As filed with the Securities and Exchange Commission on July 13,
2022
Registration No. 333-258018
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Post-Effective
Amendment No. 2
to
FORM S-1 on FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PLAYSTUDIOS, Inc.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware |
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7372 |
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88-1802794 |
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial Classification Code
Number) |
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(I.R.S. Employer
Identification Number)
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10150 Covington Cross Drive
Las Vegas, Nevada 89144
Tel: (725) 877-7000
(Address, Including Zip Code, and Telephone Number, Including Area
Code, of Registrant's Principal Executive Offices)
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Andrew Pascal |
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Chief Executive Officer |
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PLAYSTUDIOS, Inc. |
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10150 Covington Cross Drive |
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Las Vegas, Nevada 89144 |
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(725) 877-7000 |
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(Name, Address, Including Zip Code, and Telephone Number, Including
Area Code, of Agent for Service)
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Copies to: |
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Copies to: |
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Joel Agena |
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Rachel Paris |
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General Counsel |
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DLA Piper LLP (US) |
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PLAYSTUDIOS, Inc. |
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2000 University Avenue |
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10150 Covington Cross Drive |
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East Palo Alto, CA 94303 |
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Las Vegas, Nevada 89144 |
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(650) 833-2234 |
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(725) 877-7000 |
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the effective date of this
Registration Statement.
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please
check the following box: ☐
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933,
other than securities offered only in connection with dividend or
interest reinvestment plans,
check the following box: ☒
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, check
the following box and list the Securities Act registration
statement number of the earlier effective registration statement
for the same offering: ☐
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier
effective registration statement for the same offering:
☐
If this Form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that shall
become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box:
☐
If this Form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the
following box: ☐
Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated filer, a
smaller reporting company, or an emerging growth company. See the
definitions of “large accelerated filer,” “accelerated filer,”
“smaller reporting company” and “emerging growth company” in
Rule 12b-2 of the Exchange Act.
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Large accelerated filer |
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Accelerated filer |
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Non-accelerated filer |
☐ |
Smaller reporting company |
☐ |
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Emerging growth company |
☒ |
If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period
for complying with any new or revised financial accounting
standards provided pursuant to Section 7(a)(2)(B) of the
Securities Act. ☐
The registrant hereby amends this registration statement on such
date or dates as may be necessary to delay its effective date until
the registrant shall file a further amendment which specifically
states that this registration statement shall thereafter become
effective in accordance with Section 8(a) of the Securities Act of
1933 or until this registration statement shall become effective on
such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
On July 19, 2021, PLAYSTUDIOS, Inc. (the “Company”) filed a
registration statement on Form S-1 (File No. 333-258018) with the
Securities and Exchange Commission (the “SEC”), which was declared
effective by the SEC on July 30, 2021, and which was amended by the
Post-Effective Amendment No. 1 to Form S-1 which was declared
effective on March 23, 2022. The registration statement covered (a)
(i) up to 7,174,964 shares of the Company’s Class A common stock,
par value $0.0001 per share (“Class A common stock”), that were
issuable upon exercise of the warrants originally issued in the
initial public offering of Acies Acquisition Corp. (the “Public
Warrants”), of which 1,792,463 Public Warrants were subsequently
tendered to the Company for a cash price of $1.00 per Public
Warrant in connection with a tender offer launched by the Company
on April 1, 2022 which expired at midnight Eastern time at the end
of the day on May 13, 2022, and (ii) up to 3,821,667 shares of
Company's Class A common stock that were issuable upon exercise of
the warrants originally issued in a private placement in connection
with the initial public offering of Acies Acquisition Corp. (the
“Private Placement Warrants”), both at an exercise price of $11.50
per share of Class A common stock, and (b) the offer and sale, from
time to time, by the selling securityholders named in the
registration statement or their permitted transferees of up to
107,495,199 shares of common stock, of which approximately 12
million shares of Class A common stock were subsequently sold. The
shares of Class A common stock registered included up to 10,693,624
shares of Class A common stock issuable as Earnout Shares (as
defined herein) and 1,444,962 shares of Class A common stock
issuable upon the exercise of 1,444,962 options to purchase shares
of Class A common stock (the “Class A Option Shares”) and 3,821,667
Private Placement Warrants, and also included 21,348,205 shares of
Class A common stock issuable upon conversion of: (i) 16,130,300
shares of our Class B common stock, par value $0.0001 per share
(the “Class B common stock” and, together with the Class A common
stock, our “common stock”), issued to Andrew S. Pascal, our
Chairman of the Board and Chief Executive Officer, (ii) 3,026,112
shares of Class B common stock issuable as Earnout Shares and (iii)
2,191,793 shares of Class B common stock issuable upon the exercise
of 2,191,793 options to purchase shares of Class B common stock
(the “Class B Option Shares”, and together with the Class A Option
Shares, the “Option Shares”).
This Post-Effective Amendment No. 2 to Form S-1 on Form S-3 (the
“Post-Effective Amendment No. 2”) is being filed by us to convert
the initial registration statement into a registration statement on
Form S-3 because we are eligible to use Form S-3. This
Post-Effective Amendment No. 2 contains an updated prospectus
related to the offering and sale of the shares of outstanding Class
A common stock covered by the registration statement. This
Post-Effective Amendment No. 2 amends and restates the information
contained in the registration statement under the sections
contained herein.
For the purposes of this Post-Effective Amendment No. 2, references
to the “Company,” the “Registrant,” “we,” “our,” “us” and similar
terms means PLAYSTUDIOS, Inc. and its subsidiaries.
All filing fees payable in connection with the registration of the
shares of Class A common stock covered by the registration
statement were paid by the Registrant at the time of the initial
filing of the registration statement. No additional securities are
registered hereby.
The information in this preliminary prospectus is not complete and
may be changed. Neither we nor the selling securityholders may sell
these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This preliminary
prospectus is not an offer to sell these securities and is not
soliciting an offer to buy these securities in any jurisdiction
where the offer or sale is not permitted.
SUBJECT TO COMPLETION — DATED JULY 13, 2022
PRELIMINARY PROSPECTUS
PLAYSTUDIOS, Inc.
Up to 95,237,463 Shares of Class A Common Stock
Up to 9,204,168 Shares of Class A Common Stock Issuable Upon
Exercise of Warrants
Up to 3,821,667 Warrants
This prospectus relates to the issuance by us of up to an aggregate
of 9,204,168 shares of our Class A common stock, $0.0001 par value
per share (the “Class A common stock”), which consists of (i) up to
5,382,501 shares of our Class A common stock that are issuable upon
the exercise of 5,382,501 warrants (the “Public Warrants”)
originally issued in the initial public offering of Acies
Acquisition Corp. (“Acies”) by the holders thereof and (ii) up to
3,821,667 shares of our Class A common stock that are issuable upon
the exercise of 3,821,667 warrants originally issued in a private
placement in connection with the initial public offering of Acies
(the “Private Placement Warrants”, and together with the Public
Warrants, the “Warrants”). We will receive the proceeds from any
exercise of any Warrants for cash.
This prospectus also relates to the offer and sale from time to
time by the selling Securityholders named in this prospectus (the
“Selling Securityholders”) of (i) up to 95,237,463 shares of our
Class A common stock, including up to 10,693,624 shares of Class A
common stock issuable as Earnout Shares (as defined herein) and
1,444,962 shares of our Class A common stock issuable upon the
exercise of 1,444,962 options to purchase shares of our Class A
common stock (the “Class A Option Shares”) and (ii) up to 3,821,667
Private Placement Warrants. The shares of our Class A common stock
being registered include 21,348,205 shares of Class A common stock
issuable upon conversion of: (i) 16,130,300 shares of our Class B
common stock, par value $0.0001 per share (the “Class B common
stock” and, together with the Class A common stock, our “common
stock”), issued to Andrew S. Pascal, our Chairman of the Board and
Chief Executive Officer, or certain affiliates of Mr. Pascal, (ii)
3,026,112 shares of Class B common stock issuable as Earnout
Shares, and (iii) 2,191,793 shares of Class B common stock issuable
upon the exercise of 2,191,793 options to purchase shares of Class
B common stock (the “Class B Option Shares”, and together with the
Class A Option Shares, the “Option Shares”). We will not receive
any proceeds from the sale of shares of common stock or Private
Placement Warrants by the Selling Securityholders pursuant to this
prospectus.
The rights of the holders of Class A common stock and Class B
common stock are identical, except with respect to voting and
conversion. Each share of Class A common stock is entitled to one
vote per share. Each share of Class B common stock is entitled to
twenty votes per share and is convertible into one share of Class A
common stock. Outstanding shares of Class B common stock, all of
which are held by Mr. Pascal and certain of his affiliates,
represent approximately 74.5% of the voting power of our
outstanding capital stock as of July 12, 2022.
We are registering the securities for resale pursuant to the
Selling Securityholders’ registration rights under certain
agreements between us and the Selling Securityholders. Our
registration of the securities covered by this prospectus does not
mean that the Selling Securityholders will offer or sell any of the
shares of Class A common stock or Private Placement Warrants. The
Selling Securityholders may offer, sell or distribute all or a
portion of their shares of Class A common stock or Private
Placement Warrants publicly or through private transactions at
prevailing market prices or at negotiated prices. We provide more
information about how the Selling Securityholders may sell the
shares of Class A common stock or Private Placement Warrants in the
section titled “Plan of Distribution.”
We are an “emerging growth company” as defined in Section 2(a) of
the Securities Act of 1933, as amended (the “Securities Act”), and
are subject to reduced public company reporting requirements. This
prospectus complies with the requirements that apply to an issuer
that is an emerging growth company.
Our Class A common stock is currently listed on The Nasdaq Global
Market (“Nasdaq”) under the symbol “MYPS”, and our Public Warrants
are currently listed on the Nasdaq under the symbol “MYPSW”. On
July 12, 2022, the closing price of our Class A common stock was
$3.99 and the closing price for our Public Warrants was
$0.77.
See the section titled “Risk Factors” beginning on page
12
of this prospectus to read about factors you should consider before
buying our securities.
Neither the United States Securities and Exchange Commission (the
“SEC”) nor any state securities commission has approved or
disapproved of these securities or determined if this prospectus is
truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is , 2022.
TABLE OF CONTENTS
This prospectus is part of a registration statement that we have
filed with the SEC pursuant to which the Selling Securityholders
named herein may, from time to time, offer and sell or otherwise
dispose of the securities covered by this prospectus. Neither we
nor the Selling Securityholders have authorized anyone to provide
any information or to make any representations other than those
contained in this prospectus or in any prospectus supplements or
free writing prospectuses we have prepared. Neither we nor the
Selling Securityholders take responsibility for, or can provide
assurance as to the reliability of, any other information that
others may give you. You should not assume that the information in
this prospectus or any applicable prospectus supplement or free
writing prospectus is accurate as of any date other than the date
of the applicable document, regardless of the time of delivery of
this prospectus or any other document or the sale of any Class A
common stock or Warrants. Since the date of this prospectus or any
prospectus supplement or free writing prospectus, or any documents
incorporated by reference herein and therein, our business,
financial condition, results of operations and prospects may have
changed. It is important for you to read and consider all
information contained in this prospectus or any prospectus
supplement or free writing prospectus, including the documents
incorporated by reference herein and therein, in making any
investment decision. You should also read and consider the
information in the documents to which we have referred you under
the sections titled “Where You Can Find More Information” and
“Incorporation of Certain Information by Reference” in this
prospectus.
