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 |
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NEXTPLAY
TECHNOLOGIES, INC. |
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(Name
of Registrant as Specified In Its Charter) |
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(Name
of Person(s) Filing Proxy Statement, if other than the
Registrant) |
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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 AUGUST
26, 2022
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
September [__], 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 2023 Annual Meeting of our
stockholders (the “Meeting”) to be held on October 19, 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.
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
September [__], 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. We
have also made a copy of our Annual Report on Form 10-K for the
year ended February 28, 2022 (the “Annual Report”) available with
our Proxy Statement. We encourage you to read our Annual Report. It
includes our audited financial statements and provides information
about our business. 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 October 19,
2022. Your vote and participation in our governance is very
important to us.
Sincerely,
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| John
Todd Bonner |
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| Chairman |
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PRELIMINARY PROXY MATERIALS SUBJECT TO COMPLETION DATED AUGUST
26, 2022
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
NOTICE OF THE 2023 ANNUAL MEETING OF
STOCKHOLDERS
TO BE HELD ON OCTOBER 19, 2022
To the Stockholders of NextPlay Technologies, Inc.:
We are pleased to provide you notice of, and to invite you to
attend, the 2023 Annual Meeting of the stockholders (the “Meeting”)
of NextPlay Technologies, Inc., a Nevada corporation (“NextPlay,”
the “Company,” “we,” and “us”), which will be held on October 19,
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 elect ten directors to hold office until our next annual
meeting of stockholders or until their successors are duly elected
and qualified, subject to prior death, resignation, or removal;
2. To ratify the selection of TPS Thayer, LLC as the Company’s
independent registered public accounting firm for the fiscal year
ending February 28, 2023;
3. 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;
4. To approve, on a non-binding advisory basis, named executive
officer compensation;
5. 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
proposals listed above at the time of the Meeting; and
6. 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 director nominees identified in Proposal 1 and “For”
each of the other 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 conserves natural
resources and significantly reduces the costs of the Meeting. On or
about September [__], 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, our Annual Report on Form 10-K for our fiscal year ended
February 28, 2022 (the “Annual Report”) 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 and the Annual Report are both available on the Internet
at: https://www.nextplaytechnologies.com/investors/sec-filings.
Our Board has fixed the close of business on August 22, 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 |
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| Chairman |
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Sunrise, Florida
September [__], 2022
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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 AUGUST
26, 2022
PROXY STATEMENT
FOR 2023 ANNUAL 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 2023 Annual
Meeting of our stockholders (the “Meeting”) to be held on October
19, 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
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 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 September [__], 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, our Annual Report on Form 10-K for
our fiscal year ended February 28, 2022 (our “Annual Report”) 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
September [__], 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
(including our Annual Report, which does not constitute a part of,
and shall not be deemed incorporated by reference into, this Proxy
Statement or the enclosed form of proxy, except as otherwise stated
in this Proxy Statement) 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 August 22, 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 117,933,353 shares of our common stock issued and
outstanding and entitled to vote at the Meeting, which shares were
held by approximately 506 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 117,933,353 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
director nominees identified in Proposal 1 and “For” each of
the other 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. |
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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:
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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 |
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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, August
22, 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
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Proposal |
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Vote
Required |
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Broker
Discretionary
Voting
Allowed* |
| 1. |
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Election of ten directors to hold office until our next annual
meeting of stockholders or until their successors are duly elected
and qualified, subject to prior death, resignation, or removal.
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The
plurality of the votes cast. This means that the nominees receiving
the highest number of affirmative (“FOR”) votes (among votes
properly cast virtually or by proxy) will be elected as
directors. |
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No |
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| 2. |
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Ratification
of the selection of TPS Thayer, LLC as the Company’s independent
registered public accounting firm for the fiscal year ending
February 28, 2023. |
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A
majority of the votes cast on the proposal. |
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Yes |
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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”). |
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A
majority of the votes cast on the proposal. |
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No |
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| 4. |
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Approval,
on a non-binding advisory basis, of named executive officer
compensation. |
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A
majority of the votes cast on the proposal. |
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No |
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| 5. |
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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 proposals listed above
at the time of the Meeting. |
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Majority
of the shares of stock entitled to vote which are present, in
person (including virtually) or by proxy, at the
Meeting. |
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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.
The election of directors requires a plurality of the votes cast at
the Meeting. Broker Non-Votes will have no effect on the outcome of
Proposal 1. Although our stockholders will not have the option to
“Abstain” from voting on Proposal 1, they may elect to
“Withhold” their votes for any or all of the director
nominees. Withheld votes will not have any effect on the outcome of
Proposal 1.
Only “For” and “Against” votes are counted for
purposes of determining the votes received in connection with
Proposals 2, 3 and 4. 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 Proposals 2, 3 and 4. However, approval of
these proposals requires the affirmative vote of a majority of the
votes cast on such proposals, and therefore broker non-votes and
abstentions could prevent the approval of these proposals because
they do not count as affirmative votes.
Proposal 5 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 5.
Abstentions will be treated as a vote “Against” Proposal
5.
In order to minimize the number of broker non-votes, 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 (Proposals 2, 3 and 4).
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:
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● |
“FOR”
each of the director nominees identified in Proposal 1, each to
hold office until our next annual meeting of stockholders or until
their successors are duly elected and qualified, subject to prior
death, resignation, or removal (Proposal 1); |
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“FOR”
the ratification of the appointment of TPS Thayer, LLC as the
Company’s independent registered public accounting firm for the
fiscal year ending on February 28, 2023 (Proposal
2); |
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● |
“FOR”
the approval, in accordance with Nasdaq Listing Rule 5635(d), of
the Warrant Amendment (Proposal 3); |
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“FOR”
the approval, on a non-binding advisory basis, of our named
executive officer compensation; and |
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● |
“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
proposals listed above at the time of the Meeting (Proposal
5). |
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
ELECTION OF DIRECTORS
General
The Nominating and Corporate Governance Committee of our Board (the
“Nominating Committee”) has recommended, and our Board has
nominated, J. Todd Bonner, Nithinan Boonyawattanapisut, William
Kerby, Donald P. Monaco, Athid Nanthawaroon, Carmen Diges, Komson
Kaewkham, Yoshihiro Obata, Farooq Moosa, and Edward Terrance
Gardner, Jr. as nominees for election as members of our Board at
the Meeting for a period of one year or until such director’s
successor is elected and qualified, subject to such director’s
earlier death, resignation, or removal. Each of the nominees is
currently a director of the Company. At the Meeting, ten directors
will be elected to the Board.
The ten nominees with the greatest numbers of votes at the Meeting
will be elected to the ten director positions. Each nominee, if
elected at the Meeting, will serve as a director until the earlier
of the 2024 annual meeting of the Company’s stockholders or until
their successors are duly elected and qualified, subject to prior
death, resignation or removal. Unless otherwise instructed, the
proxy holders will vote the proxies received by them for each of J.
Todd Bonner, Nithinan Boonyawattanapisut, William Kerby, Donald P.
Monaco, Athid Nanthawaroon, Carmen Diges, Komson Kaewkham,
Yoshihiro Obata, Farooq Moosa, and Edward Terrance Gardner, Jr.
There currently are no legal proceedings, and during the past ten
years there have been no legal proceedings, that are material to
the evaluation of the ability or integrity of any of our directors
or director nominees. There are no material proceedings to which
any director, director nominee, officer, affiliate, or owner of
record or beneficially of more than 5% of any class of voting
securities of the Company, or any associates of any such persons,
is a party adverse to the Company or any of our subsidiaries, and
none of such persons has a material interest adverse to the Company
or any of its subsidiaries. Other than as disclosed below, during
the last five years, none of our directors or director nominees
held any other directorships in any company with a class of
securities registered pursuant to Section 12 of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”), or
subject to the requirements of Section 15(d) of the Exchange Act or
any company registered as an investment company under the
Investment Company Act of 1940.
We believe that each of our directors and director nominees
possesses high standards of personal and professional ethics,
character, integrity and values; an inquisitive and objective
perspective; practical wisdom; mature judgment; diversity in
professional experience, skills and background and a proven record
of success in their respective fields; and valuable knowledge of
our business and industry. Moreover, each of our director nominees
has expressed that he or she is willing to devote sufficient time
to carrying out his or her duties and responsibilities effectively
and is committed to serving us and our stockholders. Information
regarding the director nominees, including a brief description of
the specific experience, qualifications and skills attributable to
each of our director nominees that led the Board, as of the date of
this Proxy Statement, to its conclusion that such director should
serve as a director of the Company are included below.
Nomination of
Directors
The Nominating Committee is charged with making recommendations to
the Board regarding qualified candidates to serve as members of the
Board. The Nominating Committee’s goal is to assemble a board of
directors with the skills and characteristics that, taken as a
whole, will assure a strong board of directors with experience and
expertise in all aspects of corporate governance. Accordingly, the
Nominating Committee believes that candidates for director should
have certain minimum qualifications, seeks to achieve a balance of
knowledge, experience and capability on the Board and Board
committees and to identify individuals who can effectively assist
the Company in achieving our short-term and long-term goals,
protecting our stockholders’ interests and creating and enhancing
value for our stockholders. In so doing, the Nominating Committee
considers a person’s diversity attributes (e.g., professional
experiences, skills, background, race and gender) as a whole
and does not necessarily attribute any greater weight to one
attribute. Moreover, diversity in professional experience, skills
and background, and diversity in race and gender, are just a few of
the attributes that the Nominating Committee takes into account. In
evaluating prospective candidates, the Nominating Committee also
considers whether the individual has personal and professional
integrity, good business judgment and relevant experience and
skills, and whether such individual is willing and able to commit
the time necessary for Board and Board committee service.
While there are no specific minimum requirements that the
Nominating Committee believes must be met by a prospective director
nominee, the Nominating Committee does believe that director
nominees should possess personal and professional integrity, have
good business judgment, have relevant experience and skills, and be
willing and able to commit the necessary time for Board and Board
committee service. The Company does not have a formal diversity
policy. However, the Nominating Committee evaluates each individual
in the context of the Board as a whole, with the objective of
recommending individuals that can best perpetuate the success of
our business and represent stockholder interests through the
exercise of sound business judgment using their diversity of
experience in various areas. We believe our current directors
possess diverse professional experiences, skills and backgrounds,
in addition to (among other characteristics) high standards of
personal and professional ethics, proven records of success in
their respective fields, and valuable knowledge of our business and
our industry.
The Nominating Committee uses a variety of methods for identifying
and evaluating director nominees. The Nominating Committee also
regularly assesses the appropriate size of the Board and whether
any vacancies on the Board are expected due to retirement or other
circumstances. In addition, the Nominating Committee considers,
from time to time, various potential candidates for directorships.
Candidates may come to the attention of the Nominating Committee
through current Board members, professional search firms,
stockholders or other persons. These candidates may be evaluated at
regular or special meetings of the Nominating Committee and may be
considered at any point during the year.
The Nominating Committee evaluates director nominees at regular or
special committee meetings pursuant to the criteria described above
and reviews qualified director nominees with the Board. The
Nominating Committee selects nominees that best suit the Board’s
current needs and recommends one or more of such individuals for
election to the Board.
The Nominating Committee will consider candidates recommended by
stockholders, provided the names of such persons, accompanied by
relevant biographical information, and other information as
required by the Company’s Bylaws, are properly submitted in writing
to the Secretary of the Company in accordance with the Bylaws and
applicable law. The Secretary will send properly submitted
stockholder recommendations to the Nominating Committee.
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. The Nominating Committee also may, in its discretion,
consider candidates otherwise recommended by stockholders without
accompanying biographical information, if submitted in writing to
the Secretary.
Arrangements Related
to the Nomination of Directors
On or around February 22, 2021, Red Anchor Trading Corporation,
T&B Media Global (Thailand) Company Limited, Tree Roots
Entertainment Group Co., Ltd. and Dees Supreme Company Limited
(collectively, the “HotPlay Stockholders”), representing all of the
stockholders of HotPlay Enterprise Limited (“HotPlay”), and
Nithinan Boonyawattanapisut, J. Todd Bonner, Athid Nanthawaroon and
Komson Kaewkham, each HotPlay nominees, entered into a Voting
Agreement with William Kerby and Donald P. Monaco (the “Voting
Agreement”). 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.
Other than pursuant to the Voting Agreement, there are no
arrangements or understandings between any of our current
directors, nominees for directors or officers, and any other person
pursuant to which any director, nominee for director, or officer
was or is to be selected as a director, nominee or officer, as
applicable.
Information Regarding
Director Nominees
The below table and narrative disclosures include information about
the individuals who have been nominated for election as members of
our Board at the Meeting, all of whom currently serve as directors
on our Board.
|
Name |
|
Age |
|
Positions
and Offices Held |
|
Director
Since |
| J.
Todd Bonner |
|
55 |
|
Chairman
of the Board |
|
2021 |
| Nithinan
Boonyawattanapisut |
|
39 |
|
Co-Chief
Executive Officer and Director |
|
2021 |
| William
Kerby |
|
65 |
|
Co-Chief
Executive Officer and Director |
|
2008 |
| Donald
P. Monaco |
|
70 |
|
Director |
|
2011 |
| Carmen
Diges |
|
52 |
|
Director |
|
2021 |
| Komson
Kaewkham |
|
41 |
|
Director |
|
2021 |
| Yoshihiro
Obata |
|
61 |
|
Director |
|
2021 |
| Farooq
Moosa |
|
52 |
|
Director |
|
2021 |
| Edward
Terrence Gardner, Jr. |
|
56 |
|
Director |
|
2021 |
| Athid
Nanthawaroon |
|
40 |
|
Director |
|
2021 |
J. Todd Bonner, age 55, Chairman of the Board
Mr. Bonner has served as Chairman of the Board since the Company’s
acquisition of HotPlay on June 30, 2021 (serving as Co-Chairman of
the Board from June 2021 to December 2021). Mr. Bonner co-founded
HotPlay, an in-game advertising platform, and HotPlay Thailand in
March 2020, and is currently the Chairman of HotPlay Thailand. In
May 2016, Mr. Bonner co-founded Axion Ventures Inc., an online
video gaming and technology company listed on the TSX Venture
Exchange, where he served as Chief Executive Officer from May 2016
to July 2020 and as a member of its board of directors from May
2016 to April 2021. During that time, in April 2017, he started
True Axion Interactive, a game studio formed via a joint venture
with True Corporation, a major Thai telecommunication company. In
March 2012, he co-founded Red Anchor Trading Corporation as an
incubator for developing applications and predictive algorithms
based on crowdsourced data. Mr. Bonner founded independent AAA
games studio Axion games, which was formerly Epic Games China, in
2006. In July 2003, Mr. Bonner founded Northstar Pacific Partners,
an Indonesia Merchant Bank, and served as Partner until September
2005. Northstar Pacific Partners has since grown into a $2.2
billion private equity fund. Prior to that, Mr. Bonner co-founded
Pacific Century CyberWorks in June 2000, where he served as the
company’s Japan based CEO from March 2001 to September 2003. During
that time, he raised $2.4 billion to acquire Hong Kong Telecom,
which remains one of the largest acquisitions in Asian history. Mr.
Bonner also serves as a member of the Board of Directors of
Longroot Cayman. Mr. Bonner graduated from Stanford University in
June 1989 with a degree in Biology and Biomedical Sciences.
We believe that Mr. Bonner’s knowledge of the industries that the
Company operates in, familiarity with the Company’s business and
technologies, and experience founding and growing companies make
him a qualified candidate for the Board.
Nithinan “Jess” Boonyawattanapisut, age 39, Co-Chief Executive
Officer and Director
Ms. Boonyawattanapisut has served as a director on our Board and as
Co-Chief Executive Officer of the Company since the Company’s
acquisition of HotPlay on June 30, 2021. Ms. Boonyawattanapisut is
a serial entrepreneur with 16+ years of extensive management
experience, specialized in tech startups and video games business.
