UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities
Exchange Act of 1934
(Amendment No. )
Filed by the Registrant ☒
Filed by a Party other than the Registrant ☐
Check the appropriate box:
| ☒ |
Preliminary
Proxy Statement |
| ☐ |
Confidential,
For Use of the Commission Only (As Permitted by Rule
14a-6(e)(2)) |
| ☐ |
Definitive
Proxy Statement |
| ☐ |
Definitive
Additional Materials |
| ☐ |
Soliciting
Material under Rule 14a-12 |
|
NEXTPLAY
TECHNOLOGIES, INC. |
| (Name
of Registrant as Specified In Its Charter) |
|
|
| (Name
of Person(s) Filing Proxy Statement, if other than the
Registrant) |
Payment of Filing Fee (Check the appropriate box):
| ☐ |
Fee
paid previously with preliminary materials. |
☐ Fee computed on table in exhibit required by Item 25(b) per
Exchange Act Rules 14a- 6(i)(1) and 0-11.
☐ Check box if any part of the fee is offset as provided by
Exchange Act Rule 0-11(a)(2) and identify the filing for which the
offsetting fee was paid previously. Identify the previous filing by
registration statement number, or the form or schedule and the date
of its filing.
PRELIMINARY PROXY MATERIALS SUBJECT TO COMPLETION DATED MAY 31,
2022
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
June [__], 2022
Dear Stockholder:
The board of directors (“Board”) and officers of NextPlay
Technologies, Inc., a Nevada corporation, join me in extending to
you a cordial invitation to attend the Special Meeting of our
stockholders (the “Meeting”) to be held on July 21, 2022 at 9:00
a.m. Eastern Time (subject to postponement(s) or adjournment(s)
thereof). The Meeting will be held virtually via live audio webcast
at https://agm.issuerdirect.com/nxtp (please note this link is case
sensitive). For further information about the virtual Meeting,
please see the Questions and Answers about the Meeting beginning on
page 1 of our Proxy Statement.
In response to the COVID-19 pandemic and as part of our efforts to
conserve environmental resources and prevent unnecessary corporate
expense, we are using the “Notice and Access” method of providing
proxy materials to you via the Internet pursuant to the regulations
promulgated by the U.S. Securities and Exchange Commission. We
believe that this process will provide you with a safe, convenient
and efficient way to access your proxy materials and vote your
shares, while also allowing us to conserve natural resources and
reduce the costs of printing and distributing the proxy materials
for the Meeting by postal mail. On or about June [__], 2022, we are
mailing to our stockholders a one-page Notice of Internet
Availability of Proxy Materials (the “Notice”) containing
instructions on how to access our Proxy Statement and vote by mail
or fax, or electronically via telephone or the Internet. The Notice
will also contain instructions on how to receive a paper copy of
your proxy materials.
Details of the business to be conducted at the Meeting are
described in the Notice and in the accompanying Proxy Statement.
Please give this information your careful attention.
Whether or not you attend the Meeting, it is important that your
shares be represented and voted. You may submit your vote on the
Internet or by fax, telephone or mail. Please refer to the Notice
for instructions on submitting your vote. If you decide to attend
the virtual Meeting, you will also be able to submit your votes, as
well as any questions that you may have, during the Meeting through
the designated website, even if you have previously submitted your
proxy. Voting at the Meeting will supersede any votes previously
cast.
Our Board has unanimously approved the proposals set forth in the
Proxy Statement and we recommend that you vote in favor of each of
such proposals.
We look forward to seeing you (virtually) on July 21,
2022. Your vote and participation in our governance is very
important to us.
Sincerely,
|
|
|
| John
Todd Bonner |
|
| Chairman |
|
PRELIMINARY PROXY MATERIALS SUBJECT TO COMPLETION DATED MAY 31,
2022
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
NOTICE OF THE SPECIAL MEETING OF
STOCKHOLDERS
TO BE HELD ON JULY 21, 2022
To the Stockholders of NextPlay Technologies, Inc.:
We are pleased to provide you notice of, and to invite you to
attend, the Special Meeting of the stockholders (the “Meeting”) of
NextPlay Technologies, Inc., a Nevada corporation (“NextPlay,” the
“Company,” “we,” and “us”), which will be held on July 21, 2022 at
9:00 a.m. Eastern Time (subject to postponement(s) or
adjournment(s) thereof). The Meeting will be held virtually via
live audio webcast at https://agm.issuerdirect.com/nxtp (please
note this link is case sensitive). See also “Instructions for the
Virtual Meeting,” beginning on page 1 of our Proxy Statement for
additional information regarding attending the virtual Meeting. The
Meeting is being held for the following purposes:
1. To consider and vote upon a proposal to approve, in
accordance with Nasdaq Listing Rule 5635(d), an amendment to the
exercise price provisions of those warrants issued in connection
with a registered direct offering of the Company’s securities
pursuant to that Stock Purchase Agreement entered into by and among
the Company and certain investors on November 1, 2021, and
specifically to remove the $1.97 floor price (the “Floor Price”) of
the warrants such that the exercise price of the warrants may be
reduced below the Floor Price in the event that the Company issues
or enters into any agreement to issue securities for consideration
less than the then current exercise price of the warrants;
2. To consider and vote upon a proposal to authorize our board of
directors (the “Board”), in its discretion, to adjourn the Meeting
to another place, or a later date or dates, if necessary or
appropriate, to solicit additional proxies in favor of the proposal
listed above at the time of the Meeting; and
3. To transact such other business as may properly come before the
Meeting or any adjournment or postponement thereof.
The matters are more fully discussed in the attached Proxy
Statement. Any action may be taken on any one of the foregoing
proposals at the Meeting on the date specified above or on any date
or dates to which the meeting may be postponed or adjourned. We do
not expect to transact any other business at the Meeting.
Our Board recommends that you vote your shares “For” each of
the foregoing proposals.
We have elected to provide access to our proxy materials primarily
electronically via the Internet, pursuant to the “Notice and
Access” method regulations promulgated by the U.S. Securities and
Exchange Commission. We believe this method expedites our
stockholders’ safe receipt of proxy materials while the COVID-19
pandemic remains a concern, conserves natural resources and
significantly reduces the costs of the Meeting. On or about June
[__], 2022, we are mailing a one-page Notice of Internet
Availability of Proxy Materials (the “Notice”) to each of our
stockholders entitled to notice of and to vote at the Meeting,
which Notice contains instructions for accessing the attached Proxy
Statement via the Internet, as well as voting instructions. The
Notice also includes instructions on how you can receive a paper
copy of your proxy materials. The Proxy Statement is available on
the Internet at:
https://www.nextplaytechnologies.com/investors/sec-filings.
Our Board has fixed the close of business on May 31, 2022 as
the record date for determining those stockholders entitled to
notice of, and to vote at, the Meeting and any adjournment or
postponement thereof. Accordingly, only stockholders of record at
the close of business on that date are entitled to notice of, and
to vote at, the Meeting. A complete list of our stockholders
entitled to vote at the Meeting will be available for examination
at our offices in Sunrise, Florida, during ordinary business hours
for a period of 10 days prior to the Meeting.
We cordially invite you to virtually attend the virtual Meeting.
Your vote is important no matter how large or small your holdings
in the Company may be. If you do not expect to be present at the
Meeting virtually, you are urged to promptly complete, date, sign,
and return the proxy card or submit your vote using another method
included in the Notice you received in the mail. If you hold your
shares beneficially in street name through a nominee, you should
follow the instructions you receive from your nominee to vote these
shares. Please review the instructions on each of your voting
options described in the enclosed Proxy Statement as well as in the
Notice you received in the mail. This will not limit your right to
virtually attend or vote at the Meeting, but will help to secure a
quorum and avoid added solicitation costs. You may revoke your
proxy at any time before it has been voted at the Meeting.