We are not, and the Selling Securityholders are not, making an
offer to sell these securities in any jurisdiction where an offer
or sale is not permitted.
ABOUT THIS PROSPECTUS
On June 21, 2021 (the “Closing Date”), Acies consummated a business
combination (the “Business Combination”) with PlayStudios, Inc., a
Delaware corporation (“Old PLAYSTUDIOS”), pursuant to the Agreement
and Plan of Merger, dated as of February 1, 2021 (the “Merger
Agreement”), by and among Acies, Catalyst Merger Sub I, Inc., a
Delaware corporation and a direct wholly owned subsidiary of Acies
(“First Merger Sub”), Catalyst Merger Sub II, LLC, a Delaware
limited liability company and a direct wholly owned subsidiary of
Acies (“Second Merger Sub”), and Old PLAYSTUDIOS. In connection
with the closing of the Business Combination (the “Closing”), Old
PLAYSTUDIOS merged with First Merger Sub with Old PLAYSTUDIOS
surviving the member (the “First Merger”).
Immediately thereafter, and as part of an integrated transaction
with the First Merger,
Old PLAYSTUDIOS then merged with Second Merger Sub, with Second
Merger Sub surviving the merger. As part of the Closing,
Acies
changed its name to PLAYSTUDIOS, Inc and Second Merger Sub changed
its name to PLAYSTUDIOS US, LLC. PLAYSTUDIOS, Inc. is continuing
the existing business operations of Old PLAYSTUDIOS as a publicly
traded company.
Unless the context indicates otherwise, references in this
prospectus to the “Company,” “PLAYSTUDIOS,” “we,” “us,” “our” and
similar terms refer to PLAYSTUDIOS, Inc. (f/k/a Acies Acquisition
Corp.) and its consolidated subsidiaries. References to “Acies”
refer to our predecessor company prior to the consummation of the
Business Combination.
This prospectus is part of a registration statement that we filed
with the SEC using the “shelf” registration process. Under this
shelf registration process, the Selling Securityholders may, from
time to time, sell the securities offered by them described in this
prospectus. We will not receive any proceeds from the sale by such
Selling Securityholders of the securities offered by them described
in this prospectus. This prospectus also relates to the issuance by
us of the shares of Class A common stock issuable upon the exercise
of the Warrants. We will not receive any proceeds from the sale of
shares of Class A common stock underlying the Warrants pursuant to
this prospectus, except with respect to amounts received by us upon
the exercise of the Warrants for cash.
This prospectus contains or incorporates by reference summaries of
certain provisions contained in some of the documents described
herein, but reference is made to the
actual
documents for complete information. All of the summaries are
qualified in their entirety by the actual documents. Copies of some
of the documents referred to herein have been filed, will be filed
or will be incorporated by reference as exhibits to the
registration statement of which this prospectus is a part, and you
may obtain copies of those documents as described in the sections
titled “Where You Can Find More Information” and “Incorporation of
Certain Information by Reference.”
CAUTIONARY NOTE REGARDING FORWARD LOOKING STATEMENTS
This prospectus and any accompanying prospectus supplement and the
documents incorporated by referenced herein and therein contain
forward-looking statements within the meaning of Section 27A of the
Securities Act, and Section 21E of the Securities Exchange Act of
1934, as amended (the “Exchange Act”). We have based these
forward-looking statements on our current expectations and
projections about future events. All statements, other than
statements of present or historical fact included in this
prospectus, about our future financial performance, strategy,
expansion plans, future operations, future operating results,
estimated revenues, losses, projected costs, prospects, plans and
objectives of management are forward-looking statements. Any
statements that refer to projections, forecasts, or other
characterizations of future events or circumstances, including any
underlying assumptions, are forward-looking statements. In some
cases, you can identify forward-looking statements by terminology
such as “may,” “should,” “could,” “would,” “expect,” “plan,”
“anticipate,” “intend,” “believe,” “estimate,” “continue,” “goal,”
“project,” or the negative of such terms or other similar
expressions.
Forward-looking statements in this prospectus include, but are not
limited to, statements about:
•our
business strategy and market opportunity;
•our
future financial performance, including our expectations regarding
our revenue, cost of revenue, gross profit or gross margin,
operating expenses (including changes in sales and marketing,
research and development, and general and administrative expenses)
and profitability;
•market
acceptance of our games;
•our
ability to raise financing in the future and the global credit and
financial markets;
•factors
relating to our business, operations, financial performance, and
our subsidiaries, including:
◦changes
in the competitive and regulated industries in which we operate,
variations in operating performance across competitors, and changes
in laws and regulations affecting our business;
◦our
ability to implement business plans, forecasts and other
expectations, and identify and realize additional opportunities;
and
◦the
impact of the COVID-19 pandemic (including existing and possible
future variants);
•our
ability to maintain relationships with our platforms, such as the
Apple App Store, Google Play Store, Amazon Appstore, and
Facebook;
•the
accounting for our outstanding warrants to purchase shares of Class
A common stock;
•our
ability to develop, maintain, and improve our internal control over
financial reporting;
•our
ability to maintain, protect and enhance our intellectual property
rights;
•our
ability to successfully defend litigation brought against
us;
•our
ability to successfully close and integrate acquisitions to
contribute to our growth objectives;
•our
success in retaining or recruiting, or changes required in, our
officers, key employees or directors; and
•the
impact of the COVID-19 pandemic (including existing and possible
future variants as well as vaccinations) on our
business.
These forward-looking statements are based on our current plans,
estimates, and projections in light of information currently
available to us, and are subject to known and unknown risks,
uncertainties, and assumptions about us, including those described
under the section titled “Risk Factors” in this prospectus, that
may cause our actual results, levels of activity, performance, or
achievements to be materially different from any future results,
levels of activity, performance, or achievements expressed or
implied by such forward-looking statements. In addition, the risks
described under the section titled “Risk Factors” are not
exhaustive. New risk factors emerge from time to time, and it is
not possible to predict all such risk factors, nor can we assess
the impact of all such risk factors on our business or the extent
to which any risk factor or combination of risk factors may cause
actual results to differ materially from those contained in any
forward-looking statements. Forward-looking statements are also not
guarantees of performance. You should not put undue reliance on any
forward-looking statements, which speak only as of the date hereof.
Except as otherwise required by applicable law, we disclaim any
duty to update any forward-looking statements, all of which are
expressly qualified by the statements in this section, to reflect
events or circumstances after the date of this prospectus whether
as a result of new information, future events, or otherwise.
Additional cautionary statements or discussions of risks and
uncertainties that could affect our results or the achievement of
the expectations described in forward-looking statements may also
be contained in any accompanying prospectus
supplement.
You should read this prospectus and any accompanying prospectus
supplement, and the documents incorporated by referenced herein and
therein completely, and with the understanding that our actual
future results, levels of activity, and performance as well as
other events and circumstances may be materially different from
what we expect. We qualify all of our forward-looking statements by
these cautionary statements.
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SUMMARY |
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This summary highlights selected information appearing elsewhere or
incorporated by reference in this prospectus. Because it is a
summary, it may not contain all of the information that may be
important to you. Before making your investment decision with
respect to our securities, you should read this entire prospectus
carefully, including the information set forth under the section
titled “Risk Factors” in this prospectus, any accompanying
prospectus supplement and the documents incorporated by reference
herein and therein.
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PLAYSTUDIOS — The Power of Play
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We are a developer and publisher of free-to-play casual games for
mobile and social platforms each of which incorporate our unique
playAWARDS loyalty program. Over our ten-year history, we developed
a portfolio of free-to-play social casino games that are considered
to be among the most innovative and unique in the genre. They
include the award-winning
POP! Slots, myVEGAS Slots, my KONAMI Slots, myVEGAS
Blackjack,
MyVEGAS Bingo, MGM Slots Live
and
Tetris.
Our games are based on original content, real-world slot game
content, as well as third-party licensed brands and are
downloadable and playable for free on multiple social and
mobile-based platforms, including the Apple App Store, Google Play
Store, Amazon Appstore, and Facebook.
Each of our games is powered by our proprietary playAWARDS program
and incorporates loyalty points that are earned by players as they
engage with our games. During the year ended December 31, 2021,
these loyalty points could have been exchanged for real-world
rewards from over 95 awards partners representing more than 265
hospitality, entertainment, and leisure brands across 17 countries
and four continents. The rewards are provided by our collection of
awards partners, all of whom provide their rewards at no cost to
us, in exchange for product integration, marketing support, and
participation in our loyalty program. The program is enabled by our
playAWARDS platform which consists of a robust suite of tools that
enable our awards partners to manage their rewards in real time,
measure the value of our players’ engagement, and gain insight into
the effectiveness and value they derive from the program. Through
our self-service platform, awards partners can launch new rewards,
make changes to existing offers, and in real time see how players
are engaging with their brands. The platform tools also provide
awards partners the ability to measure the off-line value our
players generate as consumers and patrons of their real-world
establishments.
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Background
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We were originally known as Acies Acquisition Corp. On the Closing
Date, Acies consummated the Business Combination with Old
PLAYSTUDIOS, pursuant to the Merger Agreement. In connection with
the Closing, we changed our name from Acies to PLAYSTUDIOS,
Inc.
We are continuing the existing business operations of Old
PLAYSTUDIOS as a publicly traded company.
Upon the Closing, Acies’ ordinary shares, warrants and units ceased
trading, and shares of our Class A common stock and Public Warrants
began trading on the Nasdaq under the symbols “MYPS,” and “MYPSW,”
respectively.
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Corporate Information
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Acies was incorporated on August 14, 2020 as a Cayman Islands
exempted company and incorporated for the purpose of effecting a
merger, share exchange, asset acquisition, share purchase,
reorganization, or similar business combination with one or more
businesses. Acies completed its initial public offering in October
2020 (the “IPO”). On June 21, 2021, Acies consummated the Business
Combination with Old PLAYSTUDIOS pursuant to the Merger Agreement.
In connection with the Closing, we changed our name from Acies to
PLAYSTUDIOS, Inc.
Our principal executive office is located at 10150 Covington Cross
Drive, Las Vegas, Nevada 89144. Our telephone number is (725)
877-7000. Our website address is www.playstudios.com. Information
contained on our website or connected thereto does not constitute
part of, and is not incorporated by reference into, this prospectus
or the registration statement of which it forms a
part.
