SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C INFORMATION
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
Check the appropriate box:
[ ] Preliminary Information Statement
[ ] Confidential, for Use of the Commission Only (as permitted by Rule
14c-5(d)(2))
[X] Definitive Information Statement
GWIN, INC.
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(Name of Registrant as Specified In Its Charter)
Payment of Filing Fee (Check the appropriate box)
[X] No fee required.
[ ] Fee computed on table below per Exchange Act Rules 14c-5(g)
and 0-11.
1) Title of each class of securities to which transaction
applies:
2) Aggregate number of securities to which transaction applies:
3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined):
4) Proposed maximum aggregate value of transaction: 5) Total fee
paid:
[ ] Fee paid previously with preliminary materials.
[ ] Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
1) Amount Previously Paid:
2) Form, Schedule or Registration
Statement No.:
3) Filing Party:
4) Date Filed:
1
INFORMATION STATEMENT
OF
GWIN, INC.
5092 SOUTH JONES BLVD.
LAS VEGAS, NEVADA 89118
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US
A PROXY.
This Information Statement is first being furnished on or about July
28, 2003 to the holders of record as of the close of business on July 25, 2003
of the common stock of GWIN, Inc. ("GWIN").
GWIN's Board of Directors has approved, and a total of 9 stockholders
owning 20,559,731 shares of the 40,271,859 shares of common stock outstanding as
of April 30, 2003, have consented in writing to the action described below. Such
approval and consent constitute the approval and consent of a majority of the
total number of shares of outstanding common stock and are sufficient under the
Delaware General Corporation Law and GWIN's By-Laws to approve the action.
Accordingly, the action will not be submitted to the other stockholders of GWIN
for a vote, and this Information Statement is being furnished to stockholders to
provide them with certain information concerning the action in accordance with
the requirements of the Securities Exchange Act of 1934 and the regulations
promulgated thereunder, including Regulation 14C, and Section 228(e) of the
Delaware General Corporation Law.
ACTION BY BOARD OF DIRECTORS
AND
CONSENTING STOCKHOLDERS
GENERAL
GWIN will pay all costs associated with the distribution of this
Information Statement, including the costs of printing and mailing. GWIN will
reimburse brokerage firms and other custodians, nominees and fiduciaries for
reasonable expenses incurred by them in sending this Information Statement to
the beneficial owners of GWIN's common stock.
GWIN will only deliver one Information Statement to multiple security
holders sharing an address unless we have received contrary instructions from
one or more of the security holders. Upon written or oral request, GWIN will
promptly deliver a separate copy of this Information Statement and any future
annual reports and information statements to any security holder at a shared
address to which a single copy of this Information Statement was delivered, or
deliver a single copy of this Information Statement and any future annual
reports and information statements to any security holder or holders sharing an
address to which multiple copies are now delivered. You should direct any such
requests to the following address:
GWIN, Inc.
Attn: Douglas R. Miller
5092 South Jones Blvd.
Las Vegas, Nevada 89118
(702) 967-6000
INFORMATION ON CONSENTING STOCKHOLDERS
Pursuant to GWIN's Bylaws and the Delaware General Corporation Act, a
vote by the holders of at least a majority of GWIN's outstanding capital stock
is required to effect the action described herein. GWIN's Certificate of
Incorporation does not authorize cumulative voting. As of the record date, GWIN
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had 40,271,859 voting shares of common stock issued and outstanding of which
20,135,930 shares are required to pass any stockholder resolutions. The
consenting stockholders, who consist of 9 current stockholders of GWIN, are
collectively the record and beneficial owners of 20,559,731 shares, which
represents 50.5% of the issued and outstanding shares of GWIN's common stock.