Even if you plan to attend the virtual Meeting, we request that
you submit a proxy by following the instructions provided in the
Notice you received in the mail as soon as possible in order to
ensure that your shares will be represented at the Meeting if you
are unable to attend.
| By
Order of the Board of Directors |
|
| |
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| John
Todd Bonner |
|
| Chairman |
|
Sunrise, Florida
June [__], 2022
|
IMPORTANT:
WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, WE ASK YOU TO VOTE
BY TELEPHONE, MAIL, FAX OR ON THE INTERNET USING THE INSTRUCTIONS
PROVIDED IN THE NOTICE. |
TABLE OF CONTENTS
PRELIMINARY PROXY MATERIALS SUBJECT TO COMPLETION DATED MAY 31,
2022
PROXY STATEMENT
FOR SPECIAL MEETING OF STOCKHOLDERS
GENERAL
INFORMATION
The enclosed proxy is solicited on behalf of the Board of Directors
(the “Board”) of NextPlay Technologies, Inc. (“NextPlay,” “we,”
“us,” “our” or the “Company”) for use in connection with the
Company’s solicitation of proxies for use at our Special Meeting of
our stockholders (the “Meeting”) to be held on July 21, 2022 at
9:00 a.m. Eastern Time, and at any postponement(s) or
adjournment(s) thereof. The Meeting will be held virtually via live
webcast at https://agm.issuerdirect.com/nxtp (please note this link
is case sensitive). See also “Instructions for the Virtual
Meeting,” beginning on page 1 of this Proxy Statement for
additional information regarding attending the virtual Meeting.
We have elected to provide access to the proxy materials for the
Meeting primarily over the Internet in accordance with the U.S.
Securities and Exchange Commission’s (the “SEC”) “Notice and
Access” rules. On or about June [__], 2022, we are mailing a
one-page Notice of Internet Availability of Proxy Materials
(the “Notice”) to each of our stockholders entitled to notice
of and to vote at the Meeting. The Notice contains instructions for
accessing this Proxy Statement and Meeting voting instructions. The
Notice also includes instructions on how you can receive a paper
copy of your proxy materials by postal mail.
The Proxy Statement will also be accessible online on or about June
[__], 2022 at:
https://www.nextplaytechnologies.com/investors/sec-filings/. You
are invited to attend the Meeting and are requested to vote on the
proposals described in this Proxy Statement.
Information Contained
In This Proxy Statement
The information contained in this Proxy Statement relates to the
proposals to be voted on at the Meeting, the voting process,
ownership of our outstanding securities, and certain other required
information.
Instructions For The
Virtual Meeting
The Meeting will be a completely virtual meeting. There will be no
physical meeting location. The Meeting will only be conducted via
live webcast.
To participate in the virtual Meeting, visit
https://agm.issuerdirect.com/nxtp (please note this link is case
sensitive) and enter the control number on your proxy card, or
on the instructions included in the Notice that you received in the
mail.
You may vote during the Meeting by following the instructions
available on the Meeting website during the Meeting. To the best of
our knowledge, the virtual meeting platform is fully supported
across browsers (Internet Explorer, Firefox, Chrome, and
Safari) and devices (desktops, laptops, tablets, and cell
phones) running the most updated version of applicable
software and plugins. Participants should ensure they have a strong
Internet connection wherever they intend to participate in the
meeting. Participants should also allow plenty of time to log in
and ensure that they can hear streaming audio prior to the start of
the meeting.
Questions pertinent to meeting matters will be answered during the
Meeting, subject to time constraints. Questions which are not
pertinent to Meeting matters will not be answered.
Important Notice
Regarding the Availability of Proxy Materials
Pursuant to rules adopted by the SEC, we have elected to use the
Internet as the primary means of furnishing proxy materials to our
stockholders. Accordingly, we are mailing a Notice to each of our
stockholders entitled to notice of and to vote at the Meeting. All
stockholders will have the ability to access the proxy materials
via the Internet at https://www.iproxydirect.com/nxtp or
request a printed set of the proxy materials. Instructions on how
to access the proxy materials over the Internet or to request a
printed copy may be found in the Notice. The Notice contains a
control number that you will need to vote your shares. Please keep
the Notice for your reference through the date of the Meeting. In
addition, stockholders may request to receive proxy materials in
printed form by mail or electronically by email on an ongoing
basis. We encourage our stockholders to take advantage of the
availability of the proxy materials on the Internet to help reduce
the environmental impact of our Meetings.
Record Date and Shares
Entitled to Vote
Our Board has fixed the close of business on May 31, 2022, as the
record date for determining the holders of shares of our common
stock entitled to receive notice of and to vote at the Meeting and
any adjournments or postponements thereof. Only holders of record
of shares of our common stock at the close of business on that date
will be entitled to vote at the Meeting and at any adjournment or
postponement thereof. As of the record date, there
were 117,436,081 shares of our common stock issued and
outstanding and entitled to vote at the Meeting, which shares were
held by approximately 510 holders of record.
Each share of common stock is entitled to one vote on each proposal
presented at the Meeting and at any adjournment or postponement
thereof, for 117,436,081 total voting shares.
In order for us to satisfy our quorum requirements, the holders of
at least 33 1/3% of our total number of outstanding voting shares
entitled to vote at the Meeting must be present. You will be deemed
to be present if you attend the Meeting or if you submit a proxy
(including through the mail, by fax or by telephone or the
Internet) that is received at or prior to the Meeting (and not
revoked).
If your proxy is properly executed and received by us in time to be
voted at the Meeting, the shares represented by your proxy
(including those given through the mail, by fax or by telephone or
the Internet) will be voted in accordance with your instructions.
If you execute your proxy but do not provide us with any
instructions, your shares will be voted “For” each of the
proposals set forth in this Proxy Statement, or as otherwise
determined by the proxies.
The only matters that we expect to be presented at our Meeting are
set forth in this Proxy Statement. If any other matters properly
come before the Meeting, the persons named in the proxy card will
vote the shares represented by all properly executed proxies on
such matters in their best judgment.
Voting
Process
If you are a stockholder of record, there are five ways to
vote:
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● |
At
the virtual Meeting. You may vote during the Meeting by
following the instructions available on the Meeting website during
the Meeting. |
| |
● |
Via
the Internet. You may vote by proxy via the Internet by
following the instructions provided in the Notice you
received. |
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● |
By
Telephone. You may vote by proxy by calling the toll-free
number found on the Notice you received. |
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● |
By
Fax. If you requested to receive printed proxy materials, you
may vote by proxy by faxing your proxy to the number found on the
proxy card. |
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● |
By
Mail. If you requested to receive printed proxy materials, you
may vote by proxy by filling out the proxy card and returning it in
the postage-paid envelope provided. |
Revocability of
Proxies
The presence of a stockholder at our Meeting will not automatically
revoke that stockholder’s proxy. However, a stockholder may revoke
their proxy at any time prior to its exercise by:
| |
● |
submitting
a written revocation prior to the Meeting to the Corporate
Secretary, NextPlay Technologies, Inc., 1560 Sawgrass Corporate
Parkway, Suite 130, Sunrise, Florida 33323; |
| |
|
|
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● |
submitting
another signed and later dated proxy card and returning it by mail
or fax in time to be received before our Meeting or by submitting a
later dated proxy by the Internet or telephone prior to the
Meeting; or |
| |
|
|
| |
● |
attending
the Meeting and voting by following the instructions available on
the meeting website during the Meeting. |
Attendance at the
Meeting
Attendance at the Meeting is limited to holders of record of our
common stock at the close of business on the record date, May 31,
2022, and our guests. You will be asked to provide your control
number in order to be admitted into the Meeting. If your shares are
held in the name of a bank, broker, or other nominee and you plan
to attend the Meeting, you must obtain your control number from
such bank, broker, or other nominee, or contact Issuer Direct
Corporation at (919) 447-3740, or 1-866-752-VOTE (8683) to obtain
your control number, in order to be admitted. No recording of the
Meeting will be permitted. At the Meeting, our stockholders will be
afforded a reasonable opportunity to participate in the Meeting and
to vote on matters submitted to the stockholders, including an
opportunity to communicate, and to read or hear the proceedings of
the meetings in a substantially concurrent manner with such
proceedings.
