As filed with the Securities and Exchange Commission on March 25, 2021.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-10
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ENGINE MEDIA HOLDINGS, INC.
(Exact name of Registrant as specified in its charter)
British Columbia, Canada
(Province or other jurisdiction of incorporation or organization)
7372
(Primary Standard Industrial Classification Code Number, if applicable)
Not Applicable
(I.R.S. Employer Identification No., if applicable)
77 King Street West
Suite 3000, PO Box 95
Toronto, Ontario, Canada M5K 1G8
(705) 445-3006
(Address and telephone number of Registrant’s principal executive offices)
Louis Schwartz
Engine Media Holdings, Inc.
33 Whitehall Street
8th Floor
New York, New York
United States, 10004
(212) 931-1200
(Name, address (including zip code) and telephone number (including area code) of agent for service in the United States)
Copies to:
Louis Schwartz Engine Media Holdings, Inc. 33 Whitehall Street 8th Floor New York, New York United States, 10004 (212) 931-1200 |
James Guttman Richard Raymer Dorsey
& Whitney LLP Street, Suite 4310 Toronto, Ontario Canada,
M5J 2S1 |
Approximate date of commencement of proposed sale of the securities to the public:
From time to time after this Registration Statement becomes effective.
Province of British Columbia, Canada
(Principal jurisdiction regulating this offering)
It is proposed that this filing shall become effective (check appropriate box below):
| A. | [ ] | upon filing with the Commission pursuant to Rule 467(a) (if in connection with an offering being made contemporaneously in the United States and Canada). | |
| B. | [X] | at some future date (check the appropriate box below): | |
| 1. | [ ] | pursuant to Rule 467(b) on ( ) at ( ) (designate a time not sooner than 7 calendar days after filing). | |
| 2. | [ ] | pursuant to Rule 467(b) on ( ) at ( ) (designate a time 7 calendar days or sooner after filing) because the securities regulatory authority in the review jurisdiction has issued a receipt or notification of clearance on ( ). | |
| 3. | [X] | pursuant to Rule 467(b) as soon as practicable after notification of the Commission by the Registrant or the Canadian securities regulatory authority of the review jurisdiction that a receipt or notification of clearance has been issued with respect hereto. | |
| 4. | [ ] | after the filing of the next amendment to this Form (if preliminary material is being filed). | |
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to the home jurisdiction’s shelf prospectus offering procedures, check the following box. [X]
CALCULATION OF REGISTRATION FEE
| Proposed | ||||||||||||
| Maximum | ||||||||||||
| Aggregate | Amount of | |||||||||||
| Amount to be | Offering | Registration | ||||||||||
| Registered(1) | Price(1)(2) | Fee(2) | ||||||||||
| Title of Each Class of Securities to be Registered | ||||||||||||
| Common Shares | ||||||||||||
| Preference Shares | ||||||||||||
| Warrants | ||||||||||||
Subscription Receipts | ||||||||||||
| Debt Securities | ||||||||||||
| Units | ||||||||||||
| Total | US$150,000,000 | US$150,000,000 | US$16,365 | |||||||||
| (1) | There are being registered under this registration statement such indeterminate number of Common Shares, Preference Shares, Warrants, Subscription Receipts, Debt Securities and Units of the Registrant as shall have an aggregate initial offering price of US$150,000,000. Any securities registered by this registration statement may be sold separately or as units with other securities registered under this registration statement. The proposed maximum initial offering price per security will be determined, from time to time, by the Registrant in connection with the sale of the securities under this registration statement. |
| (2) | Estimated solely for the purpose of calculating the amount of the registration fee pursuant to Rule 457 of the Securities Act of 1933, as amended (the “Securities Act”). |
The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registration Statement shall become effective as provided in Rule 467 under the Securities Act or on such date as the Commission, acting pursuant to Section 8(a) of the Securities Act, may determine.
PART I
INFORMATION REQUIRED TO BE DELIVERED TO OFFEREES OR PURCHASERS
Information contained herein is subject to completion or amendment. A registration statement relating to these securities has been filed with the United States Securities and Exchange Commission. These securities may not be sold nor may offers to buy be accepted prior to the time the registration statement becomes effective. This prospectus shall not constitute an offer to sell or the solicitation of an offer to buy, nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
SHORT FORM BASE SHELF PROSPECTUS
| New Issue | March 25, 2021 |
ENGINE MEDIA HOLDINGS, INC.
US$150,000,000
Common Shares
Preference Shares
Warrants
Subscription Receipts
Debt Securities
Units
Engine Media Holdings, Inc. (“Engine”, the “Company”, “we” or “us”) may offer and issue from time to time common shares of the Company (“Common Shares”), preference shares of the Company (“Preference Shares”, and together with Common Shares, the “Shares”), warrants to purchase Common Shares (“Warrants”), subscription receipts of the Company exchangeable for Common Shares and/or other securities of the Company (“Subscription Receipts”), debt securities (the “Debt Securities”), or any combination thereof (“Units” and collectively with all of the foregoing, the “Securities”) up to an aggregate initial offering price of US$150,000,000 (or the equivalent thereof if the Securities are denominated in any other currency or currency unit) during the 25-month period that this short form base shelf prospectus (this “Prospectus”), including any amendments hereto, remains effective. Securities may be offered in amounts, at prices and on terms to be determined based on market conditions at the time of sale and set forth in one or more accompanying prospectus supplements (collectively or individually, as the case may be, a “Prospectus Supplement”).
All information required to be included in a short form prospectus but permitted under applicable law to be omitted from this Prospectus will be contained in one or more Prospectus Supplements that will be delivered to purchasers together with this Prospectus, except where an exemption from such delivery requirements is available. Each Prospectus Supplement will be incorporated by reference into this Prospectus for the purposes of securities legislation as of the date of the Prospectus Supplement and only for the purposes of the distribution of the Securities to which the Prospectus Supplement pertains.
The outstanding Common Shares are listed and posted for trading on the TSX Venture Exchange (“TSXV”) and quoted on the OTCQB® Venture Market operated by OTC Markets Group, Inc. Unless otherwise specified in the applicable Prospectus Supplement, Securities other than Common Shares will not be listed on any securities exchange. There is no market through which the Securities, other than the Common Shares, may be sold and purchasers may not be able to resell such Securities purchased under this Prospectus and any applicable Prospectus Supplement. This may affect the pricing of such Securities in the secondary market, the transparency and availability of trading prices, the liquidity of the Securities, and the extent of issuer regulation. See “Risk Factors”. The offering of Securities hereunder is subject to approval of certain legal matters on behalf of the Company by Fogler, Rubinoff LLP, with respect to Canadian legal matters.
Investing in the Securities involves significant risks. Investors should carefully read the “Risk Factors” section in this Prospectus beginning on page 8, in the documents incorporated by reference herein, and in the applicable Prospectus Supplement.
The specific terms of the Securities with respect to a particular offering will be set out in the applicable Prospectus Supplement and may include, where applicable: (i) in the case of Common Shares, the number of shares offered, the offering price, the currency, dividend rate, if any, and any other terms specific to the Common Shares being offered; (ii) in the case of Preference Shares, the designation of the particular series, the number of Preference Shares offered, the offering price, the currency, and any other terms specific to the Preference Shares being offered, (iii) in the case of Warrants, the designation, number and terms of the Common Shares issuable upon exercise of the Warrants, the offering price, the currency, any procedures that will result in the adjustment of these numbers, the exercise price, dates and periods of exercise, and any other terms specific to the Warrants being offered, (iv) in the case of Subscription Receipts, the number of Subscription Receipts being offered, the currency (which may be Canadian dollars or any other currency), the offering price, the terms, conditions and procedures for the exchange of the Subscription Receipts into or for Common Shares and/or other securities of the Company and any other specific terms; and (v) in the case of Debt Securities, the designation of the Debt Securities, any limit on the aggregate principal amount of the Debt Securities, the maturity date, whether payment on the Debt Securities will be senior or subordinated to the Company’s other liabilities and obligations, whether the Debt Securities will be secured by any of the Company’s assets or guaranteed by any other person and any other terms specific to the Debt Securities being offered, whether the Debt Securities will bear interest, the interest rate or method of determining the interest rates, any conversion or exchange rates attached to the Debt Securities, whether the Company may redeem the Debt Securities at its option and any other specific terms; and (vi) in the case of Units, the designation, number of Securities comprising the Units, the offering price, the currency and any other terms specific to the Units being offered. A Prospectus Supplement may include specific variable terms pertaining to the Securities that are not within the alternatives and parameters set forth in this Prospectus. Where required by statute, regulation or policy, and where Securities are offered in currencies other than Canadian dollars, appropriate disclosure of foreign exchange rates applicable to the Securities will be included in the Prospectus Supplement describing the Securities.
Prospective investors should be aware that the acquisition of the Securities described herein may have tax consequences both in Canada and the United States. This Prospectus does not, and any applicable Prospectus Supplement may not fully, describe these tax consequences. Prospective investors should read the tax discussion in any applicable Prospectus Supplement, but note that such discussion may be only a general summary that does not cover all tax matters that may be of importance to a prospective investor. Each prospective investor is urged to consult its own tax advisors about the tax consequences relating to the purchase, ownership and disposition of the Securities in light of the investor’s own circumstances.
No underwriter has been involved in the preparation of this Prospectus nor has any underwriter performed any review of the contents of this Prospectus.
This Prospectus constitutes a public offering of Securities only in those jurisdictions where they may be lawfully offered for sale and therein only by persons permitted to sell the Securities. The Company may offer and sell Securities to, or through, underwriters and also may offer and sell certain Securities directly to other purchasers or through agents pursuant to exemptions from registration or qualification under applicable securities laws. A Prospectus Supplement relating to each issue of Securities offered thereby will set forth the names of any underwriters or agents involved in the offering and sale of the Securities and will set forth the terms of the offering of the Securities, the method of distribution of the Securities including, to the extent applicable, the proceeds to the Company and any fees, discounts or any other compensation payable to underwriters or agents and any other material terms of the plan of distribution. This Prospectus may qualify an “at-the-market distribution” (as such term is defined in National Instrument 44-102 – Shelf Distributions). However, the Company has filed an undertaking with the Autorité des marchés financiers pursuant to which the Company undertakes to file an amendment to this Prospectus to add Québec as a jurisdiction should the Company determine to proceed with an “at-the-market distribution”.
In connection with any offering of the Securities (unless otherwise specified in a Prospectus Supplement), other than an “at-the-market distribution”, the underwriters or agents may over-allot or effect transactions which stabilize or maintain the market price of the Securities offered at a higher level than that which might exist in the open market. Such transactions, if commenced, may be interrupted or discontinued at any time. See “Plan of Distribution”.
The financial information of the Company contained in the documents incorporated by reference herein are presented in United States dollars. References in this Prospectus to “$” and “US$” are to United States dollars. Canadian dollars are indicated by the symbol “CDN$”, except as otherwise indicated.
| - ii - |
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION (THE ‘‘SEC’’) OR ANY STATE SECURITIES COMMISSION OR REGULATOR NOR HAS THE SEC OR ANY STATE SECURITIES COMMISSION OR REGULATOR PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We are permitted, under the multi-jurisdictional disclosure system adopted by the securities regulatory authorities in the United States and Canada (“MJDS”), to prepare this Prospectus in accordance with Canadian disclosure requirements, which are different from United States disclosure requirements.
We prepare our annual financial statements, certain of which are incorporated by reference herein, in United States dollars and in accordance with International Financial Reporting Standards (“IFRS”) as issued by the International Accounting Standards Board (the “IASB”), and our interim financial statements, certain of which are incorporated by reference herein, in United States dollars and in accordance with IFRS as issued by the IASB as applicable to interim financial reporting, and they therefore may not be comparable to financial statements of United States companies.
Your ability to enforce civil liabilities under United States federal securities laws may be affected adversely because: (i) the Company is existing in British Columbia, a province of Canada; (ii) some of the officers and directors and some of the experts named in this Prospectus are not residents of the United States; and (iii) certain of the Company’s assets and all or a substantial portion of the assets of such persons are located outside of the United States. See “Enforceability of Certain Civil Liabilities and Agent for Service of Process”.
The Company’s head office is located at 33 Whitehall Street, 8th Floor, New York, NY 10004. The Company’s registered office is located at 77 King Street West, Suite 3000, PO Box 95, Toronto, Ontario M5K 1G8.
WHERE YOU CAN FIND MORE INFORMATION
Information has been incorporated by reference in this Prospectus from documents filed with securities commissions or similar authorities in each of the provinces of Canada, other than Québec. Copies of the documents incorporated herein by reference may be obtained on request without charge from the secretary of the issuer at 77 King Street West, Suite 3000, PO Box 95, Toronto, Ontario M5K 1G8, or by telephone at (212) 931-1200, and are also available electronically at www.sedar.com.
| - iii - |
TABLE OF CONTENTS
| - 1 - |
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This Prospectus and the documents incorporated by reference herein contain certain “forward-looking information” and “forward-looking statements” as defined under applicable Canadian and U.S. securities laws (collectively, “forward-looking statements”) which are based upon the Company’s current internal expectations, estimates, projections, assumptions and beliefs. Such statements can be identified by the use of forward-looking terminology such as “expect”, “likely”, “may”, “will”, “should”, “intend”, or “anticipate”, “potential”, “proposed”, “estimate” and other similar words, including negative and grammatical variations thereof, or statements that certain events or conditions “may” or “will” happen, or by discussions of strategy. Forward-looking statements include estimates, plans, expectations, opinions, forecasts, projections, targets, guidance or other statements that are not statements of fact. Such forward-looking statements are made as of the date of this Prospectus, or in the case of any document incorporated by reference herein, as of the date of each such document. Forward-looking statements in this Prospectus and the documents incorporated by reference herein include, but are not limited to, statements with respect to:
| ● | financial, operational and other projections and outlooks as well as statements or information concerning future operation plans, objectives, performance, revenues, growth, acquisition strategy, profits or operating expenses; |
| ● | our ability to successfully execute our business plan; |
| ● | any expectation of regulatory approval and receipt of certifications with respect to the Company’s current and proposed business transactions; |
| ● | expectations regarding existing products and plans to develop, implement or adopt new technology or products; |
| ● | expectations regarding the successful integration of recent acquisitions of WinView, Inc. (“WinView”) and Frankly Inc. (“Frankly”); |
| ● | the expectation of obtaining new customers for the Company’s products and services, as well as expectations regarding expansion and acceptance of the Company’s brand and products to new markets; |
| ● | estimates and projections regarding the industry in which the Company operates and adoption of technologies, including expectations regarding the growth and impact of esports; |
| ● | requirements for additional capital and future financing options; |
| ● | the risks inherent in international operations; |
| ● | marketing plans; |
| ● | our ability to compete with our competitors and their technologies; |
| ● | our reliance on key executives and the ability to attract and retain qualified personnel; |
| ● | the availability of intellectual property protection for the Company’s products, and our ability to expand and exploit our intellectual property; |
| ● | statements related to the expected or potential impact of the novel coronavirus (“COVID-19”) pandemic; |
| ● | the completion of and our use of the proceeds of any offering; and |
| ● | other expectations of the Company. |
| - 2 - |
The forward-looking statements are based on a number of key expectations and assumptions made by our management, including, but not limited to:
| ● | that the projections relating to growth and trends in the industry of the Company and adoption of the technologies underlying the Company’s products are accurate; |
| ● | assumptions and uncertainties related to the expected size of the esports market and other markets for the Company’s products and the acceptance of the Company’s product in existing and new markets; |
| ● | our ability to generate new sales and market demand for our products; |
| ● | our ability to continue to attract and retain qualified personnel; |
| ● | our ability to protect our intellectual property and to expand and exploit our intellectual property; |
| ● | the successful execution of our business plan; |
| ● | the availability of additional capital; and |
| ● | general economic and financial market conditions. |
Forward-looking statements contained in or incorporated by reference in this Prospectus are based on the assumptions described in this Prospectus. Although management believes the expectations reflected in such forward-looking statements are reasonable, forward-looking statements are based on the opinions, assumptions and estimates of management at the date the statements are made, and are subject to a variety of risks and uncertainties and other factors, both known and unknown, that could cause actual events or results to differ materially from those projected in the forward-looking statements. These factors include, but are not limited to:
| ● | liquidity concerns and future financings; |
| ● | execution of business plan; |
| ● | the integration of recent acquisitions such as WinView, Frankly, and UMG Media Ltd. (“UMG”); |
| ● | the management of growth; |
| ● | reduced cash reserves from future operating losses; |
| ● | failure to compete successfully in various markets; |
| ● | the development of high-quality products; |
| ● | rapid technological changes; |
| ● | proprietary protection and intellectual property disputes; |
| ● | transmission of user data; |
| ● | data collection risk; |
| ● | mobile gaming and the free-to-play business model; |
| ● | the condition of the global economy; |
| ● | risks inherent in foreign/international operations; |
| - 3 - |
| ● | changing governmental regulations; |
| ● | COVID-19 related risks; |
| ● | speculative nature of investment in the Securities; |
| ● | the Company has never paid dividends; |
| ● | volatility in the market price of the Common Shares; |
| ● | no market for the Preference Shares, Warrants, Debt Securities or Units; |
| ● | dilution risk; |
| ● | issuance of Preference Shares that have superior rights to Common Shares; |
| ● | the listing of the Common Shares on the NASDAQ Capital Market (“NASDAQ”); |
| ● | loss of foreign private issuer status; |
| ● | discretion in use of proceeds; and |
| ● | those risks discussed in this Prospectus under the heading “Risk Factors”. |
These factors are not intended to represent a complete list of the factors that could affect the Company. However, these factors should be considered carefully by prospective investors. A more detailed assessment of the risks that could cause actual events or results to materially differ from our current expectations can be found under the heading “Risk Factors” in this Prospectus.
Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those anticipated, believed, estimated or expected. We caution readers not to place undue reliance on any such forward-looking statements, which speak only as of the date made. Although the Company has attempted to identify important factors that could cause actual results to differ materially from forward-looking statements, there may be other factors that cause results not to be as anticipated, estimated, described or intended.
A number of factors could cause actual events, performance or results to differ materially from what is projected in forward-looking statements. The purpose of forward-looking statements is to provide the reader with a description of management’s expectations, and such forward-looking statements may not be appropriate for any other purpose. You should not place undue reliance on forward-looking statements contained in this Prospectus or in any document incorporated by reference herein.
Although the Company believes that the expectations reflected in such forward-looking statements are reasonable, it can give no assurance that such expectations will prove to have been correct. We undertake no obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by applicable law.
We qualify all the forward-looking statements contained in this Prospectus and the documents incorporated by reference herein and therein by the foregoing cautionary statements.
FINANCIAL INFORMATION AND CURRENCY
The financial statements of the Company incorporated by reference in this Prospectus are reported in United States dollars. The Company’s consolidated financial statements for the years ended August 31, 2020 and 2019, as incorporated by reference in this Prospectus, have been prepared in accordance with IFRS.
| - 4 - |
The following table sets forth (i) the rate of exchange for the Canadian dollar, expressed in U.S. dollars, in effect at the end of the periods indicated; (ii) the average exchange rates for the Canadian dollar, on the last day of each month during such periods; and (iii) the high and low exchange rates for the Canadian dollar, expressed in U.S. dollars, during such periods, each based on the daily rates of exchange, as applicable, as reported by the Bank of Canada for conversion of Canadian dollars into U.S. dollars:
| Fiscal Year Ended August 31 | ||||||||
| 2020 | 2019 | |||||||
| Rate at the end of period | $ | 0.7668 | $ | 0.7522 | ||||
| Average rate during period | $ | 0.7436 | $ | 0.7546 | ||||
| Highest rate during period | $ | 0.7710 | $ | 0.7811 | ||||
| Lowest rate during period | $ | 0.6898 | $ | 0.7330 | ||||
On March 24, 2021, the closing exchange rate for Canadian dollars in terms of the United States dollar, as quoted by the Bank of Canada, was CDN$1.00= US$0.7961.
Corporate Structure
The Company was incorporated as “Stratton Capital Corp.” under the Business Corporations Act (Ontario) (“OBCA”) pursuant to articles of incorporation on April 8, 2011. On October 19, 2016, the Company filed Articles of Amendment changing its name from “Stratton Capital Corp.” to “Millennial Esports Corp.” On June 7, 2019, the Company filed Articles of Amendment to effect a consolidation of the Common Shares on the basis of one post-consolidation Common Share for every fifteen pre-consolidation Common Shares. On October 17, 2019, the Company filed Articles of Amendment to (i) change its name from “Millennial Esports Corp.” to “Torque Esports Corp.”, and (ii) to effect a consolidation of the Common Shares on the basis of one post-consolidation Common Share for every five pre-consolidation Common Shares.
On August 13, 2020, the Company filed Articles of Amendment to (i) change its name from “Torque Esports Corp.” to “Engine Media Holdings, Inc.”, and (ii) to effect a consolidation of the Common Shares on the basis of one post-consolidation Common Share for every fifteen pre-consolidation Common Shares
On December 18, 2020, the Company filed a Continuance Application with the British Columbia Registrar of Companies to continue into British Columbia.
The head office of the Company is located at 33 Whitehall Street, 8th Floor, New York, NY 10004 and the registered office of the Company is located at 77 King Street West, Suite 3000, PO Box 95, Toronto, Ontario M5K 1G8.
| - 5 - |
Inter-Corporate Relationships
The following is a summary of the inter-corporate relationships between the Company and its subsidiaries, which together comprise the consolidated Company as at the date hereof:
Businesses of Engine
Engine is a multi-platform media group leading the charge in esports, news streaming and gaming. Following the completion of the transformational acquisition of each of Frankly and WinView, the Company now offers a unique combination of esports content, streaming technology, gaming platforms, data analytics and intellectual property.
Engine is focused on accelerating new, live, immersive esports and interactive gaming experiences for consumers through its partnerships with traditional and emerging media companies. Following the Frankly and WinView acquisitions, Engine clients include more than 1,200 television, print and radio brands including CNN, ESPN, Discovery / Eurosport, Fox, Vice, Newsweek, and Cumulus; dozens of gaming and technology companies including EA, Activision, Blizzard, Take2Interactive, Microsoft, Google, Twitch, and Ubisoft; and has connectivity into hundreds of millions of homes around the world through content, distribution, and technology. Engine generates revenue through a combination of: direct-to-consumer and subscription fees; streaming technology and data software-as-a-service (“SaaS”) based offerings; and, programmatic advertising and sponsorships.
Eden Games
Eden Games is a game developer with market-leading competency in building mobile racing games. They are well-known in the industry for the multiple racing franchises they have created and are considered experts in the fields of licensing and racing technology. Founded in 1998 in Lyon, France, by two experienced Atari developers, Eden Games is a household name in development circles and has both a storied history of success and a strong pipeline of future engagements. Its current development deals are for the official F1 mobile game and porting its Gear.Club franchise onto the hugely successful Nintendo Switch. These two contracts provide regular revenue contracted from 3rd parties and a share of the revenue from game sales or in-app purchases.
Eden has produced the following video game titles: V-Rally (1998); V-Rally 2 (1999); Need for Speed: Porsche (2000); V-Rally 3 (2002); KYA: Dark Lineage (2003); TITEUF: Mega Compet (2004); Test Drive Unlimited (2006); Alone in the Dark (2008); Test Drive Unlimited 2 (2011); TDU2 Casino Online (2011); Gear.Club Mobile (2016 – 2020); Gear.Club Unlimited (2017); F1 Mobile (2018 – 2020); and Gear.Club Unlimited 2 (2018 – 2020).
| - 6 - |
Stream Hatchet
Stream Hatchet S.L. (“Stream Hatchet”), is a data analytics company based in Terrassa, Spain, providing intelligence for persons and entities involved in video game streaming. Stream Hatchet provides real-time data analytics and viewership information that assists in the development and marketing decisions of the Company’s initiatives. This is a service that no other publisher or esports operator owns in-house. These unique data analytic capabilities provide the Company an edge in accessing sponsorships and promotions from major brands focused on esports, as the Company has proprietary data on esports viewership, brand exposure and sponsorship valuation to quantify the value of our brand exposure on multiple streaming platforms around the globe.
Stream Hatchet, through a SaaS offering, also generates significant independent revenue for the Company as a standalone unit without infringing upon its strategic value to the Company. Stream Hatchet provides holistic data to its users, which include streamers, esports organizations, video game producers, and advertising agencies. Stream Hatchet provides a clearly-delineated product offering with a high degree of automation, and a strong pipeline of clients and brands looking for intelligence in the esports & gaming landscape. Stream Hatchet’s innovative reporting and data analytics are unique in the industry, with services and reporting having been sold to major brands in the technology space.
UMG
The Company acquired UMG on December 31, 2019. UMG is a premier esports company in North America, offering live gaming entertainment events and online play. UMG provides online and live tournaments as well as the creation and distribution of original esports content.
UMG, through its wholly-owned subsidiary UMG Events LLC, which was founded in 2012, is actively involved in many aspects of the esports industry. UMG is deeply ingrained in the gaming community and very well established within the competitive gaming sector with approximately 2.1 million registered users and over 18 million matches played live and online through its platform.
UMG is a diversified esports company that has operations involved in:
| ● | Live tournaments | |
| ● | Online contests | |
| ● | Casino esports operations | |
| ● | Creation and distribution of original content | |
| ● | Esports tournament operations through its proprietary tournament management app |
Frankly and WinView Acquisition
On May 8, 2020, the Company completed a business combination with Frankly and WinView. It is expected that the transaction will place Engine at the forefront of esports, news streaming and sports gaming across multiple media platforms. The completion of the Frankly and WinView acquisition has resulted in a company with a unique combination of assets, ranging from esports content, streaming technology, sports gaming, data and analytics as well as intellectual property.
Frankly
Frankly, through its wholly-owned subsidiary Frankly Media, LLC, provides a complete suite of solutions that give publishers a unified workflow for the creation, management, publishing and monetization of digital content to any device, while maximizing audience value and revenue.
Frankly’s products include a ground-breaking online video platform for Live, Video-on-Demand (“VOD”) and Live-to-VOD workflows, a full-featured content management system with rich storytelling capabilities, as well as native apps for iOS, Android, Apple TV, Fire TV and Roku.
| - 7 - |
Frankly also provides comprehensive advertising products and services, including direct sales and programmatic ad support. With the release of its server-side ad insertion (SSAI) platform, Frankly has been positioned to help video producers take full advantage of the growing market in addressable advertising.
WinView
WinView is a Silicon Valley-based company, pioneering second-screen interactive TV. WinView is a leading skill-based sports prediction mobile games platform. WinView plans to leverage its extensive experience in pioneering real-time interactive television games played on the mobile second screen, its foundational patents and unique business model. The WinView app is an end-to-end two-screen TV synchronization platform for both television programming and commercials. The paid entry, skill-based WinView Games app uniquely enhances TV viewing enjoyment and rewards sports fans with prizes as they answer in-game questions while competing in real-time during live televised sports. WinView also holds the foundational patents on the synchronized second screen experience.
Disposition of Motorsport Assets
On November 4, 2020, the Company announced that it completed the disposition of all of its shares in IDEAS+CARS Limited (“IDEAS+CARS”) and DriverDB AB (“Driver DataBase”), which also included, by extension, the disposition of its other motorsport assets: The World’s Fastest Gamer, WTF1, The Race, Let’s Go Racing, and The World Series of Racing (collectively with IDEAS+CARS and Driver DataBase, the “Motorsport Assets”). The Motorsport Assets were acquired by LNT Group, an investment group based in the United Kingdom. As consideration for the acquisition of the Motorsport Assets, LNT Group assumed all ongoing liabilities for the business with respect to the Motorsport Assets.
As part of the disposition of the Motorsport Assets, Darren Cox resigned as co-CEO of the Company and he resigned as a director of the Company effective December 31, 2020.
RECENT DEVELOPMENTS – COVID-19
The Company continues to assess, monitor and deal with the impact of COVID-19 on our business and to share information across the Company. We continue to adjust our operations and take actions to protect the health of our employees. The Company’s workforce is currently working remotely and has been largely unaffected by COVID-19 given the nature of the Company’s business.
Also see, below, “Risk Factors - Emerging diseases, like COVID-19, may adversely affect our operations, our suppliers, or our customers”.
Before making an investment decision, investors should carefully consider the information described in this Prospectus, any applicable Prospectus Supplement and in the documents incorporated by reference herein and therein. There are certain risks inherent in an investment in the Securities, including the factors listed below, and any other risk factors described in a document incorporated by reference in this Prospectus and any applicable Prospectus Supplement, which investors should carefully consider before investing. Some of the following factors and the risk factors described in the documents incorporated by reference in this Prospectus and any applicable Prospectus Supplement are interrelated and, consequently, investors should treat such risk factors as a whole. The risks described in this Prospectus, any applicable Prospectus Supplement and in the documents incorporated by reference herein and therein describe certain currently known material factors, any of which could have a material adverse effect on our business, prospects, financial condition and results of operations. If any of the following or other risks occur, it could have a material adverse effect on our business, prospects, financial condition and results of operations and on the trading price of the Common Shares, which could materially decline, and investors may lose all or part of their investment. It is also believed that these factors could cause actual results to be different from expected results. Additional risks and uncertainties of which we are currently unaware or that are unknown or that we currently deem to be immaterial could also have a material adverse effect on our business, prospects, financial condition and results of operations. We cannot assure prospective purchasers that it will successfully address any or all of these risks. There is no assurance that any risk management steps taken will avoid future loss due to the occurrence of any of the risks described in this Prospectus, any applicable Prospectus Supplement and in the documents incorporated by reference herein and therein, or other unforeseen risks. The market in which we currently compete is very competitive and changes rapidly. Sometimes new risks emerge and management may not be able to predict them, or be able to predict how they may cause actual results to be different from those contained in any forward-looking statements. Prospective purchasers should not rely upon forward-looking statements as a prediction of future results. In addition to the risks described elsewhere in this Prospectus and any applicable Prospectus Supplement, including in the documents incorporated by reference herein and therein, the following risks for the Company should be considered.
| - 8 - |
Risks Associated with our Business and Industry
Liquidity concerns and future financings
Although we have been successful in the past in financing our activities, there can be no assurance that we will be able to obtain additional financing as and when needed in the future to execute our business plan and future operations. Our ability to arrange such financing in the future will depend in part upon the prevailing capital market conditions as well as our business performance. It may be difficult or impossible for us to obtain financing on commercially acceptable terms. This may be further complicated by the limited market liquidity for shares of smaller companies such as us, restricting access to some institutional investors. There is a risk that interest rates will increase given the current historical low level of interest rates. An increase in interest rates could result in a significant increase in the amount that we pay to service future debt incurred by us and affect our ability to fund ongoing operations.
Failure to obtain additional financing on a timely basis could also result in delay or indefinite postponement of further development of its products. Such delay would have a material and adverse effect on our business, financial condition and results of operations.
We may not be able to successfully execute our business plan
The execution of our business plan poses many challenges and is based on a number of assumptions. We may not be able to successfully execute our business plan. If our business plan is more costly than we anticipate or we have significant cost overruns, certain products and development activities may be delayed or eliminated or we may be compelled to secure additional funding (which may or may not be available) to execute our business plan. We cannot predict with certainty our future revenues or results from our operations. If the assumptions on which our revenue or expenditure forecasts are based change, the benefits of our business plan may change as well. In addition, we may consider expanding our business beyond what is currently contemplated in our business plan. Depending on the financing requirements of a potential acquisition or new product opportunity, we may be required to raise additional capital through the issuance of equity or debt. If we are unable to raise additional capital on acceptable terms, we may be unable to pursue a potential acquisition or new product opportunity.
Difficulties integrating acquisitions and strategic investments
We have acquired businesses, personnel and technologies in the past and we expect to continue to pursue acquisitions, such as the completed acquisitions of Frankly, WinView, UMG, Eden Games, Stream Hatchet and other investments that are complementary to our existing business, and expanding our employee base and the breadth of our offerings. Our ability to grow through future acquisitions will depend on the availability of suitable acquisition and investment candidates at an acceptable cost, the ability to compete effectively to attract these candidates and the availability of financing to complete larger acquisitions. Since we expect the esports industry to consolidate in the future, we may face significant competition in executing our growth strategy. Future acquisitions or investments could result in potential dilutive issuances of equity securities, use of significant cash balances or incurrence of debt, and contingent liabilities or amortization expenses related to goodwill and other intangible assets, any of which could adversely affect our financial condition and results of operations. The benefits of an acquisition or investment may also take considerable time to develop, and we cannot be certain that any particular acquisition or investment will produce the intended benefits.
The above risks and difficulties, if they materialize, could disrupt our ongoing business, distract management, result in the loss of key personnel, increase expenses and otherwise have a material adverse effect on our business, results of operations and financial performance.
| - 9 - |
Management of growth
We have grown rapidly since our inception and we plan to continue to grow at a rapid pace. This growth has put significant demands on our processes, systems and personnel.
