As filed with the Securities and Exchange Commission on
May 12, 2020
Registration No. 333-237626
UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
SUPER LEAGUE GAMING, INC.
(Exact Name of Registrant as Specified In Its Charter)
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Delaware
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47-1990734
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification Number)
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2906 Colorado Ave.
Santa Monica, California 90404
Company: (802) 294-2754;
Investor
Relations: 949-574-3860
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Ann Hand
President and Chief Executive Officer
Super League Gaming, Inc.
2906 Colorado Ave.
Santa Monica, California 90404
(802)
294-2754
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(Address, including zip code, and telephone number,
including area code of Registrant’s principal executive
offices),
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(Name, address, including zip code, and telephone
number,
including area code, of agent for service)
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From time to time after the effective date of this Registration
Statement
(Approximate date of commencement of proposed sale to
public)
Copies of all communications, including all communications sent to
the agent for service, should be sent to:
Ann
Hand
President and
Chief Executive Officer
Super League
Gaming, Inc.
2906 Colorado
Ave.
Santa Monica,
California 90404
(802)
294-2754
Copies
to:
Daniel W. Rumsey,
Esq.
Jessica R. Sudweeks,
Esq.
Disclosure Law
Group,
A Professional
Corporation
655 West Broadway, Suite
870
San Diego, California
92101
(619) 272-7050
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box. [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415
of the Securities Act of 1933, other than securities offered only
in connection with dividend or interest reinvestment plans, check
the following box. [X]
If this form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please
check the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [
]
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, please check the following
box. [ ]
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, please check the
following box. [ ]
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company or an emerging growth company. See the
definitions of “large accelerated filer,”
“accelerated filer,” “smaller reporting
company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer [ ]
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Accelerated filer [ ]
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Non-accelerated filer [ ]
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Smaller reporting company [X]
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Emerging growth company [X]
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided Section 7(a)(2)(B) of the Securities Act.
[ ]
EXPLANATORY
NOTE
On April 10, 2020,
the registrant filed a registration statement with the Securities
and Exchange Commission (the “SEC”) on Form S-3 (Registration
No. 333-237626), which was amended by Pre-Effective Amendment
No. 1 to Form S-3 filed with the SEC on April 17, 2020, and
declared effective by the SEC on April 20, 2020 (as amended, the
“Form S-3”), to
register up to $40,000,000 shares of the registrant’s common
stock, $0.001 par value per share, preferred stock, $0.001 par
value per share, warrants, and units, to be offered and sold from
time to time in one or more offerings in any combination of
securities as described in the prospectus.
This Post-Effective
Amendment No. 1 to Form S-3 is being filed by the registrant
to provide an updated prospectus, including, but not limited to,
the addition of debt securities as a type of security that may be
offered and sold under the prospectus.
All filing fees
payable in connection with the registration of the shares of the
common stock covered by the registration statement were paid by the
registrant at the time of the initial filing of the Form
S-3.
CALCULATION OF REGISTRATION FEE
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Title of each class of securities to
be registered
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Amount to be Registered
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Proposed
Maximum
Offering Price Per Unit
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Proposed
Maximum
Aggregate
Offering Price
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Amount of
Registration
Fee(1)
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Common Stock,
par value $0.001 per share
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(2
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)
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(3
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)
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(3
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)
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$
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—
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Preferred
Stock, par value $0.001 per share
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(2
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)
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(3
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)
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(3
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)
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—
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Debt
Securities
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(2
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)
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(3
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)
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(3
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)
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—
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Warrants
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(2
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)
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(3
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)
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(3
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)
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—
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Units
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(2
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)
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(3
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)
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(3
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)
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—
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Total
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(2
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(3
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$
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40,000,000
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$
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5,192.00
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(4)
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(1)
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Calculated pursuant to Rule 457(o) under the Securities Act of
1933, as amended (the “Securities
Act”).
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(2)
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There
are being registered hereunder such indeterminate number of shares
of common stock and preferred stock, such indeterminate principal
amount of debt securities and such indeterminate number of warrants
and units as shall have an aggregate offering price not to exceed
$40 million. If any debt securities are issued at an original issue
discount, then the principal amount of such debt securities shall
be in such greater amount as shall result in an aggregate offering
price not to exceed $40 million, less the aggregate dollar amount
of all securities previously issued hereunder. Any securities
registered hereunder may be sold separately or together with other
securities registered hereunder. The securities registered also
include such indeterminate number of shares of common stock,
preferred stock and amount of debt securities as may be issued upon
conversion of or exchange for preferred stock or debt securities,
upon exercise of warrants or pursuant to the anti-dilution
provisions of any such securities. In addition, pursuant to Rule
416 under the Securities Act, the shares being registered hereunder
include such indeterminate number of shares of common stock and
preferred stock as may be issuable with respect to the shares being
registered hereunder as a result of stock splits, stock dividends
or similar transactions.
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(3)
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The proposed maximum aggregate offering price per class of security
will be determined from time to time by the Registrant in
connection with the issuance by the Registrant of the securities
registered hereunder and is not specified as to each class of
security.
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(4)
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Previously paid.
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The Registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until the registration statement shall become effective on
such date as the Commission, acting pursuant to said section 8(a),
may determine.
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The information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these securities
and it is not soliciting an offer to buy these securities in any
jurisdiction where the offer or sale is not permitted.
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PRELIMINARY PROSPECTUS
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SUBJECT TO COMPLETION
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DATED MAY 12, 2020
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$40,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
UNITS
From
time to time, we may offer and sell, in one or more offerings, up
to $40,000,000 of any combination of the securities described in
this prospectus. We may also offer securities as may be issuable
upon conversion, redemption, repurchase, exchange or exercise of
any securities registered hereunder, including any applicable
anti-dilution provisions.
This prospectus provides a general description of the securities we
may offer from time to time. Each time we offer securities, we will
provide specific terms of the securities offered in a supplement to
this prospectus. We may also authorize one or more free writing
prospectuses to be provided to you in connection with an offering.
The prospectus supplement and any related free writing prospectus
may also add, update or change information contained in this
prospectus. You should carefully read this prospectus, the
applicable prospectus supplement and any related free writing
prospectus, as well as any documents incorporated by reference,
before you invest in any of the securities being
offered.
Our
common stock is listed on the Nasdaq Capital Market under the
ticker symbol “SLGG.” On May 11, 2020, the last
reported sale price per share of our common stock was $3.22 per
share.
We may offer and sell our securities to or through
one or more agents, underwriters, dealers or other third parties or
directly to one or more purchasers on a continuous or delayed
basis. If agents, underwriters or dealers are used to sell our
securities, we will name them and describe their compensation in a
prospectus supplement. The price to the public of our securities
and the net proceeds we expect to receive from the sale of such
securities will also be set forth in a prospectus supplement. For
additional information on the methods of sale, you should refer to
the section entitled “Plan of
Distribution” in this
prospectus.
As
of May 11, 2020, the aggregate market value of our outstanding
common stock held by non-affiliates was approximately $26,122,694,
which was calculated in accordance with General Instruction I.B.6
of Form S-3, based on 7,915,968 shares of outstanding common stock
held by non-affiliates, at a price per share of $3.30, the closing
sale price of our common stock reported on the Nasdaq Capital
Market on April 16, 2020.
Pursuant
to General Instruction I.B.6 of Form S-3, in no event will we sell
the securities described in this prospectus in a public primary
offering with a value exceeding more than one-third (1/3) of the
aggregate market value of our common stock held by non-affiliates
in any twelve (12)-month period, so long as the aggregate market
value of our outstanding common stock held by non-affiliates
remains below $75.0 million. During the twelve (12) calendar months
prior to and including the date of this prospectus, we have not
offered and sold any securities pursuant to General Instruction
I.B.6 of Form S-3. As a result, we are currently eligible to offer
and sell up to an aggregate of approximately $8.7 million of our
securities pursuant to General Instruction I.B.6. of Form
S-3.
Our business and investing in our
securities involve significant risks. You should
review carefully the risks and uncertainties referenced under the
heading “Risk
Factors” on page 6 of
this prospectus, as well as those contained in the applicable
prospectus supplement and any related free writing prospectus, and
in the other documents that are incorporated by reference into this
prospectus or the applicable prospectus
supplement.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
The date of this prospectus is ,
2020
SUPER LEAGUE GAMING, INC.
TABLE OF CONTENTS
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PAGE
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1
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2
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6
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7
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9
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10
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| Description of our Debt Securities |
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22
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23
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24
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| Management |
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| Executive Compensation |
35
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44
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46
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47
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47
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47
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48
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ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement filed with the
Securities and Exchange Commission
(the “SEC”), using a “shelf” registration
process. Under this shelf registration process, we may sell
the securities described in this prospectus in one or more
offerings. This prospectus provides you with a general
description of the securities which may be offered. Each time
we offer securities for sale, we will provide a prospectus
supplement that contains information about the specific terms of
that offering. Any prospectus supplement may also add or update
information contained in this prospectus. You should read both
this prospectus and any prospectus supplement together with
additional information described below under
“Where You Can Find More
Information” and
“Incorporation of Certain
Information by Reference.”
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE A SALE OF SECURITIES UNLESS IT IS ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
You should rely only on the information contained or incorporated
by reference in this prospectus, and in any prospectus
supplement. We have not authorized any other person to provide
you with different information. If anyone provides you with
different or inconsistent information, you should not rely on
it. We are not making offers to sell or solicitations to buy
the securities described in this prospectus in any jurisdiction in
which an offer or solicitation is not authorized, or in which the
person making that offer or solicitation is not qualified to do so
or to anyone to whom it is unlawful to make an offer or
solicitation. You should not assume that the information in
this prospectus or any prospectus supplement, as well as the
information we file or previously filed with the SEC that we
incorporate by reference in this prospectus or any prospectus
supplement, is accurate as of any date other than its respective
date. Our business, financial condition, results of operations
and prospects may have changed since those dates.
This prospectus contains summaries of certain provisions contained
in some of the documents described herein, but reference is made to
the actual documents for complete information. All of the summaries
are qualified in their entirety by the actual documents. Copies of
some of the documents referred to herein have been filed, will be
filed or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described below under the
heading “Where You Can Find More
Information.”
COMPANY OVERVIEW
This summary highlights information contained elsewhere in this
prospectus and does not contain all of the information you should
consider before investing in our common stock. You should read this
entire prospectus carefully, including the section entitled
“Risk Factors” and our financial statements and the
related notes thereto included elsewhere in this prospectus, before
making an investment decision.
Super
League Gaming, Inc. (“Super League,” the
“Company,”
“we” or
“our”) is a global
leader in the mission to bring live and digital esports
entertainment and experiences directly to everyday competitive
gamers around the world. Utilizing our proprietary technology
platform, Super League operates physical and digital experiences in
partnership with publishers of top-tier game titles and
owners/operators of a distributed footprint of venues, a network of
digital social and viewing channels, and an
association/organization of city-based amateur gaming clubs and
teams. In addition to providing premium experiences by operating
city-vs-city amateur esports leagues and producing thousands of
social gaming experiences across North America and our
ever-expanding international footprint, the Super League
Network features multiple forms of content celebrating the
love of play via social media, live streaming and video-on-demand,
along with continuous gameplay and leaderboards. Inside our network
is Framerate, a large independent social video esports network
powered by user-generated highlight reels, and our exclusive
proprietary platform Minehut, providing a social and gameplay
forum for the avid Minecraft community. Through our partnerships
with high-profile venue owners such as Wanda Theatres in China, and
Topgolf and Cinemark Theatres in North America, along with
ggCircuit, an esports services company that provides
gaming center management software solutions for online play
at home, along with access to a global network of gaming
centers, Super League is committed to supporting the
development of local, grassroots player communities, while
providing a global, scalable infrastructure for esports competition
and engagement. We address not only a wide range of gamers across
game titles, ages and skill levels, but also a wide range of
content-capture beyond just gameplay. This positions Super League
as more than a tournament operator; we are a lifestyle and media
company focused on capturing, generating, aggregating and
distributing content across the genre of all things
esports.
Executive Summary
We
believe Super League is on the leading edge of the rapidly growing
competitive video gaming industry, which has become an established
and vital part of the entertainment landscape. According to
Reuters Plus, 2018, gaming is now the world’s favorite form
of entertainment, as the gaming industry generated more revenue in
2017 than television, movies and music. At the professional
level, thousands of professional players on hundreds of teams
competing in dozens of high stakes competitions that
draw significant audiences, both in person and online. In addition,
the value of brand sponsorships, media rights and prize money
continue to rise, as are professional team valuations and the
purchase price for securing franchises in professional
leagues.
With
NewZoo reporting 2.6 billion gamers globally, we believe there is a
larger opportunity for the world of mainstream competitive players
who want their own esports experience. These amateur gamers are
players who enjoy the competition, the social interaction and
community, and the entertainment value associated with playing and
watching others play. According to Nielsen Esports Playbook, 2017,
competitive amateur gamers take part in over eight hours of
gameplay and watch up to nine hours of esports-related content each
week. We believe this is an under-served market that seeks their
own opportunities for team-based play on real playing
fields.
Super
League is a critically important component in providing the
infrastructure for mainstream esports that is synergistic and
accretive to the greater esports ecosystem. Over the past five
years, we believe we have become the preeminent brand for amateur
esports by providing a proprietary software platform that allows
our gamers to compete, socialize and spectate premium amateur
esports gameplay and entertainment, both physically and digitally.
We celebrate everyday competitive gamers and provide a
differentiated way for players and spectators to unite around their
city clubs and hometown venues for a better, more inclusive social
experience not previously available. Not only do we offer premium
amateur esports leagues and community, but we are able to leverage
our derivative gameplay content to become a comprehensive amateur
esports content network. As we expand our city clubs, partner venue
network, breadth of game titles and reach into the home, we bring
new players into our customer funnel to drive audience growth, and
ultimately, consumer and content monetization.
In
fiscal year 2019, management focused on the acceleration of
development of the building blocks in place for our two primary
revenue sources: (1) sponsorships and advertising revenues, the
monetization of our content, and (2) direct to consumer revenues,
or gamer monetization. Further, as detailed below, we further
de-risked the business, achieving game title fluidity, venue
diversity, and an enhanced and more scalable
technology platform. We also established a premium advertising
model for future monetization and expanded our sales team to
facilitate delivery, launched our first effort at meaningful
consumer monetization, and expanded globally, both digitally and
physically.
We
offer a variety of ways gamers can engage digitally across our
Super League content network and our network of hometown venues
serving as the playing fields for recreational esports. In the
first quarter of 2020, we expanded our city-based gaming club and
league system from 16 to 24 cities across North America, including
Canada and Mexico, and we expect further expansion beyond North
America in the future.
The
fundamental drivers of our business model and monetization strategy
are creating deep community engagement through our highly
contextualized, local experiences that, when coupled with the
critical mass of our large digital audiences, provides the depth
and volume for premium content and offer monetization
differentiated from a more traditional, commoditized advertising
model. The combination of our physical venue network and digital
programming channels, with Super League’s technology platform
at the hub, creates the opportunity for not just a share of the
player’s wallet, but also the advertiser’s wallet. We
do this by offering brand sponsors and advertisers a premium
marketing channel to reach elusive Generation Z and Millennial
gamers and offering players ways to access exclusive tournaments,
rewards and programming through our Super League consumer
subscription offer and other consumer offerings.
Sponsorships and advertising revenues, the monetization of our
content. Traditionally, we have created our own
gameplay experiences to generate audience and content and attracted
brand and sponsorship dollars to those offers. This continues to be
a core source of revenue.
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Our
potential partners also include game publishers, retailers and
brands across various categories who engage us to develop their own
customized branded gameplay experiences, powered by our flexible
gaming and content technology platform for their own
customers.
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Additionally,
we can monetize our content commercially through advertising
revenues on our own digital channels and by selling our content to
third-parties.
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Direct to Consumer - Gamer monetization. The second way
we monetize content is through direct-to-consumer pay walls for
access to premium digital and physical experiences and viewing
content. We have historically offered a freemium model where
consumers can join Super League for free-to-play, casual
competitive experiences and charged for access to premium gameplay
experiences. We intend to expand our breadth of consumer digital
offers in 2020.
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To
date, our revenues have been weighted towards experience
monetization, however we expect to see content monetization begin
to emerge as a revenue opportunity.
Key Performance Indicators. We focus on five key
performance indicators (“KPIs”), as outlined below, to
assess our progress and drive revenue growth. The number of game
titles and number of retail partner venues drive audience,
introducing more players and spectators to Super League’s
gaming and content platform. Growth in physical and digital
experiences across a wider portfolio can increase the number of
registered users, including subscribers, and number of gameplay
hours which will have a significant impact on our content library.
This focus on audience and content generation ultimately impacts
our viewership, which has an amplification effect on potential
revenue streams and customer acquisition.
We
significantly outperformed the KPI goals we established at the
beginning of 2019, setting us up for fiscal 2020 with a focus on
accelerated revenue growth. During 2019, we achieved the following
KPI related results:
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Game titles: We ended fiscal 2018 with four game titles in
our portfolio and as of the end of fiscal 2019, had over 20 game
titles, including the addition of Capcom's Street Fighter® V:
Arcade Edition during the second quarter of 2019 and Tencent
America's Player Unknown's Battlegrounds Mobile
(“PUBG
Mobile”), during the third quarter of 2019. The
increase in game titles reflects the flexibility of our technology
platform and our platform’s ability to rapidly ingest game
titles across a wide spectrum of game genres. Further, our digital
content network, which features user-generated content submitted to
us from any gamer, anywhere, has a limitless library of featured
titles. The diversity of our portfolio differentiates us as a truly
game-agnostic platform speaking to a wide spectrum of players and
viewers.
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Retail Partner Venues: We are just seeding the build
out and monetization of our retail footprint, driven by our
national-level announcements with Topgolf and ggCircuit, as well as
our agreement with Wanda for future events in Wanda cinemas in
China. The foregoing allows us to expand internationally once
retail establishments open up following the COVID-19 pandemic and
will provide us with access to hundreds of physical venue
locations. In the meantime, we are actively engaging with these
gamers online from home. We ended fiscal 2018 with 46 active venues
and grew to over 500 total active venues as of December 31, 2019.
Our domestic and global footprint establishes us as a leader in
aggregating local esports fields for everyday competitive
gamers.
