UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 14A
Proxy Statement Pursuant to Section 14(a) of the Securities Exchange Act of 1934
Check the appropriate box:
Filed by the Registrant | ☒ | |
Filed by a Party other than the Registrant |
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☐ | Preliminary Proxy Statement |
☐ | Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2)) |
☒ | Definitive Proxy Statement |
☐ | Definitive Additional Materials |
☐ | Soliciting Material Pursuant to Rule 14a-12 |
BODY AND MIND INC. |
(Name of Registrant as Specified |
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☒ | No fee required. | |
☐ | Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11. |
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BODY AND MIND INC.
Suite 750, 1095 West Pender Street, Vancouver, British Columbia, Canada V6E 2M6
NOTICE OF ANNUAL MEETING OF STOCKHOLDERS
To be held on February 17, 2021March 31, 2022
Dear Stockholder:
The annual meeting of stockholders (the “Annual Meeting”) of Body and Mind Inc. (the “Company”) will be held at Suite 1500, 1055 West Georgia Street, Vancouver, British Columbia, Canada, V6E 4N7, on February 17, 2021,March 31, 2022, at 10:00 a.m. (Vancouver time).
In light of the ongoing public health concerns related to COVID-19 and in order to comply with measures imposed by the federal and provincial governments, the Company is encouraging stockholders and others not to attend the Annual Meeting in person, but instead to submit their votes by proxy well in advance of the Annual Meeting proxy deadline of 10:00 a.m. (Pacific Time) on February 16, 2021. March 29, 2022. Stockholders who wish to attend the Annual Meeting in person must call the Vancouver office of McMillan LLP at (604) 689-9111 on or before 4:00 p.m. (Pacific time) on Friday, February 12, 2021March 25, 2022 for further instructions on in-person attendance procedures.
The Company is offering stockholders the option to listen and participate (but not vote) at the Annual Meeting in real time by conference call at the following coordinates:
Dial by your location |
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Canada Toll Free: | 1-855-244-8677 |
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US Toll Free: | 1-855-282-6330 |
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Access Code: | 95400309 |
As of the date of this Notice, we intend to hold the Annual Meeting in physical face-to-face format and include a telephone conference call so shareholders can listen to the Annual Meeting in real time. We are continuously monitoring the current coronavirus (COVID-19) pandemic, and in light of rapidly evolving news and guidelines related to COVID-19, we ask that stockholders to consider voting their shares by proxy and not attending the meeting in considering whetherperson. Those stockholders who do wish to attend the Annual Meeting in person, stockholdersshould carefully consider and follow the instructions of the federal Public Health Agency of Canada (https:available at (https://www.canada.ca/en/public-health/services/diseases/coronavirus-disease-covid-19.html)coronavirus-disease-covid-19.html). We ask that stockholders also review and follow the instructions of any regional health authorities of the Province of British Columbia, including the Vancouver Coastal Health Authority, the Fraser Health Authority and any applicable additional provincial and localother health department instructions. You shouldauthority holding jurisdiction over the areas you must travel through to attend the Annual Meeting. Do not attend the Annual Meeting in person if you are experiencing any cold or flu-like symptoms, or if you or someone with whom you have been in close contact has travelled to/from outside of Canada within the 14 days prior to the Annual Meeting. In order to minimize group size and respect social distancing regulations, allAll stockholders are urgedstrongly encouraged to vote on the matters beforeby submitting their completed form of proxy (or voting instruction form) prior to the Annual Meeting by proxy, which proxy can be submitted electronically or by mail asone of the means described in the Proxy Statement accompanying Information Circularthis Notice. We reserveThe Company reserves the right to take any additional precautionary measures we deemdeemed to be appropriate, necessary or advisable in relation to the Annual Meeting in response to further developments in respectthe COVID-19 outbreak, including (i) holding the Annual Meeting virtually or by providing a webcast of the COVID-19 pandemic.Annual Meeting; (ii) hosting the Annual Meeting solely by means of remote communication; (iii) changing the Annual Meeting date and/or changing the means of holding the Annual Meeting; (iv) denying access to persons who exhibit cold or flu-like symptoms, or who have, or have been in close contact with someone who has, travelled to/from outside of Canada within the 14 days immediately prior to the Annual Meeting; (v) denying access to persons that do not have evidence of full vaccination; and (vi) such other measures as may be recommended by public health authorities in connection with gatherings of persons such as the Annual Meeting. Should any such changes to the Annual Meeting format occur, the Company will announce any and all changes by way of news release, which will be filed on EDGAR as an exhibit to a Current Report on Form 8-K and under the Company’s profile on SEDAR. In addition, the Company will file the news release as definitive additional soliciting material on EDGAR. We strongly recommend you check the Company’s website www.bodyandmind.com, prior to the Annual Meeting for the most current information. In the event of any changes to the Annual Meeting format due to the COVID-19 pandemic,outbreak, the Company will not prepare or mail amended Annual Meeting materials.
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Stockholders who intend to attend the meeting via teleconference must submit votes by Proxy ahead of the proxy deadline of 10:00 a.m. (Pacific Time) on February 16, 2021March 29, 2022. Attendance by teleconference allows stockholders to listen to, but not to vote at the Annual Meeting.
At the Annual Meeting stockholders will be asked to:
| 1. | elect Michael Mills, Dong Shim, Brent Reuter, |
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| 2. | ratify the appointment of |
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| 3. | ratify and approve |
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| 4. | approve, on a non-binding advisory basis, the compensation of our named executive officers; and |
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| 5. | transact any other business properly brought before the Annual Meeting or any adjournment thereof. |
On or about December 31, 2020,February 11, 2022, the Company mailed to all stockholders of record, as of December 23, 2020,February 9, 2022, a Notice of Internet Availability of Proxy Materials (the “Notice”). Please carefully review the Notice for information on how to access the Notice of Annual Meeting, Proxy Statement, Proxy Card and our Annual Report on Form 10-K for the fiscal year ended July 31, 20202021 (the “Annual Report on Form 10-K”), on www.proxyvote.com,, in addition to instructions on how you may request to receive a paper or email copy of these documents. There is no charge to you for requesting a paper copy of these documents. Our Annual Report on Form 10-K, including financial statements for such period, does not constitute any part of the material for the solicitation of proxies.
The foregoing items of business are more fully described in the Proxy Statement accompanying this Notice. Only stockholders of record of the Company’s common stock at the close of business on December 23, 2020,February 9, 2022, are entitled to notice of, and to vote at, the Annual Meeting or any adjournment thereof.
It is important that your shares be represented and voted at the Annual Meeting. If you are the registered holder of the Company’s common stock, you can vote your shares by completing and returning the enclosed proxy card, even if you plan to attend the Annual Meeting. You may vote your shares of common stock in person even if you previously returned a proxy card. Please note, however, that if your shares of common stock are held of record by a broker, bank or other nominee and you wish to vote in person at the Annual Meeting, you must obtain a proxy issued in your name from such broker, bank or other nominee. Please carefully review the instructions on the proxy card or the information forwarded by your broker, bank or other nominee regarding voting instructions.
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If you are planning to attend the Annual Meeting in person, you will need to contact McMillan LLP at (604) 689-9111 on or before 4:00 p.m. (Pacific time) on Friday, February 12, 2021March 25, 2022 for further instructions on in-person attendance procedures and you will be asked to register before entering the Annual Meeting. All attendees will be required to present government-issued photo identification (e.g., driver’s license or passport) to enter the Annual Meeting. If you are a stockholder of record, your ownership of the Company’s common stock will be verified against the list of stockholders of record as of December 23, 2020,February 9, 2022, prior to being admitted to the Annual Meeting. If you are not a stockholder of record and hold your shares of common stock in “street name” (that is, your shares of common stock are held in a brokerage account or by a bank or other nominee), you must also provide proof of beneficial ownership as of December 23, 2020,February 9, 2022, such as your most recent account statement dated prior to December 23, 2020,February 9, 2022, and a copy of the voting instruction card provided by your broker, bank or nominee or similar evidence of ownership.
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By Order of the Board of Directors
BODY AND MIND INC.
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/s/ Michael Mills | ||
Michael Mills | ||
President and Chief Executive Officer Dated: February 10, 2022. |
Dated: December 31, 2020.
IMPORTANT NOTICE REGARDING THE AVAILABILITY OF PROXY MATERIALS FOR
THE ANNUAL MEETING OF SHAREHOLDERS TO BE HELD ON FEBRUARY 17, 2021:MARCH 31, 2022:
The Proxy Statement and form of Proxy, as well as the
Company’s Annual Report on Form 10-K for the fiscal year ended July 31, 20202021
are available on the Internet at:
www.proxyvote.com
__________
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BODY AND MIND INC.
Suite 750, 1095 West Pender Street, Vancouver, British Columbia, Canada V6E 2M6
PROXY STATEMENT FOR THE ANNUAL MEETING OF STOCKHOLDERS
To be held on February 17, 2021March 31, 2022
THE ANNUAL MEETING
General
This proxy statement (the “Proxy Statement”) is furnished in connection with the solicitation of proxies by the Board of Directors (the “Board of Directors”) of Body and Mind Inc. (“we”, “us”, “our” or the “Company”) for use in connection with our annual meeting of our stockholders (the “Annual Meeting”) to be held on February 17, 2021,March 31, 2022, at 10:00 a.m. (Vancouver time), at Suite 1500, 1055 West Georgia Street, Vancouver, British Columbia, Canada, V6E 4N7, or at any adjournment thereof, for the purposes set forth in the accompanying Notice of Meeting.
In accordance with rules and regulations adopted by the United States Securities and Exchange Commission (the “SEC”), instead of mailing a printed copy of our proxy materials to each stockholder of record, we may furnish proxy materials to our stockholders on the Internet. On or about December 31, 2020,February 11, 2022, the Company mailed to all stockholders of record, as of December 23, 2020February 9, 2022 (the “Record Date”), a Notice of Internet Availability of Proxy Materials (the “Notice”). If you received only a Notice by mail, you will not receive a printed copy of the proxy materials.