We may be subject to growth-related risks including capacity constraints and pressure on our internal systems and controls. Our ability to manage growth effectively will require us to continue to implement and improve our operational and financial systems and to expand, train and manage our employee base. Managing our growth will require significant expenditures and allocation of valuable management resources. Our inability to deal with this growth may have a material adverse effect on our business, financial condition, results of operations and prospects.
We may continue to have reduced cash reserves
We expect our cash reserves will be reduced due to future operating losses, working capital requirements, capital expenditures, and potential acquisitions and other investments by our business, and we cannot provide certainty as to how long our cash reserves will last or that we will be able to access additional capital when necessary.
We expect to incur continued losses and generate negative cash flow until we can produce sufficient revenues to cover our costs. We may never become profitable. Even if we do achieve profitability, we may be unable to sustain or increase our profitability in the future. For the reasons discussed in more detail below, there are substantial uncertainties associated with our achieving and sustaining profitability. We expect our cash reserves will be reduced due to future operating losses, and working capital requirements, and we cannot provide certainty as to how long our cash reserves will last or that we will be able to access additional capital if and when necessary.
The PPP loans may not be forgiven
We currently have outstanding PPP loans of $1,414,764 which we expect will be forgiven in full as it has cleared all requirements for full forgiveness - all forgiveness applications have been submitted as of present and formal forgiveness of these loans is expected in the near term. However, we have no certainty that the PPP loans will be forgiven, and if the applications are not accepted, the loans will need to be repaid partially or in full.
Competition
Our potential failure to compete successfully in the various markets we participate in could have a material adverse effect on our business, financial condition and results of operations. The market for the various types of product and service offerings we provide is very competitive and rapidly changing. We face competition from other esports businesses, many of which are larger and better funded than us. There can be no guarantee that our current and future competitors will not develop similar or superior services to our products and services which may render us uncompetitive. Increasing competition could result in fewer future customers, reduced revenue, reduced sales margins and loss of market share, any one of which could harm our business.
Players in the current market face a vast array of entertainment choices. Other forms of entertainment, such as offline, traditional online, personal computer and console games, television, movies, sports and the internet are much larger and more well-established markets and may be perceived by our customers to offer greater variety, affordability, interactivity and enjoyment. These other forms of entertainment compete for the discretionary time and income of our customers. If we are unable to sustain sufficient interest in our games in comparison to other forms of entertainment, including new forms, our business model may no longer be viable.
The development of high-quality products requires substantial up-front expenditures
Consumer preferences for games are usually cyclical and difficult to predict, and even the most successful titles remain popular for only limited periods of time, unless refreshed with new content or otherwise enhanced. In order to remain competitive, we must continuously develop new products or enhancements to existing products. The amount of lead time and cost involved in the development of high-quality products is increasing, and the longer the lead time involved in developing a product and the greater the allocation of financial resources to such product, the more critical it is that we accurately predict consumer demand for such product. If its future products do not achieve expected consumer acceptance or generate sufficient revenues upon introduction, we may not be able to recover the substantial development and marketing costs associated with those products.
| - 10 - |
Rapid technological changes
Rapid technological changes may increase competition and render our technologies, products or services obsolete or cause us to lose market share. The online gaming software industry is subject to rapid and significant changes in technology, frequent new service introductions and evolving industry standards. Such changes may adversely affect our revenue. There can be no assurance that we can improve the features, functionality, reliability and responsiveness of infrastructure. Similarly, the technologies that we employ may become obsolete or subject to intense competition from new technologies in the future. If we fail to develop, or obtain timely access to, new technologies, or if we fail to obtain the necessary licenses for the provision of services using these new technologies, we may lose market share, and our results of operations would be adversely affected.
Proprietary protection and intellectual property disputes
Protection of our trade secrets, copyrights, trademarks, domain names and other product rights are important to our success. We protect our intellectual property rights by relying on trademark protection, common law rights as well as contractual restrictions. However, many of our proprietary technologies are currently unpatented nor have we made any applications for such intellectual property registrations and we have no present intention to do so in the near future. As such, the current steps that it takes to protect our intellectual property, including contractual arrangements, may not be sufficient to prevent the misappropriation of our proprietary information or deter independent development of similar technologies by others.
Should we decide to register our intellectual property in one or more jurisdictions, it will be an expensive and time consuming process and there is no assurance that we will be successful in any or all of such jurisdictions. The absence of registered intellectual property rights, or the failure to obtain such registrations in the future, may result in us being unable to successfully prevent our competitors from imitating our solutions or using some or all of our processes. Even if patents and other registered intellectual property rights were to be issued to us, our intellectual property rights may not be sufficiently comprehensive to prevent our competitors from developing similar competitive products and technologies.
With our acquisition of WinView, we acquired WinView’s intellectual property portfolio. WinView’s patent portfolio is an important asset to us and our patent strategy with respect to the WinView patent portfolio is to pursue the broadest possible patent protection of its technologies in selected jurisdictions. Litigation may be necessary to enforce our intellectual property rights. Any litigation of this nature, regardless of outcome or merit, could result in substantial costs, adverse publicity or diversion of management and technical resources, any of which could adversely affect our business and operating results. Moreover, due to the differences in foreign patent, trademark, copyright and other laws concerning proprietary rights, our intellectual property may not receive the same degree of protection in foreign countries as it would in Canada or the United States. Our failure to possess, obtain or maintain adequate protection of our intellectual property rights for any reason could have a material adverse effect on our business, results of operations and financial condition.
We may also face allegations that we have infringed the trademarks, copyrights, patents and other intellectual property rights of third parties, including from our competitors and former employers of our personnel. Whether a product infringes a patent or other intellectual property right involves complex legal and factual issues, the determination of which is often uncertain. As the result of any court judgment or settlement, we may be obligated to cancel the launch of a new game or product offering, cease offering a game or certain features of a game, pay royalties or significant settlement costs, purchase licenses or modify our software and features, or develop substitutes. We have already had communication from trade mark trolls in this respect. At this time these actions are a nuisance rather than a quantifiable business risk.
In addition, we use open source software in our games and we expect to continue to use open source software in the future. From time to time, we may face claims from companies that incorporate open source software into their products, claiming ownership of, or demanding release of, the source code, the open source software and/or derivative works that were developed using such software, or otherwise seeking to enforce the terms of the applicable open source license. These claims could also result in litigation, require us to purchase a costly license or require us to devote additional research and development resources to change our games, any of which would have a negative effect on our business and operating results.
| - 11 - |
Transmission of User Data
We transmit and store a large volume of data. We are subject to legislation and regulations on the collection, storage, retention, transmission and use of user-data that we collect. Our efforts to protect the personal information of our users, partners and clients may be unsuccessful due to the actions of third parties, software bugs or technical malfunctions, employee error or malfeasance, or other factors. In addition, third parties may attempt to fraudulently induce employees or users to disclose information in order to gain access to our data, our users’ data, our partners’ data or our clients’ data. If any of these events occur, users’, partners’ or clients’ information could be accessed or disclosed improperly. Any incidents involving the unauthorized access to or improper use of the information of users or incidents involving violation of our terms of service or policies could damage our reputation and brands and diminish our competitive position. Moreover, affected users, clients or governmental authorities could initiate legal or regulatory action against us in connection with such incidents, which could cause us to incur significant expense and liability or result in orders or consent decrees forcing us to modify our business practices and remediate the effects of any such incidents of unauthorized access or use. Any of these events could have a material adverse effect on our prospects, businesses, financial condition or results of operations.
Data collection risks
We partially rely on data captured by Stream Hatchet for our revenues and for assessing the performance of some of our brands. Capturing accurate data is subject to various limitations. For example, Stream Hatchet may need to collect certain data from mobile carriers or other third parties such as various viewing platforms, which limits its ability to verify the reliability of such data. Further, Stream Hatchet may not be able to collect any data from third parties at all. Failure to capture accurate data or an incorrect assessment of this data may materially harm business and operating results.
Mobile gaming and the free-to-play business model
Eden Games is partially reliant on the free-to-play business model where monetization is through in-app purchases. The risks of that business model include the dependence on a relatively small number of consumers for a significant portion of revenues and profits from any given game, including the current title, Gear.Club. If we increase our reliance on the free-to-play model, we may be exposed to increased risk. For example, we may invest in the development of new free-to-play interactive entertainment products that do not achieve significant commercial success, in which case our revenues from those products likely will be lower than anticipated and we may not recover our development costs. Further, if: (1) we fail to offer monetization features that appeal to our consumers; (2) these consumers do not continue to play our free-to-play games or purchase virtual items at the same rate; (3) our platform providers make it more difficult or expensive for players to purchase our virtual currency; or (4) we cannot encourage significant additional consumers to purchase virtual items in our free-to-play games, our business may be negatively impacted.
Global economy
Our business is subject to general economic conditions. Adverse changes in general economic and market conditions could adversely impact demand for our products, prices, revenue, operating costs, results of financing efforts, and the timing and extent of capital expenditures.
Foreign operational risks
A significant portion of our business and operations is conducted in foreign jurisdictions, including the United States, Spain, the United Kingdom, and France. As such, our business and operations may be adversely affected by changes in foreign government policies and legislation or social instability and other factors which are not within our control, including, but not limited to, renegotiation or nullification of existing contracts or licenses, changes in policies, regulatory requirements or the personnel administering them, economic sanctions, risk of terrorist activities, revolution, border disputes, implementation of tariffs and other trade barriers and protectionist practices, volatility of financial markets, labour disputes and other risks arising out of foreign governmental sovereignty over the areas in which our business is conducted. Our operations may also be adversely affected by laws and policies of such foreign jurisdictions affecting foreign trade, taxation and investment.
| - 12 - |
If our operations are disrupted and/or the economic integrity of our contracts is threatened for unexpected reasons, our business may be harmed. In the event of a dispute arising in connection with our operations in a foreign jurisdiction where we conduct or will conduct our business, we may be subject to the exclusive jurisdiction of foreign courts or may not be successful in subjecting foreign persons to the jurisdictions of the courts of Canada or enforcing Canadian judgments in such other jurisdictions. We may also be hindered or prevented from enforcing our rights with respect to a governmental instrumentality because of the doctrine of sovereign immunity. Accordingly, our activities in foreign jurisdictions could be substantially affected by factors beyond our control, any of which could have a material adverse effect on our business. We believe that our management is sufficiently experienced to manage these risks.
Regulation
We are subject to general business regulations and laws as well as regulations and laws specifically governing the internet, gaming, e-commerce and electronic devices. Existing and future laws and regulations may impede our growth or strategy. These regulations and laws cover taxation, privacy, data protection, pricing, content, copyrights, distribution, mobile communications, consumer protection, web services, wagering, the provision of online payment services, websites and the characteristics and quality or products and services. Unfavourable changes in regulations and laws could decrease demand for our events, online offering and merchandise, increase our cost of doing business or otherwise have a material adverse effect on our reputation, popularity, results of operations and financial condition.
Emerging diseases, like COVID-19, may adversely affect our operations, our suppliers, or our customers
Emerging diseases, like COVID-19, and government actions to address them, may adversely affect our operations, our suppliers, or our customers. The COVID-19 pandemic continues to evolve rapidly and, as a result, it is difficult to accurately assess its continued magnitude, outcome and duration, but it could:
| ● | worsen economic conditions, which could negatively impact access to capital; |
| ● | reduce consumer spending; |
| ● | limit our employees from travelling which could affect the execution of our business plan given the Company is multi-jurisdictional; or |
| ● | result in governmental regulation adversely impacting our business |
all of which could have a material adverse effect on our business, financial condition and results of operations, which could be rapid and unexpected.
The Company’s Working Capital Requirements May Be Higher than Anticipated and/or Its Revenue May Be Lower than Anticipated Over Relevant Periods.
The Company’s current available financial resources and the anticipated cash flow, are expected to provide sufficient financial resources to fund the Company’s planned operations and cash requirements for at least 12 months following the date of this Prospectus. However, there is a risk that working capital requirements over that time period will be greater than anticipated, or that revenues may be lower than anticipated. Working capital requirements over the next 12 months may also be greater than the Company currently anticipates for a variety of reasons, including, but not limited to, the following: operating costs may be higher than expected; and, unanticipated capital requirements. Many of these factors are not within the Company’s control. See “Caution Regarding Forward-Looking Statements”.
Risks Related to our Securities
Investing in the Securities is speculative, and investors could lose their entire investment
An investment in the Securities is speculative and may result in the loss of an investor’s entire investment. Only potential investors who are experienced in high risk investments and who can afford to lose their entire investment should consider an investment in the Securities.
We have never paid dividends and may not do so in the foreseeable future
We have never paid cash dividends on our Common Shares. Currently, we intend to retain our future earnings, if any, to fund the development and growth of our business, and we do not anticipate paying any cash dividends on our Common Shares in the near future. As a result, shareholders will have to rely on capital appreciation, if any, to earn a return on investment in any Common Shares in the foreseeable future.
| - 13 - |
The market price for Common Shares has been volatile in the past, and may be subject to fluctuations in the future
The market price of the Common Shares may be volatile and subject to wide fluctuations in response to numerous factors, many of which are beyond our control. This volatility may affect the ability of holders of Common Shares to sell their securities at an advantageous price. Market price fluctuations in the Common Shares may be due to our operating results failing to meet expectations of securities analysts or investors in any period, downward revision in securities analysts’ estimates, adverse changes in general market conditions or economic trends, acquisitions, dispositions or other material public announcements by us or our competitors, along with a variety of additional factors. These broad market fluctuations may adversely affect the market price of the Common Shares.
Financial markets historically at times experienced significant price and volume fluctuations that have particularly affected the market prices of equity securities of companies and that have often been unrelated to the operating performance, underlying asset values or prospects of such companies. Accordingly, the market price of the Common Shares may decline even if our operating results, underlying asset values or prospects have not changed. Additionally, these factors, as well as other related factors, may cause decreases in asset values that are deemed to be other than temporary, which may result in impairment losses. There can be no assurance that continuing fluctuations in price and volume will not occur. If such increased levels of volatility and market turmoil continue, our operations could be adversely impacted and the trading price of the Common Shares may be materially adversely affected.
There is no market through which the Preference Shares, Warrants, Debt Securities or Units may be sold
There is no market through which the Preference Shares, Warrants, Debt Securities or Units may be sold. There can be no assurance that an active trading market will develop for the aforementioned securities, or if developed, that such a market will be sustained at the price level at which it was offered. The liquidity of the trading market in those securities, and the market price quoted for those securities, may be adversely affected by, among other things:
| ● | changes in the overall market for those securities; |
| ● | changes in our financial performance or prospects; |
| ● | changes or perceived changes in our creditworthiness; |
| ● | the prospects for companies in the industry generally; |
| ● | the number of holders of those securities; |
| ● | the interest of securities dealers in making a market for those securities; and |
| ● | prevailing interest rates. |
There can be no assurance that fluctuations in the trading price will not materially adversely impact on our ability to raise equity funding without significant dilution to our existing shareholders, or at all.
Future sales or issuances of Securities could decrease the value of existing securities, dilute investors’ voting power and reduce our earnings per share
We may sell additional securities in subsequent offerings and may issue additional securities to finance operations, acquisitions or other projects. Our articles permit the issuance of an unlimited number of Common Shares. Moreover, we may issue additional Common Shares on the issuance of RSUs, DSUs or the exercise of options under our Omnibus Equity Incentive Plan. We cannot predict the size of future sales and issuances of securities or the effect, if any, that such future sales and issuances of securities will have on the market price of the Securities. Our directors have discretion to determine the price and the terms of further issuances. Sales or issuances of a substantial number of securities, or the perception that such sales could occur, may adversely affect prevailing market prices for Securities. With any additional sale or issuance of Common Shares (including securities convertible into Common Shares), investors will suffer dilution of their voting power and may experience dilution in the Company’s earnings per share.
| - 14 - |
The board of directors may issue, without shareholder approval, Preference Shares that have rights and preferences potentially superior to those of the Common Shares. Such an issuance may delay or prevent a change of control.
While there are no Preference Shares currently outstanding, our articles allow the issuance of Preference Shares in one or more series. Subject to the TSXV and any applicable regulatory approvals, the board of directors may set the rights and preferences of any series of Preference Shares in its sole discretion without shareholder approval. The rights and preferences of those Preference Shares may be superior to those of the Common Shares. Accordingly, the issuance of Preference Shares may adversely affect the rights of holders of Common Shares and could have the effect of delaying or preventing a change of control, which may deprive our shareholders of a control premium that might otherwise have been realized in connection with an acquisition of Engine.