Ms. Boonyawattanapisut was the Co-Founder and Managing Director of
HotPlay, an in-game advertising platform, and HotPlay Thailand,
from March 2020 until June 30, 2021. Previously, from April 2017 to
January 2021, Ms. Boonyawattanapisut served as the Managing
Director of Axion Games, Inc., an online video gaming and
technology company, where she lead the content investment arm of
Axion Games, Inc. She also served as the Chief Executive Officer
and Chairperson of the board of directors at True Axion
Interactive, a game studio formed via a joint venture with True
Corporation, a major Thai telecommunication company, from the time
she co-founded it in March 2017 to January 2021. In June 2014, Ms.
Boonyawattanapisut founded HotNow (Thailand) Company Limited, a
hyper-local promotion discovery platform and has served as the
Chief Executive Officer thereof since its inception. In March 2012,
she co-founded Red Anchor Trading Corporation, an incubator for
developing applications and predictive algorithms based on
crowdsourced data. In July 2006, Ms. Boonyawattanapisut co-founded
the independent AAA games studio, Epic Games China, which later
consolidated as Axion Games Limited in 2014, and where Ms.
Boonyawattanapisut served as a Director until January 2021. Ms.
Boonyawattanapisut graduated from Mahidol University with a
Bachelor of Business Administration in International Business.
We believe that Ms. Boonyawattanapisut’s knowledge of the
industries that the Company operates in, status as the Company’s
Co-Chief Executive Officer, familiarity with the Company’s business
and technologies, and experience founding and growing companies
make her a qualified candidate for the Board.
William Kerby, age 65, Co-Chief Executive Officer and
Director
William Kerby is the founder, Co-Chief Executive Officer, and a
director of the Company. Mr. Kerby has over two decades of
experiences in the travel and media industries, and approximately a
decade of experience in the financial industry. Prior to the
acquisition of HotPlay, he acted as the architect of the NextPlay
model, overseeing the development and operations of the Travel,
Real Estate and Television Media divisions of the Company. In
October 2012, the Company transferred its real estate assets into a
public company - Verus International, Inc., formerly Realbiz Media
Group, Inc., where Mr. Kerby served as Chief Executive Officer
until August 2015 and on the board of directors until April of
2016. In July 2015, the decision was made to separate the
Television and Real Estate operations from the Company, thereby
allowing management to focus all efforts on the development of its
Travel division. From April 2002 to July 2008, Mr. Kerby served as
the Chief Executive Officer of various media and travel entities
that ultimately became part of Extraordinary Vacations Group.
Operations included Cruise & Vacation Shoppes, Maupintour
Extraordinary Vacations, Attaché Travel and the Travel Magazine - a
TV series of 160 travel shows. From February 1999 to April 2002,
Mr. Kerby founded and managed Travelbyus, a publicly- traded
company on the TSX and Nasdaq Small Cap Market. The launch included
an intellectually patented travel model that utilized
technology-based marketing to promote its travel services and
products. Mr. Kerby negotiated the acquisition and financing of 21
companies encompassing multiple tour operators, 2,100 travel
agencies, media that included print, television, outdoor billboard
and wireless applications and leading-edge technology in order to
build and complete the Travelbyus model. The company had over 500
employees, gross revenues exceeding $3 billion and a market cap
over $900 million. From June 1989 to January 1999, Mr. Kerby
founded and grew Leisure Canada – a company that included the
Master Franchise for Thrifty Car Rental British Columbia,
TravelPlus (a nationwide Travel Agency), Bluebird Holidays (an
international tour company with operations in the U.S., Canada,
Great Brittan, France, South Africa and the South Pacific) and
Canadian Traveler (a travel magazine). Leisure Canada was acquired
in May 1998 by Wilton Properties, a Canadian company developing
hotel and resort properties in Cuba. From October 1980 through June
1989, Mr. Kerby worked in the financial industry as an investment
advisor. Mr. Kerby also serves as a member of the Board of
Directors of Longroot Cayman. Mr. Kerby graduated from York
University in May 1980 with a Specialized Honors Economics
degree.
We believe that Mr. Kerby’s knowledge of the travel and leisure
industry, status as the Company’s Co-Chief Executive Officer, and
experience founding and growing companies make him a qualified
candidate for the Board.
Donald P. Monaco, age 70, Director
Mr. Monaco has served as a member of the Board since August 2011
and served as Chairman of the Board from August 2018 to December
2021 (serving as Co-Chairman of the Board from June 2021 to
December 2021). Mr. Monaco has almost three decades of experience
as an international information technology and business management
consultant. Mr. Monaco served on the Verus International, Inc.,
formerly RealBiz Media Group, Inc., board of directors from October
2012 until April 2016, serving as chairman of the board from August
2015 to April 2016. Mr. Monaco has served on the board of directors
of Enderby Entertainment Inc. since March 2018, serving as its
Chief Financial Officer since January 2020. Mr. Monaco is the
founder and owner of Monaco Air Duluth, LLC, a full service,
fixed-base operator aviation services business at Duluth
International Airport in Duluth, Minnesota serving airline,
military, and general aviation customers since November 2005. Mr.
Monaco has been appointed and reappointed by Minnesota Governors
since 2009 to serve as a Commissioner of the Metropolitan Airports
Commission in Minneapolis-St. Paul, Minnesota and currently serves
as Chairman of the Operations, Finance and Administration
Committee. Mr. Monaco was a Director at Republic Bank in Duluth,
Minnesota between May 2015 until October 2019 and served as Vice
Chairman of the Board, and subsequently served on the Bell Bank
Twin-Ports Market Advisory Board. Mr. Monaco is the President and
Chairman of the Monaco Air Foundation, Treasurer of Honor Flight
Northland, Treasurer of the Duluth Aviation Institute, and a member
of the Duluth Chamber of Commerce Military Affairs Committee. Mr.
Monaco spent over 18 years as a Partner and Senior Executive of the
28 years he served as an international information technology and
business management consultant with Accenture in Chicago, Illinois.
Mr. Monaco holds Bachelor’s. and Master’s degrees in Computer
Science Engineering from Northwestern University.
We selected Mr. Monaco to serve on our Board because he brings a
strong business background to the Company, and adds significant
strategic, business and financial experience. We believe that Mr.
Monaco’s business background provides him with a broad
understanding of the issues facing us, the financial markets and
the financing opportunities available to us.
Carmen L. Diges, age 52, Director
Ms. Diges has served as a member of the Board since the Company’s
acquisition of HotPlay on June 30, 2021. Ms. Diges is a senior
attorney, corporate and government advisor, and international
entrepreneur, with over two decades of experience across various
public and private sectors. Since August 2014, Ms. Diges has served
as Principal at her own law firm, REVlaw. Ms. Diges has served as
the General Counsel/Corporate Secretary of McEwen Mining Inc.
(NYSE:MUX) since August 2015. From November 2011 through July 2014,
Ms. Diges served as a Partner at the law firm of Miller Thomson
LLP. Prior thereto, from May 2004 to October 2011, Ms. Diges served
as a Partner at the law firm of McMillan LLP. Ms. Diges currently
serves as a Director of several private companies. Ms. Diges holds
a CFA Charter, a Master of Laws (Tax) from Osgoode Hall Law School
in Toronto, a Bachelor of Laws from Dalhousie Law School in
Halifax, as well as a Bachelor of Arts from the University of
Toronto.
We believe that Ms. Diges’ strong background in the legal and
corporate industry, as well as her significant corporate governance
experience, make her well qualified to serve on the Board.
Komson Kaewkham, age 41, Director
Mr. Kaewkham has served as a member of the Board since the
Company’s acquisition of HotPlay on June 30, 2021. Mr. Kaewkham is
the Legal Counsel and Senior Vice President of DTGO, a diversified
business group that integrates social contribution with business
success. He joined the organization’s property development
subsidiary, Magnolia Quality Development Corporation Limited, in
March 2011 as Division Manager. He then joined the Corporate Legal
team of DTGO in April 2017 and was promoted to Senior Vice
President in March 2019. During his time at the organization, Mr.
Kaewkham has specialized in legal matters related to real estate
project development, investment structures, mergers and
acquisitions, and presently is in charge of risk management and
compliance of DTP Global REITs Management limited, DTGO’s REIT
management company. From April 2009 to March 2011, Mr. Kaewkham was
a litigator at Blumenthal Ritcher & Sumet Limited’s Bangkok
office and served as legal counsel and as a litigator at Siam ILC.
Co., Ltd from March 2006 to March 2009. Mr. Kaewkham received his
Notarial Service Attorney License from Lawyers Council under the
Royal Patronage in Thailand in June 2010, and graduated from
Assumption University in May 2008 with a Master of Law Program in
Business Law.
We believe that Mr. Kaewkham’s strong background in the legal and
corporate industry, as well as his significant mergers and
acquisitions, risk management and compliance experience, make him
well qualified to serve on the Board.
Yoshihiro Obata, age 61, Director
Mr. Obata has served as a member of the Board since the Company’s
acquisition of HotPlay on June 30, 2021. Mr. Obata previously
served as an independent Director of Axion Ventures, Inc. until
November 2020. He has over three decades of experience with
technology companies as a founder, software engineer, board member
and senior executive. Most recently, Mr. Obata was a founding
member, director and Chief Technology Officer of eAccess, an ADSL
wholesale company, which acquired a 3G license in 2005 and
successfully introduced LTE in 2012 (under the EMOBILE brand). In
2013, after the acquisition of eAccess by Softbank, he moved to
Equinix Japan and has served as the President and Chief Executive
Officer of BizMobile Inc. since 2015.
We believe that Mr. Obata’s significant experience in the
technologies industry and founding and growing companies make him
well qualified to serve on the Board.
Farooq Moosa, age 52, Director
Mr. Moosa has served as a member of the Board since November 23,
2021. He currently serves as President, Chief Financial Officer and
a director of Avenir Senior Living Inc., a senior healthcare
operating company that builds, designs, markets owns and operates
luxury private-pay memory care communities and senior residences,
which positions that he has held since February 2021. He also
serves as President and Chief Executive Officer of 1285593 Ltd., a
company that provides capital markets and financial services
consulting services, which positions he has held since January
2021. Prior to that, Mr. Moosa served as managing director at
Echelon Wealth Partners and Artemis Investment Management, and as
director of global investment banking at Scotiabank and held
various positions, including president, Chief Executive Officer,
and director, of Scotia Managed Companies Administration, a wholly
owned subsidiary of Scotiabank. While at Scotia Managed Companies
Administration, Mr. Moosa’s responsibilities included corporate
governance, investment oversight, business risk management,
corporate due diligence, and financial analysis. Prior to that, he
served as VP of equity capital markets at BMO Capital Markets. Mr.
Moosa holds an MBA from Wilfrid Laurier University and a Bachelor
of Arts (Honours Standing) from Western University.
We believe that Mr. Moosa’s corporate governance, investment
oversight, business risk management, corporate due diligence, and
financial analysis experience, as well as his leadership experience
and familiarity with capital markets and financial reporting, make
him well qualified to serve on the Board.
Edward Terrence Gardner, Jr., age 56, Director
Mr. Gardner has served as a member of the Board since December 9,
2021. Mr. Gardner has over 25 years of capital markets, equity
research, and investment management experience. From 2015 to
present, Mr. Gardner has served as a Partner of C.J. Lawrence, LLC,
an investment management boutique and registered investment advisor
based in New York City, where he manages 50+ client accounts and
chairs the firm’s Investment Committee. Mr. Gardner also serves as
Chief Compliance Officer of C.J. Lawrence, LLC. Previously, he has
held senior analytical and management roles at Deutsche Bank
Securities, ITG, and Soleil Securities Group. Earlier, Mr. Gardner
served as an equity research analyst covering the ground
transportation industry and was ranked as the Top Stock Picker in
his category in the Wall Street Journal’s All-Star Analyst survey.
He holds a Bachelor of Arts in Economics from St. Lawrence
University.
We believe that Mr. Gardner’s extensive capital market and
management experience makes him well qualified to serve on the
Board.
Athid Nanthawaroon, age 40, Director
Mr. Nanthawaroon has served as a member of the Board since the
Company’s acquisition of HotPlay on June 30, 2021. Mr. Nanthawaroon
co-founded and served as a director of HotPlay and HotPlay
Thailand, from the time the companies were founded in March 2020
until June 30, 2021. He also served as the President of HotPlay
Thailand since its founding. Since January 2020, Mr. Nanthawaroon
has served as a director and Chief Executive Officer of Tree Roots
Entertainment Group, a joint venture between the Thai property
developer, Magnolia Quality Development Corporation Limited, and
the IP management and investment company, T&B Media Global
(Thailand) Company Limited, where he is building an ecosystem
bridging real estate and entertainment with technology. Since
November 2014, Mr. Nanthawaroon has served as Senior Vice President
of Corporate Finance at DTGO Corporation Limited (“DTGO”), a
diversified business group established in 1993 that integrates
social contribution with business success. DTGO’s largest
investment portfolio is Magnolia Quality Development Corporation
Limited, which holds real estate assets including condominiums,
mixed-use developments and “theme” developments, and maintains a
total asset value of over approximately $5 billion. Mr.
Nanthawaroon has over a decade and a half of experience in
investment strategy and fund raising across various industries. Mr.
Nanthawaroon holds a Bachelor’s degree in Finance from Kasetsart
University and a Master’s degree in Commerce and Accountancy in
Real Estate from Thammasat University.
We believe that Mr. Nanthawaroon’s knowledge of the industries that
the Company operates in, familiarity with the Company’s business
and technologies, and significant finance, investment and
fundraising experience make him a qualified candidate for the
Board.
Vote Required and
Recommendation of the Board
Directors are elected by plurality of the votes cast at the Meeting
by the holders of shares present virtually or represented by proxy
and entitled to vote on the election of the directors. If a quorum
is present and voting at the Meeting, the ten nominees receiving
the highest number of “FOR” votes will be elected. Shares
represented by executed proxies will be voted for which no contrary
instruction is given, if authority to do so is not withheld,
“FOR” the election of each of the nominees named above.
Votes withheld from any nominee, abstentions, and broker non-votes
will be counted only for purposes of determining a quorum. Broker
non-votes will have no effect on this proposal, as brokers or other
nominees are not entitled to vote on such proposals in the absence
of voting instructions from the beneficial owner.
OUR BOARD UNANIMOUSLY RECOMMENDS A VOTE
“FOR”
THE ELECTION OF EACH NOMINEE UNDER PROPOSAL ONE
PROPOSAL 2
RATIFICATION OF APPOINTMENT OF AUDITOR
Background
The Audit Committee of the Board (the “Audit Committee”) has
selected TPS Thayer, LLC (“TPS”) as our independent registered
public accounting firm for the fiscal year ending February 28,
2023, and has further directed that we submit the selection of TPS
as our independent registered accounting firm for ratification by
our stockholders at the Meeting. TPS was engaged effective
September 30, 2020. Thayer O’Neal Company, LLC (“Thayer”) audited
the Company’s financial statements for the fiscal years ended
February 29, 2020 and February 28, 2019, and subsequently applied
for de-registration from the Public Company Accounting Oversight
Board (“PCAOB”).
We are asking our stockholders to ratify the appointment of TPS as
our independent registered public accounting firm for the fiscal
year ending February 28, 2023. In the event our stockholders do not
ratify the appointment of TPS as our independent registered public
accounting firm, our Audit Committee will reconsider its
appointment. We do not expect that a representative of TPS will be
present at the Meeting; however, if a representative is present, he
or she will be able to make a statement if he or she so desires,
and will be available to respond to appropriate questions.
In deciding to appoint TPS as our independent registered public
accounting firm, the Audit Committee reviewed auditor independence
issues and existing commercial relationships with TPS and concluded
that TPS has no commercial relationship with the Company that would
impair its independence for the fiscal year ending February 28,
2023.
Independent Registered
Public Accounting Firm’s Fees
The following table presents fees for professional audit and merger
and acquisition related services performed by TPS and other
professional firms for the audit of our annual financial
statements, review of our quarterly financial statements, and all
merger and acquisition related activities for the years ended
February 28, 2021 and February 29, 2020.