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Registered Users: We ended fiscal 2018 with approximately
300,000 registered users. During the year ended December 31, 2019,
we increased our registered users by approximately 227%, to 980,000
registered users. This increase in registered users represents more
gamers from whom we can gather user generated content and convert
into subscribers and/or upsell into other paid offers.
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Gameplay Hours: As of December 31, 2019, including our
live gaming experiences and our expanding digital gameplay
channels, we generated approximately 15.0 million hours of gameplay
experiences, as compared to approximately 1.8 million full year
2018 gameplay hours. We are just beginning to explore the ways we
can repackage and distribute this significant derivative content
library for further monetization.
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●
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Viewership: Proving that we can attract viewers to our
platform and leverage the audiences our brand partners provide, we
generated 120.0 million views during fiscal year 2019, compared to
our full-year 2018 views of 925,000, leveraging our own programming
and experiences and the significant expansion of our audience reach
in connection with the acquisition of Framerate. The increase in
views resulted in the exponential growth of our monetizable
advertising inventory. Additionally, our increase in views was
achieved largely via user generated content submitted to us by our
community, significantly limiting the production cost and overall
investment required to achieve the growth in viewership in
2019.
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Risk Factors
Our business is subject to substantial risk. Please carefully
consider the section titled “Risk
Factors” on page 6 of
this prospectus for a discussion of the factors you should
carefully consider before deciding to purchase securities that may
be offered by this prospectus.
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. You should be able to bear a complete loss of your
investment.
Selected Risks Related to our Business
Our
business is subject to numerous risks, including risks that may
prevent us from achieving our business objectives or may adversely
affect our business, financial condition, results of operations,
cash flows and prospects, that you should consider before making an
investment decision. Some of the more significant risks and
uncertainties relating to an investment in our company are listed
below. These risks are more fully described in the
“Risk Factors”
section of this prospectus immediately following this prospectus
summary:
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overall strength
and stability of general economic conditions, and of the esports
industry, both in the United States and globally;
●
changes in
consumer demand for, and acceptance of, the game titles that we
offer for our tournaments and activities, as well as online
multiplayer competitive amateur gaming in general;
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changes in the
competitive environment, including new entrants in the market for
online amateur competitive gaming, tournaments and competitions
that compete with our own;
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competition
from new entrants in the amateur esports space, and if we are
unable to compete effectively, we may not be able to achieve or
maintain significant market penetration or improve our results of
operations;
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our ability
to generate consistent revenue;
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our ability to
effectively execute our business plan;
●
changes in
the licensing fees charged by the publishers of the most popular
online video games;
●
changes in laws or
regulations governing our business and operations;
●
our ability to
maintain adequate liquidity and financing sources and an
appropriate level of debt on terms favorable to us;
●
our ability to
effectively market our amateur city leagues, tournaments and
competitions;
●
our ability to
obtain and protect our existing intellectual property protections,
including patents, trademarks and copyrights; and
●
other risks
described from time to time in periodic and current reports that we
file with the Securities and Exchange Commission (the
“SEC
”).
Additional risks and uncertainties not presently known to us or
that we currently deem immaterial may also impair our business
operations. You should be able to bear a complete loss of your
investment.
Implications of Being an Emerging Growth Company
As a
company with less than $1.07 billion in revenue during our most
recently completed fiscal year, we qualify as an “emerging
growth company” as defined in the Jumpstart Our Business
Startups Act of 2012 (the “JOBS Act”). An emerging growth
company may take advantage of specified reduced reporting and other
burdens that are otherwise applicable generally to public
companies. These provisions include:
●
A requirement to
have only two years of audited financial statements and only two
years of related Management’s Discussion and Analysis of
Financial Condition and Results of Operations;
●
An exemption from
the auditor attestation requirement on the effectiveness of our
internal control over financial reporting under Section 404(b) of
the Sarbanes-Oxley Act of 2002, as amended (the “Sarbanes-Oxley
Act”);
●
An extended
transition period for complying with new or revised accounting
standards;
●
Reduced disclosure
about our executive compensation arrangements; and
●
No non-binding
advisory votes on executive compensation or golden parachute
arrangements.
We may take advantage of these provisions from the JOBS Act until
the end of the fiscal year in which the fifth anniversary of our
initial public offering, or such earlier time when we no longer
qualify as an emerging growth company. We would cease to be an
emerging growth company on the earlier of (i) the last day of the
fiscal year (a) in which we have more than $1.07 billion in annual
revenue or (b) in which we have more than $700 million in market
value of our capital stock held by non-affiliates, or (ii) the date
on which we issue more than $1.0 billion of non-convertible debt
over a three-year period. We may choose to take advantage of some
but not all of these reduced burdens under the JOBS Act. We have
irrevocably taken advantage of other reduced reporting requirements
in this prospectus, and we may choose to do so in future filings.
To the extent we do, the information that we provide stockholders
may be different than you might get from other public companies in
which you hold equity interests.
Corporate Information
Super
League Gaming, Inc. was incorporated under the laws of the State of
Delaware on October 1, 2014 as Nth Games, Inc. On July 13, 2015, we
changed our corporate name from Nth Games, Inc. to Super League
Gaming, Inc. Our principal executive offices are located at 2906
Colorado Avenue, Santa Monica, California 90404, and our Company
telephone number is (802) 294-2754,
and our investor relations contact number is (949)
574-3860.
Our
corporate website address is www.superleague.com. Information contained in, or
accessible through, our website is not a part of this prospectus,
and the inclusion of our website address in this prospectus is an
inactive textual reference only.
RISK FACTORS
Investing in our securities involves a high degree of risk. Before
deciding whether to purchase any of our securities, you should
carefully consider the risks and uncertainties described under
“Risk
Factors” in our Annual
Report on Form 10-K for the fiscal year ended
December 31, 2019, any subsequent Quarterly Report on
Form 10-Q and our other filings with the SEC, all of which are
incorporated by reference herein. If any of these risks actually
occur, our business, financial condition and results of operations
could be materially and adversely affected and we may not be able
to achieve our goals, the value of our securities could decline and
you could lose some or all of your investment. Additional risks not
presently known to us or that we currently deem immaterial may also
impair our business operations. If any of these risks occur, the
trading price of our common stock could decline materially and you
could lose all or part of your investment.
CAUTIONARY NOTES REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference herein
contain forward-looking statements that involve substantial risks
and uncertainties. All statements, other than statements of
historical facts, contained in this
prospectus and the documents incorporated by reference herein,
including statements regarding our strategy, future operations, future
financial position, future revenue, projected costs, prospects,
plans, objectives of management and expected market growth, are
forward-looking statements. These statements involve known and
unknown risks, uncertainties and other important factors that may
cause our actual results, performance or achievements to be
materially different from any future results, performance or
achievements expressed or implied by the forward-looking
statements.
The words “anticipate,” “believe,”
“estimate,” “expect,” “intend,”
“may,” “plan,” “predict,”
“project,” “target,”
“potential,” “will,” “would,”
“could,” “should,” “continue,”
and similar expressions are intended to identify forward-looking
statements, although not all forward-looking statements contain
these identifying words. These forward-looking statements include,
among other things, statements about:
●
overall
strength and stability of general economic conditions and of the
electronic video game sports (“esports”) industry in the United
States and globally;
●
changes
in consumer demand for, and acceptance of, our services and the
games that we license for our tournaments and other experiences, as
well as online gaming in general;
●
changes
in the competitive environment, including adoption of technologies,
services and products that compete with our own;
●
our
ability to generate consistent revenue;
●
our
ability to effectively execute our business plan;
●
changes
in the price of streaming services, licensing fees, and network
infrastructure, hosting and maintenance;
●
changes
in laws or regulations governing our business and
operations;
●
our
ability to maintain adequate liquidity and financing sources and an
appropriate level of debt on terms favorable to us;
●
our
ability to effectively market our services;
●
costs
and risks associated with litigation;
●
our
ability to obtain and protect our existing intellectual property
protections, including patents, trademarks and
copyrights;
●
our
ability to obtain and enter into new licensing agreements with game
publishers and owners;
●
changes
in accounting principles, or their application or interpretation,
and our ability to make estimates and the assumptions underlying
the estimates, which could have an effect on earnings;
●
interest
rates and the credit markets; and
●
other
risks described from time to time in periodic and current reports
that we file with the SEC.
This
list of factors that may affect future performance and the accuracy
of forward-looking statements is illustrative, but not exhaustive.
New risk factors and uncertainties not described here or elsewhere
in this prospectus, including in the sections entitled “Risk
Factors,” may emerge from time to time. Moreover, because we
operate in a competitive and rapidly changing environment, it is
not possible for our management to predict all risk factors and
uncertainties, nor can we assess the impact of all factors on our
business or the extent to which any factor, or combination of
factors, may cause actual results to differ materially from those
contained in any forward-looking statements we may make. The
forward-looking statements are also subject to the risks and
uncertainties specific to our Company, including but not limited to
the fact that we have no operating history as a public company. In
light of these risks, uncertainties and assumptions, the future
events and trends discussed in this prospectus may not occur, and
actual results could differ materially and adversely from those
anticipated or implied in the forward-looking
statements.
You
should not rely upon forward-looking statements as predictions of
future events. Although we believe the expectations reflected in
the forward-looking statements are reasonable, we cannot guarantee
that the future results, levels of activity, performance and events
and circumstances reflected in the forward-looking statements will
be achieved or occur. Moreover, neither we nor any other person
assume responsibility for the accuracy and completeness of the
forward-looking statements. Except as
required by applicable law, including the securities laws of the
United States, we do not intend to update any of the
forward-looking statements to conform these statements to actual
results.
You
should read this prospectus, the documents referenced herein and
those documents filed as exhibits to the registration statement, of
which this prospectus is a part, with the understanding that our
actual future results, levels of activity, performance and
achievements may be materially different from what we
expect.
USE OF PROCEEDS
Unless otherwise provided in the applicable prospectus supplement,
we intend to use the net proceeds from the sale of
the securities under this prospectus primarily for working capital and general
corporate purposes, including sales and marketing
activities, product development and capital expenditures. We may
also use a portion of the net proceeds for the acquisition of, or
investment in, technologies, solutions or businesses. However, we
have no present commitments or agreements to enter into any
acquisitions or investments. Pending these uses, we may invest the
net proceeds from this offering in short-term, investment-grade
interest-bearing securities such as money market accounts,
certificates of deposit, commercial paper and guaranteed
obligations of the U.S. government. We cannot predict whether the
proceeds invested will yield a favorable return. Our management
will have broad discretion in the use of the net proceeds from this
offering, and investors will be relying on the judgment of our
management regarding the application of the net
proceeds
DESCRIPTION OF OUR
CAPITAL STOCK
General
Our Amended and Restated certificate of incorporation (our
“Charter”) authorizes the issuance of up to
100,000,000 shares of common stock, par value $0.001 per share, and
10,000,000 shares of preferred stock, par value $0.001 per
share.
Summary of Securities
The
following description summarizes certain terms of our capital
stock, including the number of shares of common stock that are
authorized for issuance under our Charter, and the authorization of
shares of preferred stock. Because the foregoing is only a summary,
it does not contain all the information that may be important to
you. For a complete description of the matters set forth in this
section you should refer to our Charter and Amended and Restated
Bylaws (our “Bylaws”), which are included as
exhibits to this prospectus,
and to the applicable provisions of Delaware law.
Common Stock
Our Charter currently authorizes 100.0 million shares of common
stock for issuance. As of May 11, 2020, there were
8,573,922 shares of our common stock issued and outstanding, which
were held by approximately 160 stockholders of record,
approximately 2,516,152 shares of common stock issuable upon
exercise of warrants to purchase our common stock, 985,596 shares
of common stock issuable upon exercise of options held, 286,671
shares of our common stock issuable upon the vesting of restricted
stock units held and 560,234 shares of common stock authorized and
available for issuance pursuant to our 2014 Plan. Each holder of
common stock is entitled to one vote for each share of common stock
held on all matters submitted to a vote of the stockholders,
including the election of directors. Neither our Charter or Bylaws
do not and will not provide for cumulative voting
rights.
Holders of our common stock have no preemptive, conversion or
subscription rights, and there are no redemption or sinking fund
provisions applicable to the common stock. The rights, preferences
and privileges of the holders of common stock are subject to, and
may be adversely affected by, the rights of the holders of shares
of any series of our preferred stock that we may designate and
issue in the future.
Preferred Stock
Under our Amended and Restated Charter, our Board of Directors has
the authority, without further action by our stockholders, to issue
up to 10.0 million shares of preferred stock in one or more series
and to fix the voting powers, designations, preferences and the
relative participating, optional or other special rights and
qualifications, limitations and restrictions of each series,
including, without limitation, dividend rights, dividend rates,
conversion rights, voting rights, terms of redemption, liquidation
preferences and the number of shares constituting any
series.
As of May 11, 2020, no shares of our authorized preferred stock are
outstanding. Because our Board of Directors has the power to
establish the preferences and rights of the shares of any
additional series of preferred stock, it may afford holders of any
preferred stock preferences, powers and rights, including voting
and dividend rights, senior to the rights of holders of our common
stock, which could adversely affect the holders of the common stock
and could delay, discourage or prevent a takeover of us even if a
change of control of our company would be beneficial to the
interests of our stockholders.
Prior
to the issuance of shares of each series, our Board of Directors is
required under Delaware Law and our Charter to adopt resolutions
and file a certificate of designation with the Secretary of State
of the State of Delaware. The certificate of designation fixes
for each class or series the designations, powers, preferences,
rights, qualifications, limitations and restrictions, including
dividend rights, conversion rights, redemption privileges and
liquidation preferences.
All
shares of preferred stock offered by this prospectus will, when
issued, be fully paid and nonassessable and will not have any
preemptive or similar rights. Our Board of Directors may authorize
the issuance of preferred stock with voting or conversion rights
that could adversely affect the voting power or other rights of the
holders of the common stock. The issuance of preferred stock, while
providing flexibility in connection with possible acquisitions and
other corporate purposes, could, among other things, have the
effect of delaying, deferring or preventing a change in our control
and may adversely affect the market price of the common stock and
the voting and other rights of the holders of common
stock.
We
will describe in a prospectus supplement relating to the class or
series of preferred stock being offered the following
terms:
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the
title and stated value of the preferred stock;
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the
number of shares of the preferred stock offered, the liquidation
preference per share and the offering price of the preferred
stock;
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the
dividend rate(s), period(s) or payment date(s) or method(s) of
calculation applicable to the preferred stock;
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whether
dividends are cumulative or non-cumulative and, if cumulative, the
date from which dividends on the preferred stock will
accumulate;
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the
procedures for any auction and remarketing, if any, for the
preferred stock;
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the
provisions for a sinking fund, if any, for the preferred
stock;
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the
provision for redemption, if applicable, of the preferred
stock;
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any
listing of the preferred stock on any securities
exchange;
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the
terms and conditions, if applicable, upon which the preferred stock
will be convertible into common stock, including the conversion
price or manner of calculation and conversion
period;
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voting
rights, if any, of the preferred stock;
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●
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a
discussion of any material or special U.S. federal income tax
considerations applicable to the preferred
stock;
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the
relative ranking and preferences of the preferred stock as to
dividend rights and rights upon the liquidation, dissolution or
winding up of our affairs;
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any
limitations on issuance of any class or series of preferred stock
ranking senior to or on a parity with the class or series of
preferred stock as to dividend rights and rights upon liquidation,
dissolution or winding up of our
affairs; and
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any
other specific terms, preferences, rights, limitations or
restrictions of the preferred stock.
|
Unless
we specify otherwise in the applicable prospectus supplement, the
preferred stock will rank, relating to dividends and upon our
liquidation, dissolution or winding up:
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senior
to all classes or series of our common stock and to all of our
equity securities ranking junior to the preferred
stock;
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on
a parity with all of our equity securities the terms of which
specifically provide that the equity securities rank on a parity
with the preferred stock; and
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junior
to all of our equity securities the terms of which specifically
provide that the equity securities rank senior to the preferred
stock.
|
The
term equity securities does not include convertible debt
securities.
Anti-Takeover Matters
Charter and Bylaw Provisions
The
provisions of Delaware law, our Charter, and our Bylaws include a
number of provisions that may have the effect of delaying,
deferring, or discouraging another person from acquiring control of
our company and discouraging takeover bids. These provisions may
also have the effect of encouraging persons considering unsolicited
tender offers or other unilateral takeover proposals to negotiate
with our Board rather than pursue non-negotiated takeover attempts.
These provisions include the items described below.
Board Composition and Filling Vacancies
Our
Bylaws provide that any vacancy on our Board may only be filled by
the affirmative vote of a majority of our directors then in office,
even if less than a quorum. Further, any directorship vacancy
resulting from an increase in the size of our Board of Directors,
may be filled by election of the Board of Directors, but only for a
term continuing until the next election of directors by our
stockholders.
No Cumulative Voting
The
Delaware General Corporation Law (the “DGCL”) provides that stockholders
are not entitled to the right to cumulate votes in the election of
directors unless certificate of incorporation of the Company in
which they own stock provides otherwise. Neither our Charter nor
our Bylaws provide that our stockholders shall be entitled to
cumulative voting.
Delaware Anti-Takeover Statute
We are
subject to the provisions of Section 203 of the DGCL. In general,
Section 203 prohibits persons deemed
to be “interested stockholders” from engaging in a
“business combination” with a publicly held Delaware
corporation for three years following the date these persons become
interested stockholders unless the business combination is, or the
transaction in which the person became an interested stockholder
was, approved in a prescribed manner or another prescribed
exception applies. Generally, an “interested
stockholder” is a person who, together with affiliates and
associates, owns, or within three years prior to the determination
of interested stockholder status did own, 15% or more of a
corporation’s voting stock. Generally, a “business
combination” includes a merger, asset or stock sale, or other
transaction resulting in a financial benefit to the interested
stockholder. The existence of this provision may have an
anti-takeover effect with respect to transactions not approved in
advance by the Board. A Delaware corporation may “opt
out” of these provisions with an express provision in its
original certificate of incorporation or an express provision in
its certificate of incorporation or bylaws resulting from an
amendment approved by at least a majority of the outstanding voting
shares. We have not opted out of these provisions. As a result,
mergers or other takeover or change in control attempts of us may
be discouraged or prevented.
