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 § 240.14a-12
NEXTPLAY TECHNOLOGIES, INC.
(Name
of Registrant as Specified In Its Charter)
(Name of Person(s) Filing
Proxy Statement, if other than the Registrant)
Payment of Filing Fee (Check all boxes that apply):
☒ No fee required
☐ 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
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
March 11, 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 2022
Annual Meeting of our stockholders (the “Meeting”) to be held on April 22, 2022 at 9:00 a.m. Eastern Time (subject to postponement(s)
or adjournment(s) thereof). The Meeting will be held virtually via live audio webcast at https://agm.issuerdirect.com/nxtp (please note
this link is case sensitive). For further information about the virtual Meeting, please see the Questions and Answers about the Meeting
beginning on page 1 of our Proxy Statement.
In response to the COVID-19
pandemic and as part of our efforts to conserve environmental resources and prevent unnecessary corporate expense, we are using the “Notice
and Access” method of providing proxy materials to you via the Internet pursuant to the regulations promulgated by the U.S. Securities
and Exchange Commission. We believe that this process will provide you with a safe, convenient and efficient way to access your proxy
materials and vote your shares, while also allowing us to conserve natural resources and reduce the costs of printing and distributing
the proxy materials for the Meeting by postal mail. On or about March 11, 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, 2021 (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 such proposal.
We look forward to seeing
you (virtually) on April 22, 2022. Your vote and participation in our governance is very important to us.
Sincerely,
| /s/ John Todd Bonner |
|
| John Todd Bonner |
|
| Chairman |
|
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
(954) 888-9779
NOTICE OF THE 2022 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD ON APRIL 22, 2022
To the Stockholders of NextPlay Technologies,
Inc.:
We are pleased to provide
you notice of, and to invite you to attend, the 2022 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 April 22, 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, 2022;
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 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
5. 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 expedites our stockholders’ safe receipt of proxy
materials while the COVID-19 pandemic remains a concern, conserves natural resources and significantly reduces the costs of the Meeting.
On or about March 11, 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, 2021 (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 February 24, 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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| /s/ John Todd Bonner |
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| John Todd Bonner |
|
| Chairman |
|
Sunrise, Florida
March 11, 2022
| IMPORTANT: WHETHER OR NOT YOU PLAN TO ATTEND THE MEETING, WE ASK YOU TO VOTE BY TELEPHONE, MAIL, FAX OR ON THE INTERNET USING THE INSTRUCTIONS PROVIDED IN THE NOTICE. |
TABLE OF CONTENTS
PROXY STATEMENT
FOR 2022 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 2022 Annual Meeting of our stockholders (the “Meeting”) to be held on April 22, 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 March 11, 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, 2021 (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 March 11, 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 audio 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 February 24, 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 114,060,020 shares of our common stock issued and outstanding and entitled to vote
at the Meeting, which shares were held by approximately 510 holders of record.
Each share of common stock is
entitled to one vote on each proposal presented at the Meeting and at any adjournment or postponement thereof, for 114,060,020 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, February 24, 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* |
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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.
|
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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. |
To ratify the selection of TPS Thayer, LLC as the Company’s independent registered public accounting firm for the fiscal year ending February 28, 2022. |
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A majority of the votes cast on the proposal. |
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Yes |
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| 3. |
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 |
| 4. |
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. |
|
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 and 3.
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 and 3. 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 4 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 4. Abstentions will be treated as a
vote “Against” Proposal 4.
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 and 3).
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, 2022 (Proposal 2); |
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“FOR” the approval, in accordance with Nasdaq Listing Rule 5635(d), of the Warrant Amendment (Proposal 3); 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 4). |
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.
Confidential Voting
Independent inspectors count
the votes. Your individual vote is kept confidential from us unless special circumstances exist. For example, a copy of your proxy card
will be sent to us if you write comments on the card, as necessary to meet applicable legal requirements, or to assert or defend claims
for or against the Company.
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
Nomination of Directors
The Nominating and Corporate
Governance Committee of the Board (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.
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, 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 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.
The Nominating Committee has
recommended, and the 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.
We believe that each of our
directors 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 directors 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 experiences, 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.
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 Directors
| Name |
|
Age |
|
Positions and Offices Held |
|
Director Since |
| J. Todd Bonner |
|
55 |
|
Chairman of the Board |
|
2021 |
| Nithinan Boonyawattanapisut |
|
38 |
|
Co-Chief Executive Officer and Director |
|
2021 |
| William Kerby |
|
64 |
|
Co-Chief Executive Officer and Director |
|
2008 |
| Donald P. Monaco |
|
69 |
|
Director |
|
2011 |
| Athid Nanthawaroon |
|
40 |
|
Director |
|
2021 |
| Carmen Diges |
|
51 |
|
Director |
|
2021 |
| Komson Kaewkham |
|
40 |
|
Director |
|
2021 |
| Yoshihiro Obata |
|
60 |
|
Director |
|
2021 |
| Farooq Moosa |
|
51 |
|
Director |
|
2021 |
| Edward Terrence Gardner, Jr. |
|
56 |
|
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. He is also a member of the Board of Directors of Axion Ventures Inc., an online video gaming and technology
company listed on the TSX Venture Exchange, which he co-founded in May 2016. During that time, he started True Axion Interactive, a game
studio formed via a joint venture with True Corporation, a major Thai telecommunication company, in April 2017. 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 38, 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 has was the Co-Founder and Managing Director of HotPlay, an in-game advertising platform, and HotPlay
Thailand, from March 2020 until June 30, 2021. Since April 2017, Ms. Boonyawattanapisut has been serving as the Managing Director of Axion
Games, Inc., an online video gaming and technology company, and leads the content investment arm of Axion Games, Inc. She has
also been serving as the Chief Executive Officer and Chairperson of the Board at True Axion Interactive, a game studio formed via
a joint venture with True Corporation, a major Thai telecommunication company, since she co-founded it in March 2017. In June 2014, Ms.
Boonyawattanapisut founded HotNow (Thailand) Company Limited, a hyper-local promotion discovery platform and has served as the Chief Executive
Officer 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 currently serves
as Director. 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 64, Co-Chief Executive Officer
and Director
William Kerby is the founder,
Co-Chief Executive Officer, and a director of the Company. From July 2008 to present, he has been 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 NASD Small Cap. 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 69, 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 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.
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.
Carmen L. Diges, age 51, 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 40, 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 60, Director
Mr. Obata has served as a
member of the Board since the Company’s acquisition of HotPlay on June 30, 2021. Mr. Obata is an independent Director of Axion Ventures,
Inc. 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 51, 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.
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, 2022, 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, 2022. 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, 2022.
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 from
September 30, 2020 for the years ended February 28, 2021 and February 29, 2020.
Prior to the appointment
of TPS, Thayer served as our independent registered accounting firm from May 16, 2019 to September 30, 2020, and audited our financial
statements for the years ended February 29, 2020 and February 28, 2019. Prior to the appointment of Thayer, M&K had served as our
independent registered accounting firm from October 11, 2018 to May 16, 2019.
| | |
TPS | | |
Others | |
| | |
2021 | | |
2020 | | |
2021 | | |
2020 | |
| Audit Fees(1) | |
$ | 39,500 | | |
$ | — | | |
$ | 48,500 | | |
| 89,000 | |
| Audit-Related Fees(2) | |
| | | |
| — | | |
| — | | |
| — | |
| M&A Fees(3) | |
| 10,000 | | |
| — | | |
| — | | |
| — | |
| All Other Fees(4) | |
| 17,000 | | |
| — | | |
| 20,000 | | |
| — | |
| Total | |
$ | 66,500 | | |
$ | 0 | | |
$ | 68,500 | | |
| 89,000 | |
| (1) | Audit fees include professional
services rendered for (i) the audit of our annual financial statements for the fiscal years ended February 28, 2021 and February
29, 2020 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) |
Fees include professional services relating to preparation of the annual
tax return. |
| (4) |
Other fees include professional services 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, Thayer, and M&K for fiscal 2021 and 2020.