Additional information about us is included in documents
incorporated by reference in this prospectus. See sections titled
“Where You Can Find More Information” and “Incorporation of Certain
Information by Reference.”
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THE OFFERING |
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Issuer |
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PLAYSTUDIOS, Inc. |
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Issuance of Class A Common Stock |
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Shares of Class A Common Stock Offered by Us |
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9,204,168 shares of Class A common stock, consisting of 9,204,168
shares of Class A common stock that are issuable upon the exercise
of 9,204,168 Warrants by the holders thereof.
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Shares of Class A Common Stock Outstanding Prior to Exercise of All
Warrants |
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111,966,389 shares |
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Shares of Class A Common Stock Outstanding Assuming Exercise of All
Warrants |
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121,170,557 shares |
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Shares of Class B Common Stock Outstanding |
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16,130,300 shares (each share of our Class B common stock has
twenty (20) votes per share and is convertible at the option of the
holder to one share of Class A common stock; the outstanding shares
of Class B common stock are not included in the number of
outstanding shares of our Class A common stock).
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Exercise Price of Warrants |
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$11.50 per share, subject to adjustment as described
herein.
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Use of Proceeds |
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We will receive up to an aggregate of approximately $105.8 million
from the exercise of the Warrants, assuming the exercise in full of
all of the Warrants for cash. We intend to use the proceeds from
the exercise of the Warrants for general corporate purposes, which
may include capital expenditures, investments, and working capital.
In addition, from time to time in the past we have considered, and
we continue to consider, acquisitions and strategic transactions,
and we also may use such proceeds for such purposes. See “Use of
Proceeds.”
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Resale of Class A Common Stock and Private Placement
Warrants |
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Shares of Class A Common Stock Offered by the Selling
Securityholders |
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95,237,463 shares of Class A common stock (including up to
10,693,624 shares of Class A common stock issuable as Earnout
Shares and 3,636,755 shares of Class A common stock issuable as
Option Shares). This includes 16,130,300 outstanding shares of
Class B Common Stock, 3,026,112 Earnout Shares of Class B common
stock and 2,191,793 Class B Option Shares.
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Private Placement Warrants Offered by the Selling
Securityholders |
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3,821,667 Private Placement Warrants.
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Use of Proceeds |
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We will not receive any proceeds from the sale of shares of our
Class A common stock or Private Placement Warrants by the Selling
Securityholders.
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Market for Class A Common Stock and Warrants |
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Our Class A common stock is listed on the Nasdaq under the symbol
“MYPS,” and our Public Warrants are listed on the Nasdaq under the
symbol “MYPSW”.
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Risk Factors |
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See “Risk Factors” and other information included in this
prospectus and any risk factors described in the documents we
incorporate by reference for a discussion of factors you should
consider before investing in our securities.
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The 111,966,389 outstanding shares of our Class A common stock and
16,130,300 outstanding shares of our Class B common stock is
calculated as of July 8, 2022 and excludes:
•9,204,168
shares of our Class A common stock issuable from the exercise of
Warrants outstanding as of July 8, 2022, each with an exercise
price of $11.50 per share;
•11,973,888
Earnout Shares of our Class A common stock and 3,026,112 Earnout
Shares of our Class B common stock, in each case, reserved for
issuance upon an Earnout Triggering Event;
•11,559,424
shares of our Class A common stock and 2,191,793 shares of our
Class B common stock issuable upon the exercise of stock options
outstanding as of July 8, 2022 with a weighted average exercise
price of $0.82 per share;
•7,299,827
shares of our Class A common stock issuable upon the vesting of
restricted stock units outstanding as of July 8, 2022;
•15,272,970
shares of our common stock reserved for future issuance under our
2021 Equity Incentive Plan (the “2021 Plan”), as well as: (i) any
automatic increases in the number of shares of common stock
reserved for future issuance under our the 2021 Plan and (ii) upon
the forfeiture, termination, expiration or reacquisition of any
shares of common stock underlying outstanding stock awards granted
under the PLAYSTUDIOS, Inc. 2011 Omnibus Stock and Incentive Plan,
an equal number of shares of our common stock; and
•4,611,788
shares of Class A common stock reserved for future issuance under
our 2021 Employee Stock Purchase Plan (the “2021 ESPP”), as well as
any automatic increases in the number of shares of Class A common
stock reserved for future issuance under the 2021
ESPP.
Unless the context otherwise requires or is otherwise indicated,
the outstanding shares of Class A common stock described in this
prospectus include the 900,000 shares of our Class A common stock
held by the Sponsor that are subject to forfeiture if certain
earnout conditions are not satisfied,
as such shares are issued and outstanding as of July 8,
2022.
RISK FACTORS
An investment in our securities involves a high degree of risk.
Before investing in our securities, in addition to the risks and
uncertainties discussed under “Cautionary Note Regarding
Forward-Looking Statements”, you should carefully consider the risk
factors incorporated by reference into this prospectus in our most
recent Annual Report on Form 10-K and any subsequent Quarterly
Reports on Form 10-Q or Current Reports on Form 8-K,
and all other information contained or incorporated by reference
into this prospectus, as updated by our subsequent filings under
the Securities Exchange Act of 1934, as amended (the “Exchange
Act”),
as well as the risk factors and other information contained in any
applicable prospectus supplement and any applicable free writing
prospectus we file with the SEC. The market price of our securities
could decline if one or more of these risks or uncertainties
actually occur, causing you to lose all or part of your investment
in our securities. See sections titled “Where You Can Find More
Information” and “Incorporation of Certain Information by
Reference” elsewhere in this prospectus.
Additionally, the risks and uncertainties incorporated by reference
in this prospectus or any prospectus supplement are not the only
risks and uncertainties that we face. Additional risks and
uncertainties not presently known to us or that we currently
believe to be immaterial may become material and adversely affect
our business.
USE OF PROCEEDS
All of the Class A common stock and Warrants offered by the Selling
Securityholders pursuant to this prospectus will be sold by the
Selling Securityholders for their respective accounts. We will not
receive any of the proceeds from these sales.
We will receive up to an aggregate of approximately $105.8 million
from the exercise of the Warrants, assuming the exercise in full of
all of the Warrants for cash. We expect to use the proceeds from
the exercise of the Warrants, if any, for general corporate
purposes, which may include capital expenditures, investments and
working capital. In addition, from time to time in the past we have
considered, and we continue to consider, acquisitions and strategic
transactions, and we also may use such proceeds for such
purposes.
We will have broad discretion over the use of proceeds from the
exercise of the Warrants. There is no assurance that the holders of
the Warrants will elect to exercise any or all of such Warrants. To
the extent that the Warrants are exercised on a “cashless basis,”
the amount of cash we would receive from the exercise of the
Warrants will decrease.
DIVIDEND POLICY
We have not paid any cash dividends on our common stock to date.
The payment of cash dividends in the future will be dependent upon
our revenues and earnings, capital requirements and general
financial condition. The payment of any cash dividends will be
within the discretion of our Board of Directors at such time. In
addition, we are not currently contemplating and do not anticipate
any stock dividends in the foreseeable future as it is currently
expected that available cash resources will be utilized in
connection with our ongoing operations and development
projects.
SELLING SECURITYHOLDERS
The Selling Securityholders acquired the shares of our common stock
from us in private offerings pursuant to exemptions from
registration under Section 4(a)(2) of the Securities Act in
connection with a private placement concurrent with the IPO and in
connection with the Business Combination. Pursuant to the
Registration Rights Agreement
dated June 21, 2021 entered into in connection with the
consummation of the Business Combination (the “Registration Rights
Agreement”)
and the Subscription Agreements dated February 1, 2021 entered into
in connection with the signing of the Merger Agreement (the
“Subscription Agreements”), we agreed to file a registration
statement with the SEC for the purposes of registering for resale
the shares of our Class A common stock issued to the Selling
Securityholders pursuant to the Subscription Agreements and Merger
Agreement.
Except as set forth in the footnotes below, the following table
sets forth, based on written representations from the Selling
Securityholders, certain information as of July 8, 2022 regarding
the beneficial ownership of our Class A common stock and Warrants
by the Selling Securityholders and the shares of Class A common
stock and Warrants being offered by the Selling Securityholders.
The applicable percentage ownership of Class A common stock is
based on approximately 111,966,389 shares of Class A common stock
and 16,130,300 shares of Class B common stock outstanding as of
July 8, 2022. Information with respect to shares of Class A common
stock owned beneficially after the offering assumes the sale of all
of the shares of Class A common stock offered (including the
possible receipt of Earnout Shares and the vesting of the Sponsor
Shares which are subject to forfeiture (the “Unvested Sponsor
Shares”)) and no other purchases or sales of our Class A common
stock. The Selling Securityholders may offer and sell some, all or
none of their shares of Class A common stock.
We have determined beneficial ownership in accordance with the
rules of the SEC. Except as indicated by the footnotes below, we
believe, based on the information furnished to us, that the Selling
Securityholders have sole voting and investment power with respect
to all shares of common stock that they beneficially own, subject
to applicable community property laws.