Please carefully review the Notice for information on how to access our proxy materials, consisting of the Notice of Annual Meeting, Proxy Statement and Proxy Card, available at www.proxyvote.com. You may also access our Annual Report on Form 10-K for each of our fiscal year ended July 31, 20202021 (the “Annual Report on Form 10-K”), including our financial statements for such periods. However, our Annual Report on Form 10-K dodoes not constitute any part of the material for the solicitation of proxies.
The Notice also includes instructions as to how you may submit your proxy on the Internet or over the telephone.
If you received only a Notice of Internet Availability (the “Notice”) by mail and you would like to receive a printed copy of our proxy materials, including a Proxy Card, or a copy of our Annual Report on Form 10-K, you should follow the instructions for requesting such materials included in the Notice. There is no charge to you for requesting a paper copy of these documents.
Our principal offices are located at Suite 750, 1095 West Pender Street, Vancouver, British Columbia, Canada, V6E 2M6. Our telephone number is: (800) 361-6312 and our website address is: www.bodyandmind.com
Manner of Solicitation and Expenses
This proxy solicitation is made on behalf of our Board of Directors. Solicitation of proxies may be made by our directors, officers and employees personally, by telephone, mail, facsimile, e-mail, internet or otherwise, but they will not be specifically compensated for these services. We will bear the expenses incurred in connection with the solicitation of proxies for the Annual Meeting. Upon request, we will also reimburse brokers, dealers, banks or similar entities acting as nominees for their reasonable expenses incurred in forwarding copies of the proxy materials to the beneficial owners of the shares of our common stock as of the Record Date.
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Record Date and Voting Shares
Our Board of Directors has fixed the close of business on December 23, 2020,February 9, 2022, as the Record Date for the determination of stockholders entitled to notice of and to vote at the Annual Meeting. As of the Record Date there were 108,377,778113,349,464 shares of common stock issued, outstanding and entitled to vote at the Annual Meeting. Holders of shares of common stock are entitled to one vote at the Annual Meeting for each share of common stock held of record as of the Record Date. There is no cumulative voting in the election of directors.
Quorum
A quorum is necessary to hold a valid meeting of our stockholders. The required quorum for the transaction of business at the Annual Meeting is ten (10) percent of our issued and outstanding shares of common stock as of the Record Date.
In order to be counted for purposes of determining whether a quorum exists at the Annual Meeting, shares of common stock must be present at the Annual Meeting either in person or represented by proxy. Shares that will be counted for purposes of determining whether a quorum exists will include:
| · | shares of common stock represented by properly executed proxies for which voting instructions have been given, including proxies which are marked “Abstain” or “Withhold” for any matter; |
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| · | shares of common stock represented by properly executed proxies for which no voting instruction has been given; and |
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| · | broker |
Broker non-votes occur when shares of common stock held by a broker for a beneficial owner are not voted with respect to a particular proposal because the broker has not received voting instructions from the beneficial owner and the broker does not have discretionary authority to vote such shares.
Entitlement to Vote
If you are a registered holder of shares of our common stock as of December 23, 2020,February 9, 2022, the Record Date for the Annual Meeting, you may vote those shares of our common stock in person at the Annual Meeting or by proxy in the manner described below under “Voting of Proxies”. If you hold shares of our common stock in “street name” through a broker or other financial institution, you must follow the instructions provided by your broker or other financial institution regarding how to instruct your broker or financial institution in respect of voting your shares.
Voting of Proxies
You can vote the shares of common stock that you own of record on the Record Date by either attending the Annual Meeting in person or by filling out and sending in a proxy in respect of the shares that you own. Your execution of a proxy will not affect your right to attend the Annual Meeting and to vote in person. You may also submit your proxy on the Internet or over the telephone by following the instructions contained in the Notice.
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You may revoke your proxy at any time before it is voted by:
| (a) | filing a written notice of revocation of proxy with our Corporate Secretary at any time before the taking of the vote at the Annual Meeting; |
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| (b) | executing a later-dated proxy and delivering it to our Corporate Secretary at any time before the taking of the vote at the Annual Meeting; or |
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| (c) | attending at the Annual Meeting, giving affirmative notice that you intend to revoke your proxy and voting in person. Please note that your attendance at the Annual Meeting will not, in and of itself, revoke your proxy. |
All shares of common stock represented by properly executed proxies received at or prior to the Annual Meeting that have not been revoked will be voted in accordance with the instructions of the stockholder who has executed the proxy. If no choice is specified in a proxy, the shares represented by the proxy will be voted FOR all matters to be considered at the Annual Meeting as set forth in the accompanying Notice of Meeting. The shares represented by proxy will also be voted for or against such other matters as may properly come before the Annual Meeting in the discretion of the persons named in the proxy as proxyholders. We are currently not aware of any other matters to be presented for action at the Annual Meeting other than those described herein.
Any written revocation of a proxy or subsequent later-dated proxy should be delivered to the Company at Suite 750, 1095 West Pender Street, Vancouver, British Columbia, Canada, V6E 2M6, Attention: Corporate Secretary.
Votes Required
Proposal One – Election of Directors: The affirmative vote of the holders of a plurality of our shares of common stock represented at the Annual Meeting in person or by proxy is required for the election of our directors. This means that the nominees who receive the greatest number of votes for each open seat will be elected. Votes may be cast in favor of the election of directors or withheld. Votes that are withheld and broker non-votes will be counted for the purposes of determining the presence or absence of a quorum, but will have no effect on the election of directors.
Proposal Two – Appointment of Independent Registered Public Accountants: The affirmative vote of the holders of a majority of our shares of common stock represented at the Annual Meeting in person or by proxy is required for the ratification of the appointment of our independent registered public accountants. Stockholders may vote in favor or against this Proposal or they may abstain. Abstentions are deemed to be “votes cast” and will have the same effect as a vote against this Proposal.
Proposal Three – Ratification and Approval of Continuation ofthe 2022 Stock Optionand Incentive Plan: The affirmative vote of the holders of a majority of our shares of common stock represented at the Annual Meeting in person or by proxy is required for the ratification and approval of continuation of the Company’s 20122022 Stock and Incentive Stock Option Plan. Stockholders may vote in favor or against this Proposal or they may abstain. Abstentions are deemed to be “votes cast” and will have the same effect as a vote against this Proposal. Broker non-votes are not deemed to be votes cast and, therefore, will have no effect on the vote with respect to this Proposal.
Proposal Four – Say-on-Pay for Executive Compensation – Advisory Resolution: The vote to approve the compensation of our named executive officers (commonly known as a “say-on-pay” vote) is advisory and, therefore, not binding on the Company, the Compensation Committee or our Board of Directors. The affirmative vote of the holders of a majority of our common stock represented at the Annual Meeting in person or by proxy is required for the non-binding advisory vote on executive compensation. Stockholders may vote in favor of or against the Proposal or they may abstain. Abstentions are deemed to be “votes cast” and will have the same effect as a vote against this Proposal. Broker non-votes are not deemed to be votes cast and, therefore, will have no effect on the vote with respect to this Proposal.
Stockholder Proposals
No proposals have been received from any stockholder for consideration at the Annual Meeting.
Other Matters
It is not expected that any matters other than those referred to in this Proxy Statement will be brought before the Annual Meeting. If other matters are properly presented, however, the persons named as proxyholders will vote in accordance with their best judgment on such matters. The grant of a proxy also will confer discretionary authority on the persons named as proxyholders to vote in accordance with their best judgment on matters incidental to the conduct of the Annual Meeting.
No Rights of Appraisal
There are no rights of appraisal or similar rights of dissenters with respect to the matters that are the subject of this proxy solicitation under the laws of the State of Nevada, our certificate of incorporation or our bylaws.
INTEREST OF CERTAIN PERSONS IN MATTERS TO BE ACTED UPON
None of the following persons has any substantial interest, direct or indirect, by way of beneficial ownership of securities or otherwise, in any matter to be acted on at the Annual Meeting, other than elections to office and as named executive officers in respect of whose compensation the non-binding advisory vote on executive compensation will be held:
| · | each person who has been one of our directors or executive officers at any time since the beginning of our last fiscal year; |
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| · | each nominee for election as one of our directors; or |
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| · | any associate of any of the foregoing persons. |
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth information regarding the beneficial ownership of our common stock as of December 23, 2020,February 9, 2022, by:
| · | each person who is known by us to beneficially own more than 5% of our shares of common stock; and |
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| · | each executive officer, each director and all of our directors and executive officers as a group. |
The number of shares beneficially owned and the related percentages are based on 108,377,778113,349,464 shares of common stock outstanding as of December 23, 2020.February 9, 2022.
For the purposes of the information provided below, Common Shares that may be issued upon the exercise or conversion of stock options, warrants and other rights to acquire shares of our common stock that are exercisable or convertible within 60 days following December 23, 2020,February 9, 2022, when there were deemed to be 108,377,778113,349,464 Common Shares of the Company outstanding and beneficially owned by the stockholders for the purpose of computing the number of Common Shares and percentage ownership of each holder are reported below, but are not deemed to be outstanding for the purpose of computing the percentage ownership of any other person.
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Name and Address of Beneficial Owner (1) |
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Directors and Officers: |
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Michael Mills, President, Chief Executive Officer and Director |
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| 1.0 | % |
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Darren Tindale, Corporate Secretary |
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| 887,500 | (3) |
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Brent Reuter, Director |
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| 337,500 | (4) |
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Stephen (Trip) Hoffman, Chief Operating Officer |
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| 1,137,500 | (5) |
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| 1.0 | % |
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Dong Shim, Chief Financial Officer and Director |
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| 1,161,460 | (6) |
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| 1.0 | % |
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Alexis Podesta, Director c/o Suite 750,1095 West Pender Street |
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| 125,000 | (7) |
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All directors and executive officers as a group |
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| 4,820,210 | (8) |
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| 4.1 | % |
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Major Stockholders: |
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Robert Hasman |
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| 5,991,295 | (9) |
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Notes:
* Less than one percent.