Choice of Forum
Our
Bylaws provide that Delaware will be the exclusive forum for any
derivative action or proceeding brought on our behalf; any action
asserting a breach of fiduciary duty; any action asserting a claim
against us arising pursuant to the DGCL, our Charter or our Bylaws;
or any action asserting a claim against us that is governed by the
internal affairs doctrine. The enforceability of similar choice of
forum provisions in other companies’ certificates of
incorporation has been challenged in legal proceedings, and it is
possible that a court could find these types of provisions to be
inapplicable or unenforceable.
Because the applicability of the exclusive forum provision is
limited to the extent permitted by law, we believe that the
exclusive forum provision would not apply to suits brought to
enforce any duty or liability created by the Securities Exchange
Act of 1934, as amended (the “Exchange
Act”), the
Securities Act of 1933, as amended (the “Securities
Act”), any other
claim for which the federal courts have exclusive jurisdiction
or concurrent
jurisdiction over all suits
brought to enforce any duty or liability created by the Securities
Act. We note that there is uncertainty as to whether a court would
enforce the provision and that investors cannot waive compliance
with the federal securities laws and the rules and regulations
thereunder. Although we believe this provision benefits us by
providing increased consistency in the application of Delaware law
in the types of lawsuits to which it applies, the provision may
have the effect of discouraging lawsuits against our directors and
officers.
Listing
Our common stock is listed on the Nasdaq Capital Market under the
symbol “SLGG.”
Transfer Agent and Registrar
Our transfer agent is Issuer Direct whose address is 1981 E. Murray Holladay Rd
#100, Salt Lake City, Utah 84117 and its telephone number is (801)
272-9294.
DESCRIPTION OF OUR DEBT
SECURITIES
This section describes the general terms and
provisions of debt securities that we may issue from time to time.
We may issue debt securities, in one or more series, as either
senior or subordinated debt or as senior or subordinated
convertible debt. While the terms we have summarized below will
apply generally to any future debt securities we may offer under
this prospectus, the applicable prospectus supplement or free
writing prospectus will describe the specific terms of any debt
securities offered through that prospectus supplement or free
writing prospectus. The terms of any debt securities we offer under
a prospectus supplement or free writing prospectus may differ from
the terms we describe below. Unless the context requires otherwise,
whenever we refer to the “indentures,” we also are
referring to any supplemental indentures that specify the terms of
a particular series of debt
securities.
The
following description, together with the additional information we
include in any applicable prospectus supplement or free writing
prospectus, summarizes certain general terms and provisions of the
debt securities that we may offer under this prospectus. When we
offer to sell a particular series of debt securities, we will
describe the specific terms of the series in a supplement to this
prospectus. We will also indicate in the supplement to what extent
the general terms and provisions described in this prospectus apply
to a particular series of debt securities. To the extent the
information contained in the prospectus supplement differs from
this summary description, you should rely on the information in the
prospectus supplement.
We
may issue debt securities either separately, or together with, or
upon the conversion or exercise of or in exchange for, other
securities described in this prospectus. Debt securities may be our
senior, senior subordinated or subordinated obligations and, unless
otherwise specified in a supplement to this prospectus, the debt
securities will be our direct, unsecured obligations and may be
issued in one or more series.
The
debt securities will be issued under an indenture between us and a
trustee named in the prospectus supplement. We have summarized
select portions of the indenture below. The summary is not
complete. The form of the indenture has been filed as an exhibit to
the registration statement and you should read the indenture for
provisions that may be important to you. In the summary below, we
have included references to the section numbers of the indenture.
Capitalized terms used in the summary and not defined herein have
the meanings specified in the indenture.
General
We will describe in
the applicable prospectus supplement or free writing prospectus the
terms of the series of debt securities being offered,
including:
●
the
title;
●
the principal
amount being offered, and if a series, the total amount authorized
and the total amount outstanding;
●
any limit on the
amount that may be issued;
●
whether or not we
will issue the series of debt securities in global form, and, if
so, the terms and who the depository will be;
●
the maturity
date;
●
whether and under
what circumstances, if any, we will pay additional amounts on any
debt securities held by a person who is not a United States person
for tax purposes, and whether we can redeem the debt securities if
we have to pay such additional amounts;
●
the annual interest
rate, which may be fixed or variable, or the method for determining
the rate and the date interest will begin to accrue, the dates
interest will be payable and the regular record dates for interest
payment dates or the method for determining such
dates;
●
whether or not the
debt securities will be secured or unsecured, and the terms of any
secured debt;
●
the terms of the
subordination of any series of subordinated
debt;
●
the place where
payments will be payable;
●
restrictions on
transfer, sale or other assignment, if any;
●
our right, if any,
to defer payment of interest and the maximum length of any such
deferral period;
●
the date, if any,
after which, the conditions upon which, and the price at which, we
may, at our option, redeem the series of debt securities pursuant
to any optional or provisional redemption provisions and the terms
of those redemption provisions;
●
the date, if any,
on which, and the price at which we are obligated, pursuant to any
mandatory sinking fund or analogous fund provisions or otherwise,
to redeem, or at the holder’s option, to purchase, the series
of debt securities and the currency or currency unit in which the
debt securities are payable;
●
whether the
indenture will restrict our ability or the ability of our
subsidiaries to:
●
incur additional
indebtedness;
●
issue additional
securities;
●
create
liens;
●
pay dividends or
make distributions in respect of our capital stock or the capital
stock of our subsidiaries;
●
redeem capital
stock;
●
place restrictions
on our subsidiaries’ ability to pay dividends, make
distributions or transfer assets;
●
make investments or
other restricted payments;
●
sell or otherwise
dispose of assets;
●
enter into
sale-leaseback transactions;
●
engage in
transactions with stockholders or affiliates;
●
issue or sell stock
of our subsidiaries; or
●
effect a
consolidation or merger;
●
whether the
indenture will require us to maintain any interest coverage, fixed
charge, cash flow-based, asset-based or other financial
ratios;
●
a discussion of
certain material or special United States federal income tax
considerations applicable to the debt
securities;
●
information
describing any book-entry features;
●
provisions for a
sinking fund purchase or other analogous fund, if
any;
●
the applicability
of the provisions in the indenture on
discharge;
●
whether the debt
securities are to be offered at a price such that they will be
deemed to be offered at an “original issue discount” as
defined in paragraph (a) of Section 1273 of the Internal Revenue
Code of 1986, as amended;
●
the denominations
in which we will issue the series of debt securities, if other than
denominations of $1,000 and any integral multiple
thereof;
●
the currency of
payment of debt securities if other than U.S. dollars and the
manner of determining the equivalent amount in U.S. dollars;
and
●
any other specific
terms, preferences, rights or limitations of, or restrictions on,
the debt securities, including any additional events of default or
covenants provided with respect to the debt securities, and any
terms that may be required by us or advisable under applicable laws
or regulations or advisable in connection with the marketing of the
debt securities.
Conversion
or Exchange Rights
We will set forth
in the applicable prospectus supplement or free writing prospectus
the terms on which a series of debt securities may be convertible
into or exchangeable for our common stock, our preferred stock or
other securities (including securities of a third-party). We will
include provisions as to whether conversion or exchange is
mandatory, at the option of the holder or at our option. We may
include provisions pursuant to which the number of shares of our
common stock, our preferred stock or other securities (including
securities of a third-party) that the holders of the series of debt
securities receive would be subject to
adjustment.
Consolidation,
Merger or Sale
Unless we provide
otherwise in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, the
indentures will not contain any covenant that restricts our ability
to merge or consolidate, or sell, convey, transfer or otherwise
dispose of all or substantially all of our assets. However, any
successor to or acquirer of such assets must assume all of our
obligations under the indentures or the debt securities, as
appropriate. If the debt securities are convertible into or
exchangeable for other securities of ours or securities of other
entities, the person with whom we consolidate or merge or to whom
we sell all of our property must make provisions for the conversion
of the debt securities into securities that the holders of the debt
securities would have received if they had converted the debt
securities before the consolidation, merger or
sale.
Events
of Default Under the Indenture
Unless we provide
otherwise in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, the following
are events of default under the indentures with respect to any
series of debt securities that we may issue:
●
if we fail to pay
interest when due and payable and our failure continues for 90 days
and the time for payment has not been extended;
●
if we fail to pay
the principal, premium or sinking fund payment, if any, when due
and payable at maturity, upon redemption or repurchase or
otherwise, and the time for payment has not been
extended;
●
if we fail to
observe or perform any other covenant contained in the debt
securities or the indentures, other than a covenant specifically
relating to another series of debt securities, and our failure
continues for 90 days after we receive notice from the trustee or
holders of at least 25% in aggregate principal amount of the
outstanding debt securities of the applicable series;
and
●
if specified events
of bankruptcy, insolvency or reorganization
occur.
We will describe in
each applicable prospectus supplement or free writing prospectus
any additional events of default relating to the relevant series of
debt securities.
If an event of
default with respect to debt securities of any series occurs and is
continuing, other than an event of default specified in the last
bullet point above, the trustee or the holders of at least 25% in
aggregate principal amount of the outstanding debt securities of
that series, by notice to us in writing, and to the trustee if
notice is given by such holders, may declare the unpaid principal,
premium, if any, and accrued interest, if any, due and payable
immediately. If an event of default specified in the last bullet
point above occurs with respect to us, the unpaid principal,
premium, if any, and accrued interest, if any, of each issue of
debt securities then outstanding shall be due and payable without
any notice or other action on the part of the trustee or any
holder.
The holders of a
majority in principal amount of the outstanding debt securities of
an affected series may waive any default or event of default with
respect to the series and its consequences, except defaults or
events of default regarding payment of principal, premium, if any,
or interest, unless we have cured the default or event of default
in accordance with the indenture. Any waiver shall cure the default
or event of default.
Subject to the
terms of the indentures, if an event of default under an indenture
shall occur and be continuing, the trustee will be under no
obligation to exercise any of its rights or powers under such
indenture at the request or direction of any of the holders of the
applicable series of debt securities, unless such holders have
offered the trustee reasonable indemnity or security satisfactory
to it against any loss, liability or expense. The holders of a
majority in principal amount of the outstanding debt securities of
any series will have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the
trustee, or exercising any trust or power conferred on the trustee,
with respect to the debt securities of that series, provided
that:
●
the direction so
given by the holder is not in conflict with any law or the
applicable indenture; and
●
subject to its
duties under the Trust Indenture Act of 1939, as amended (the
“Trust Indenture
Act”), the trustee need not take any action that might
involve it in personal liability or might be unduly prejudicial to
the holders not involved in the proceeding.
A
holder of the debt securities of any series will have the right to
institute a proceeding under the indentures or to appoint a
receiver or trustee, or to seek other remedies
if:
●
the holder has
given written notice to the trustee of a continuing event of
default with respect to that series;
●
the holders of at
least 25% in aggregate principal amount of the outstanding debt
securities of that series have made written request, and such
holders have offered reasonable indemnity to the trustee or
security satisfactory to it against any loss, liability or expense
or to be incurred in compliance with instituting the proceeding as
trustee; and
●
the trustee does
not institute the proceeding, and does not receive from the holders
of a majority in aggregate principal amount of the outstanding debt
securities of that series other conflicting directions within 90
days after the notice, request and offer.
These limitations
do not apply to a suit instituted by a holder of debt securities if
we default in the payment of the principal, premium, if any, or
interest on, the debt securities, or other defaults that may be
specified in the applicable prospectus supplement or free writing
prospectus.
We will
periodically file statements with the trustee regarding our
compliance with specified covenants in the
indentures.
Modification
of Indenture; Waiver
Subject to the
terms of the indenture for any series of debt securities that we
may issue, we and the trustee may change an indenture without the
consent of any holders with respect to the following specific
matters:
●
to fix any
ambiguity, defect or inconsistency in the
indenture;
●
to comply with the
provisions described above under “Description of Our Debt
Securities—Consolidation, Merger or Sale
;”
●
to comply with any
requirements of the SEC in connection with the qualification of any
indenture under the Trust Indenture Act;
●
to add to, delete
from or revise the conditions, limitations, and restrictions on the
authorized amount, terms, or purposes of issue, authentication and
delivery of debt securities, as set forth in the
indenture;
●
to provide for the
issuance of and establish the form and terms and conditions of the
debt securities of any series as provided under “Description of Our Debt
Securities—General ,” to establish the form of
any certifications required to be furnished pursuant to the terms
of the indenture or any series of debt securities, or to add to the
rights of the holders of any series of debt
securities;
●
to evidence and
provide for the acceptance of appointment hereunder by a successor
trustee;
●
to provide for
uncertificated debt securities and to make all appropriate changes
for such purpose;
●
to add to our
covenants such new covenants, restrictions, conditions or
provisions for the benefit of the holders, to make the occurrence,
or the occurrence and the continuance, of a default in any such
additional covenants, restrictions, conditions or provisions an
event of default or to surrender any right or power conferred to us
in the indenture; or
●
to change anything
that does not materially adversely affect the interests of any
holder of debt securities of any series.
In addition, under
the indentures, the rights of holders of a series of debt
securities may be changed by us and the trustee with the written
consent of the holders of at least a majority in aggregate
principal amount of the outstanding debt securities of each series
that is affected. However, subject to the terms of the indenture
for any series of debt securities that we may issue or as otherwise
provided in the prospectus supplement or free writing prospectus
applicable to a particular series of debt securities, we and the
trustee may make the following changes only with the consent of
each holder of any outstanding debt securities
affected:
●
extending the
stated maturity of the series of debt
securities;
●
reducing the
principal amount, reducing the rate of or extending the time of
payment of interest, or reducing any premium payable upon the
redemption or repurchase of any debt securities;
or
●
reducing the
percentage of debt securities, the holders of which are required to
consent to any amendment, supplement, modification or
waiver.
Discharge
Each indenture
provides that, subject to the terms of the indenture and any
limitation otherwise provided in the prospectus supplement or free
writing prospectus applicable to a particular series of debt
securities, we can elect to be discharged from our obligations with
respect to one or more series of debt securities, except for
specified obligations, including obligations
to:
●
register the
transfer or exchange of debt securities of the
series;
●
replace stolen,
lost or mutilated debt securities of the
series;
●
maintain paying
agencies;
●
hold monies for
payment in trust;
●
recover excess
money held by the trustee;
●
compensate and
indemnify the trustee; and
●
appoint any
successor trustee.
In order to
exercise our rights to be discharged, we must deposit with the
trustee money or government obligations sufficient to pay all the
principal of, and any premium and interest on, the debt securities
of the series on the dates payments are due.
Form,
Exchange and Transfer
In the event that
we issue debt securities, we will issue such debt securities of
each series only in fully registered form without coupons and,
unless we otherwise specify in the applicable prospectus supplement
or free writing prospectus, in denominations of $1,000 and any
integral multiple thereof. The indentures provide that we may issue
debt securities of a series in temporary or permanent global form
and as book-entry securities that will be deposited with, or on
behalf of, The Depository Trust Company or another depository named
by us and identified in a prospectus supplement or free writing
prospectus with respect to that series.
At the option of
the holder, subject to the terms of the indentures and the
limitations applicable to global securities described in the
applicable prospectus supplement or free writing prospectus, the
holder of the debt securities of any series can exchange the debt
securities for other debt securities of the same series, in any
authorized denomination and of like tenor and aggregate principal
amount.
Subject to the
terms of the indentures and the limitations applicable to global
securities set forth in the applicable prospectus supplement or
free writing prospectus, holders of the debt securities may present
the debt securities for exchange or for registration of transfer,
duly endorsed or with the form of transfer endorsed thereon duly
executed if so required by us or the security registrar, at the
office of the security registrar or at the office of any transfer
agent designated by us for this purpose. Unless otherwise provided
in the debt securities that the holder presents for transfer or
exchange, we will make no service charge for any registration of
transfer or exchange, but we may require payment of any taxes or
other governmental charges.
We will name in the
applicable prospectus supplement or free writing prospectus the
security registrar, and any transfer agent in addition to the
security registrar, that we initially designate for any debt
securities. We may at any time designate additional transfer agents
or rescind the designation of any transfer agent or approve a
change in the office through which any transfer agent acts, except
that we will be required to maintain a transfer agent in each place
of payment for the debt securities of each series. If we elect to
redeem the debt securities of any series, we will not be required
to:
●
issue, register the
transfer of, or exchange any debt securities of that series during
a period beginning at the opening of business 15 days before the
day of mailing of a notice of redemption of any debt securities
that may be selected for redemption and ending at the close of
business on the day of the mailing; or
●
register the
transfer of or exchange any debt securities so selected for
redemption, in whole or in part, except the unredeemed portion of
any debt securities we are redeeming in part.
Information
Concerning the Trustee
The trustee, other
than during the occurrence and continuance of an event of default
under an indenture, undertakes to perform only those duties as are
specifically set forth in the applicable indenture. Upon an event
of default under an indenture, the trustee must use the same degree
of care as a prudent person would exercise or use in the conduct of
his or her own affairs.
Subject to this
provision, the trustee is under no obligation to exercise any of
the powers given it by the indentures at the request of any holder
of debt securities unless it is offered reasonable security and
indemnity against the costs, expenses and liabilities that it might
incur.
Payment
and Paying Agents
Unless we otherwise
indicate in the applicable prospectus supplement or free writing
prospectus, we will make payment of the interest on any debt
securities on any interest payment date to the person in whose name
the debt securities, or one or more predecessor securities, are
registered at the close of business on the regular record date for
the interest.
We will pay
principal of and any premium and interest on the debt securities of
a particular series at the office of the paying agents designated
by us, except that unless we otherwise indicate in the applicable
prospectus supplement or free writing prospectus, we will make
interest payments by check that we will mail to the holder or by
wire transfer to certain holders. Unless we otherwise indicate in
the applicable prospectus supplement or free writing prospectus, we
will designate the corporate trust office of the trustee as our
sole paying agent for payments with respect to debt securities of
each series. We will name in the applicable prospectus supplement
or free writing prospectus any other paying agents that we
initially designate for the debt securities of a particular series.
We will maintain a paying agent in each place of payment for the
debt securities of a particular series.