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Shares of Class A Common Stock Beneficially Owned After the Offered
Shares of Common Stock are Sold |
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Name of Selling Securityholder |
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Shares of Class A Common Stock Beneficially Owned Prior to
Offering |
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Number of Shares of Class A Common Stock Being Offered |
|
Number |
|
Percent |
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Andrew Pascal(1)
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2,191,793 |
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2,191,793 |
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— |
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— |
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Activision Publishing, Inc.(2)
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12,677,398 |
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14,809,480 |
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— |
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— |
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A-Fund, L.P.(3)
|
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3,400,018 |
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3,940,064 |
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— |
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— |
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Alejandro Feely |
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25,000 |
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25,000 |
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— |
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— |
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Alpine Oil Company(4)
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125,000 |
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125,000 |
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— |
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— |
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Andrew Zobler(5)
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25,000 |
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25,000 |
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— |
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— |
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Anthony McDevitt. |
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25,000 |
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25,000 |
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— |
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— |
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BlackRock, Inc.(6)
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3,200,000 |
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3,200,000 |
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— |
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— |
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Blake Morrison |
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2,500 |
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2,500 |
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— |
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— |
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Brian Goldman |
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15,000 |
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15,000 |
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— |
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— |
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Brisa Carleton(7)
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68,702 |
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25,000 |
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43,702 |
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* |
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Chad Hansing(8)
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243,921 |
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233,041 |
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10,880 |
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— |
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CHAH Revocable Trust(9)
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2,503,579 |
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2,957,945 |
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— |
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— |
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ClearBridge Small Cap CIF(10)
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14,590 |
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14,590 |
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— |
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— |
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ClearBridge Small Cap Fund(11)
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1,120,800 |
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1,120,800 |
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— |
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— |
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DreamStreet Holdings, LLC(12)
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9,419,827 |
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12,029,517 |
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— |
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— |
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Gordco LLC(13)
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267,061 |
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355,295 |
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— |
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— |
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Guardian Small Cap Core VIP Fund(14)
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325,000 |
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325,000 |
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— |
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— |
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Icon Ventures IV, L.P.(15)
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4,794,359 |
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5,479,725 |
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— |
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— |
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James H. Dahl |
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650,000 |
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650,000 |
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— |
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— |
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Jeffrey Scott(16)
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3,000 |
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3,000 |
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— |
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— |
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JM Cox Resources LP(17)
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125,000 |
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125,000 |
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— |
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— |
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J&H Investments, LLC(18)
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771,157 |
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959,419 |
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50,000 |
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* |
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Joel Agena(19)
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333,043 |
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233,043 |
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100,000 |
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* |
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Katie Bolich(20)
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295,754 |
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233,041 |
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62,713 |
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* |
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Kenneth L. Criss |
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25,000 |
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25,000 |
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— |
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— |
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KING FAMILY TRUST(21)
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867,922 |
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1,154,674 |
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— |
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— |
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Lanx Concentrated Fund I, LP(22)
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35,000 |
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35,000 |
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— |
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— |
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Lanx Offshore Partners, Ltd(23)
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35,000 |
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35,000 |
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— |
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— |
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Legend Capital Partners(24)
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250,000 |
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250,000 |
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— |
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— |
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Melissa Danenberg |
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2,500 |
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2,500 |
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— |
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— |
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MGM Resorts International(25)
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16,647,124 |
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18,740,970 |
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— |
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— |
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Michael Ashton Hudson ROTH IRA #1(26)
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200,000 |
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200,000 |
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— |
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— |
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Pascal Family Trust(27)
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3,319,305 |
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3,329,427 |
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406,300 |
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* |
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Paul D. and Julie A. Mathews Family Trust(28)
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5,116,655 |
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6,054,751 |
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51,000 |
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* |
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Paul Mathews(29)
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620,438 |
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609,892 |
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10,546 |
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* |
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PGP 2021 Irrevocable Trust(30)
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1,898,734 |
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1,898,734 |
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— |
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— |
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Samuel H. Kennedy(31)
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25,000 |
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25,000 |
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— |
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— |
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Scott Peterson(32)
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586,373 |
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135,945 |
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450,428 |
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* |
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SJP 2021 Irrevocable Trust(33)
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1,898,734 |
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1,898,734 |
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— |
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— |
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SMALLCAP World Fund, Inc.(34)
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4,500,000 |
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4,500,000 |
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— |
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— |
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Tech Opportunities, LLC(35)
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326,000 |
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326,000 |
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— |
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— |
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The Bolich Family Trust(36)
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853,208 |
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1,006,650 |
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20,000 |
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* |
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The Fetters Family Trust(37)
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867,922 |
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1,154,674 |
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— |
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— |
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The Judy K. Mencher Trust 2014(38)
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567,099 |
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662,473 |
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— |
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— |
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The Lanx Fund, LP(39)
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35,000 |
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35,000 |
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— |
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— |
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Venture Lending & Leasing VI, LLC(40)
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3,524,892 |
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4,028,786 |
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— |
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— |
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Zachary Elias Leonsis(41)
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25,000 |
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25,000 |
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— |
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— |
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TOTAL |
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84,849,408 |
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95,237,463 |
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1,205,569 |
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* |
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*Less than one percent.
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Private Placement Warrants Beneficially Owned After the Offered
Private Placement Warrants are Sold |
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Name of Selling Securityholder |
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Number of Private Placement Warrants Beneficially Owned Prior to
Offering |
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Number of Private Placement Warrants Being Offered |
|
Number |
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Percent |
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Gordco LLC(13)
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377,279 |
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377,279 |
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— |
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— |
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J&H Investments, LLC(18)
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1,018,782 |
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1,018,782 |
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— |
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— |
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KING FAMILY TRUST(21)
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1,212,803 |
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1,212,803 |
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— |
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— |
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The Fetters Family Trust(37)
|
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1,212,803 |
|
1,212,803 |
|
— |
|
— |
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TOTAL |
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3,821,667 |
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3,821,667 |
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— |
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— |
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(1)Shares
listed as beneficially owned consist of 2,191,793 Class B Option
Shares. Shares offered hereby consist of 2,191,793 Class B Option
Shares. Shares listed as beneficially owned and shares offered
hereby do not include shares held by DreamStreet Holdings, LLC and
Pascal Family Trust. Mr. Pascal is the manager of DreamStreet
Holdings, LLC and the trustee of Pascal Family Trust.
(2)Shares
offered hereby consist of 12,677,398 shares of Class A common stock
and up to 2,132,082 Earnout Shares. Activision Entertainment
Holdings, Inc., a Delaware corporation, which is the holder of all
the issued and outstanding shares of Activision Publishing, Inc.,
may therefore be deemed to beneficially own the securities offered
hereby. Activision Blizzard, Inc., a Delaware corporation, which is
the holder of all the issued and outstanding shares of
Activision Entertainment Holdings, Inc., may therefore be deemed to
beneficially own the securities offered hereby. A representative of
Activision Publishing, Inc. was on the Board of Directors of
PLAYSTUDIOS, Inc. prior to its business combination with Acies
Acquisition Corp.
(3)Shares
offered hereby consist of 3,400,018 shares of Class A common stock
and up to 540,046 Earnout Shares. Jason Krikorian is a member of
our Board of Directors of the Company. A-Fund Investment
Management, L.P. is the general partner of A-Fund, L.P. A-Fund
International, Ltd. is the general partner of A-Fund Management,
L.P. F. Hurst Lin and Matthew C. Bonner are the directors of A-Fund
International, Ltd. and share voting and dispositive control with
respect to the shares held by A-Fund, L.P. Mr. Krikorian disclaims
beneficial ownership of such shares except with respect to his
pecuniary interests.
(4)James
Kelly Cox is trustee, director and beneficial owner of Alpine Oil
Company.
(5)Andrew
Zobler was an independent director of Acies Acquisition Corp., the
predecessor company to PLAYSTUDIOS.
(6)The
registered holders of the referenced shares to be registered are
the following funds and accounts under management by subsidiaries
of BlackRock, Inc.: BlackRock Global Allocation Fund, Inc.;
BlackRock Global Allocation V.I. Fund of BlackRock Variable Series
Funds, Inc.; BlackRock Global Allocation Portfolio of BlackRock
Series Fund, Inc.; BlackRock Capital Allocation Trust; BlackRock
Strategic Income Opportunities Portfolio of BlackRock Funds V;
Master Total Return Portfolio of Master Bond LLC; and BlackRock
Global Long/Short Credit Fund of BlackRock Funds IV. BlackRock,
Inc. is the ultimate parent holding company of such subsidiaries.
On behalf of such subsidiaries, the applicable portfolio managers,
as managing directors (or in other capacities) of such entities,
and/or the applicable investment committee members of such funds
and accounts, have voting and investment power over the shares held
by the funds and accounts which are the registered holders of the
referenced shares. Such portfolio managers and/or investment
committee members expressly disclaim beneficial ownership of all
shares held by such funds and accounts. The address of such funds
and accounts, such subsidiaries and such portfolio managers and/or
investment committee members is 55 East 52nd
Street, New York, NY 10055. Shares shown include only the
securities being registered for resale and may not incorporate all
shares deemed to be beneficially held by the registered holders or
BlackRock, Inc.
(7)Brisa
Carleton was an independent director of Acies Acquisition Corp.,
the predecessor company to PLAYSTUDIOS.
(8)Shares
listed as beneficially owned consist of 10,880 shares of Class A
common stock and 233,041 Class A Option Shares. Shares offered
hereby consist of 233,041 Class A Option Shares.
(9)Shares
listed as beneficially owned consist of 2,503,579 shares of Class A
common stock. Shares offered hereby consist of 2,503,579 shares of
Class A common stock and up to 454,366 Earnout Shares. Chad and
Audrey Hansing are Trustees and beneficial owners of CHAH Revocable
Trust. Chad Hansing was a Co-Founder of Old PLAYSTUDIOS and is a
current employee of the Company.
(10)ClearBridge
Investments, LLC is discretionary manager of the ClearBridge Small
Cap CIF and has both dispositive and voting power over the
securities offered hereby. The portfolio managers employed by
ClearBridge to manage this account and who exercise these powers
are Albert Grosman and Brian Lund.
(11)ClearBridge
Investments, LLC is discretionary manager of the ClearBridge Small
Cap Fund and has both dispositive and voting power over the
securities offered hereby. The portfolio managers employed by
ClearBridge to manage this account and who exercise these powers
are Albert Grosman and Brian Lund.
(12)Shares
listed as beneficially owned consist of 9,419,827 shares of Class B
common stock. Shares offered hereby consist of 9,419,827 shares of
Class A common stock issuable upon conversion of Class B common
stock and up to 2,609,690 Earnout Shares. Andrew Pascal is the
beneficial owner of DreamStreet Holdings, LLC and is the Co-Founder
and Chief Executive Officer of the Company.
(13)Shares
offered hereby consist of 267,061 shares of Class A common stock
and up to 88,234 Unvested Sponsor Shares. Christopher Grove and
Kimberly Harvey are the beneficial owners of Gordco
LLC.
(14)ClearBridge
Investments, LLC is discretionary manager of the Guardian Small Cap
Core VIP Fund and has both dispositive and voting power over the
securities offered hereby. The portfolio managers employed by
ClearBridge to manage this account and who exercise these powers
are Albert Grosman and Brian Lund.
(15)Shares
offered hereby consist of 4,794,359 shares of Class A common stock
and up to 685,366 Earnout Shares. Joseph Horowitz is a member of
our Board of Directors of the Company. Icon Management Associates
IV, LLC is the general partner of Icon Ventures IV, L.P. Joseph
Horowitz, Thomas Mawhinney, and Jeb Miller are the managing members
of Icon Management Associates IV, LLC and share voting and
dispositive control with respect to the shares held by Icon
Ventures IV, L.P.
(16)ClearBridge
Investments, LLC is discretionary manager of the Jeffrey Scott
account and has both dispositive and voting power securities
offered hereby. The portfolio managers employed by ClearBridge to
manage this account and who exercise these powers are Albert
Grosman and Brian Lund.
(17)James
Kelly Cox is trustee, president and beneficial owner of JM Cox
Resources LP.
(18)Shares
offered hereby consist of 771,157 shares of Class A common stock
and up to 238,262 Unvested Sponsor Shares. J&H Investments, LLC
is co-owned 50/50 by The JM 2021 Irrevocable Trust and The HM 2021
Irrevocable Trust. Jim Murren is the trustee of The JM 2021
Irrevocable Trust and Heather Murren is the trustee of The HM 2021
Irrevocable Trust. Jim Murren and Heather Murren share voting and
dispositive power with respect to the securities held by J&H
Investments, LLC.