(1) | Under Rule 13d-3 of the Exchange Act, a beneficial owner of a security includes any person who, directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares: (i) voting power, which includes the power to vote, or to direct the voting of such security; and (ii) investment power, which includes the power to dispose or direct the disposition of the security. Certain shares of common stock may be deemed to be beneficially owned by more than one person (if, for example, persons share the power to vote or the power to dispose of the shares). In addition, shares of common stock are deemed to be beneficially owned by a person if the person has the right to acquire the shares (for example, upon exercise of an option) within 60 days of the date as of which the information is provided. In computing the percentage ownership of any person, the amount of shares of common stock outstanding is deemed to include the amount of shares beneficially owned by such person (and only such person) by reason of these acquisition rights. As a result, the percentage of outstanding shares of common stock of any person as shown in this table does not necessarily reflect the person’s actual ownership or voting power with respect to the number of shares of common stock actually outstanding as of the date of this Proxy Statement. As of |
(2) | This figure represents (i) |
(3) | This figure represents (i) 100,000 shares of common stock held by Mr. Tindale’s wife, and (ii) stock options to purchase |
(4) | This figure represents stock options to purchase |
(5) | This figure represents (i) 50,000 shares of common stock held by Mr. Hoffman directly, and (ii) stock options to purchase |
(6) | This figure represents (i) |
(7) | This figure represents stock options to purchase |
(8) | This figure represents (i) |
(9) | This figure |
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Changes in Control
We are unaware of any contract, or other arrangement or provision, the operation of which may at a subsequent date result in a change of control of our Company.
PROPOSAL NUMBER ONE:
ELECTION OF DIRECTORS TO OUR BOARD OF DIRECTORS
Election of Directors
Each of our directors is elected at the annual meeting of our stockholders and, upon the director’s election, will hold office until our next annual meeting or until his or her successor is elected and qualified.
The persons named in the enclosed form of proxy as proxyholders intend to vote for the election of the nominees listed below as directors unless instructed otherwise, or unless a nominee is unable or unwilling to serve as a director of the Company. Our Board of Directors has no reason to believe that any nominee is unable or unwilling to serve, but if a nominee should determine not to serve, the persons named in the form of proxy as proxyholders will have the discretion and intend to vote for another candidate that would be nominated by our Board of Directors.
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The affirmative vote of a plurality of the votes present in person or by proxy at the Annual Meeting and entitled to vote on the election of directors is required for the election of each nominee as a director. Our constating documents do not provide for cumulative voting in the election of directors.
Nominees for Election as Directors
Michael Mills, Dong Shim, Brent Reuter, David WengerStephen Hoffman and Stephen Hoffman,Alexis Podesta, each of whom is a current director, have been nominated for election as directors. It is the intention of the persons named in the accompanying form of proxy as proxyholders to vote proxies for the election of each of these individuals as a director and each of the nominees has consented to being named in this Proxy Statement and to serve as a director, if elected.
Directors and Executive Officers
Our current directors and executive officers and their respective ages as of December 23, 2020,February 9, 2022, are as follows:
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Michael Mills |
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| President and Chief Executive Officer (“CEO”) and a director |
Darren Tindale |
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| Corporate Secretary |
Stephen ‘Trip’ Hoffman |
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| Chief Operating Officer (“COO”) and a director |
Brent Reuter |
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| A director |
Dong Shim |
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| Chief Financial Officer and a director |
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| A director |
The following describes the business experience of each nominee for election to our Board of Directors, including other directorships held in reporting companies:
Michael Mills. Mr. Mills was appointed President and Interim Chief Executive Officer on August 21, 2019 and was previously the Vice-President, Communications of the Company from June 2018 to August 21, 2019. On January 23.23, 2020, Mr. Mills was elected as a director and on April 30, 2020, Mr. Mills was appointed as full-time CEO. Prior to joining the Company, Mr. Mills was the President of Fairlawn Capital Partners Ltd., a consulting company offering finance, communications and capital market solutions to public and private businesses. Mr. Mills has experience in industries including media, manufacturing and technology and held increasingly senior roles at the Financial Post and National Post newspapers. Mr. Mills obtained a Bachelors of Business Administration from Bishop’s University.
Dong Shim. Mr. Shim has been a Board member since December 15, 2016 and was appointed as the Chief Financial Officer of the Company on August 21, 2019. Mr. Shim is a partner and founder of Shim & Associates LLP (June 2013 to present) and Golden Tree Capital Corp. (November 2015 to present) providing accounting and other business advisory services to numerous companies in various industries. Mr. Shim is a director of National Securities Administrators Ltd. (May 2017 to present), Chief Financial Officer for E-Play Digital Inc. (November 2016 to present), Chief Financial Officer for Arizona Silver Exploration Inc. (August 2017 to present), Chief Financial Officer for Canamex Resources Corp. (August 2017 to present), Chief Financial Officer for Mission Ready Solutions Inc. (June 2017 to present), Chief Financial Officer for Organimax Nutrient Corp. (April 2018 to present), Chief Financial Officer for Avricore Health Inc. (February 2018 to September 2018), and interim Chief Financial Officer of Reliq Health Technologies Inc. (November 2018 to March 2020). Mr. Shim also serves as the CFO for International Private Vault Inc., a private company based in British Columbia, Canada, and as a director of National Securities Administrators Ltd., a transfer agent company based in British Columbia, Canada.
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Brent Reuter. Mr. Reuter has been a Board member since October 16, 2019. Mr. Reuter has deep experience driving new revenue growth and managing businesses in the banking and investment sectors, most recently as principal investor relations for Onex Corp., a private equity firm, vice-president of asset management for Canadian Imperial Bank of Commerce and as managing director at Royal Bank of Canada with roles in Hong Kong and New York. In these roles, he built high-value client and strategic partnerships, recruited and developed sales teams, and implemented and executed high-impact revenue coverage models. In addition, Mr. Reuter is the senior vice-president of investor relations and strategy of Australis Capital Inc. Mr. Reuter obtained a Bachelor of Business Administration from Lakehead University in Thunder Bay, Ontario in 1990.
David Wenger. Mr. Wenger has been a Board member since October 1, 2019. Mr. Wenger is a member of the US Senate Cannabis Working Group, where he has the opportunity to work with senior Congressional staffers on advancing federal cannabis legislation. David wrote a seminal White Paper on the US cannabis industry widely read across the world: The Green Regulatory Arbitrage: A Case for Investing in US Multi-State Vertically-Integrated Cannabis Companies. Mr. Wenger is also an accomplished lawyer and, for 13 years, he represented foreign government and major corporate clients in high-stakes complex cross-border disputes and transactions. Working in the New York office of the global law firm DLA Piper, he coordinated multi-jurisdictional teams acting for clients around the world such as Kingdom of Thailand, Petrobras, Ruler of Dubai, Afghanistan, PPG, Irving Shipbuilding, Pfizer, Troy (Vietnam), and Oman. As a law student, he interned for federal court judge Honorable Harold Baer Jr. in the US District Court for the Southern District of New York. Mr. Wenger is an advisor to Asia Horizon, which is involved in hemp cultivation/processing and product distribution in China and strategic Asia opportunities.
Stephen ‘Trip’ Hoffman. Mr. Hoffman has been a Board member since March 1, 2020 and was appointed as Chief Operating Officer (“COO”) of the Company on November 15, 2018. Mr. Hoffman was previously the Chief Executive Officer of Bolder Venture Ltd., a privately held medical and recreational marijuana cultivation and dispensary company located in Boulder, Colorado, from 2016 until his appointment as Chief Operating Officer of the Company. From 2011 to 2016, Mr. Hoffman was the Chief Executive Officer of Trading Block Holdings Inc., a financial technology company located in Chicago, Illinois. Mr. Hoffman obtained a PhD in physics from Purdue University in December 1991.
Alexis Podesta. Ms. Podesta has served in senior roles in both the public and private sector. Known for her talent to skillfully navigate complex policy and political issues, her broad portfolio has included problem-solving on high-profile policies in both government and the corporate world. Ms. Podesta was entrusted by both Governor Gavin Newsom and Governor Edmund G. Brown, Jr. to manage the sprawling California Business, Consumer Services and Housing Agency. As Secretary of the Cabinet-level Agency, she directed its $4.75 billion budget and nearly 6,100 employees. Ms. Podesta oversaw twelve departments, boards, a commission, a panel and a council whose job is to license and regulate professionals and businesses in California to protect consumers; regulate businesses engaged in financial transactions; preserve, expand and fund safe and affordable housing opportunities; to provide solutions to address homelessness in California; to investigate and research earthquake related issues to advise on ways to reduce earthquake risk; and to protect the civil rights of all Californians from acts of hate violence and unlawful discrimination in employment, housing and public accommodations. Additionally, the departments under the agency provided $1.9 billion in funding for affordable housing; made $3.5 billion annually in loans for first-time homebuyers; made $600 million annually in loans for affordable multi-family properties; and provided $650 million in assistance to local jurisdictions to combat homelessness. Additionally, the Department of Fair Employment and Housing filed more than 22,500 civil rights cases. Prior to being appointed to lead the Agency, Ms. Podesta served as the Director of External and International Affairs for Governor Brown. She directed outreach, communication and partnerships with stakeholder groups, and provided key support for the Governor’s special projects. In addition, Ms. Podesta was the Governor’s lead representative on international affairs and served as Chief of Protocol.
The following describes the business experience of the non-director officer of the Company:
Darren Tindale. Mr. Tindale was our Chief Financial Officer from March 6, 2017 to August 20, 2019 and has been our Corporate Secretary since August 20, 2019. Mr. Tindale brings over 17 years of financial accounting and management experience and has worked for both public and private companies. Mr. Tindale has served as Chief Financial Officer for numerous TSX Venture listed companies.