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, 2022. 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 years ended February 29, 2020 and February 28, 2019. On September 30, 2020, in connection with its de-registration,
the Company dismissed Thayer as the independent registered public accounting firm of the Company. The Company’s Board of Directors
approved the dismissal of Thayer.
The reports of Thayer regarding
the Company’s financial statements for the fiscal years ended February 29, 2020 and February 28, 2019 did not contain any adverse
opinion or disclaimer of opinion and were not modified as to uncertainty, audit scope, or accounting principles, except each report did
contain an explanatory paragraph related to the Company’s ability to continue as a going concern. During the Company’s fiscal
years ended February 29, 2020 and February 28, 2019, and through September 30, 2020, there were (i) no disagreements with Thayer on any
matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreements, if
not resolved to the satisfaction of Thayer would have caused Thayer to make reference to the subject matter of the disagreements in connection
with its report, and (ii) with the exception of material weaknesses related to the reconciliation of various accounts, lack of precision
and accuracy to properly reflect in the financial statements, there were no “reportable events,” as that term is defined
in Item 304(a)(1)(v) of Regulation S-K.
On September 30, 2020, the
Company engaged TPS as the Company’s new independent registered public accounting firm. The appointment of TPS was approved by
the Company’s Board.
The Company disclosed the
change in auditors in a Current Report on Form 8-K filed with the Securities and Exchange Commission on October 5, 2020.
M&K CPAS, PLLC
Prior to the appointment
of Thayer, M&K served as our independent registered accounting firm from October 11, 2018 to May 16, 2019. On May 16, 2019, M&K
resigned as the independent registered public accounting firm of the Company.
M&K reviewed the Company’s
Quarterly Reports on Form 10-Q for the quarters ended August 31, 2018 and November 30, 2018. M&K did not provide any audit reports
to the Company, and as such, there were no adverse opinions or disclaimers of opinion and no qualifications or modifications as to uncertainty,
audit scope or accounting principles.
During the period from October
11, 2018, and through May 16, 2019, there were (i) no disagreements with M&K on any matter of accounting principles or practices,
financial statement disclosure or auditing scope or procedure, which disagreements, if not resolved to the satisfaction of M&K would
have caused M&K to make reference to the subject matter of the disagreements in connection with its report, and (ii) there were no
events of the type described in Item 304(a)(1)(v) of Regulation S-K, except as disclosed below. The Company had one disagreement with
M&K. M&K believed the complexities related to a series of transactions warranted formal consultation with the Securities and
Exchange Commission’s Office of the Chief Accountant (“SEC-OCA”). The Company believed that the transactions did not
warrant formal consultation with the SEC-OCA and that it did not have sufficient time to request such formal guidance (with the due date
of its Annual Report on Form 10-K approaching). Because the Company did not believe requesting guidance from the SEC-OCA was warranted
and because it did not want to spend the time and resources to request guidance from the SEC-OCA, M&K resigned.
On May 16, 2019, the Company
engaged Thayer as the Company’s new independent registered public accounting firm. The appointment of Thayer was approved by the
Company’s Board.
The Company disclosed the
change in auditors in a Current Report on Form 8-K filed with the Securities and Exchange Commission on May 21, 2019.
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, 2022.
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 a special meeting of our stockholders on January 28, 2022, at which special meeting we presented a
proposal to approve the Warrant Amendment to our stockholders. However, our stockholders did not approve the Warrant Amendment, and as
a result, the original terms of the Warrant, including the Floor Price, remain in full force and effect.
The foregoing description
of the SPA the Warrants is not complete and is qualified in its entirety by reference to the full text of the form of SPA and form of
Common Stock Purchase Warrant, copies of which are attached as Exhibit 10.1 and Exhibit 4.1, respectively, to the Offering 8-K,
which is incorporated by reference herein.
Effects of the Warrant Amendment
As discussed above, pursuant
to the SPA, if at any time the Warrants are outstanding, we issue or enter into any agreement to issue, or are deemed to have issued
or entered into an agreement to issue (which includes the issuance of securities convertible or exercisable for shares of common stock),
securities for consideration less than the then current exercise price of the Warrants, the exercise price of such Warrants will be automatically
reduced to the lowest price per share of consideration provided or deemed to have been provided for such securities, subject to the Floor
Price limitation. If we amend the Warrants to remove the Floor Price, we will be required to reduce the exercise price of the Warrants
in the event that we issue, or enter into an agreement to issue, securities at a price that is lower than $1.97 per share, subject to
limited exceptions.
Reduction in the exercise
price of the Warrants would reduce the proceeds that we would receive upon exercise of the Warrants by holders thereof. In addition,
the reduction in exercise price could incentivize holders of the Warrant to exercise their Warrants when they may not otherwise do so,
which could result in significant dilution in the percentage ownership interest of our existing common stockholders and in a significant
dilution of voting rights and earnings per share. The sale or availability for sale of shares issuable upon exercise of the Warrants
at a reduced price per share may depress the price of our common stock and could encourage short sales by third parties, which could
further depress the price of our common stock. It could also make it more difficult for us to raise additional working capital at terms
favorable to the Company and or its stockholders, which could negatively impact our business.
To the extent that the holders
the Warrants sell shares of our common stock issued upon exercise of the Warrants, the market price of such shares may decrease due to
the additional selling pressure in the market. In addition, the risk of dilution from issuances of such shares may cause stockholders
to sell their shares of our common stock, which could further contribute to any decline in the price of our common stock. Any downward
pressure on the price of our common stock caused by the sale or potential sale of such shares could encourage short sales by third parties.
In a short sale, a prospective seller borrows shares from a stockholder or broker and sells the borrowed shares. The prospective seller
hopes that the share price will decline, at which time the seller can purchase shares at a lower price for delivery back to the lender.
The seller profits when the share price declines because it is purchasing shares at a price lower than the sale price of the borrowed
shares. Such sales could place downward pressure on the price of our common stock by increasing the number of shares of our common stock
being sold, which could further contribute to any decline in the market price of our common stock.
Reasons for Stockholder Approval
Our common stock is listed
on the Nasdaq Capital Market, and, as such, we are subject to the applicable rules of the Nasdaq Stock Market LLC, including Nasdaq Listing
Rule 5635(d), which requires stockholder approval prior to the issuance of securities in connection with a transaction other than a public
offering involving the sale, issuance or potential issuance by the Company of common stock (or securities convertible into or exercisable
for common stock) at a price less than the greater of book or market value which equals 20% or more of common stock or 20% or more of
the voting power outstanding before the issuance; or the sale, issuance or potential issuance by the Company of common stock (or securities
convertible into or exercisable for common stock) equal to 20% or more of the common stock or 20% or more of the voting power outstanding
before the issuance for less than the greater of book or market value of the stock.
As noted above, we issued
an aggregate of 18,987,342 Shares, together with Warrants to purchase an aggregate of 14,240,508 shares of common stock, at a combined
offering price of $1.58 per Share and accompanying three quarters of a Warrant. For purposes of Nasdaq Listing Rule 5635(d), the number
of shares issued below fair market value of our common stock in the Offering amounted to 18,987,342 shares, the number of Shares issued
in the Offering, which equaled approximately 19.94% of our issued and outstanding shares of common stock. Because the Initial Exercise
Price of the Warrants, as well as the Floor Price of the Warrants, was equal to fair market value of our common stock ($1.97 per share),
the Warrants were not deemed to be issued at a price less than the fair market value of our common stock as of the date of the SPA. As
a result, we were not required to obtain stockholder approval in order to consummate the Offering.
Because removal of the Floor
Price could result in the exercise price of the Warrants falling below the market price of our common stock, as set forth in the SPA,
which would result in our issuance of more than 20% of our issued and outstanding securities as of the date of the Offering at a price
below market value, we must obtain stockholder approval of such amendment in order to comply with Nasdaq Listing Rule 5635(d).