Pursuant to Section 228 (a) of the Delaware General Corporation Act, the
consenting stockholders voted in favor of the actions described herein in a
written consent, dated June 10, 2003, attached hereto as Exhibit A. No
consideration was paid for the consent. The consenting stockholders' names,
affiliations with GWIN, and their beneficial holdings are as follows:
- ---------------------------- ------------------------------ ---------------------------- --------------------
NAME AFFILIATION SHARES BENEFICIALLY HELD PERCENTAGE
- ---------------------------- ------------------------------ ---------------------------- --------------------
Wayne Allyn Root Chairman of the Board and 4,403,473 10.90%
Chief Executive Officer
- ---------------------------- ------------------------------ ---------------------------- --------------------
President, Chief Operating
Douglas R. Miller Officer, Secretary and
Director 3,549,135 8.81%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Timothy J. Keating Director 4,542,723 11.20%
- ---------------------------- ------------------------------ ---------------------------- --------------------
John T. Manner Director 1,859,308 4.61%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Clapacs Family Trust Stock Holder 527,702 1.31%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Trilium Holdings Ltd. Stock Holder 3,513,809 8.72%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Newmarket-Simon Hayes Director 100,000 0.20%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Luca Toscani Stock Holder 1,665,326 4.13%
- ---------------------------- ------------------------------ ---------------------------- --------------------
Michele Toscani Stock Holder 398,255 0.98%
- ---------------------------- ------------------------------ ---------------------------- --------------------
TOTAL 20,559,731 50.86%
- ---------------------------- ------------------------------ ---------------------------- --------------------
INTEREST OF CERTAIN PERSONS IN OR OPPOSITION TO MATTERS TO BE ACTED UPON
None
PROPOSALS BY SECURITY HOLDERS
None
DISSENTERS' RIGH OF APPRAISAL
None
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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
The following table sets forth, as of April 30, 2003, certain
information regarding the ownership of GWIN's capital stock by each director and
executive officer of GWIN, each person who is known to GWIN to be a beneficial
owner of more than 5% of any class of GWIN's voting stock, and by all officers
and directors of GWIN as a group. Unless otherwise indicated below, to our
knowledge, all persons listed below have sole voting and investing power with
respect to their shares of capital stock, except to the extent authority is
shared by spouses under applicable community property laws.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and generally includes voting or investment
power with respect to securities. Shares of common stock subject to options,
warrants or convertible securities exercisable or convertible within 60 days of
April 30, 2003, are deemed outstanding for computing the percentage of the
person or entity holding such options, warrants or convertible securities but
are not deemed outstanding for computing the percentage of any other person, and
is based on 68,462,187 shares issued and outstanding on a fully diluted basis,
as of April 30, 2003.
- -------------------------- ----------------------------- -------------------------- -------------------------
Name and Address Amount and Nature Percent
Title of Of Of Beneficial Ownership Of
Class Beneficial Owners (1) Class
- -------------------------- ----------------------------- -------------------------- -------------------------
Common and 5% Wayne Allyn Root (2) 6,860,024 10.02%
Convertible Debt
- -------------------------- ----------------------------- -------------------------- -------------------------
Common and 5% Douglas R. Miller (3) 3,689,019 5.39%
Convertible Debt
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Common and Series C Timothy J. Keating (4) 8,484,106 12.39%
Preferred
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Common and 5% John T.Manner (5) 2,265,773 3.31%
Convertible Debt
- -------------------------- ----------------------------- -------------------------- -------------------------
Common and 5% Simon Hayes (6) Newmarket 13,830,769 20.20%
Convertible Debt Investment plc.
- -------------------------- ----------------------------- -------------------------- -------------------------
- -------------------------- ----------------------------- -------------------------- -------------------------
Directors and executive 35,129,691 51.31%
officers as a group (5
persons)
- -------------------------- ----------------------------- -------------------------- -------------------------
- -------------------------- ----------------------------- -------------------------- -------------------------
- -------------------------- ----------------------------- -------------------------- -------------------------
Common Trilium Holdings Ltd. (7) 4,180,476 6.10%
- -------------------------- ----------------------------- -------------------------- -------------------------
Common and 13% Laurus Master Fund, Ltd. (8) 2,142,857 3.10%
Convertible Note
- -------------------------- ----------------------------- -------------------------- -------------------------
- ----------------
(1) Unless otherwise noted, the address for each of the named beneficial owners
is 5092 South Jones Blvd., Las Vegas, Nevada 89188.
(2) Amount also includes Mr. Root's stock options to acquire 106,551 shares of
common stock at an exercise price of $1.41, and to acquire 350,000 shares of
common stock at an exercise price of $0.50 per share, stock options and warrants
to purchase 1,900,000 shares at an exercise price of $0.50, 106,552 shares of
common stock owned by Mr. Root's minor children, 100,000 shares of common stock
to be issued upon conversion of a 5% Convertible Debenture and warrants to
purchase 100,000 shares at an exercise price of $0.50 related to that Debenture.
(3) The shares are held in the name of Kerlee Inter Vivos Trust for which Mr.
Miller is a beneficiary. Amount also includes Mr. Miller's stock options to
acquire 106,551 shares of common stock at an exercise price of $1.41, 33,333
shares of common stock to be issued upon conversion of a 5% Convertible
Debenture held by Mr. Miller's wife and warrants to purchase 33,333 shares of
common stock at an exercise price of $0.50 related to that Debenture.