Risks relating to our status as a “foreign private issuer” under U.S. securities laws.
We are a “foreign private issuer”, under applicable U.S. federal securities laws, and are, therefore, we will not be subject to the same requirements that are imposed upon U.S. domestic issuers by the SEC. Under the United States Exchange Act of 1934, as amended (the “U.S. Exchange Act”), we will not be subject to reporting obligations that, in certain respects, are less detailed and less frequent than those of U.S. domestic reporting companies. As a result, we will not file the same reports that a U.S. domestic issuer would file with the SEC, although we will be required to file with or furnish to the SEC the continuous disclosure documents that we are required to file in Canada under Canadian securities laws. In addition, our officers, directors, and principal shareholders will be exempt from the reporting and short-swing profit recovery provisions of Section 16 of the U.S. Exchange Act. Therefore, our shareholders may not know on as timely a basis when our officers, directors and principal shareholders purchase or sell Common Shares, as the reporting periods under the corresponding Canadian insider reporting requirements are longer.
As a foreign private issuer, we will be exempt from the rules and regulations under the U.S. Exchange Act related to the furnishing and content of proxy statements. We will also be exempt from Regulation FD, which prohibits issuers from making selective disclosures of material non-public information. While we comply with the corresponding requirements relating to proxy statements and disclosure of material non-public information under Canadian securities laws, these requirements differ from those under the U.S. Exchange Act and Regulation FD and shareholders should not expect to receive the same information at the same time as such information is provided by U.S. domestic companies. In addition, we may not be required under the U.S. Exchange Act to file annual and quarterly reports with the SEC as promptly as U.S. domestic companies whose securities are registered under the U.S. Exchange Act.
In addition, as a foreign private issuer, we have the option to follow certain Canadian corporate governance practices, except to the extent that such laws would be contrary to U.S. securities laws, and provided that we disclose the requirements that we are not following and describe the Canadian practices we follow instead. We may in the future elect to follow home country practices in Canada with regard to certain corporate governance matters. As a result, our shareholders may not have the same protections afforded to shareholders of U.S. domestic companies that are subject to all corporate governance requirements.
We may not be successful in listing our Common Shares on NASDAQ; if listed, we may lose our foreign private issuer status in the future, which could result in significant additional costs and expenses to us.
We have applied for the listing of our Common Shares on NASDAQ and will concurrently file with this Prospectus a registration statement on Form F-10 (the “Registration Statement”) with the SEC, which has not yet been declared effective. We cannot assure you that our Common Shares will be approved for listing on NASDAQ. The listing of the Common Shares on NASDAQ is subject to a number of regulatory requirements, including the effectiveness of the Registration Statement and a determination by the NASDAQ that the Company has satisfied all applicable listing requirements.
Additionally, even if the Common Shares are approved for listing on NASDAQ and following the effectiveness of the Registration Statement, we may lose our status as a foreign private issuer under applicable U.S. federal securities laws. As a foreign private issuer, we are not required to comply with all the periodic disclosure and current reporting requirements of the U.S. Exchange Act and related rules and regulations. As a result, we will not file the same reports that a U.S. domestic issuer would file with the SEC, although we will be required to file with or furnish to the SEC the continuous disclosure documents that we are required to file in Canada under Canadian securities laws. In order to maintain our current status as a foreign private issuer, a majority of our Common Shares must be either directly or indirectly owned by non-residents of the United States unless we also satisfy one of the additional requirements necessary to preserve this status. We may in the future lose our foreign private issuer status if a majority of the Common Shares are held in the United States and we fail to meet the additional requirements necessary to avoid loss of foreign private issuer status. The regulatory and compliance costs to us under U.S. federal securities laws as a U.S. domestic issuer may be significantly more than the costs we would incur as a Canadian foreign private issuer eligible to use MJDS. If we are not a foreign private issuer, we would not be eligible to use the MJDS or other foreign issuer forms and would be required to file periodic and current reports and registration statements on U.S. domestic issuer forms with the SEC, which are more detailed and extensive than the forms available to a foreign private issuer. In addition, we may lose the ability to rely upon exemptions from NASDAQ corporate governance requirements that are available to foreign private issuers.
| - 15 - |
Status as an “Emerging Growth Company” Under U.S. Securities Laws
We are an “emerging growth company” as defined in section 3(a) of the Exchange Act (as amended by the JOBS Act, enacted on April 5, 2012), and we will continue to qualify as an emerging growth company until the earliest to occur of: (a) the last day of the fiscal year during which we have total annual gross revenues of US$1,070,000,000 (as such amount is indexed for inflation every five years by the SEC) or more; (b) the last day of our fiscal year following the fifth anniversary of the date of the first sale of our common equity securities pursuant to an effective registration statement under the United States Securities Act of 1933, as amended (the “U.S. Securities Act”); (c) the date on which we have, during the previous three year period, issued more than US$1,000,000,000 in non-convertible debt; and (d) the date on which we are deemed to be a “large accelerated filer”, as defined in Rule 12b–2 under the U.S. Exchange Act. We will qualify as a large accelerated filer (and would cease to be an emerging growth company) at such time when on the last business day of our second fiscal quarter of such year the aggregate worldwide market value of our common equity held by non-affiliates will be US$700 million or more.
For so long as we remain an emerging growth company, we are permitted to and intend to rely upon exemptions from certain disclosure requirements that are applicable to other public companies that are not emerging growth companies. These exemptions include not being required to comply with the auditor attestation requirements of Section 404 of the JOBS Act. We may take advantage of some, but not all, of the available exemptions available to emerging growth companies. We cannot predict whether investors will find the Common Shares less attractive because we rely upon certain of these exemptions. If some investors find the Common Shares less attractive as a result, there may be a less active trading market for the Common Shares and the Common Share price may be more volatile. On the other hand, if we no longer qualify as an emerging growth company, we would be required to divert additional management time and attention from our development and other business activities and incur increased legal and financial costs to comply with the additional associated reporting requirements, which could negatively impact our business, financial condition and results of operations.
We will have broad discretion over the use of proceeds from sales of the Securities, and we may not use the proceeds in the desired manner
Management will have discretion concerning the use of the proceeds from sales of the Securities as well as the timing of their expenditure. As a result, an investor will be relying on the judgment of management for the application of the proceeds from sales of the Securities. Management may use the net proceeds from sales of the Securities other than as described under the heading “Use of Proceeds” if they believe it would be in our best interest to do so and in ways that an investor may not consider desirable. The results and the effectiveness of the application of the proceeds are uncertain. If the proceeds are not applied effectively, our results of operations may suffer.
Unless otherwise indicated in the applicable Prospectus Supplement, we intend to use the net proceeds from the sale of Securities for working capital requirements or for other general corporate purposes, including, but not limited to, investments in product development and market development activities necessary to commercialize our products and services. More detailed information regarding the use of proceeds from the sale of Securities will be described in the applicable Prospectus Supplement. We may, from time to time, issue Common Shares or other securities otherwise than through the offering of Securities pursuant to this Prospectus.
| - 16 - |
Prior to taking into account the January and February 2021 Private Placements and other recent adjustments to working capital, the Company had cash and working capital balance as of November 30, 2020 of $2.7 million and $(15.7) million, respectively. On February 26, 2021, the Company announced that EB Acquisition Company, LLC (“EB LLC”) had completed the previously agreed conversion of the US$5 million principal amount secured credit facility (the “EB Loan”) into a secured convertible debenture (the “Convertible Debenture”) with a three year term which is convertible into units of the Company at a conversion price of US$10.25 per unit, with each unit comprised of one common share and one-half of a warrant, with each whole warrant exercisable into a common share at an exercise price of US$15.00 per share for a period of three years from the issuance of the Convertible Debenture – the Convertible Debenture has been approved by the TSXV. In addition, as of February 28, 2021, the Company had outstanding loans under the Paycheck Protection Program (the “PPP”) of $1,589,559, of which $174,795 was recently forgiven, and the Company expects that the balance of $1,414,764 will be forgiven in full as it has cleared all requirements for full forgiveness - all forgiveness applications have been submitted as of present and formal forgiveness of these loans is expected in the near term. Excluding those PPP loans and the EB Loan, and accounting for the January and February 2021 Private Placements and the recent payments to Newsweek (as press released by the Company on February 15, 2021), the revised estimated working capital balance as of February 28, 2021 would be approximately $13.6 million.
In calculating working capital, all items are reflected in current assets except for prepaid expenses and other; and, all items in current liabilities are reflected except for warrant liability and deferred revenue - the excluded items are not financial assets and liabilities as they will not be settled in cash, and as such they have not been included in the calculation of working capital. As of February 28, 2021, the Company had a cash balance of approximately $22.1 million.
As of February 28, 2021, the Company had promissory notes totalling approximately $1.6 million outstanding. In addition to the EB LLC Convertible Debenture, the Company currently has outstanding the following non-current liabilities: (i) principal amount CDN$1,605,890 convertible debentures issued in 2019, which convert into units of the Company at CDN$7.50 per unit, and mature on dates ranging from July 8, 2022 to August 8, 2022; (ii) principal amount $925,000 convertible debentures issued in 2020, which convert into units of the Company at $7.50 per unit, and mature on dates ranging from August 19, 2022 to September 15, 2022; and, (iii) principal amount $2,000,000 convertible debenture issued in 2020, which converts into units of the Company at $8.90 per unit, and matures on November 20, 2022.
The Company estimates it can continue operations for 12 to 24 months considering cash on hand as of present date. This estimate is based on the current operating performance of the Company. The Company’s current average monthly cash outflow is now approximately $900,000 per month based on the Company’s current revenue run rate and operating expenditures. The Company does not currently have any committed capital expenditures that are not subject to adjustment. The current monthly cash burn is subject to positive adjustments based on increasing revenues and negative adjustments based on increased operating expenses. The Company believes that the improved cash burn going forward is repeatable as it has spent the past year incorporating the acquisitions of UMG, Frankly and WinView, and as a result the Company has now identified expenditures that can be reduced or eliminated without impacting revenues – a significant portion of these expenses have already been eliminated, primarily through the disposition of the Motorsport Assets.
The $900,000 monthly cash burn rate is the Company’s current approximate monthly cash burn rate, which is in effect its Adjusted EBITDA. This excludes change in cash due to changes in working capital, interest expense on its debts, non-cash charges such as depreciation and amortization and items that management believes are non-recurring in nature and should not be represented as future cash expenditures, such as professional fees for pursuing a Nasdaq listing. Prior to the disposal of the Motorsport Assets in November 2020, the Company’s monthly cash burn averaged approximately $1.7 million per month, with approximately $700,000 per month of that burn coming from the operations of the Motorsports Assets. Post disposal of the Motorsport Assets, the Company’s monthly cash burn was reduced to an average of $1.0 million. In addition, around the same time as the disposal of the Motorsport Assets, the Company made some smaller reductions to its existing spend that reduced its operating expenses by approximately $100,000 per month. These reductions included headcount reduction, reduction of third party technology and infrastructure costs, duplicate costs of the recently combined entities of the group and public relations costs.
Over the next 12 months, the Company does not have any committed expenses beyond normal operating expenditures. For growth initiatives over the next 12 months, the Company currently expects to allocate capital as follows:
| UMG – Marketing and Advertising | $ | 850,000 | ||
| UMG – Product Development | $ | 560,000 | ||
| Stream Hatchet – Product Development | $ | 600,000 | ||
| WinView – Product Development | $ | 450,000 |
The Company’s software development roadmap is focused on a number of key initiatives that will enable the Company to accelerate audience and revenue growth which furthers the Company’s direct to consumer marketing strategies. Today, the Company has approximately 2.5 million registered users on the UMG tournament platform. One of the key operating milestones for the current year is to convert ten (10%) percent of the registered user base to the premium subscription service - UMG Prime @ $4.99 USD/month. The Company also seeks to grow its registered user base, which will have a direct impact on expanding advertising and sponsorship revenues.
As part of its growth strategies, the Company will also continue to investigate value-enhancing acquisitions and/or potential strategic partnerships. The decisions will depend on market conditions, acquisition candidates and other factors, as they evolve over time. The Company is currently in early stage discussions and the due diligence phase on certain acquisition opportunities, but there is no certainty that such opportunities will evolve beyond the current stage of discussions and investigations.
While the Company anticipates that it will spend the funds available to it as set forth above, there may be circumstances where, for sound business reasons, a reallocation of expenditure priorities may be necessary.
We incurred operating losses and negative operating cash flow for the year ended August 31, 2020 and the three month period ended November 30, 2020. We expect to use the net proceeds from the sale of Securities in pursuit of our ongoing general business objectives. To that end, a substantial portion of the net proceeds from the sale of Securities are expected to be allocated to working capital requirements and to the continuing development and marketing of our proprietary technologies and core products. To the extent that we have negative operating cash flows in future periods, we may need to deploy a portion of the net proceeds from the sale of Securities and/or existing working capital to fund such negative cash flow. See “Risk Factors”.
Other than as set out herein in the table below, and more fully described under “Prior Sales”, there have been no material changes in the share capitalization of the Company since November 30, 2020.
The applicable Prospectus Supplement will describe any material change, and the effect of such material change, on the share and loan capitalization of the Company that will result from the issuance of Securities pursuant to such Prospectus Supplement.
| - 17 - |
| November 30, 2020 | March 23, 2021 | |||||||
| Share Capital | Unlimited | Unlimited | ||||||
| Common Shares | 7,856,634 | 14,162,551 | ||||||
| Warrants | 2,659,095 | 6,236,165 | ||||||
| Restricted Share Units | 652,753 | 566,442 | ||||||
| Options | 252,666 | 252,666 | ||||||
| 2019 Convertible Debentures(1) | CDN$1,605,890 | CDN$690,890 | ||||||
| 2020 Convertible Debentures(2) | US$7,651,393 | - | (7) | |||||
| 2020 Convertible Debentures ($7.80)(3) | US$1,000,000 | - | (7) | |||||
| One Up Debenture(4) | US$3,000,000 | - | (7) | |||||
| Standby Debentures(5) | US$2,000,000 | US$2,000,000 | ||||||
| EB Loan(6) | - | US$5,000,000 | ||||||
Notes:
| (1) | For more information on the 2019 Convertible Debentures, see Note (1) of “Prior Sales” below. | |
| (2) | For more information on the 2020 Convertible Debentures, see Note (13) of “Prior Sales” below. | |
| (3) | For more information on the 2020 Convertible Debentures ($7.80), see Note (17) of “Prior Sales” below. | |
| (4) | For more information on the One Up Debenture, see Note (15) of “Prior Sales” below. | |
| (5) | For more information on the Standby Debentures, see Note (16) of “Prior Sales” below. | |
| (6) | For more information on the EB Loan, see Notes (26) and (32) of “Prior Sales” below. | |
| (7) | For more information on the Debt Settlements and conversions, see Notes (27) and (29) of “Prior Sales” below. |
The following is a brief summary of certain general terms and provisions of the Securities as at the date of this Prospectus. The summary does not purport to be complete and is indicative only. The specific terms of any Securities to be offered under this Prospectus, and the extent to which the general terms described in this Prospectus apply to such Securities, will be set forth in the applicable Prospectus Supplement. Moreover, a Prospectus Supplement relating to a particular offering of Securities may include terms pertaining to the Securities being offered thereunder that are not within the terms and parameters described in this Prospectus. The Securities will not include any novel derivatives or asset-backed securities as discussed under Part 4 of National Instrument 44-102 - Shelf Distributions.
Common Shares
The Company is authorized to issue an unlimited number of Common Shares, without par value, of which 14,162,551 are issued and outstanding as at the date of this Prospectus.
Each Common Share entitles the holder thereof to receive notice of any meetings of shareholders of the Company, to attend and to cast one vote at all such meetings. Holders of Common Shares do not have cumulative voting rights with respect to the election of directors and, accordingly, holders of a majority of the Common Shares entitled to vote in any election of directors may elect all directors standing for election. The holders of Common Shares are entitled to receive if, as and when declared by the Board, dividends in such amounts as shall be determined by the Board in its discretion. The holders of Common Shares have the right to receive the Company’s remaining property and assets after payment of debts and other liabilities on a pro rata basis in the event of a liquidation, dissolution or winding-up, whether voluntary or involuntary. The Common Shares do not carry any pre-emptive, subscription, redemption or conversion rights.
Dividend Policy
We have not paid any dividends to date on the Common Shares. We intend to retain our earnings, if any, to finance the growth and development of our business. Accordingly, we do not currently expect to pay any dividends on our Common Shares in the near future.