As noted above, pursuant
to the SPA, we agreed to use our best efforts to obtain stockholder approval within 90 days from November 1, 2021 to remove the Floor
Price of the Warrants. The Warrant Amendment was not approved by our stockholders at the special meeting held on January 28, 2022. 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
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, 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. 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 4, 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 4. Abstentions will
be treated as a vote “Against” this Proposal 4.
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 8, 2021.
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, February 24, 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
114,060,020 shares of common stock outstanding and entitled to vote at the Meeting and at any adjournment or postponement
thereof, held by approximately 510 holders of record. Each share of common stock is entitled to one vote on each proposal presented
at the Meeting, for 114,060,020 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, February 24, 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 114,060,020 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 February 24, 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 | |
| 905,822 | (3) | |
| * | |
| Nithinan Boonyawattanapisut, Co-Chief Executive Officer & Director | |
| 23,407,110 | (4) | |
| 20.5 | % |
| Sirapop “Kent” Taepakdee, Chief Financial Officer | |
| 27,500 | | |
| * | |
| Tim Sikora, Chief Information Officer | |
| 27,000 | | |
| * | |
| Andrew Greaves, Chief Operating Officer | |
| 100,000 | | |
| * | |
| Mark Vange, Chief Technology Officer | |
| 1,000,000 | | |
| * | |
| Donald P. Monaco, Director | |
| 2,215,669 | (5) | |
| 1.9 | % |
| John Todd Bonner, Chairman of the Board | |
| 23,407,110 | (4) | |
| 20.5 | % |
| Athid Nanthawaroon, Director | |
| 121,727 | | |
| * | |
| Carmen Diges, Director | |
| 27,159 | | |
| * | |
| Komson Kaewkham, Director | |
| 22,238 | | |
| * | |
| Yoshihiro Obata, Director | |
| 777,159 | (6) | |
| * | |
| Farooq Moosa, Director | |
| 1,258 | | |
| * | |
| Edward Terrance Gardner, Jr., Director | |
| 629,965 | | |
| * | |
| All Executive Officers and Directors as a Group (14 persons) | |
| 29,262,607 | (7) | |
| 25.6 | % |
| | |
| | | |
| | |
| 5% Stockholders | |
| | | |
| | |
| Red Anchor Trading Corp. Limited (8) | |
| 14,794,503 | | |
| 13.0 | % |
| Tree Roots Entertainment Group Co Ltd.(9) | |
| 12,366,667 | | |
| 10.8 | % |
| (1) | Includes warrants and convertible
securities exercisable or convertible for common stock within 60 days of February 24, 2022. |
| (2) |
Based on 114,060,020 shares of common stock outstanding as
of February 24, 2022. |
| (3) |
William Kerby holds 670,872 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. 139,650 shares of common stock are also issuable upon conversion of that certain Convertible
Promissory Note in the amount of $421,744, which accrues 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 Note is convertible, at the option of the holder thereof, into shares of the Company’s common stock,
at any time beginning seven days after the date the HotPlay Exchange Agreement closes and prior to the payment in full of such Convertible
Promissory Note 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 Convertible Promissory Note is
unsecured, has a maturity date of April 7, 2022, and includes standard and customary events of default. |
| (4) |
Nithinan Boonyawattanapisut and John Todd Bonner are married. Accordingly,
they beneficially own the same securities of the Company. Ms. Boonyawattanapisut’s and Mr. Bonner’s holdings consist
of the following: (i) 2,300,204 shares of common stock held directly by Ms. Boonyawattanapisut; (ii) 27,500 shares of common stock
held directly by Mr. Bonner; (iii) 14,794,503 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) 2,500,000 shares of common stock
NextPlay Holdings LLC, 73.3% of which is owned by Red Anchor; (v) 1,558,046 shares of common stock held by Cern One Limited, 100%
of which is owned by Ms. Boonyawattanapisut, and (vi) 2,226,857 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) |
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 245,530 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. 213,613 shares of common stock are also
issuable upon conversion of that certain Convertible Promissory Note in the amount of $645,112, which accrues 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 Note is convertible, at the option of the holder thereof,
into shares of the Company’s common stock, at any time beginning seven days after the date the HotPlay Exchange Agreement closes
and prior to the payment in full of such Convertible Promissory Note 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 Convertible Promissory Note is unsecured, has a maturity date of April 7, 2022, and includes standard and customary
events of default. |
| (6) |
Yoshihiro Obata’s holdings consist of 777,159 shares of common
stock held by Global Networking, LLC, an entity owned and controlled by Mr. Obata. |
| (7) |
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. |
| |
|
| (8) |
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 October 22, 2021, which
has not been independently verified. |
| |
|
| (9) |
Address: 695, Soi Sukhumvit 50, Sukhumvit Road PHRA Khanong, Khlong
TOIE Bangkok, Thailand 10260. Based on information available to the Company, 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 review
of the Section 16(a) filings that have been furnished to us and filed publicly, we believe that during the fiscal year ended February
28, 2021 no director, executive officer, or beneficial owner of more than 10% of our common stock failed to file a report on a timely
basis, except that: Sirapop “Kent” Taepakdee, our Chief Financial Officer, inadvertently failed to timely disclose one transaction
on Form 4 and as a result one Form 4 was filed untimely; Rupert Duchesne, who served as a director on our Board during the relevant period,
inadvertently failed to timely disclose two transactions on Form 4 and as a result two Form 4s were filed untimely; Alexandra Zubko,
who served as a director on our Board during the relevant period, inadvertently failed to timely disclose two transactions on Form 4
and as a result two Form 4s were filed untimely; Pasquale “Pat” LaVecchia, who served as a director on our Board during the
relevant period, inadvertently failed to timely disclose two transactions on Form 4 and as a result two Form 4s were filed untimely;
Donald P. Monaco, our director, inadvertently failed to timely disclose two transactions on Form 4 and as a result two Form 4s were filed
untimely; Simon Orange, who served as a director on our Board during the relevant period, inadvertently failed to timely disclose three
transactions on Form 4 and as a result three Form 4s were filed untimely; Doug Checkeris, who served as a director on our Board during
the relevant period, inadvertently failed to timely disclose three transactions on Form 4 and as a result three Form 4s were filed untimely;
and Robert “Jamie” Mendola, who served as a director on our Board during the relevant period, inadvertently failed to timely
disclose three transactions on Form 4 and as a result three Form 4s were filed untimely.
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
The Company is not currently
aware of any arrangements which may at a subsequent date result in a change of control of the Company.
As previously disclosed by
the Company in that Current Report on 8-K filed by the Company on July 23, 2020, the Company entered into (a) a Share Exchange Agreement
(as amended and restated to date, the “HotPlay Exchange Agreement” and the transactions contemplated therein, the “HotPlay
Share Exchange”) with HotPlay Enterprise Limited (“HotPlay”) and the stockholders of HotPlay (the “HotPlay
Stockholders”); and (b) a Share Exchange Agreement (as amended to date, “Axion Exchange Agreement”) with
certain stockholders holding shares of Axion Ventures, Inc. (“Axion” and the “Axion Stockholders”) and certain
debt holders holding debt of Axion (the “Axion Creditors”) (the “Axion Share Exchange,” and collectively with
the HotPlay Exchange Agreement, the “Exchange Agreements,” and the transactions contemplated therein, the “Share Exchanges”),
each dated as of July 21, 2020. The Share Exchanges closed on June 30, 2021 (the “Closing”). In connection with the Closing,
the Company acquired 100% of the outstanding capital shares of HotPlay (making HotPlay a wholly-owned subsidiary of the Company).