Prior to the appointment of TPS on September 19, 2020, Thayer
served as our independent registered accounting firm from May 16,
2019 to September 30, 2020.
| |
|
TPS |
|
|
Others |
|
| |
|
2022 |
|
|
2021 |
|
|
2022 |
|
|
2021 |
|
| Audit
Fees(1) |
|
$ |
234,000 |
|
|
$ |
39,500 |
|
|
$ |
— |
|
|
|
48,500 |
|
| Audit-Related
Fees(2) |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| M&A
Fees(3) |
|
|
— |
|
|
|
10,000 |
|
|
|
4,300 |
|
|
|
— |
|
| All
Other Fees(4) |
|
|
103,000 |
|
|
|
17,000 |
|
|
|
41,213 |
|
|
|
20,000 |
|
|
Total |
|
$ |
337,000 |
|
|
$ |
66,500 |
|
|
$ |
45,513 |
|
|
|
68,500 |
|
| (1) |
Audit
fees include professional services rendered for (i) the audit of
our annual financial statements for the fiscal years ended February
28, 2022 and February 28, 2021 and (ii) the reviews of the
financial statements included in our Quarterly Reports on Form 10-Q
for such years. |
| (2) |
Audit-related
fees consist of fees billed for professional services that are
reasonably related to the performance of the audit or review of our
consolidated financial statements, but are not reported under
“Audit fees.” |
| (3) |
Tax
fees include professional services. |
| (4) |
Other
fees include professional services relating to merger and
acquisition related activities and for review of various filings
and issuance of consents. |
Pre-Approval Policies
and Procedures
It is the policy of our Board that all services to be provided by
our independent registered public accounting firm, including audit
services and permitted audit-related and non-audit services, must
be pre-approved by our Board. Our Board pre-approved all services,
audit and non-audit, provided to us by TPS for fiscal 2022 and
2021.
In order to assure continuing auditor independence, the Audit
Committee periodically considers the independent auditor’s
qualifications, performance and independence and whether there
should be a regular rotation of our independent external audit
firm. We believe the continued retention of TPS to serve as our
independent auditor is in the best interests of the Company and its
stockholders, and we are asking our stockholders to ratify the
appointment of TPS as our independent auditor for the year ended
February 28, 2023. While the Audit Committee is responsible for the
appointment, compensation, retention, termination and oversight of
the independent registered public accounting firm, the Audit
Committee and our board of directors are requesting, as a matter of
policy, that the stockholders ratify the appointment of TPS as our
independent registered public accounting firm.
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
year 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.
Vote Required and
Recommendation of the Board
Ratification of this appointment 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 (if any) 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” the ratification of the
appointment of TPS.
Our Audit Committee is not required to take any action as a result
of the outcome of the vote on this Proposal. In the event
stockholders fail to ratify the appointment, the Audit Committee
may reconsider this appointment. Even if the appointment is
ratified, the Audit Committee, in its discretion, may direct the
appointment of a different independent accounting firm at any time
during the year if the committee determines that such a change
would be in our and the stockholders’ best interests.
OUR BOARD RECOMMENDS A VOTE “FOR”
THE APPOINTMENT OF TPS THAYER, LLC CERTIFIED PUBLIC ACCOUNTANTS
AS OUR
INDEPENDENT PUBLIC ACCOUNTING FIRM
FOR THE FISCAL YEAR ENDING FEBRUARY 28, 2023.
PROPOSAL 3
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 is 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 special
meetings of our stockholders on January 28, 2022 and July 21, 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 any 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. The number of shares issuable upon
exercise of the Warrants will remain the same, and will not be
impacted by a reduction of the Floor Price of the Warrants.
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
meetings of our stockholders held on January 28, 2022 and July 21,
2022 or the annual meeting of our stockholders 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 a special 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 THREE
PROPOSAL 4
ADVISORY VOTE TO APPROVE NAMED EXECUTIVE OFFICER
COMPENSATION
General
In accordance with Section 14(a) of the Exchange Act, the Company
is providing stockholders with an advisory (non-binding) vote on
compensation programs, which is sometimes referred to as “say on
pay,” for our named executive officers, Ms. Nithinan “Jess”
Boonyawattanapisut, Mr. William Kerby, Mr. Sirapop “Kent”
Taepakdee, Mr. Mark Vange and Mr. Timothy Sikora. Accordingly, you
may vote on the following resolution at the Meeting:
“RESOLVED, that the compensation paid to the Company’s named
executive officers, as disclosed pursuant to Item 402 of Regulation
S-K, including the compensation tables and narrative discussion, in
this Proxy Statement and the Company’s Annual Report on Form 10-K
for the year ended February 28, 2022 is hereby APPROVED.”
This vote is non-binding. The Board intends to consider the outcome
of the vote when making future executive compensation decisions
and, in particular, to consider any significant negative voting
results to the extent they can determine the cause or causes for
such votes. The Board has determined, consistent with the vote of
the Company’s stockholders, to submit a resolution on the
compensation of the Company’s named executive officers to the
Company’s stockholders for an advisory vote every three years.
Stockholders are encouraged to read the accompanying compensation
tables and the related narrative disclosures for more information
about the Company’s executive compensation program.
Vote Required and
Recommendation by the Board
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, is required
to approve this proposal, on an advisory non-binding basis. 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” approval of our
named executive officer compensation.
OUR BOARD UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE
APPROVAL OF OUR NAMED EXECUTIVE OFFICER COMPENSATION
PROPOSAL 5
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 any or all of the other
proposals 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 one or more of the proposals, 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 the
other proposals. However, a stockholder vote may be taken on one of
the proposals in this Proxy Statement prior to any such adjournment
if there are sufficient votes for approval on such proposal.
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 one or more proposals. 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 any of the proposals to be presented at the Meeting,
including the solicitation of proxies from stockholders that have
previously voted against the relevant proposal.
Our Board believes that, if the number of shares of our common
stock voting in favor of any of the proposals presented at the
Meeting is insufficient to approve a 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 5, 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 5. Abstentions will be treated as a vote
“Against” this Proposal 5.
OUR BOARD RECOMMENDS A VOTE “FOR”
THE ADJOURNMENT OF THE MEETING,
IF NECESSARY OR APPROPRIATE, TO SOLICIT ADDITIONAL
PROXIES.
REFERENCES TO
ADDITIONAL INFORMATION
Included with this Proxy Statement is a copy of our Annual
Report, as filed with the SEC on June 21, 2022.
You may also request a copy of this Proxy Statement and the Annual
Report from Issuer Direct Corporation, our proxy agent, at the
following address and telephone number:
Issuer Direct Corporation
(919) 447-3740, or 1-866-752-VOTE (8683)
VOTING RIGHTS AND
PRINCIPAL STOCKHOLDERS
Holders of record of our common stock at the close of business on
the record date, August 22, 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 117,933,353 shares of common stock outstanding and
entitled to vote at the Meeting and at any adjournment or
postponement thereof, held by approximately 506 holders of record.
Each share of common stock is entitled to one vote on each proposal
presented at the Meeting, for 117,933,353 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, August 22,
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 117,933,353 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 August 22, 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 |
|
|
19,896,597 |
(4) |
|
|
16.9 |
% |
| 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 |
|
|
2,028,520 |
(7) |
|
|
1.7 |
% |
| John Todd
Bonner, Chairman of the Board |
|
|
19,896,597 |
(4) |
|
|
16.9 |
% |
| Athid
Nanthawaroon, Director |
|
|
215,247 |
|
|
|
* |
|
| Carmen
Diges, Director |
|
|
144,058 |
|
|
|
* |
|
| Komson
Kaewkham, Director |
|
|
139,137 |
|
|
|
* |
|
| Yoshihiro
Obata, Director |
|
|
894,058 |
(8) |
|
|
* |
|
| Farooq
Moosa, Director |
|
|
94,778 |
|
|
|
* |
|
| Edward
Terrance Gardner, Jr., Director |
|
|
742,430 |
|
|
|
* |
|
| All Executive
Officers and Directors as a Group (14 persons) |
|
|
28,881,165 |
(9) |
|
|
24.5 |
% |
| |
|
|
|
|
|
|
|
|
| 5%
Stockholders |
|
|
|
|
|
|
|
|
| Red
Anchor Trading Corp. Limited (10) |
|
|
13,609,875 |
|
|
|
11.5 |
% |
| (1) |
Includes
warrants and convertible securities exercisable or convertible for
common stock within 60 days of August 22, 2022. |
| (2) |
Based
on 117,933,353 shares of common stock outstanding as
of August 22, 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) 2,325,204 shares of common stock held directly by
Ms. Boonyawattanapisut; (ii) 27,500 shares of common stock held
directly by Mr. Bonner; (iii) 13,609,875 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 held by
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) 934,224 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
271,994 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 894,058 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. |
Delinquent Section
16(a) Reports
Section 16(a) of the Exchange Act requires our directors and
officers, and persons who beneficially own more than 10% of a
registered class of the Registrant’s equity securities, to file
reports of beneficial ownership and changes in beneficial ownership
of our securities with the SEC on Forms 3, 4 and 5. Officers,
directors and greater than 10% stockholders are required by SEC
regulation to furnish us with copies of all Section 16(a) forms
they file.
Based solely upon our knowledge of transactions and our review of
the Section 16(a) filings that have been furnished to us and filed
publicly, we believe that, except as set forth below, during FYE
February 28, 2022, no director, executive officer, or beneficial
owner of more than 10% of our common stock failed to file a report
on a timely basis. We are aware of the following late filings, or
failure to file a report required by Section 16(a), during FYE
February 28, 2022:
|
● |
Nithinan
Boonyawattanapisut, the Company’s Co-Chief Executive Officer and a
director, and her husband Todd Bonner, Chairman of the Company’s
Board, filed one late Form 4 that included one transaction that was
not reported on a timely basis; |
|
● |
Nithinan
Boonyawattanapisut, the Company’s Co-Chief Executive Officer and a
director, also filed a late Form 3; |
|
● |
William
Kerby, the Company’s Co-Chief Executive Officer and a director,
filed two late Form 4s that included an aggregate of seven
transactions that were not reported on a timely basis; |
|
● |
Donald
Monaco, a director of the Company, filed two late Form 4s that
included an aggregate of two transactions that were not reported on
a timely basis; |
|
● |
Yoshihiro
Obata, a director of the Company, filed a late Form 3 and two late
Form 4s that included an aggregate of two transactions that were
not reported on a timely basis; |
|
● |
Carmen
Diges, a director of the Company, filed one late Form 4 that
included one transaction that was not reported on a timely
basis; |
|
● |
Komson
Kaewkham, a director of the Company, failed to file a Form 3 and
two Form 4s, which should have included an aggregate of two
transactions that were not reported; |
|
● |
Athid
Nanthawaroon, a director of the Company, failed to file a Form 3
and three Form 4s, which should have included an aggregate of three
transactions that were not reported; |
|
● |
Farooq
Moosa, a director of the Company, filed a late Form 3; |
|
● |
Andrew
Greaves, the Company’s Chief Operating Officer, filed a late Form
3; |
|
● |
Stacey
Riddell, a former director of the Company, filed a late Form
3; |
| |
● |
Rupert Duchesne, a former director of the
Company, filed one late Form 4 that included one transaction that
was not reported on a timely basis; |
| |
● |
Alexandra Zubko, a former director of the
Company, filed one late Form 4 that included one transaction that
was not reported on a timely basis; |
| |
● |
Robert James Mendola, a former director of the
Company, filed one late Form 4 that included one transaction that
was not reported on a timely basis; |
| |
● |
Simon Orange, a former director of the Company,
filed one late Form 4 that included one transaction that was not
reported on a timely basis; and |
| |
● |
Pat LaVecchia, a former director of the Company,
filed one late Form 4 that included one transaction that was not
reported on a timely basis. |
Pursuant
to SEC rules, we are not required to disclose in this filing any
failure to timely file a Section 16(a) report that has been
disclosed by us in a prior annual report or proxy
statement.
Changes in
Control
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.
CERTAIN RELATIONSHIPS
AND RELATED PARTY TRANSACTIONS
Except as discussed below or otherwise disclosed below under the
section of this Proxy Statement entitled “Executive Compensation,”
which information is incorporated by reference where applicable in
this section, the following sets forth a summary of all
transactions since the beginning of the Company’s 2021 fiscal year,
or any currently proposed transaction, in which the Company was or
is to be a participant and the amount involved exceeded or exceeds
the lesser of $120,000 or one percent of the average of the
Company’s total assets at the fiscal year-end for 2021 and 2020,
and in which any Related Person had or will have a direct or
indirect material interest. We believe the terms obtained or
consideration that we paid or received, as applicable, in
connection with the transactions described below were comparable to
terms available or the amounts that would be paid or received, as
applicable, in arm’s-length transactions. “Related Persons” include
each of our “Named Executive Officers,” as defined under the
section of this Proxy Statement entitled “Summary Executive
Compensation Table,” each person who was serving on our board of
directors as of the date that the related party transaction
occurred, and any 5% shareholder of the Company.
Related Party
Transactions
Dividends in arrears on the previously outstanding Series A
Preferred Stock shares totaled $1,102,066 as of August 21, 2020,
May 31, 2020, February 29, 2020 and February 28, 2019. These
dividends were payable when and if declared by the Board. The
dividends were owed to an entity controlled by Donald P. Monaco,
our director (and prior Chairman of the Board), and William Kerby,
our Co-Chief Executive Officer and a director. On April 8, 2021,
the Company entered into an Exchange Agreement with Mr. Kerby and
Monaco Investment Partners II, LP (“MI Partners”), of which Mr.
Monaco (who served as the Chairman of our Board at that time) is
the managing general partner (the “Exchange Agreement”). Pursuant
to the Exchange Agreement, the terms of which were approved by the
Board, Mr. Kerby and MI Partners exchanged their right to an
aggregate of $1,016,314 in accrued dividends (the “Accrued
Dividends”), which had accrued on the Company’s outstanding Series
A Preferred Stock, which had been held by Mr. Kerby and MI Partners
prior to the conversion of such Series A Preferred Stock into
common stock of the Company in August 2017, for Convertible
Promissory Notes. Specifically, Mr. Kerby exchanged rights to
$430,889 of accrued dividends on the Series A Preferred Stock for a
Convertible Promissory Note with a principal balance of $430,889
and MI Partners exchanged rights to $585,425 of accrued dividends
on the Series A Preferred Stock for a Convertible Promissory Note
with a principal balance of $585,425 (the “Convertible Promissory
Notes”).
The Convertible Promissory Notes accrued interest at the rate of
12% per annum, compounded monthly at the end of each calendar
month, with such interest payable at maturity or upon conversion.
The principal and accrued interest owed under the Convertible
Promissory Notes was convertible, at the option of the holders
thereof, into shares of the Company’s common stock, at any time
beginning seven days after the Closing Date (defined below) and
prior to the payment in full of such Convertible Promissory Notes
by the Company, at a conversion price equal to the greater of
|
(i) |
the closing consolidated bid price
of the Company’s common stock on April 8, 2021 (which was $3.02);
and |
|
(ii) |
the five-day volume weighted
average price of the Company’s common stock for the five trading
days following the date that the HotPlay Exchange Agreement closes
(the “Closing Date”). The Convertible Promissory Notes were
unsecured, had a maturity date of April 7, 2022, and included
standard and customary events of default. |
The Convertible Promissory Notes were subsequently repaid in full
in March 2022, and are no longer outstanding.
On September 1, 2020, the Company entered into a consulting
agreement with Beachfront Travel Consulting LLC for their services
and expertise in Call Center and Sales Operations. The consultant
agreed to assist the Company in the development and design of a
Call Center Operation to support the Company’s brand. The Company
agreed to pay the consultant compensation of 1,500 restricted
shares of common stock per month, with a price equal to the closing
price on the last day of the month and the consultant agreed to
advise the Company on policies and procedures, performance metrics
and reporting, operational standards and training of call center
staff. The Company issued the consultant 1,500 shares of restricted
common stock for the month of December 2020. The agreement was
terminated on December 7, 2020, and the parties entered into as a
new consulting agreement, with an annual fee of $110,000 instead of
the 1,500 shares per month stock compensation. A consultant to
Beachfront is Beth Sikora, the wife of the COO of the Company, Tim
Sikora. The agreement provides that Mrs. Sikora will manage the
Consumer Programs and Call Center operations based on her
experience and background.