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(4) Amount also includes Mr. Keating's Warrants to purchase 1,208,600 shares of
common stock at an exercise price of $1.00, warrants to purchase 400,000 shares
of common stock at an exercise price of $0.50, 1,690,430 shares of common stock
held by Former Partners through an affiliated entity and related warrants to
purchase 338,067 shares of common stock at an exercise price of $1.00.
(5) Amount also includes Mr. Manner's stock options to acquire 186,465 shares of
common stock at an exercise price of $1.41, 220,000 shares of common stock to be
issued upon conversion of a 5% Convertible debenture and warrants to purchase
220,000 shares of common stock at an exercise price of $0.50 related to that
Debenture.
(6) Represents 9,230,308 shares of common stock underlying a 5% Convertible
Debenture, maturing in August 2004, and 3,000,000 shares of common stock
underlying a warrant, exerciseable at $0.13 expiring on August 31, 2005, and
options to purchase 1,500,000 common shares at an exercise price of $0.50. The
address for Newmarket Investments, plc. is Queensberry House, 129 High Street,
Newmarket, Suffolk, CB8 9WP, UK.
(7) Represents 3,333,333 shares of common stock and an associated warrant to
purchase 666,667 shares of common stock at an exercise price of $1.00. The
address for Trilium Holdings is Charlotte House, Charlotte Street, P.O. Box
9204, Nassau, Bahamas.
(8) Represents 1,875,000 shares of common stock underlying a 16% Convertible
Note and 250,000 shares of common stock issuable upon exercise of a warrant
issued in connection with the 16% Convertible Note. The address for Laurus is
P.O. Box 1234 Queensgate House, South Church Street, Grand Cayman, Cayman
Islands.
NOTICE TO STOCKHOLDERS OF ACTION APPROVED BY CONSENTING STOCKHOLDERS
The following action was taken based upon the unanimous recommendation
of GWIN's Board of Directors (the "Board") and the written consent of the
consenting stockholders:
ACTION 1
AMENDMENT TO THE ARTICLES OF INCORPORATION
TO INCREASE THE AUTHORIZED COMMON STOCK
The Board and the consenting stockholders unanimously adopted and
approved an amendment to GWIN's Certificate of Incorporation to increase the
number of shares of authorized common stock from 50,000,000 to 100,000,000. Such
amendment is referred to as the "Authorized Shares Amendment". The text of the
Authorized Shares Amendment is attached hereto as Exhibit A.
Currently, GWIN has 50,000,000 shares of common stock authorized, of
which 40,271,859 shares are issued and outstanding as of the record date, and
5,000,000 shares of preferred stock authorized, of which 0 shares of Series B
Preferred Stock are issued and outstanding and 0 shares of Series C Preferred
Stock are issued and outstanding.
The Authorized Shares Amendment will be implemented by filing the
Certificate of Amendment of Certificate of Incorporation with the Secretary of
State of Delaware, a form of which is attached hereto as Exhibit B. Under
federal securities laws, GWIN cannot file the Certificate of Amendment until at
least 20 days after the mailing of this Information Statement. Once GWIN files
the Certificate of Amendment, GWIN will have 59,728,141 shares of authorized but
unissued common stock available for issuance.
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Our board of directors believes that it is advisable and in the best
interests of the company to have available additional authorized but unissued
shares of common stock in an amount adequate to provide for our future needs.
The unissued shares of common stock will be available for issuance from time to
time as may be deemed advisable or required for various purposes, including the
issuance of shares in connection with financing or acquisition transactions and
the issuance or reservation of common stock for employee stock options. GWIN's
Board would be able to authorize the issuance of shares for these transactions
without the necessity, and related costs and delays, of either calling a special
stockholders' meeting or of waiting for the regularly scheduled annual meeting
of stockholders in order to increase the authorized capital. If, in a particular
transaction, stockholder approval were required by law or any stock exchanges or
markets or were otherwise deemed advisable by the Board, then the matter would
be referred to the stockholders for their approval notwithstanding that GWIN may
have the requisite number of voting shares to consummate the transaction. Except
for the outstanding convertible preferred stock, stock options and warrants, we
have no present commitments for the issuance or use of the proposed additional
shares of common stock. However, our board of directors believes that if an
increase in the authorized number of shares of common stock were to be postponed
until a specific need arose, the delay and expense incident to obtaining the
approval of our stockholders at that time could significantly impair our ability
to meet financing requirements or other objectives.