In connection with the Share
Exchanges, upon the closing of the HotPlay Share Exchange, the former HotPlay Stockholders were issued 52,000,000 shares of the Company’s
common stock in exchange for 100% of the outstanding shares of HotPlay, and the outstanding shares of Series B Convertible Preferred
Stock and Series C Convertible Preferred Stock automatically converted into an aggregate of 11,246,200 shares of our common stock (the
“Preferred Conversion”). As a result of the Closing, a change of control of the Company occurred, with the former stockholders
of HotPlay obtaining control over the Company. The former stockholders of HotPlay and the former holders of Series B Convertible Preferred
Stock and Series C Convertible Preferred Stock held 72.6% of the Company’s 87,100,403 issued and outstanding shares of common stock
immediately following the Closing. Specifically, in connection with the Closing, and the issuance of shares of common stock of the Company
in connection therewith and the Preferred Conversion, effective June 30, 2021, Ms. Nithinan Boonyawattanapisut and Mr. J. Todd Bonner,
husband and wife, became the largest stockholders of the Company, beneficially owning 31,117,544 shares of common stock, or 35.7% of
the Company’s then outstanding common stock (through Ms. Boonyawattanapisut’s control of Red Anchor Trading Corporation,
which held 27,213,606 of such shares of record and Cern One Limited, which held 3,562,208 shares of common stock, and an additional 314,230
shares of common stock held by Ms. Boonyawattanapisut directly and 27,500 shares held by Mr. Bonner, directly). Separately, as of Closing,
Jwanwat Ahriyavraromp and Pornsinee Chalermrattawongz, each beneficially owned the 21,966,667 shares of common stock held by Tree Roots
Entertainment Group, Ltd. and the 3,533,333 shares of common stock held by Dee Supreme Company Limited, issued in connection with the
Closing, due to their status as directors of such entities, which in aggregate totaled 29.3% of the Company’s outstanding shares
of common stock immediately following the Closing.
Pursuant to the terms of
the HotPlay Share Exchange, the former HotPlay stockholders, had certain appointment rights as to officers of the Company and directors
of the Company, which were exercised at Closing.
In addition, in connection
with the above transactions, on or around February 22, 2021, each of the HotPlay stockholders, and Ms. Nithinan Boonyawattanapisut, Mr.
J. Todd Bonner, Mr. Athid Nanthawaroon and Mr. Komson Kaewkham, each nominees for appointment to the Board at the closing, entered into
a Voting Agreement with Mr. William Kerby, the Company’s Chief Executive Officer (now Co-Chief Executive Officer), and Mr. Donald
P. Monaco, the Chairman of the Board (now a Director). Pursuant to the Voting Agreement, each of the HotPlay stockholders agreed to vote
all voting shares of the Company which they hold and may hold in the future (during the term of the agreement) to elect Mr. Kerby and
Mr. Monaco to the Board, and each of the HotPlay nominees agreed to continue to nominate each of Mr. Kerby and Mr. Monaco to the Board.
The agreement continues in effect until the earlier of February 26, 2026, the date of both Mr. Kerby’s and Mr. Monaco’s death,
or the date that both Mr. Kerby and Mr. Monaco have provided notice of termination to such HotPlay Stockholders.
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 fiscal year of 2020, or any currently proposed transaction, in which the Company was 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, we entered into an Exchange Agreement with William Kerby, our Chief Executive Officer (at the time) and director, and
Monaco Investment Partners II, LP (“MI Partners”), of which Donald P. 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 our 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 accrue 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 is convertible, at the
option of the holders thereof, into shares of our 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 us, at a conversion price equal to the greater of (i) the closing
consolidated bid price of our common stock on April 8, 2021 (which was $3.02); and (ii) the five-day volume weighted average price of
our common stock for the five trading days following the closing date of the HotPlay Exchange Agreement. The Convertible Promissory Notes
are unsecured, have a maturity date of April 7, 2022, and include standard and customary events of default.
On October 29, 2019, we entered
into Promissory Notes with Robert “Jamie” Mendola, Jr. (a director of the Company at that time) and Pasquale “Pat”
LaVecchia (a director of the Company at that time) in the amounts of $150,000 and $25,000, respectively (the “Director Notes”).
The Director Notes have an interest rate of 12% per annum (18% upon the occurrence of an event of default) and were originally due
and payable on February 1, 2020, but were subsequently extended as discussed below, provided that the notes may be prepaid at any time
without penalty (provided that all interest that would have been due had the notes remained outstanding through maturity must be paid
at the time of repayment). The Company paid a 2% original issue discount in connection with the notes.
On December 9, 2019, the
Company entered into an Amended and Restated Promissory Note with the Monaco Trust, in the amount of up to $2,700,000 (the “Revolving
Monaco Trust Note”). The Revolving Monaco Trust Note amended and restated a previous promissory Note entered into by the Company
in favor of the Monaco Trust on February 4, 2019 (the 2019 Monaco Trust Note discussed above), in the amount of up to $700,000, which
had a balance as of December 9, 2019 of $700,000. On the same date, the Company borrowed $200,000 from the Monaco Trust under the Revolving
Monaco Trust Note. On December 27, 2019 and February 12, 2020, the Company borrowed an additional $300,000 and $200,000, respectively,
from the Monaco Trust under the Revolving Monaco Trust Note, which had a balance of $1,200,000 as of February 29, 2020.
On January 22, 2020, the
Company entered into Stock Purchase Agreements with William Kerby, then the Chief Executive Officer and director of the Company (the
“Purchaser” and the “Stock Purchase Agreement”). Pursuant to the Stock Purchase Agreement, the Company agreed
to sell the Purchaser 1,562,500 shares of restricted Series A Convertible Preferred Stock of Verus International, Inc. (formerly known
as RealBiz Media Group, Inc. (“Verus”), which the Company then held (out of the 31,970,101 shares of Series A Convertible
Preferred Stock of Verus which the Company then held) for an aggregate of $25,000, or $0.016 per share. The purchase price for the Verus
shares was determined by the Board, based on among other things, the recent trading prices of Verus’ common stock on the OTCQB
Market, as publicly reported. The sale contemplated by the Stock Purchase Agreement closed on January 22, 2020.
On January 29, 2020, the
Company entered into first amendments to the Director Notes and Revolving Monaco Trust Note with the directors and the Monaco Trust,
respectively, to extend the maturity date of such notes from February 1, 2020 to April 1, 2020 (the “Note Amendments”). No
other changes were made to such notes as a result of such amendments.
On March 13, 2020 and March
26, 2020, the Company borrowed an additional $100,000 and $75,000, respectively, from the Monaco Trust pursuant to the terms of the Revolving
Monaco Trust Note.
On March 27, 2020, the Company
entered into second amendments to the Director Notes to extend the maturity date of such Director Notes from April 1, 2020 to June 1,
2020, and entered into an amendment to extend the due date of the Revolving Monaco Trust Note from April 1, 2020 to December 1, 2020.
All remaining terms of the promissory notes remained unchanged.
On April 17, 2020, the Company
paid off the Promissory Note with Pasquale “Pat” LaVecchia, a member of the board of directors, in the amount of $26,225
(the principal of $25,000 and the interest of $6,225).
On April 27, 2020, the Company
filed a verified complaint for injunctive relief against IDS (who was a greater than 5% stockholder of the Company at that time) and
certain other defendants affiliated with IDS in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida.
Pursuant to the complaint, the Company alleges causes of action against the defendants, including IDS, based on among other things, fraud,
conspiracy to commit fraud, aiding and abetting fraud, rescission, and breach of contract, and seeks a temporary and permanent injunction
against the defendants, requiring such persons to return the 1,968,000 shares of common stock disclosed above to the Company and preventing
such persons from selling or transferring any shares, seeks damages from the defendants, rescission of the IP Purchase Agreement pursuant
to which the shares were issued, attorneys fees and other amounts. The complaint was filed as a result of IDS’ failure to deliver
certain intellectual property assets which were acquired by the Company from IDS in August 2019, certain other actions of IDS and the
other defendants which the Company alleges constitutes fraud and to seek to unwind the IP Purchase Agreement and provide damages to the
Company due to IDS’ and the other defendants’ breaches thereunder.