On November 16, 2020, the Company acquired 100% of Longroot, which
was in turn owned 57% of Longroot Cayman. Longroot Cayman owned 49%
of the outstanding ordinary shares (with 51% of the Preferred
shares owned by two Thai citizen shareholders) of Longroot
Thailand, provided that Longroot Cayman controls 90% of Longroot
Thailand’s voting shares and therefore effectively controls
Longroot Thailand. Subsequent to this acquisition, the Company
signed a service contract with Atato, an IT provider of
cryptocurrency website maintenance. As of February 28, 2022, Miss
Worapin Tatun, wife of the CEO of Atato and Mr. Pongsabutra
Viraseranee, an employee and developer employed by Atato, both are
minority shareholders of Longroot Thailand with a 25.5% interest of
preferred stock in Longroot Thailand each.
On March 17, 2021, the Company entered into a master development
and license agreement with HotPlay Enterprises Limited (“HPE”) to
license software frameworks “HotNow Platform” from HPE and to
engage HPE, using the HotNow Platform as the foundation, to develop
for the Company assets and extra features required for the
Company’s travel platform. On or about May 21, 2021, the Company
and HPE expanded the agreement through additional statements of
work for a total investment of approximately $2.0 million.
On March 31, 2021, HotPlay Thailand entered into an asset purchase
agreement with HotNow, a related party, which is also under the
same common control of HotPlay Thailand, to purchase some of the
assets, all software used in the business including all rights
under licenses and other agreements and employees with the
aggregate price of 19,500,000 Thai Baht (inclusive of 7% value
added tax (VAT)) (approximately $624,000 US). On April 30, 2021,
HotPlay Thailand made an advanced payment to HotNow in the amount
of 5,000,000 Thai Baht (approximately $149,533 US). On June 7,
2021, HotPlay Thailand paid the remaining cost of the asset
purchase to HotNow in the amount of 14,500,000 Thai Baht
(approximately $474,467 US) pursuant to the terms of the asset
purchase agreement.
On March 24 2021, the Company entered into a short-term loan with
Magnolia Quality Development Corporation Limited for $480,000
(15,000,000 Thai Baht) with an accrued interest rate of 9% per
annum, which is payable on demand and unsecured.
During June and July 2020, the Company entered into a short-term
loan with Tree Roots Entertainment Group Company Limited (“TREG”)
for $543,000 (17,000,000 Thai Baht) with an accrued interest rate
of 9.7% per annum, which was payable on demand and unsecured. On
May 31, 2021, HP Thailand repaid 7,000,000 Thai Baht (approximately
$223,000) in connection with the short-term loan from TREG.
Next Bank International currently holds a $705,000 loan that was
purchased in 2020 at a discounted purchase price of $647,776, when
the Bank was not partially or wholly owned by the Company. The
borrower is an entity affiliated with a current member of the
Bank’s Board of Directors. The Loan bears interest at an annual
rate of 10%.
On June 1, 2021, the Company entered into an agreement with
Something Great LLC (“Something Great”), a company owned and
controlled by Mr. Kerby’s son, for their services. Something Great
agreed to provide the content creation including writing, editing,
designing and publishing the articles monthly. The Company agreed
to pay Something Great of $19,200 per month for their service. The
period of service is 6 months, periodically renewable.
On June 9, 2021, GLM Consulting Ltd (the “Consultant”), of which
Andrew Greaves, the Company’s Chief Operating Officer, serves as
the sole officer and director, entered into a Consulting Agreement
with the Company to assist the Company in growing a connected
subscriber base and ecosystem across all devices: Digital TV, Set
Top Box, Streaming Devices, PC, Laptop, Tablet and Smartphones, by
providing a range of operational expertise. The term of the
agreement started on July 6, 2021 and is effective until June 30,
2022, provided that the agreement may be terminated at any time, by
either party, with two weeks written prior notice. The Company
agreed to pay the Consultant a daily consulting fee of $1,000, for
each day of service up to a maximum amount of 20 days per month
unless previously agreed in writing with the Company. Each day of
service shall include a minimum of 8 hours. The Consulting
Agreement included confidentiality obligations of the parties and
customary work for hire language.
On August 19, 2021, the Company entered into Intellectual Property
Purchase Agreements with Fighter Base Publishing Inc. (“Fighter
Base”) and Token IQ Inc. (“Token IQ,” and together with Fighter
Base, the “IP Sellers”), dated as of the same date (each an “IPP
Agreement,” and together the “IPP Agreements”). Pursuant to the IPP
Agreements, the Company agreed to acquire certain intellectual
property owned by Fighter Base (relating to the games industry) and
by Token IQ (relating to the distributed ledger industry), both of
which entities are owned and controlled by Mark Vange, the Chief
Technology Officer of the Company. Pursuant to the IPP Agreements,
in the event that the shares of Company common stock issued in
connection with the foregoing transactions are still restricted six
months after closing of such transactions, Fighter Base and Token
IQ will have piggyback registration rights with respect to such
shares. The Token IQ IPP Agreement includes the right for Token IQ
to license the intellectual property purchased thereunder to third
parties, with the approval of the Company, which shall not be
unreasonable withheld, provided that any licenses are
non-transferable, non-sublicensable and non-exclusive, and that the
licenses will not compete with the Company. Any consideration
received by Token IQ from such licenses will be split 50/50 between
the Company and Token IQ.
Pursuant to the Fighter Base IPP Agreement, the intellectual
property to be acquired thereunder has a mutually agreed upon value
of $5 million, which was paid by the Company by way of the issuance
to Fighter Base of 1,666,667 restricted shares of Company common
stock (valued at $3 per share of common stock) at closing, which
occurred on May 2, 2022.
Pursuant to the Token IQ IPP Agreement, the intellectual property
to be acquired thereunder has a mutually agreed upon value of $5
million, which was paid by the Company by way of the issuance to
Fighter Base of 1,250,000 restricted shares of Company common stock
(valued at $4 per share of common stock) at closing, which occurred
on May 2, 2022.
Closing of the transactions contemplated by the IPP Agreements was
subject to customary closing conditions, which include, due to Mr.
Vange’s status as an officer of the Company, the approval of the
Company’s shareholders of the transactions contemplated by the IPP
Agreements and the issuance of shares of Company common stock
thereunder (which was obtained at that special meeting of
stockholders held on January 28, 2022).
Review and Approval of
Related Party Transactions
The Audit Committee of the Board is tasked with reviewing and
approving any issues relating to conflicts of interests and all
related party transactions of the Company (“Related Party
Transactions”). The Audit Committee, in undertaking such review and
approval, will analyze the following factors, in addition to any
other factors the Audit Committee deems appropriate, in determining
whether to approve a Related Party Transaction: (i) the
fairness of the terms for the Company (including fairness from a
financial point of view); (ii) the materiality of the
transaction; (iii) bids/terms for such transaction from
unrelated parties; (iv) the structure of the transaction;
(v) the policies, rules and regulations of the U.S. federal
and state securities laws; (vi) the policies of the Committee;
and (vii) interests of each related party in the
transaction.
The Audit Committee will only approve a Related Party Transaction
if the Audit Committee determines that the terms of the Related
Party Transaction are beneficial and fair (including fair from a
financial point of view) to the Company and are lawful under the
laws of the United States. In the event multiple members of the
Audit Committee are deemed a related party, the Related Party
Transaction will be considered by the disinterested members of the
board of directors in place of the Audit Committee.
In addition, our Code of Ethics, which is applicable to all of our
employees, officers and directors, requires that all employees,
officers and directors avoid any conflict, or the appearance of a
conflict, between an individual’s personal interests and our
interests.
BOARD MATTERS AND
CORPORATE GOVERNANCE
Board
Composition
Our Board currently consists of the following ten directors:
|
Name |
|
Age |
|
Positions
and Offices Held |
|
Director
Since |
| J.
Todd Bonner |
|
55 |
|
Chairman
of the Board |
|
2021 |
| Nithinan
Boonyawattanapisut |
|
39 |
|
Co-Chief
Executive Officer and Director |
|
2021 |
| William
Kerby |
|
65 |
|
Co-Chief
Executive Officer and Director |
|
2008 |
| Donald
P. Monaco |
|
70 |
|
Director |
|
2011 |
| Carmen
Diges |
|
52 |
|
Director |
|
2021 |
| Komson
Kaewkham |
|
41 |
|
Director |
|
2021 |
| Yoshihiro
Obata |
|
61 |
|
Director |
|
2021 |
| Farooq
Moosa |
|
52 |
|
Director |
|
2021 |
| Edward
Terrence Gardner, Jr. |
|
56 |
|
Director |
|
2021 |
| Athid
Nanthawaroon |
|
40 |
|
Director |
|
2021 |
The biographical information for all of our current directors is
set forth above under Proposal 1.
Board and Stockholder
Meetings and Attendance
The Board has responsibility for establishing broad corporate
policies and reviewing our overall performance rather than
day-to-day operations. The primary responsibility of the Board is
to oversee the management of the Company and, in doing so, serve
the best interests of the Company and its stockholders. The entire
Board selects, evaluates, and provides for the succession of
executive officers and, subject to stockholder election, directors.
It reviews and approves corporate objectives and strategies, and
evaluates significant policies and proposed major commitments of
corporate resources. The Board also participates in decisions that
have a potential major economic impact on the Company. Management
keeps the directors informed of Company activity through regular
communication, including written reports and presentations at Board
and committee meetings.
Directors are elected annually and hold office until the Company’s
next annual meeting of stockholders or until their successors are
duly elected and qualified, subject to prior death, resignation, or
removal.
During the fiscal year ended on February 28, 2022, the Board held
17 meetings, and took various other actions via unanimous written
consent of the Board and the various committees described below.
All directors attended at least 75% of the Board meetings and
committee meetings relating to the committees on which each
director served during the 2021 fiscal year.
Each director of the Company has historically been expected to be
present at annual meetings of stockholders, absent exigent
circumstances that prevent their attendance. Where a director is
unable to attend an annual meeting in person but is able to do so
by electronic conferencing, the Company will arrange for the
director’s participation by means where the director can hear, and
be heard, by those present at the meeting.
Board Committees and
Director Independence
Committees of the Board
We currently maintain an Audit Committee, Compensation Committee,
Nominating and Corporate Governance Committee, Litigation Committee
and Risk Assessment Committee, which have the committee members
described below. We have also established a disclosure committee,
comprised of senior executives, directors and employees who are
actively involved in the disclosure process, to specify, coordinate
and oversee the public disclosure of information regarding the
Company, other than through periodic and current report filings
with the SEC.
Board Committee Membership
|
|
|
Independent |
|
Audit
Committee |
|
Compensation
Committee
|
|
Nominating and
Corporate Governance
Committee
|
|
Litigation Committee |
|
Risk Assessment Committee |
|
J.
Todd Bonner(1) |
|
|
|
|
|
|
|
|
|
|
|
|
|
Nithinan Boonyawattanapisut |
|
|
|
|
|
|
|
|
|
|
|
|
|
William Kerby |
|
|
|
|
|
|
|
|
|
|
|
|
|
Donald P. Monaco |
|
X |
|
|
|
M |
|
|
|
|
|
M |
|
Athid Nanthawaroon |
|
|
|
|
|
|
|
|
|
|
|
|
|
Carmen Diges |
|
X |
|
M |
|
|
|
M |
|
C |
|
C |
|
Komson Kaewkham |
|
X |
|
M |
|
M |
|
C |
|
M |
|
M |
|
Yoshihiro Obata |
|
X |
|
|
|
C |
|
M |
|
|
|
M |
|
Farooq Moosa |
|
X |
|
M |
|
|
|
|
|
|
|
M |
|
Edward Terrance Gardner, Jr. |
|
X |
|
C |
|
|
|
|
|
|
|
M |
|
(1) |
– Chairman of board of
directors. |
C – Chairman of Committee.
M – Member.
Each of these committees has the duties described below and
operates under a charter that has been approved by our
Board.
Audit Committee
The Audit Committee, which is comprised exclusively of independent
directors, has been established by the Board to oversee our
accounting and financial reporting processes and the audits of our
financial statements.
The Audit Committee has the responsibility for reviewing the
disclosures made by the Chief Executive Officer and the Chief
Financial Officer in connection with their required certifications
accompanying the Company’s periodic reports to be filed with the
SEC; reviewing and discussing the Company’s quarterly financial
results and related press releases, if any, with management and the
independent auditors prior to the release of such information to
the public; reviewing with the management the proposed scope and
plan for conducting internal audits of Company operations and
obtaining reports of significant findings and recommendations,
together with management’s corrective action plans; seeking to
ensure the corporate audit function has sufficient authority,
support and access to Company personnel, facilities and records to
carry out its work without restrictions or limitations; reviewing
the corporate audit function of the Company, including its charter,
plans, activities, staffing and organizational structure; reviewing
progress of the internal audit program, key findings and
management’s action plans to address findings; periodically
reviewing the Company’s policies with respect to legal compliance,
conflicts of interest and ethical conduct; seeking to ensure the
adequacy of procedures for the receipt, retention and treatment of
complaints regarding accounting, internal accounting control or
auditing matters, including the confidential submission of
complaints by employees regarding such matters; and recommending to
the Board any changes in ethics or compliance policies that the
committee deems appropriate.
The Board has selected the members of the Audit Committee based on
the Board’s determination that the members are financially literate
(as required by Nasdaq rules) and qualified to monitor the
performance of management and the independent auditors and to
monitor our disclosures so that our disclosures fairly present our
business, financial condition and results of operations.
The Board has also determined that each of Messrs. Gardner and
Moosa and Ms. Diges qualify as “audit committee financial experts”
(as defined in the SEC rules) because each of them has the
following attributes: (i) an understanding of generally accepted
accounting principles in the United States of America (“GAAP”) and
financial statements; (ii) the ability to assess the general
application of such principles in connection with accounting for
estimates, accruals and reserves; (iii) experience analyzing and
evaluating financial statements that present a breadth and level of
complexity of accounting issues that are generally comparable to
the breadth and complexity of issues that can reasonably be
expected to be raised by our financial statements; (iv) an
understanding of internal control over financial reporting; and (v)
an understanding of audit committee functions. Each of Messrs.
Gardner and Moosa and Ms. Diges has acquired these attributes by
means of having held various positions that provided relevant
experience, as described in their biographical information
disclosures, above.
The Audit Committee has the sole authority, at its discretion and
at our expense, to retain, compensate, evaluate and terminate our
independent auditors and to review, as it deems appropriate, the
scope of our annual audits, our accounting policies and reporting
practices, our system of internal controls, our compliance with
policies regarding business conduct and other matters. In addition,
the Audit Committee has the authority, at its discretion and at our
expense, to retain special legal, accounting or other advisors to
advise the Audit Committee.
During the fiscal year ended February 28, 2022, the Audit Committee
held four meetings.
The Audit Committee operates pursuant to a written charter that is
available on the Company’s website at:
https://www.nextplaytechnologies.com/investors/governance.
Compensation Committee
The Compensation Committee, which is comprised exclusively of
independent directors, is responsible for the administration of our
stock compensation plans, approval, review and evaluation of the
compensation arrangements for our executive officers and directors
and oversees and advises the Board on the adoption of policies that
govern the Company’s compensation and benefit programs. In
addition, the Compensation Committee has the authority, at its
discretion and at our expense, to retain special legal, accounting
or other advisors to advise the Compensation Committee.
During the fiscal year ended February 28, 2022, the Compensation
Committee held four meetings, and took various other actions via
consent to actions without meetings.
The Compensation Committee operates pursuant to a written charter
that is available on the Company’s website at:
https://www.nextplaytechnologies.com/investors/governance.
