.
Refer to Item
601(b)(8) of Regulation S-K and our Staff Legal Bulletin No. 19.
Skillz Inc. Financial Statements
Note 2. Summary of Significant Accounting Policies
Revenue Recognition, page F-32
30. You state that monetization services provided to developers includes
running third-party
marketing campaigns and that the various monetization activities are
considered a single
performance obligation. Please describe for us the nature of the
third-party marketing
activities and explain why these activities are not distinct from the
other monetization
services activities. Refer to ASC 606-10-25-21. In this regard we note
in the investor
Eli Baker
Flying Eagle Acquisition Corp.
October 6, 2020
Page 8
presentation filed as Exhibit 99.2 of your September 2, 2020 Form 8-K you
refer to Skillz
offering Marketing-as-a-Service. Also, tell whether you are the principal
or agent for
these services.
31. We note from your disclosure that you are entitled to a revenue share
based on entry fees
net of end-user prizes and other costs. Please revise to clarify, if
true, that end-user
incentives are not paid for by game developers.
Cash and Cash Equivalents, page F-34
32. We note that you collect payments from the end-user gameplayers and are
responsible for
distributing prize money on behalf of the game developers. Please
disclose how you
account for the cash collected and dispersed on behalf of the game
developers and where
such funds are classified on your balance sheet. Also, tell us whether
you have legal title
to such funds and whether there are any restrictions on such funds.
We remind you that the company and its management are responsible for
the accuracy
and adequacy of their disclosures, notwithstanding any review, comments, action
or absence of
action by the staff.
Refer to Rules 460 and 461 regarding requests for acceleration. Please
allow adequate
time for us to review any amendment prior to the requested effective date of
the registration
statement.
You may contact Joyce Sweeney, Staff Accountant, at (202) 551-3449 or
Kathleen
Collins, Accounting Branch Chief, at (202) 551-3499 if you have questions
regarding comments
on the financial statements and related matters. Please contact Mitchell
Austin, Staff
Attorney, at (202) 551-3574 or Kathleen Krebs, Special Counsel, at (202)
551-3350 with any
other questions.
Sincerely,
FirstName LastNameEli Baker
Division of
Corporation Finance
Comapany NameFlying Eagle Acquisition Corp.
Office of Technology
October 6, 2020 Page 8
cc: Joel Rubinstein, Esq.
FirstName LastName