On March 13, 2020 and March
26, 2020, the Company borrowed an additional $100,000 and $75,000, respectively, from the Monaco Trust pursuant to the terms of the Revolving
Monaco Trust. On June 9, 2020 and June 10, 2020, the Company borrowed an additional $300,000 and $50,000, respectively, from the Monaco
Trust. On July 7, 2020 and July 20, 2020, the Company borrowed an additional $250,000 and $50,000, respectively, from the Monaco Trust.
On July 27, 2020, the Company paid principal of $50,000 and accrued interest of $49,784. On September 22, 2020, the Company made a payment
of $200,000 under the Revolving Monaco Trust Note, including $142,408 of principal and $57,592 of interest owed thereunder.
On May 1, 2020, the Company
paid off the Promissory Note with Robert “Jamie” Mendola, Jr., in the amount of $157,595 (the principal of $150,000 and the
interest of $7,595).
On June 9, 2020, June 10,
2020, July 7, 2020, we borrowed an additional $300,000, $50,000 and $250,000 from the Monaco Trust under the Revolving Monaco Trust Note.
On November 6, 2020, the
Company entered into a third amendment to the Revolving Trust Note with the Monaco Trust, to extend the maturity date of such Revolving
Monaco Trust Note to February 28, 2021. No other changes were made to such note as a result of such amendment.
On November 16, 2020, the
Company entered into a fourth amendment to the Revolving Trust Note with the Monaco Trust, to increase the amount available under such
Revolving Monaco Trust Note to $2,800,000. No other changes were made to such note as a result of such amendment.
On December 1, 2020, the
Company paid $800,000 of principal and interest due under the Revolving Trust Note.
The Revolving Trust Note
was subsequently repaid in full in December 2020, with funds raised through our December 2020 underwritten offering.
On September 8, 2020, the
Company issued Sirapop “Kent” Taepakdee, then Acting Chief Financial Officer and Vice President of Finance (Principal Financial
and Accounting Officer) and Timothy Sikora, the Chief Operating Officer and Chief Information Officer of the Company, an aggregate
of 17,500 and 15,000 shares of common stock of the Company, respectively, as a bonus in consideration for services rendered. The issuances
were authorized by the Board and the Compensation Committee of the Board, and granted under the Company’s 2017 Amended and Restated
Equity Incentive Plan. The shares vested immediately upon issuance.
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 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 November 30, 2020, 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.
In December 2020 and January
2021, Sabby Management, LLC, which previously filed a Schedule 13G with the SEC disclosing its ownership of over 5% of our outstanding
shares of common stock, exercised warrants to purchase 125,000 shares of our common stock with an exercise price of $2.00 per share,
paid the aggregate $250,000 exercise price for such shares, and was issued 125,000 shares of common stock, which were covered under a
registration statement filed under the Securities Act. Sabby is no longer a greater than 5% shareholder of the Company.
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 April 7, 2021, each of
Mr. Pasquale “Pat” LaVecchia, Mr. Doug Checkeris, Mr. Rupert Duchesne, Mr. Robert “Jamie” Mendola, Jr. and Ms.
Alexandra C. Zubko, each then members of the Board, provided letters of resignation to the Company, resigning as directors (and from
any other positions they hold with the Company), with such resignations effective automatically as of the closing of the HotPlay Exchange
Agreement.
Such resignations were solely
in connection with the required terms and conditions of the HotPlay Exchange Agreement, which requires that the Board at the closing
thereof increase to nine members, with four appointed by HotPlay, two appointed by NextPlay (then known as Monaker), and three appointed
mutually by NextPlay (then known as Monaker) and HotPlay.
Also on April 7, 2021, the Board ratified the current compensation
payable to members of the Board, which provides that each non-executive member of the Board be paid (a) compensation of 20,000 shares
per year; (b) compensation of 5,000 shares per year, if they are the chairperson of any committee of the Board; and (c) compensation of
10,000 shares per year, to the Chairman of the Board (collectively, the “Board Compensation Terms”), except that all shares
due to the Directors serving as of March 1, 2021, for the fiscal year ending February 28, 2022, were agreed to be issued up front and
to be fully-vested/earned on the date of grant, instead of vesting over time, as previously awarded. In total, an aggregate of 165,000
shares of common stock were issued to the non-executive directors on April 8, 2021 for compensation for fiscal 2022 (such shares, the
“Fiscal 2022 Board Compensation Shares”). The Fiscal 2022 Board Compensation Shares were issued under the Company’s
Amended and Restated 2017 Equity Incentive Plan (the “2017 Plan”).
On April 7, 2021, the Company
entered into a Lock-Up Agreement with each of the non-executive members of the Board. Pursuant to the Lock-Up Agreements, each non-executive
director agreed not to transfer, sell, pledge or assign any of their applicable Fiscal 2022 Board Compensation Shares until March 1,
2022.
On April 7, 2021, the Board,
consistent with the employment agreement of Mr. William Kerby, then the sole Chief Executive Officer of the Company, which provides for
Mr. Kerby to receive a base salary of $400,000 per year, and an annual bonus payable at the discretion of the board of directors, of
up to 100% of his base salary (50% based on meeting short term goals and 50% based on meeting long-term goals), and other bonuses which
may be granted from time to time in the discretion of the board of directors, agreed to award Mr. Kerby a discretionary bonus for fiscal
2021 of $400,000, which was payable in cash or shares of common stock, at Mr. Kerby’s option, under the Plan, with a conversion
price of $3.02 per share, the closing sales price of the Company’s common stock on the date the Board approved such bonus.
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 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 an Intellectual Property Purchase Agreements with Fighter Base Publishing Inc. (“Fighter
Base”) and 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 Fighter Base IPP Agreement, the intellectual property to be acquired thereunder has a mutually agreed upon value of $5 million,
which will be 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).
Pursuant
to the Token IQ IPP Agreement, the intellectual property to be acquired thereunder has a mutually agreed upon value of $5 million, which
will be 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).
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.
The
closing of the transactions contemplated by the IPP Agreements were 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. The Company held a meeting of its stockholders set
for January 28, 2022, at which meeting the Company’s stockholders approved the Fighter Base and Token IQ transactions.
On August 15, 2019, the Company
entered into an Intellectual Property Purchase Agreement with IDS Inc. (“IDS” and the “IP Purchase Agreement”).
Pursuant to the agreement, the Company purchased certain proprietary technology from IDS for the reservation and booking of air travel,
hotel accommodations, car rentals, and ancillary products, services, and amenities, integration of the same with the providers of such
products and services, associated functions, including website addresses, patents, trademarks, copyrights and trade secrets relating
thereto, and all goodwill associated therewith (collectively, the “IP Assets”). In consideration for the purchase, the Company
issued IDS 1,968,000 shares of restricted common stock (the “IDS Shares”) valued at $2.50 per share, or $4,920,000 in aggregate.
On April 27, 2020, the Company
filed a verified complaint for injunctive relief against IDS and TD Assets Holding, LLC (“TD Asset”), Navarro McKown, Aaron
McKown and Ari Daniels (“Daniels”), which parties are affiliated with IDS, in the Circuit Court of the Seventeenth Judicial
Circuit in and for Broward County, Florida (Case No. CACE-20-007088). Pursuant to the complaint, the Company alleged causes of action
against the defendants, including IDS, based on among other things, fraud, conspiracy to commit fraud, aiding and abetting fraud, rescission,
and breach of contract, and sought a temporary and permanent injunction against the defendants, requiring such persons to return the
1,968,000 IDS Shares issued pursuant to the terms of the IP Purchase Agreement and preventing such persons from selling or transferring
any IDS Shares, sought damages from the defendants, rescission of the IP Purchase Agreement, attorneys fees and other amounts. The defendants
subsequently filed various counterclaims against the Company.