(19)Shares
listed as beneficially owned consist of 100,000 shares of Class A
common stock and 233,043 Class A Option Shares. Shares offered
hereby consist of 233,043 Class A Option Shares. Joel Agena is the
General Counsel and Secretary of the Company.
(20)Shares
listed as beneficially owned consist of 62,713 shares of Class A
common stock and 233,041 Class A Option Shares. Shares offered
hereby consist of 233,041 Class A Option Shares.
(21)Shares
offered hereby consist of 867,922 shares of Class A common stock
and up to 286,752 Unvested Sponsor Shares. Edward King is trustee
and beneficial owner of the KING FAMILY TRUST. Edward King was the
Co-CEO of Acies Acquisition Corp., the predecessor company to
PLAYSTUDIOS.
(22)The
Selling Securityholder is managed by Lanx Management, LLC. Brian
Goldman is the natural person who has voting or investment control
over the shares held by Lanx Management, LLC, and thus has voting
or investment control over the securities offered
hereby.
(23)The
Selling Securityholder is managed by Lanx Management, LLC. Brian
Goldman is the natural person who has voting or investment control
over the shares held by Lanx Management, LLC, and thus has voting
or investment control over the securities offered
hereby.
(24)DeWitt
C. Thompson is Managing Partner of Legend Capital Partners, and has
sole and dispositive power with respect to the securities held by
Legend Capital Partners.
(25)Shares
offered hereby consist of 16,647,124 shares of Class A common stock
and up to 2,093,846 Earnout Shares. Steve Zanella, the Chief
Commercial Officer of MGM Resorts International, serves as a
director of the Company. His position is not subject to any
contractual right. MGM Resorts International is also party to the
Marketing Agreement. The Selling Securityholder is a public company
listed on the New York Stock Exchange and is not a controlled
company.
(26)Ashton
Hudson is the beneficiary of the Michael Ashton Hudson ROTH IRA
#1.
(27)Shares
listed as beneficially owned consist of 406,300 shares of Class A
Common Stock and 2,913,005 shares of Class A common stock issuable
upon conversion of Class B common stock. Shares offered hereby
consist of 2,913,005 shares of Class A common stock issuable upon
conversion of Class B common stock and up to 416,422 Earnout
Shares. Andrew Pascal is the beneficial owner of Pascal Family
Trust and is the Co-Founder and Chief Executive Officer of the
Company.
(28)Shares
listed as beneficially owned consist of 5,116,555 shares of Class A
common stock. Shares offered hereby consist of 5,065,655 shares of
Class A common stock and up to 989,096 Earnout Shares. Paul D. and
Julie A. Mathews are Trustees and beneficial owners of the Paul D.
and Julie A. Mathews Family Trust. Paul D. Mathews was a Co-Founder
of the Company and is a current employee of the
Company.
(29)Shares
listed as beneficially owned consist of 10,546 shares of Class A
common stock and 609,892 Class A Option Shares. Shares offered
hereby consist of 609,892 Class A Option Shares.
(30)Shares
offered hereby consist of 1,898,734 shares of Class A common stock
issuable upon conversion of Class B common stock. Andrew Pascal has
voting power over the shares and is the Co-Founder and Chief
Executive Officer of the Company.
(31)Samuel
H. Kennedy was an independent director of Acies Acquisition Corp.,
the predecessor company to PLAYSTUDIOS.
(32)Shares
listed as beneficially owned consist of 450,428 shares of Class A
common stock and 135,945 Class A Option Shares. Shares offered
hereby consist of 135,945 Class A Option Shares. Scott Peterson is
the Chief Financial Officer of the Company.
(33)Shares
offered hereby consist of 1,898,734 shares of Class A common stock
issuable upon conversion of Class B common stock. Andrew Pascal has
voting power over the shares and is the Co-Founder and Chief
Executive Officer of the Company.
(34)Capital
Research and Management Company (“CRMC”) is the investment adviser
for SMALLCAP World Fund, Inc. (“SCWF”). For purposes of the
reporting requirements of the Exchange Act, CRMC and Capital
Research Global Investors (“CRGI”) may be deemed to be the
beneficial owner of the shares of Class A common stock held by
SCWF; however, each of CRMC and CRGI expressly disclaims that it
is, in fact, the beneficial owner of such securities. Brady L.
Enright, Julian N. Abdey, Jonathan Knowles, Gregory W. Wendt, Peter
Eliot, Bradford F. Freer, Leo Hee, Roz Hongsaranagon, Harold H. La,
Dimitrije Mitrinovic, Aidan O’Connell, Samir Parekh, Andraz Razen,
Renaud H. Samyn, Arun Swaminathan, Thatcher Thompson, Michael
Beckwith, and Shlok Melwani, as portfolio managers, have voting and
investment powers over the shares held by SCWF. The address for
SCWF is c/o Capital Research and Management Company, 333 S. Hope
St., 55th Floor, Los Angeles, California 90071. SCWF acquired the
securities being registered hereby in the ordinary course of its
business.
(35)Hudson
Bay Capital Management LP, the investment manager of Tech
Opportunities, LLC, has voting and investment power over these
securities. Sander Gerber is the managing member of Hudson Bay
Capital GP LLC, which is the general partner of Hudson Bay Capital
Management LP. Each of Tech Opportunities, LLC and Sander Gerber
disclaims beneficial ownership over these securities.
(36)Shares
listed as beneficially owned consist of 853,208 shares of Class A
common stock. Shares offered hereby consist of 833,208 shares of
Class A common stock and up to 173,442 Earnout Shares. Kathleen
Connors Bolich and Bryan David Bolich are Trustees and beneficial
owners The Bolich Family Trust. Kathleen Connors Bolich is a
current employee of the Company.
(37)Shares
offered hereby consist of 867,922 shares of Class A common stock
and up to 286,752 Unvested Sponsor Shares. Daniel Fetters and Lisa
Fetters are the trustees and beneficial owners of The Fetters
Family Trust. Daniel Fetters was the Co-CEO of Acies Acquisition
Corp., the predecessor company to PLAYSTUDIOS.
(38)Shares
offered hereby consist of 567,099 shares of Class A common stock
and up to 95,374 Earnout Shares. Judy Mencher is a director of the
Company.
(39)The
Selling Securityholder is managed by Lanx Management, LLC. Brian
Goldman is the natural person who has voting or investment control
over the shares held by Lanx Management, LLC, and thus has voting
or investment control over the securities offered
hereby.
(40)Shares
offered hereby consist of 3,524,892 shares of Class A common stock
and up to 503,894 Earnout Shares. Westech Investment Advisors LLC
is the Managing Member of Venture Lending & Leasing VI, LLC.
Ron Swenson, Sal Gutierrez, and Maurice Werdegar are the three
directors of the Managing Member.
(41)Zachary
Elias Leonsis was an independent director of Acies Acquisition
Corp., the predecessor company to PLAYSTUDIOS.
DESCRIPTION OF OUR SECURITIES
The following summary of the material terms of our securities is
not intended to be a complete summary of the rights and preferences
of such securities. The descriptions below are qualified by
reference to the actual text of the Certificate of Incorporation.
We advise you to read our Certificate of Incorporation and Bylaws
in their entirety for a complete description of the rights and
preferences of our securities.
General
Authorized Capitalization
Authorized capital stock consists of shares of capital stock, par
value $0.0001 per share, of which:
•2,000,000,000
shares are designated as Class A common stock;
•25,000,000
shares are designated as Class B common stock; and
•100,000,000
shares are designated as preferred stock.
The Board of Directors is authorized, without stockholder approval,
except as required by the listing standards of the Nasdaq, to issue
additional shares of capital stock.
As of July 8, 2022, we have approximately 111,966,389 shares of
Class A common stock outstanding and approximately 16,130,300
shares of Class B common stock outstanding. There are also
9,204,168 warrants consisting of 5,382,501 public warrants and
3,821,667 private placement warrants issued and
outstanding.
Common Stock
We have two classes of authorized common stock, Class A common
stock and Class B common stock. The rights of the holders of Class
A common stock and Class B common stock are identical, except with
respect to voting and conversion.
Dividend Rights
Subject to preferences that may be applicable to any preferred
stock outstanding at the time, the holders of outstanding shares of
common stock are entitled to receive ratably any dividends declared
by the Board of Directors out of assets legally available. See the
section titled “Dividend Policy” for additional
information.
Voting Rights
Shares of Class A common stock are entitled to one vote per share.
Shares of Class B common stock are entitled to 20 votes per share.
The holders of Class A common stock and Class B common stock will
generally vote together as a single class on all matters submitted
to a vote of stockholders unless otherwise required by the DGCL or
the Certificate of Incorporation.
The Certificate of Incorporation provides that prior to the Final
Conversion Date (as defined below), we shall not, without the prior
affirmative vote of the holders of at least a majority of the
outstanding shares of Class B common stock, voting as a separate
class, in addition to any other vote required by applicable law or
the Certificate of Incorporation:
•directly
or indirectly, whether by amendment, or through merger,
recapitalization, consolidation or otherwise, amend, repeal, or
adopt any provision of the Certificate of Incorporation
inconsistent with, or otherwise alter, any provision of the
Certificate of Incorporation that modifies the voting, conversion
or other rights, powers, preferences, privileges, or restrictions
of the shares of Class B common stock ;
•reclassify
any outstanding shares of Class A common stock into shares having
(i) rights as to dividends or liquidation that are senior to Class
B common stock or (ii) the right to have more than one vote per
share, except as required by law;
•decrease
or increase the number of authorized shares of Class B common stock
or issue any shares of Class B common stock (other than shares of
Class B common stock issued by us pursuant to the exercise or
conversion of options or warrants or settlements of other equity
awards that, in each case, were outstanding as of the date of the
Closing); or
•authorize,
or issue any shares of, any class or series of capital stock having
the right to more than one vote for each share thereof other than
Class B common stock.
Additionally, the DGCL could require either holders of Class A
common stock or Class B common stock to vote as separate classes in
the following circumstances:
•if
we were to seek to amend the Certificate of Incorporation to
increase or decrease the par value of a class of capital stock,
then that class would be required to vote separately to approve the
proposed amendment; and
•if
we were to seek to amend the Certificate of Incorporation in a
manner that alters or changes the powers, preferences, or special
rights of a class of capital stock in a manner that affected its
holders adversely, then that class would be required to vote
separately to approve the proposed amendment.
Liquidation Rights
If we are involved in a liquidation, dissolution, or are wound up,
holders of our common stock are entitled to share ratably in all
assets remaining after payment of liabilities and the liquidation
preference of any then outstanding shares of preferred stock. The
Certificate of Incorporation provides that any merger or
consolidation of the Company with or into another entity must be
approved by a majority of the outstanding shares of Class A common
stock and Class B common stock, each voting as separate classes
unless (i) the shares of our common stock are treated equally,
identically and ratably, on a per share basis and (ii) such shares
are converted on a pro rata basis into shares of the surviving
entity or its parent in such transaction having substantially
identical rights, powers and privileges to the shares of Class A
common stock and Class B common stock, respectively, in effect
immediately prior to such transaction.