- 12 - |
Term of Office
All of our directors, when elected, hold office until the next annual meeting of our stockholders or until their successors are elected and qualified. Our officers are appointed by our Board of Directors and hold office until their successors are appointed and qualified.
Significant Employees
There are no significant employees of the Company other than our executive officers who provide their services on a consulting basis. Our operating subsidiaries have an aggregate of 101 employees at all of our locations.
Family Relationships
There is no family relationship between any of our executive officers or directors.
Involvement in Certain Legal Proceedings
Except as disclosed in this proxy statement, during the past ten years none of the following events have occurred with respect to any of our directors and officers:
| 1. | A petition under any legislation relating to bankruptcy laws or insolvency laws was filed by or against, or a receiver, fiscal agent or similar officer was appointed by a court for the business or property of such person, or any partnership in which he was a general partner at or within two years before the time of such filing, or any corporation or business association of which he was an executive officer at or within two years before the time of such filing; |
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| 2. | Such person was convicted in a criminal proceeding or is a named subject of a pending criminal proceeding (excluding traffic violations and other minor offenses); |
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| 3. | Such person was the subject of any order, judgment, or decree, not subsequently reversed, suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining him from, or otherwise limiting, the following activities: |
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| Acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission, or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company, or engaging in or continuing any conduct or practice in connection with such activity; |
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| ii. | Engaging in any type of business practice; or |
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| iii. | Engaging in any activity in connection with the purchase or sale of any security or commodity or in connection with any violation of applicable securities legislation, whether federal, state or provincial or any applicable commodities legislation; |
| 4. | Such person was the subject of any order, judgment or decree, not subsequently reversed, suspended or vacated, of any Federal or State authority barring, suspending or otherwise limiting for more than 60 days the right of such person to engage in any activity described in paragraph (3)(i) above, or to be associated with persons engaged in any such activity; |
- 13 - |
| 5. | Such person was found by a court of competent jurisdiction in a civil action or by the Commission to have violated any Federal or State securities law, and the judgment in such civil action or finding by the Commission has not been subsequently reversed, suspended, or vacated; |
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| 6. | Such person was found by a court of competent jurisdiction in a civil action or by the Commodity Futures Trading Commission to have violated any Federal commodities law, and the judgment in such civil action or finding by the Commodity Futures Trading Commission has not been subsequently reversed, suspended or vacated; |
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| 7. | Such person was the subject of, or a party to, any Federal or State judicial or administrative order, judgment, decree, or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of: |
| i. | Any Federal or State securities or commodities law or regulation; or |
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| ii. | Any law or regulation respecting financial institutions or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution, civil money penalty or temporary or permanent cease-and-desist order, or removal or prohibition order; or |
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| iii. | Any law or regulation prohibiting mail or wire fraud or fraud in connection with any business entity; or |
| 8. | Such person was the subject of, or a party to, any sanction or order, not subsequently reversed, suspended or vacated, of any self-regulatory organization (as defined in Section 3(a)(26) of the U.S. Securities Exchange Act), any registered entity (as defined in Section 1(a)(29) of the Commodity Exchange Act), or any equivalent exchange, association, entity or organization that has disciplinary authority over its members or persons associated with a member. |
There are currently no legal proceedings to which any of our directors or officers is a party adverse to us or in which any of our directors or officers has a material interest adverse to us.
Meetings of Directors during the last Fiscal Year ended July 31, 20202021
The Company’s Board of Directors held 1513 meetings in person, by teleconference or summaries of actions during the fiscal year ended July 31, 20202021 (“Fiscal 20202021”). No director attended fewer than 80%92% of the total number of the meetings of the Board of Directors held during Fiscal 2020.2021.
The Company does not have a formal policy with respect to director attendance at annual stockholders’ meetings; however, all directors are encouraged to attend. It is anticipated that five directors will attend the 20202021 annual meeting of stockholders in person or by teleconference.
- 14 - |
Board Independence
The Board of Directors has determined that David WengerBrent Reuter and Brent ReuterAlexis Podesta each qualify as independent directors under the listing standards of the NYSE American. Messrs. Mills, Shim and Hoffman are not considered independent directors as they are each an officer of the Company.
Board Committees
Nominating Committee
We do not have a Nominating Committee and our Board of Directors as a whole is responsible for identifying and nominating qualified individuals to our Board of Directors. Since our formation we have relied upon the personal relationships of our President and directors to attract individuals to our Board of Directors.
Our Board of Directors considers its size each year when it considers the number of directors to recommend to the shareholders for election at the annual meeting of shareholders, taking into account the number required to carry out the Board’s duties effectively and to maintain a diversity of views and experience.
We do not have a policy regarding the consideration of any director candidates, which may be recommended by our stockholders, including the minimum qualifications for director candidates, nor has our Board of Directors established a process for identifying and evaluating director nominees. We have not adopted a policy regarding the handling of any potential recommendation of director candidates by our stockholders, including the procedures to be followed. Our Board has not considered or adopted any such policies, as we have never received a recommendation from any stockholder for any candidate to serve on our Board of Directors. Given the size and capitalization of our Company, we do not anticipate that any of our stockholders will make such a recommendation in the near future. While there have been no nominations of additional directors proposed, in the event such a proposal is made, all members of our Board will participate in the consideration of director nominees.
Compensation Committee
Our Compensation Committee is comprised of Mr. Reuter, Mr. WengerHoffman and Mr. Hoffman.Ms. Podesta. This committee reviews and recommends to our Board of Directors the salaries, and benefits of all employees, consultants, directors and other individuals compensated by us.
Audit Committee
The Audit Committee is comprised of Mr. Shim, Mr. WengerReuter and Mr. Reuter.Ms. Podesta.
Our Board of Directors has determined that we have at least one financial expert. Mr. WengerReuter and Mr. ReuterMs. Podesta are considered independent.
An audit committee financial expert means a person who has the following attributes:
| (a) | An understanding of generally accepted accounting principles and financial statements; |
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| (b) | The ability to assess the general application of such principles in connection with the accounting for estimates, accruals and reserves; |
- 15 - |
| (c) | Experience preparing, auditing, analyzing or evaluating financial statements that present a breadth and level of complexity of accounting issues that are generally comparable to the breadth and complexity of issues that can reasonably be expected to be raised by the small business issuer’s financial statements, or experience actively supervising one or more persons engaged in such activities; |
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| (d) | An understanding of internal control over financial reporting; and |
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| (e) | An understanding of audit committee functions. |
The audit committee’s primary function is to provide advice with respect to our financial matters and to assist the Board of Directors in fulfilling its oversight responsibilities regarding finance, accounting and legal compliance. The audit committee’s primary duties and responsibilities are to:
| · | serve as an independent and objective party to monitor our financial reporting process and internal control system; |
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| · | review and appraise the audit efforts of our independent accountants; |
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| · | evaluate our quarterly financial performance as well as our compliance with laws and regulations; |
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| · | oversee management’s establishment and enforcement of financial policies and business practices; and |
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| · | provide an open avenue of communication among the independent accountants, management and the Board of Directors. |
Stockholder Communications
Stockholders may contact an individual director, the Board of Directors as a group or a specified Board of Directors’ committee or group, including any non-employee directors as a group, either by: (i) writing to Body and Mind Inc., c/o Suite 750, 1095 West Pender Street, Vancouver, British Columbia Canada V6E 2M6, Canada, Attention: Corporate Secretary; or (ii) sending an e-mail message to ir@bodyandmind.com.ir@bodyandmind.com.
Our Corporate Secretary will conduct an initial review of all such stockholder communications and will forward the communications to the persons to whom it is addressed, or if no addressee is specified, to our President and CEO, the appropriate members of the Board of Directors or the entire Board of Directors depending on the nature of the communication. Such communications will be assessed by the recipients as soon as reasonably practicable taking into consideration the nature of the communication and whether expedited review is appropriate.
Certain Relationships and Related Party Transactions
Except as described herein, none of the following parties (each a “Related Party”) has had any material interest, direct or indirect, in any transaction with us or in any presently proposed transaction that has or will materially affect us:
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| any of our directors or officers; |
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| any person proposed as a nominee for election as a director; |
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| any person who beneficially owns, directly or indirectly, shares carrying more than 10% of the voting rights attached to our outstanding shares of common stock; or |
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| any member of the immediate family (including spouse, parents, children, siblings and in- laws) of any of the above persons. |
- 16 - |
Related Party Transactions during the year ended July 31, 20202021
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| Accounts Payable |
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| Consulting Fees |
| ||
Dong Shim (Director and CFO) |
| $ | 7,833 |
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| $ | 91,594 |
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Leonard Clough (Former CEO & Former Director) |
| $ | Nil |
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| $ | 9,224 |
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Darren Tindale (Former CFO & Corporate Secretary) |
| $ | 5,875 |
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| $ | 66,897 |
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Michael Mills (President & CEO) |
| $ | 14,229 |
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| $ | 154,439 |
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Robert Hasman (Director) |
| $ | 25,000 |
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| $ | 141,665 |
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Kevin Hooks (Director) |
| $ | Nil |
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| $ | Nil |
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Scott Dowty (Director) |
| $ | Nil |
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| $ | Nil |
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Stephen (Trip) Hoffman (COO) |
| $ | Nil |
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| $ | Nil |
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| Accounts Payable |
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| Consulting Fees |
| ||
Dong Shim (Director and CFO) |
| $ | 18,915 |
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| $ | 109,488 |
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Darren Tindale (Former CFO & Corporate Secretary) |
| $ | 6,319 |
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| $ | 70,990 |
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Michael Mills (President & CEO) |
| $ | 26,841 |
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| $ | 159,657 |
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Robert Hasman (former director and the former President of our indirect wholly-owned subsidiary, NMG Nevada LLC, until March 1, 2020) |
| $ | Nil |
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| $ | 65,000 |
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Included in stock-based compensation for the year ended July 31, July 20202021 is $691,115 (2019$673,097 (2020 - $579,904)$691,115) related to stock options issued to directors and officers of the Company.