Nominating and Governance Committee
The Nominating and Governance Committee, which is comprised
exclusively of independent directors, is responsible for
identifying prospective qualified candidates to fill vacancies on
the Board, recommending director nominees (including chairpersons)
for each of our committees, developing and recommending appropriate
corporate governance guidelines and overseeing the self-evaluation
of the Board.
In considering individual director nominees and Board committee
appointments, our Nominating and Governance Committee seeks to
achieve a balance of knowledge, experience and capability on the
Board and Board committees and to identify individuals who can
effectively assist the Company in achieving our short-term and
long-term goals, protecting our stockholders’ interests and
creating and enhancing value for our stockholders. In so doing, the
Nominating and Governance Committee considers a person’s diversity
attributes (e.g., professional experiences, skills, background,
race and gender) as a whole and does not necessarily attribute any
greater weight to one attribute. Moreover, diversity in
professional experience, skills and background, and diversity in
race and gender, are just a few of the attributes that the
Nominating and Governance Committee takes into account. In
evaluating prospective candidates, the Nominating and Governance
Committee also considers whether the individual has personal and
professional integrity, good business judgment and relevant
experience and skills, and whether such individual is willing and
able to commit the time necessary for Board and Board committee
service.
While there are no specific minimum requirements that the
Nominating and Governance Committee believes must be met by a
prospective director nominee, the Nominating and Governance
Committee does believe that director nominees should possess
personal and professional integrity, have good business judgment,
have relevant experience and skills, and be willing and able to
commit the necessary time for Board and Board committee service.
The Company does not have a formal diversity policy. However, the
Nominating and Governance Committee evaluates each individual in
the context of the Board as a whole, with the objective of
recommending individuals that can best perpetuate the success of
our business and represent stockholder interests through the
exercise of sound business judgment using their diversity of
experience in various areas. We believe our current directors
possess diverse professional experiences, skills and backgrounds,
in addition to (among other characteristics) high standards of
personal and professional ethics, proven records of success in
their respective fields and valuable knowledge of our business and
our industry.
The Nominating and Governance Committee uses a variety of methods
for identifying and evaluating director nominees. The Nominating
and Governance Committee also regularly assesses the appropriate
size of the Board and whether any vacancies on the Board are
expected due to retirement or other circumstances. In addition, the
Nominating and Governance Committee considers, from time to time,
various potential candidates for directorships. Candidates may come
to the attention of the Nominating and Governance Committee through
current Board members, professional search firms, stockholders or
other persons. These candidates may be evaluated at regular or
special meetings of the Nominating and Governance Committee and may
be considered at any point during the year.
The Nominating and Governance Committee evaluates director nominees
at regular or special committee meetings pursuant to the criteria
described above and reviews qualified director nominees with the
Board. The Nominating and Governance Committee selects nominees
that best suit the Board’s current needs and recommends one or more
of such individuals for election to the Board.
The Nominating and Governance Committee will consider candidates
recommended by stockholders, provided the names of such persons,
accompanied by relevant biographical information, and other
information as required by the Company’s Bylaws, are properly
submitted in writing to the Secretary of the Company in accordance
with the Bylaws and applicable law. The Secretary will send
properly submitted stockholder recommendations to the Nominating
and Governance Committee. Individuals recommended by stockholders
in accordance with these procedures will receive the same
consideration received by individuals identified to the Nominating
and Governance Committee through other means. The Nominating and
Governance Committee also may, in its discretion, consider
candidates otherwise recommended by stockholders without
accompanying biographical information, if submitted in writing to
the Secretary.
During the fiscal year ended February 28, 2022, the Nominating and
Governance Committee held one meeting and took various other
actions via consent to actions without meetings.
The Nominating and Governance Committee operates pursuant to a
written charter that is available on the Company’s website at:
https://www.nextplaytechnologies.com/investors/governance.
Litigation Committee
The Litigation Committee, which is currently comprised exclusively
of independent directors, is responsible for overseeing any
significant arbitration, litigation or other legal process
involving a dispute between the Company and a third party
(“Disputes”), and assist the Board in fulfilling its oversight
responsibilities with respect to such Disputes. In addition, the
Litigation Committee has sole authority to retain and terminate
outside counsel, or other experts or consultants, as it deems
appropriate in connection with any litigation or potential
litigation matters, including sole authority to approve the fees
and other retention terms for such persons. The Litigation
Committee operates pursuant to a written charter.
Risk Assessment Committee
The Risk Assessment Committee, which is comprised exclusively of
independent directors, has been established by the Board to oversee
significant internal complaints and investigations into management,
and to assist the Board in fulfilling its oversight responsibility
with respect to such complaints. The Risk Assessment Committee’s
responsibilities include, without limitation, consulting with
counsel to review, investigate, assess, and manage any relevant
complaints. In addition, the Risk Assessment Committee has sole
authority to retain and terminate outside counsel, or other experts
or consultants, as it deems appropriate in connection with any
matters or potential matters being considered by the committee,
including sole authority to approve the fees and other retention
terms for such persons. The Risk Assessment Committee operates
pursuant to a written charter.
Director
Independence
In
accordance with Nasdaq requirements, our Board is comprised of a
majority of independent directors and the Nominating and Corporate
Governance, Compensation and Audit Committees are all comprised
entirely of independent directors.
The
Board annually determines the independence of each director and
nominee for election as a director. The Board makes these
determinations in accordance with The Nasdaq Capital Market’s
(“Nasdaq’s”) listing standards for the independence of directors
and the SEC’s rules.
In
assessing director independence, the Board considers, among other
matters, the nature and extent of any business relationships,
including transactions conducted, between the Company and each
director and between the Company and any organization for which one
of our directors is a director or executive officer or with which
one of our directors is otherwise affiliated.
The
Board has affirmatively determined that each of Messrs. Monaco,
Kaewkham, Obata, Moosa and Gardner and Ms. Diges are independent
under applicable Nasdaq rules.
Report of the Audit
Committee
The following report of the Audit Committee does not constitute
soliciting materials and should not be deemed filed or incorporated
by reference into any other Company filing under the Securities
Act, or the Exchange Act, except to the extent we specifically
incorporate such report by reference
therein.
AUDIT COMMITTEE REPORT
The
Audit Committee represents and assists the board of directors in
fulfilling its responsibilities for general oversight of the
integrity of the Company’s financial statements, the Company’s
compliance with legal and regulatory requirements, the independent
registered public accounting firm’s qualifications and
independence, the performance of the Company’s internal audit
function and independent registered public accounting firm, and
risk assessment and risk management. The Audit Committee manages
the Company’s relationship with its independent registered public
accounting firm (which reports directly to the Audit Committee).
The Audit Committee has the authority to obtain advice and
assistance from outside legal, accounting or other advisors as the
Audit Committee deems necessary to carry out its duties and
receives appropriate funding, as determined by the Audit Committee,
from the Company for such advice and assistance.
In
connection with the audited financial statements of the Company for
the year ended February 28, 2022, the Audit Committee of the Board
of Directors of the Company (i) reviewed and discussed the
audited financial statements with the Company’s management;
(ii) discussed with the Company’s independent auditors the
applicable requirements of the Public Company Accounting Oversight
Board (“PCAOB”) and the Securities and Exchange Commission;
(iii) received the written disclosures and the letter from the
independent auditors required by the applicable requirements of the
PCAOB regarding the independent auditors’ communications with the
Audit Committee concerning independence; (iv) discussed with
the independent auditors the independent auditors’ independence;
and (v) considered whether the provision of non-audit services
by the Company’s principal auditors is compatible with maintaining
auditor independence.
Based
upon these reviews and discussions, the Audit Committee recommended
to the board of directors, and the board of directors approved,
that the audited financial statements for the year ended February
28, 2022 be included in the Company’s Annual Report on Form 10-K
for the year ended February 28, 2022, for filing with the
Securities and Exchange Commission.
The
undersigned members of the Audit Committee have submitted this
Report to the board of directors.
|
|
Audit Committee |
|
|
|
|
|
/s/
Edward Terrence Gardner, Jr. (Chairman) |
|
|
/s/ Komson Kaewkham |
| |
/s/ Farooq Moosa |
| |
/s/ Carmen Diges |
Board Leadership
Structure
Our
Board has the responsibility for selecting our appropriate
leadership structure. In making leadership structure
determinations, the Board considers many factors, including the
specific needs of our business and what is in the best interests of
our stockholders. Our current leadership structure is comprised of
a separate Chairman of the Board and two Co-Chief Executive
Officers. Mr. Bonner currently serves as Chairman of the Board and
Ms. Boonyawattanapisut and Mr. Kerby each serve as Co-Chief
Executive Officers of the Company.
The
Board does not have a policy as to whether the Chairman should be
an independent director, an affiliated director, or a member of
management. Our Board believes that the Company’s current
leadership structure is appropriate because it effectively
allocates authority, responsibility, and oversight between
management (the Company’s Co-Chief Executive Officers, Ms.
Boonyawattanapisut and Mr. Kerby) and the members of our Board. It
does this by giving primary responsibility for the operational
leadership and strategic direction of the Company to its Co-Chief
Executive Officers, while enabling our Chairman to facilitate our
Board’s oversight of management, promote communication between
management and our Board, and support our Board’s consideration of
key governance matters. The Board believes that its programs for
overseeing risk, as described below, would be effective under a
variety of leadership frameworks and therefore do not materially
affect its choice of structure.
Board’s Role in Risk
Management
The
Board has responsibility for the oversight of the Company’s risk
management processes, while our management (or through the
committees of the Board) is responsible for day-to-day management
of risk. Effective risk oversight is an important priority of the
Board. Because risks are considered in virtually every business
decision, the Board regularly discusses with management our major
risk exposures, their potential impact on our business and the
steps we take to manage them throughout the year, both generally or
in connection with specific proposed actions. The Board’s approach
to risk oversight includes understanding the critical risks in the
Company’s business and strategy, evaluating the Company’s risk
management processes, allocating responsibilities for risk
oversight, and fostering an appropriate culture of integrity and
compliance with legal responsibilities. The directors exercise
direct oversight of strategic risks to the Company.
The
Audit Committee of our Board reviews information regarding
liquidity and operations, and oversees our management of financial
risks. Periodically, the Audit Committee reviews our policies with
respect to risk assessment, risk management, loss prevention and
regulatory compliance. Oversight by the Audit Committee includes
direct communication with our external auditors, and discussions
with management regarding significant risk exposures and the
actions management has taken to limit, monitor or control such
exposures. The Compensation Committee is responsible for assessing
whether any of our compensation policies or programs has the
potential to encourage excessive risk-taking. The Nominating and
Governance Committee reviews compliance with external and internal
compliance with policies, procedures and practices consistent with
our charter and bylaws.
While
each of our Board committees is responsible for evaluating certain
risks and overseeing the management of such risks, the entire Board
is regularly informed through committee reports and members of our
management team about such risks. Matters of significant strategic
risk are considered by our Board as a whole.
Board
Diversity
Our
Nominating Committee is responsible for reviewing with the Board,
on an annual basis, the appropriate characteristics, skills and
experience required for the Board as a whole and its individual
members. In evaluating the suitability of individual candidates
(both new candidates and current members), the Nominating
Committee, in recommending candidates for election, and the Board,
in approving (and, in the case of vacancies, appointing) such
candidates, will take into account many factors, including the
following:
|
|
● |
Personal
and professional integrity, ethics and values; |
|
|
● |
Experience
in corporate management, such as serving as an officer or former
officer of a publicly-held company; |
|
|
● |
Experience
as a board member or executive officer of another publicly-held
company; |
|
|
● |
Diversity
of expertise and experience in substantive matters pertaining to
our business relative to other Board members; |
|
|
● |
Diversity
of background and perspective, including, but not limited to, with
respect to age, gender, race, sexual orientation, place of
residence and specialized experience; |
|
|
● |
Experience
relevant to our business industry and with relevant social policy
concerns; and |
|
|
● |
Relevant
academic expertise or other proficiency in an area of our business
operations. |
Currently,
our Board evaluates each individual in the context of the Board as
a whole, with the objective of assembling a group that can best
maximize the success of the business and represent stockholder
interests through the exercise of sound judgment using its
diversity of experience in these various areas. Although we do not
have a formal diversity policy in place, our Board values diversity
and supports having directors of diverse gender, race, and
ethnicity, along with varied skills and experiences. Information
regarding the diversity of our Board members is outlined in the
below table:
|
Board Diversity Matrix (As of May 31, 2022) |
| Total number of Directors |
|
10 |
|
| |
|
Female |
|
|
Male |
|
|
Non-Binary |
|
|
Did Not
Disclose
Gender |
|
| Part I: Gender Identity |
|
|
|
|
|
|
|
|
|
|
|
|
| Directors |
|
|
1 |
|
|
|
8 |
|
|
|
— |
|
|
|
1 |
|
| Part II:
Demographic Background |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| African American or Black |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Alaskan Native or Native American |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Asian |
|
|
1 |
|
|
|
4 |
|
|
|
— |
|
|
|
— |
|
| Hispanic or Latinx |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Native Hawaiian or Pacific
Islander |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| White |
|
|
— |
|
|
|
4 |
|
|
|
— |
|
|
|
— |
|
| Two or More Races or Ethnicities |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| LGBTQ+ |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
— |
|
| Did Not Disclose Demographic
Background |
|
|
— |
|
|
|
— |
|
|
|
— |
|
|
|
1 |
|
Stockholder
Communications with our Board
In
connection with all other matters other than the nomination of
members of our Board (as described below), our stockholders and
other interested parties may communicate with members of the Board
by submitting such communications in writing to our Secretary at
1560 Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323,
who, upon receipt of any communication other than one that is
clearly marked “Confidential,” will note the date the communication
was received, open the communication, make a copy of it for our
files and promptly forward the communication to the director(s) to
whom it is addressed. Upon receipt of any communication that is
clearly marked “Confidential,” our Secretary will not open the
communication, but will note the date the communication was
received and promptly forward the communication to the director(s)
to whom it is addressed. If the correspondence is not addressed to
any particular member of the Board, the communication will be
forwarded to a Board member to bring to the attention of the
Board.
Codes of Ethics and
Business Conduct
We
maintain a Code of Ethics and Code of Business Conduct, which are
applicable to all of our directors, officers and employees. These
codes set forth ethical standards to which these persons must
adhere and other aspects of accounting, auditing and financial
compliance, as applicable. We undertake to provide a printed copy
of these codes free of charge to any person who requests. Any such
request should be sent to our principal executive offices
attention: Chief Financial Officer.
We
intend to disclose any amendments to our Code of Ethics and Code of
Business Conduct and any waivers with respect to our Code of Ethics
and Code of Business Conduct granted to our principal executive
officer, our principal financial officer, or any of our other
employees performing similar functions on our website at
https://www.nextplaytechnologies.com/, within four business days
after the amendment or waiver. In such case, the disclosure
regarding the amendment or waiver will remain available on our
website for at least 12 months after the initial disclosure. There
have been no waivers granted with respect to our Code of Ethics and
Code of Business Conduct to any such officers or employees to
date.
Whistleblower
Protection Policy
On
April 18, 2017, the Company adopted a Whistleblower Protection
Policy (“Whistleblower Policy”) that applies to all of its
directors, officers, employees, consultants, contractors and agents
of the Company. The Whistleblower Policy has been reviewed and
approved by the Board. A copy of the Whistleblower Policy is
available on the Company’s website at:
https://www.nextplaytechnologies.com/investors/governance.
Policy on Equity Ownership
The
Company does not have a policy on equity ownership at this time.
However, as illustrated in the table set forth under the section of
this Proxy Statement entitled “Security Ownership of Management and
Certain Beneficial Owners and Management,” all of our Named
Executive Officers and all of our directors are beneficial owners
of stock of the Company.
Policy Against
Hedging
The
Company recognizes that hedging against losses in Company shares
may disturb the alignment between stockholders and executives that
equity awards are intended to build. Accordingly, the Company has
incorporated prohibitions on ’short sales’ within its insider
trading policy, which applies to directors, officers and
employees.