The complaint was filed because
of IDS’ failure to deliver the IP Assets, certain other actions of IDS and the other of the defendants which the Company alleged
constituted fraud. The Company sought to unwind the IP Purchase Agreement and sought damages for the Company due to IDS’ and the
other defendants’ breaches thereunder. IDS, through its counsel, sent a letter threatening to bring a shareholders’ derivative
action and/or direct suit against the Company. In response to such letter, the board of directors empowered the governance committee
to conduct an investigation into the claims. The results of the investigation, conducted by several law firms, were presented to the
Board and the Board concluded that no fraudulent activities occurred. The investigation concluded in October 2020.
On April 29, 2020, the Company
filed a Verified Motion for Temporary Injunction (the “Injunction Motion”). Defendants IDS, TD Assets, and Ari Daniels filed
an answer, affirmative defenses, and counterclaims (the “Answer and Counterclaim”). The Answer and Counterclaim included
alleged breach of contract and tort claims against the Company. On September 17, 2020, the Company moved to strike the affirmative defenses
and dismiss the counterclaims. On October 15, 2020, defendants IDS, TD Assets, and Ari Daniels filed an amended Answer and Counterclaim,
including alleged breach of contract, tort, and federal securities claims against the Company, Mr. William Kerby, our sole Chief Executive
Officer and an employee of the Company at that time.
On July 27, 2020, the Company
entered into a confidential settlement agreement with certain of the defendants in the IDS matter, Navarro Hernandez, P.L., Aaron M.
McKown, and Jeffery S. Bailey. The settlement provided for mutual releases of the parties and amounts payable from such parties to the
Company in four tranches, in consideration for such settlement, of which all such payments have been timely paid pursuant to the terms
of the settlement.
The remaining parties to
the litigation subsequently attempted to mediate their pursuant to a court ordered mediation in February 2021.
Effective on May 18, 2021,
the Company, IDS, TD Asset and Ari Daniels, the principal of IDS, entered into an Amendment to Intellectual Property Purchase Agreement
(the “IP Purchase Amendment”). Pursuant to the IP Purchase Agreement, the parties amended the IP Purchase Agreement, with
the Company agreeing to make a payment to IDS in the amount of $2,850,000 (the “Payment”), payable by way of an initial payment
of $500,000, which has been paid to date, and twelve monthly payments of approximately $195,833 (collectively, the “Required Payments”),
with such monthly payments beginning 30 days after the initial payment, which is due seven days after the date of the IP Purchase Amendment.
Such monthly payments may be pre-paid at any time without penalty. At the Company’s option, any portion of the amount due may be
paid to IDS by a party separate from the Company (either a related party of the Company or a third-party) (a “Paying Party”),
for the benefit of Monaker, which shall be treated for all purposes as a payment by the Company. As consideration for such Paying Party
making such payment on behalf of the Company, IDS agreed to transfer the Paying Party a number of the IDS Shares equal to the amount
of the cash payment(s) made by a Paying Party multiplied by 0.6888 as to the first $500,000 payment (which payment has been made, but
which shares have not been transferred to the Company to date), and 0.691 as to the monthly payments (as applicable, the “Applicable
Portion” of the IDS Shares).
In the event the Company
fails to make any payment timely, and the Company does not cure such default within seven days of written notice of default being provided
by IDS, IDS is entitled to entry of a default judgment against the Company in the amount of the differential, if any, between the realized
value of the IDS Shares upon the future sale thereof in the open market by IDS, and the unpaid amount of any payment due. In the event
of any such default, IDS will be entitled to attorneys’ fees incurred to obtain said judgment.
Upon each payment of amounts
due to IDS pursuant to the terms of the IP Agreement Amendment as discussed above by the Company (instead of a Paying Party), IDS agreed
to transfer the portion of the IDS Shares equal to the Applicable Portion, to the Company.
Until such time as the IDS
Shares are no longer held by IDS, IDS agreed not to transfer or encumber any of such shares, except pursuant to the terms of the IP Purchase
Amendment.
IDS also agreed to transfer
certain unbranded travel videos back to the Company which were previously purchased by IDS from the Company, pursuant to the IP Purchase
Agreement.
A further requirement of
the IP Purchase Amendment was that IDS enter into a Shareholder Voting Representation Agreement with William Kerby, our Chief Executive
Officer and director (the “Shareholder Voting Agreement”), which was entered into effective on May 18, 2021. Pursuant to
the Shareholder Voting Agreement, IDS provided Mr. Kerby the right to, and an irrevocable proxy to, vote all of the IDS Shares held by
IDS at any meeting of stockholders of the Company and/or via any written consent of stockholders of the Company. The Shareholder Voting
Agreement remains in place until the earlier of the fifth anniversary of the Shareholder Voting Agreement; the disposition of the IDS
Shares pursuant to the IP Purchase Amendment; a change of control of the Company resulting in persons prior to such transaction obtaining
more than 50% voting control of the Company following such transaction; the sale of all or substantially all of the assets of the Company;
or termination of the agreement by Mr. Kerby. Mr. Kerby may also assign his rights under the agreement to another party and/or the Company
may assign Mr. Kerby’s rights under the agreement if Mr. Kerby is unable to make such assignment due to his death or disability.
Mr. Kerby was provided the voting rights as the shareholder representative of, and for the benefit of, the Company.
Also effective on May 18,
2021, the Company, IDS, TD Asset and Ari Daniels, entered into a Confidential Settlement Agreement and Mutual Release, whereby (a) we
provided a general release to IDS, TD Asset and Mr. Daniels, and (b) IDS, TD Asset and Mr. Daniel provided a general release to us; the
parties agreed to file a Joint Notice of Voluntary Dismissal to dismiss the pending lawsuit discussed above; and the parties agreed that
a prior Web Based Booking Engine Development Agreement dated October 24, 2017, was terminated.
Pursuant to the IP Purchase
Amendment, on May 19, 2021, the Company made the initial payment of $500,000. Thereafter, the first 344,400 shares of common stock repurchased
by the Company were returned to treasury and cancelled.
On September 27, 2021, the
Court entered the Agreed Order. The Court ordered that:
| (i) | the Company resume the monthly payment on or before September
28, 2021 (which payment has not been made due to failure of IDS to provide required documents); |
| (ii) | $24,583.33 shall be paid monthly to one of IDS’ counsel
and the balance of each payment shall be paid to the IDS Defendants; |
| (iii) | $20,000 of the 12 monthly payments shall be withheld pending
further order of the court; and |
| (iv) | NextPlay was awarded its fees and costs associated with the
filing of the Motion. |
As of February 24, 2022,
IDS still has not provided any of the necessary documents in order to make the stock transfers.
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: (i) J. Todd Bonner, (ii) Nithinan Boonyawattanapisut, (iii) William Kerby, (iv) Donald P. Monaco, (v)
Athid Nanthawaroon, (vi) Carmen Diges, (vii) Komson Kaewkham, (viii) Yoshihiro Obata, (ix) Farooq Moosa, and (x) Edward Terrance Gardner,
Jr. See the section of this Proxy Statement entitled “Information Regarding Directors” included in Proposal 1, above, for
additional information regarding each of our current directors.
As of February 28, 2021,
the last day or our 2021 fiscal year, our Board consisted of the following eight directors: (i) William Kerby, (ii) Pasquale “Pat”
LaVecchia, (iii) Donald P. Monaco, (iv) Doug Checkeris, (v) Simon Orange, (vi) Rupert Duchesne, (vii) Robert “Jamie” Mendola,
Jr., and (viii) Alexandra C. Zubko. On April 7, 2021, in connection with the Closing of the Company’s acquisition of HotPlay, each
of Messrs. LaVecchia, Checkeris, Duchesne, and Mendola, Jr. and Ms. Alexandra C. Zubko, resigned as directors (and from any other positions
they hold with the Company), with such resignations effective automatically as of the closing of the HotPlay Exchange Agreement. Effective
as of closing of the HotPlay Exchange Agreement, and concurrently with the foregoing resignations, each of Ms. Boonyawattanapisut, Ms.