Preference Shares
The Company is authorized to issue an unlimited number of Preference Shares. As of the date of this Prospectus, no Preference Shares are issued and outstanding.
Holders of Preference Shares shall not be entitled to receive notice of, or attend or vote at, any meeting of shareholders of the Company except as required by law or as provided in the special rights and restrictions attached to any series of Preference Shares. Holders of Preference Shares shall be entitled, on the distribution of assets or property of the Company on the liquidation, dissolution or winding up of the Company, whether voluntary or involuntary, or on any other distribution of assets or property of the Company among its shareholders for the purpose of winding up its affairs, to receive, before any distribution or payment is made to holders as set out in the special rights and restrictions attached to the applicable series of Preference Shares. After payment to holders of Preference Shares of the amounts so payable to them, they shall not, as such, be entitled to share in any further distribution of assets or property of the Company except as specifically provided in the special rights and restrictions attached to any particular series of Preference Shares.
The following description, together with the additional information we may include in any applicable Prospectus Supplements, summarizes the material terms and provisions of the Warrants that we may offer under this Prospectus, which will consist of Warrants to purchase Common Shares and may be issued in one or more series. Warrants may be offered independently or together with other Securities, and may be attached to or separate from those Securities. While the terms we have summarized below will apply generally to any Warrants that we may offer under this Prospectus, we will describe the particular terms of any series of Warrants that we may offer in more detail in the applicable Prospectus Supplement. The terms of any Warrants offered under a Prospectus Supplement may differ from the terms described below.
| - 18 - |
General
Warrants may be issued under and governed by the terms of one or more warrant indentures (a “Warrant Indenture”) between us and a warrant trustee (the “Warrant Trustee”) that we will name in the relevant Prospectus Supplement, if applicable. Each Warrant Trustee will be a financial institution organized under the laws of Canada or any province thereof and authorized to carry on business as a trustee.
This summary of some of the provisions of the Warrants is not complete. The statements made in this Prospectus relating to any Warrant Indenture, if any, and Warrants to be issued under this Prospectus are summaries of certain anticipated provisions thereof and do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all provisions of the Warrant Indenture, if any, and the Warrant certificate. Prospective investors should refer to the Warrant Indenture, if any, and the Warrant certificate relating to the specific Warrants being offered for the complete terms of the Warrants. If applicable, we will file a Warrant Indenture describing the terms and conditions of Warrants we are offering concurrently with the filing of the applicable Prospectus Supplement under which such Warrants are offered.
The applicable Prospectus Supplement relating to any Warrants offered by us will describe the particular terms of those Warrants and include specific terms relating to the offering. This description will include, where applicable:
| ● | the designation and aggregate number of Warrants; |
| ● | the price at which the Warrants will be offered; |
| ● | the currency or currencies in which the Warrants will be offered; |
| ● | the date on which the right to exercise the Warrants will commence and the date on which the right will expire; |
| ● | the number of Common Shares that may be purchased upon exercise of each Warrant and the price at which and currency or currencies in which the Common Shares may be purchased upon exercise of each Warrant; |
| ● | the designation and terms of any Securities with which the Warrants will be offered, if any, and the number of the Warrants that will be offered with each Security; |
| ● | the date or dates, if any, on or after which the Warrants and the other Securities with which the Warrants will be offered will be transferable separately; |
| ● | whether the Warrants will be subject to redemption and, if so, the terms of such redemption provisions; |
| ● | whether the Company will issue the Warrants as global securities and, if so, the identity of the depositary of the global securities; |
| ● | whether the Warrants will be listed on any exchange; |
| ● | material Canadian federal income tax consequences of owning the Warrants; and |
| ● | any other material terms or conditions of the Warrants. |
Rights of Holders Prior to Exercise
Prior to the exercise of their Warrants, holders of Warrants will not have any of the rights of holders of the Common Shares issuable upon exercise of the Warrants.
| - 19 - |
Exercise of Warrants
Each Warrant will entitle the holder to purchase Common Shares, as specified in the applicable Prospectus Supplement at the exercise price that we describe therein. Unless we otherwise specify in the applicable Prospectus Supplement, holders of the Warrants may exercise the Warrants at any time up to the specified time on the expiration date that we set forth in the applicable Prospectus Supplement. After the close of business on the expiration date, unexercised Warrants will become void.
Holders of the Warrants may exercise the Warrants by delivering the Warrant certificate representing the Warrants to be exercised together with specified information, and paying the required amount to the Warrant Trustee, if any, or to us, as applicable, in immediately available funds, as provided in the applicable Prospectus Supplement. We will set forth on the Warrant certificate and in the applicable Prospectus Supplement the information that the holder of the Warrant will be required to deliver to the Warrant Trustee, if any, or to us, as applicable.
Upon receipt of the required payment and the Warrant certificate properly completed and duly executed at the corporate trust office of the Warrant Trustee, if any, to us at our principal offices, as applicable, or any other office indicated in the applicable Prospectus Supplement, we will issue and deliver the securities purchasable upon such exercise. If fewer than all of the Warrants represented by the Warrant certificate are exercised, then we will issue a new Warrant certificate for the remaining amount of Warrants. If we so indicate in the applicable Prospectus Supplement, holders of the Warrants may surrender securities as all or part of the exercise price for Warrants.
Anti-Dilution
The Warrant Indenture, if any, and the Warrant certificate will specify that upon the subdivision, consolidation, reclassification or other material change of the Common Shares or any other reorganization, amalgamation, merger or sale of all or substantially all of our assets, the Warrants will thereafter evidence the right of the holder to receive the securities, property or cash deliverable in exchange for or on the conversion of or in respect of the Common Shares to which the holder of a Common Share would have been entitled immediately after such event. Similarly, any distribution to all or substantially all of the holders of Common Shares of rights, options, warrants, evidences of indebtedness or assets will result in an adjustment in the number of Common Shares to be issued to holders of Warrants.
DESCRIPTION OF SUBSCRIPTION RECEIPTS
Subscription Receipts may be offered separately or together with other Securities.
Subscription Receipts will be issued under a subscription receipt agreement entered into between us and an escrow agent (the “Escrow Agent”). The applicable Prospectus Supplement will include details of the agreement pursuant to which such Subscription Receipts will be created and issued. Subscription Receipts will entitle the holders to receive Common Shares or other securities or a combination of securities upon the satisfaction of certain conditions, typically the completion of an acquisition by us of the assets or securities of another entity. Subsequent to an offering of Subscription Receipts, all or a portion of the proceeds for the Subscription Receipts will be held in escrow by the Escrow Agent, pending the satisfaction of the conditions specified in the applicable Prospectus Supplement. Holders of Subscription Receipts are not shareholders. Holders of Subscription Receipts are only entitled to receive Common Shares or other securities upon exchange or conversion of their Subscription Receipts in accordance with the terms thereof or to a return of the price for the Subscription Receipts together with any payments in lieu of interest or other income earned on the subscription proceeds.
The particular terms and provisions of Subscription Receipts offered under any Prospectus Supplement, and the extent to which the general terms and provisions described in this Prospectus may apply to those Subscription Receipts, will be described in the Prospectus Supplement filed in respect of such Subscription Receipts. This description will include, where applicable:
| ● | the aggregate number of Subscription Receipts offered; | |
| ● | the price and currency or currency unit at which the Subscription Receipts will be offered; | |
| ● | the terms, conditions and procedures pursuant to which the holders of Subscription Receipts will become entitled to receive Common Shares or other securities; | |
| ● | the number of Common Shares or other securities that may be obtained upon exchange or conversion of each Subscription Receipt; | |
| ● | the designation and terms of any other Securities with which the Subscription Receipts will be offered, if any, and the number of Subscription Receipts that will be offered with each other Security; | |
| ● | the circumstances, if any, which will cause the Subscription Receipts to be automatically exchanged or converted; | |
| ● | whether the Subscription Receipts are to be issued in registered form, “book entry only” form, bearer form or in the form of temporary or permanent global securities and the basis of exchange, transfer and ownership thereof; | |
| ● | the terms applicable to the gross proceeds from the sale of such Subscription Receipts plus any interest or other income earned thereon; | |
| ● | certain material Canadian tax consequences of owning Subscription Receipts; and | |
| ● | any other material terms and conditions of the Subscription Receipts. |
The terms and provisions of any Subscription Receipts offered under a Prospectus Supplement may differ from the terms described above, and may not be subject to or contain any or all of the terms described above.
The preceding description and any description of Subscription Receipts in the applicable Prospectus Supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the subscription receipt agreement relating to such Subscription Receipts.
In the case of Subscription Receipts which are exchangeable for other securities of the Company, the holders will not have any of the rights of holders of the securities issuable upon the exchange of the Subscription Receipts until the issuance of those securities in accordance with the terms of the Subscription Receipts.
Prospective purchasers of Subscription Receipts should be aware that special Canadian federal income tax, accounting and other considerations may be applicable to instruments such as Subscription Receipts. The applicable Prospectus Supplement will describe such considerations, to the extent they are material, as they apply generally to purchasers of such Subscription Receipts.
DESCRIPTION OF DEBT SECURITIES
The following description, together with the additional information we may include in any applicable Prospectus Supplements, summarizes the material terms and provisions of the Debt Securities that we may offer under this Prospectus, which may be issued in one or more series. Debt Securities may be offered independently or together with other Securities.
| - 20 - |
General
The Debt Securities will be issued in one or more series under an indenture (the “Indenture”) to be entered into between the Company and one or more trustees (the “Trustee”) that will be named in a Prospectus Supplement for a series of Debt Securities. To the extent applicable, the Indenture will be subject to and governed by the United States Trust Indenture Act of 1939, as amended. A copy of the form of the Indenture to be entered into has been or will be filed with the SEC as an exhibit to the Registration Statement and will be filed with the securities commissions or similar authorities in Canada when it is entered into. The description of certain provisions of the Indenture in this section do not purport to be complete and are subject to, and are qualified in their entirety by reference to, the provisions of the Indenture. Terms used in this summary that are not otherwise defined herein have the meaning ascribed to them in the Indenture. The particular terms relating to Debt Securities offered by a Prospectus Supplement will be described in the related Prospectus Supplement. This description may include, but may not be limited to, any of the following, if applicable:
| ● | the specific designation of the Debt Securities; |
| ● | any limit on the aggregate principal amount of the Debt Securities; the date or dates, if any, on which the Debt Securities will mature and the portion (if less than all of the principal amount) of the Debt Securities to be payable upon declaration of acceleration of maturity; |
| ● | the rate or rates (whether fixed or variable) at which the Debt Securities will bear interest, if any, the date or dates from which any such interest will accrue and on which any such interest will be payable and the record dates for any interest payable on the Debt Securities that are in registered form; |
| ● | the terms and conditions under which we may be obligated to redeem, repay or purchase the Debt Securities pursuant to any sinking fund or analogous provisions or otherwise; |
| ● | the terms and conditions upon which we may redeem the Debt Securities, in whole or in part, at our option; |
| ● | the covenants applicable to the Debt Securities; |
| ● | the terms and conditions for any conversion or exchange of the Debt Securities for any other securities; |
| ● | the extent and manner, if any, to which payment on or in respect of the Debt Securities of the series will be senior or will be subordinated to the prior payment of other liabilities and obligations of the Company; |
| ● | whether the Debt Securities will be secured or unsecured; |
| ● | whether the Debt Securities will be issuable in registered form or bearer form or both, and, if issuable in bearer form, the restrictions as to the offer, sale and delivery of the Debt Securities which are in bearer form and as to exchanges between registered form and bearer form; |
| ● | whether the Debt Securities will be issuable in the form of registered global securities (“Global Securities”), and, if so, the identity of the depositary for such registered Global Securities; |
| ● | the denominations in which registered Debt Securities will be issuable, if other than denominations of $1,000 and integral multiples of $1,000 and the denominations in which bearer Debt Securities will be issuable, if other than denominations of $5,000; |
| ● | each office or agency where payments on the Debt Securities will be made and each office or agency where the Debt Securities may be presented for registration of transfer or exchange; |
| ● | if other than United States dollars, the currency in which the Debt Securities are denominated or the currency in which we will make payments on the Debt Securities; |
| ● | material Canadian federal income tax consequences and United States federal income tax consequences of owning the Debt Securities; |
| ● | any index, formula or other method used to determine the amount of payments of principal of (and premium, if any) or interest, if any, on the Debt Securities; and |
| ● | any other terms, conditions, rights or preferences of the Debt Securities which apply solely to the Debt Securities. |
If we denominate the purchase price of any of the Debt Securities in a currency or currencies other than United States dollars or a non-United States dollar unit or units, or if the principal of and any premium and interest on any Debt Securities is payable in a currency or currencies other than United States dollars or a non-United States dollar unit or units, we will provide investors with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of Debt Securities and such non-United States dollar currency or currencies or non-United States dollar unit or units in the applicable Prospectus Supplement.
Each series of Debt Securities may be issued at various times with different maturity dates, may bear interest at different rates and may otherwise vary.
| - 21 - |
The terms on which a series of Debt Securities may be convertible into or exchangeable for Common Shares or other securities of the Company will be described in the applicable Prospectus Supplement. These terms may include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at the option of the Company, and may include provisions pursuant to which the number of Common Shares or other securities to be received by the holders of such series of Debt Securities would be subject to adjustment.
To the extent any Debt Securities are convertible into Common Shares or other securities of the Company, prior to such conversion the holders of such Debt Securities will not have any of the rights of holders of the securities into which the Debt Securities are convertible, including the right to receive payments of dividends or the right to vote such underlying securities.
Rights of Holders Prior to Exercise
To the extent any Debt Securities are convertible into Common Shares or other securities of the Company, prior to the conversion of such Debt Securities, holders of such Debt Securities will not have any of the rights of holders of the securities into which the Debt Securities are convertible, including the right to receive payments of dividends or the right to vote such underlying securities.
Global Securities
We may issue Debt Securities in whole or in part in the form of one or more global securities, which will be registered in the name of and be deposited with a depositary, or its nominee, each of which will be identified in the applicable Prospectus Supplement. The global securities may be in temporary or permanent form. The applicable Prospectus Supplement will describe the terms of any depositary arrangement and the rights and limitations of owners of beneficial interests in any global security. The applicable Prospectus Supplement will describe the exchange, registration and transfer rights relating to any global security.
The following description, together with the additional information we may include in any applicable Prospectus Supplements, summarizes the material terms and provisions of the Units that we may offer under this Prospectus. While the terms we have summarized below will apply generally to any Units that we may offer under this Prospectus, we will describe the particular terms of any series of Units in more detail in the applicable Prospectus Supplement. The terms of any Units offered under a Prospectus Supplement may differ from the terms described below.
We will file the form of unit agreement (“Unit Agreement”), if any, between us and a unit agent that describes the terms and conditions of the series of Units we are offering, and any supplemental agreements, concurrently with the filing of the applicable Prospectus Supplement under which such series of Units are offered. The following summaries of material terms and provisions of the Units are subject to, and qualified in their entirety by reference to, all the provisions of the Unit Agreement, if any, and any supplemental agreements applicable to a particular series of Units. We urge you to read the applicable Prospectus Supplements related to the particular series of Units that we sell under this Prospectus, as well as the complete Unit Agreement, if any, and any supplemental agreements that contain the terms of the Units.
General
We may issue Units comprising one or more of Securities otherwise described herein in any combination. Each Unit will be issued so that the holder of the Unit is also the holder of each security included in the Unit. Thus, the holder of a Unit will have the rights and obligations of a holder of each included security. The Unit Agreement under which a Unit may be issued may provide that the securities included in the Unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable Prospectus Supplement the terms of the series of Units, including:
| ● | the designation and terms of the Units and of the securities comprising the Units, including whether and under what circumstances those securities may be held or transferred separately; |
| ● | provisions of the governing Unit Agreement, if any; and |
| ● | any provisions for the issuance, payment, settlement, transfer or exchange of the Units or of the securities comprising the Units. |
The provisions described in this section, as well as those described under “Description of Share Capital” and “Description of Warrants” will apply to each Unit and to any Security included in each Unit, respectively.
| - 22 - |
Issuance in Series
We may issue Units in such amounts and in numerous distinct series as we determine.
PRICE RANGE AND TRADING VOLUMES
The Common Shares are listed and posted for trading on the TSXV under the symbol “GAME”. The following table sets forth, on a monthly basis, the reported price range and the aggregate volume of trading of the Common Shares during the 12 months preceding the date of this Prospectus.