All money we pay to
a paying agent or the trustee for the payment of the principal of
or any premium or interest on any debt securities that remains
unclaimed at the end of two years after such principal, premium or
interest has become due and payable will be repaid to us, and the
holder of the debt security thereafter may look only to us for
payment thereof.
Governing
Law
The indentures and
the debt securities will be governed by and construed in accordance
with the laws of the State of New York, except to the extent that
the Trust Indenture Act is applicable.
Ranking
of Debt Securities
The subordinated
debt securities will be subordinate and junior in priority of
payment to certain of our other indebtedness to the extent
described in a prospectus supplement or free writing prospectus.
The subordinated indenture does not limit the amount of
subordinated debt securities that we may issue. It also does not
limit us from issuing any other secured or unsecured
debt.
The senior debt
securities will rank equally in right of payment to all our other
senior unsecured debt. The senior indenture does not limit the
amount of senior debt securities that we may issue. It also does
not limit us from issuing any other secured or unsecured
debt.
DESCRIPTION
OF WARRANTS
The following description, together with the additional information
we include in any applicable prospectus supplements or free writing
prospectus, summarizes the material terms and provisions of the
warrants that we may offer under this prospectus. Warrants may be
offered independently or together with common stock or preferred
stock offered by any prospectus supplement or free writing
prospectus, and may be attached to or separate from those
securities. While the terms we have summarized below will generally
apply to any future warrants we may offer under this prospectus, we
will describe the particular terms of any warrants that we may
offer in more detail in the applicable prospectus supplement or
free writing prospectus. The terms of any warrants we offer under a
prospectus supplement or free writing prospectus may differ from
the terms we describe below.
In the event that we issue warrants, we will issue the warrants
under a warrant agreement, which we will enter into with a warrant
agent to be selected by us. Forms of these warrant agreements and
forms of the warrant certificates representing the warrants, and
the complete warrant agreements and forms of warrant certificates
containing the terms of the warrants being offered, will be filed
as exhibits to the registration statement of which this prospectus
is a part or will be incorporated by reference from reports that we
file with the SEC. We use the term “warrant agreement”
to refer to any of these warrant agreements. We use the term
“warrant agent” to refer to the warrant agent under any
of these warrant agreements. The warrant agent will act solely as
an agent of ours in connection with the warrants and will not act
as an agent for the holders or beneficial owners of the
warrants.
The following summaries of material provisions of the warrants and
the warrant agreements are subject to, and qualified in their
entirety by reference to, all the provisions of the warrant
agreement applicable to a particular series of warrants. We urge
you to read the applicable prospectus supplements or free writing
prospectus related to the warrants that we sell under this
prospectus, as well as the complete warrant agreements that contain
the terms of the warrants.
General
We
will describe in the applicable prospectus supplement or free
writing prospectus the terms relating to a series of warrants. If
warrants for the purchase of common stock, preferred stock or debt
securities are offered, the prospectus supplement or free writing
prospectus will describe the following terms, to the extent
applicable:
●
the
offering price and the aggregate number of warrants
offered;
●
the
total number of shares that can be purchased if a holder of the
warrants exercises them and, in the case of warrants for preferred
stock, the designation, total number and terms of the series of
preferred stock that can be purchased upon exercise;
●
the
designation and terms of any series of preferred stock with which
the warrants are being offered and the number of warrants being
offered with each share of common stock or preferred
stock;
●
the principal
amount of debt securities that may be purchased upon exercise of a
debt warrant and the exercise price for the warrants, which may be
payable in cash, securities or other property;
●
the
date, if any, on and after which the warrants and the related debt
securities, preferred stock or common stock will be separately
transferable;
●
the
number of shares of common stock or preferred stock that can be
purchased if a holder exercises the warrant and the price at which
such common stock or preferred stock may be purchased upon
exercise, including, if applicable, any provisions for changes to
or adjustments in the exercise price and in the securities or other
property receivable upon exercise;
●
the
terms of any rights to redeem or call, or accelerate the expiration
of, the warrants;
●
the
date on which the right to exercise the warrants begins and the
date on which that right expires;
●
federal
income tax consequences of holding or exercising the warrants;
and
●
any
other specific terms, preferences, rights or limitations of, or
restrictions on, the warrants.
Holders
of equity warrants will not be entitled to:
●
vote,
consent or receive dividends;
●
receive
notice as stockholders with respect to any meeting of stockholders
for the election of our directors or any other matter;
or
●
exercise any rights as stockholders of the
Company.
Exercise of Warrants
Each
holder of a warrant is entitled to purchase the number of shares of
common stock, preferred stock or debt securities, as the case may
be, at the exercise price described in the applicable prospectus
supplement or free writing prospectus. After the close of business
on the day when the right to exercise terminates (or a later date
if we extend the time for exercise), unexercised warrants will
become void.
A holder of warrants may exercise them by following the general
procedure outlined below:
●
delivering
to the warrant agent the payment required by the applicable
prospectus supplement or free writing prospectus to purchase the
underlying security;
●
properly
completing and signing the reverse side of the warrant certificate
representing the warrants; and
●
delivering
the warrant certificate representing the warrants to the warrant
agent within five business days of the warrant agent receiving
payment of the exercise price.
If
you comply with the procedures described above, your warrants will
be considered to have been exercised when the warrant agent
receives payment of the exercise price, subject to the transfer
books for the securities issuable upon exercise of the warrant not
being closed on such date. After you have completed those
procedures and subject to the foregoing, we will, as soon as
practicable, issue and deliver to you the shares of common stock,
preferred stock or debt securities that you purchased upon
exercise.
A
holder of warrant certificates may exchange them for new warrant
certificates of different denominations, present them for
registration of transfer and exercise them at the corporate trust
office of the warrant agent or any other office indicated in the
applicable prospectus supplement. Until any warrants to purchase
debt securities are exercised, the holder of the warrants will not
have any rights of holders of the debt securities that can be
purchased upon exercise, including any rights to receive payments
of principal, premium or interest on the underlying debt securities
or to enforce covenants in the applicable indenture. Until any
warrants to purchase common stock or preferred stock are exercised,
the holders of the warrants will not have any rights of holders of
the underlying common stock or preferred stock, including any
rights to receive dividends or payments upon any liquidation,
dissolution or winding up on the common stock or preferred stock,
if any.
Amendments and Supplements to the Warrant Agreements
We may amend or supplement a warrant agreement without the consent
of the holders of the applicable warrants to cure ambiguities in
the warrant agreement, to cure or correct a defective provision in
the warrant agreement, or to provide for other matters under the
warrant agreement that we and the warrant agent deem necessary or
desirable, so long as, in each case, such amendments or supplements
do not materially adversely affect the interests of the holders of
the warrants.
Warrant Adjustments
Unless the applicable prospectus supplement or free writing
prospectus states otherwise, the exercise price of, and the number
of securities covered by, a common stock or a preferred stock
warrant will be adjusted proportionately if we subdivide or combine
our common stock or preferred stock, as applicable. In addition,
unless the prospectus supplement or free writing prospectus states
otherwise, if we, without receiving payment:
●
issue
capital stock or other securities convertible into or exchangeable
for common stock or preferred stock, or any rights to subscribe
for, purchase or otherwise acquire any of the foregoing, as a
dividend or distribution to holders of our common stock or
preferred stock;
●
pay
any cash to holders of our common stock or preferred stock other
than a cash dividend paid out of our current or retained earnings
or other than in accordance with the terms of the preferred
stock;
●
issue
any evidence of our indebtedness or rights to subscribe for or
purchase our indebtedness to holders of our common stock or
preferred stock; or
●
issue
common stock or preferred stock or additional stock or other
securities or property to holders of our common stock or preferred
stock by way of spinoff, split-up, reclassification, combination of
shares or similar corporate rearrangement,
then the holders of common stock or preferred stock warrants will
be entitled to receive upon exercise of the warrants, in addition
to the securities otherwise receivable upon exercise of the
warrants and without paying any additional consideration, the
amount of stock and other securities and property such holders
would have been entitled to receive had they held the common stock
or preferred stock, as applicable, issuable under the warrants on
the dates on which holders of those securities received or became
entitled to receive such additional stock and other securities and
property.
Except as stated above or as otherwise set forth in the applicable
prospectus supplement or free writing prospectus, the exercise
price and number of securities covered by a common stock or
preferred stock warrant, and the amounts of other securities or
property to be received, if any, upon exercise of such warrant,
will not be adjusted or provided for if we issue those securities
or any securities convertible into or exchangeable for those
securities, or securities carrying the right to purchase those
securities or securities convertible into or exchangeable for those
securities.
Holders of common stock and preferred stock warrants may have
additional rights under the following circumstances:
●
certain
reclassifications, capital reorganizations or changes of the common
stock or preferred stock, as applicable;
●
certain
share exchanges, mergers, or similar transactions involving us and
which result in changes of the common stock or preferred stock, as
applicable; or
●
certain
sales or dispositions to another entity of all or substantially all
of our property and assets.
If one of the above transactions occurs and holders of our common
stock or preferred stock are entitled to receive stock, securities
or other property with respect to or in exchange for their
securities, the holders of the common stock warrants and preferred
stock warrants then outstanding, as applicable, will be entitled to
receive, upon exercise of their warrants, the kind and amount of
shares of stock and other securities or property that they would
have received upon the applicable transaction if they had exercised
their warrants immediately before the transaction.
DESCRIPTION OF
UNITS
This section outlines some of the provisions of the units and the
unit agreements. This information may not be complete in all
respects and is qualified entirely by reference to the unit
agreement with respect to the units of any particular series. The
specific terms of any series of units will be described in the
applicable prospectus supplement or free writing prospectus. If so
described in a particular prospectus supplement or free writing
prospectus, the specific terms of any series of units may differ
from the general description of terms presented below.
As
specified in the applicable prospectus supplement, we may issue
units consisting of one or more shares of common stock, shares of
our preferred stock, debt securities, warrants or any combination
of such securities.
The applicable prospectus supplement will specify the following
terms of any units in respect of which this prospectus is being
delivered:
●
the
terms of the units and of any of the shares of common stock, shares
of preferred stock, debt securities or warrants
comprising the units, including whether and under what
circumstances the securities comprising the units may be traded
separately;
●
a
description of the terms of any unit agreement governing the
units;
●
if
appropriate, a discussion of material U.S. federal income tax
considerations; and
●
a
description of the provisions for the payment, settlement, transfer
or exchange of the units.
DESCRIPTION OF CERTAIN PROVISIONS OF DELAWARE LAW
AND
OUR CERTIFICATE OF INCORPORATION AND BYLAWS
Certain provisions of Delaware law, our Charter and Bylaws
discussed below may have the effect of making more difficult or
discouraging a tender offer, proxy contest or other takeover
attempt. These provisions are expected to encourage persons seeking
to acquire control of our company to first negotiate with our Board
of Directors. We believe that the benefits of increasing our
ability to negotiate with the proponent of an unfriendly or
unsolicited proposal to acquire or restructure our company outweigh
the disadvantages of discouraging these proposals because
negotiation of these proposals could result in an improvement of
their terms.
Delaware Anti-Takeover Law.
We are subject to Section 203 of the Delaware General
Corporation Law. Section 203 generally prohibits a public
Delaware corporation from engaging in a “business
combination” with an “interested stockholder” for
a period of three years after the date of the transaction in which
the person became an interested stockholder, unless:
●
prior
to the date of the transaction, the Board of Directors of the
corporation approved either the business combination or the
transaction which resulted in the stockholder becoming an
interested stockholder;
●
upon
consummation of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding
specified shares; or
●
at
or subsequent to the date of the transaction, the business
combination is approved by the Board of Directors and authorized at
an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least 66 2/3% of the
outstanding voting stock which is not owned by the interested
stockholder.
Section 203 defines a “business combination” to
include:
●
any
merger or consolidation involving the corporation and the
interested stockholder;
●
any
sale, lease, exchange, mortgage, pledge, transfer or other
disposition of 10% or more of the assets of the corporation to or
with the interested stockholder;
●
subject
to exceptions, any transaction that results in the issuance or
transfer by the corporation of any stock of the corporation to the
interested stockholder;
●
subject
to exceptions, any transaction involving the corporation that has
the effect of increasing the proportionate share of the stock of
any class or series of the corporation beneficially owned by the
interested stockholder; or
●
the
receipt by the interested stockholder of the benefit of any loans,
advances, guarantees, pledges or other financial benefits provided
by or through the corporation.
In general, Section 203 defines an “interested
stockholder” as any person that is:
●
the
owner of 15% or more of the outstanding voting stock of the
corporation;
●
an
affiliate or associate of the corporation who was the owner of 15%
or more of the outstanding voting stock of the corporation at any
time within three years immediately prior to the relevant date;
or
●
the
affiliates and associates of the above.
Under specific circumstances, Section 203 makes it more
difficult for an “interested stockholder” to effect
various business combinations with a corporation for a three-year
period, although the stockholders may, by adopting an amendment to
the corporation’s certificate of incorporation or bylaws,
elect not to be governed by this section, effective 12 months after
adoption.
Our Charter and Bylaws do not exclude us from the restrictions of
Section 203. We anticipate that the provisions of
Section 203 might encourage companies interested in acquiring
us to negotiate in advance with our Board of Directors since the
stockholder approval requirement would be avoided if a majority of
the directors then in office approve either the business
combination or the transaction that resulted in the stockholder
becoming an interested stockholder.
Charter and Bylaws.
Provisions of our Charter and Bylaws may delay or discourage
transactions involving an actual or potential change of control or
change in our management, including transactions in which
stockholders might otherwise receive a premium for their shares, or
transactions that our stockholders might otherwise deem to be in
their best interests. Therefore, these provisions could adversely
affect the price of our common stock.
PLAN OF DISTRIBUTION
We may sell the securities described in this prospectus to or
through underwriters or dealers, through agents, or directly to one
or more purchasers. A prospectus supplement or supplements (and any
related free writing prospectus that we may authorize to be
provided to you) will describe the terms of the offering of the
securities, including, to the extent applicable:
●
the
name or names of any underwriters or agents, if
applicable;
●
the
purchase price of the securities and the proceeds we will receive
from the sale;
●
any
over-allotment options under which underwriters may purchase
additional securities from us;
●
any
agency fees or underwriting discounts and other items constituting
agents’ or underwriters’ compensation;
●
any
public offering price;
●
any
discounts or concessions allowed or reallowed or paid to dealers;
and
●
any
securities exchange or market on which the securities may be
listed.
We may also sell equity securities covered by this registration
statement in an “at the market offering” as defined in
Rule 415 under the Securities Act. Such offering may be made into
an existing trading market for such securities in transactions at
other than a fixed price, either:
●
On
or through the facilities of the Nasdaq Capital Market or any other
securities exchange or quotation or trading service on which such
securities may be listed, quoted or traded at the time of sale;
and/or
●
to
or through a market maker otherwise than on the Nasdaq Capital
Market or such other securities exchanges or quotation or trading
services.
Such at-the-market offerings, if any, may be conducted by
underwriters acting as principal or agent.
Only underwriters named in a prospectus supplement are underwriters
of the securities offered by the prospectus
supplement.
If underwriters are used in the sale, they will acquire the
securities for their own account and may resell the securities from
time to time in one or more transactions at a fixed public offering
price or at varying prices determined at the time of sale. The
obligations of the underwriters to purchase the securities will be
subject to the conditions set forth in the applicable underwriting
agreement. We may offer the securities to the public through
underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Subject to certain conditions,
the underwriters will be obligated to purchase all of the
securities offered by the prospectus supplement. Any public
offering price and any discounts or concessions allowed or
reallowed or paid to dealers may change from time to time. We may
use underwriters with whom we have a material relationship. We will
describe in the prospectus supplement that names the underwriter,
the nature of any such relationship.
We may sell securities directly or through agents we designate from
time to time. We will name any agent involved in the offering and
sale of securities, and we will describe any commissions we will
pay the agent in the prospectus supplement. Unless the prospectus
supplement states otherwise, our agent will act on a best-efforts
basis for the period of its appointment.
We may authorize agents or underwriters to solicit offers by
certain types of institutional investors to purchase securities
from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified date in the future. We will
describe the conditions to these contracts and the commissions we
must pay for solicitation of these contracts in the prospectus
supplement.
We may provide agents and underwriters with indemnification against
civil liabilities related to this offering, including liabilities
under the Securities Act, or contribution with respect to payments
that the agents or underwriters may make with respect to these
liabilities. Agents and underwriters may engage in transactions
with, or perform services for, us in the ordinary course of
business.
Any underwriter may engage in overallotment, stabilizing
transactions, short covering transactions and penalty bids in
accordance with Regulation M under the Securities Exchange Act of
1934, as amended (the “Exchange
Act”). Overallotment
involves sales in excess of the offering size, which create a short
position. Stabilizing transactions permit bids to purchase the
underlying security so long as the stabilizing bids do not exceed a
specified maximum. Short covering transactions involve purchases of
the securities in the open market after the distribution is
completed to cover short positions. Penalty bids permit the
underwriters to reclaim a selling concession from a dealer when the
securities originally sold by the dealer are purchased in a
covering transaction to cover short positions. Those activities may
cause the price of the securities to be higher than it would
otherwise be. If commenced, the underwriters may discontinue any of
the activities at any time.
Any underwriters who are qualified market makers on the Nasdaq
Capital Market may engage in passive market making transactions in
accordance with Rule 103 of Regulation M during the business day
prior to the pricing of the offering, before the commencement of
offers or sales of the securities. Passive market makers must
comply with applicable volume and price limitations and must be
identified as passive market makers. In general, a passive market
maker must display its bid at a price not in excess of the highest
independent bid for such security; if all independent bids are
lowered below the passive market maker’s bid, however, the
passive market maker’s bid must then be lowered when certain
purchase limits are exceeded.