During the year ended 31 July 2019, the Company entered into an agreement to purchase the remaining 70% of NMG Ohio for total cash payments of $1,575,000 and issuance of 3,173,864 common shares of the Company, of which cash of $461,251 and 929,488 common shares are payable to directors of the Company.
Our Board reviews any proposed transaction involving Related Parties and considers whether such transactions are fair and reasonable and in the Company’s best interests.
Conflicts of Interest
To our knowledge, and other than as disclosed in this Proxy Statement, there are currently no known existing or potential conflicts of interest among us, our promoters, directors and officers, or other members of management, or any proposed director, officer or other member of management as a result of their outside business interests, except that certain of the directors and officers serve as directors and officers of other companies and, therefore, it is possible that a conflict may arise between their duties to us and their duties as a director or officer of such other companies.
Compliance with Section 16(a) of the Exchange Act
Section 16(a) of the Exchange Act requires our directors and officers, and the persons who beneficially own more than 10% of our common stock, to file reports of ownership and changes in ownership with the SEC. Copies of all filed reports are required to be furnished to us pursuant to Rule 16a-3 promulgated under the Exchange Act. Based solely on the reports received by us and on the representations of the reporting persons, we believe that these persons have complied with all applicable filing requirements during the fiscal year ended July 31, 2020,2021, except as follows:
Name | Position Held | Late or Unfiled Report | ||
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Stephen Hoffman | COO and Director | Form 4 filed late | ||
Alexis Podesta | Director | Form 3 filed late | ||
Australis Capital Inc. | Shareholder |
| 49 Form 4s filed late |
- 17 - |
EXECUTIVE COMPENSATION
General
For the purposes of this section:
“CEO” means an individual who acted as the Chief Executive Officer of Body and Mind, or acted in a similar capacity, for any part of the most recently completed financial year;
“CFO” means an individual who acted as the Chief Financial Officer of Body and Mind, or acted in a similar capacity, for any part of the most recently completed financial year;
“incentive plan” means any plan providing compensation that depends on achieving certain performance goals or similar conditions within a specified period;
“incentive plan award” means compensation awarded, earned, paid or payable under an incentive plan;
“NEO” means each of the following individuals:
| (a) | a CEO; |
| (b) | a CFO; |
| (c) | each of Body and Mind’s three most highly compensated executive officers, or the three most highly compensated individuals acting in a similar capacity, other than the CEO and CFO, at the end of the most recently completed financial year whose total compensation was, individually, more than $150,000 for that financial year; and |
| (d) | each individual who would be a NEO under paragraph (c) but for the fact that the individual was neither an executive officer of Body and Mind, nor acting in a similar capacity, at the end of that financial year; |
“option-based award” means an award under an equity incentive plan of options, including, for greater certainty, share options, share appreciation rights and similar instruments that have option-like features; and
“share-based award” means an award under an equity incentive plan of equity-based instruments that do not have option-like features, including, for greater certainty, common shares, restricted shares, restricted share units, deferred share units, phantom shares, phantom share units, common share equivalent units, and stock.
Compensation Discussion and Analysis
Compensation Program Objectives
We have not established a strategy for setting executive salary levels, creating standards we apply in setting compensation levels or what factors we intend to encourage by establishing compensation levels. Since we acquired NMG, raised equity capital and have been generating revenues from the sale of our products, we have been compensating our NEOs at levels comparable to executive officers of companies within our industry at similar stages of growth.
- 18 - |
Our Compensation Committee reviews and recommends to our Board of Directors the salaries, and benefits of all employees, consultants, directors and other individuals compensated by us. The Board of Directors assumes responsibility for reviewing the recommendations of the Compensation Committee and monitoring the long-range compensation strategy for our senior management. The Compensation Committee and the Board of Directors reviews the compensation of senior management on a semi-annual basis taking into account compensation paid by other issuers of similar size and activity. The Compensation Committee and the Board of Directors receives independent competitive market information on compensation levels for executives. It uses salary data of comparable private and public companies as a benchmark for setting executive compensation. This data is obtained from various sources including online research and market surveys.
Although permitted, at this time no NEO or director has or intends to purchase financial instruments that are designed to hedge or offset a decrease in market value of equity securities granted as compensation or held, directly or indirectly, by the NEO or director.
Elements of the Compensation Program
The total compensation plan for NEOs consists of a base compensation structure and equity-based compensation program in the form of stock options. The compensation program for our senior management is designed with a view that the level and form of compensation achieves certain objectives, including:
| (a) | attracting and retaining qualified executives; |
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| (b) | motivating the short and long-term performance of these executives; and |
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| (c) | better aligning their interests with those of the Company’s shareholders. |
In compensating our senior management, we have arranged for equity participation through our 2012 Incentive Stock Option Plan.
Base Salary
The base salary component of NEO compensation is intended to provide a fixed level of competitive pay that reflects each NEO’s primary duties and responsibilities. The policy of Body and Mind is that salaries for its NEOs are competitive within its industry and generally set at the median salary level among entities its size.
Stock Options
Effective October 25, 2012,On February 9, 2022, our Board adopted the 2022 Stock and Incentive Plan (the “2022 Stock and Incentive Plan”). The purpose of the 2022 Stock and Incentive Plan is to promote the interests of the Company and its stockholders by aiding the Company in attracting and retaining employees, officers, consultants, advisors and non-employee directors capable of assuring the future success of the Company, to offer such persons incentives to put forth maximum efforts for the success of the Company’s business and to compensate such persons through various stock and cash‑based arrangements and provide them with opportunities for stock ownership in the Company, thereby aligning the interests of such persons with the Company’s stockholders.
The 2022 Stock and Incentive Plan supersedes, replaces and is in substitution for the Company’s 2012 Incentive Stock Option Plan, (the “which was originally ratified by the Board on October 25, 2012, as was ratified by the stockholders of the Company at the Company’s annual meeting held on December 10, 2012. There are 9,253,000 stock options outstanding under the 2012 Incentive and Stock Option Plan”). The purpose as of the 2012 Incentive Stock Option Plan is to enhance the long-term shareholder value by offering opportunities to our directors, executive officers, key employees and eligible consultants to acquire our Common Shares in order to give these persons the opportunity to participate in our growth and success, and to encourage them to remain in the servicedate of adoption of the Company.2022 Stock and Incentive Plan which will be covered under the 2022 Stock and Incentive Plan, which is subject to the approval of the stockholders at this Annual Meeting.
- 19 - |
Previous grants will be taken into account when considering new grants under the 2022 Stock and Incentive Plan and a maximum of 10% of the number of our22,669,892 common shares may be issued and outstanding Common Shares are available for issuanceunder all awards under the 20122022 Stock and Incentive Stock Option Plan. There are currently 9,155,000 options issued under the 2012 Incentive Stock Option Plan.
Compensation Governance
Our Compensation Committee is responsible for recommending to our Board of Directors the compensation to be paid to our directors and executive officers. We do not have any formal compensation policies and the practices adopted by the Compensation Committed and our Board of Directors to determine the compensation for our directors and executive officers is described above.
Summary Compensation Table
Michael Mills, our President, Chief Executive Officer and director, Dong Shim, our Chief Financial Officer and director, Darren Tindale, our Corporate Secretary and former Chief Financial Officer, Leonard Clough our former President and Chief Executive Officer until August 21, 2019, Stephen Hoffman, our Chief Operating Officer and director and Robert Hasman, a director and the President of our indirect wholly-owned subsidiary NMG until March 1, 2020 are NEOs for the purposes of the following disclosure.