Conduct at the
Meeting
The Chairman of the Meeting has broad responsibility and legal
authority to conduct the Meeting in an orderly and timely manner.
This authority includes establishing rules for stockholders who
wish to address the Meeting. Only stockholders or their valid proxy
holders may address the Meeting. The Chairman may exercise broad
discretion in recognizing stockholders who wish to speak and in
determining the extent of discussion on each item of business. In
light of the number of stockholders of the Company and the need to
conclude the Meeting within a reasonable period of time, we cannot
ensure you that every stockholder who wishes to speak on an item of
business will be able to do so.
Quorum
Our Bylaws, as amended, provide that the presence of 33 1/3% of the
outstanding shares of our capital stock entitled to vote at a
meeting, represented in person (including virtually) or by
proxy, constitutes a quorum at a meeting of our stockholders. If
you vote at the Meeting or by proxy at our Meeting, your shares
will be counted for purposes of determining whether there is a
quorum at the Meeting. Shares of our capital stock present in
person (including virtually) or by proxy at our Meeting that
are entitled to vote will be counted for the purpose of determining
whether there is a quorum for the transaction of business at the
Meeting.
Voting Requirements
for Each of the Proposals
|
Proposal |
|
Vote
Required |
|
Broker
Discretionary
Voting
Allowed* |
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| 1. |
Approval, in accordance with Nasdaq Listing Rule 5635(d), of an
amendment to the exercise price provisions of those warrants issued
in connection with a registered direct offering of the Company’s
securities pursuant to that Stock Purchase Agreement entered into
by and among the Company and certain investors on November 1, 2021,
and specifically to remove the $1.97 floor (the “Floor Price”) of
the warrants such that the exercise price of the warrants may be
reduced below the Floor Price in the event that the Company issues
or enters into any agreement to issue securities for consideration
less than the then current exercise price of the warrants (the
“Warrant Amendment”).
|
|
A
majority of the votes cast on the proposal. |
|
No |
| 2. |
Authorization
of our Board, in its discretion, to adjourn the Meeting to another
place, or a later date or dates, if necessary or appropriate, to
solicit additional proxies in favor of the proposal listed above at
the time of the Meeting. |
|
Majority
of the shares of stock entitled to vote which are present, in
person (including virtually) or by proxy, at the
Meeting. |
|
No |
|
* |
See
also “Quorum; Broker Non-Votes and Abstentions,”
below. |
Broker Non-Votes and
Abstentions
The presence at the Meeting of the holders of 33 1/3% of the
outstanding shares of voting stock entitled to vote at the Meeting
is necessary to constitute a quorum. Broker non-votes and
abstentions are counted for purposes of determining whether a
quorum is present.
Only “For” and “Against” votes are counted for
purposes of determining the votes received in connection with
Proposal 1. Broker non-votes and abstentions will not be counted as
votes cast, and will have no effect on determining whether the
affirmative vote constitutes a majority of the votes cast at the
Meeting for Proposal 1. However, approval of this proposal requires
the affirmative vote of a majority of the votes cast on such
proposal, and therefore broker non-votes and abstentions could
prevent the approval of this proposal because they do not count as
affirmative votes.
Proposal 2 requires the affirmative (“For”) vote of a
majority of the shares of stock entitled to vote which are present,
in person (including virtually) or by proxy, at the Meeting. Broker
non-votes will not have any effect on the outcome of Proposal 2.
Abstentions will be treated as a vote “Against” Proposal
2.
The Company encourages you to vote or to provide voting
instructions to the organization that holds your shares by
carefully following the instructions provided in the proxy
materials that you receive.
If a broker indicates on the proxy that it does not have
discretionary authority as to certain shares to vote on a
particular matter, those shares will not be considered as present
and entitled to vote with respect to that matter. For your vote to
be counted, you must submit your voting instruction form to your
broker.
As described above, although the Company will include abstentions
and broker non-votes as present or represented for purposes of
establishing a quorum for the transaction of business, the Company
intends to exclude abstentions and broker non-votes from the
tabulation of voting results on any issues requiring approval of a
majority of the votes cast (Proposal 1).
Dissenters’
Rights
Dissenters’ rights are not available with respect to any of the
proposals to be voted on at the Meeting.
Board of Directors
Voting Recommendations
Our Board recommends that you vote your shares:
|
● |
“FOR”
the approval, in accordance with Nasdaq Listing Rule 5635(d), of
the Warrant Amendment (Proposal 1); and |
|
● |
“FOR”
authorization of our Board, in its discretion, to adjourn the
Meeting to another place, or a later date or dates, if necessary or
appropriate, to solicit additional proxies in favor of the proposal
listed above at the time of the Meeting (Proposal 2). |
Mailing Costs and
Solicitation of Proxies
In addition to solicitation by use of the mail, certain of our
officers and employees may solicit the return of proxies personally
or by telephone, electronic mail or facsimile. We have not and do
not anticipate retaining a third-party proxy solicitation firm to
solicit proxies on behalf of the Board. The cost of any
solicitation of proxies will be borne by us. Arrangements may also
be made with brokerage firms and other custodians, nominees and
fiduciaries for the forwarding of material to, and solicitation of
proxies from, the beneficial owners of our securities held of
record at the close of business on the record date by such persons.
We will reimburse such brokerage firms, custodians, nominees and
fiduciaries for the reasonable out-of-pocket expenses incurred by
them in connection with any such activities.
Inspector of
Voting
It is anticipated that representatives of Issuer Direct Corporation
or our legal counsel will tabulate the votes and act as inspector
of election at the Meeting.
Stockholders Entitled
to Vote at the Meeting
A complete list of stockholders entitled to vote at the Meeting
will be available to view during the Meeting. You may also access
this list at our principal executive offices, for any purpose
germane to the Meeting, during ordinary business hours, for a
period of ten days prior to the Meeting.
Voting
Instructions
Your vote is very important. Whether or not you plan to attend the
Meeting, we encourage you to read this Proxy Statement and submit
your proxy or voting instructions as soon as possible. For specific
instructions on how to vote your shares, please refer to the
instructions included on the Notice you received in the mail and
the enclosed proxy card.