Conflicts of
Interest
Our
directors and officers are not obligated to commit their full time
and attention to our business and, accordingly, they may encounter
a conflict of interest in allocating their time between our
operations and those of other businesses. In the course of their
other business activities, they may become aware of investment and
business opportunities which may be appropriate for presentation to
us as well as other entities to which they owe a fiduciary duty. As
a result, they may have conflicts of interest in determining to
which entity a particular business opportunity should be presented.
They may also in the future become affiliated with entities that
are engaged in business activities similar to those we intend to
conduct.
In
general, officers and directors of a corporation are required to
present business opportunities to the corporation if:
|
|
● |
the
corporation could financially undertake the
opportunity; |
|
|
● |
the
opportunity is within the corporation’s line of business;
and |
|
|
● |
it
would be unfair to the corporation and its stockholders not to
bring the opportunity to the attention of the
corporation |
We
have adopted a Code of Business Conduct and Ethics, as discussed in
further detail above, that obligates our directors, officers and
employees to disclose potential conflicts of interest and prohibits
those persons from engaging in such transactions without our
consent.
Family
Relationships
Mr.
Bonner, Chairman of our Board, is married to Ms.
Boonyawattanapisut, our Co-Chief Executive Officer. Except for the
foregoing relationship between Mr. Bonner and Ms.
Boonyawattanapisut, none of our directors are related by blood,
marriage, or adoption to any other director, executive officer, or
other key employees.
Director
Compensation
The
following table sets forth information concerning the total
compensation that we paid or that we accrued on behalf of our
non-executive directors during the fiscal year ended February 28,
2022. Our executive directors do not receive compensation for their
service on the Board separate from the compensation they receive as
an executive officer of the Company, as described below in the
section of this Proxy Statement entitled “Executive Compensation
and Other Information.”
| Name |
|
Fiscal
Year |
|
|
Fee
Earned |
|
|
Stock
Awards |
|
|
All other
Compensation |
|
|
Total |
|
| J. Todd Bonner |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
| Donald P.
Monaco, Director |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
59,417 |
|
|
$ |
— |
|
|
$ |
59,417 |
|
| Athid Nanthawaroon |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
40,000 |
|
|
$ |
— |
|
|
$ |
40,000 |
|
| Komson Kaewkham |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
44,292 |
|
|
$ |
— |
|
|
$ |
44,292 |
|
| Yoshihiro Obata |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
50,000 |
|
|
$ |
— |
|
|
$ |
50,000 |
|
| Carmen Diges |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
50,000 |
|
|
$ |
— |
|
|
$ |
50,000 |
|
| Farooq Moosa |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
16,333 |
|
|
$ |
— |
|
|
$ |
16,333 |
|
| Edward Terrence Gardner,
Jr. |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
16,125 |
|
|
$ |
— |
|
|
$ |
16,125 |
|
| Stacey
Riddell(1) |
|
|
2022 |
|
|
$ |
— |
|
|
$ |
26,875 |
|
|
$ |
— |
|
|
$ |
26,875 |
|
|
* |
The
value of the Stock Awards in the table above was calculated based
on the fair value of such securities calculated in accordance with
Financial Accounting Standards Board Accounting Standards
Codification Topic 718. |
|
(1) |
Ms.
Riddell resigned from her position as a director on the Board on
November 9, 2021. She received pro rata compensation for services
provided prior to her resignation in the fiscal year ended February
28, 2022. |
No
director received any Non-Equity Incentive Plan Compensation or
Non-Qualified Deferred Compensation for the period
above.
Director Compensation
Policy
Prior
to July 1, 2021, the compensation payable to the Board consisted
solely of equity, and included (a) compensation of 20,000 shares
per year, issuable in equal quarterly installments, to each
non-executive member of the Board; (b) compensation of 5,000 shares
per year, issuable in equal quarterly installments, to each
chairperson of each Board committee; and (c) compensation of 10,000
shares per year, issuable in equal quarterly installments, to the
Chairman of the Board, each under the terms of the Company’s 2017
Equity Incentive Plan (collectively, the “Board Compensation
Terms”).
Effective
July 1, 2021, we implemented changes to our Board Compensation
Terms. The compensation currently payable to the Board currently
consists of a mix of equity and cash, subject to certain exceptions
(as discussed below), and includes (a) compensation in the amount
of $60,000 per year, payable in equal quarterly installments, to
each non-executive member of the Board; (b) compensation in the
amount of $15,000 per year, payable in equal quarterly
installments, to the chairperson of each committee of the Board;
and (c) compensation in the amount of $30,000 per year, payable in
equal quarterly installments, to the chairman of the Board. The
foregoing amounts shall be paid out as follows: (i) in the event
that the company is profitable for the two quarters prior to any
given quarterly payment, then (a) 30% of the compensation is to
paid in cash and (b) 70% of the compensation is issued in shares of
Company common stock, calculated based on the closing price of the
Company’s common stock on the date of the award; or (ii) in the
event that the company is not profitable for the two quarters prior
to any given quarterly payment, then 100% of the relevant quarterly
payment will be issued in shares of Company common stock,
calculated based on the closing price of the Company’s common stock
on the date of the award. All equity issued to our directors as
compensation for their services is issued under the Company’s
equity incentive plans.
Director
compensation for the 2022 fiscal year (based on the old
compensation policy) was paid in shares of Company common stock in
April 2021 (for those directors who were members of the Board as of
such date), which shares vest in equal quarterly installments. Our
directors are entitled to receive additional compensation payable
under the new compensation policy for fiscal 2022, which shall be
payable on a pro rata basis starting on July 1, 2021 and shall take
into account the payments already made to them under the old
compensation policy in April 2021.
EXECUTIVE
COMPENSATION AND OTHER INFORMATION
Executive
Officers
The
following table sets forth the names, ages, and positions of our
current executive officers. There are no arrangements, agreements
or understandings between non-management security holders and
management under which non-management security holders may directly
or indirectly participate in or influence the management of our
affairs. There are no arrangements or understandings between any
executive officer and any other person pursuant to which any
executive officer was or is to be selected as an executive officer,
as applicable. There currently are no legal proceedings, and during
the past ten years there have been no legal proceedings that are
material to the evaluation of the ability or integrity of any of
our executive officers.
|
Name |
|
Age |
|
Position(s) |
|
Nithinan
Boonyawattanapisut |
|
39 |
|
Co-Chief
Executive Officer and Director |
| William
Kerby |
|
65 |
|
Co-Chief
Executive Officer and Director |
| Sirapop
“Kent” Taepakdee |
|
59 |
|
Chief
Financial Officer, Treasurer and Secretary |
| Andrew
Greaves |
|
57 |
|
Chief
Operating Officer |
| Mark
Vange |
|
52 |
|
Chief
Technology Officer |
| Tim
Sikora |
|
49 |
|
Chief
Information Officer |
Below
is information regarding each executive officer’s biographical
information, including their principal occupations or employment
for at least the past five years, and the names of other public
companies in which such persons hold or have held directorships
during the past five years.
Nithinan
“Jess” Boonyawattanapisut, age 39, Co-Chief Executive Officer and
Director
Ms.
Boonyawattanapisut’s biographical information is provided above
under the section of this Proxy Statement entitled “Information
Regarding Director Nominees,” and incorporated herein by
reference.
William
Kerby, age 65, Co-Chief Executive Officer and
Director
Mr.
Kerby’s biographical information is provided above under the
section of this Proxy Statement entitled “Information Regarding
Directors Nominees,” and incorporated herein by
reference.
Sirapop
“Kent” Taepakdee, age 59, Controller, Vice President of Finance,
Chief Financial Officer, Treasurer and Secretary
Mr.
Taepakdee has served as the Controller of the Company since July
2019. On October 9, 2019, the Board appointed Mr. Taepakdee as the
principal financial and accounting officer of the Company. Mr.
Taepakdee has served as the Vice President of Finance, Treasurer,
and Secretary of the Company since February 1, 2020. Also, from
February 1, 2020 to December 14, 2020, Mr. Taepakdee served as the
acting Chief Financial Officer of the Company, being appointed the
Chief Financial Officer of the Company on December 14, 2020. Mr.
Taepakdee has worked in accounting and finance for more than 32
years, garnering diverse experiences across several industries
including hospitality, car rental, office product retail,
manufacturer software, government, and an attorney office. His
strong process improvement skills helped many companies increase
productivities and decrease costs. From 2012 to 2018, Mr. Taepakdee
served as the Controller of Inceptra LLC and JTH Holdings LLC,
Florida. Kent worked closely with IT teams to implement the Oracle
system at Office Depot during the “Project Simplify” in 2007 –
2009. At Office Depot, Mr. Taepakdee also led the team of
accountants and worked with the auditors to do the “Fixed Asset
Cost Segregation” project, which saved the company millions. During
his employment at Vanguard Car Rental USA Inc (Alamo and National
Car Rental) after the September 11, 2001 (9/11) event, he involved
and worked with the recovery team (appointed by the court) to
perform due diligence after the company filed for bankruptcy, and
the company got out of the bankruptcy in early 2004. During 1997 –
2000, he served as the Assistant Food & Beverage Cost
Controller at the Boca Raton Resort & Club in Boca Raton,
Florida, and led the team to implement the F&B inventory system
(two F&B warehouses). Mr. Taepakdee also served as the Chief
Financial Officer at the Bangkok Naval Base (Royal Thai Navy) from
1986 to 1996. Mr. Taepakdee received an MBA (with a specialization
in Finance), from Ramkhamhaeng University, in Bangkok, Thailand and
a BBA in Accounting (First Class Honors / Valedictorian), from
Krirk University, in Bangkok, Thailand.
Andrew
Greaves, age 57, Chief Operating Officer
Mr.
Greaves was appointed as the Company’s Chief Operating Officer on
August 19, 2021. Mr. Greaves brings to NextPlay more than 15 years
of award-winning achievement and senior level experience leading
gaming, eSports and digital media companies. Mr. Greaves has served
as Managing Director of GLM Consulting LTD, a technology consulting
services company that he owns, since May 2007. He previously
co-founded Promethean TV, an award-winning interactive video
overlay service for digital media, where he served as chief
operating officer from November 2016 to June 2021 and has served as
a director since March 2017. He oversaw the company’s growth from
inception in 2016 to generating multi-millions in annual revenue.
Prior to Promethean, from September 2013 through November 2016, Mr.
Greaves served as vice president of product and technology at
Azubu.tv, an eSports streaming platform, where he led the growth in
monthly active users from 1 million to 20 million. He also oversaw
the European expansion of the competitive eSports platform, Virgin
Gaming.com. He earlier served in executive positions at Electronic
Arts (NYSE: EA), initially as a studio program director in Europe
where he was responsible for the localized adoption of EA
technologies. Then as senior producer for the EA SPORTS FIFA team,
he oversaw the online EA Sports Football portal that included five
FIFA titles, including the BAFTA award-winning FIFA10. Mr. Greaves
received his Bachelor of Science degree from Sheffield City
Polytechnic in Sheffield, England.
Mark
Vange, age 52, Chief Technology Officer
Mr.
Vange has served as Chief Technology Officer of the Company since
the Company’s acquisition of HotPlay on June 30, 2021, prior to
which he served as Chief Technology Officer of HotPlay Thailand and
HotNow (Thailand) Company Limited, a hyper-local promotion
discovery platform, positions he held since March 2020 and June
2020, respectively. Mr. Vange has over three decades of experience
as a technologist and entrepreneur. In May 2017, he founded Token
IQ Inc., a technology company that addresses issues in the
tokenization space such as compliance with existing securities
laws, cross border issues, token price volatility, post offering
transparency, high transactional costs, and scalability, where he
has served as Chief Executive Officer since its inception. In May
2016, Mr. Vange founded Fighter Base Publishing Inc, developer of
Fighter base, a massively-multiplayer combat flight game, where he
has served as Chief Executive Officer since its inception. Mr.
Vange is also the Co-Founder of Tech Round LLC, a company that
provides specialty development services to many of the world’s
largest publishers, which formed in January 2015. In June 2005, Mr.
Vange Founded and served as Executive Vice President of Mobile Post
Productions Inc, a company that enabled video game publishers to
enter the mobile game space at scale. Mobile Post Productions Inc
was later acquired by Electronic Arts Inc in April 2011, and Mr.
Vange served as the Chief Technology Officer of Electronic Arts
Interactive (NYSE: EA) from the date of acquisition until June
2012. To date, Mr. Vange has over 100 patents for technologies that
defined industries such as 3D gaming, massively multiplayer games,
data transmission over the Internet, large-scale data processing,
and mobile communications.
Tim
Sikora, age 49, Chief Information Officer
Mr.
Sikora joined the Company as Chief Information Officer
(non-executive) in October 2019, and was promoted to Chief
Operating Officer and Chief Information Officer (executive) on
February 1, 2020, in which roles he is responsible for managing all
of the Company’s information technology (“IT”) platforms, including
the software development activities for the Company’s NextPlay
Booking Engine (MBE), a customizable, instant-booking platform for
alternative lodging rentals NextTrip, the Company’s Travel
Management Solution for small to medium-sized business, and
Maupintour, an innovative leader in personalized travel
experiences. Mr. Sikora also leads the Company’s commercial sales
and technical teams. Mr. Sikora has over two decades of experience
in the information technology and travel industries. He served as
director of North America Sales at The Boeing Company, the world’s
largest aerospace company, prior to joining the Company, from May
2013 to October 2019. Prior to working with Boeing, he managed and
led the expansion of two IT services companies: Peak 10, a leading
data center and cloud services company, where he served as Director
Information Technology Service Delivery from July 2012 to May 2013,
and CIBER, Inc., a global information technology infrastructure
services provider, where he served as Information Technology
Infrastructure Service Delivery Manager from November 2010 to July
2012. Prior to that, from November 2007 to November 2010, Mr.
Sikora served as director of Information Technology End User
Services at US Airways, Inc. While there, Mr. Sikora led the
airline’s integration of IT end-user platforms following its merger
with America West and was responsible for governing IT resource
planning, budgeting, and operational management for end-user
services. Prior to joining US Airways, Mr. Sikora served as VP of
Airline Operations and Chief Information Officer at Caribbean Sun
Airlines Holdings (September 2005 to November 2007), where he
directed all IT and airline resource planning, budgeting and
operational initiatives. Prior to that, Mr. Sikora served as
manager of Information technology at DHL Airways, a $500 million
cargo airline where he directed the Information Technology group, a
provider of contract aircraft services to DHL Worldwide Express.
Mr. Sikora has also held several other software development
positions, including at Midwest Express Airlines. Mr. Sikora also
serves as a member of the Board of Directors of Longroot Cayman.
Mr. Sikora received a Bachelor’s of Science in Business
Administration (Magna Cum Laude) and a Master’s of Science in
Leadership, from Embry-Riddle Aeronautical University.