The compensation for those NEOs, directly or indirectly, for our most recently completed financial years ended July 31, 20202021 and 20192020 are as follows:
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| Non-equity incentive plan compensation ($) |
| Nonqualified deferred |
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| Non-equity incentive plan compensation ($) |
| Nonqualified deferred |
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Name and Principal Position |
| Fiscal Year |
| Salary (CAD$) |
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| Share-based awards (CAD$) |
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| Option- based awards (CAD$) |
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| Annual incentive plans |
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| Long-term incentive plans |
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| compensation earnings ($) |
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| All other compensation ($) |
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| Total compensation (CAD$) |
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| Fiscal Year |
| Salary (CAD$) |
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| Share-based awards (CAD$) |
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| Option-based awards (CAD$) |
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| Annual incentive plans |
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| Long-term incentive plans |
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| compensation earnings ($) |
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| All other compensation ($) |
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| Total compensation (CAD$) |
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Michael Mills(1) |
| 2020 |
| 207,775 |
| - |
| 230,812 |
| - |
| - |
| - |
| - |
| 438,587 |
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| 2021 |
| 203,255 |
| - |
| 215,872 |
| - |
| - |
| - |
| - |
| 419,127 |
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President, CEO and director |
| 2019 |
| - |
| - |
| - |
| - |
| - |
| - |
| - |
| - |
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President, CEO and Director |
| 2020 |
| 207,775 |
| - |
| 230,812 |
| - |
| - |
| - |
| - |
| 438,587 |
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Dong Shim(2) |
| 2020 |
| 123,226 |
| - |
| 173,012 |
| - |
| - |
| - |
| - |
| 296,238 |
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| 2021 |
| 139,386 |
| - |
| 156,683 |
| - |
| - |
| - |
| - |
| 296,069 |
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CFO and Director |
| 2019 |
| 50,001 |
| - |
| 142,087 |
| - |
| - |
| - |
| - |
| 192,088 |
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| 2020 |
| 123,226 |
| - |
| 173,012 |
| - |
| - |
| - |
| - |
| 296,238 |
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Darren Tindale(3) |
| 2020 |
| 90,000 |
| - |
| 152,851 |
| - |
| - |
| - |
| - |
| 242,851 |
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| 2021 |
| 90,375 |
| - |
| 80,483 |
| - |
| - |
| - |
| - |
| 170,858 |
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Secretary and Former CFO |
| 2019 |
| 82,500 |
| - |
| 142,087 |
| - |
| - |
| - |
| - |
| 224,587 |
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| 2020 |
| 90,000 |
| - |
| 152,851 |
| - |
| - |
| - |
| - |
| 242,851 |
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Leonard Clough(4) |
| 2020 |
| 12,410 |
| - |
| 17,049 |
| - |
| - |
| - |
| - |
| 29,459 |
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Former CEO and director |
| 2019 |
| 120,000 |
| - |
| 142,087 |
| - |
| - |
| - |
| - |
| 262,087 |
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Stephen Hoffman(5) |
| 2020 |
| 180,000 |
| - |
| 270,880 |
| - |
| - |
| - |
| - |
| 450,880 |
| |||||||||||||||||||||||||||||||||||||||||||||||||
Stephen Hoffman(4) |
| 2021 |
| 235,709 |
| - |
| 226,166 |
| - |
| - |
| - |
| - |
| 461,875 |
| |||||||||||||||||||||||||||||||||||||||||||||||||
COO and Director |
| 2019 |
| 119,080 |
| - |
| 99,461 |
| - |
| - |
| - |
| - |
| 218,541 |
|
| 2020 |
| 242,316 |
| - |
| 270,880 |
| - |
| - |
| - |
| - |
| 513,196 |
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Robert Hasman(6) |
| 2020 |
| 190,589 |
| - |
| 85,243 |
| - |
| - |
| - |
| - |
| 275,832 |
| |||||||||||||||||||||||||||||||||||||||||||||||||
Former Director, and former President of NMG |
| 2019 |
| 299,010 |
| - |
| 142,087 |
| - |
| - |
| - |
| - |
| 441,097 |
|
- 20 - |
Notes:
| (1) | Mr. Mills was appointed a President and Interim CEO on Aug. 21, 2019. Mr. Mills was elected as a director on January 23, 2020 and was appointed full-time CEO on April 30, 2020. |
| (2) | Mr. Shim was appointed CFO in December 2016. He resigned on March 6, 2017 and was reappointed as interim CEO in August 2017 and resigned on November 14, 2017 when Mr. Clough was appointed as CEO. Mr. Shim was appointed CFO on August 21, 2019. |
| (3) | Mr. Tindale was appointed CFO on March 7, 2017. Mr. Tindale resigned as the CFO on August 21, 2019 and was appointed Corporate Secretary on the same date. |
| (4) | Mr. |
|
| |
| The salary figures for Mr. |
During our most recently completed financial years ended July 31, 2021 and 2020, we did not pay any other executive compensation to our NEOs.
Effective November 14, 2017, we entered into a formal consulting agreement with TI Nevada, whereby TI Nevada will provide the services of NMG’s President, Robert Hasman, for an annual salary of $200,000. Robert Hasman, through TI Nevada, is also entitled to a severance fee of $100,000. The consulting agreement with TI Nevada was: (i) amended on November 2, 2018 to extend the non-competition and non-solicitation provisions to include the State of Ohio as well as Nevada; (ii) amended on November 25, 2019 to broaden the non-competition provision, modify the amount of the consulting fees, include bonuses for construction completion of the new production facility in Nevada, and to provide for a lock-up provision on Mr. Hasman’s shares of our common stock; and (iii) amended on April 23, 2020 to extend the consulting agreement, amend the terms of the consulting fee and to provide for a separation agreement.
Incentive Plan Awards
The stock options to purchase shares of our common stock that we granted to our NEOs during the fiscal year ended July 31, 20202021 was on August 21, 2019, January 23, 2020, March 1, 2020 and April 30, 20206, 2021 as set out in the table below.
| Date of Option Grant | # of Options | Fair Value (CAD$) |
Michael Mills | August 21, 2019 January 23, 2020 April 30, 2020 | 250,000 200,000 275,000 | 192,002 89,130 140,373 |
Dong Shim | August 21, 2019 April 30, 2020 | 250,000 200,000 | 192,002 102,089 |
Darren Tindale | August 21, 2019 April 30, 2020 | 250,000 50,000 | 192,002 25,522 |
Stephen Hoffman | August 21, 2019 March 1, 2020 April 30, 2020 | 350,000 250,000 250,000 | 268,803 75,331 127,611 |
Robert Hasman | August 21, 2019 | 250,000 | 192,002 |
|
| Date of Option Grant |
| # of Options |
|
| Fair Value (CAD$) |
| ||
Michael Mills |
| March 6, 2021 |
|
| 250,000 |
|
|
| 115,585 |
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Dong Shim |
| March 6, 2021 |
|
| 250,000 |
|
|
| 115,585 |
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Darren Tindale |
| March 6, 2021 |
|
| 100,000 |
|
|
| 46,234 |
|
Stephen Hoffman |
| March 6, 2021 |
|
| 250,000 |
|
|
| 115,585 |
|
Outstanding Equity Awards Held by Named Executive Officers at Fiscal Year End
The following table sets forth information as of July 31, 2020,2021, relating to outstanding equity awards held by each NEO:
Outstanding Equity Awards at Year End
Notes:
Pension Plan Benefits
We have no pension plans that provide for payments or benefits at, following or in connection with retirement.
Director Compensation
We do not currently provide any compensation to our directors in their capacity as such. As a result, none of our directors received any cash compensation in any form during our most recently completed financial year. However, on
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THE ELECTION OF THE DIRECTOR NOMINEES SET FORTH ABOVE __________
PROPOSAL NUMBER TWO: RATIFICATION OF APPOINTMENT OF
Representatives of Sadler and Marcum On March 24, 2021, our Board of Directors as well as our Audit Committee approved and authorized the dismissal of Marcum as its independent registered public accounting firm. On the same date, our Board of Directors as well as our Audit Committee approved and authorized the engagement of the accounting firm of Sadler, as the Company’s new independent registered public accounting firm. Marcum’s report on our financial statements dated December 15, 2020, for the fiscal year ended July 31, 2020, did not contain an adverse opinion or disclaimer of opinion, or qualification or modification as to uncertainty, audit scope, or accounting principles. In connection with the audit of our financial statements for the fiscal year ended July 31, 2020, and in the subsequent interim period through the effective date of dismissal on March 24, 2021, there were no disagreements, resolved or not, with Marcum on any matters of accounting principles or practices, financial statement disclosure or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Marcum would have caused them to make reference to the subject matter of the disagreements in connection with their report on the financial statements for such year. During the Company’s fiscal year ended July 31, 2020 and the period through the effective date of dismissal of Marcum on March 24, 2021, there were no reportable events as described in Item 304(a)(1)(v) of Regulation S-K. We provided Marcum with a copy of our current report on Form 8-K prior to its filing with the Securities and Exchange Commission on March 29, 2021, and requested that Marcum furnish us with a letter addressed to the Securities and Exchange Commission stating whether Marcum agrees with the statements made in such current report on Form 8-K, and if not, stating the aspects with which it does not agree. The letter from Marcum, dated March 26, 2021, is filed as Exhibit 16.1 to our current report on Form 8-K filed with the Securities and Exchange Commission on March 29, 2021. During the two most recent fiscal years and the subsequent interim period through the effective date of appointment of Sadler on March 24, 2021, we had not, nor had any person on our behalf, consulted with Sadler regarding either the application of accounting principles to a specified transaction, either completed or proposed, or the type of audit opinion that might be rendered on our financial statements, nor had Sadler provided to us a written report or oral advice regarding such principles or audit opinion on any matter that was the subject of a disagreement as set forth in Item 304(a)(1)(iv) of Regulation S-K or a reportable event as set forth in Item 304(a)(1)(v) of Regulation S-K with our former independent registered public accounting firm.
In the event ratification by the stockholders of the appointment of
Principal Accountant Fees and Services
The following is an aggregate of fees billed for each of the last two fiscal years for professional services rendered by our current and prior principal accountants:
Audit Fees
Audit fees are the aggregate fees billed for professional services rendered by our independent auditors for the audit of our annual financial statements, the review of the financial statements included in each of our quarterly reports and services provided in connection with statutory and regulatory filings or engagements.
Audit Related Fees
Audit related fees are the aggregate fees billed by our independent auditors for assurance and related services that are reasonably related to the performance of the audit or review of our financial statements and are not described in the preceding category.
Tax Fees
Tax fees are billed by our independent auditors for tax compliance, tax advice and tax planning.
All Other Fees
All other fees include fees billed by our independent auditors for products or services other than as described in the immediately preceding three categories.
Pre-Approval of Services by the Independent Auditor
Our policy is to pre-approve all audit and permissible non-audit services performed by the independent accountants. These services may include audit services, audit-related services, tax services and other services. Under our audit committee’s policy, pre-approval is generally provided for particular services or categories of services, including planned services, project based services and routine consultations. In addition, the audit committee may also pre-approve particular services on a case-by-case basis. We approved all services that our independent accountants provided to us in the past two fiscal years.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THIS PROPOSAL TO RATIFY THE APPOINTMENT OF __________
PROPOSAL NUMBER THREE: APPROVAL OF
At the Meeting the Board of Directors will seek shareholder ratification and approval
Summary of
Background and Purpose On February 9, 2022, our Board of Directors
The purpose of the Key Terms of the
The
Administration of the Plan The Plan will be administered by the Compensation Committee of the Board of Directors, subject to the ability of the Compensation Committee to delegate to directors or officers of the Company the authority to grant Awards. However, the Board of Directors retain the power and authority to administer the Plan without further action by the Compensation Committee in certain circumstances.