Stockholder of Record
and Shares Held in Brokerage Accounts
If on the record date, your shares were registered in your name
with our transfer agent, then you are a stockholder of record and
you may vote at the Meeting, by proxy or by any other means
supported by us. If on the record date your shares were held in an
account at a brokerage firm, bank, dealer, or other similar
organization, then you are the beneficial owner of shares held in
“street name” and the Proxy Statement is required to be forwarded
to you by that organization. The organization holding your account
is considered the stockholder of record for purposes of voting at
the Meeting. As a beneficial owner, you have the right to direct
your broker or, other agent on how to vote the shares in your
account. You are also invited to attend the Meeting. However, you
must obtain your control number from such bank, broker, or other
nominee, or contact Issuer Direct Corporation at (919) 447-3740, or
1-866-752-VOTE (8683) to obtain your control number, in order to be
admitted and since you are not the stockholder of record, you may
not vote your shares by following the instructions available on the
Meeting website during the Meeting, unless you request and obtain a
valid proxy from your broker or, other agent.
Multiple Stockholders
Sharing the Same Address
In some cases, one copy of this Proxy Statement and the
accompanying notice of meeting of stockholders is being delivered
to multiple stockholders sharing an address. We will deliver
promptly, upon written or oral request, a separate copy of this
Proxy Statement or the accompanying notice of meeting of
stockholders to such a stockholder at a shared address to which a
single copy of the document was delivered. Stockholders sharing an
address may also submit requests for delivery of a single copy of
this Proxy Statement or the accompanying notice of meeting of
stockholders, but in such event will still receive separate forms
of the proxy for each stockholder account. To request separate or
single delivery of these materials now or in the future, a
stockholder may submit a written request to our Controller at our
principal executive offices at 1560 Sawgrass Corporate Parkway,
Suite 130, Sunrise, Florida 33323, or a stockholder may make a
request by calling our Controller at (954) 888-9779.
If you receive more than one set of proxy materials, it means that
your shares are registered differently and are held in more than
one account. To ensure that all shares are voted, please either
vote each account as discussed above under the section of this
Proxy Statement entitled “Voting Process,” or sign and return by
mail all proxy cards or voting instruction forms.
Voting
Results
The final voting results will be tallied by the inspector of voting
and published in our Current Report on Form 8-K, which we are
required to file with the SEC within four business days following
the Meeting.
Company Mailing
Address
The mailing address of our principal executive offices is 1560
Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323.
Other
Matters
As of the date of this Proxy Statement, our Board is not aware of
any business to be presented at the Meeting other than as set forth
in the proxy materials that have been mailed to you. If any other
matters should properly come before the Meeting, it is intended
that the shares represented by proxies will be voted with respect
to such matters in accordance with the judgment of the persons
voting the proxies.
FORWARD LOOKING
STATEMENTS
Statements in this Proxy Statement that are “forward-looking
statements” are based on current expectations and assumptions that
are subject to risks and uncertainties. In some cases,
forward-looking statements can be identified by terminology such as
“may,” “will,” “should,” “potential,” “continue,” “expects,”
“anticipates,” “intends,” “plans,” “believes,” “estimates,” and
similar expressions. These forward-looking statements are based on
our current estimates and assumptions and, as such, involve
uncertainty and risk. Actual results could differ materially
from projected results.
We do not assume any obligation to update information contained in
this document, except as required by applicable laws. Although this
Proxy Statement may remain available on our website or elsewhere,
its continued availability does not indicate that we are
reaffirming or confirming any of the information contained
herein. Neither our website nor its contents are a part
of this Proxy Statement.
PROPOSAL 1
APPROVAL OF THE WARRANT AMENDMENT
Background
As previously disclosed in that Current Report on 8-K filed by the
Company on November 3, 2021, on November 1, 2021 (the “Offering
8-K”), we entered into a Securities Purchase Agreement (the “SPA”)
with certain institutional investors (the “Purchasers”), pursuant
to which we agreed to issue and sell, in a registered direct
offering (the “Offering”), an aggregate of 18,987,342 shares (the
“Shares”) of our common stock, par value $0.00001 per share,
together with warrants to purchase an aggregate of 14,240,508
shares of common stock (the “Warrants”), at a combined price of
$1.58 per Share and accompanying three quarters of a Warrant.
Each whole Warrant sold in the Offering is exercisable for one
share of our common stock at an initial exercise price of $1.97 per
share (the “Initial Exercise Price”), the closing sales price of
our common stock on October 29, 2021 (the last trading day prior to
the date that the SPA was entered into). The Warrants may be
exercised commencing six months after the issuance date (the
“Initial Exercise Date”) and terminating on the fifth anniversary
of the Initial Exercise Date. The Warrants are exercisable for
cash; provided, however that they may be exercised on a cashless
exercise basis if, at the time of exercise, there is no effective
registration statement registering, or no current prospectus
available for, the issuance or resale of the shares of common stock
issuable upon exercise of the Warrants. The exercise of the
Warrants will be subject to a beneficial ownership limitation,
which will prohibit the exercise thereof, if upon such exercise the
holder of the Warrants, its affiliates and any other persons or
entities acting as a group together with the holder or any of the
holder’s affiliates would hold 4.99% (or, upon election of a
purchaser prior to the issuance of any shares, 9.99%) of the number
of shares of the common stock outstanding immediately after giving
effect to the issuance of shares of common stock issuable upon
exercise of the Warrant held by the applicable holder, provided
that the holders may increase or decrease the beneficial ownership
limitation (up to a maximum of 9.99%) upon 61 days advance notice
to the Company, which 61 day period cannot be waived.
The Warrants also include certain anti-dilution rights, which
provide that if at any time the Warrants are outstanding, we issue
or enter into any agreement to issue, or are deemed to have issued
or entered into an agreement to issue (which includes the issuance
of securities convertible or exercisable for shares of common
stock), securities for consideration less than the then current
exercise price of the Warrants, the exercise price of such Warrants
will be automatically reduced to the lowest price per share of
consideration provided or deemed to have been provided for such
securities; provided, however, that unless and until the Company
has received stockholder approval to reduce the exercise price of
the Warrants below the Floor Price, $1.97 per share, no such
adjustment to the exercise price may be made.
Pursuant to the SPA, we agreed to use our best efforts to obtain
stockholder approval within 90 days from November 1, 2021 (the date
of the prospectus supplement) to remove the Floor Price of the
Warrants (the “Warrant Amendment”). In the event that such
stockholder approval was not obtained within 90 days of November 1,
2021, we agreed to hold a special meeting of our stockholders every
three months thereafter, for so long as the Warrants remain
outstanding, to obtain such stockholder approval of the Warrant
Amendment.
In accordance with our obligations under the SPA, we held a special
meeting of our stockholders on January 28, 2022 and an annual
meeting of our stockholders on April 22, 2022, at which meetings we
presented a proposal to approve the Warrant Amendment to our
stockholders. However, our stockholders did not approve the Warrant
Amendment at either of such meetings, and as a result, the original
terms of the Warrant, including the Floor Price, remain in full
force and effect.
The foregoing description of the SPA the Warrants is not complete
and is qualified in its entirety by reference to the full text of
the form of SPA and form of Common Stock Purchase Warrant, copies
of which are attached as Exhibit 10.1 and Exhibit 4.1,
respectively, to the Offering 8-K, which is incorporated by
reference herein.
Effects of the Warrant
Amendment
As discussed above, pursuant to the SPA, if at any time the
Warrants are outstanding, we issue or enter into any agreement to
issue, or are deemed to have issued or entered into an agreement to
issue (which includes the issuance of securities convertible or
exercisable for shares of common stock), securities for
consideration less than the then current exercise price of the
Warrants, the exercise price of such Warrants will be automatically
reduced to the lowest price per share of consideration provided or
deemed to have been provided for such securities, subject to the
Floor Price limitation. If we amend the Warrants to remove the
Floor Price, we will be required to reduce the exercise price of
the Warrants in the event that we issue, or enter into an agreement
to issue, securities at a price that is lower than $1.97 per share,
subject to limited exceptions.