Stacey Riddell, and Messrs. Bonner, Nanthawaroon, Kaewkham, Obata were appointed as directors of the Company. Since that date, there
have been various other changes to the composition of our Board.
Certain disclosure that follows
regarding our Board, including corporate governance related disclosures, refers to our Board and corporate governance policies and procedures
in place as of February 28, 2021, which information may no longer reflect our current practices, procedures and/or status. You should
read the below disclosures carefully, paying attention to the relevant period for which the disclosures are provided.
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, 2021, the Board held 11 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.
The Company held a virtual 2021
Annual Meeting on February 24, 2021, which was attended by Donald Monaco, William Kerby, Rupert Duchesne, Simon Orange and Alexandra.
Zubko, all of whom were directors of the Company as of the date of our 2021 Annual Meeting. Each director of the Company has historically
been expected to be present at annual meetings of stockholders, absent exigent circumstances that prevent their attendance; however,
due to COVID-19, some members of the board of directors were unable to attend the 2021 Annual Meeting. 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, 2021, 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, 2021, the Compensation Committee held three 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, 2021, the Nominating and Governance Committee held ten meetings 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, 2021, 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, 2021 be included in the Company’s Annual Report on Form 10-K for the year ended February
28, 2021, 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/ Pasquale “Pat” LaVecchia (Chairman) |
| |
/s/ Rupert Duchesne |
| |
/s Alexandra C. Zubko |
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 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.
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 Business Conduct and Ethics
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 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, 2021. The below table only includes those individuals that were serving as non-executive directors
on our Board as of February 28, 2021, and omits all individuals that have been elected to our Board since that date. 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 | | |
Fees Earned | | |
Stock Awards* | | |
Option Awards | | |
All other Compensation | | |
Total | |
| Pasquale “Pat” LaVecchia, Director | |
| 2021 | | |
$ | — | | |
$ | 53,563 | | |
$ | — | | |
$ | — | | |
$ | 53,563 | |
| Donald P. Monaco, Chairman | |
| 2021 | | |
$ | — | | |
$ | 64,275 | | |
$ | — | | |
$ | 18,000 | (1) | |
$ | 82,275 | |
| Doug Checkeris, Director | |
| 2021 | | |
$ | — | | |
$ | 53,563 | | |
$ | — | | |
$ | — | | |
$ | 53,563 | |
| Simon Orange, Director | |
| 2021 | | |
$ | — | | |
$ | 42,850 | | |
$ | — | | |
$ | — | | |
$ | 42,850 | |
| Rupert Duchesne, Director | |
| 2021 | | |
$ | — | | |
$ | 42,850 | | |
$ | — | | |
$ | — | | |
$ | 42,850 | |
| Robert “Jamie” Mendola, Jr., Director | |
| 2021 | | |
$ | — | | |
$ | 53,563 | | |
$ | — | | |
$ | — | | |
$ | 53,563 | |
| Alexandra C. Zubko, Director | |
| 2021 | | |
$ | — | | |
$ | 42,850 | | |
$ | — | | |
$ | — | | |
$ | 42,850 | |
No director received any Non-Equity Incentive Plan Compensation or
Non-Qualified Deferred Compensation for the period above.
| * | 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) | Represents amounts paid under
the Guaranty Compensation Agreement described below under “Donald P. Monaco, Guaranty Compensation Agreement,” which agreement
was terminated automatically upon the repayment of the Company’s debt owed to National Bank of Commerce (FKA: Republic Bank) in
December 2020. |
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 |
|
38 |
|
Co-Chief Executive Officer and Director |
| William Kerby |
|
64 |
|
Co-Chief Executive Officer and Director |
| Sirapop “Kent” Taepakdee |
|
59 |
|
Chief Financial Officer, Treasurer and Secretary |
| Mark Vange |
|
52 |
|
Chief Technology Officer |
| Tim Sikora |
|
48 |
|
Chief Operating Officer and the 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 38, Co-Chief Executive Officer and Director
Ms. Boonyawattanapisut’s
biographical information is provided above under the section of this Proxy Statement entitled “Information Regarding Directors,”
and incorporated herein by reference.
William Kerby, age 64, 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,” 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. From February 2012 to January 2018, Mr. Taepakdee served
as the Controller of Inceptra LLC and JTH Holdings LLC, located in Weston, Florida. 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. 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 also serves as a member of the Board of Directors
of Next Fintech Holdings Inc (fka: Longroot Inc). 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.
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. 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 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 48, Chief Operating Officer
and the 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 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, 2021 and February 29, 2020 (Fiscal 2021 and Fiscal 2020, 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,
whose total compensation exceeded $100,000 as of February 28, 2021, 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, 2021.
Because Ms. Boonyawattanapisut
and Mr. Vange were appointed as executive officers of the Company subsequent to the year ended February 28, 2021, they are not included
in the following table. In addition, the positions listed for each of the individuals listed in the following table were the positions
that such individuals held as of February 28, 2021, and do not necessarily reflect their current positions with the Company.
| Name
and Principal Position | |
Fiscal
Year
Ended | | |
Salary | | |
Bonus | | |
Stock Awards
(1) | | |
Option Awards | | |
All
Other Compensation | | |
Total | |
William
Kerby,
| |
| 2021 | | |
$ | 400,000 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 124,759 | (2)(3)(7) | |
$ | 524,759 | |
| CEO and Vice-Chairman
of the Board | |
| 2020 | | |
$ | 400,000 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 42,000 | (2)(3) | |
$ | 442,000 | |
| |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Sirapop
“Kent” Taepakdee, | |
| 2021 | | |
$ | 157,834 | | |
$ | 10,000 | | |
$ | 64,850 | (6) | |
$ | — | | |
$ | 11,211 | (7) | |
$ | 243,895 | |
| VP of Finance and
Chief Financial Officer(4) | |
| 2020 | | |
$ | 64,917 | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | — | | |
$ | 64,917 | |
| | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | | |
| | |
Timothy
Sikora,
| |
| 2021 | | |
$ | 200,000 | | |
$ | — | | |
$ | 36,300 | (6) | |
$ | — | | |
$ | 7,762 | (7) | |
$ | 244,062 | |
| COO and CIO(5) | |
| 2020 | | |
$ | 75,769 | | |
$ | — | | |
$ | 31,800 | (6) | |
$ | — | | |
$ | — | | |
$ | 107,569 | |
| * | 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) | Mr. Kerby receives additional
compensation in the form of a car allowance in the amount of $1,500 per month. |
| | | |
| (3) | Mr. Kerby received additional
compensation in the form of a Merchant Banking Guarantee in the amount of $2,000 per month through November 1, 2018, when he began receiving
$2,000 as a guaranty fee under his employment agreement, as discussed below. |
| | | |
| (4) | Mr. Taepakdee was appointed as
the principal financial officer and principal accounting officer of the Company on October 9, 2019, and as the Vice President of Finance,
acting Chief Financial Officer (since Chief Financial Officer), Treasurer, and Secretary of the Company effective February 1, 2020. |
| | | |
| (5) | Mr. Sikora was appointed as the
Chief Operating Officer and the Chief Information Officer of the Company (executive positions) effective February 1, 2020. Served
as the Chief Information Officer (non-executive) from October 9, 2019, to February 1, 2020, when he was appointed as an executive
of the Company. |
| | | |
| (6) | Represents the Stock Awards to
Mr. Taepakdee for 27,500 shares, and to Mr. Sikora for 27,000 shares (12,000 in FY 2020 and 15,000 in FY 2021). |
| | | |
| (7) | Includes cash-out of unused vacation
time, which was paid in the form of cash, totaling $82,759 for Mr. Kerby, $11,211 for Mr. Taepakdee, and $7,762 for Mr. Sikora. |
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. 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.
On September 8, 2020, the Company
issued Mr. Taepakdee an aggregate of 17,500 shares of common stock of the Company as a bonus in consideration for services rendered, which
vested immediately upon issuance.