No Preemptive or Similar Rights
Our common stock is not entitled to preemptive rights, and there
are no redemption or sinking fund provisions applicable to our
common stock.
Conversion Rights
Each share of Class B common stock will automatically convert into
one share of Class A common stock on the Final Conversion Date,
which is the earliest to occur of:
•the
date specified by the holders of at least a majority the then
outstanding shares of Class B common stock voting as a separate
class;
•the
date on which Andrew Pascal, the Pascal Family Trust and their
respective permitted transferees collectively cease to beneficially
own at least 20% of the number of shares of Class B common stock
collectively held by such holders immediately following the Closing
of the Business Combination; and
•the
date that is nine months after the death or permanent and total
disability of Andrew Pascal, provided that such date may be
extended by a majority of the independent members of the Board of
Directors to a date that is not longer than 18 months from the date
of such death or disability, provided, however, that from the time
of the death or permanent and total disability of Andrew Pascal,
the voting power of such shares of Class B common stock shall only
be exercised in accordance with an approved transition agreement or
a person previously designated by Andrew Pascal and approved by a
majority of the independent members of the Board of
Directors.
In addition, a holder’s shares of Class B common stock will
automatically convert into shares of Class A common stock upon (i)
the affirmative written election of such stockholder, or (ii) any
sale, assignment, transfer, conveyance, hypothecation, or other
transfer or disposition, directly or indirectly, of such shares of
Class B common stock or any legal or beneficial interest in such
share, whether or not for value and whether voluntary or
involuntary or by operation of law (including by merger,
consolidation, or otherwise), including, without limitation the
transfer of a share of Class B common stock to a broker or other
nominee or the transfer of, or entering into a binding agreement
with respect to, voting control over such share by proxy or
otherwise, other than certain permitted transfers set forth in the
Certificate of Incorporation.
Preferred Stock
Pursuant to the Certificate of Incorporation, the Board of
Directors has the authority, without further action by the
stockholders, to issue from time to time shares of preferred stock
in one or more series. The Board of Directors may designate the
rights, preferences, privileges and restrictions of the preferred
stock, including dividend rights, conversion rights, voting rights,
redemption rights, liquidation preference, sinking fund terms, and
the number of shares constituting any series or the designation of
any series. As of July 8, 2022, there were no shares of preferred
stock outstanding.
The issuance of preferred stock could have the effect of
restricting dividends on our common stock, diluting the voting
power of our common stock, impairing the liquidation rights of our
common stock, or delaying, deterring, or preventing a change in
control. Such issuance could have the effect of decreasing the
market price of our common stock. There are currently no plans to
issue any shares of preferred stock.
Stock Options and Restricted Stock Units
As of July 8, 2022, there are 11,559,424 shares of our Class A
common stock and 2,191,793 shares of our Class B common stock
issuable upon the exercise of stock options, with a weighted
average exercise price of $0.82 per share, and 7,299,827 shares of
our Class A common stock subject to restricted stock units. There
are 15,272,970 shares of our common stock reserved for future
issuance under the 2021 Plan as well as: (i) any automatic
increases in the number of shares of common stock reserved for
future issuance under the 2021 Plan and (ii) upon the forfeiture,
termination, expiration or reacquisition of any shares of common
stock underlying outstanding stock awards granted under the
PLAYSTUDIOS, Inc. 2011 Omnibus Stock and Incentive Plan, an equal
number of shares of our common stock. In addition, there are
4,611,788
shares of Class A common stock reserved for future issuance under
the 2021 ESPP, as well as any automatic increases in the number of
shares of Class A common stock reserved for future issuance under
the 2021 ESPP.
Warrants
As of July 8, 2022, there are 5,382,501 shares of our Class A
common stock issuable upon the exercise of the Public Warrants,
each with an exercise price of $11.50 per share, and 3,821,667
shares of our Class A common stock issuable upon the exercise of
the Private Placement Warrants, each with an exercise price of
$11.50 per share.
The Public Warrants will expire 5 years after the completion of the
Business Combination, or earlier upon redemption or liquidation.
The Private
Placement
Warrants are identical to the Public Warrants, except that the
Private
Placement
Warrants and the shares of Class A common stock issuable upon
exercise of the Private
Placement
Warrants were not transferable until after the completion of the
Business Combination, subject to certain limited exceptions.
Additionally, the Private
Placement
Warrants are non-redeemable so long as they are held by the initial
holder or any of its permitted transferees. If the Private
Placement
Warrants are held by someone other than the initial holder or its
permitted transferees, the Private
Placement
Warrants will be redeemable by the Company and exercisable by such
holders on the same basis as the Public Warrants. The
Private
Placement
Warrants may be exercised on a cashless basis so long as held by
the Sponsor or certain permitted transferees.
The Company may redeem the outstanding Public Warrants in whole,
but not in part, at a price of $0.01 per Public Warrant upon a
minimum of 30 days’ prior written notice of redemption, if and only
if the last sale price of the Company’s common stock equals or
exceeds $18.00 per share for any 20-trading days within a
30-trading day period ending three business days before the Company
sends the notice of redemption to the holders of the Public
Warrants. If the Company calls the Public Warrants for redemption,
management will have the option to require all holders that wish to
exercise the Public Warrants to do so on a cashless basis. In no
event will the Company be required to net cash settle the exercise
of Public Warrants.
Anti-takeover Effects of the Certificate of Incorporation and the
Bylaws
The Certificate of Incorporation and Bylaws contain provisions that
could have the effect of delaying, deferring, or discouraging
another party from acquiring control of us. These provisions and
certain provisions of the DGCL, which are summarized below, could
discourage takeovers, coercive or otherwise. These provisions are
also designed, in part, to encourage persons seeking to acquire
control of us to negotiate first with the Board of Directors. The
Board of Directors believes that the benefits of increased
protection of the potential ability to negotiate with an unfriendly
or unsolicited acquirer outweigh the disadvantages of discouraging
a proposal to acquire us.
Issuance of Undesignated Preferred Stock
As discussed above in the section titled “Preferred Stock,” the
Board of Directors has the ability to designate and issue preferred
stock with voting or other rights or preferences that could deter
hostile takeovers or delay changes in our control or
management.
Dual Class Stock
As described above, the Certificate of Incorporation provides for a
dual class common stock structure which provides Andrew Pascal with
the ability to control the outcome of matters requiring stockholder
approval, even though he owns significantly less than a majority of
the shares of outstanding common stock, including the election of
directors and significant corporate transactions, such as a merger
or other sale of our company or our assets.
Limits on Ability of Stockholders to Act by Written Consent or Call
a Special Meeting
The Certificate of Incorporation provides that stockholders may not
act by written consent after the first date on which the number of
outstanding shares of Class B common stock represents less than a
majority of the total voting power of the then outstanding shares
of capital stock that would then be entitled to vote in the
election of directors at an annual meeting of the stockholders
(such date, the “Voting Threshold Date”). Prior to the Voting
Threshold Date, stockholders may act by written consent only if the
action is first recommended or approved by the Board of Directors.
This limit on the ability of
stockholders to act by written consent may lengthen the amount of
time required to take stockholder actions. As a result, the holders
of a majority of common stock would not be able to amend the Bylaws
or remove directors without holding a meeting of stockholders
called in accordance with the Bylaws.
In addition, the Certificate of Incorporation provides that special
meetings of the stockholders may be called only by the chairman of
the board, the chief executive officer, or the Board of Directors
acting pursuant to a resolution adopted by a majority of the Board
of Directors. A stockholder may not call a special meeting, which
may delay the ability of stockholders to force consideration of a
proposal or for holders controlling a majority of the capital stock
to take any action, including the removal of
directors.
Advance Requirements for Advance Notification of Stockholder
Nominations and Proposals
The Bylaws establish advance notice procedures with respect to
stockholder proposals and the nomination of candidates for election
as directors, other than nominations made by or at the direction of
the Board of Directors or a committee thereof. These advance notice
procedures may have the effect of precluding the conduct of certain
business at a meeting if the proper procedures are not followed and
may also discourage or deter a potential acquirer from conducting a
solicitation of proxies to elect its own slate of directors or
otherwise attempt to obtain control of the Company.
Election and Removal of Directors
The Certificate of Incorporation and Bylaws contain provisions that
establish specific procedures for appointing and removing members
of the Board of Directors. Under the Certificate of Incorporation
and Bylaws, vacancies and newly created directorships on the Board
of Directors may be filled only by a majority of the directors then
serving on the Board of Directors. Under the Certificate of
Incorporation and
Bylaws, directors may be removed from office, with or without
cause, by the affirmative vote of the holders of a majority of the
total voting power of all of our outstanding securities generally
entitled to vote in the election of directors, voting together as a
single class.
No Cumulative Voting
The DGCL provides that stockholders are not entitled to the right
to cumulate votes in the election of directors unless the
Certificate of Incorporation provides otherwise. The Certificate of
Incorporation and Bylaws do not expressly provide for cumulative
voting. Without cumulative voting, a minority stockholder may not
be able to gain as many seats on the Board of Directors as the
stockholder would be able to gain if cumulative voting were
permitted. The absence of cumulative voting makes it more difficult
for a minority stockholder to gain a seat on the Board of Directors
to influence the Board of Directors’ decision regarding a
takeover.
Amendment of Certificate of Incorporation Provisions
Certain amendments to the Certificate of Incorporation will require
the approval of two-thirds of the then outstanding voting power of
our capital stock.
Delaware Anti-Takeover Statute
We are subject to the provisions of Section 203 of the DGCL
regulating corporate takeovers. In general, Section 203 prohibits a
publicly held Delaware corporation from engaging, under certain
circumstances, in a business combination with an interested
stockholder for a period of three years following the date the
person became an interested stockholder unless:
•prior
to the date of the transaction, the Board of Directors approved
either the business combination or the transaction that resulted in
the stockholder becoming an interested stockholder;
•upon
completion of the transaction that resulted in the stockholder
becoming an interested stockholder, the interested stockholder
owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced, excluding for
purposes of determining the voting stock outstanding, but not the
outstanding voting stock owned by the interested stockholder, (1)
shares owned by persons who are directors and also officers and (2)
shares owned by employee stock plans in which employee participants
do not have the right to determine confidentially whether shares
held subject to the plan will be tendered in a tender or exchange
offer; or
•at
or subsequent to the date of the transaction, the business
combination is approved by the Board of Directors and authorized at
an annual or special meeting of stockholders, and not by written
consent, by the affirmative vote of at least two-thirds of the
outstanding voting stock that is not owned by the interested
stockholder.
Generally, a business combination includes a merger, asset, stock
sale, or other transaction resulting in a financial benefit to the
interested stockholder. An interested stockholder is a person who,
together with affiliates and associates, owns or, within three
years prior to the determination of interested stockholder status,
did own 15% or more of a corporation’s outstanding voting stock.