Reduction in the exercise price of the Warrants would reduce the
proceeds that we would receive upon exercise of the Warrants by
holders thereof. In addition, the reduction in exercise price could
incentivize holders of the Warrant to exercise their Warrants when
they may not otherwise do so, which could result in significant
dilution in the percentage ownership interest of our existing
common stockholders and in a significant dilution of voting rights
and earnings per share. The sale or availability for sale of shares
issuable upon exercise of the Warrants at a reduced price per share
may depress the price of our common stock and could encourage short
sales by third parties, which could further depress the price of
our common stock. It could also make it more difficult for us to
raise additional working capital at terms favorable to the Company
and or its stockholders, which could negatively impact our
business.
To the extent that the holders the Warrants sell shares of our
common stock issued upon exercise of the Warrants, the market price
of such shares may decrease due to the additional selling pressure
in the market. In addition, the risk of dilution from issuances of
such shares may cause stockholders to sell their shares of our
common stock, which could further contribute to any decline in the
price of our common stock. Any downward pressure on the price of
our common stock caused by the sale or potential sale of such
shares could encourage short sales by third parties. In a short
sale, a prospective seller borrows shares from a stockholder or
broker and sells the borrowed shares. The prospective seller hopes
that the share price will decline, at which time the seller can
purchase shares at a lower price for delivery back to the lender.
The seller profits when the share price declines because it is
purchasing shares at a price lower than the sale price of the
borrowed shares. Such sales could place downward pressure on the
price of our common stock by increasing the number of shares of our
common stock being sold, which could further contribute to any
decline in the market price of our common stock.
Reasons for
Stockholder Approval
Our common stock is listed on the Nasdaq Capital Market, and, as
such, we are subject to the applicable rules of the Nasdaq Stock
Market LLC, including Nasdaq Listing Rule 5635(d), which requires
stockholder approval prior to the issuance of securities in
connection with a transaction other than a public offering
involving the sale, issuance or potential issuance by the Company
of common stock (or securities convertible into or exercisable for
common stock) at a price less than the greater of book or market
value which equals 20% or more of common stock or 20% or more of
the voting power outstanding before the issuance; or the sale,
issuance or potential issuance by the Company of common stock (or
securities convertible into or exercisable for common stock) equal
to 20% or more of the common stock or 20% or more of the voting
power outstanding before the issuance for less than the greater of
book or market value of the stock.
As noted above, we issued an aggregate of 18,987,342 Shares,
together with Warrants to purchase an aggregate of 14,240,508
shares of common stock, at a combined offering price of $1.58 per
Share and accompanying three quarters of a Warrant. For purposes of
Nasdaq Listing Rule 5635(d), the number of shares issued below fair
market value of our common stock in the Offering amounted to
18,987,342 shares, the number of Shares issued in the Offering,
which equaled approximately 19.94% of our issued and outstanding
shares of common stock. Because the Initial Exercise Price of the
Warrants, as well as the Floor Price of the Warrants, was equal to
fair market value of our common stock ($1.97 per share), the
Warrants were not deemed to be issued at a price less than the fair
market value of our common stock as of the date of the SPA. As a
result, we were not required to obtain stockholder approval in
order to consummate the Offering.
Because removal of the Floor Price could result in the exercise
price of the Warrants falling below the market price of our common
stock, as set forth in the SPA, which would result in our issuance
of more than 20% of our issued and outstanding securities as of the
date of the Offering at a price below market value, we must obtain
stockholder approval of such amendment in order to comply with
Nasdaq Listing Rule 5635(d).
As noted above, pursuant to the SPA, we agreed to use our best
efforts to obtain stockholder approval within 90 days from November
1, 2021 to remove the Floor Price of the Warrants. The Warrant
Amendment was not approved by our stockholders at the special
meeting held on January 28, 2022 or the annual meeting held on
April 22, 2022. Thus, in order to ensure that we comply with
applicable Nasdaq rules and our obligations under the SPA, we are
again asking for stockholder approval of the Warrant Amendment.
In the event that we do not obtain the necessary stockholder
approval of the Warrant Amendment at the Meeting, we will be
obligated to hold another meeting of our stockholders within three
months of the Meeting, and every three months thereafter, for so
long as the Warrants remain outstanding, to obtain such stockholder
approval.
Vote Required and
Recommendation by the Board
Approval of the Warrant Amendment requires the affirmative
(“For”) vote of a majority of the votes cast on the proposal
(more “For” votes than “Against” votes), provided
that a quorum exists at the Meeting. Broker non-votes and
abstentions will not be counted as votes cast, and will have no
effect on determining whether the affirmative votes constitute a
majority of the votes cast at the Meeting. Properly executed
proxies will be voted at the Meeting in accordance with the
instructions specified on the proxy; if no such instructions are
given, the persons named as agents and proxies in the enclosed form
of proxy will vote such proxy “For” approving the Warrant
Amendment.
OUR BOARD RECOMMENDS A VOTE “FOR”
APPROVING THE WARRANT AMENDMENT UNDER PROPOSAL ONE
PROPOSAL 2
ADJOURNMENT OF THE MEETING
General
Our stockholders may be asked to consider and act upon one or more
adjournments of the Meeting, if necessary or appropriate, to
solicit additional proxies in favor of Proposal 1 set forth in this
Proxy Statement.
If a quorum is not present at the Meeting, our stockholders may be
asked to vote on the proposal to adjourn the Meeting to solicit
additional proxies. If a quorum is present at the Meeting, but
there are not sufficient votes at the time of the Meeting to
approve Proposal 1, our stockholders may also be asked to vote on
the proposal to approve the adjournment of the Meeting to permit
further solicitation of proxies in favor of Proposal 1.
If the adjournment proposal is submitted for a vote at the Meeting,
and if our stockholders vote to approve the adjournment proposal,
the Meeting may be adjourned to enable the Board to solicit
additional proxies in favor of Proposal 1. If the adjournment
proposal is approved, and the Meeting is adjourned, the Board will
use the additional time to solicit additional proxies in favor of
Proposal 1 to be presented at the Meeting, including the
solicitation of proxies from stockholders that have previously
voted against Proposal 1.
Our Board believes that, if the number of shares of our common
stock voting in favor of Proposal 1 at the Meeting is insufficient
to approve the proposal, it is in the best interests of our
stockholders to enable the Board, if it so chooses and for a
limited period of time, to continue to seek to obtain a sufficient
number of additional votes in favor of the proposal. Any signed
proxies received by us in which no voting instructions are provided
on such matter will be voted in favor of an adjournment in these
circumstances. If the Meeting is adjourned, the time and place of
the adjourned Meeting will be announced at the time the adjournment
is taken. Any adjournment of the Meeting for the purpose of
soliciting additional proxies will allow our stockholders who have
already sent in their proxies to revoke them at any time prior to
their use at the Meeting, as adjourned or postponed.
Vote
Required
Authority to adjourn the Meeting pursuant to this Proposal 2, to
another place, date or time, if deemed necessary or appropriate, in
the discretion of the Board, requires the affirmative
(“For”) vote of a majority of the shares of common stock
entitled to vote which are present, in person or by proxy, at the
Meeting. Broker non-votes will not have any effect on the outcome
of this Proposal 2. Abstentions will be treated as a vote
“Against” this Proposal 2.