The Authorized Shares Amendment is not intended to have any
anti-takeover effect and is not part of any series of anti-takeover measures
contained in any debt instruments or the Certificate of Incorporation or the
Bylaws of GWIN in effect on the date of this Information Statement. However,
GWIN stockholders should note that the availability of additional authorized and
unissued shares of common stock could make any attempt to gain control of GWIN
or the Board more difficult or time consuming and that the availability of
additional authorized and unissued shares might make it more difficult to remove
management. Although the Board currently has no intention of doing so, shares of
common stock could be issued by the Board to dilute the percentage of common
stock owned by a significant stockholder and increase the cost of, or the number
of, voting shares necessary to acquire control of the Board or to meet the
voting requirements imposed by Delaware law with respect to a merger or other
business combination involving GWIN. GWIN is not aware of any proposed attempt
to take over the company or of any attempt to acquire a large block of GWIN's
common stock. GWIN has no present intention to use the increased authorized
common stock for anti-takeover purposes.
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EXHIBIT A
WRITTEN CONSENT
OF THE
BOARD OF DIRECTORS
AND MAJORITY STOCKHOLDERS
OF
GWIN, INC.
(A DELAWARE CORPORATION)
TAKEN WITHOUT A MEETING
Pursuant to the authority set forth in Sections 141 and 228 of the
Delaware General Corporation Law and the Bylaws of GWIN, Inc. (the
"Corporation"), the undersigned, constituting the entire Board of Directors of
the Corporation and a majority of the stockholders of the Corporation, without
the formality of convening a meeting, do hereby consent to and adopt the
following resolutions, effective as of this 10th day of June, 2003:
AMENDMENT TO CERTIFICATE OF INCORPORATION (INCREASE IN AUTHORIZED SHARES OF
COMMON STOCK)
WHEREAS, it is proposed that this Corporation amend its Certificate of
Incorporation to increase the number of authorized shares of its common stock
from 50,000,000 to 100,000,000 so that unissued shares of common stock will be
available for issuance from time to time as may be deemed advisable or required
for various purposes, including the issuance of shares in connection with
financing or acquisition transactions and the issuance or reservation of common
stock for employee stock options.
NOW, THEREFORE, BE IT RESOLVED, that any executive officer of this
Corporation, acting alone, be and hereby is authorized, empowered and directed,
for an on behalf of this Corporation, to execute and file with the Delaware
Secretary of State a Certificate of Amendment to Certificate of Incorporation
increasing the number of authorized shares of its common stock from 50,000,000
to 100,000,000;
RESOLVED, that any executive officer of this Corporation, acting alone,
be and hereby is authorized, empowered and directed, for an on behalf of this
Corporation, to take such further action and execute and deliver any additional
agreements, instruments, certificates, filings or other documents and to take
any additional actions as any such officer deems necessary or appropriate to
effectuate the purposes of the foregoing resolution;
RESOLVED, that any action or actions heretofore taken by any executive
officer of this Corporation on behalf of this Corporation in connection with the
foregoing resolutions are hereby ratified and approved as the actions of this
Corporation.
[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]
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This Written Consent shall be added to the corporate records of this
Corporation and made a part thereof, and the resolutions set forth above shall
have the same force and effect as if adopted at meetings duly noticed and held
by the Board of Directors and the stockholders of this Corporation. This Written
Consent may be executed in counterparts and with facsimile signatures with the
effect as if all parties hereto had executed the same document. All counterparts
shall be construed together and shall constitute a single Written Consent.
DIRECTORS:
/s/ Wayne Allyn Root
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Wayne Allyn Root
/s/ Douglas R. Miller
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Douglas R. Miller
/s/ Timothy J. Keating
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Timothy J. Keating
/s/ John T. Manner
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John T. Manner
/s/ Simon Hayes
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Simon Hayes
STOCKHOLDERS:
/s/ Wayne Allen Root
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Wayne Allyn Root
Shares: 4,403,473 shares
/s/ Douglas R. Miller
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Douglas R. Miller
Shares: 3,549,135 shares
/s/ Timothy J. Keating
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Timothy J. Keating
Shares: 4,542,723 shares
/s/ John T. Manner
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John T. Manner
Shares: 1,859,308 shares
/s/ Simon Hayes
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Simon Hayes
Shares: 100,000 shares
/s/ Deidre M. McCoy
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Trilium Holdings, Ltd.
Deidre M. McCoy, Director
Shares: 3,513,809 shares
/s/ Luca Toscani
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Luca Toscani
Shares: 1,665,326 shares
/s/ Michele Toscani
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Michele Toscani
Shares: 398,255 shares
/s/ Alan Clapacs
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Clapacs Family Trust
Shares: 527,702 shares