Summary Executive
Compensation Table
The
following table sets forth certain information concerning
compensation earned by or paid to certain persons who we refer to
as our “Named Executive Officers” for services provided for the
fiscal years ended February 28, 2022 and 2021 (Fiscal 2022 and
Fiscal 2021, respectively). Our Named Executive Officers include
persons who (i) served as our principal executive officer or acted
in a similar capacity during Fiscal 2021, (ii) were serving as our
two most highly compensated executive officers, other than the
principal executive officer (“PEO”), whose total compensation
exceeded $100,000 as of February 28, 2022, and (iii) if applicable,
up to two additional individuals for whom disclosure would have
been provided as a most highly compensated executive officer, but
for the fact that the individual was not serving as an executive
officer as of February 28, 2022.
|
Name and Principal Position |
|
Fiscal
Year
Ended |
|
|
Salary |
|
|
Bonus |
|
|
Stock
Awards
(1) |
|
|
All
Other
Compensation |
|
|
Total |
|
|
Nithinan
Boonyawattanapisut, |
|
|
2022 |
|
|
$ |
166,667 |
|
|
$ |
200,000 |
|
|
$ |
46,750 |
(4) |
|
$ |
12,500 |
(2)(6) |
|
$ |
425,917 |
|
|
PEO
and Co-CEO |
|
|
2021 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| William
Kerby, |
|
|
2022 |
|
|
$ |
400,000 |
|
|
$ |
400,000 |
|
|
$ |
— |
|
|
$ |
42,000 |
(2)(3)(5) |
|
$ |
842,000 |
|
|
Co-CEO
(and former PEO) |
|
|
2021 |
|
|
$ |
400,000 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
124,759 |
|
|
$ |
524,759 |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Sirapop
“Kent” Taepakdee, |
|
|
2022 |
|
|
$ |
200,000 |
|
|
$ |
— |
|
|
$ |
— |
(4) |
|
$ |
— |
(5) |
|
$ |
200,000 |
|
|
CFO |
|
|
2021 |
|
|
$ |
157,834 |
|
|
$ |
10,000 |
|
|
$ |
64,850 |
|
|
$ |
11,211 |
|
|
$ |
232,684 |
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Mark
Vange |
|
|
2022 |
|
|
$ |
187,500 |
|
|
$ |
— |
|
|
$ |
2,500,000 |
(7) |
|
$ |
— |
|
|
$ |
2,687,500 |
|
|
CTO |
|
|
2021 |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
|
$ |
— |
|
| |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
| Timothy
Sikora, |
|
|
2022 |
|
|
$ |
236,000 |
|
|
$ |
— |
|
|
$ |
— |
(4) |
|
$ |
— |
(5) |
|
$ |
236,000 |
|
|
CIO |
|
|
2021 |
|
|
$ |
200,000 |
|
|
$ |
— |
|
|
$ |
36,300 |
|
|
$ |
7,762 |
|
|
$ |
244,062 |
|
|
* |
Does
not include perquisites and other personal benefits, or property,
unless the aggregate amount of such compensation is more than
$10,000. None of our executive officers received any change in
pension value and nonqualified deferred compensation earnings
during the periods presented. |
|
(1) |
The
value of the Stock Awards in the table above was calculated based
on the fair value of such securities calculated in accordance with
Financial Accounting Standards Board Accounting Standards
Codification Topic 718. |
|
(2) |
Nithinan
Boonyawattanapisut and William Kerby each receives additional
compensation in the form of a car allowance in the amount of $1,500
per month. |
|
(3) |
William
Kerby received additional compensation in the form of a Merchant
Banking Guarantee in the amount of $2,000 per month. |
|
(4) |
Represents
the Stock Awards to Sirapop “Kent” Taepakdee for 27,500 shares, and
to Timothy Sikora for 15,000 shares. |
|
(5) |
Includes
payment of unused vacation time, which was paid in the form of
cash, totaling $82,759 for William Kerby, $11,211 for Sirapop
“Kent” Taepakdee, and $7,762 for Timothy Sikora. |
|
(6) |
Nithinan
Boonyawattanapisut received $1,000 monthly for
health/medical/dental/vision insurance. |
|
(7) |
Represents
the Stock Awards to Mark Vange for 1,000,000 shares |
Employment and
Compensation Agreements
We
have the following employment contracts and compensation agreements
in place with our Named Executive Officers and Chairman:
Nithinan
“Jess” Boonyawattanapisut, Employment Agreement
On
September 16, 2021, the Company entered into an Employment
Agreement with Ms. Boonyawattanapisut, its Co-Chief Executive
Officer and member of its Board, 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 (i) the
commercial sale of products sold by the Company during the six
months preceding the termination date; and (ii) any services the
Company commercially offered during the six 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
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; 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 (i) 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 (ii) 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 ((i) or (ii) 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 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 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 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 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 months before or twenty-four 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 months of base salary; continued participation in all
benefit plans and programs of the Company for twelve 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.
William
Kerby, Employment Agreement
On
October 31, 2018, the Company entered into an Employment Agreement
with Mr. Kerby, who served as the Company’s Chief Executive Officer
and Vice Chairman of the Board at that time. The agreement was
effective as of November 1, 2018, and replaced and superseded the
terms of Mr. Kerby’s prior employment agreement dated October 15,
2006.
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 Mr. Kerby
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 offer of Alternative Lodging Rental
properties (Vacation Home Rentals) which are distributed on a
Business to Business Basis; (B) the commercial sale of specialty
products sold by the Company during the six months preceding the
termination date; and (C) any services the Company commercially
offered during the six months prior to the termination date
(collectively, the “Non-Compete”).
During
the term of the agreement, Mr. Kerby 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; an annual
bonus payable at the discretion of the Compensation Committee, of
up to 100% of his base salary (50% based on meeting short term
goals and 50% based on meeting long-term goals, which are
determined from time to time by the Compensation Committee); other
bonuses which may be granted from time to time in the discretion of
the Compensation Committee; 25,000 shares of common stock issued as
a sign-on bonus under the terms of the Company’s 2017 Equity
Incentive Plan; up to four weeks of annual paid time off, which can
be rolled-over year to year, or which in the discretion of Mr.
Kerby, can be required to be paid in cash at the end of any year or
the termination of the agreement; and a car allowance of $1,500 per
month during the term of the agreement.
The
agreement provides Mr. Kerby 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 Mr. Kerby 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 Mr. Kerby shall be required to provide the Company at
least five business days prior written notice if he 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, 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 Mr. Kerby 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, as
well as amounts under the Company’s 401(k) Savings and
Retirement.
Additionally,
in consideration for Mr. Kerby having entered into numerous
personal guarantees with the Airline Reporting Commission, sellers
of travel services, merchant providers, financial institutions,
associations and service providers on behalf of the Company, the
Company agreed that, for as long as Mr. Kerby is employed by the
Company, provides services under the agreement and is willing to
continue to support the Company in connection with such guarantees,
he will receive a $2,000 per month guarantee fee. In the event Mr.
Kerby resigns for Good Reason (defined below), or his employment is
terminated by the Company, the Company agreed to eliminate any and
all guarantees within thirty days, failing which, for each month
the guarantees remain in place, the monthly guarantee fee will rise
to $10,000 per month, until such time as the Company has assumed or
terminated all such guarantees.
The
agreement terminates upon Mr. Kerby’s death and can be terminated
by the Company upon his disability (as described in the agreement),
by the Company for Cause (defined below) or Mr. Kerby for Good
Reason (defined below). For the purposes of the agreement, (A)
“Cause” means (i) Mr. Kerby’s gross and willful misappropriation or
theft of the Company’s or any of its subsidiary’s funds or
property; or (ii) Mr. Kerby’s conviction of, or plea of guilty or
nolo contendere to, any felony or crime involving dishonesty or
moral turpitude; or (iii) Mr. Kerby materially breaches any
obligation, duty, covenant or agreement under the agreement, which
breach is not cured or corrected within thirty days of written
notice thereof from the Company (except for certain breaches which
cannot be cured); or (iv) Mr. Kerby commits any act of fraud; and
(B) “Good Reason” means (i) without the consent of Mr. Kerby, the
Company materially reduces Mr. Kerby’s title, duties or
responsibilities, without the same being corrected within ten days
after being given written notice thereof; (ii) the Company fails to
pay any regular installment of base salary to Mr. Kerby and such
failure to pay continues for a period of more than thirty 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 days after being given written notice
thereof.
In
the event of termination of the agreement for death or disability
by Mr. Kerby without Good Reason, or for Cause by the Company, Mr.
Kerby is due all consideration due and payable to him through the
date of termination. In the event of termination of the agreement
by Mr. Kerby for Good Reason or the Company for any reason other
than Cause (or if Mr. Kerby’s employment is terminated other than
for Cause within six months before or twenty-four months following
the occurrence of a Change of Control (defined in the agreement) of
the Company), Mr. Kerby is due all consideration due and payable
through the date of termination; a lump sum payment equal to twelve
months of base salary; continued participation in all benefit plans
and programs of the Company for twelve 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 Mr. Kerby.
The
terms of the agreement were approved by the Company’s Compensation
Committee, consisting solely of “independent” members of our
Board.
Sirapop
“Kent” Taepakdee, Employment Agreement
On
January 30, 2020, Mr. Sirapop “Kent” Taepakdee entered into an
employment agreement with the Company. Pursuant to Mr. Taepakdee’s
employment agreement, he agreed to provide services to the Company
as the VP of Finance and Chief Financial Officer.
Mr.
Taepakdee receives a base salary payable in cash ($200,000 per
year) pursuant to his employment agreement and is also eligible to
receive equity compensation, when approved by the Board and subject
to the Company meeting certain metrics as follows – Mr. Taepakdee
is eligible, for a bonus of up to (a) 5,000 shares (or $5,000
dollars), upon completion of a review of, the improvement of, the
Company’s financial reporting programs, payable in the discretion
of the Chief Executive Officer; (b) 7,500 shares (or $10,000) in
the event the Company meets certain metrics by June 30, 2020,
including achieving a minimum level of gross monthly revenues or
achieving an EBITDA profit in any month, payable in the discretion
of the Chief Executive Officer; (c) 2,000 shares or $2,000 (in Mr.
Taepakdee’s discretion), each quarter that Mr. Taepakdee works with
the Chief Executive Officer in order to prepare presentations and
other public relations items, payable in the discretion of the
Chief Executive Officer; and (d) 3,000 shares (or $4,000) in the
event the Company raises more than $3 million during the first 12
months of the agreement, payable in the discretion of the Chief
Executive Officer. All shares earned in the first 12 months of the
agreement are valued at $2.00 per share. Upon the mutual approval
of the executive and the Company, Mr. Taepakdee’s salary may
increase to no less than $150,000 per year after the first
year.
Effective
on January 31, 2021, the compensation of Mr. Taepakdee was
increased from $154,000 to $200,000 per year.
On
February 12, 2021, the Company issued Mr. Taepakdee an aggregate of
10,000 shares of common stock of the Company as a bonus in
consideration for services rendered, which vested immediately upon
issuance.
The
agreement has a term of three years, which is mutually extendable
with the consent of the parties.
In
the event that Mr. Taepakdee desires to sell more than 10,000
shares of common stock in any one transaction when the daily volume
of the Company’s common stock is 10,000 or less, Mr. Taepakdee is
required to provide the Company the first right to purchase such
shares.
If
the agreement is terminated by Mr. Taepakdee for good reason (as
defined in the agreement) or by the Company without cause, and
other than due to Mr. Taepakdee’s death or disability, Mr.
Taepakdee is due two calendar months of severance pay; and if the
agreement is terminated due to Mr. Taepakdee’s disability, Mr.
Taepakdee, is due compensation through the remainder of the month
during which he was terminated. If he is terminated for cause,
terminates his employment without good reason or dies, he (or his
estate, as applicable) is paid through the date of termination. If
the Company terminates the agreement within 24 months after a
change in control (as described in the agreement), then the Company
is required to pay Mr. Taepakdee a severance payment equal to
twelve months’ salary, plus continue to provide benefits equal to
those provided prior to the change in control for a period of six
months. The agreement contains customary confidentiality
requirements and work for hire language. The agreement includes a
one year non-solicitation and non-competition clause following the
date of the termination of the agreement, which non-competition
clause prohibits Mr. Taepakdee (without the prior written consent
of the Company which consent will not be unreasonably withheld)
from directly or through another person or another entity carrying
on or being engaged in any business within North America which is
competitive with the business of the Company, however the
non-compete shall terminate in the event of a termination of
employment by Mr. Taepakdee for good reason or a termination by the
Company other than for cause or disability.
Mark
Vange – Employment Agreement
On July 15, 2021, Mr. Vange entered into an employment agreement
with the Company. Pursuant to Mr. Vange’s employment agreement, he
agreed to provide services to the Company as the Chief Technology
Officer.
Mr.
Vange receives a base salary payable in cash ($300,000 per year)
pursuant to his employment agreement and is also eligible to
receive equity compensation, when approved by the Board and subject
to the Company meeting certain metrics as follows – Mr. Vange is
eligible, for a bonus of up to (a) 10,000 shares (or $20,000
dollars), upon the Company achieving certain gross monthly revenue
targets by August 31, 2021 or February 28, 2022, or an EBITDA
profit in any month before February 28, 2022; (b) 20,000 shares (or
$40,000) in the event certain milestones for product and website
launches and integrations are completed payable in the discretion
of the Chief Executive Officer; (c) 60,000 shares (or $155,000) in
the event certain new lines of business, greater public
recognition, and/or new opportunities are developed by Mr. Vange,
payable in the discretion of the Chief Executive Officer, and (d)
60,000 shares (or $155,000) in the event of the successful
deployment of certain digital securities offerings, successful
implementation of certain online banking solutions and the
successful deployment of certain key artificial intelligence
capabilities throughout the Company’s business, payable in the
discretion of the Chief Executive Officer.
The
agreement remains in effect (renewing automatically on a
month-to-month basis), until terminated by either party in
accordance with its terms, as discussed below.
In
the event that Mr. Vange desires to sell more than 10,000 shares of
common stock in any one transaction when the daily volume of the
Company’s common stock is 10,000 or less, Mr. Vange is required to
provide the Company the first right to purchase such
shares.
If
the agreement is terminated by Mr. Vange for good reason (as
defined in the agreement) or by the Company without cause, and
other than due to Mr. Vange’s death or disability, Mr. Vange is due
two calendar months of severance pay and all shares of Company
common stock held in escrow or subject to vesting schedules shall
accelerate and/or be released (as applicable); and if the agreement
is terminated due to Mr. Vange’s disability, Mr. Vange, is due
compensation through the remainder of the month during which he was
terminated. If he is terminated for cause, terminates his
employment without good reason or dies, he (or his estate, as
applicable) is paid through the date of termination. The agreement
contains customary confidentiality requirements and work for hire
language. The agreement includes a one year non-solicitation and
non-competition clause following the date of the termination of the
agreement, which non-competition clause prohibits Mr. Vange
(without the prior written consent of the Company, which consent
will not be unreasonably withheld) from directly or through another
person or another entity carrying on or being engaged in any
business within North America which is competitive with the
business of the Company, however the non-compete shall terminate in
the event of a termination of employment by Mr. Vange for good
reason or a termination by the Company other than for cause or
disability.
Timothy
Sikora – Employment Agreement
On
January 30, 2020, Mr. Sikora entered into an employment agreement
with the Company. Pursuant to Mr. Sikora’s employment agreement, he
agreed to provide services to the Company as the Chief Information
Officer and Chief Operations Officer.
Mr.
Sikora currently receives a base salary payable in cash ($236,000
per year) pursuant to his employment agreement and is also eligible
to receive equity compensation, when approved by the Board and
subject to the Company meeting certain metrics as follows – Mr.
Sikora is eligible, for a bonus of up to (a) 10,000 shares (or
$10,000 dollars), upon the Company achieving certain gross monthly
revenue targets by June 30, 2020 or December 30, 2020, or an EBITDA
profit in any month before February 28, 2021; (b) 10,000 shares (or
$10,000) in the event certain milestones for product and website
launches and integrations are completed during calendar 2020,
payable in the discretion of the Chief Executive Officer; and (c)
25,000 shares (or $25,000) in the event the Company completes a
merger or acquisition, completes a funding, accelerates
profitability or achieves profitability by February 28, 2021,
payable in the discretion of the Chief Executive
Officer.
The
agreement has a term of three years, mutually extendable with the
consent of the parties.
In
the event that Mr. Sikora desires to sell more than 10,000 shares
of common stock in any one transaction when the daily volume of the
Company’s common stock is 10,000 or less, Mr. Sikora is required to
provide the Company the first right to purchase such
shares.