OUR BOARD RECOMMENDS A VOTE “FOR”
THE ADJOURNMENT OF THE MEETING,
IF NECESSARY OR APPROPRIATE, TO SOLICIT ADDITIONAL
PROXIES.
VOTING RIGHTS AND
PRINCIPAL STOCKHOLDERS
Holders of record of our common stock at the close of business on
the record date, May 31, 2022, will be entitled to one vote per
share on all matters properly presented at the Meeting and at any
adjournment or postponement thereof. As of the record date, there
were 117,436,081 shares of common stock outstanding and entitled to
vote at the Meeting and at any adjournment or postponement thereof,
held by approximately 510 holders of record. Each share of common
stock is entitled to one vote on each proposal presented at the
Meeting, for 117,436,081 total voting shares.
Our stockholders do not have dissenters’ rights or similar rights
of appraisal with respect to the proposals described herein
Security Ownership of
Management and Certain Beneficial Owners and Management
The following table sets forth, as of the record date, May 31,
2022, the number and percentage of outstanding shares of our common
stock beneficially owned by: (a) each person who is known by us to
be the beneficial owner of more than 5% of our outstanding shares
of common stock; (b) each of our directors; (c) our named executive
officers; and (d) all current directors, our director nominees and
executive officers, as a group. As of the record date, there
were 117,436,081 shares of common stock issued and
outstanding.
Beneficial ownership has been determined in accordance with Rule
13d-3 under the Exchange Act. Under this rule, certain shares may
be deemed to be beneficially owned by more than one person (if, for
example, persons share the power to vote or the power to dispose of
the shares). In addition, shares are deemed to be beneficially
owned by a person if the person has the right to acquire shares
(for example, upon exercise of an option or warrant or upon
conversion of a convertible security) within 60 days
of May 31, 2022. In computing the percentage ownership of any
person, the amount of shares is deemed to include the amount of
shares beneficially owned by such person by reason of such
acquisition rights. As a result, the percentage of outstanding
shares of any person as shown in the following table does not
necessarily reflect the person’s actual voting power at any
particular date.
To our knowledge, except as indicated in the footnotes to this
table and pursuant to applicable community property laws,
(a) the persons named in the table have sole voting and
investment power with respect to all shares of common stock shown
as beneficially owned by them, subject to applicable community
property laws; and (b) no person owns more than 5% of our
common stock. Unless otherwise indicated, the address for each of
the officers or directors listed in the table below is 1560
Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323.
|
Name of Beneficial Owner |
|
Shares of Common Stock
Beneficially Owned (1) |
|
|
Percent of Common Stock
Outstanding (2) |
|
| Executive
Officers and Directors |
|
|
|
|
|
|
| William
Kerby, Co-Chief Executive Officer & Director |
|
|
651,173 |
(3) |
|
|
* |
|
| Nithinan
Boonyawattanapisut, Co-Chief Executive Officer & Director |
|
|
19,928,658 |
(4) |
|
|
17.0 |
% |
| Sirapop “Kent”
Taepakdee, Chief Financial Officer |
|
|
27,500 |
|
|
|
* |
|
| Tim Sikora, Chief
Information Officer |
|
|
31,000 |
(5) |
|
|
* |
|
| Andrew Greaves,
Chief Operating Officer |
|
|
100,000 |
|
|
|
* |
|
| Mark Vange, Chief
Technology Officer |
|
|
3,916,667 |
(6) |
|
|
3.3 |
% |
| Donald P. Monaco,
Director |
|
|
1,953,512 |
(7) |
|
|
1.7 |
% |
| John Todd Bonner,
Chairman of the Board |
|
|
19,928,658 |
(4) |
|
|
17.0 |
% |
| Athid Nanthawaroon,
Director |
|
|
147,065 |
|
|
|
* |
|
| Carmen Diges,
Director |
|
|
58,831 |
|
|
|
* |
|
| Komson Kaewkham,
Director |
|
|
53,910 |
|
|
|
* |
|
| Yoshihiro Obata,
Director |
|
|
808,831 |
(8) |
|
|
* |
|
| Farooq Moosa,
Director |
|
|
25,338 |
|
|
|
* |
|
| Edward Terrance
Gardner, Jr., Director |
|
|
657,203 |
|
|
|
* |
|
| All Executive
Officers and Directors as a Group (14 persons) |
|
|
28,359,688 |
(9) |
|
|
24.2 |
% |
| |
|
|
|
|
|
|
|
|
| 5%
Stockholders |
|
|
|
|
|
|
|
|
| Red Anchor Trading Corp. Limited
(10) |
|
|
15,000,269 |
|
|
|
12.8 |
% |
| (1) |
Includes
warrants and convertible securities exercisable or convertible for
common stock within 60 days of May 31, 2022. |
| (2) |
Based
on 117,436,081 shares of common stock outstanding as
of May 31, 2022. |
| (3) |
William
Kerby holds 555,873 shares of common stock and warrants to purchase
15,300 shares of common stock of the Company individually. Mr.
Kerby is deemed to own 80,000 shares held by In-Room Retail
Systems, LLC, which entity he owns. |
| (4) |
Nithinan
Boonyawattanapisut and John Todd Bonner are married. Accordingly,
they beneficially own the same securities of the Company. Ms.
Boonyawattanapisut’s and Mr. Bonner’s holdings consist of the
following: (i) 2,300,204 shares of common stock held directly by
Ms. Boonyawattanapisut; (ii) 27,500 shares of common stock held
directly by Mr. Bonner; (iii) 13,666,936 shares of common stock
held by Red Anchor Trading Corporation (“Red Anchor”), 10.91% of
which is owned by Ms. Boonyawattanapisut and 19.77% of which is
owned by Mr. Bonner; (iv) 1,333,333 shares of common stock NextPlay
Holdings LLC, 73.3% of which is owned by Red Anchor; (v) 1,558,046
shares of common stock held by Cern One Limited, 100% of which is
owned by Ms. Boonyawattanapisut, and (vi) 1,042,639 shares of
common stock held by Found Side Ltd., 50% of which is owned by Ms.
Boonyawattanapisut and 48% of which is owned by Mr. John Todd
Bonner. |
| |
|
| (5) |
Tim
Sikora holds 28,000 shares of common stock individually, and is
deemed to own 3,000 shares of common stock held by Beachfront
Travel Consulting, LLC, a company that is 50% owned by Mr. Sikora’s
spouse. Mr. Sikora disclaims beneficial ownership of those shares
held by Beachfront. |
| |
|
| (6) |
Mark
Vange beneficially owns (i) 1,666,667 shares of common stock owned
by Fighter Base Publishing, Inc (“Fighter Base”), and (ii)
1,250,000 shares owned by Token IQ, Inc. (“Token IQ”). Mr. Vange is
the Chief Executive Officer and a majority stockholder of both
Fighter Base and Token IQ, and disclaims beneficial ownership of
all shares owned by Fighter Base and Token IQ, except to the extent
of his pecuniary interest therein. Mr. Vange also individually owns
1,000,000 shares of common stock of the Company. |
| (7) |
Donald
P. Monaco beneficially owns (i) 859,224 shares of common stock
owned by the Donald P. Monaco Insurance Trust (the “Trust”), and
(ii) 822,302 shares are beneficially owned by Monaco Investment
Partners II, LP (“MI Partners”). Mr. Monaco also individually owns
271,986 shares of common stock of the Company. Mr. Monaco is the
managing general partner of MI Partners and trustee of the Trust.
