Item 5.02 Departure of Directors or Certain
Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(e)
Nithinan ‘Jess’ Boonyawattanapisut,
Employment Agreement
On September 16, 2021, NextPlay
Technologies, Inc. (the “Company”, “we”
and “us”) entered into an Employment Agreement with Nithinan ‘Jess’
Boonyawattanapisut, its Co-Chief Executive Officer and member of its board of directors, which agreement has an effective date of October
1, 2021. The agreement remains in effect (renewing automatically on a month-to-month basis), until either party provides the other at
least 30 days prior written notice of its intent to terminate the agreement, or until terminated as discussed below.
The agreement includes a non-compete
provision, prohibiting Ms. Boonyawattanapisut from competing against the Company during the term of the agreement and for a period of
12 months after termination thereof (subject to certain exceptions described below), in any state or country in connection with (A)
the commercial sale of products sold by the Company during the six (6) months preceding the termination date; and (B) any services
the Company commercially offered during the six (6) months prior to the termination date (collectively, the “Non-Compete”).
During the term of the agreement,
Ms. Boonyawattanapisut is to receive a base salary of $400,000 per year, which may be increased at any time at the discretion of the Compensation
Committee of the board of directors of the Company without the need to amend the agreement; an annual bonus payable at the discretion
of the Compensation Committee; other bonuses which may be granted/approved from time to time in the discretion of the Compensation Committee;
$200,000 in cash and 25,000 shares of common stock issued as a sign-on bonus under the terms of the Company’s Amended and Restated
2017 Equity Incentive Plan (the “Plan”); up to four weeks of annual paid time
off, which can be rolled-over year to year, or which in the discretion of Ms. Boonyawattanapisut, can be required to be paid in cash at
the end of any year or the termination of the agreement; and a car allowance equal to an equivalent of $1,500 per month, during the term
of the agreement.
The agreement provides Ms. Boonyawattanapisut
with the option of receiving some or all of the base salary and/or any bonus in shares of the Company’s common stock, with such
shares being based on the higher of (a) the closing sales price per share on the trading day immediately preceding the determination
by Ms. Boonyawattanapisut to accept shares in lieu of cash; and (b) the lowest price at which such issuance will not require stockholder
approval under the rules of the stock exchange where the Company’s common stock is then listed or Nasdaq ((a) or (b) as
applicable, the “Share Price” and the “Stock
Option”), provided that Ms. Boonyawattanapisut is required to provide the Company at least five business days prior written
notice if she desires to exercise the Stock Option as to any payment of compensation, unless such time period is waived by the Company.
The issuance of the shares described above is subject to the approval of the stock exchange where the Company’s common stock is
then listed or Nasdaq, and where applicable, stockholder approval, and in the sole discretion of the board of directors, may be issued
under, or outside of, a stockholder approved stock plan.
The agreement includes standard
provisions relating to the reimbursement of business expenses, indemnification rights, rights to Company property and inventions (which
are owned by the Company), dispute resolutions, tax savings, clawback rights and provisions entitling Ms. Boonyawattanapisut to receive
any fringe benefits offered by the Company to other executives (subsidized in full by the Company) including, but not limited to,
family coverage for health/medical/dental/vision, life and disability insurance.
The agreement terminates upon
Ms. Boonyawattanapisut’s death and can be terminated by the Company upon her disability (as described in the agreement), by the
Company for Cause (defined below) or Ms. Boonyawattanapisut for Good Reason (defined below). For the purposes of the agreement, (A) “Cause”
means (i) Ms. Boonyawattanapisut’s gross and willful misappropriation or theft of the Company’s or any of its subsidiary’s
funds or property; or (ii) Ms. Boonyawattanapisut’s conviction of, or plea of guilty or nolo contendere to, any felony or crime
involving dishonesty or moral turpitude; or (iii) Ms. Boonyawattanapisut materially breaches any obligation, duty, covenant or agreement
under the agreement, which breach is not cured or corrected within thirty (30) days of written notice thereof from the Company (except
for certain breaches which cannot be cured); or (iv) Ms. Boonyawattanapisut commits any act of fraud; and (B) “Good
Reason” means (i) without the consent of Ms. Boonyawattanapisut, the Company materially reduces Ms. Boonyawattanapisut’s
title, duties or responsibilities, without the same being corrected within ten (10) days after being given written notice thereof;
(ii) the Company fails to pay any regular installment of base salary to Ms. Boonyawattanapisut and such failure to pay continues
for a period of more than thirty (30) days; or (iii) a successor to the Company fails to assume the Company’s obligations
under the agreement, without the same being corrected within thirty (30) days after being given written notice thereof.
In the event of termination of
the agreement for death or disability by Ms. Boonyawattanapisut without Good Reason, or for Cause by the Company, Ms. Boonyawattanapisut
is due all consideration due and payable to her through the date of termination. In the event of termination of the agreement by Ms. Boonyawattanapisut
for Good Reason or the Company for any reason other than Cause (or if Ms. Boonyawattanapisut’s employment is terminated other than
for Cause within six (6) months before or twenty-four (24) months following the occurrence of a Change of Control (defined in
the agreement) of the Company), Ms. Boonyawattanapisut is due all consideration due and payable through the date of termination;
a lump sum payment equal to twelve (12) months of base salary; continued participation in all benefit plans and programs of the Company
for twelve (12) months after termination (or at the option of the Company, reimbursement of COBRA insurance premiums for substantially
similar coverage as the Company’s plans); and the Non-Compete will not apply to Ms. Boonyawattanapisut.
The terms of the agreement were
approved by the Company’s Compensation Committee and Audit Committee, each consisting solely of ‘independent’ members
of the Company’s board of directors.