Under the Plan, the Compensation Committee has the power and authority to designate Participants (as defined in the Plan), determine the type of Awards to be granted to each In addition, the Compensation Committee interprets and administers the Plan, and any instrument or agreement relating to it. The Compensation Committee may establish, amend, suspend or waive rules and regulations, and appoint agents it deems appropriate for the proper administration of the Plan. Furthermore, the Compensation Committee may adopt modifications, rules, procedures and subplans to comply with applicable laws, or make any determination and take any action for the administration of the Plan. Eligibility All employees, officers, directors and consultants that provide services to the Types of Awards Awards of Options, SARs, Restricted Stock and RSUs, Performance Awards, Dividend Equivalents and Other Stock-Based Awards may be made under the Plan. All of the Awards described below are subject to the terms, conditions, limitations, restrictions, exercise price, vesting, settlement and forfeiture provisions determined by the Compensation Committee, in its sole discretion, subject to such limitations provided in the Plan, and will generally be evidenced by an Award Agreement. In addition, subject to the limitations provided in the Plan and in accordance with applicable law, the Compensation Committee may accelerate or defer the vesting or payment of Awards, cancel or modify outstanding Awards and waive any condition imposed with respect to Awards or Common Shares issued pursuant to Awards. Options An Option entitles a holder thereof to purchase a prescribed number of treasury Common Shares at an exercise price set at the time of the grant. The Compensation Committee will establish the exercise price at the time each Option is granted, which exercise price must in all cases be not less than the “Fair Market Value”. For the purposes of establishing the exercise price of any Options, the Fair Market Value will be the greater of the closing market price of the Common Shares on the Canadian Securities Exchange on (i) the trading day
Additional provisions will apply to Options intended to qualify as an Incentive Stock Options, including: (i) the maximum number of Common Shares that may be issued pursuant to Incentive Stock Options will not exceed 22,669,892, subject to adjustment under the Plan; (ii) all Incentive Stock Options must be granted within ten years from the date on which the Plan was adopted by the Board of Directors; (iii) all Incentive Stock Options will expire no later than ten years after the date of grant, and no later than five years if the Inventive Stock Option was granted to a Participant who at the time of grant owned stock possessing more than 10% of the combined voting power of all classes of stock of the Company or its Affiliates; (iv) if the Participant owned stock possessing more than 10% of the combined voting power of all classes of stock of the Company or its Affiliates at the time of grant, the exercise price will not be less than 110% of the Fair Market Value; and (v) any Incentive Stock Option will contain any provisions the Compensation Committee deems advisable and will be consistent with all provisions required in order to qualify as an Incentive Stock Option.
An SAR granted under the Plan shall confer on the holder thereof a right to RSUs An RSU is a unit evidencing the right to receive a Common Share, or a cash payment equal to the Fair Market Value of a Common Share, at some future date, provided that in the case of Participants who are liable to taxation under the Income Tax Act (Canada) in respect of amounts payable under the Plan, that such date is not later than December 31st of the third calendar year following the year services were performed in respect of the corresponding RSU awarded. Common Shares of Restricted Stock and RSUs shall be subject to such restrictions as the Compensation Committee may impose (including, without limitation, any limitation on the right to vote a Common Share of Restricted Stock or the right to receive any dividend or other right or property with respect thereto), which restrictions may lapse separately or in combination at such time or times, in such installments or otherwise as the Compensation Committee may deem appropriate, subject to limitations described in Section 6(e) of the Plan. Any Restricted Stock granted under the Plan shall be issued at the time such Awards are granted and may be evidenced in such manner as the Compensation Committee may deem appropriate. Common Shares representing Restricted Stock that are no longer subject to restrictions shall be delivered to the Participant promptly after the applicable restrictions lapse or are waived. In the case of RSUs, no Common Shares shall be issued at the time such Awards are granted. Upon the lapse or waiver of restrictions and the restricted period relating to RSUs evidencing the right to receive Common Shares, such Common Shares shall be issued and delivered to the holder of the RSUs. Except as otherwise determined by the Compensation Committee or as provided in an Award Agreement, upon a Participant’s termination of employment or service or resignation or removal as a director during the applicable restriction period, all Common Shares of Restricted Stock and all RSUs held by such Participant at such time will be forfeited and reacquired by the Company for cancellation at no cost to the Company. However, the Compensation Committee may waive any or all remaining restrictions.
Performance Awards A Performance Award granted under the Plan (i) may be denominated or payable in cash, Common Shares (including, without limitation, Restricted Stock and Restricted Stock Units), other securities, other Awards or other property and (ii) shall confer on the holder thereof the right to receive payments, in whole or in part, upon the achievement of one or more objective performance goals during such performance periods as the Compensation Committee shall establish. Subject to the terms of the Plan, the performance goals to be achieved during any performance period, the length of any performance period, the amount of any Performance Award granted, the amount of any payment or transfer to be made pursuant to any Performance Award and any other terms and conditions of any Performance Award shall be determined by the Compensation Committee. Dividend Equivalents Dividend Equivalents are entitlements to receive payments (in cash, Common Shares, other securities, other Awards or other property as determined in the discretion of the Compensation Committee) equivalent to the amount of cash dividends paid by the Company to holders of Common Shares with respect to a number of Common Shares determined by the Compensation Committee. Subject to the terms of the Plan and any applicable Award Agreement, such Dividend Equivalents may have such terms and conditions as the Compensation Committee shall determine. However, the Compensation Committee may not grant Dividend Equivalents to Participants in connection with grants of Options, SARs or other Awards the value of which is based solely on an increase in the value of the Common Shares after the date of grant of such Award, and (ii) dividend and Dividend Equivalent amounts may be accrued but shall not be paid unless and until the date on which all conditions or restrictions relating to such Award have been satisfied, waived or lapsed. Other Stock-Based Awards Other Stock-Based Awards are other Awards that are denominated or payable in, valued in whole or in part by reference to, or otherwise based on or related to, Common Shares (including, without limitation, securities convertible into Common Shares), as are deemed by the Compensation Committee to be consistent with the purpose of the Plan. The Compensation Committee shall determine the terms and conditions of such Awards, subject to the terms of the Plan and any applicable Award Agreement. Such Other Stock-Based Awards shall not contain a purchase right or an option‑like exercise feature General Terms of Awards Consideration Awards may be granted for no cash consideration or for any cash or other consideration as may be determined by the Compensation Committee or required by applicable law. Limits on Transfer Except as otherwise provided by the Compensation Committee in its discretion and fully-vested and unrestricted Common Shares issued pursuant to any Award, no Award nor any right under any such Award shall be transferable by a Participant other than by will or by the laws of descent and distribution. Additionally, no Award nor any right under any such Award may be pledged, alienated, attached or otherwise encumbered, and any purported pledge, alienation, attachment or encumbrance thereof shall be void and unenforceable against the Company or any Affiliate. Where the Compensation Committee does permit the transfer of an Award other than a fully vested and unrestricted Common Share, such permitted transfer shall be for no value and in accordance with all applicable securities rules. The Compensation Committee may also establish procedures as it deems appropriate for a Participant to designate a person or persons, as beneficiary or beneficiaries, to exercise the rights of the Participant and receive any property distributable with respect to any Award in the event of the Participant’s death.
Restrictions All Common Shares or other securities delivered under the Plan pursuant to any Award or the exercise thereof will be subject to such restrictions as the Compensation Committee may deem advisable under the Plan, applicable federal or state securities laws and regulatory requirements, and the Compensation Committee may cause appropriate entries to be made with respect to, or legends to be placed on the certificates for, such Common Shares or other securities to reflect such restrictions. The Company shall not be required to deliver any Common Shares or other securities covered by an Award unless and until the requirements of any federal or state securities or other laws, rules or regulations (including the rules of any securities exchange) as may be determined by the Company to be applicable are satisfied. Prohibition on Option and SAR Repricing Except as provided in Section 4(c) of the Plan, the Compensation Committee may not, without prior approval of the Company’s shareholders and applicable stock Section 409A of the
Acceleration of Vesting or Exercisability No Award Agreement will accelerate the exercisability of any Award or the lapse of restrictions relating to any Award in connection with a change-in-control event, unless such acceleration occurs at or upon the consummation of such change-in-control event. Amendment and Termination Amendments to the Plan and Awards The Board of Directors may from time to time amend, suspend or terminate the Plan, and the Compensation Committee may amend the terms of any previously granted Award, provided that no amendment to the terms of any previously granted Award may (except as expressly provided in the Plan) materially and adversely alter or impair the terms or conditions of the Award previously granted to a Participant under this Plan without the written consent of the Participant or holder thereof. Any amendment is subject to compliance with all applicable laws, rules, regulations and policies of any applicable governmental entity or securities exchange. The Board of Directors may amend, suspend, terminate or discontinue the Plan, and the Compensation Committee may amend or alter any previously granted Award, as applicable, without obtaining the approval of shareholders of the Company in order to:
Prior approval of the shareholders of the Company is required for any amendment to the Plan or an Award that would:
Corporate Transactions
In the event of
Correction of Defects, Omissions and Inconsistencies The Compensation Committee may, without prior approval of the shareholders of the Company, correct any defect, supply any omission or reconcile any inconsistency in the Plan or in any Award or Award Agreement. Clawback or Recoupment All Awards under the Term The Plan will terminate on the earlier of (i) February 9, 2032, or (ii) the tenth anniversary of the date the Plan is approved by the shareholders of the Company, or any earlier date of discontinuation or termination established pursuant to Section 7(a) of the Plan. Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award granted before that time may extend beyond such dates, and the authority of the Compensation Committee provided for hereunder with respect to the Plan and any Awards, and the authority of the Board of Directors to amend the Plan, will extend beyond the termination of the Plan.
A copy of the
The foregoing summary of the
Resolution for Stockholder Approval of
Accordingly, the Company is asking our stockholders to indicate their support for “RESOLVED, that the Company’s stockholders hereby ratify and approve the
THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE “FOR” THIS PROPOSAL TO RATIFY AND APPROVE THE __________
PROPOSAL NUMBER FOUR:
NON-BINDING VOTE TO APPROVE EXECUTIVE COMPENSATION
In accordance with the requirements of Section 14A of the Exchange Act (which was added by the Dodd-Frank Wall Street Reform and Consumer Protection Act) and the related rules of the SEC, we are providing the Company’s stockholders with the opportunity to vote on a non-binding advisory resolution to approve the compensation of the Company’s Named Executive Officers as described in this Proxy Statement in accordance with the SEC’s compensation disclosure rules. This Proposal, commonly known as a “say-on-pay” proposal, gives our stockholders the opportunity to express their views on our Named Executive Officers’ compensation as a whole. This vote is not intended to address any specific item of compensation or any specific Named Executive Officer, but rather the overall compensation of all of our Named Executive Officers and the philosophy, policies and practices described in this Proxy Statement.