The Board of Directors expects the existence of this provision to
have an anti-takeover effect with respect to transactions the Board
of Directors does not approve in advance. The Board of Directors
also anticipates that
Section 203 may discourage attempts that might result in a premium
over the market price for the shares of our Class A common stock
held by our stockholders.
The provisions of the DGCL, the Certificate of Incorporation and
Bylaws could have the effect of discouraging others from attempting
hostile takeovers and as a consequence, they might also inhibit
temporary fluctuations in the market price of our Class A common
stock that often result from actual or rumored hostile takeover
attempts. These provisions might also have the effect of preventing
changes in our management. It is also possible that these
provisions could make it more difficult to accomplish transactions
that our stockholders might otherwise deem to be in their best
interests.
Exclusive Forum
The Certificate of Incorporation provides that the sole and
exclusive forum for (1) any derivative action or proceeding brought
on our behalf, (2) any action asserting a claim of breach of a
fiduciary duty owed by any of our directors, officers, or other
employees to our company or our stockholders, (3) any action
asserting a claim against us or any director or officer of our
company arising pursuant to any provision of the DGCL, (4) any
action to interpret, apply, enforce, or determine the validity of
the Certificate of Incorporation or Bylaws, or (5) any other action
asserting a claim that is governed by the internal affairs doctrine
shall be a state or federal court located within the State of
Delaware, in all cases subject to the court having jurisdiction
over indispensable parties named as defendants. However, this
exclusive forum provision would not apply to suits brought to
enforce a duty or liability created by the Securities Act or
Exchange Act or any claim for which the U.S. federal district
courts have exclusive jurisdiction.
In addition, the Certificate of Incorporation provides that, unless
we consent in writing to the selection of an alternative forum, the
U.S. federal district courts will be the exclusive forum for
resolving any complaint asserting a cause of action arising under
the Securities Act, subject to and contingent upon a final
adjudication in the State of Delaware of the enforceability of such
exclusive forum provision.
Any person or entity purchasing or otherwise acquiring any interest
in our capital stock shall be deemed to have notice of and
consented to these provisions and will not be deemed to have waived
our compliance with the federal securities laws and the regulations
promulgated thereunder. Although the Board of Directors believes
these provisions benefit our company by providing increased
consistency in the application of Delaware law or federal law for
the specified types of actions and proceedings, these provisions
may have the effect of discouraging lawsuits against us or our
directors and officers.
Limitations on Liability and Indemnification of Officers and
Directors
The Certificate of Incorporation provides that we will indemnify
our directors to the fullest extent authorized or permitted by
applicable law. We have entered into agreements to indemnify our
directors, executive officers, and other employees. Under the
Bylaws, we are required to indemnify each of our directors and
officers if the basis of the indemnitee’s involvement was by reason
of the fact that the indemnitee is or was a director or officer of
our company or was serving at our request as a director, officer,
employee, or agent for another entity. We must indemnify our
officers and directors against all expenses, judgments, fines, and
amounts paid in settlement actually and reasonably incurred by the
indemnitee in connection with such action, suit, or proceeding if
the indemnitee acted in good faith and in a manner the indemnitee
reasonably believed to be in or not opposed to the best interests
of
our company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the indemnitee’s
conduct was unlawful. The Certificate of Incorporation also
requires us to advance expenses incurred by a director or officer
in connection with such action, suit or proceeding to the maximum
extent permitted under Delaware law. Any claims for indemnification
by our directors and officers may reduce our available funds to
satisfy successful third-party claims against us and may reduce the
amount of money available to us.
Corporate Opportunities
The DGCL permits corporations to adopt provisions renouncing any
interest or expectancy in certain opportunities that are presented
to the corporation or its officers, directors, or stockholders. The
Certificate of Incorporation, to the extent permitted by the DGCL,
renounces any interest or expectancy that our company has in, or
right to be offered an opportunity to participate in, specified
business opportunities that are from time to time presented to a
member of the Board of Directors who is not an employee, or any
partner, member, director, stockholder, employee, or agent of such
member. Notwithstanding the foregoing, the Certificate of
Incorporation does not renounce any interest in a business
opportunity that is expressly offered to a director solely in his
or her capacity as a director of our company.
Transfer Agent
The transfer agent for our Class A common stock and our Class B
common stock is Continental Stock Transfer & Trust
Company.
MATERIAL FEDERAL INCOME TAX CONSEQUENCES
The following is a discussion of certain material U.S. federal
income tax consequences of the ownership and disposition of our
Class A common stock and Private Placement Warrants, which we refer
to collectively as our securities. This discussion applies only to
securities that are held as capital assets for U.S. federal income
tax purposes and is applicable only to persons who are acquiring
our securities in this offering.
This discussion is a summary only and does not describe all of the
tax consequences that may be relevant to you in light of your
particular circumstances, including but not limited to the
alternative minimum tax, the Medicare tax on certain investment
income, and the different consequences that may apply if you are
subject to special rules that apply to certain types of investors,
including but not limited to:
•our
sponsor, founders, officers or directors;
•financial
institutions or financial services entities;
•broker-dealers;
•governments
or agencies or instrumentalities thereof;
•regulated
investment companies;
•S
corporations;
•real
estate investment trusts;
•expatriates
or former long-term residents of the U.S.;
•persons
that actually or constructively own five percent (5%) or more (by
vote or value) of our common stock;
•insurance
companies;
•dealers
or traders subject to a mark-to-market method of tax accounting
with respect to the securities;
•accrual-method
taxpayers who are required under Section 451(b) of the Internal
Revenue Code of 1986, as amended (the “Code”), to recognize income
for U.S. federal income tax purposes no later than when such income
is taken into account in applicable financial
statements;
•persons
holding the securities as part of a “straddle,” hedge, integrated
transaction or similar transaction;
•U.S.
holders (as defined below) whose functional currency is not the
U.S. dollar;
•partnerships
or other pass-through entities for U.S. federal income tax purposes
and any beneficial owners of such entities;
•persons
who acquire our securities as compensation; and
•tax-exempt
entities.
If a partnership (including an entity or arrangement treated as a
partnership for U.S. federal income tax purposes) or other
pass-through entity holds our securities, the U.S. federal income
tax treatment of a partner in such partnership or equityholder in
such pass-through entity generally will depend upon the status of
the partner or equityholder, upon the activities of the partnership
or other pass-through entity and upon certain determinations made
at the partner or equityholder level. Accordingly, we urge partners
in partnerships (including entities or arrangements treated as
partnerships for U.S. federal income tax purposes) and
equityholders in other pass-through entities considering the
acquisition of our securities to consult their tax advisors
regarding the U.S. federal income tax considerations of the
ownership and disposition of our securities by such partnership or
pass-through entity.
This discussion is based on the Code, and administrative
pronouncements, judicial decisions, and final, temporary, and
proposed Treasury regulations as of the date of this prospectus,
which are subject to change, possibly on a retroactive basis, and
changes to any of which subsequent to the date of this prospectus
may affect the tax consequences described herein. This discussion
does not address any aspect of state, local or non-U.S. taxation,
or any U.S. federal taxes other than income taxes (such as gift and
estate taxes). We have not sought, and will not seek, a ruling from
the Internal Revenue Service (the “IRS”) as to any U.S. federal
income tax consequence described herein. The IRS may disagree with
the discussion herein, and its determination may be upheld by a
court. Moreover, there can be no assurance that future legislation,
regulations, administrative rulings, or court decisions will not
adversely affect the accuracy of the statements in this
discussion.
THIS DISCUSSION OF U.S. FEDERAL INCOME TAX CONSIDERATIONS IS FOR
GENERAL INFORMATION PURPOSES ONLY AND IS NOT TAX ADVICE. WE URGE
PROSPECTIVE HOLDERS TO CONSULT THEIR TAX ADVISORS CONCERNING THE
U.S. FEDERAL INCOME TAX CONSEQUENCES TO THEM OF OWNING
AND
DISPOSING OF OUR SECURITIES, AS WELL AS THE APPLICATION OF ANY,
STATE, LOCAL AND NON-U.S. INCOME, ESTATE AND OTHER TAX
CONSIDERATIONS.
U.S. Holders
This section applies to you if you are a “U.S. holder.” As used
herein, the term “U.S. holder” means a beneficial owner of our
Class A common stock or Private Placement Warrants who or that is
for U.S. federal income tax purposes:
•an
individual who is a citizen or resident of the U.S.;
•a
corporation (or other entity taxable as a corporation) organized in
or under the laws of the U.S., any state thereof or the District of
Columbia; or
•an
estate or trust the income of which is subject to U.S. federal
income taxation regardless of its source.
Taxation of Distributions
If we pay distributions in cash or other property (other than
certain distributions of our stock or rights to acquire our stock)
to U.S. holders of shares of our Class A common stock, such
distributions generally will constitute dividends for U.S. federal
income tax purposes to the extent paid from our current or
accumulated earnings and profits, as determined under U.S. federal
income tax principles. Distributions in excess of current and
accumulated earnings and profits will constitute a return of
capital that will be applied against and reduce (but not below
zero) the U.S. holder’s adjusted tax basis in our Class A common
stock. Any remaining excess will be treated as gain realized on the
sale or other disposition of our Class A common stock and will be
treated as described below under “U.S.
Holders — Gain or Loss on Sale, Taxable Exchange or Other Taxable
Disposition of Class A Common Stock and Private Placement
Warrants.”
Dividends we pay to a U.S. holder that is a taxable corporation
generally will qualify for the dividends received deduction if the
requirements relating to the requisite holding period are
satisfied. With certain exceptions, and provided certain holding
period requirements are met, dividends we pay to a non-corporate
U.S. holder generally will constitute “qualified dividends” that
currently are subject to tax at preferential long-term capital
gains
rates.
Possible Constructive Distributions
The terms of each Private Placement Warrant provide for an
adjustment to the number of shares of our Class A common stock for
which the Private Placement Warrant may be exercised or to the
exercise price of the Private Placement Warrant on the occurrence
of certain events. An adjustment which has the effect of preventing
dilution generally is not a taxable event. U.S. holders of the
Private Placement Warrants would, however, be treated as receiving
a constructive distribution from us if, for example, the adjustment
to the number of such shares or to such exercise price increases
the warrant holders’ proportionate interest in
our assets or earnings and profits (e.g., through an increase in
the number of shares of our Class A common stock that would be
obtained upon exercise or through a decrease in the exercise price
of the Private Placement Warrants), including as a result of a
distribution of cash or other property to the holders of shares of
our
Class A common stock which is taxable to such holders of such
shares as a distribution. Any constructive distribution received by
a U.S. holder would be subject to tax in the same manner as if such
U.S. holders of the Private Placement Warrants received a cash
distribution from us equal to the fair market value of
such increased interest resulting from the adjustment. Generally, a
U.S. holder’s adjusted tax basis in its Private Placement Warrants
would be increased to the extent any such constructive distribution
is treated as a dividend.