If
the agreement is terminated by Mr. Sikora for good reason (as
defined in the agreement) or by the Company without cause, and
other than due to Mr. Sikora’s death or disability, Mr. Sikora is
due two calendar months of severance pay; and if the agreement is
terminated due to Mr. Sikora’s disability, Mr. Sikora, is due
compensation through the remainder of the month during which he was
terminated. If he is terminated for cause, terminates his
employment without good reason or dies, he (or his estate, as
applicable) is paid through the date of termination. If the Company
terminates the agreement within 24 months after a change in control
(as described in the agreement), then the Company is required to
pay Mr. Sikora a severance payment equal to twelve months’ salary,
plus continue to provide benefits equal to those provided prior to
the change in control for a period of six months. The agreement
contains customary confidentiality requirements and work for hire
language. The agreement includes a one year non-solicitation and
non-competition clause following the date of the termination of the
agreement, which non-competition clause prohibits Mr. Sikora
(without the prior written consent of the Company which consent
will not be unreasonably withheld) from directly or through another
person or another entity carrying on or being engaged in any
business within North America which is competitive with the
business of the Company, however the non-compete shall terminate in
the event of a termination of employment by Mr. Sikora for good
reason or a termination by the Company other than for cause or
disability.
Payments
Due Upon a Change of Control Under Employment Arrangements with Ms.
Boonyawattanapisut, Mr. Kerby, Mr. Taepakdee and Mr. Sikora and
Certain Other Employees
As
described in greater detail above, the employment agreements with
Ms. Boonyawattanapisut, our Co-Chief Executive Officer, Mr. Kerby,
our Co-Chief Executive Officer, Mr. Taepakdee, our Chief Financial
Officer and Mr. Sikora, our Chief Operating Officer, include
provisions which provide that, if such person’s employment with the
Company is terminated within twenty-four months after a Change of
Control (descried below) (or in the case of Mr. Kerby’s agreement,
within twenty-four months after, or six months prior to, a Change
of Control), then the Company is required to pay such executives a
severance payment:
|
|
● |
As to
Ms. Boonyawattanapisut and Mr. Kerby, equal to (i) a lump sum
payment in an amount equal to twelve months of their base salary at
the then current rate (currently $400,000 per year); (ii) all
amounts earned, accrued or owing through the date their employment
is terminated but not yet paid; and (iii) continued participation
in all employee benefit plans, programs or arrangements available
to the Company executives in which they were participating on such
date of termination of until the earliest of: (a) twelve months
after the date of termination of employment; (b) the date the
employment agreement would have expired but for the occurrence of
the date of termination; or (c) the date, or dates, Ms.
Boonyawattanapisut or Mr. Kerby (as applicable) receives similar
coverage under a subsequent employer plan. Such payment is required
to be made in a lump sum on or before the date ending on the
expiration of three months following the date of termination;
and |
|
|
● |
As to
Mr. Taepakdee and Mr. Sikora, a severance payment equal to twelve
months salary ($200,000 as to Mr. Taepakdee and $236,000 as to Mr.
Sikora), plus continued benefits equal to those provided prior to
the Change of Control event for a period of six months. |
For
the purposes of the employment agreements, “Change of Control”
(“Change in Control” under Mr. Kerby’s agreement) means (a) any
entity or person who becomes either individually or, pursuant to an
express agreement among all of the members of such group, as part
of a “control group” (as such term is used in Section 13(d) of the
Exchange Act) the beneficial owner of 50% or more of the Company’s
voting securities (other than an employee, officer or stockholder
of the Company as of the date of such applicable employment
agreement) or (b) there is a liquidation of all or substantially
all of the Company’s assets or the Company dissolves. We anticipate
that the closing of the exchange agreements will constitute a
Change of Control under the employment agreements.
It is
also grounds for a “Good Reason” termination under each of the
employment agreements of our officers if, in the case of Ms.
Boonyawattanapisut’s and Mr. Kerby’s agreements, without his
consent, the Company materially reduces their title, duties or
responsibilities and in the case of Messrs. Taepakdee’s, Sikora’s
and Vange’s employment agreements, there is a significant reduction
of their duties, position or responsibilities relative to the their
duties, position or responsibilities in effect immediately prior to
such reduction, or the removal of the executive from such position,
duties and responsibilities.
Additionally,
in the event Mr. Kerby resigns for Good Reason, we are required to
immediately eliminate any and all guarantees which Mr. Kerby has
provided on behalf of the Company (which total an aggregate of
approximately $2 million as of the date of this Proxy Statement),
and in the event we are unable to eliminate all such guarantees
within 30 days, we are required to pay Mr. Kerby $10,000 per month
in guaranty fees (compared to $2,000 per month under the current
terms of the employment agreement) until such time as such
guarantees are eliminated. Finally, in the event Mr. Kerby resigns
for Good Reason, Mr. Kerby is due the same severance compensation
described above in connection with a Change of Control
termination.
In
the event Messrs. Taepakdee, Sikora or Vange terminates his
employment agreement for Good Reason, we are required to pay such
applicable executive his salary and other benefits earned or
accrued through the date of termination, and continue to pay them
two additional months of salary.
Certain
employment agreements of other non-executive officers of the
Company contain similar provisions as Messrs. Taepakdee’s, Sikora’s
and Vange’s agreements, discussed above.
Outstanding Equity
Awards at Fiscal Year-End
None.
Equity Compensation
Plan Information
2017
Equity Incentive Plan
On
August 25, 2017, the Board adopted, subject to the ratification by
the majority stockholders, which occurred effective on September
13, 2017, the Company’s Amended and Restated 2017 Equity Incentive
Plan (the “2017 Plan”). The 2017 Plan is intended to secure for the
Company the benefits arising from ownership of the Company’s common
stock by the employees, officers, directors and consultants of the
Company, all of whom are, and will be, responsible for the
Company’s future growth. The 2017 Plan is designed to help attract
and retain for the Company, qualified personnel for positions of
exceptional responsibility, to reward employees, officers,
directors and consultants for their services to the Company and to
motivate such individuals through added incentives to further
contribute to the success of the Company.
The
2017 Plan provides an opportunity for any employee, officer,
director or consultant of the Company, subject to any limitations
provided by federal or state securities laws, to receive (i)
incentive stock options (to eligible employees only); (ii)
nonqualified stock options; (iii) restricted stock; (iv) stock
awards; (v) shares in performance of services; or (vi) any
combination of the foregoing. Incentive stock options granted under
the 2017 Plan are intended to qualify as “incentive stock options”
within the meaning of Section 422 of the Internal Revenue Code of
1986, as amended (the “Code”). Nonqualified (non-statutory stock
options) granted under the 2017 Plan are not intended to qualify as
incentive stock options under the Code.
No
incentive stock option may be granted under the 2017 Plan to any
person who, at the time of the grant, owns (or is deemed to own)
stock possessing more than 10% of the total combined voting power
of our Company or any affiliate of our Company, unless the exercise
price is at least 110% of the fair market value of the stock
subject to the option on the date of grant and the term of the
option does not exceed five years from the date of
grant.
The
2017 Plan is administered by the Board and/or the Company’s
Compensation Committee. Subject to adjustment in connection with
the payment of a stock dividend, a stock split or subdivision or
combination of the shares of common stock, or a reorganization or
reclassification of the Company’s common stock, the maximum
aggregate number of shares of common stock which may be issued
pursuant to awards under the 2017 Plan is 2,000,000 shares. Such
shares of common stock shall be made available from the authorized
and unissued shares of the Company.
2021
Equity Incentive Plan
On
April 7, 2021, stockholders approved the adoption of the Company’s
2021 Equity Incentive Plan (the “2021 Plan”), which is intended to
secure for the Company and its affiliates the benefits arising from
ownership of the Company’s common stock by the employees, officers,
directors and consultants of the company and its affiliates, all of
whom are and will be responsible for the Company’s future growth.
The 2021 Plan is designed to help attract and retain for the
Company and its affiliates personnel of superior ability for
positions of exceptional responsibility, to reward employees,
officers, directors and consultants for their services and to
motivate such individuals through added incentives to further
contribute to the success of the Company and its affiliates. Awards
under the 2021 Plan may be made to an eligible person in the form
of (i) incentive stock options (to eligible employees only); (ii)
nonqualified stock options; (iii) restricted stock; (iv) stock
awards; (v) performance shares; or (vi) any combination of the
foregoing. Nonqualified (non-statutory stock options) granted under
the 2021 Plan are not intended to qualify as incentive stock
options under the Code.
Subject
to adjustment in connection with the payment of a stock dividend, a
stock split or subdivision or combination of the shares of common
stock, or a reorganization or reclassification of the Company’s
common stock, the aggregate number of shares of common stock which
may be issued pursuant to awards under the 2021 Plan is the sum of
(i) 13,065,060 shares, which amount is equal to 15% of the
Company’s total outstanding shares of common stock of the Company
outstanding immediately after the closing of the HotPlay Share
Exchange and conversion of the Axion preferred stock, and (ii) an
annual increase on April 1st of each calendar year, beginning in
2022 and ending in 2030, in each case subject to the approval of
the Board or the Compensation Committee of the Company on or prior
to the applicable date, equal to the lesser of (A) 5% of the total
shares of common stock of the Company outstanding on the last day
of the immediately preceding fiscal year; (B) 5,000,000 shares of
common stock (which number is not subject to adjustment in
connection with any reverse stock split affected prior to the
closing); and (C) such smaller number of shares as determined by
the board of directors or Compensation Committee (the “Share
Limit”), also known as an “evergreen” provision. Notwithstanding
the foregoing, shares added to the Share Limit are available for
issuance as incentive stock options only to the extent that making
such shares available for issuance as incentive stock options would
not cause any incentive stock option to cease to qualify as such.
In the event that the board of directors or the Compensation
Committee does not take action to affirmatively approve an increase
in the Share Limit on or prior to the applicable date provided for
under the plan, the Share Limit remains at its then current level.
Notwithstanding the above, no more than 50,000,000 (which number is
not subject to adjustment in connection with any reverse stock
split affected prior to the closing) incentive stock options may be
granted pursuant to the terms of the 2021 Plan. The Company’s Board
and Compensation Committee did not elect to increase the number of
shares authorized for issuance under the 2021 Plan on April 1, 2022
in accordance with the evergreen provision, discussed
above
The
2021 Plan is administered by the Board and/or the Company’s
Compensation Committee. The 2021 Plan will automatically terminate
on the 10th anniversary of original approval date of the 2021 Plan
(January 5, 2031).
The
following table provides certain aggregate information with respect
to all of our equity compensation plans in effect as of February
28, 2022:
|
Plan category |
|
Number of securities
to be issued upon
exercise of
outstanding
warrants as
of February 28,
2022 |
|
|
Weighted-average
exercise price of
outstanding options,
warrants and rights |
|
|
Number of
securities remaining
available for future
issuance under
equity
compensation plans
(excluding securities
reflected in column
(a)) |
|
| |
|
(a) |
|
|
(b) |
|
|
(c) |
|
|
Equity compensation plans approved by security holders |
|
|
15,300 |
|
|
$ |
2.05 |
|
|
|
— |
|
| Equity
compensation plans not approved by security holders |
|
|
— |
|
|
$ |
— |
|
|
|
— |
|
| Total |
|
|
15,300 |
|
|
$ |
2.05 |
|
|
|
— |
|
OTHER
MATTERS
Stockholder Proposals
for 2024 Annual Meeting of Stockholders
Proposals
of holders of our voting securities intended to be presented at our
2024 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 June 21, 2024, and not later
than the close of business on July 21, 2024, together with written
notice of the stockholder’s intention to present a proposal for
action at the fiscal 2024 annual meeting of stockholders, unless
our annual meeting date occurs more than 30 days before or 30 days
after October 19, 2024. 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 2024 annual meeting and not later than the close
of business on the later of the 90th day prior to the date of the
fiscal 2024 annual meeting or, if the first public announcement of
the date of the fiscal 2024 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:
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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. |
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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, 2022, which we
filed with the SEC on June 21, 2022: (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
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By
Order of the Board of Directors, |
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Todd Bonner, Chairman |
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NEXTPLAY TECHNOLOGIES,
INC.
THIS PROXY IS SOLICITED
ON BEHALF OF THE BOARD OF DIRECTORS
annual meeting OF
STOCKHOLDERS – October 19, 2022 at 9:00 AM eastern standard
time
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CONTROL ID: |
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REQUEST ID: |
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The
undersigned, a stockholder of NextPlay Technologies, Inc. (the
“Company”), hereby acknowledges receipt of the Notice of Annual
Meeting of Stockholders and Proxy Statement of the Company, each
dated on or around September [ ], 2022, and
hereby appoints John Todd Bonner and Sirapop “Kent” Taepakdee (the
“Proxies”), or any one of them, with full power of substitution and
authority to act in the absence of the other, each as proxies and
attorneys-in-fact, to cast all votes that the undersigned is
entitled to cast at, and with all powers that the undersigned would
possess if personally present at, the Annual Meeting of
stockholders of the Company, to be held on October 19, 2022, at
9:00 am Eastern Standard Time (subject to postponement(s) or
adjournment(s) thereof), virtually via live audio webcast at
https://agm.issuerdirect.com/nxtp (please note this link is case
sensitive), and at any adjournment or postponement thereof, and to
vote all shares of the Company that the undersigned would be
entitled to vote if then and there personally present, on the
matters set forth in the proxy statement, and all such other
business as may properly come before the meeting. I/we hereby
revoke all proxies previously given.
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(CONTINUED
AND TO BE SIGNED ON REVERSE SIDE.) |
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VOTING
INSTRUCTIONS |
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If you vote by phone, fax or
internet, please DO NOT mail your proxy card. |
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MAIL: |
Please mark, sign, date, and return
this Proxy Card promptly using the enclosed envelope. |
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FAX: |
Complete the reverse portion of this
Proxy Card and Fax to 202-521-3464. |
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INTERNET: |
https://www.iproxydirect.com/NXTP |
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PHONE: |
1-866-752-VOTE(8683) |
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ANNUAL
MEETING OF THE STOCKHOLDERS OF
NEXTPLAY TECHNOLOGIES, INC. |
PLEASE
COMPLETE, DATE, SIGN AND RETURN PROMPTLY IN THE ENCLOSED
ENVELOPE.
PLEASE MARK YOUR VOTE IN BLUE OR BLACK INK AS SHOWN HERE:
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PROXY
SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS |
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Proposal 1 |
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FOR |
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WITHHOLD |
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Election
of Directors: |
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J.
Todd Bonner |
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Nithinan
Boonyawattanapisut |
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Control ID: |
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William
Kerby |
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REQUEST ID: |
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Donald
P. Monaco |
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Carmen
Diges |
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Komson
Kaewkham |
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Yoshihiro
Obata |
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Farooq
Moosa |
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Edward
Terrence Gardner, Jr. |
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Athid
Nanthawaroon |
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Proposal 2 |
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FOR |
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ABSTAIN |
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To
ratify the selection of TPS Thayer, LLC as the Company’s
independent registered public accounting firm for the fiscal year
ending February 28, 2023. |
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Proposal 3 |
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FOR |
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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. |
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Proposal 4 |
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Approval,
on a non-binding advisory basis, of named executive officer
compensation. |
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Proposal 5 |
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FOR |
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Authorization
of our Board of Directors, in its discretion, to adjourn the Annual
Meeting to another place, or a later date or dates, if necessary or
appropriate, to solicit additional proxies in favor of the
proposals listed above at the time of the Annual
Meeting. |
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MARK
“X” HERE IF YOU PLAN TO ATTEND THE MEETING: ☐ |
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THE BOARD OF DIRECTORS RECOMMENDS VOTING “FOR” PROPOSALS 1,
2, 3, 4 AND 5.
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MARK
HERE FOR ADDRESS CHANGE ☐
New
Address (if applicable):
____________________________
____________________________
____________________________
IMPORTANT:
Please sign exactly as your name or names appear on this Proxy.
When shares are held jointly, each holder should sign. When signing
as executor, administrator, attorney, trustee or guardian, please
give full title as such. If the signer is a corporation, please
sign full corporate name by duly authorized officer, giving full
title as such. If signer is a partnership, please sign in
partnership name by authorized person.
Dated:
________________________, 2022
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(Print
Name of Stockholder and/or Joint Tenant) |
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of Stockholder) |
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Signature if held jointly) |
NextPlay Technologies (NASDAQ:NXTP)
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NextPlay Technologies (NASDAQ:NXTP)
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