TSXV (prices in Canadian dollars) | ||||||||
| Date | Price Range (high - low) | Total Volume | ||||||
March 1 - 24, 2021 | $ | 14.24 - $11.00 | 580,589 | |||||
| February 2021 | $ | 14.84 - $8.90 | 1,417,221 | |||||
| January 2021 | $ | 10.90 - $9.01 | 311,902 | |||||
| December 2020 | $ | 11.00 - $8.17 | 406,204 | |||||
| November 2020 | $ | 10.35 - $7.21 | 403,501 | |||||
| October 2020 | $ | 11.76 - $9.00 | 496,703 | |||||
| September 2020 | $ | 11.74 - $8.70 | 378,890 | |||||
| August 2020(3) | $ | 14.75 - $7.43 | 744,917 | |||||
| July 27 – 31, 2020(1) | $ | 11.40 - $8.85 | 218,290 | |||||
| June 1 – 22, 2020(1) | 14.25 - $10.20 | 572,451 | ||||||
| May 2020 | $ | 18.00 - $5.85 | 1,581,284 | |||||
| April 2020 | $ | 15.00 - $6.15 | 619,235 | |||||
| March 2020 | $ | 17.70 - $6.38 | 165,585 | |||||
| February 28, 2020(2) | $ | 13.20 - $9.90 | 23,039 | |||||
Notes:
(1) On June 22, 2020, the OSC issued a cease trade order against Engine and its securities were halted on June 23, 2020 from trading on the TSXV. The OSC issued the order as a result of Engine not meeting the deadline for filing its second quarter interim financial statements for the six-month period ended February 29, 2020, the related management’s discussion and analysis and certificates of its CEO and CFO (the “Q2 Filings”). On July 8, 2020, Engine filed the Q2 Filings and the CTO was lifted on July 10, 2020. Engine common shares resumed trading on the TSXV on July 27, 2020.
(2) On January 6, 2020, the OSC issued a cease trade order against Engine and its securities were halted from trading on the TSXV. The OSC issued the order as a result of Engine not meeting the deadline of December 31, 2019 to file its annual financial statements for the fiscal year ended August 31, 2019, the related management’s discussion and analysis and the related certification of the annual filings (the “2019 Annual Filings”). On February 17, 2020 Engine filed its 2019 Annual Filings and the CTO was lifted on February 24, 2020. Engine common shares resumed trading on the TSXV on February 28, 2020.
(3) On October 17, 2019, the Company completed a consolidation of its Common Shares on the basis of one post-consolidation Common Share for every five pre-consolidation Common Shares. On August 13, 2020, the Company completed a further consolidation of its Common Shares on the basis of one post-consolidation Common Share for every fifteen pre-consolidation Common Shares. The figures in this table are presented on a post-consolidation basis.
The closing price of the Common Shares on the TSXV on March 24, 2021 was CDN$11.75.
| - 23 - |
In the 12 months prior to the date of this Prospectus, the Company has issued the following securities:
| Types of Security | Date of Issue | Number of Securities/ Principal Amount | Exercise Price | Expiry Date | ||||||||
| Common Share purchase warrant(1)(2) | March 19, 2020 – August 31, 2020 | 445,146 | CDN$7.50 | July 8, 2024 | ||||||||
| Common Share(1)(3) | March 19, 2020 – August 31, 2020 | 445,146 | N/A | N/A | ||||||||
| Common Share purchase warrant(1)(2) | March 19, 2020 – March 15, 2021 | 345,264 | CDN$7.50 | July 25, 2024 | ||||||||
| Common Share(1)(3) | March 19, 2020 – March 15, 2021 | 345,264 | N/A | N/A | ||||||||
| Common Share purchase warrant(1)(2) | March 19, 2020 – March 18, 2021 | 357,995 | CDN$7.50 | August 8, 2024 | ||||||||
| Common Share(1)(3) | March 19, 2020 – March 18, 2021 | 357,995 | N/A | N/A | ||||||||
| Common Share(4) | March 24, 2020 – March 15, 2021 | 681,867 | N/A | N/A | ||||||||
| Common Share(5) | March 20, 2020 | 46,300 | N/A | N/A | ||||||||
| Common Share(6) | March 20, 2020 – May 27, 2020 | 444,428 | N/A | N/A | ||||||||
| Common Share purchase warrant(6) | March 20, 2020 – May 27, 2020 | 222,214 | CDN$13.50 | March 20 – May 27, 2023 | ||||||||
| Stock Options(7) | April 1, 2020 | 170,000 | CDN$11.25 | April 1, 2023 | ||||||||
| RSUs(8) | April 1, 2020 | 26,667 | N/A | N/A | ||||||||
| Common Share(8) | April 15, 2020 | 26,667 | N/A | N/A | ||||||||
| Common Share(9) | May 8, 2020 | 3,976,604 | N/A | N/A | ||||||||
| Options (Frankly)(9) | May 8, 2020 | 3,524 56,500 4,666 | CDN$106.50 CDN$7.50 CDN$7.05 | January 29,
2025 – November 27, 2027 November 7, 2029 April 20, 2021 | ||||||||
| RSUs (Frankly)(9) | May 8, 2020 | 91,647 | N/A | N/A | ||||||||
| - 24 - |
| Warrants (Frankly)(9) | May 8, 2020 | 1,055,036 | CDN$9.75 - CDN$13.50 | May 22, 2021 to March 13, 2022 | ||||||||
| Common Share(10) | June 3, 2020 | 100,000 | N/A | N/A | ||||||||
| Common Share(11) | June 3, 2020 | 200,000 | N/A | N/A | ||||||||
| Common Share(12) | June 16, 2020 | 13,354 | N/A | N/A | ||||||||
| Convertible Debentures(13) | August 19, 2020 – September 15, 2020 | $ | 7,651,393 | N/A | August 19, 2022 – September 15, 2022 | |||||||
| RSUs(14) | August 13, 2020 | 352,335 | N/A | N/A | ||||||||
| Convertible Debentures(15) | August 25, 2020 | $ | 3,000,000 | N/A | August 25, 2022 | |||||||
| Convertible Debentures(16) | October 16, 2020 | $ | 1,050,000 | N/A | October 16, 2022 | |||||||
| Convertible Debentures(17) | October 16, 2020 | $ | 1,000,000 | N/A | October 16, 2022 | |||||||
| Common Share(18) | October 29, 2020 | 2,500 | N/A | N/A | ||||||||
| RSUs(19) | November 3, 2020 | 75,944 | N/A | N/A | ||||||||
| RSUs(20) | November 4, 2020 – November 15, 2020 | 246,603 | N/A | N/A | ||||||||
| Convertible Debentures(21) | November 20, 2020 | $ | 950,000 | N/A | November 20, 2022 | |||||||
| Warrants(22) | November 20, 2020 | 224,719 | $ | 15 | November 20, 2024 | |||||||
| Common Shares(23) | November 25, 2020 | 66,666 | N/A | N/A | ||||||||
| Common Shares(24) | December 2, 2020 | 40,000 | N/A | N/A | ||||||||
| Common Shares(25) | December 3, 2020 | 75,944 | N/A | N/A | ||||||||
| Convertible Debentures(26) | December 2, 2020 | $ | 1,000,000 | N/A | January 5, 2022 | |||||||
| Common Shares(26) | December 30, 2020 | 6,666 | N/A | N/A | ||||||||
| Common Shares(27) | January 8, 2021 | 1,430,186 | N/A | N/A | ||||||||
| Warrants(27) | January 8, 2021 | 1,072,639 | $ | 15 | August 19, 2023 | |||||||
| Common Shares(28) | January 8, 2021 | 1,442,399 | N/A | N/A | ||||||||
| Warrants(28) | January 8, 2021 | 796,147 | $ | 15 | January 8, 2024 | |||||||
| Common Shares(28) | January 22, 2021 | 979,048 | N/A | N/A | ||||||||
| Warrants(28) | January 22, 2021 | 529,564 | $ | 15 | January 22, 2024 | |||||||
| Common Shares(29) | February 12, 2021 – March 18, 2021 | 123,331 | N/A | N/A | ||||||||
| Warrants(29) | February 12, 2021 – March 18, 2021 | 61,664 | $ | 15 | August 19, 2023– September 15, 2023 | |||||||
| Common Shares(30) | February 23, 2021 – March 10, 2021 | 23,825 | N/A | N/A | ||||||||
| Common Shares(31) | February 24, 2021 | 2,013,966 | N/A | N/A | ||||||||
| Warrants(31) | February 24, 2021 | 1,051,550 | $ | 15 | February 24, 2024 | |||||||
| Convertible Debentures(32) | February 24, 2021 | $ | 5,000,000 | $ | 10.25 | February 24, 2024 | ||||||
Common Shares(33) | March 10, 2021 | 15,867 | N/A | N/A |
| - 25 - |
Notes:
(1) On July 8, 2019, Engine closed a first tranche of a non-brokered private placement of convertible debentures in the amount of CDN$5,251,112 (“2019 Convertible Debentures”). The 2019 Convertible Debentures will mature 36 months from the date of issuance and bear interest at a rate of 6% per annum, payable on maturity. Holders of the 2019 Convertible Debentures may convert all or a portion of the principal amount of the 2019 Convertible Debentures into units of Engine at a price of CDN$7.50 per unit. Each unit is comprised of one Common Share and one warrant, with each warrant exercisable into a Common Share at an exercise price of CDN$7.50 per share for a period of five years from the issuance of the 2019 Convertible Debentures. Engine shall be entitled to call for the exercise of any outstanding warrants following the 6 month anniversary of closing in the event that the closing trading price of the shares is above CDN$45.00 for 15 consecutive trading days. On July 25, 2019 Engine closed an additional tranche of principal amount 2019 Convertible Debentures of CDN$5,342,000 and on August 8, 2019, Engine closed a final tranche of principal amount 2019 Convertible Debentures of CDN$4,406,900. The non-brokered private placement of 2019 Convertible Debentures was fully subscribed for a total of principal amount of CDN$15,000,012. As of the date of this Prospectus, the balance remaining of the 2019 Convertible Debentures after accounting for conversions was CDN$$690,890.
(2) Common Share purchase warrants issued on conversion of the 2019 Convertible Debentures, as described under Note (1), above.
(3) Common Shares issued on conversion of the 2019 Convertible Debentures, as described under Note (1), above.
(4) Common Shares issued on exercise of 681,867 warrants issued under the 2019 Convertible Debentures, as described under Note (1), above.
(5) On March 20, 2020, the Company issued 46,300 Common Shares to settle and extinguish CDN$900,002.55 of indebtedness owed to three creditors of the Company.
(6) On March 25, 2020, the Company announced it closed the first tranche of its non-brokered private placement of up to 444,444 units at a price of $9.00 per unit for gross proceeds of up to CDN$4,000,000. Each unit consisted of one Common Share of Engine and one-half of one common share purchase warrant. Each whole warrant entitles the holder to acquire one additional Common Share of Engine for a period of 36 months from the date of issuance at a price of CDN$13.50 per share. Aggregate proceeds of CDN$500,000 were raised and 55,555 units were issued on the closing of the first tranche of the offering. On March 30, 2020, the Company announced it closed the second tranche of the offering, for aggregate gross proceeds of CDN$844,370 and 93,818 units were issued on the closing of the tranche. On March 31, 2020, the Company announced it closed an additional tranche of the offering, for aggregate gross proceeds of CDN$310,000 and 34,444 units were issued on the closing of the tranche. On May 28, 2020, the Company announced it closed the final tranche of the offering, for aggregate gross proceeds of CDN$2,344,890 and 260,609 units were issued on the closing of this final tranche.
(7) On April 1, 2020, the board of directors of the Company approved the grant of 170,000 incentive stock options, which were granted to directors and senior officers of the Company. The options are exercisable into Common Shares of the Company at a price of CDN$11.25 per share, expire on April 1, 2023 and vest immediately.
(8) On April 1, 2020, the Company granted an aggregate of 26,667 RSUs to directors and senior officers of the Company, which vest immediately. On April 15, 2020, the Company issued an aggregate of 26,667 Common Shares pursuant to the RSUs.
(9) On May 8, 2020, the Company acquired all of the issued and outstanding shares of Frankly in exchange for consideration of one Engine Common Share for each Frankly common share acquired, pursuant to a court approved plan of arrangement, resulting in the issuance of 2,216,607 Common Shares upon closing the business combination described herein. The Company also concurrently indirectly acquired WinView, pursuant to a statutory merger under the laws of the State of Delaware, with WinView securityholders receiving an aggregate of 1,759,997 Common Shares of Engine as well as certain contingent consideration. All outstanding convertible securities of Frankly were exchanged for equivalent securities of Engine (other than outstanding warrants to purchase common shares of Frankly, which will remain outstanding and have the terms of such securities adjusted to reflect the exchange ratio).
(10) On June 1, 2020, the Company signed a definitive agreement to acquire Driver DataBase AB (“Driver Database”) in exchange for the issuance of 100,000 Common Shares of Engine to the shareholders of Driver Database on June 3, 2020. On November 4, 2020, the Company announced that it has completed the disposition of the Motorsports Assets, which included the disposition of Driver Database.
(11) On June 2, 2020, the Company signed a definitive agreement to acquire The Race YouTube Channel (“The Race”), previously known as LetsGoRacing, in exchange for total cash consideration of £315,000 (approximately CDN$530,000) to be payable to shareholders of The Race in tranches over 12 months from closing, in addition to 200,000 Common Shares of the Company issued to the shareholders of The Race on June 3, 2020. On November 4, 2020, the Company announced that it has completed the disposition of the Motorsports Assets, which included the disposition of The Race asset.
(12) On June 16, 2020, the Company issued 13,354 Common Shares to settle and extinguish CDN$125,000 in professional fees owing to Haywood Securities Inc. in connection with the provision of a fairness opinion to the board of directors of Frankly, to preserve cash and improve the Company’s balance sheet. The debt settlement was conditionally approved by the TSXV on June 15, 2020.
| - 26 - |
(13) On August 19, 2020, Engine closed a first tranche of a non-brokered private placement of convertible debentures in the amount of US$5,750,000 (“2020 Convertible Debentures”). The 2020 Convertible Debentures will mature 24 months from the date of issuance and bear interest at a rate of 5% per annum (subject to the following adjustments), payable on maturity. At the Company’s option, interest under the 2020 Convertible Debentures is payable in kind in Engine Common Shares at an issue price which would be based on the trading price of the Common Shares at the time of such interest payment. The interest rate under the 2020 Convertible Debentures will increase from 5% to 10% per annum on a prospective basis on December 19, 2020, if a public offering has not occurred by that date. The 2020 Convertible Debentures holders may convert all or a portion of the principal amount of the 2020 Convertible Debentures into units of the Company at a price equal to the lesser of (a) US$11.25 per unit, and (b) if such conversion occurs after a public offering of securities by the Company, a 15% discount to the public offering price, provided that such conversion price shall not be less than US$7.50 per unit. Notwithstanding the foregoing, if by December 19, 2020, the Company has not obtained registration rights in the United States to allow sale in the United States of the Common Shares of the Company and the exercise of warrants of the Company to be issued pursuant to the conversion of the 2020 Convertible Debentures, holders of 2020 Convertible Debentures may convert such convertible debentures into units at US$7.50 per unit. Each unit is comprised of one Common Shares and one-half of one warrant, with each warrant exercisable into one Common Shares of the Company at an exercise price of US$15.00 per share for a period of three years from the issuance of the 2020 Convertible Debentures. Under certain circumstances, the Company shall be entitled to call for the exercise of any outstanding warrants in the event. On September 15, 2020, Engine closed the final tranche of 2020 Convertible Debentures in the amount of US$1,901,393.
(14) On August 13, 2020, the Company granted RSUs pursuant to the Company’s Omnibus Equity Incentive Plan to the following directors and officers in the following amounts: Tom Rogers (113,095 RSUs), Lou Schwartz (147,619 RSUs), Peter Liabotis (16,384 RSUs) Steve Zenz (14,764 RSUs), Bryan Reyhani (16,773 RSUs), Hank Ratner (11,954 RSUs), and Mike Munoz (31,746 RSUs).
(15) On August 25, 2020, Engine announced it completed the acquisition of a 20.48% interest in mobile gaming company One Up Group, LLC (“One Up”). The purchase price was satisfied with the issuance of principal amount US$3 million convertible debentures, having the same terms as the 2020 Convertible Debentures, except that references therein to US$7.50 have been changed to US$9.50 (the “One Up Debenture”).
(16) On October 16, 2020, the Company announced that it closed a first tranche of principal amount US$1,050,000 of the first US$2,000,000 draw of a US$8,000,000 stand-by convertible debenture facility (“Standby Debentures”). The Standby Debentures have substantially similar terms as the 2020 Convertible Debentures, as described under Note (13) above, except the following: (i) the references therein to a minimum US$7.50 conversion price have been changed to US$8.90; and (ii) the Standby Debentures are only convertible into common shares of the Company, not units.