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, 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.
On September 8, 2020, the Company
issued Mr. Sikora an aggregate of 15,000 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, 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.
Donald P. Monaco, Guaranty Compensation Agreement
On October 31, 2018, and effective
November 1, 2018, the Company entered into a Guaranty Compensation Agreement with Donald P. Monaco, who was serving as Chairman of the
Company’s Board at that time. Pursuant to the Guaranty Compensation Agreement and in consideration for Mr. Monaco previously providing
a personal guaranty to a financial institution in connection with our line of credit with such financial institution, we agreed that for
as long as Mr. Monaco continues to serve on the Board and continues to maintain the guaranty (and any future guarantees he may provide),
we would pay him a $2,000 per month guarantee fee (the “Guarantee Fee”). In December 2020, the Company repaid its credit agreement
with National Bank of Commerce (FKA: Republic Bank), which terminated Mr. Monaco’s guaranty and the Guaranty Compensation Agreement.
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 $200,000 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, our Board
adopted, subject to the ratification by a majority of our stockholders, which occurred effective on September 13, 2017, the Company’s
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. The shares eligible for future awards under
the 2021 Plan will be equal to (i) 13,065,060, which amount is equal to 15% of the Company’s total outstanding shares of common
stock immediately after the closing of the HotPlay Share Exchange and conversion of the Axion preferred stock, plus (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; 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.
The following table provides
certain aggregate information with respect to all of our equity compensation plans in effect as of February 28, 2021:
| Plan category | |
Number of securities
to be issued upon
exercise of
outstanding options,
warrants and rights as
of February 28, 2021 | | |
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 | |
| — | | |
$ | — | | |
| 1,336,279 | |
| Equity compensation plans not approved by security holders | |
| 206,720 | | |
$ | 3.10 | | |
| — | |
| Total | |
| 206,720 | | |
$ | 3.10 | | |
| 1,336,279 | |
OTHER MATTERS
Stockholder Proposals for 2023 Annual Meeting
of Stockholders
Proposals of holders of our
voting securities intended to be presented at our 2023 annual meeting of stockholders and included in our proxy statement and form of
proxy relating to such meeting pursuant to Rule 14a-8 of Regulation 14A must be received by us, addressed to our Corporate Secretary,
at our principal executive offices at 1560 Sawgrass Corporate Parkway, Suite 130, Sunrise, Florida 33323, not earlier than the close of
business on December 23, 2022, and not later than the close of business on January 22, 2023, together with written notice of the stockholder’s
intention to present a proposal for action at the fiscal 2023 annual meeting of stockholders, unless our annual meeting date occurs more
than 30 days before or 30 days after April 22, 2023. In that case, we must receive proposals not earlier than the close of business on
the 120th day prior to the date of the fiscal 2023 annual meeting and not later than the close of business on the later of the 90th day
prior to the date of the fiscal 2023 annual meeting or, if the first public announcement of the date of the fiscal 2023 annual meeting
is less than 100 days prior to the date of the meeting, the 10th day following the day on which we first make a public announcement of
the date of the meeting.
Stockholder proposals must
be in writing and must include (i) the name and record address of the stockholder who intends to propose the business and the class
or series and number of shares of capital stock of the Company that are owned beneficially or of record by such stockholder; (ii) a
representation that the stockholder is a holder of record of stock of the Company entitled to vote at the Meeting and intends to appear
in person or by proxy at the meeting to introduce the business specified in the notice; (iii) a brief description of the business
desired to be brought before the Meeting and the reasons for conducting such business at the Meeting; (iv) any material interest
of the stockholder in such business; and (v) any other information that is required to be provided by the stockholder pursuant to
Regulation 14A under the Exchange Act. The Board reserves the right to refuse to submit any proposal to stockholders at the Meeting if,
in its judgment, the information provided in the notice is inaccurate or incomplete, or does not comply with the requirements for stockholder
proposals set forth in our bylaws.
Additionally, the Nominating
Committee will consider director candidates recommended by stockholders, provided stockholders include (i) as to each person whom
the stockholder proposes for the Nominating Committee to consider for nomination for election as a director (a) the name, age, business
address and residence address of the person, (b) the principal occupation or employment of the person, (c) the class or series
and number of shares of capital stock of us which are owned beneficially or of record by the person and (d) any other information
relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act, and the rules and regulations promulgated
thereunder; and (ii) as to the stockholder giving the notice (a) the name and record address of such stockholder, (b) the
class or series and number of shares of capital stock of the Company which are owned beneficially or of record by such stockholder, (c) a
description of all arrangements or understandings between such stockholder and each proposed nominee and any other person or persons (including
their names) pursuant to which the nomination(s) are to be made by such stockholder, (d) a representation that such stockholder
intends to appear in person or by proxy at the meeting to nominate the persons named in its notice, and (e) any other information
relating to such stockholder that would be required to be disclosed in a proxy statement or other filings required to be made in connection
with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated
thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as
a director, if elected. Individuals recommended by stockholders in accordance with these procedures will receive the same consideration
received by individuals identified to the Nominating Committee through other means.
Additional Filings
We file annual reports on Form
10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and proxy and information statements and amendments to reports filed
or furnished pursuant to Sections 13(a) and 15(d) of the Exchange Act. The SEC maintains a website (http://www.sec.gov) that contains
reports, proxy and information statements and other information regarding us and other companies that file materials with the SEC electronically.
Additional information about us is available on our website at www.Nextplaytechnologies.com. Information on our website does not constitute
part of this proxy statement.
We will provide, without charge,
to each person to whom a Proxy Statement is delivered, upon written or oral request of such person and by first class mail or other equally
prompt means within one business day of receipt of such request, a copy of any of the filings described above. Individuals may request
a copy of such information by sending a request to us, Attn: Corporate Secretary, NextPlay Technologies, Inc., 1560 Sawgrass Corporate
Parkway, Suite 130, Sunrise, Florida 33323.
Other Matters to be Presented at the Meeting
As of the date of this Proxy
Statement, our management has no knowledge of any business to be presented for consideration at the Meeting other than that described
above. If any other business should properly come before the Meeting or any adjournment thereof, it is intended that the shares represented
by properly executed proxies will be voted with respect thereto in accordance with the judgment of the persons named as agents and proxies
in the enclosed form of proxy.
Our Board does not intend to
bring any other matters before the Meeting and has not been informed that any other matters are to be presented by others.
Interest of Certain Persons in or Opposition
to Matters to Be Acted Upon:
| |
(a) |
No officer or director of us has any substantial interest in the matters to be acted upon, other than his or her role as an officer or director of us, or as a stockholder of us. |
| |
(b) |
No director of us has informed us that he or she intends to oppose the action taken by us set forth in this Proxy Statement. |
Incorporation of Information by Reference
The SEC allows us to “incorporate
by reference” certain information that we file with the SEC, which means that we can disclose important information by referring
you to those documents. The information incorporated by reference is considered to be a part of this Proxy Statement. We incorporate herein
the following information contained in or attached to our Annual Report on Form 10-K for the fiscal year ended February 28, 2021, which
we filed with the SEC on June 8, 2021: (i) Item 7 entitled “Management’s Discussion and Analysis of Financial Condition and
Results of Operations, and (ii) Item 8 entitled “Financial Statements and Supplementary Data.
We will provide, without charge,
to each person to whom a proxy statement is delivered, upon written or oral request of such person and by first class mail or other equally
prompt means within one business day of receipt of such request, a copy of any and all of the information that has been incorporated by
reference in this Proxy Statement.
Company Contact Information
All inquiries regarding our
Company should be addressed to our Company’s principal executive office:
NextPlay Technologies, Inc.
1560 Sawgrass Corporate Parkway, Suite 130
Sunrise, Florida 33323
| By Order of the Board of Directors, |
|
| |
|
| /s/ John Todd Bonner |
|
| John Todd Bonner, Chairman |
|
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