-25-
MANAGEMENT
Executive Officers and Directors
The following table sets forth the names, ages, and positions of
our executive officers, directors and significant employees as of
the date of this prospectus.
|
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
|
|
|
|
|
|
Executive Officers and Directors:
|
|
|
||||
|
|
|
|
|
|
|
|
|
Ann
Hand
|
|
51
|
|
Chief
Executive Officer, President, Chair of the Board
|
|
|
|
David
Steigelfest
|
|
52
|
|
Chief
Product Officer, Director
|
|
|
|
Clayton
Haynes
|
|
50
|
|
Chief
Financial Officer
|
|
|
|
Matt
Edelman
|
|
50
|
|
Chief
Commercial Officer
|
|
|
|
Samir
Ahmed
|
|
42
|
|
Chief
Technology Officer
|
|
|
|
Jeff
Gehl
|
|
51
|
|
Director
|
|
|
|
Kristin
Patrick
|
|
49
|
|
Director
|
|
|
|
Michael
Keller
|
|
49
|
|
Director
|
|
|
|
Mark
Jung
|
|
57
|
|
Director
|
|
|
|
|
|
|
|
|
|
|
|
Significant Employees:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Andy
Babb
|
|
51
|
|
Executive
Vice President of Game Partnerships
|
|
|
|
Anne
Gailliot
|
|
44
|
|
Chief
of Staff, Vice President of Special Projects
|
|
|
There are no arrangements or understandings between our Company and
any other person pursuant to which he or she was or is to be
selected as a director, executive officer or nominee. Ms. Hand, our
President and Chief Executive Officer, is a first cousin of Mr.
Gehl, a member of our Board. There are no other family
relationships among any of our directors or executive officers. To
the best of our knowledge, none of our directors or executive
officers have, during the past ten years, been involved in any
legal proceedings described in Item 401(f) of Regulation
S-K.
Executive Officers
Ann Hand
Chief Executive Officer, President, Chair of the Board
Ms.
Hand has served as our Chief Executive Officer, President and Chair
of our Board since June 2015. Over the past 20 years, Ms. Hand has
served as a market-facing executive with a track record in brand
creation and turn- around with notable delivery at the intersection
of social impact with consumer trends and technology to create bold
offers, drive consumer preference and deliver bottom line results.
Prior to joining the Company, from 2009 to 2015, Ms. Hand served as
Chief Executive Officer and as a director of Project Frog, a
venture-backed firm with a mission to democratize healthy, inspired
buildings that are better, faster, greener, and more affordable
than traditional construction. From 1998 through 2008, Ms. Hand
served in various senior executive positions with BP plc, including
Senior Vice President, Global Brand Marketing & Innovation from
2005 to 2008, during which time she led many award-winning
integrated marketing campaigns and oversaw the entire brand
portfolio of B2C and B2B brands, including BP, Castrol, Arco, am/pm
and Aral. Additionally, she served as Chief Executive, Global
Liquefied Gas Business Unit with full P&L accountability across
15 countries and 3,000 staff, covering operations, logistics, sales
and marketing with over $3 billion in annual revenue. Ms. Hand was
recognized by Goldman Sachs - “100 Most Intriguing
Entrepreneurs” in 2014, by Fortune - “Top 10 Most
Powerful Women Entrepreneurs” in 2013, and Fast Company
– “100 Most Creative People” in 2011. Ms. Hand
earned a Bachelor of Arts in Economics from DePauw University, an
MBA from Northwestern’s Kellogg School of Management, and
completed executive education at Cambridge, Harvard and Stanford
Universities.
-26-
David Steigelfest
Chief Product Officer, Director
Mr.
Steigelfest co-founded the Company in 2014 and has served as a
director on our Board since that time. In addition, Mr. Steigelfest
served has our Chief Product Officer since May 2018. An attorney by
education, David has served as an executive and entrepreneur in the
digital and technology space for more than 20 years. Prior to
co-founding the Company in 2014, Mr. Steigelfest founded rbidr LLC,
a media and technology startup and a pioneer in yield management
and price optimization software, where he served as Chief Executive
Officer from 2008 to 2013. From 2013 to 2014, Mr. Steigelfest
worked for Cosi Consulting, where he provided management consulting
services ranging from complex project management, PMO, software
design, 3rd party software integration and migration, enterprise
content management, data management and system-based regulatory
compliance to various Fortune 500 companies. From 2001 to 2008, Mr.
Steigelfest worked on Wall Street at Deutsche Bank, where he
oversaw various multi-million-dollar change management projects. In
addition, Mr. Steigelfest previously served as Vice President of
eCommerce at Starguide Digital Networks, where he had
responsibility over the streaming media portal, CoolCast. CoolCast
utilized satellite technology to distribute high quality streaming
content into multi-cast enabled networks bypassing Internet
bottlenecks. Prior to Starguide, Mr. Steigelfest served as the
Director of Product Management at Gateway Computers, where he
oversaw Gateway.com and Gateway’s business-to-business
extranet system, eSource. In addition, Mr. Steigelfest has
consulted for companies of all sizes throughout his career
addressing a wide variety of IT and business challenges, including
complex business process change, software implementation and
e-commerce. Mr. Steigelfest received a Bachelor of Arts in
International Relations and Psychology from Syracuse University,
and a JD with an emphasis in business transactions and business law
from Widener University School of Law.
Clayton Haynes
Chief Financial Officer
Mr. Haynes was appointed as our Chief Financial Officer in August
2018. From 2001 to August 2018, Mr. Haynes served as Chief
Financial Officer, Senior Vice President of Finance and Treasurer
of Acacia Research Corporation (NASDAQ: ACTG), an industry-leading intellectual
property licensing and enforcement and technology investment
company. From 1992 to March 2001, Mr. Haynes was employed by
PricewaterhouseCoopers LLP, ultimately serving as a Manager in the
Audit and Business Advisory Services practice, where he provided
and managed full scope financial statement audit and business
advisory services for public and private company clients with
annual revenues up to $1 billion in a variety of sectors, including
manufacturing, distribution, oil and gas, engineering, aerospace
and retail. Mr. Haynes received a Bachelor of Arts in
Economics and Business/Accounting from the University of California
at Los Angeles, an MBA from the University of California at Irvine
Paul Merage School of Business and is a Certified Public Accountant
(Inactive).
Matt Edelman
Chief Commercial Officer
Mr.
Edelman oversees the Company’s revenue, marketing, content,
creative services and business development activities, and has
served as our Chief Commercial Officer since July 2017. Mr. Edelman
is the owner of PickTheBrain, a leading digital self-improvement
business, a board member and marketing committee member of the
Epilepsy Foundation of Greater Los Angeles and has over 20 years of
experience working in the digital and traditional media and
entertainment industries. Since 2001, he has served as an advisor
and consultant to numerous digital and media companies, including,
amongst others, Nike, Marvel, MTV, Sony Pictures, 20th Century Fox
and TV Guide. Prior to joining the Company, from 2014 to 2017, Mr.
Edelman served as the Head of Digital Operations and Marketing
Solutions at WME-IMG (now Endeavor), where he was responsible for
several areas, including digital audience and revenue growth
through content, social media and paid customer acquisition across
the company’s global live events business within sports,
fashion culinary and entertainment verticals; digital marketing
services for consumer brands, college athletics programs and
talent; and management of direct-to-consumer digital content
businesses, including both eSports and Fashion OTT properties. From
2010 to 2013, Mr. Edelman served as the Chief Executive Officer of
Glossi (previously ThisNext), an authoring platform enabling
individuals to create their own digital magazines. Previously, Mr.
Edelman also founded and/or served in executive positions at
multiple early stage digital media companies. Mr. Edelman earned a
Bachelor of Arts in Politics from Princeton
University.
-27-
Samir Ahmed
Chief Technology Officer
Mr. Ahmed was appointed as Chief Technology Officer in July 2019.
Mr. Ahmed served as Head of Consumer Technology from
February 2018 to July 2019 for IMDb, an Amazon company that is an
authoritative website about movies, television and celebrities. In
addition, from February 2016 to February 2018, Mr. Ahmed served as
Chief Architect and Vice President of Technology at Fandango, where
he led the acquisition transition and rebranding of M-GO to
FandangoNOW, and from August 2014 to February 2016, he served as
Chief Technology Officer of M-GO prior to its acquisition by
Fandango. Mr. Ahmed holds a master’s degree in computer
science applied to business services from the University of Rennes
1.
Board of Directors
Ann Hand
Chief Executive Officer, President, Chair of the Board
Please
see Ms. Hand’s biography in the preceding section under the
heading “Executive
Officers.”
Ms. Hand’s extensive background in corporate leadership and
her practical experience in brand creation and turn- around
directly align with the Company’s focus, and ideally position
her to make substantial contributions to the Board, both as Chair
of the Board and as the leader of the Company’s executive
team.
David Steigelfest
Chief Product Officer, Director
Please
see Mr. Steigelfest’s biography in the preceding section
under the heading “Executive
Officers.”
As a co-founder of the Company and a lead developer of the
Company’s platform, Mr. Steigelfest provides the Board with
critical insight into the technological aspects of the
Company’s operations and the ongoing development of the
platform, attributes that make Mr. Steigelfest a particularly
valued member of the Board.
Jeff Gehl
Independent Director
Mr.
Gehl has served as a director on our Board since 2015. Mr. Gehl is
a Co-Owner at VLOC LLC. Since 2001, Mr. Gehl has been a Managing
Partner of RCP Advisors. Mr. Gehl is responsible for leading RCP's
client relations function and covering private equity fund managers
in the Western United States. He is a General Partner of BKM
Capital Partners, L.P. Previously, Mr. Gehl was an Advisor at
Troy Capital Partners until 2018. In addition, Mr. Gehl founded and
served as Chairman and Chief Executive Officer of MMI, a technical
staffing company, and acquired Big Ballot, Inc., a sports marketing
firm. He currently serves as a Director of P10 Industries, Inc., a
Director of Veritone, Inc. (NASDAQ: VERI) and an Advisory Board
member of several of RCP’s underlying funds, as well as
Accel-KKR and Seidler Equity Partners. Mr. Gehl was the Manager of
VLOC. Mr. Gehl received the 1989 “Entrepreneur of the
Year” award from University of Southern California’s
Entrepreneur Program. He obtained a Bachelor of Science in Business
Administration from the University of Southern California's
Entrepreneur Program.
Mr. Gehl’s wide range of experience in
financing,
developing and managing high-growth technology companies, as well
as his entrepreneurial experience, has considerably broadened the Board’s
perspective, particularly as the Company engaged in capital raising
activities to fund the early stages of its development. Mr. Gehl
also serves as our Board-designated “audit committee
financial expert,” as the Chair of the Board’s Audit
Committee and as a member of the Nominating and Corporate
Governance Committee.
-28-
Kristin Patrick
Independent Director
Ms.
Patrick has served as a director on our Board since November 2018,
and currently serves as Global Chief Marketing Officer of Soda
Brand at Pepsico, Inc., a position she has held since June 2013.
Prior to her time with Pepsico, Inc., Ms. Patrick served as Chief
Marketing Officer of Playboy Enterprises, Inc. from November 2011
to June 2013, and as Executive Vice President of Marketing Strategy
for William Morris Endeavor from January 2010 to November 2011. Ms.
Patrick has also held senior marketing positions at Liz
Claiborne's Lucky Brand, Walt Disney Company, Calvin Klein, Revlon
and NBC Universal and Gap, Inc. A Brandweek "Next Gen Marketer" and
Reggie Award recipient, Ms. Patrick received her Bachelor of Arts
from Emerson College and J.D. from Southwestern
University.
As we
continue to expand the visibility of our Brand, we believe Ms.
Patrick will provide instrumental input on our marketing efforts,
and will assist the Board and management with initiating marketing
programs to enable us to meet our short-term and long-term growth
objectives. Ms. Patrick also serves as a member of the
Board’s Compensation Committee and the Nominating and
Corporate Governance Committee.
Michael Keller
Independent Director
Mr.
Keller has served as a director on our Board since November 2018.
From July 2014 to February 2018, Mr. Keller served as an advisor
and board member for Cake Entertainment, an independent
entertainment company specializing in the production, distribution,
development, financing and brand development of kids’ and
family properties, as managing director of Tiedemann Wealth
Management from March 2008 to December 2013, as co-founder and
principal of Natrica USA, LLC from August 2006 to March 2008 and as
Senior Vice President of Brown Brothers Harriman Financial Services
from July 1996 to June 2006. Mr. Keller earned his Bachelors of
Arts in History from Colby College.
With
over 15 years of experience in asset and portfolio management, and
experience in helping companies gain exposure for their products
and services, including in the entertainment industry, we believe
Mr. Keller provides our Board with useful insight that will help us
as we allocate resources to expand the utility of our platform and
other technologies. Mr. Keller also serves as Chair of the
Board’s Nominating and Corporate Governance Committee and as
a member of the Audit Committee and the Compensation
Committee.
Mark Jung
Independent Director
Mr. Jung has served as a director on our Board since July
2019. Mr. Jung currently serves as an
independent consultant to multiple media and technology companies.
Previously, Mr. Jung served on the board of directors of Accela, a
leading provider of cloud-based productivity and civic engagement
solutions for government, from March 2016 to April 2019. During his
tenure on the board of Accel, Mr. Jung also held executive
management positions for Accela, including as Chairman and interim
Chief Executive Officer from August 2016 to March 2017 and from
April 2018 to October 2018, as well as serving as Executive
Chairman from March 2017 to April 2018. Prior to Accela, Mr. Jung
served as Executive Chairman of OL2, a leading cloud solutions
provider for gaming and graphics-rich applications, from May 2013
to March 2015. Currently, Mr. Jung serves as a member of the
board of directors of Millennium Trust Company, a leading financial
services company offering niche alternative custody solutions to
institutions, advisors and individuals; lnMar, a provider of
intelligent commerce network solutions; Samba Safety, a provider of
driver risk management solutions; and ReadyUp, a provider of an
esports platform for player networking and team management.
Mr. Jung graduated with a BS in engineering from Princeton
University and received his MBA from Stanford University Graduate
School of Business.
With over three decades of experience serving as a C-suite
executive at several prominent companies within the digital
entertainment and video game industries, and extensive public and
private board member experience, we believe Mr. Jung provides our
Board with invaluable knowledge and insight regarding key
strategies and best practices for building gaming communities and
creating a demand for gaming-related content in the market that can
accelerate our audience development and content monetization
strategies, and will also share key learnings with Super League
gained from his experience navigating the transition of companies
from private to public. Mr.
Jung also serves as Chair of the Board’s Compensation
Committee and as a member of the Audit
Committee.
-29-
Significant Employees
Andy Babb
Executive Vice President of Game Partnerships
Mr.
Babb overseas the Company’s game strategy and publisher and
developer relationships and has served as our Executive Vice
President of Game Partnerships since September 2015. Prior to
joining the Company, from 2007 to 2015, Mr. Babb served as
President of Brandissimo, Inc., the company that created and
developed NFL RUSH, including NFL RUSH Zone, a multiplayer online
virtual game world, and over 100 NFL video games and apps. From
2006 to 2007, Mr. Babb served as the President of Infusio-NA, a
French mobile video game publisher, and for ten years prior to
that, he managed business development for Take Two Interactive, 2K
Games and SegaSoft. Throughout his career, Mr. Babb has published
over 200 video games across console, handheld, PC, online and
mobile platforms. He earned a Bachelor of Arts in Communications
Studies from the University of California Los Angeles and an MBA
from Stanford University.
Anne Gailliot
Chief of Staff, Vice President of Special Projects
Ms.
Gailliot has served as our Chief of Staff since July 2015, as well
as our Vice President of Special Projects since 2016. She provides
oversight to strategic programs and partnerships, ranging from
theatre relationships, the development of a national contracted
workforce, our after-school programs, and end-to-end live event
execution. Prior to joining the Company, Ms. Gailliot served as
Chief of Staff of Project Frog from 2007 to 2015, where she led
strategic and financial planning and supported supply chain
optimization. Before pursuing a graduate degree, Anne spent several
years at the National Trust for Historic Preservation managing
grant programs, community advocacy efforts, and local leadership
development initiatives for the western region. Ms. Gailliot earned
a Bachelor of Arts in Art History from Princeton University and an
MBA from University of Pennsylvania – the Wharton
School.
Board Composition and Election of Directors
Board Composition
Our
Board currently consists of six members. Each of our continuing
directors will serve until our next annual meeting of stockholders
or until his or her successor is elected and duly qualified. Our
Board is authorized to appoint persons to the offices of Chair of
the Board of Directors, Vice Chair of the Board of Directors, Chief
Executive Officer, President, one or more Vice Presidents, Chief
Financial Officer, Treasurer, one or more Assistant Treasurers,
Secretary, one or more Assistant Secretaries, and such other
officers as may be determined by the Board. The Board may also
empower the Chief Executive Officer, or in absence of a Chief
Executive Officer, the President, to appoint such other officers
and agents as our business may require. Any number of offices can
be held by the same person.
Director Independence
Our
Board has determined that four of its directors qualify as
independent directors, as determined in accordance with the rules
of the Nasdaq Stock Market, consisting of Ms. Patrick and Messrs.
Gehl, Keller and Jung. Under the applicable listing requirements of
the Nasdaq Capital Market, we are permitted to phase in our
compliance with the majority independent board requirement of the
Nasdaq Stock Market rules within one year of our listing on Nasdaq.
The director independence definition under the Nasdaq Stock Market
rule includes a series of objective tests, including that the
director is not, and has not been for at least three years, one of
our employees and that neither the director nor any of his family
members has engaged in various types of business dealings with us.
In addition, as required by Nasdaq Stock Market rules, our Board
has made a subjective determination as to each independent director
that no relationships exist, which, in the opinion of our Board,
would interfere with the exercise of independent judgment in
carrying out the responsibilities of a director. In making these
determinations, our Board reviewed and discussed information
provided by the directors and us with regard to each
director’s business and personal activities and relationships
as they may relate to us and our management.
Ms. Hand, our President and Chief Executive Officer, is a first
cousin of Mr. Gehl, a member of our Board. There are no other
family relationships among any of our directors or executive
officers.
-30-
Role of Board in Risk Oversight Process
Our
Board has responsibility for the oversight of the Company’s
risk management processes and, either as a whole or through its
committees, regularly discusses with management our major risk
exposures, their potential impact on our business, and the steps we
take to manage them. The risk oversight process includes receiving
regular reports from Board committees and members of senior
management to enable our Board to understand our risk
identification, risk management and risk mitigation strategies with
respect to areas of potential material risk, including operations,
finance, legal, regulatory, strategic and reputational risk.