(17) On October 16, 2020, the Company announced that it closed a principal US$1 million convertible debenture financing which as similar terms to the 2020 Convertible Debentures, as described under Note (13) above, except the references therein to US$7.50 have been changed to US$7.80 (the “2020 Convertible Debentures ($7.80)”).
(18) Common Shares issued on exercise of 2,500 warrants at an exercise price of CDN$9.75, issued in connection with the Frankly transaction, as described under Note (9), above.
(19) On November 3, 2020, the Company granted 75,944 RSUs to Darren Cox which will vest 30 days following the grant thereof.
(20) On November 4, 2020, the Company granted 241,103 RSUs to management of the Company which will vest over a three year period. On November 15, 2021, the Company granted 5,500 RSUs to management of the Company under the same terms.
(21) On November 20, 2020, the Company closed a second tranche of Standby Debentures in the amount of US$950,000.
(22) Common Share purchase warrants issued in connection with the Standby Debentures (“Standby Warrants”). Each Standby Warrant is exercisable into a Common Share at an exercise price of US$15 until November 20, 2024.
(23) Common Shares issued pursuant to the vesting of RSUs.
(24) On December 2, 2020, the Company agreed to settle outstanding debt of CDN294,000 with two arm’s length creditors by issuing 40,000 Common Shares at a deemed price of CDN$7.35 per Common Share. The Common Shares are subject to a four-month hold period which will expire on April 5, 2021.
(25) Common Shares issued pursuant to the vesting of RSUs.
(26) On December 2, 2020, the Company announced that its wholly-owned subsidiaries Frankly Media LLC and Frankly have amended the existing secured credit facility (as amended, the “EB Loan”) with arm’s length lender EB Acquisition Company, LLC (the “EB Lender”), in connection with the advance of an additional US$1,000,000 under the EB Loan, which is convertible at the option of the EB Lender, at a conversion price per share of US$11.25. The credit limit under the EB Loan of US$5 million is now fully drawn. In connection with the amendment, the maturity date of the EB Loan has been extended from January 5, 2021 until January 5, 2022. Additionally, the Company has guaranteed the obligations under the EB Loan and has granted a security interest in favour of the EB Lender over the assets of the Company. In consideration of the extension of the maturity date, the Company has agreed to issue to the EB Lender an aggregate of 6,666 Common Shares and an amendment fee of US$100,000 which forms part of the outstanding principal under the EB Loan. The Common Shares issuable will be subject to a hold period expiring four months and a day following the date of issuance, as well as restrictions on transfer under applicable securities laws.
(27) On January 8, 2021 the Company completed the settled convertible debentures (the “Debt Settlements”) of an aggregate principal amount of $10,726,393 in outstanding convertible debentures through the issuance of 1,430,186 units at a deemed price of US$7.50 per unit, with each unit consisting of a common share and three-quarters of a warrant, with each whole warrant exercisable into a common share at an exercise price of US$15 per share for a period of three years.
| - 27 - |
(28) On December 23, 2020, the Company announced its intention to complete a non-brokered private placement of up to approximately 3.3 million units at a price of US$7.50 per unit for gross proceeds of up to US$25,000,000 (“January 2021 Private Placement”). Each unit consists of one common share of the Company and one-half of one common share purchase warrant. Each whole warrant entitles the holder to acquire one additional share of the Company at a price of US$15.00 per share for a period of 3 years provided that: (i) if the common shares are listed for trading on NASDAQ, (ii) the Company completes an offering of securities under a short form prospectus for an aggregate amount of at least US$30,000,000, and (iii) the closing price of the common shares on NASDAQ is US$30.00 or greater for a period of 15 consecutive trading days, then the Company may accelerate the expiry date of the warrants to the 30th day after the date written notice is provided to the holders. On January 8, 2021 the Company closed the first tranche of the January 2021 Private Placement for aggregate gross proceeds of US$10,540,883 and 1,405,451 units were issued. The Company paid cash commissions to eligible finders totalling $284,989 and also issued the following securities as partial payment of commissions to finders: 36,948 units; and, 74,947 finders warrants, with each finder warrant exercisable into a common share at an exercise price of US$15.00 per share for 3 years subject to the same acceleration terms described above. On January 26, 2021, the Company announced it had closed the final tranche of 966,296 units for gross proceeds of US$7,247,222.50 of the previously announced non-brokered private placement of units at a price of US$7.50 per unit. The Company paid cash commissions to eligible finders under the offering totaling $205,652.05 and also issued the following securities as partial payment of commissions to finders: 12,752 units; and, 40,040 finders warrants, with each finder warrant exercisable into a common share at an exercise price of US$15.00 per share for 3 years subject to the same acceleration terms described above.
(29) Common Shares and warrants issued on the conversion of US925,000 of 2020 Convertible Debentures.
(30) Common Shares issued on exercise of 23,825 warrants at an exercise price of CDN$9.75, issued in connection with the Frankly transaction, as described under Note (9), above.
(31) On February, 5, 2021, the Company announced its intention to complete a non-brokered private placement of up to 2 million units at a price of US$7.50 per unit for gross proceeds of up to US$15,000,000 (“February 2021 Private Placement”). Each unit under the February 2021 Private Placement has the same terms as the units under the January 2021 Private Placement. On February 24, 2021, the Company closed the February 2021 Private Placement for aggregate gross proceeds of US$15,000,000 and 2,000,000 units were issued. The Company paid cash commissions to eligible finders under the Offering totalling US$229,506.08 and also issued the following securities as partial payment of commissions to finders: 13,966 units; and, 44,567 finders warrants, with each finder warrant exercisable into a common share at an exercise price of US$15.00 per share for 3 years subject to the same acceleration terms described above.
(32) On February 26, 2021, the Company announced that it and EB Lender converted the EB Loan in the principal amount of US$5,000,000, into a US$5,000,000 secured convertible debenture (which amount includes and replaces the US$1,000,000 convertible debenture described in Note 26, above) which is convertible into units of the Company at a conversion price of US$10.25 per unit, with each unit comprised of one common share and one-half of a warrant, with each whole warrant exercisable into a common share at an exercise price of US$15 per share for a period of three years from the issuance of the convertible debenture.
(33) Common Shares issued pursuant to the vesting of RSUs.
(34) On October 17, 2019, the Company completed a consolidation of its Common Shares on the basis of one post-consolidation Common Share for every five pre-consolidation Common Shares. On August 13, 2020, the Company completed a further consolidation of its Common Shares on the basis of one post-consolidation Common Share for every fifteen pre-consolidation Common Shares. The figures in this table and in the notes thereto are presented on a post-consolidation basis unless otherwise specified.
General
We may offer and sell the Securities, separately or together: (a) to one or more underwriters; (b) through one or more agents; or (c) directly to one or more other purchasers. The Securities offered pursuant to any Prospectus Supplement may be sold from time to time in one or more transactions at: (i) a fixed price or prices, which may be changed from time to time; (ii) market prices prevailing at the time of sale; (iii) prices related to such prevailing market prices; or (iv) other negotiated prices, including sales in transactions that are deemed to be “at-the-market distributions”, including sales made directly on the TSXV or other existing trading markets for the Securities. We may only offer and sell the Securities pursuant to a Prospectus Supplement during the period that this Prospectus, including any amendments hereto, remains effective. The Prospectus Supplement for any of the Securities being offered thereby will set forth the terms of the offering of such Securities, including the type of Security being offered, the name or names of any underwriters or agents, the purchase price of such Securities, the proceeds to us from such sale, any underwriting commissions or discounts and other items constituting underwriters’ compensation. Only underwriters so named in the Prospectus Supplement are deemed to be underwriters in connection with the Securities offered thereby.
By Underwriters
If underwriters are used in the sale, the Securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless otherwise set forth in the Prospectus Supplement relating thereto, the obligations of underwriters to purchase the Securities will be subject to certain conditions, but the underwriters will be obligated to purchase all of the Securities offered by the Prospectus Supplement if any of such Securities are purchased. We may offer the Securities to the public through underwriting syndicates represented by managing underwriters or by underwriters without a syndicate. The Company may agree to pay the underwriters a fee or commission for various services relating to the offering of any Securities. Any such fee or commission will be paid out of our general corporate funds. We may use underwriters with whom we have a material relationship. We will describe in the Prospectus Supplement, naming the underwriter, the nature of any such relationship.
By Agents
The Securities may also be sold through agents designated by us. Any agent involved will be named, and any fees or commissions payable by us to such agent will be set forth in the applicable Prospectus Supplement. Any such fees or commissions will be paid out of our general corporate funds. Unless otherwise indicated in the Prospectus Supplement, any agent will be acting on a best efforts basis for the period of its appointment.
General Information
Underwriters or agents who participate in the distribution of Securities may be entitled under agreements to be entered into with us to indemnification by us against certain liabilities, including liabilities under Canadian provincial legislation, or to contribution with respect to payments which such underwriters or agents may be required to make in respect thereof. Such underwriters or agents may be customers of, engage in transactions with, or perform services for, us in the ordinary course of business.
| - 28 - |
No underwriter or dealer involved in an “at-the-market distribution” as defined under the applicable Canadian securities legislation, and no person or company acting jointly or in concert with an underwriter, may, in connection with the distribution, enter into any transaction that is intended to stabilize or maintain the market price of the securities or securities of the same class as the securities distributed under the at-the-market prospectus, including selling an aggregate number or principal amount of securities that would result in the underwriter creating an over-allocation position in the securities.
In connection with any offering of Securities, other than an “at-the-market distribution”, underwriters may over-allot or effect transactions which stabilize or maintain the market price of the Securities offered at a level above that which might otherwise prevail in the open market. Such transactions may be commenced, interrupted or discontinued at any time.
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
The applicable Prospectus Supplement may describe certain Canadian federal income tax consequences to an investor acquiring any Securities offered thereunder.
DOCUMENTS INCORPORATED BY REFERENCE
Information has been incorporated by reference in this Prospectus from documents filed with securities commissions or similar regulatory authorities in Canada (the “Canadian Securities Authorities”). Copies of the documents incorporated by reference herein may be obtained on request without charge from the secretary of the issuer at 77 King Street West, Suite 3000, PO Box 95, Toronto, Ontario M5K 1G8, or by telephone at (212) 931-1200 and are also available electronically at www.sedar.com.
The following documents, which were filed by the Company with the Canadian Securities Authorities, are specifically incorporated by reference into, and form an integral part of, this Prospectus:
| (a) | the annual information form of Engine dated January 8, 2021 for the year ended August 31, 2020; |
| (b) | the information circular of Engine dated September 6, 2019 relating to the annual and special meeting of shareholders held on October 9, 2019; |
| (c) | the information circular of Engine dated June 15, 2020 relating to the annual and special meeting of shareholders held on July 15, 2020; |
| (d) | the audited consolidated financial statements of Engine for the years ended August 31, 2020 and 2019, together with the notes thereto and auditor’s reports thereon; |
| (e) | management’s discussion and analysis of the financial condition and results of operations of Engine for the year ended August 31, 2020; |
| (f) | the unaudited interim consolidated financial statements (except for the notice of no auditor review) as at and for the three months ended November 30, 2020 and November 30, 2019, and related notes thereto; |
| (g) | the management’s discussion and analysis for the three months ended November 30, 2020; |
| (h) | the material change report of Engine dated January 12, 2021 relating to the announcement of the January 2021 Private Placement and the completion of the first tranche of the January 2021 Private Placement; |
| (i) | the material change report of Engine dated January 27, 2021 relating to the announcement of the completion of the final tranche of the January 2021 Private Placement; |
| (j) | the material change report of Engine dated March 1, 2021 relating to the announcement of the completion of the February 2021 Private Placement; and |
| (k) | the business acquisition report of Engine dated November 13, 2020 relating to the completion of its acquisition of each of Frankly and WinView. |
Any statement contained in this Prospectus or in any document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded, for purposes of this Prospectus, to the extent that a statement contained herein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein modifies or supersedes such prior statement. The modifying or superseding statement need not state that it has modified or superseded a prior statement or include any other information set forth in the document that it modifies or supersedes. The making of a modifying or superseding statement shall not be deemed an admission for any purposes that the modified or superseded statement when made, constituted a misrepresentation, an untrue statement of a material fact or an omission to state a material fact that is required to be stated or that is necessary to prevent a statement that is made from being false or misleading in the circumstances in which it was made. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute part of this Prospectus.
| - 29 - |
Any document of the type referred to above or similar material and any documents required by National Instrument 44-101 – Short Form Prospectus Distributions to be incorporated by reference into a short form prospectus, including any annual information forms, all material change reports (excluding confidential reports, if any), all annual and interim financial statements and management’s discussion and analysis relating thereto, or information circular or amendments thereto filed by the Company with any securities commissions or similar regulatory authority in Canada after the date of this Prospectus and during the period that this Prospectus is effective, will be deemed to be incorporated by reference in this Prospectus and will automatically update and supersede information contained or incorporated by reference in this Prospectus. The documents incorporated or deemed to be incorporated herein by reference contain meaningful and material information relating to the Company and readers should review all information contained in this Prospectus, and the documents incorporated or deemed to be incorporated by reference herein.
In addition, to the extent that any document or information incorporated by reference into this Prospectus pursuant to the foregoing paragraph is also included in any report that we file with or furnish to the SEC pursuant to Section 13(a) or 15(d) of the Exchange Act, such document or information shall be deemed to be incorporated by reference as an exhibit to the Registration Statement of which this Prospectus forms a part. Furthermore, we may incorporate by reference into the Registration Statement of which this Prospectus forms a part, any report on Form 6- K furnished to the SEC, including the exhibits thereto, if and to the extent provided in such report.
References to our website in any documents that are incorporated by reference into this Prospectus do not incorporate by reference the information on such website into this Prospectus, and we disclaim any such incorporation by reference.
DOCUMENTS FILED AS PART OF THE REGISTRATION STATEMENT
The following documents will be filed with the SEC as part of the Registration Statement on Form F-10 of which this Prospectus forms a part:
| (a) | the documents listed under the heading “Documents Incorporated by Reference”; |
| (b) | powers of attorney from our directors and officers, as applicable (included on the signature page to the registration statement); |
| (c) | the consent of Baker Tilly WM LLP; |
| (d) | the consent of McGovern Hurley LLP; and |
| (e) | the form of indenture for any Debt Securities issued hereunder. |
A copy of the form of warrant indenture or statement of eligibility of trustee on Form T-1, as applicable, will be filed by post-effective amendment or by incorporation by reference to documents filed or furnished with the SEC under the Exchange Act.
AVAILABLE INFORMATION
In addition to our continuous disclosure obligations under the securities laws of the provinces and territories of Canada, we will be subject to the informational requirements of the Exchange Act and in accordance therewith file reports and other information with the SEC. Under the MJDS, such reports and other information may be prepared in accordance with the disclosure requirements of Canada, which requirements are different from those of the United States. As a foreign private issuer, the Company is exempt from the rules under the Exchange Act prescribing the furnishing and content of proxy statements, and the Company’s officers and directors are exempt from the reporting and short swing profit recovery provisions contained in Section 16 of the Exchange Act. Some of the documents that we file with or furnish to the SEC are electronically available from the SEC’s Electronic Document Gathering and Retrieval system, which is commonly known by the acronym “EDGAR”, and may be accessed at www.sec.gov.
| - 30 - |
The Company has concurrently filed with the SEC a registration statement on Form F-10 under the United States Securities Act of 1933, as amended, with respect to the Securities. This Prospectus, which forms a part of the registration statement, does not contain all of the information set forth in the registration statement, certain parts of which have been omitted in accordance with the rules and regulations of the SEC. For further information with respect to the Company and the Securities offered in this Prospectus, reference is made to the registration statement and to the schedules and exhibits filed therewith. Statements contained in this Prospectus as to the contents of certain documents are not necessarily complete and, in each instance, reference is made to the copy of the document filed as an exhibit to the registration statement. Each such statement is qualified in its entirety by such reference. You may refer to the registration statement and the exhibits to the registration statement for further information with respect to the Company and the Securities. See “Documents Filed as Part of the Registration Statement”.