Our Board of Directors has determined to hold such votes on an annual basis until the next vote on the frequency of say-on-pay votes. Accordingly, the next say-on-pay
The say-on-pay vote is advisory and, therefore, not binding on the Company, the Compensation Committee or our Board of Directors. The say-on-pay vote will, however, provide information to us regarding investor sentiment about our executive compensation philosophy, policies and practices, which the Compensation Committee will be able to consider when determining executive compensation for the remainder of the current fiscal year and beyond. Our Board of Directors and our Compensation Committee value the opinions of our stockholders and to the extent there is any significant vote against the Named Executive Officer compensation as disclosed in this Proxy Statement, we may communicate directly with stockholders to better understand the concerns that influenced the vote, but in all events we will consider our stockholders’ concerns and will share them with the Compensation Committee which will evaluate whether any actions are necessary to address those concerns.
The key points of our executive compensation program are set forth in the “Executive Compensation” section of this Proxy Statement.
Stockholder Approval of Say-on-Pay Resolution
We believe that the information provided above and within the Executive Compensation section of this Proxy Statement demonstrates that our executive compensation program was designed appropriately and is working to ensure management’s interests are aligned with our stockholders’ interests to support long-term value creation. Accordingly, the Company is asking our stockholders to indicate their support for our Named Executive Officer compensation as described in this Proxy Statement by voting “FOR” the following resolution at the Annual Meeting:
“RESOLVED, that the Company’s stockholders hereby approve, on an advisory basis, the compensation of the Named Executive Officers as disclosed in the Company’s Proxy Statement for this Annual Meeting of Stockholders.”
Adoption of this resolution will require the affirmative vote of a majority of the shares present or represented by proxy at the Annual Meeting and entitled to vote on the matter. Abstentions will have the same effect as votes against this Proposal. Brokers and other nominee holders do not have discretion to vote uninstructed shares with respect to this Proposal. Accordingly, if brokers or other nominee holders do not receive voting instructions from beneficial owners of the shares, they will not be able to vote the shares and broker non-votes may occur with respect to this Proposal. However, broker non-votes will not affect the outcome of the voting on this Proposal because it requires the affirmative vote of a majority of the shares present or represented by proxy at the Annual Meeting (as opposed to a majority of the shares outstanding).
THE BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS THAT YOU VOTE “FOR” THE APPROVAL, ON A NON-BINDING ADVISORY BASIS, OF THE COMPENSATION OF OUR NAMED EXECUTIVE OFFICERS. __________
FUTURE STOCKHOLDER PROPOSALS Stockholders who intend to submit a proposal for the annual meeting of stockholders to be held in
A stockholder that wishes to present a proposal at the next annual meeting of stockholders to be held in
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Exchange Act. We file reports, proxy statements and other information with the SEC. You may read and copy these reports, proxy statements and other information at the SEC’s Public Reference Section, located at One Station Place, 100 F Street, NE, Washington, DC, U.S.A., 20549. You may obtain information on the operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains an Internet website, located at www.sec.gov, that contains reports, proxy statements and other information regarding the Company.
By Order of the Board of Directors of Body and Mind Inc.
/s/ Michael Mills
Michael Mills
Dated: __________
Schedule A
Body and Mind Inc.
2022 STOCK AND INCENTIVE PLAN Section 1. Purpose The purpose of the Plan is to promote the interests of the Company and its shareholders by aiding the Company in attracting and retaining employees, officers, consultants, advisors and Non-Employee Directors capable of assuring the future success of the Company, to offer such persons incentives to put forth maximum efforts for the success of the Company’s business and to compensate such persons through various stock and cash‑based arrangements and provide them with opportunities for stock ownership in the Company, thereby aligning the interests of such persons with the Company’s shareholders. This Plan supersedes, replaces and is in substitution for the Company’s “2012 Incentive Stock Option Plan”, dated as originally ratified by the Board of Directors of the Company on October 25, 2012, as was ratified by the shareholders of the Company at the Company’s annual meeting held on December 10, 2012. Any securities issued under the 2012 Incentive Stock Option Plan that are outstanding as of the date hereof are covered by this Plan. The maximum aggregate number of shares of the Company which may be issued pursuant to all awards under this Plan is set forth in Section 4(a) hereof. Section 2. Definitions
Section 3. Administration
Section 4. Common Shares Available for Awards
Section 5. Eligibility Any Eligible Person shall be eligible to be designated as a Participant. In determining which Eligible Persons shall receive an Award and the terms of any Award, the Committee may take into account the nature of the services rendered by the respective Eligible Persons, their present and potential contributions to the success of the Company and/or such other factors as the Committee, in its discretion, shall deem relevant. Notwithstanding the foregoing, an Incentive Stock Option may only be granted to full‑time or part‑time employees (which term, as used herein, includes, without limitation, officers and Directors who are also employees), and an Incentive Stock Option shall not be granted to an employee of an Affiliate unless such Affiliate is also a “subsidiary corporation” of the Company within the meaning of Section 424(f) of the Code or any successor provision. Section 6. Awards
Section 7. Amendment and Termination; Corrections
Section 8. Income Tax Withholding In order to comply with all applicable federal, state, local or foreign income tax laws or regulations, the Company may take such action as it deems appropriate to ensure that all applicable federal, state, local or foreign payroll, withholding, income or other taxes, which are the sole and absolute responsibility of a Participant, are withheld or collected from such Participant. Without limiting the foregoing, in order to assist a Participant in paying all or a portion of the applicable taxes to be withheld or collected upon exercise or receipt of (or the lapse of restrictions relating to) an Award, the Committee, in its discretion and subject to such additional terms and conditions as it may adopt, may permit the Participant to satisfy such tax obligation by (a) electing to have the Company withhold a portion of the Common Shares otherwise to be delivered upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the amount of such taxes (subject to any applicable limitations under ASC Topic 718 to avoid adverse accounting treatment) or (b) delivering to the Company Common Shares other than Common Shares issuable upon exercise or receipt of (or the lapse of restrictions relating to) such Award with a Fair Market Value equal to the amount of such taxes. The election, if any, must be made on or before the date that the amount of tax to be withheld is determined.
Section 9. U.S. Securities Laws Neither the Awards nor the securities which may be acquired pursuant to the exercise of the Awards have been registered under the Securities Act or under any securities law of any state of the United States of America and are considered “restricted securities” (as such term is defined in Rule 144(a)(3) under the Securities Act) and any Common Shares shall be affixed with an applicable restrictive legend as set forth in the Award Agreement unless the Plan and the Common Shares underlying the Awards have been registered under the Securities Act on a Form S-8, or other applicable registration statement. At this time the Awards may not be offered or sold, directly or indirectly, in the United States except pursuant to registration under the Securities Act and the securities laws of all applicable states or available exemptions therefrom, however, the Company intends to register the Plan and the Common Shares underlying the Awards under the Securities Act on Form S-8, failing which could result in such U.S. Award Holder not being able to dispose of any Common Shares issued on exercise of Awards for a considerable length of time. Each U.S. Award Holder or anyone who becomes a U.S. Award Holder, who is granted an Award in the United States, who is a resident of the United States or who is otherwise subject to the Securities Act or the securities laws of any state of the United States will be required to complete an Award Agreement which sets out the applicable United States restrictions. Section 10. Furnishing of Financial Information to U.S. Participants The Company shall furnish summary financial information (audited or unaudited) of the Company’s financial condition and results of operations, consistent with the requirements of applicable laws, at least annually to each U.S. Participant during the period such Participant has one or more Awards outstanding, and in the case of an individual who acquired Common Shares pursuant to the Plan, during the period such Participant owns such Common Shares; provided, however, the Company shall not be required to provide such information if the issuance is limited to key persons whose duties in connection with the Company assure their access to equivalent information. Section 11. General Provisions
Section 12. Clawback or Recoupment All Awards under this Plan shall be subject to recovery or other penalties pursuant to (i) any Company clawback policy, as may be adopted or amended from time to time, or (ii) any applicable law, rule or regulation or applicable stock exchange rule. Section 13. Effective Date of the Plan The Plan was approved by the Board on February 9, 2022 (the “Effective Date”). Section 14. Term of the Plan No Award shall be granted under the Plan, and the Plan shall terminate, on the earlier of (i) the tenth anniversary of the Effective Date, or (ii) the tenth anniversary of the date the Plan is approved by the shareholders of the Company, or any earlier date of discontinuation or termination established pursuant to Section 7(a) of the Plan. Unless otherwise expressly provided in the Plan or in an applicable Award Agreement, any Award theretofore granted may extend beyond such dates, and the authority of the Committee provided for hereunder with respect to the Plan and any Awards, and the authority of the Board to amend the Plan, shall extend beyond the termination of the Plan.
Schedule B
Body and Mind Inc.
AUDIT COMMITTEE CHARTER
This Charter establishes the composition, the authority, roles and responsibilities and the general objectives of the Company’s audit committee, or its Board of Directors (the “Board”) in lieu thereof (the “Audit Committee”). The roles and responsibilities described in this Charter must at all times be exercised in compliance with the laws and regulations governing the Company and any subsidiaries.
Composition
Meetings
Roles and Responsibilities
The roles and responsibilities of the Audit Committee include the following:
External Auditor
The Audit Committee will:
Financial Statements and Financial Information
The Audit Committee will:
Risk Management, Internal Controls and Information Systems
The Audit Committee will:
Complaints
The Audit Committee will:
Authority
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