Cybersecurity risk is a key consideration in our operational risk
management capabilities. We are in the process of instituting a
formal information security management program, which will be
subject to oversight by, and reporting to, our Board. Given the
nature of our operations and business, cybersecurity risk may
manifest itself through various business activities and channels
and is thus considered an enterprise-wide risk which is subject to
control and monitoring at various levels of management throughout
the business. Our Board will oversee and review reports on
significant matters of corporate security, including cybersecurity.
In addition, we maintain specific cyber insurance through our
corporate insurance program, the adequacy of which is subject to
review and oversight by our Board.
Our
audit committee reviews information regarding liquidity and
operations and oversees our management of financial risks.
Periodically, our 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.
Our compensation committee is responsible for assessing whether any
of our compensation policies or programs has the potential to
encourage excessive risk-taking. Matters of significant strategic
risk are considered by our Board as a whole.
Board Committees and Independence
Our
Board has established the following three standing committees:
audit committee, compensation committee, and nominating and
governance committee. Our Board has adopted written charters for
each of these committees. Upon completion of this offering, we
intend to make each committee’s charter available under the
Corporate Governance section of our website at
www.superleague.com/corporategovernance. The reference to our
website address does not constitute incorporation by reference of
the information contained at or available through our website, and
you should not consider it to be a part of this
prospectus.
Audit Committee
Our
audit committee is currently comprised of Jeff Gehl, who serves as
the committee chair, Michael Keller and Mark Jung, each of whom are
independent directors as determined in accordance with the rules of
the Nasdaq Stock Market. The audit committee’s main function
is to oversee our accounting and financial reporting processes and
the audits of our financial statements. Pursuant to its charter,
the audit committee’s responsibilities include, among other
things:
|
●
|
appointing, compensating, retaining, evaluating, terminating, and
overseeing our independent registered public accounting firm
;
|
|
●
|
reviewing with our independent registered public accounting firm
the scope and results of their audit;
|
|
●
|
approving
the audit and non-audit services to be performed by our independent
registered public accounting firm;
|
|
●
|
evaluating
the qualifications, independence and performance of our independent
registered public accounting firm;
|
-31-
|
●
|
reviewing
the design, implementation, adequacy and effectiveness of our
internal accounting controls and our critical accounting
policies;
|
|
●
|
reviewing
and discussing our annual audited financial statements and
quarterly financial statements with management and the independent
auditor, including our disclosures under “Management’s Discussion and Analysis of
Financial Condition and Results of Operations ,” prior
to the release of such information;
|
|
●
|
reviewing
and reassessing the adequacy of the audit committee’s
charter, at least annually;
|
|
●
|
reviewing,
overseeing and monitoring the integrity of our financial statements
and our compliance with legal and regulatory requirements as they
relate to financial statements or accounting matters;
|
|
●
|
reviewing
on a periodic basis, or as appropriate, our policies with respect
to risk assessment and management, and our plan to monitor, control
and minimize such risks and exposures, with the independent public
accountants, internal auditors, and management;
|
|
●
|
reviewing
any earnings announcements and other public announcements regarding
our results of operations;
|
|
●
|
preparing
the report that the SEC requires in our annual proxy statement,
upon becoming subject to the Exchange Act;
|
|
●
|
complying
with all preapproval requirements of Section 10A(i) of the Exchange
Act and all SEC rules relating to the administration by the audit
committee of the auditor engagement to the extent necessary to
maintain the independence of the auditor as set forth in 17 CFR
Part 210.2-01(c)(7);
|
|
●
|
administering
the policies and procedures for the review, approval and/or
ratification of related party transactions involving the Company or
any of its subsidiaries; and
|
|
●
|
making
such other recommendations to the Board on such matters, within the
scope of its function, as may come to its attention and which in
its discretion warrant consideration by the Board.
|
Our
Board has affirmatively determined that all members of our audit
committee meet the requirements for independence and financial
literacy under the applicable rules and regulations of the SEC and
the Nasdaq Stock Market. Our Board has determined that Mr. Gehl
qualifies as an “audit committee financial expert” as
defined by applicable SEC rules and has the requisite financial
sophistication as defined under the applicable Nasdaq Stock Market
rules and regulations. The audit committee operates under a written
charter that satisfies the applicable standards of the SEC and the
Nasdaq Stock Market.
Compensation Committee
Our compensation committee is currently comprised of Mark Jung, who
serves as the committee chair, Kristin Patrick and Michael
Keller, each of whom are independent
directors as determined in accordance with the rules of the Nasdaq
Stock Market. The compensation committee’s main
function is to assist our Board in the discharge of its
responsibilities related to the compensation of our executive
officers. Pursuant to its charter, the
compensation committee is primarily responsible for, among other
things:
|
●
|
reviewing our compensation programs and arrangements applicable to
our executive officers, including all employment-related agreements
or arrangements under which compensatory benefits are awarded or
paid to, or earned or received by, our executive officers, and
advising management and the Board regarding such programs and
arrangements;
|
-32-
|
●
|
reviewing and recommending to the Board the goals and objectives
relevant to CEO compensation, evaluating CEO performance in light
of such goals and objectives, and determining CEO compensation
based on the evaluation ;
|
|
●
|
retaining,
reviewing and assessing the independence of compensation
advisers;
|
|
●
|
monitoring
issues associated with CEO succession and management
development;
|
|
●
|
overseeing
and administering our equity incentive plans;
|
|
●
|
reviewing
and making recommendations to our Board with respect to
compensation of our executive officers and senior
management;
|
|
●
|
reviewing
and making recommendations to our Board with respect to director
compensation;
|
|
●
|
endeavoring to ensure that our executive compensation programs are
reasonable and appropriate, meet their stated purpose (which, among
other things, includes rewarding and creating incentives for
individuals and Company performance), and effectively serve the
interests of the Company and our stockholders;
and
|
|
●
|
upon
becoming subject to the Exchange Act, preparing and approving an
annual report on executive compensation and such other statements
to stockholders which are required by the SEC and other
governmental bodies.
|
Nominating and Governance Committee
Our nominating and governance committee is currently comprised
of Michael Keller, who serves as the committee chair, Kristin
Patrick and Jeff Gehl, each of
whom are independent directors as determined in accordance with the
rules of the Nasdaq Stock Market. Pursuant to its charter, the nominating and
governance committee is primarily responsible for, among other
things:
|
●
|
assisting
the Board in identifying qualified candidates to become directors,
and recommending to our Board nominees for election at the next
annual meeting of stockholders;
|
|
●
|
leading
the Board in its annual review of the Board’s
performance;
|
|
●
|
recommending
to the Board nominees for each Board committee and each committee
chair;
|
|
●
|
reviewing
and overseeing matters related to the independence of Board and
committee members, in light of independence requirement of the
Nasdaq Stock Market and the rules and regulations of the
SEC;
|
|
●
|
overseeing
the process of succession planning of our CEO and other executive
officers; and
|
|
●
|
developing
and recommending to the Board corporate governance guidelines,
including our Code of Business Conduct, applicable to the
Company.
|
Board Diversity
Upon the closing of this offering, our nominating and governance
committee will be responsible for reviewing with the Board, on an
annual basis, the appropriate characteristics, skills and
experience required for the Board as a whole and its individual
members. In evaluating the suitability of individual candidates
(both new candidates and current members), the nominating and
governance committee, in recommending candidates for election, and
the Board, in approving (and, in the case of vacancies, appointing)
such candidates, will take into account many factors, including the
following:
-33-
|
●
|
personal
and professional integrity, ethics and values;
|
|
●
|
experience
in corporate management, such as serving as an officer or former
officer of a publicly-held company;
|
|
●
|
experience
as a board member or executive officer of another publicly-held
company;
|
|
●
|
strong
finance experience;
|
|
●
|
diversity
of expertise and experience in substantive matters pertaining to
our business relative to other board members;
|
|
●
|
diversity
of background and perspective, including, but not limited to, with
respect to age, gender, race, place of residence and specialized
experience;
|
|
●
|
experience
relevant to our business industry and with relevant social policy
concerns; and
|
|
●
|
relevant
academic expertise or other proficiency in an area of our business
operations.
|
Currently, our Board evaluates, and following the closing of this
offering will evaluate, each individual in the context of the Board
as a whole, with the objective of assembling a group that can best
maximize the success of the business and represent stockholder
interests through the exercise of sound judgment using its
diversity of experience in these various areas.
Compensation Committee Interlocks and Insider
Participation
None of
the members of our compensation committee, at any time, have been
one of our officers or employees. None of our executive officers
currently serves, or in the past year has served, as a member of
the board of directors or compensation committee of any other
entity that has one or more executive officers on our Board of
Directors or compensation committee.
Code of Business Conduct and Ethics
We have adopted a Code of Business Conduct and Ethics applicable to
our employees, officers and directors. We provide
our Code of Business Conduct and
Ethics under the Corporate Governance section of our website
at www.superleague.com/corporategovernance/. The
reference to our website address does not constitute incorporation
by reference of the information contained at or available through
our website, and you should not consider it to be a part of this
prospectus. We intend to
disclose any future amendments to certain provisions of our Code of
Business Conduct and Ethics, or waivers of these provisions, on our
website or in our filings with the SEC under the Exchange
Act.
Limitation of Liability and Indemnification
Our Charter and our Bylaws provide the indemnification of
our directors and officers to the fullest extent permitted under
the DGCL. In addition, the Charter provides that our directors
shall not be personally liable to us or our shareholders for
monetary damages for breach of fiduciary duty as a director and
that if the DGCL is amended to authorize corporate action further
eliminating or limiting the personal liability of directors, then
the liability of our directors shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so
amended.
-34-
As
permitted by the DGCL, we have entered into or plan to enter into
separate indemnification agreements with each of our directors and
certain of our officers that require us, among other things, to
indemnify them against certain liabilities which may arise by
reason of their status as directors, officers or certain other
employees. We expect to obtain and maintain insurance policies
under which our directors and officers are insured, within the
limits and subject to the limitations of those policies, against
certain expenses in connection with the defense of, and certain
liabilities that might be imposed as a result of, actions, suits or
proceedings to which they are parties by reason of being or having
been directors or officers. The coverage provided by these policies
may apply whether or not we would have the power to indemnify such
person against such liability under the provisions of the
DGCL.
We
believe that these provisions and agreements are necessary to
attract and retain qualified persons as our officers and directors.
At present, there is no pending litigation or proceeding involving
our directors or officers for whom indemnification is required or
permitted, and we are not aware of any threatened litigation or
proceeding that may result in a claim for
indemnification.
EXECUTIVE
COMPENSATION
We are
an emerging growth company for purposes of the SEC’s
executive compensation disclosure rules. In accordance with such
rules, we are required to provide a Summary Compensation Table and
an Outstanding Equity Awards at Fiscal Year End Table, as well as
limited narrative disclosures regarding executive compensation for
our last two completed fiscal years. Further, our reporting
obligations extend only to our “named executive
officers,” who are those individuals serving as our principal
executive officer and our two other most highly compensated
executive officers who were serving as executive officers at
December 31, 2019, the end of the last completed fiscal year (the
“Named Executive
Officers”).
We have
identified Ann Hand, David Steigelfest and Matt Edelman as our
Named Executive Officers for the year ended December 31, 2019. Our
Named Executive Officers for our fiscal year ending December 31,
2020 could change, as we may hire or appoint new executive
officers.
For the
fiscal years ended December 31, 2019 and 2018, compensation for our Named Executive Officers was
as follows:
|
Name
and principal position
|
Year
|
Salary
($)
|
Bonus
($)
|
Stock
Awards
($)
|
Option
Awards ($) (1)
|
All
Other Compensation ($)
|
Total
($)
|
|
Ann
Hand
|
2019
|
$ 400,000
|
$ 350,000(2)
|
-
|
$ -
|
|
$ 750,000
|
|
Chief Executive Officer, President
|
2018
|
$ 400,000
|
$ 100,000(2)
|
-
|
$ 3,526,000
|
-
|
$ 4,026,000
|
|
David
Steigelfest
|
2019
|
$ 300,000
|
$ 105,000
|
|
$ -
|
|
$ 405,000
|
|
Chief Product Officer
|
2018
|
$ 300,000
|
-
|
-
|
$ 833,000
|
-
|
$ 1,133,000
|
|
Matt
Edelman
|
2019
|
$ 300,000
|
$ -
|
|
$ -
|
|
$ 300,000
|
|
Chief Commercial Officer
|
2018
|
$ 300,000
|
$ -
|
-
|
$ 378,000
|
-
|
$ 678,000
|
|
(1)
|
This column represents the grant date fair value calculated in
accordance with the FASB’s Accounting Standards Codification
Topic 718, Compensation – Stock Compensation
(“ASC 718”).
The methodology used to calculate the estimated value of the equity
awards granted is set forth under Note 2 and Note 8 to the audited
Financial Statements as of and for the years ended December 31,
2019 and 2018, included in our Annual Report on Form 10-K for the
year ended December 31, 2019, which is incorporated by reference
into this prospectus. These amounts do not represent the actual
value, if any, that may be realized by the Named Executive
Officers.
|
|
(2)
|
Refer to “Employment
Agreements and Potential Payments upon Termination or Change of
Control” below for additional
information.
|
-35-
Elements of Compensation
Our
executive compensation program consisted of the following
components of compensation during the years ended December 31, 2019
and 2018:
Base Salary
Each of
our executive officers receives a base salary for the expertise,
skills, knowledge and experience he or she offers to our management
team. The base salary of each of our executive officers is
re-evaluated annually, and may be adjusted to reflect:
|
●
|
the
nature, responsibilities, and duties of the officer’s
position;
|
|
●
|
the
officer’s expertise, demonstrated leadership ability, and
prior performance;
|
|
●
|
the
officer’s salary history and total compensation, including
annual equity incentive awards; and
|
|
●
|
the
competitiveness of the officer’s base salary.
|
Equity Incentive Awards
We believe that to attract and retain management, key employees and
non-management directors, the compensation paid to these persons
should include, in addition to base salary, annual equity
incentives. Our compensation committee determines the amount
and terms of equity-based compensation granted to each individual.
In determining whether to grant certain equity awards to our
executive officers, the compensation committee assesses the level
of the executive officer’s achievement of meeting individual
goals, as well as the executive officer’s contribution
towards goals of the Company. Whenever possible, equity incentive
awards are granted under our stock option plan. However, due to a
prior lack of shares available for issuances under the 2014 Plan,
we have granted certain awards in the form of warrants to key
executive officers in the past.
Employment Agreements and Potential Payments upon Termination or
Change of Control
Ann Hand
On June
16, 2017, we entered into an employment agreement with Ms. Hand to
serve as our Chief Executive Officer, President and Chair of the
Board. The initial term of the agreement is three years (the
“Hand Initial
Term”), and provided that neither party provides 30
days’ notice prior to the expiration of the Hand Initial Term
or a Renewal Term (defined below) of their intent to allow the
agreement to expire and thereby terminate, the agreement shall
continue in effect for successive periods of one year (each, a
“Hand Renewal
Term”). The employment agreement with Ms. Hand
provides for a base annual salary of $400,000, which amount may be increased annually, at the
sole discretion of the Board. Additionally, Ms. Hand shall be
entitled to (i) an annual cash bonus, the amount of which shall be
determined by our compensation committee, (ii) health insurance for
herself and her dependents, for which the Company shall pay 90% of
the premiums, (iii) reimbursement for all reasonable business
expenses, and (iv) participate in the Company’s 401(k) Plan
upon the Board electing to institute it. As additional
compensation, Ms. Hand was issued a warrant to purchase 100,000
shares of Company Common Stock at an exercise price of $10.80 per
share (the “Hand
Warrant”). The warrant has a ten-year term and shall
vest at a rate of 1/36th per month, subject to the acceleration of
all unvested shares upon a Change of Control, as defined in the
employment agreement.
-36-
Ms.
Hand’s employment agreement is terminable by either party at
any time. In the event of termination by us without Cause or by Ms.
Hand for Good Reason, as those terms are defined in the agreement,
she shall receive a severance package consisting of the following:
(i) all accrued obligations as of the termination date; (ii) a cash
payment equal to the greater of (A) her base annual salary for 18
months, payable 50% upon termination, 25% 90 days after the
termination date and 25% 180 days after the termination date, or
(B) the remaining payments due for the term of the agreement; and
(iii) an additional 18 months’ vesting on the Hand Warrant.
In the event of termination by us with Cause or by Ms. Hand without
Good Reason, Ms. Hand shall be entitled to all salary and benefits
accrued prior to the termination date, and nothing else;
provided, however, that Ms.
Hand shall be entitled to exercise that portion of the Hand Warrant
that has vested as of the effective date of the termination until
the Hand Warrant’s expiration.
Ms.
Hand’s employment agreement was amended and restated on
November 15, 2018, pursuant to which the Hand Initial Term of the
agreement was extended through December 31, 2021, with the terms of
the Hand Renewal Term remaining the same. In addition, under the
terms of the amended and restated employment agreement, Ms. Hand
shall be entitled to the following compensation: (i) a base annual
salary of $400,000, which amount may
be increased annually, at the sole discretion of the Board; (ii)
cash bonuses as follows: (a) $100,000 upon the close of a fully
subscribed $10.0 million private placement of 9.00% secured
convertible promissory notes, (b) $250,000 upon the consummation of
the Company’s IPO or a private financing of not less than
$15.0 million (a “Qualified
Financing”), (c)
$150,000, payable in three increments of $50,000 upon achievement
of certain milestones, as determined by the compensation committee;
(iii) health insurance for herself and her dependents, for which
the Company shall pay 90% of the premiums; (iv) reimbursement for
all reasonable business expenses; and (v) participate in the
Company’s 401(k) Plan upon the Board electing to institute
it. As additional compensation, Ms. Hand was also granted (i) a
ten-year common stock purchase warrant to purchase up to 250,000
shares of the Company’s common stock, exercisable at $10.80
per share, which vested as follows: (a) 25% immediately upon
issuance, (b) 50% upon the consummation of the Company’s IPO
or a Qualified Financing, and (c) 25% on the one-year anniversary
of the IPO or a Qualified Financing; and (ii) ten-year stock
options to purchase 166,667 shares of Common Stock, exercisable at
$10.80 per share, which vested as follows: (a) 50% upon
consummation of the Company’s IPO or a Qualified Financing,
(b) 25% upon achievement of 300,000 registered users, and (c) 25%
upon achievement of 400,000 registered users. Further, pursuant to
the terms of the amended and restated employment agreement, in the
event that Ms. Hand is terminated other than for Cause, Ms. Hand
shall be entitled to receive all of her severance benefits on the
effective date of termination.