Mr. Monaco disclaims beneficial ownership of all shares held by the
Trust and MI Partners in excess of his pecuniary interest, if
any. |
| (8) |
Yoshihiro
Obata’s holdings consist of 808,831 shares of common stock held by
Global Networking, LLC, an entity owned and controlled by Mr.
Obata. |
| (9) |
Because
Ms. Boonyawattanapisut and Mr. Bonner beneficially own the same
securities due to the fact that they are married, such securities
have only been included once for purposes of calculating the number
of shares of common stock held by all executive officers and
directors as a group. |
| |
|
| (10) |
Address:
Morgan & Morgan Building, Pasea Estate, PO Box 958, Road Town,
Tortola, BVI. The shares are also beneficially owned by Ms.
Boonyawattanapisut’s and Mr. Bonner, as discussed in footnote 4,
above. Based on information reported on Schedule 13D/A filed by Red
Anchor (and others) with the SEC on March 28, 2022, which has not
been independently verified. |
Changes in
Control
The Company is not currently aware of any arrangements which may at
a subsequent date result in a change of control of the Company.
As previously disclosed by the Company in that Current Report on
8-K filed by the Company on July 23, 2020, the Company entered into
(a) a Share Exchange Agreement (as amended and restated to
date, the “HotPlay Exchange Agreement” and the transactions
contemplated therein, the “HotPlay Share Exchange”) with
HotPlay Enterprise Limited (“HotPlay”) and the stockholders of
HotPlay (the “HotPlay Stockholders”); and (b) a Share Exchange
Agreement (as amended to date, “Axion Exchange
Agreement”) with certain stockholders holding shares of Axion
Ventures, Inc. (“Axion” and the “Axion Stockholders”) and certain
debt holders holding debt of Axion (the “Axion Creditors”) (the
“Axion Share Exchange,” and collectively with the HotPlay Exchange
Agreement, the “Exchange Agreements,” and the transactions
contemplated therein, the “Share Exchanges”), each dated as of July
21, 2020. The Share Exchanges closed on June 30, 2021 (the
“Closing”). In connection with the Closing, the Company acquired
100% of the outstanding capital shares of HotPlay (making HotPlay a
wholly-owned subsidiary of the Company).
In connection with the Share Exchanges, upon the closing of the
HotPlay Share Exchange, the former HotPlay Stockholders were issued
52,000,000 shares of the Company’s common stock in exchange for
100% of the outstanding shares of HotPlay, and the outstanding
shares of Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock automatically converted into an
aggregate of 11,246,200 shares of our common stock (the “Preferred
Conversion”). As a result of the Closing, a change of control of
the Company occurred, with the former stockholders of HotPlay
obtaining control over the Company. The former stockholders of
HotPlay and the former holders of Series B Convertible Preferred
Stock and Series C Convertible Preferred Stock held 72.6% of the
Company’s 87,100,403 issued and outstanding shares of common stock
immediately following the Closing. Specifically, in connection with
the Closing, and the issuance of shares of common stock of the
Company in connection therewith and the Preferred Conversion,
effective June 30, 2021, Ms. Nithinan Boonyawattanapisut and Mr. J.
Todd Bonner, husband and wife, became the largest stockholders of
the Company, beneficially owning 31,117,544 shares of common stock,
or 35.7% of the Company’s then outstanding common stock (through
Ms. Boonyawattanapisut’s control of Red Anchor Trading Corporation,
which held 27,213,606 of such shares of record and Cern One
Limited, which held 3,562,208 shares of common stock, and an
additional 314,230 shares of common stock held by Ms.
Boonyawattanapisut directly and 27,500 shares held by Mr. Bonner,
directly). Separately, as of Closing, Jwanwat Ahriyavraromp and
Pornsinee Chalermrattawongz, each beneficially owned the 21,966,667
shares of common stock held by Tree Roots Entertainment Group, Ltd.
and the 3,533,333 shares of common stock held by Dee Supreme
Company Limited, issued in connection with the Closing, due to
their status as directors of such entities, which in aggregate
totaled 29.3% of the Company’s outstanding shares of common stock
immediately following the Closing.
Pursuant to the terms of the HotPlay Share Exchange, the former
HotPlay stockholders, had certain appointment rights as to officers
of the Company and directors of the Company, which were exercised
at Closing.
In addition, in connection with the above transactions, on or
around February 22, 2021, each of the HotPlay stockholders, and Ms.
Nithinan Boonyawattanapisut, Mr. J. Todd Bonner, Mr. Athid
Nanthawaroon and Mr. Komson Kaewkham, each nominees for appointment
to the Board at the closing, entered into a Voting Agreement with
Mr. William Kerby, the Company’s Chief Executive Officer (now
Co-Chief Executive Officer), and Mr. Donald P. Monaco, the Chairman
of the Board (now a Director). Pursuant to the Voting Agreement,
each of the HotPlay stockholders agreed to vote all voting shares
of the Company which they hold and may hold in the future (during
the term of the agreement) to elect Mr. Kerby and Mr. Monaco to the
Board, and each of the HotPlay nominees agreed to continue to
nominate each of Mr. Kerby and Mr. Monaco to the Board. The
agreement continues in effect until the earlier of February 26,
2026, the date of both Mr. Kerby’s and Mr. Monaco’s death, or the
date that both Mr. Kerby and Mr. Monaco have provided notice of
termination to such HotPlay Stockholders.
CHANGES IN AND
DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
Thayer O’Neal Company, LLC
Prior to its de-registration with the PCAOB, Thayer served as our
independent registered accounting firm from May 16, 2019 to
September 30, 2020, and audited our financial statements for the
years ended February 29, 2020 and February 28, 2019. On September
30, 2020, in connection with its de-registration, the Company
dismissed Thayer as the independent registered public accounting
firm of the Company. The Company’s Board of Directors approved the
dismissal of Thayer.
The reports of Thayer regarding the Company’s financial statements
for the fiscal years ended February 29, 2020 and February 28, 2019
did not contain any adverse opinion or disclaimer of opinion and
were not modified as to uncertainty, audit scope, or accounting
principles, except each report did contain an explanatory paragraph
related to the Company’s ability to continue as a going concern.
During the Company’s fiscal years ended February 29, 2020 and
February 28, 2019, and through September 30, 2020, there were (i)
no disagreements with Thayer on any matter of accounting principles
or practices, financial statement disclosure or auditing scope or
procedure, which disagreements, if not resolved to the satisfaction
of Thayer would have caused Thayer to make reference to the subject
matter of the disagreements in connection with its report, and (ii)
with the exception of material weaknesses related to the
reconciliation of various accounts, lack of precision and accuracy
to properly reflect in the financial statements, there were no
“reportable events,” as that term is defined in Item 304(a)(1)(v)
of Regulation S-K.
On September 30, 2020, the Company engaged TPS as the Company’s new
independent registered public accounting firm. The appointment of
TPS was approved by the Company’s Board.
The Company disclosed the change in auditors in a Current Report on
Form 8-K filed with the Securities and Exchange Commission on
October 5, 2020.
M&K CPAS, PLLC
Prior to the appointment of Thayer, M&K served as our
independent registered accounting firm from October 11, 2018 to May
16, 2019. On May 16, 2019, M&K resigned as the independent
registered public accounting firm of the Company.
M&K reviewed the Company’s Quarterly Reports on Form 10-Q for
the quarters ended August 31, 2018 and November 30, 2018. M&K
did not provide any audit reports to the Company, and as such,
there were no adverse opinions or disclaimers of opinion and no
qualifications or modifications as to uncertainty, audit scope or
accounting principles.