ENFORCEABILITY OF CERTAIN CIVIL LIABILITIES AND AGENT FOR SERVICE OF PROCESS
The Company is a corporation incorporated under and governed by the Business Corporations Act (British Columbia). Some of the directors and officers of the Company, are residents of Canada or otherwise reside outside the United States, and all or a substantial portion of their assets, and a certain portion of the Company’s assets, are located outside the United States. The Company has appointed an agent for service of process in the United States, but it may be difficult for investors who reside in the United States to effect service of process upon these persons in the United States, or to enforce a U.S. court judgment predicated upon the civil liability provisions of the U.S. federal securities laws against the Company or any of these persons. There is substantial doubt whether an action could be brought in Canada in the first instance predicated solely upon U.S. federal securities laws.
The following are the material contracts entered into by the Company, including certain contracts entered into in the ordinary course of business, since the beginning of the most recently completed financial year and prior to the most recently completed financial year if those material contracts are still in effect:
| i. | the business combination agreement dated March 9, 2020 among the Company, Engine Merger Sub Inc., Frankly and WinView; and | |
| ii. | the arrangement agreement dated November 6, 2019 between the Company and UMG. |
Unless otherwise specified in a Prospectus Supplement relating to any Securities offered, certain legal matters in connection with the offering of Securities may be passed upon on behalf of the Company by Fogler, Rubinoff LLP as to legal matters relating to Canadian law. In addition, certain legal matters in connection with any offering of Securities may be passed upon for any underwriters, dealers or agents by counsel to be designated at the time of the offering by such underwriters, dealers or agents, as the case may be.
As of the date hereof, the designated professionals of Fogler, Rubinoff LLP collectively beneficially own, directly or indirectly, less than 1% of the Company’s outstanding securities.
The Company has applied for exemptive relief from the requirements contained in subsection 2.3(1.1) of National Instrument 41-101 which prohibits an issuer from filing a final prospectus more than 90 days after the date of the receipt for the preliminary prospectus that relates to the final prospectus. The exemption requested will be evidenced by the issuance of a receipt for this prospectus. In the course of seeking exemptive relief, the Company has agreed to file the final prospectus no later than April 2, 2021.
Our registrar and transfer agent is Computershare Investor Services Inc., with an address at 100 University Avenue, 8th Floor, Toronto, Ontario M5J 2Y1.
| - 31 - |
Mr. Tom Rogers, Mr. Bryan Reyhani, Mr. Lawrence Rutkowski, Mr. Hank Ratner, and Mr. Louis Schwartz, directors of the Company, each reside outside of Canada and have each appointed the following agent for service of process in Canada:
| Name of Persons | Name and Address of Agent | |
| Mr. Tom Rogers | Fogler, Rubinoff LLP | |
| Mr. Bryan Reyhani | 77 King Street West, Suite 3000, PO Box 95, | |
| Mr. Lawrence Rutkowski | Toronto, Ontario M5K 1G8 | |
| Mr. Hank Ratner | ||
| Mr. Louis Schwartz | ||
Mr. Michael Munoz |
Purchasers are advised that it may not be possible for investors to enforce judgements obtained in Canada against any person or company that is incorporated, continued or otherwise organized under the laws of a foreign jurisdiction or resides outside of Canada, even if the party has appointed an agent for service of process.
ORDERS, PENALTIES AND BANKRUPTCIES
To the knowledge of the Company, except as disclosed hereinafter, as of the date hereof:
| (a) | no director or executive officer of the Company is, or has been, within 10 years before the date hereof, a director, chief executive officer or chief financial officer of any company (including the Company) that: |
| (i) | was subject to an order that was issued while the proposed director was acting in the capacity as director, chief executive officer or chief financial officer, or | |
| (ii) | was subject to an order that was issued after the proposed director ceased to be a director, chief executive officer or chief financial officer and which resulted from an event that occurred while that person was acting in the capacity as director, chief executive officer or chief financial officer; |
| (b) | no director or executive officer of the Company or a shareholder holding a sufficient number of securities of the Company to affect materially the control of the Company: |
| (i) | is, or has been, within 10 years before the date hereof, a director or executive officer of any company (including the Company) that, while such director or executive officer was acting in that capacity, or within a year of such director or executive officer ceased to act in that capacity, became bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency or was subject to or instituted any proceedings, arrangement or compromise with creditors or had a receiver, receiver manager or trustee appointed to hold its assets; or | |
| (ii) | has, within ten years before the date hereof, become bankrupt, made a proposal under any legislation relating to bankruptcy or insolvency, or become subject to or instituted any proceedings, arrangements or compromise with creditors, or had a receiver, receiver manager or trustee appointed to hold the assets of such director, executive officer or shareholder. |
Tom Rogers served as a Director of SuperMedia Inc. It filed for voluntary bankruptcy in March, 2013, pursuant to a merger plan with Dex One Corp which filed voluntary bankruptcy simultaneously. The prepackaged Chapter 11 proceeding was overseen by US Bankruptcy Court of the District of Delaware. The merged company trading as Dex Media on Nasdaq emerged from bankruptcy on May 1, 2013.
Bryan Reyhani was a director of FXCM Inc. (n/k/a GLBR Inc.) (“FXCM”) which filed for Chapter 11 bankruptcy as a short prepackaged plan of reorganization in December 2017. The purpose of the Chapter 11 filing was to restructure some of FXCM’s debts, particularly the Company’s $172 million in notes that were coming due in 2018. The court approved the prepackaged plan of reorganization in February 2018. The court closed the chapter 11 matter in August 2018.
Bryan Reyhani was a director of FXCM when its US trading subsidiary, Forex Capital Markets LLC, settled an action by the Commodity Futures Trading Commission (“CFTC”) in February 2017, with FXCM paying a fine of $650,000. FXCM did not admit to any wrongdoing as part of the settlement. The events giving rise to the foregoing CFTC action occurred prior to Bryan Reyhani joining FXCM as a director.
Bryan Reyhani was a director of FXCM when its US trading subsidiary, Forex Capital Markets LLC, had a decision issued against it by the National Futures Association (the “NFA”) in February 2017. FXCM did not admit to any wrongdoing as part of the settlement. The events giving rise to the foregoing NFA decision occurred prior to Bryan Reyhani joining FXCM as a director. This same matter also resulted in a settlement with the CFTC.
Our financial statements as at August 31, 2020 and for the year then ended incorporated by reference into this Prospectus have been audited by Baker Tilly WM LLP, independent registered public accounting firm, as indicated in their report dated January 7, 2021, which is also incorporated by reference herein, and is incorporated herein in reliance upon the authority of said firm as experts in accounting and auditing.
Our financial statements as at August 31, 2019 and for the year then ended incorporated by reference into this Prospectus have been audited by McGovern Hurley LLP, independent registered public accounting firm, as indicated in their report dated February 14, 2020, which is also incorporated by reference herein, and is incorporated herein in reliance upon the authority of said firm as experts in accounting and auditing.
Effective July 17, 2020, McGovern Hurley LLP resigned as auditors of the Company, and the directors of the Company appointed Baker Tilly WM LLP as successor auditors in their place. McGovern Hurley LLP was independent in accordance with the auditor’s code of professional conduct of the Chartered Professional Accountants of Ontario up to the date of the Notice of Change of Auditor on July 17, 2020.
| - 32 - |
PART II
INFORMATION
NOT REQUIRED TO BE DELIVERED TO
OFFEREES OR PURCHASERS
Indemnification of Directors and Officers
Section 160 of the Business Corporations Act (British Columbia) (the “BCBCA”) provides that the Registrant may do one or both of the following:
| (a) | indemnify an eligible party (as defined below) against all eligible penalties (as defined below) to which the eligible party is or may be liable; | |
| (b) | after the final disposition of an eligible proceeding (as defined below), pay the expenses (as defined below) actually or reasonably incurred by an eligible party in respect of that proceeding. |
However, after the final disposition of an eligible proceeding, the Registrant must pay the expenses actually and reasonably incurred by an eligible party in respect of that proceeding if the eligible party: (i) has not been reimbursed for those expenses; and (ii) is wholly successful, on the merits or otherwise, in the outcome of the proceeding or is substantially successful on the merits in the outcome of the proceeding. The BCBCA also provides that the Registrant may pay, as they are incurred in advance of the final disposition of an eligible proceeding, the expenses actually and reasonably incurred by an eligible party in respect of that proceeding provided the Registrant first receives from the eligible party a written undertaking that, if it is ultimately determined that the payment of expenses is prohibited under the BCBCA, the eligible party will repay the amounts advanced.
For the purposes of the applicable division of the BCBCA, an “eligible party”, in relation to the Registrant, means an individual who:
| (a) | is or was a director or officer of the Registrant; | |
| (b) | is or was a director or officer of another corporation at a time when the corporation is or was an affiliate of the Registrant, or at the request of the Registrant; or | |
| (c) | at the request of the Registrant, is or was, or holds or held a position equivalent to that of, a director or officer of a partnership, trust, joint venture or other unincorporated entity, |
and includes, with some exceptions, the heirs and personal or other legal representatives of that individual.
An “eligible penalty” under the BCBCA means a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding.
An “eligible proceeding” under the BCBCA is a proceeding in which an eligible party or any of the heirs and personal or other legal representatives of the eligible party, by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the Registrant or an associated corporation, is or may be joined as a party, or is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding.
A “proceeding” includes any legal proceeding or investigative action, whether current, threatened, pending or completed.
“expenses” include costs, charges and expenses, including legal and other fees, but does not include judgments, penalties, fines or amounts paid in settlement of a proceeding.
| -33- |
An “associated corporation” means a corporation or entity referred to in paragraph (b) or (c) of the definition of “eligible party” above.
Notwithstanding the foregoing, the BCBCA prohibits the Registrant from indemnifying an eligible party or paying the expenses of an eligible party if any of the following circumstances apply:
| (a) | if the indemnity or payment is made under an earlier agreement to indemnify or pay expenses and, at the time such agreement was made, the Registrant was prohibited from giving the indemnity or paying the expenses by its memorandum or articles; | |
| (b) | if the indemnity or payment is made otherwise than under an earlier agreement to indemnify or pay expenses and, at the time that the indemnity or payment is made, the Registrant is prohibited from giving the indemnity or paying the expenses by its memorandum or articles; | |
| (c) | if, in relation to the subject matter of the eligible proceeding, the eligible party did not act honestly and in good faith with a view to the best interest of the Registrant or the associated corporation, as the case may be; or | |
| (d) | in the case of an eligible proceeding other than a civil proceeding, if the eligible party did not have reasonable grounds for believing that the eligible party’s conduct in respect of which the proceeding was brought was lawful. |
Additionally, if an eligible proceeding is brought against an eligible party by or on behalf of the Registrant or an associated corporation, the Registrant must not indemnify the eligible party or pay or advance the expenses of the eligible party in respect of that proceeding.
Whether or not payment of expenses or indemnification has been sought, authorized or declined under the BCBCA, section 164 of the BCBCA provides that, on the application of the Registrant or an eligible party, the Supreme Court of British Columbia may do one or more of the following:
| (a) | order the Registrant to indemnify an eligible party against any liabilities incurred by the eligible party in respect of an eligible proceeding; | |
| (b) | order the Registrant to pay some or all of the expenses incurred by an eligible party in respect of an eligible proceeding; | |
| (c) | order the enforcement of, or any payment under, an agreement of indemnification entered into by the Registrant; | |
| (d) | order the Registrant to pay some or all of the expenses actually and reasonably incurred by any person in obtaining an order under section 164; or | |
| (e) | make any other order the court considers appropriate. |
The BCBCA provides that the Registrant may purchase and maintain insurance for the benefit of an eligible party or the heirs and personal or other legal representatives of the eligible party against any liability that may be incurred by reason of the eligible party being or having been a director or officer of, or holding or having held a position equivalent to that of a director or officer of, the Registrant or an associated corporation.
The Registrant’s articles provide that the Registrant must indemnify a director, former director or alternate director of the Registrant and his or her heirs and legal personal representatives against all eligible penalties to which such person is or may be liable, and the Registrant must, after the final disposition of an eligible proceeding, pay the expenses actually and reasonably incurred by such person in respect of that proceeding. Each director and alternate director is deemed to have contracted with the Registrant on the terms of the indemnity above.
The Registrant’s articles define “eligible penalty” to mean a judgment, penalty or fine awarded or imposed in, or an amount paid in settlement of, an eligible proceeding. An “eligible proceeding” means a legal proceeding or investigative action, whether current, threatened, pending or completed, in which a director, former director or alternate director of the Registrant (an “eligible party”) or any of the heirs and legal personal representatives of the eligible party, by reason of the eligible party being or having been a director or alternate director of the Registrant (a) is or may be joined as a party; or (b) is or may be liable for or in respect of a judgment, penalty or fine in, or expenses related to, the proceeding.
The Registrant’s articles further provide that subject to any restrictions in the BCBCA, the Registrant may indemnify any person. The failure of a director, alternate director or officer of the Registrant to comply with the BCBCA or the Registrant’s articles does not invalidate any indemnity to which he or she is entitled under the Registrant’s articles.
The Registrant is authorized by its articles to purchase and maintain insurance for the benefit of any person (or his or her heirs or legal personal representatives) who: (i) is or was a director, alternate director, officer, employee or agent of the Registrant; (ii) is or was a director, alternate director, officer, employee or agent of a corporation at a time when the corporation is or was an affiliate of the Registrant; (iii) at the request of the Registrant, is or was a director, alternate director, officer, employee or agent of a corporation or of a partnership, trust, joint venture or other unincorporated entity; (iv) at the request of the Registrant, holds or held a position equivalent to that of a director, alternate director or officer of a partnership, trust, joint venture or other unincorporated entity; against any liability incurred by him or her as such director, alternate director, officer, employee or agent or person who holds or held such equivalent position.
* * *
| -34- |
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the Registrant pursuant to the foregoing provisions, the Registrant has been informed that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act, and is therefore unenforceable.
EXHIBIT INDEX
| -35- |
PART III
UNDERTAKING AND CONSENT TO SERVICE OF PROCESS
Item 1. Undertaking
The Registrant undertakes to make available, in person or by telephone, representatives to respond to inquiries made by the Commission staff, and to furnish promptly, when requested to do so by the Commission staff, information relating to the securities registered pursuant to Form F-10 or to transactions in said securities.
Item 2. Consent to Service of Process
A written Appointment of Agent for Service of Process and Undertaking on Form F-X for the Registrant and its agent for service of process is being filed concurrently herewith.
Any change to the name or address of the agent for service of process of the Registrant shall be communicated promptly to the Commission by amendment to Form F-X referencing the file number of this Registration Statement on Form F-10.
| -36- |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-10 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, Country of United States of America on March 25, 2021.
| ENGINE MEDIA HOLDINGS, INC. | ||
| By: | /s/ Michael Munoz | |
| Name: | Michael Munoz | |
| Title: | Chief Financial Officer | |
| -37- |
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Louis Schwartz and Michael Munoz or any of them, his or her true and lawful attorneys-in-fact and agents, each of whom may act alone, with full powers of substitution and resubstitution, for him or her and in his or her name, place and stead, in any and all capacities, to sign any or all amendments to this Registration Statement, including post-effective amendments, and any and all additional registration statements (including amendments and post-effective amendments thereto) in connection with any increase in the amount of securities registered with the Securities and Exchange Commission, and to file the same, with all exhibits thereto, and other documents and in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, and hereby ratifies and confirms all his or her said attorneys-in-fact and agents or any of them or his or her substitute or substitutes may lawfully do or cause to be done by virtue hereof.
This Power of Attorney may be executed in multiple counterparts, each of which shall be deemed an original, but which taken together shall constitute one instrument.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated and on the dates indicated.
| Signature | Capacity | Date | ||
| /s/ Louis Schwartz | Chief Executive Officer and Director | March 25, 2021 | ||
| Louis Schwartz | ||||
| /s/ Michael Munoz | Chief Financial Officer | March 25, 2021 | ||
| Michael Munoz | ||||
| /s/ Tom Rogers | Chairman and Director | March 25, 2021 | ||
| Tom Rogers | ||||
| /s/ Bryan Reyhani | Director | March 25, 2021 | ||
| Bryan Reyhani | ||||
| /s/ Lawrence Rutkowski | Director | March 25, 2021 | ||
| Lawrence Rutkowski | ||||
| /s/ Hank Ratner | Director | March 25, 2021 | ||
| Hank Ratner |
AUTHORIZED REPRESENTATIVE
Pursuant to the requirements of Section 6(a) of the Securities Act of 1933, as amended, the undersigned has signed this Registration Statement, in the capacity of the duly authorized representative of the Registrant in the United States, on March 25, 2021.
| /s/ Louis Schwartz | ||
| Name: | Louis Schwartz | |
| Title: | Chief Executive Officer and Director |
| -38- |