David Steigelfest
Effective
October 31, 2016, we entered into an employment agreement with Mr.
Steigelfest to serve as our Chief Technology Officer. The initial
term of the agreement is two years (the “Steigelfest Initial Term”), and
provided that neither party provides 30 days' notice prior to the
expiration of the Steigelfest Initial Term or a Steigelfest Renewal
Term of their intent to allow the agreement to expire and thereby
terminate, the agreement shall continue in effect for successive
periods of one year (each, a “Steigelfest Renewal Term”). The
employment agreement with Mr. Steigelfest provides for a base
annual salary of $270,000, which
amount may be increased annually, at the sole discretion of the
Board and was increased to $300,000 by the Board in the fourth
quarter of 2017. Additionally, Mr. Steigelfest
shall be entitled to (i) health
insurance for himself and his dependents, for which the Company
shall pay 50% of the premiums, (ii) reimbursement for all
reasonable business expenses, and (iv) participate in the
Company’s 401(k) Plan upon the Board electing to institute
it.
Mr.
Steigelfest’s employment agreement is terminable by either
party at any time. In the event of termination by us without Cause,
as defined in the agreement, he shall be entitled to all salary and
benefits accrued prior to the date of termination, as well as six
months of accelerated vesting of the Option from the date of
termination. In the event of termination by us with Cause, Mr.
Steigelfest shall be entitled to all salary accrued prior to the
termination date, and nothing else; provided, however, that Mr. Steigelfest
shall be entitled to exercise any stock options that have vested
prior to the date of termination.
-37-
Mr.
Steigelfest’s employment agreement was amended and restated
on November 1, 2018, pursuant to which the Steigelfest Initial Term
of the agreement was extended to two years from November 1, 2018
and Mr. Steigelfest shall serve as both the Company’s Chief
Technology Officer and Chief Product Officer. Effective July 22,
2019, in connection with the hiring of Samir Ahmed, the
Company’s current Chief Technology Officer, Mr. Steigelfest
now serves as the Company’s Chief Product Officer. In
addition, under the terms of the amended and restated employment
agreement, Mr. Steigelfest shall be entitled to the following
compensation: (i) a base annual salary of $300,000, which amount may be increased annually, at the
sole discretion of the Board; (ii) cash bonuses as follows: (a)
$50,000 upon the consummation of the Company’s IPO or a
Qualified Financing, (b) $75,000, payable in five separate
increments of $15,000 upon achievement of certain milestones, as
determined by the compensation committee, and (c) $100,000, payable
in four separate increments of $25,000 upon achievement of certain
milestones on or before June 30, 2019; (iii) health insurance for
himself and his dependents, for which the Company shall pay 90% of
the premiums; (iv) reimbursement for all reasonable business
expenses; and (v) participate in the Company’s 401(k) Plan
upon the Board electing to institute it. As additional
compensation, Mr. Steigelfest was also granted ten-year stock
options to purchase 100,000 shares of Common Stock, exercisable at
the same price per share of the Company’s IPO, which shall
vest in accordance with the Company’s traditional vesting
schedule. Further, pursuant to the terms of the amended and
restated employment agreement, in the event that Mr. Steigelfest is
terminated other than for Cause, Mr. Steigelfest shall be entitled
to receive cash equal to his annual base salary for one year on the
effective date of termination.
Matt Edelman
Effective
November 1, 2018, we entered into an employment agreement with Mr.
Edelman to serve as our Chief Commercial Officer. The initial term
of Mr. Edelman’s employment agreement is two years (the
“Edelman Initial
Term”), and provided that neither party provides 30
days’ notice prior to the expiration of the Edelman Initial
Term or an Edelman Renewal Term (defined below) of their intent to
allow the agreement to expire and thereby terminate, the agreement
shall continue in effect for successive periods of one year (each,
an “Edelman Renewal
Term”). The employment agreement with Mr. Edelman
provides for a base annual salary of $300,000, which amount may be increased annually, at the
sole discretion of the Board. Additionally, Mr. Edelman
shall be entitled to (i) health
insurance for himself and his dependents, for which the Company
shall pay 90% of the premiums, (ii) reimbursement for all
reasonable business expenses, and (iii) participate in the
Company’s 401(k) Plan upon the Board electing to institute
it.
Mr.
Edelman’s employment agreement is terminable by either party
at any time. In the event of termination by us without Cause, as
defined in the agreement, he shall be entitled to the following
severance payment based upon his length of employment with the
Company and his existing annual salary, which he shall receive 30
days after the final day of his employment: (i) from six to nine
months of employment, one month of severance pay; (ii) from nine
months to one year of employment, two months of severance pay;
(iii) from one year to two years of employment, three months of
severance pay; and (iv) for each additional year of employment
beyond one year, one additional month of severance pay;
provided, however, that in
the event of a change of control transaction involving the Company,
Mr. Edelman shall be entitled to six months of severance pay. In
the event of such termination, and in order to receive the
foregoing severance benefits, Mr. Edelman shall be required to
execute a mutually agreed upon Mutual Release agreement. In the
event of termination by us with Cause, Mr. Edelman shall be
entitled to all salary accrued prior to the termination date, and
nothing else; provided,
however, that Mr. Edelman shall be entitled to exercise any
stock options that have vested prior to the date of
termination.
-38-
Outstanding Equity Awards at Fiscal Year-End
The following table discloses outstanding stock option awards held
by each of the Named Executive Officers as of December 31,
2019:
|
|
|
Option/Warrant
Awards
|
|||
|
Name
|
Grant
Date
|
Number of securities underlying unexercised
options/ warrants (#)
Exercisable
|
Number of securities underlying unexercised
options/ warrants (#)
Unexercisable
|
Option/ warrant exercise price ($)
|
Option/ warrant expiration date
|
|
|
|
|
|
|
|
|
Ann
Hand
|
6/5/15
|
166,667
|
-
|
$ 9.00
|
6/5/25
|
|
|
6/16/17
|
51,334
|
-
|
$ 9.00
|
6/15/27
|
|
|
6/16/17
|
32,000
|
-
|
$ 10.80
|
6/15/27
|
|
|
6/16/17
|
91,667
|
8,333(1)
|
$ 10.80
|
6/6/27
|
|
|
10/31/18
|
166,667
|
-(2)
|
$ 10.80
|
10/31/28
|
|
|
10/31/18
|
187,500
|
62,500(3)
|
$ 10.80
|
10/31/28
|
|
David
Steigelfest
|
10/16/14
|
116,667
|
-
|
$ 0.30
|
10/15/24
|
|
|
12/21/15
|
833
|
-
|
$ 9.00
|
12/21/25
|
|
|
6/16/17
|
34,669
|
|
$ 9.00
|
6/15/27
|
|
|
6/16/17
|
32,000
|
|
$ 10.80
|
6/15/27
|
|
|
10/31/18
|
29,166
|
70,834(4)
|
$ 10.80
|
10/31/28
|
|
Matt
Edelman
|
7/24/17
|
39,536
|
25,904(5)
|
$ 10.80
|
7/24/27
|
|
|
6/29/18
|
6,250
|
10,417(6)
|
$ 10.80
|
6/29/28
|
|
|
10/31/18
|
25,000
|
-
|
$ 10.80
|
10/31/28
|
|
(1)
|
Represents a warrant to purchase shares of our common stock, which
warrant vests 2,778 shares per month, and becomes fully vested on
June 6, 2020. The warrant was issued in lieu of options due to the
lack of sufficient available shares authorized for issuance under
the 2014 Plan.
|
|
(2)
|
Represents an option to purchase shares of our common stock which
50% vested upon consummation of the Company’s IPO, 25%, on
April 30, 2019 upon achievement of target registered users, and
25%, on June 30, 2019, upon achievement of target registered
users.
|
|
(3)
|
Represents a warrant to purchase shares of our common stock, which
warrant vested 25% immediately upon issuance and 50% upon the
consummation of the Company’s IPO, and the remaining 25%
vests on the one-year anniversary of the IPO or a Qualified
Financing.
|
|
(4)
|
Represents an option to purchase shares of our common stock, which
option vested with respect to 25,000 shares on October 31, 2019,
and the remainder vesting at a rate of 2,084 shares per month, and
becomes fully vested on October 30, 2022.
|
|
(5)
|
Represents an option to purchase shares of our common stock, which
option vested with respect to 16,360 shares on July 24, 2018, and
then at a rate of 1,364 shares per month, and becomes fully vested
on July 24, 2021.
|
|
(6)
|
Represents an option to purchase shares of our common stock, which
option shall vest with respect to 4,167 shares on October 31, 2019,
and then at a rate of 348 shares per month, and becomes fully
vested on October 30, 2022.
|
-39-
Securities Authorized for Issuance under Equity Compensation
Plans
The following table provides a summary of the securities authorized
for issuance under our equity compensation plans as of December 31,
2019.
|
Plan
category
|
Number
of securities to be issued upon exercise of outstanding options,
warrants and rights
|
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
|
|
|
|
|
2014
Plan
|
1,486,689
|
$ 8.94
|
308,479
|
|
Equity compensation
plans not approved by security holders
|
93,000
|
7.74
|
N/A
|
|
Total
|
1,579,689
|
$ 8.86
|
308,479
|
Stock Option and Incentive Plan
2014 Stock Option and Incentive Plan
Our Board unanimously approved the 2014 Plan on October 13, 2014. The 2014 Plan was
subsequently amended in May 2015, May 2016, July 2017 and October
2018. The maximum number of shares of common stock issuable under
the 2014 Plan is currently 1,833,334 shares, subject to adjustments
for stock splits, stock dividends or other similar changes in our
common stock or our capital structure.
Our 2014 Plan provides for the grant of (a) Incentive Stock Options
(within the meaning of Section 422 of the Code) to our
full-time employees (“Employees”), subject to the
requirements of Section 422(c)(6) where an Employee owns 10% or
more of our voting stock outstanding; (b) Non-Qualified Options
(together with Incentive Stock Options, “Options”); (c)
stock awards; and (d) performance shares to any individual who is
(i) an Employee, (ii) a member of our Board, or (iii) an
independent contractor who provides services for the
Company.
Plan Administration
Pursuant to the 2014 Plan, our Board has delegated the authority to
administer the 2014 Plan to the Board’s compensation
committee (the “Committee”). Subject to the provisions of our 2014
Plan, the Committee has the power to determine the terms of the
awards, including the exercise price, the number of shares subject
to each award, the exercisability of the awards, and the form of
consideration, if any, payable upon exercise. The Committee also
has the authority to amend, modify, extend renew or terminate
outstanding Options, or may accept the cancellation of outstanding
Options, whether or not granted under the 2014 Plan, in return for
the grant of new Options at the same or a different price.
Additionally, the Committee may shorten the vesting period, extend
the exercise period, remove any or all restrictions or convert an
Incentive Option to a Non-Qualified Option, if, at its sole
discretion, it determines that such action is in the best interest
of the Company; provided, however,
that any modification made to
outstanding Options requires the prior consent of the holder(s) of
such Options, unless the Committee determines that the action would
not materially and adversely affect such
holder(s).
Incentive Stock Options
The exercise price of Incentive Stock Options granted under our
2014 Plan must at least be equal to 100% of the fair market value
of our common stock on the date of grant. The term of an Incentive
Stock Option may not exceed ten years, except that with respect to
any participant who owns more than 10% of the voting power of all
classes of our outstanding stock, the term must not exceed five
years and the exercise price must equal at least 110% of the fair
market value on the grant date.
Non-Qualified Stock Options
The exercise price of Non-Qualified Options granted under our 2014
Plan must at least be equal to 85% of the fair market value of our
common stock on the date of grant. The term of a Non-Qualified
Stock Option may not exceed ten years.
-40-
Stock Awards or Sales
Eligible individuals may be issued shares of common stock directly,
upon the attainment of performance milestones or the completion of
a specified period of service or as a bonus for past services. The
purchase price for the shares shall not be less than 100% of the
fair market value of the shares on the date of issuance, and
payment may be in the form of cash or past services rendered.
Eligible individuals shall have no stockholder rights with respect
to any unvested restricted shares or restricted share units issued
to them under the stock award or sales program, however, eligible
individuals shall have the right to receive any regular cash
dividends paid on such shares.
Termination of Relationship
Except as the Committee may otherwise determine with respect to a
Non-Qualified Stock Option, if the holder of an Option ceases to
have a Relationship (as defined in the 2014 Plan) with the Company
for any reason other than death or permanent disability, any
Options granted to him shall terminate 90 days from the date on
which such Relationship terminates; provided,
however, that no Option may be
exercised or claimed by the holder of an Option following the
termination of his Relationship for Cause (as defined in the 2014
Plan). In the event that the Relationship terminates as a result of
the death or permanent disability of the Option holder, any Options
granted to him shall terminate one year from the date of his death
or termination due to permanent disability. In no event may an
option be exercised later than the expiration of its
term.
Certain Adjustments
In the event of certain changes in our capitalization, to prevent
diminution or enlargement of the benefits or potential benefits
available under the 2014 Plan, the administrator will adjust the
number and class of shares available for future grants under the
2014 Plan, the exercise price of outstanding Options, the number of
shares covered by each outstanding award, or the purchase price of
each outstanding award. In connection with the
one-for-three Reverse Stock Split (defined below) of our common
stock that was effected on February 8, 2019, the terms of certain
awards granted under our 2014 Plan were equitably adjusted in
accordance with the provisions thereof.
Reorganization
In the event we are a party to a merger or other corporate
reorganization, all outstanding Options shall be subject to the
agreement of merger or reorganization. Such agreement may provide
for the assumption of the outstanding Options by the surviving
corporation or its parent or for their continuation by the Company
(if the Company is a surviving corporation); provided,
however, that if the assumption
or continuation is not provided by such agreement, then the
Committee, in its sole discretion, shall have the option of
offering the payment of a cash settlement equal to the difference
between the amount to be paid for one share under the agreement and
the exercise price.
Change of Control
Under the 2014 Plan, a Change of Control is generally defined as:
(i) the sale of all or substantially all of the assets of the
Company, or (ii) any merger, consolidation or acquisition of the
Company with, by or into another corporation, entity or third
party, the result of which is a change in the ownership of more
than 50% of the voting capital stock of the Company.
In the event of a Change of Control, all restrictions on all awards
or sales of shares will accelerate and vesting on all unexercised
and unvested Options will occur on the Change of Control
date.
Director Compensation
On
January 31, 2019, and as amended on August 13, 2019, effective July
1, 2019, our Board adopted a director compensation plan for our
non-employee directors, the details of which are presented in the
table below. We do not provide deferred compensation or
retirement plans for non-employee directors.
-41-
Schedule of Director Fees
|
Compensation
Element
|
Cash
(1)
|
Equity
(2)
|
|
|
|
|
|
Annual
Retainer
|
$ 60,000(3)
|
$ 60,000(4)
|
|
Audit Committee
Chair
|
$ 15,000
|
$ -
|
|
Compensation
Committee Chair
|
$ 10,000
|
$ -
|
|
Nominating and
Governance Committee Chair
|
$ 5,000
|
$ -
|
|
Audit and
Nominating and Governance Committee Member
|
$ 5,000
|
$ -
|
|
Compensation
Committee Member
|
$ 3,500
|
$ -
|
|
(1)
|
Cash
compensation is payable in equal installments on a quarterly basis;
provided, however, that no monthly cash retainer
will be paid after any termination of service.
|
|
(2)
|
Equity
awards will be issuable in the form of restricted stock units
(“RSUs”). On
the date of the Company’s annual meeting of stockholders,
each director will receive RSUs at a per share price equal to the
closing price of the Company’s common stock on the grant
date, which RSU will become fully vested on the one-year
anniversary of the initial grant date.
|
|
(3)
|
Any new
non-employee director appointed to the Board will receive cash
compensation equal to a prorated portion of the annual retainer
amount.
|
|
(4)
|
Any new
non-employee director appointed to the Board will receive a RSU
having a grant date value equal to a prorated portion of annual RSU
award amount, which RSUs will become fully vested on the earlier of
(i) the one year anniversary of the initial grant date or (ii) the
next annual meeting of the Company’s
stockholders.
|
2019 Summary Table of Director Compensation
The following table sets forth the compensation awarded to, earned
by, or paid to each person who served as a non-employee director
during the fiscal year ended December 31, 2019:
|
Name
|
Fees Earned
or Paid
in Cash ($)
|
Option/Warrant
Awards($)
|
Other
Compensation ($)
|
Total ($)
|
|
|
|
|
|
|
|
Jeff
Gehl(1)
|
$ 28,571
|
$ 60,000
|
-
|
$ 88,571
|
|
Robert
Stewart(2)(3)
|
$ 22,821
|
$ 60,000
|
-
|
$ 82,821
|
|
Kristian
Patrick(4)
|
$ 22,824
|
$ 60,000
|
-
|
$ 82,821
|
|
Michael
Keller(5)
|
$ 26,071
|
$ 60,000
|
-
|
$ 86,071
|
|
Mark
Jung(6)(7)
|
$ 22,630
|
$ 60,000
|
$ 60,000
|
$ 142,630
|
|
(1)
|
Reflects
prorated 2019 annual retainer and Audit Committee chair fees, as
described above.
|
|
(2)
|
Reflects
prorated 2019 annual retainer and Compensation Committee member
fees, as described above.
|
|
|
|
|
(3)
|
Mr.
Stewart, who served as a director during the year ended December
31, 2019, resigned from the Board on March 31, 2020.
|
|
(4)
|
Reflects
prorated 2019 annual retainer and Compensation Committee member
fees, as described above.
|
|
(5)
|
Reflects
prorated 2019 annual retainer, Nominating and Governance Committee
chair fees and Audit Committee member fees, as described
above.
|
|
(6)
|
Reflects
prorated 2019 annual retainer, Compensation Committee chair fees,
and Audit Committee member fees, as described above.
|
|
(7)
|
In
connection with Mr. Jung’s appointment as a director on our
Board, the Company and Mr. Jung entered into the Consulting
Agreement (defined below), pursuant to which Mr. Jung will provide
the Company with strategic advice and planning services for which
Mr. Jung receives a cash payment of $7,500 per month from the
Company. The Consulting Agreement had an initial term that extended
to December 31, 2019, but may be extended upon mutual agreement of
Mr. Jung and the Company.
|
-43-
CERTAIN RELATIONSHIPS AND
RELATED PARTY TRANSACTIONS
In
connection with Mr. Jung’s appointment as a director on our
Board, the Company and Mr. Jung entered into a consulting agreement
(the “Consulting
Agreement”), pursuant to which Mr. Jung will provide
the Company with strategic advice and planning services for which
Mr. Jung will receive a cash payment of $7,500 per month from the
Company. The Consulting Agreement has an initial term that runs
until December 31, 2019, but may be extended upon mutual agreement
of Mr. Jung and the Company.