During the period from October 11, 2018, and through May 16, 2019,
there were (i) no disagreements with M&K on any matter of
accounting principles or practices, financial statement disclosure
or auditing scope or procedure, which disagreements, if not
resolved to the satisfaction of M&K would have caused M&K
to make reference to the subject matter of the disagreements in
connection with its report, and (ii) there were no events of the
type described in Item 304(a)(1)(v) of Regulation S-K, except as
disclosed below. The Company had one disagreement with M&K.
M&K believed the complexities related to a series of
transactions warranted formal consultation with the Securities and
Exchange Commission’s Office of the Chief Accountant (“SEC-OCA”).
The Company believed that the transactions did not warrant formal
consultation with the SEC-OCA and that it did not have sufficient
time to request such formal guidance (with the due date of its
Annual Report on Form 10-K approaching). Because the Company did
not believe requesting guidance from the SEC-OCA was warranted and
because it did not want to spend the time and resources to request
guidance from the SEC-OCA, M&K resigned.
On May 16, 2019, the Company engaged Thayer as the Company’s new
independent registered public accounting firm. The appointment of
Thayer was approved by the Company’s Board.
The Company disclosed the change in auditors in a Current Report on
Form 8-K filed with the Securities and Exchange Commission on May
21, 2019.
OTHER MATTERS
Stockholder Proposals
for 2023 Annual Meeting of Stockholders
Proposals of holders of our voting securities intended to be
presented at our 2023 annual meeting of stockholders and included
in our proxy statement and form of proxy relating to such meeting
pursuant to Rule 14a-8 of Regulation 14A must be received by us,
addressed to our Corporate Secretary, at our principal executive
offices at 1560 Sawgrass Corporate Parkway, Suite 130, Sunrise,
Florida 33323, not earlier than the close of business on December
23, 2022, and not later than the close of business on January 22,
2023, together with written notice of the stockholder’s intention
to present a proposal for action at the fiscal 2023 annual meeting
of stockholders, unless our annual meeting date occurs more than 30
days before or 30 days after April 22, 2023. In that case, we must
receive proposals not earlier than the close of business on the
120th day prior to the date of the fiscal 2023 annual meeting and
not later than the close of business on the later of the 90th day
prior to the date of the fiscal 2023 annual meeting or, if the
first public announcement of the date of the fiscal 2023 annual
meeting is less than 100 days prior to the date of the meeting, the
10th day following the day on which we first make a public
announcement of the date of the meeting.
Stockholder proposals must be in writing and must include
(i) the name and record address of the stockholder who intends
to propose the business and the class or series and number of
shares of capital stock of the Company that are owned beneficially
or of record by such stockholder; (ii) a representation that
the stockholder is a holder of record of stock of the Company
entitled to vote at the Meeting and intends to appear in person or
by proxy at the meeting to introduce the business specified in the
notice; (iii) a brief description of the business desired to
be brought before the Meeting and the reasons for conducting such
business at the Meeting; (iv) any material interest of the
stockholder in such business; and (v) any other information
that is required to be provided by the stockholder pursuant to
Regulation 14A under the Exchange Act. The Board reserves the right
to refuse to submit any proposal to stockholders at the Meeting if,
in its judgment, the information provided in the notice is
inaccurate or incomplete, or does not comply with the requirements
for stockholder proposals set forth in our bylaws.
Additionally, the Nominating Committee will consider director
candidates recommended by stockholders, provided stockholders
include (i) as to each person whom the stockholder proposes
for the Nominating Committee to consider for nomination for
election as a director (a) the name, age, business address and
residence address of the person, (b) the principal occupation
or employment of the person, (c) the class or series and
number of shares of capital stock of us which are owned
beneficially or of record by the person and (d) any other
information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made
in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act, and the rules
and regulations promulgated thereunder; and (ii) as to the
stockholder giving the notice (a) the name and record address
of such stockholder, (b) the class or series and number of
shares of capital stock of the Company which are owned beneficially
or of record by such stockholder, (c) a description of all
arrangements or understandings between such stockholder and each
proposed nominee and any other person or persons (including their
names) pursuant to which the nomination(s) are to be made
by such stockholder, (d) a representation that such
stockholder intends to appear in person or by proxy at the meeting
to nominate the persons named in its notice, and (e) any other
information relating to such stockholder that would be required to
be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of
directors pursuant to Section 14 of the Exchange Act and the rules
and regulations promulgated thereunder. Such notice must be
accompanied by a written consent of each proposed nominee to being
named as a nominee and to serve as a director, if elected.
Individuals recommended by stockholders in accordance with these
procedures will receive the same consideration received by
individuals identified to the Nominating Committee through other
means.
Additional
Filings
We file annual reports on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K and proxy and information
statements and amendments to reports filed or furnished pursuant to
Sections 13(a) and 15(d) of the Exchange Act. The SEC maintains a
website (http://www.sec.gov) that contains reports, proxy and
information statements and other information regarding us and other
companies that file materials with the SEC electronically.
Additional information about us is available on our website at
www.nextplaytechnologies.com. Information on our website does not
constitute part of this proxy statement.
We will provide, without charge, to each person to whom a Proxy
Statement is delivered, upon written or oral request of such person
and by first class mail or other equally prompt means within one
business day of receipt of such request, a copy of any of the
filings described above. Individuals may request a copy of such
information by sending a request to us, Attn: Corporate Secretary,
NextPlay Technologies, Inc., 1560 Sawgrass Corporate Parkway,
Suite 130, Sunrise, Florida 33323.
Other Matters to be
Presented at the Meeting
As of the date of this Proxy Statement, our management has no
knowledge of any business to be presented for consideration at the
Meeting other than that described above. If any other business
should properly come before the Meeting or any adjournment thereof,
it is intended that the shares represented by properly executed
proxies will be voted with respect thereto in accordance with the
judgment of the persons named as agents and proxies in the enclosed
form of proxy.
Our Board does not intend to bring any other matters before the
Meeting and has not been informed that any other matters are to be
presented by others.
Interest of Certain
Persons in or Opposition to Matters to Be Acted Upon:
| |
(a) |
No
officer or director of the Company has any substantial interest in
the matters to be acted upon, other than as a result of his or her
role as an officer or director of us, or as a stockholder of
us. |
| |
(b) |
No
director of us has informed us that he or she intends to oppose the
action taken by us set forth in this Proxy Statement. |
Incorporation of
Information by Reference
The SEC allows us to “incorporate by reference” certain information
that we file with the SEC, which means that we can disclose
important information by referring you to those documents. The
information incorporated by reference is considered to be a part of
this Proxy Statement. We incorporate herein the following
information contained in or attached to our Annual Report on Form
10-K for the fiscal year ended February 28, 2021, which we filed
with the SEC on June 8, 2021: (i) Item 7 entitled “Management’s
Discussion and Analysis of Financial Condition and Results of
Operations,” and (ii) Item 8 entitled “Financial Statements and
Supplementary Data.”
We will provide, without charge, to each person to whom a proxy
statement is delivered, upon written or oral request of such person
and by first class mail or other equally prompt means within one
business day of receipt of such request, a copy of any and all of
the information that has been incorporated by reference in this
Proxy Statement.
Company Contact
Information
All inquiries regarding our Company should be addressed to our
Company’s principal executive office:
NextPlay Technologies, Inc.
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
| By
Order of the Board of Directors, |
|
| |
|
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| John
Todd Bonner, Chairman |
|
NextPlay Technologies (NASDAQ:NXTP)
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