John
Miller, one of our co-founders and former members of our Board, is
also the founder and serves on the board of directors of
CaliBurger. Although Mr. Miller resigned from the Board immediately
prior to the consummation of our IPO, he was an active member of
our Board at the time of each of the transactions with CaliBurger
described below:
On
August 3, 2018, CaliBurger entered into a Note Purchase Agreement
for the purchase of a 2018 Note in the principal amount of $1.0
million, as well as corresponding 2018 Warrants. Subsequent to
August 3, 2018, $200,000 of the 2018 Notes and related 2018
Warrants were transferred to unrelated third parties.
On
February 21, 2018, the Company issued a 9.00% Senior Secured
Convertible Promissory Note with common stock purchase warrants in
the original principal amount of $1.0 million, which note was
converted (including all original principal and accrued interest)
on May 28, 2018 into a new 9.00% Senior Secured Convertible
Promissory Note with common stock purchase warrants. Subsequently,
on August 2, 2018, CaliBurger purchased an additional 9.00% Senior
Secured Convertible Promissory Note in the original principal
amount of $1,000,000 with common stock purchase
warrants.
Related Party Transaction Policy
Our
Board recognizes the fact that transactions with related persons
present a heightened risk of conflicts of interests and/or improper
valuation (or the perception thereof). Accordingly, our Board has
adopted a written policy addressing the approval of transactions
with related persons, in conformity with the requirements for
issuers having publicly held common stock listed on the Nasdaq
Capital Market. Pursuant to our Related Persons Transactions Policy
(the “Policy”),
any related-person transaction, and any material amendment or
modification of a related-person transaction, is required to be
reviewed and approved or ratified by the Board’s audit
committee, which shall be composed solely of independent directors
who are disinterested, or in the event that a member of the audit
committee is a Related Person, as defined below, then by the
disinterested members of the audit committee; provided, however, that in the event
that management determines that it is impractical or undesirable to
delay the consummation of a related person transaction until a
meeting of the audit committee, then the Chair of the audit
committee may approve such transaction in accordance with this
policy; such approval must be reported to the audit committee at
its next regularly scheduled meeting. In determining whether to
approve or ratify any related person transaction, the audit
committee must consider all of the relevant facts and circumstances
and shall approve only those transactions that are deemed to be in
the best interests of the Company.
-44-
Pursuant to our Policy and SEC rules, a “related person
transaction” includes any transaction, arrangement or
relationship which: (i) the Company is a participant; (ii) the
amount involved exceeds $120,000; and (iii) an executive officer,
director or director nominee, or any person who is known to be the
beneficial owner of more than 5% of our common stock, or any person
who is an immediate family member of an executive officer, director
or director nominee or beneficial owner of more than 5% of our
common stock, had or will have a direct or indirect material
interest (each a “Related
Person”).
In
connection with the review and approval or ratification of a
related person transaction:
|
●
|
Management
shall be responsible for determining whether a transaction
constitutes a related person transaction subject to the Policy,
including whether the Related Person has a material interest in the
transaction, based on a review of all of the facts and
circumstances; and
|
|
●
|
Should
management determine that a transaction is a related person
transaction subject to the Policy, it must disclose to the audit
committee all material facts concerning the transaction and the
Related Person’s interest in the transaction.
|
SECURITY OWNERSHIP
OF MANAGEMENT AND CERTAIN SECURITYHOLDERS
The following table
sets forth certain information known to us regarding beneficial
ownership of our common stock as of May 12, 2020 for (i) each of our executive
officers and directors individually, (ii) all of our executive
officers and directors as a group, and (iii) each person, or group
of affiliated persons, known by us to be the beneficial owner of
more than 5% of our capital stock. A person is also deemed to be a
beneficial owner of any securities of which that person has a right
to acquire beneficial ownership within 60 days. The percentage of
beneficial ownership in the table below is based on 8,573,922 shares of common stock deemed to
be outstanding as of May 12,
2020.
|
Name,
address and title of beneficial owner (1)
|
Shares
of Common Stock
|
Total
Number of Shares Subject to Exercisable Options and
Warrants
|
Total
Number of Shares Beneficially Owned
|
Percentage
of Voting Common Stock Outstanding (2)
|
|
Officers and Directors
|
|
|
|
|
|
Ann
Hand
Chief Executive Officer, President and Chair
|
76,374
|
613,890
|
690,264
|
8.1%
|
|
David
Steigelfest
Chief Products and Technology Officer
|
50,000
|
149,773
|
199,773
|
2.3%
|
|
Clayton
Haynes
Chief Financial Officer
|
2,000
|
16,667
|
18,667
|
*
|
|
Matt
Edelman
Chief Commercial Officer
|
2,500
|
735
|
3,235
|
*
|
|
Jeff Gehl (3)
Director
|
127,205
|
112,100
|
239,305
|
2.8%
|
|
Kristin
Patrick
Director
|
5,455
|
-
|
5,455
|
*
|
|
Michael Keller (4)
Director
|
106,009
|
100,839
|
206,848
|
2.4%
|
|
Mark
Jung
Director
|
50,610
|
-
|
50,610
|
*%
|
|
Executive Officers and Directors as a
Group (8 persons)
|
420,153
|
994,004
|
1,414,157
|
16.5%
|
|
|
|
|
|
|
|
Greater than 5%
Stockholders
|
|
|
|
|
|
Pu
Luo Chung VC Private Limited (5)
37 Jalan
Pemimpin
#
06-12
Singapore
577177
|
471,128
|
-
|
471,128
|
5.5
% |
______________________
* Less than 1.0%
|
(1)
|
Unless
otherwise indicated, the business address for each of the executive
officers and directors is c/o Super League Gaming, Inc., 2906
Colorado Ave., Santa Monica, CA 90404.
|
|
(2)
|
Beneficial
ownership is determined in accordance with the rules of the SEC. In
computing the number of shares beneficially owned by a person and
the percentage of ownership by that person, shares of voting common
stock subject to outstanding rights to acquire shares of voting
common stock held by that person that are currently exercisable or
exercisable within 60 days are deemed outstanding. Such shares are
not deemed outstanding for the purpose of computing the percentage
of ownership by any other person.
|
|
(3)
|
Includes
(i) 22,121 shares of common stock, 25,000 shares of common stock
issuable upon exercise of stock options and 40,802 shares issuable
upon conversion of warrants held by Mr. Gehl, (ii) 80,553 shares of
common stock held by BigBoy Investment Partnership, LLC, and (iii)
24,532 shares of common stock and 46,297 shares issuable upon
conversion of warrants held by BigBoy, LLC.
Mr.
Gehl is the Managing Member of BigBoy Investment Partnership and
BigBoy, LLC, and, therefore, may be deemed to beneficially own
these shares. The business address for BigBoy Investment
Partnership and BigBoy, LLC is 111 Bayside Dr., Suite 270, Newport
Beach, CA 92625.
|
|
(4)
|
Includes
(i) 100,301 shares of common stock and 95,491 shares of common
stock issuable upon conversion of warrants held by the Michael R.
Keller Trust, (ii) 2,854 shares of common stock and 2,674 shares of
common stock issuable upon conversion of warrants held by the
Keller 2004 IRR Trust FBO William, and (iii) 2,854 shares of common
stock and 2,674 shares of common stock issuable upon conversion of
warrants held by the Keller 2004 IRR Trust FBO
Charles.
|
|
(5)
|
Stuart
Hills, partner of Pu Luo Chung VC Private Limited has sole voting
and dispositive power over these shares and may be deemed to
beneficially own these securities.
|
-46-
LEGAL MATTERS
Certain legal matters in connection with this offering will be
passed upon for us by Disclosure Law Group, a Professional
Corporation, of San Diego, California.
EXPERTS
Squar
Milner LLP, our independent registered
public accounting firm, has audited our financial statements
included in our Annual Report on Form 10-K for the years ended
December 31, 2019 and 2018, as set forth in their report
(which includes an explanatory paragraph relating to the
Company’s ability to continue as a going concern), which is
incorporated by reference in this prospectus. Our financial
statements are incorporated by reference in reliance on
Squar Milner LLP’s report, given
on their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual, quarterly and special
reports, proxy statements and other information with the SEC. Our
SEC filings are available, at no charge, to the public at the
SEC’s website at http://www.sec.gov.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents filed by us with the SEC are incorporated
by reference in this prospectus:
●
our Annual Report on Form 10-K for the year ended December 31,
2019, filed on March 23, 2020;
●
our Current Report on Form 8-K, filed on April 3,
2020;
●
our
Current Report on Form 8-K, filed on April 28,
2020;
●
our
Current Report on Form 8-K, filed on May 7, 2020;
and
●
the description of our common stock which is registered under
Section 12 of the Exchange Act, in our registration statement
on Form 8-A, filed on
February 21, 2019, including
any amendment or reports filed for the purposes of updating this
description.
We also incorporate by reference all documents we file pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act (other than
any portions of filings that are furnished rather than filed
pursuant to Items 2.02 and 7.01 of a Current Report on Form 8-K)
after the date of the initial registration statement of which this
prospectus is a part and prior to effectiveness of such
registration statement. All documents we file in the future
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this prospectus and prior to the termination of
the offering are also incorporated by reference and are an
important part of this prospectus.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for the purposes of this registration statement to the
extent that a statement contained herein or in any other
subsequently filed document which also is or deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part
of this registration statement.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been incorporated by reference in the
prospectus but not delivered with the prospectus. You may request a
copy of these filings, excluding the exhibits to such filings which
we have not specifically incorporated by reference in such filings,
at no cost, by writing to or calling us at:
Super League Gaming, Inc.
2906 Colorado Ave.
Santa Monica, California 90404
(802) 294-2754
This prospectus is part of a registration statement we filed with
the SEC. You should only rely on the information or representations
contained in this prospectus and any accompanying prospectus
supplement. We have not authorized anyone to provide information
other than that provided in this prospectus and any accompanying
prospectus supplement. We are not making an offer of the securities
in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any accompanying
prospectus supplement is accurate as of any date other than the
date on the front of the document.
-48-
PROSPECTUS
$40,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
UNITS
,
2020
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND
DISTRIBUTION
The following table sets forth an estimate of the fees and
expenses, other than the underwriting discounts and commissions,
payable by us in connection with the issuance and distribution of
the securities being registered. All the amounts shown are
estimates, except for the SEC and FINRA registration
fees.
|
|
Amount
|
|
SEC
registration fee
|
$ 5,192
|
|
FINRA
registration fee
|
$ 6,500
|
|
Legal
fees and expenses
|
$ 150,000
|
|
Accounting
fees and expenses
|
$ 100,000
|
|
Printing
and miscellaneous fees and expenses
|
$ 10,000
|
|
Total
|
$ 271,692
|
ITEM 15. INDEMNIFICATION OF OFFICERS AND
DIRECTORS
Section 145(a) of the Delaware General Corporation Law
(“DGCL”) provides, in general, that a Delaware
corporation may indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the
right of the corporation) because that person is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, employee
or agent of another corporation or other enterprise. The indemnity
may include expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, so long as
the person acted in good faith and in a manner he or she reasonably
believed was in or not opposed to the corporation’s best
interests, and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was
unlawful.
Section 145(b) of the DGCL provides, in general, that a Delaware
corporation may indemnify any person who was or is a party, or is
threatened to be made a party, to any threatened, pending or
completed action or suit by or in the right of the corporation to
obtain a judgment in its favor because the person is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or other
enterprise. The indemnity may include expenses (including
attorneys’ fees) actually and reasonably incurred by the
person in connection with the defense or settlement of such action,
so long as the person acted in good faith and in a manner the
person reasonably believed was in or not opposed to the
corporation’s best interests, except that no indemnification
shall be permitted without judicial approval if a court has
determined that the person is to be liable to the corporation with
respect to such claim. Section 145(c) of the DGCL provides that, if
a present or former director or officer has been successful in
defense of any action referred to in Sections 145(a) and (b) of the
DGCL, the corporation must indemnify such officer or director
against the expenses (including attorneys’ fees) he or she
actually and reasonably incurred in connection with such
action.
Section 145(g) of the DGCL provides, in general, that a corporation
may purchase and maintain insurance on behalf of any person who is
or was a director, officer, employee or agent of the corporation,
or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or
other enterprise against any liability asserted against and
incurred by such person, in any such capacity, or arising out of
his or her status as such, whether or not the corporation could
indemnify the person against such liability under Section 145 of
the DGCL.
Our Amended and Restated Certificate of Incorporation
(“Charter”), and our Amended and Restated Bylaws
(“Bylaws”) provide for the indemnification of our
directors and officers to the fullest extent permitted under the
DGCL.
We also expect to enter into separate indemnification agreements
with our directors and officers in addition to the indemnification
provided for in our Charter and Bylaws. These indemnification
agreements will provide, among other things, that we will indemnify
our directors and officers for certain expenses, including damages,
judgments, fines, penalties, settlements and costs and
attorneys’ fees and disbursements, incurred by a director or
officer in any claim, action or proceeding arising in his or her
capacity as a director or officer of the company or in connection
with service at our request for another corporation or entity. The
indemnification agreements also provide for procedures that will
apply in the event that a director or officer makes a claim for
indemnification.
We also maintain a directors’ and officers’ insurance
policy pursuant to which our directors and officers are insured
against liability for actions taken in their capacities as
directors and officers.
We have entered into an underwriting agreement in connection with
this offering, which provides for indemnification by the
underwriter of us, our officers and directors, for certain
liabilities, including liabilities arising under the Securities
Act.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions or otherwise, the registrant has been advised that in
the opinion of the SEC such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable.
ITEM 16. EXHIBITS
|
1.1*
|
Form
of Underwriting Agreement
|
|
1.2*
|
Form
of Placement Agent Agreement
|
|
4.1*
|
Form
of any certificate of designation with respect to any preferred
stock issued hereunder and the related form of preferred stock
certificate
|
|
4.2*
|
Form
of any warrant agreement with respect to each particular series of
warrants issued hereunder
|
|
4.3*
|
Form
of any warrant agency agreement with respect to each particular
series of warrants issued hereunder
|
|
4.4*
|
Form
of any unit agreement with respect to any unit issued
hereunder
|
|
Form
of indenture
|
|
|
4.6*
|
Form
of debt securities
|
|
Opinion
of Disclosure Law Group, a Professional
Corporation
|
|
|
Consent
of Disclosure Law Group, a Professional Corporation (included in
Exhibit 5.1)
|
|
|
Consent
of Independent Registered Public Accounting Firm – Squar
Milner LLP
|
|
|
Power
of Attorney
|
|
|
25.1*
|
Statement
of Eligibility of Trustee on Form T-1 under the Trust Indenture Act
of 1939, as amended
|
|
*
|
To be filed, if necessary, by an amendment to this registration
statement or incorporation by reference pursuant to a Current
Report on Form 8-K in connection with an offering of
securities.
|
|
**
|
Previously filed.
|
ITEM 17. UNDERTAKINGS
(a)
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration
statement:
(i)
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement; and
(iii)
To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement.
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in reports filed with or furnished to the Securities and
Exchange Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
that is a part of the registration
statement.
(2)
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(3)
To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(5)
That, for the purpose of determining liability under the Securities
Act of 1933 to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3)
shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the
registration statement; and
(B) Each prospectus required to be filed pursuant
to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such
form of prospectus is first used after effectiveness or the date of
the first contract of sale of securities in the offering described
in the prospectus. As provided in Rule 430B, for liability purposes
of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the
registration statement to which that prospectus relates, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof. Provided, however, that no statement made in a registration
statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that is
part of the registration statement will, as to a purchaser with a
time of contract of sale prior to such effective date, supersede or
modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective
date.
(6)
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The
undersigned registrant undertakes that in a primary offering of
securities of the undersigned registrant pursuant to this
registration statement, regardless of the underwriting method used
to sell the securities to the purchaser, if the securities are
offered or sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities
to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed pursuant
to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or
on behalf of the undersigned registrant or used or referred to by
the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes
that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing
of an employee benefit plan’s annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the
initial bona
fide offering
thereof.
(h) Insofar as indemnification for
liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication
of such issue.
(j) The undersigned registrant hereby undertakes
to file an application for the purpose of determining the
eligibility of the trustee to act under subsection (a) of Section
310 of the Trust Indenture Act (the “Act”) in accordance with the rules and
regulations prescribed by the SEC under Section 305(b)(2) of the
Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City
of Santa Monica, State of California, on this 12th
day of May, 2020.
|
|
Super League Gaming, Inc.
|
|
|
|
|
|
|
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By:
|
/s/
Ann Hand
|
|
|
|
Ann
Hand
Chief Executive Officer, President and
Chair of the Board
|
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in
the capacities and on the dates indicated.
|
Signature
|
Title
|
Date
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|
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|
|
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/s/*
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Chief
Executive Officer,
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May 12, 2020
|
|
Ann
Hand
|
President,
Chair of the Board
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(Principal
Executive Officer)
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|
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/s/
*
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Chief
Financial Officer
|
May 12, 2020
|
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Clayton
Haynes
|
(Principal
Financial and Accounting Officer)
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|
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/s/*
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Director
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May 12, 2020
|
|
David
Steigelfest
|
|
|
|
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/s/*
|
Director
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May 12, 2020
|
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Jeff
Gehl
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|
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/s/*
|
Director
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May 12, 2020
|
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Kristin
Patrick
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|
|
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/s/*
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Director
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May 12, 2020
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Michael
Keller
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|
|
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/s/*
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Director
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May 12, 2020
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Mark
Jung
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* By:
/s/ Ann
Hand
Attorney-in-fact
II-4