Gain or Loss on Sale, Taxable Exchange or Other Taxable Disposition
of Class A Common Stock and Private Placement Warrants
Upon a sale or other taxable disposition of our Class A common
stock or Private Placement Warrants (which, in general, would
include a redemption of our Private Placement Warrants that is
treated as a taxable exchange of such Private Placement Warrants as
described below under “Exercise,
Lapse or Redemption of a Private Placement
Warrant”),
a U.S. holder generally will recognize capital gain or loss in an
amount equal to the difference between the amount realized and the
U.S. holder’s adjusted tax basis in our Class A common stock or
Private Placement Warrants. Any such capital gain or loss generally
will be long-term capital gain or loss if the U.S. holder’s holding
period for our Class A common stock or Private Placement Warrants
so disposed of exceeds one year. Long-term capital gains recognized
by non-corporate U.S. holders currently are eligible to be taxed at
reduced rates. The deductibility of capital losses is subject to
limitations.
Generally, the amount of gain or loss recognized by a U.S. holder
is an amount equal to the difference between (i) the sum of the
amount of cash and the fair market value of any property received
in such disposition and (ii) the U.S. holder’s adjusted tax basis
in our Class A common stock or Private Placement Warrants
transferred in such disposition.
Exercise, Lapse or Redemption of a Private Placement
Warrant
Except as discussed below with respect to the cashless exercise of
a Private Placement Warrant, a U.S. holder generally will not
recognize taxable gain or loss as a result of the acquisition of
our Class A common stock upon exercise of a Private Placement
Warrant for cash. The U.S. holder’s tax basis in the shares of our
Class A common stock received upon exercise of the Private
Placement Warrants generally will be an amount equal to the sum of
the U.S. holder’s initial investment in the Private Placement
Warrants and the exercise price of such Private Placement Warrants.
For U.S. federal income tax purposes, it is unclear whether the
U.S. holder’s holding period for our Class A common stock received
upon exercise of the Private Placement Warrants will begin on the
date following the date of exercise or on the date of exercise of
the Private Placement Warrants; in either case, the holding period
will not include the period during which the U.S. holder held the
Private Placement Warrants. If a Private Placement Warrant is
allowed to lapse unexercised, a U.S. holder generally will
recognize a capital loss equal to such U.S. holder’s tax basis in
the Private Placement Warrant.
The tax consequences of a cashless exercise of a Private Placement
Warrant are not clear under current tax law. A cashless exercise
may be tax-free, either because the exercise is not a realization
event or because the exercise is treated as a recapitalization for
U.S. federal income tax purposes. In either tax-free situation, a
U.S. holder’s tax basis in the shares of our Class A common stock
received would equal the holder’s basis in the Private Placement
Warrants exercised therefor. If the cashless exercise were treated
as not being a realization event, it is unclear whether a U.S.
holder’s holding period in our Class A common stock would be
treated as commencing on the date following the date of exercise or
on the date of exercise of the Private Placement Warrant. If the
cashless exercise were treated as a recapitalization, the holding
period of our Class A common stock would include the holding period
of the Private Placement Warrants exercised therefor.
It is also possible that a cashless exercise could be treated in
part as a taxable exchange in which gain or loss would be
recognized. In such event, a portion of the Private Placement
Warrants to be exercised on a cashless basis could, for U.S.
federal income tax purposes, be deemed to have been surrendered in
consideration for the exercise price of the remaining Private
Placement Warrants, which would be deemed to be exercised. For this
purpose, a U.S. holder would be deemed to have surrendered a number
of Private Placement Warrants having an aggregate value equal to
the exercise price for the number of Private Placement Warrants
deemed exercised. The U.S. holder would recognize capital gain or
loss in an amount equal to the difference between the exercise
price of the Private Placement Warrants deemed exercised and the
U.S. holder’s tax
basis in the Private Placement Warrants deemed surrendered. Such
gain or loss would be long-term or short-term depending on the U.S.
holder’s holding period in the Private Placement Warrants deemed
surrendered. In this case, a U.S. holder’s tax basis in the shares
of our Class A common stock received would equal the sum of the
U.S. holder’s initial investment in the Private Placement Warrants
deemed exercised and the
exercise price of such Private Placement Warrants. It is unclear
whether a U.S. holder’s holding period for our Class A common stock
would commence on the date following the date of exercise or on the
date of exercise of the warrant; in either case, the holding period
would not include the period during which the
U.S. holder held the Private Placement Warrant.
Due to the absence of authority on the U.S. federal income tax
treatment of a cashless exercise, including when a U.S. holder’s
holding period would commence with respect to the shares of our
Class A common stock received, there can be no assurance as to
which, if any, of the alternative tax consequences and holding
periods described above would be adopted by the IRS or a court of
law. Accordingly, U.S. holders should consult their tax advisors
regarding the tax consequences of a cashless exercise.
If we redeem Private Placement Warrants for cash or if we purchase
Private Placement Warrants in an open market transaction, such
redemption or purchase generally will be treated as a taxable
disposition to the U.S. holder, taxed as described above under
“U.S.
Holders — Gain or Loss on Sale, Taxable Exchange or Other Taxable
Disposition of Class A Common Stock and Private Placement
Warrants.”
If we give notice of an intention to redeem Private Placement
Warrants and a U.S. holder exercises its Private Placement Warrants
on a cashless basis and receives an amount of our Class A common
stock in respect thereof, we intend to treat such exercise as a
redemption of Private Placement Warrants for our Class A common
stock for U.S. federal income tax purposes. Such redemption should
be treated as a “recapitalization” within the meaning of Section
368(a)(1)(E) of the Code. Accordingly, a U.S. holder should not
recognize any gain or loss on the redemption of Private Placement
Warrants for our shares of Class A common stock. A
U.S. holder’s aggregate tax basis in the shares of our Class A
common stock received in the redemption generally should equal the
U.S. holder’s aggregate tax basis in the Private Placement Warrants
redeemed and the holding period for the shares of our Class A
common stock received should include the U.S. holder’s holding
period for the surrendered Private Placement Warrants. However,
there is some uncertainty regarding this tax treatment and it is
possible such a redemption could be treated differently, including
as, in part, a taxable exchange in which gain or loss would be
recognized in a manner similar to that discussed above for a
cashless exercise of Private Placement Warrants. Accordingly, a
U.S. holder is urged to consult its tax advisor regarding the tax
consequences of a redemption of Private Placement Warrants for
shares of our Class A common stock.
Information Reporting and Backup Withholding
In general, information reporting requirements may apply to
dividends paid to a U.S. holder and to the proceeds of the sale or
other disposition of our Class A common stock and Private Placement
Warrants, unless the U.S. holder is an exempt recipient. Backup
withholding may apply to such payments if the U.S. holder fails to
provide a taxpayer identification number or a certification of
exempt status or has been notified by the IRS that it is subject to
backup withholding (and such notification has not been
withdrawn).
Backup withholding is not an additional tax. Any amounts withheld
under the backup withholding rules will be allowed as a refund or a
credit against a U.S. holder’s U.S. federal income tax liability
provided the required information is timely furnished to the
IRS.
All U.S. holders should consult their tax advisors regarding the
application of information reporting and backup withholding to
them.
Non-U.S. Holders
This section applies to you if you are a “Non-U.S. holder.” As used
herein, the term “Non-U.S. holder” means a beneficial owner of our
Class A common stock or Private Placement Warrants who or that is
for U.S. federal income tax purposes:
•a
non-resident alien individual (other than certain former citizens
and residents of the U.S. subject to U.S. tax as
expatriates);
•a
foreign corporation; or
•an
estate or trust that is not a U.S. holder;
but generally does not include an individual who is present in the
U.S. for 183 days or more in the taxable year of disposition. If
you are such an individual, you should consult your tax advisor
regarding the U.S. federal income tax consequences of the
acquisition, ownership, sale, or other disposition of our
securities.
Taxation of Distributions
In general, any distributions (other than certain distributions of
our stock or rights to acquire our stock) made to a Non-U.S. holder
of shares of our Class A common stock, to the extent paid out of
our current or accumulated earnings and profits (as determined
under U.S. federal income tax principles), will constitute
dividends for U.S. federal income tax purposes and, provided such
dividends are not effectively connected with the Non-U.S. holder’s
conduct of a trade or business within the U.S., we will be required
to withhold tax from the gross amount of the dividend at a rate of
30%, unless such Non-U.S. holder is eligible for a reduced rate of
withholding tax under an applicable income tax treaty and provides
proper certification of its eligibility for such reduced rate
(usually on an IRS Form W-8BEN or W-8BEN-E). In the case of any
constructive dividend to a Non-U.S. holder of Private Placement
Warrants (as described above in “U.S.
Holders — Possible Constructive Dividends”),
it is possible that this tax would be withheld from any amount owed
to the Non-U.S. holder by the applicable withholding agent,
including cash distributions on other property or sale proceeds
from Private Placement Warrants or other property subsequently paid
or credited to such Non-U.S. holder. Any distribution not
constituting a dividend will be treated first as reducing (but not
below zero) the Non-U.S. holder’s adjusted tax basis in its shares
of our Class A common stock and, to the extent such distribution
exceeds the Non-U.S. holder’s adjusted tax basis, as gain realized
from the sale or other disposition of our Class A common stock,
which will be treated as described below under “Non-U.S.
Holders — Gain or Loss on Sale, Taxable Exchange or Other Taxable
Disposition of Class A Common Stock and Private Placement
Warrants”
below.
The withholding tax generally does not apply to dividends paid to a
Non-U.S. holder who provides a Form W-8ECI, certifying that the
dividends are effectively connected with the Non-U.S. holder’s
conduct of a trade or business within the U.S. Instead, the
effectively connected dividends will be subject to regular U.S.
federal income tax as if the Non-U.S. holder were a U.S. resident,
subject to an applicable income tax treaty providing otherwise. A
corporate Non-U.S. holder receiving effectively connected dividends
may also be subject to an additional “branch profits tax” imposed
at a rate of 30% (or a lower applicable treaty rate).
Gain or Loss on Sale, Taxable Exchange or Other Taxable Disposition
of Our Class A Common Stock and Private Placement
Warrants
A Non-U.S. holder generally will not be subject to U.S. federal
income or withholding tax in respect of gain recognized on a sale,
taxable exchange or other taxable disposition of our Class A common
stock or our Private Placement Warrants (including the expiration
or redemption of our Private Placement Warrants),
unless:
•the
gain is effectively connected with the conduct by the Non-U.S.
holder of a trade or business within the U.S. (and, under certain
income tax treaties, is attributable to a U.S. permanent
establishment or fixed base maintained by the Non-U.S.
holder);
•such
Non-U.S. holder is an individual who was present in the U.S. for
183 days or more in the taxable year of such disposition and
certain other requirements are met; or
•we
are or have been a “United States real property holding
corporation” for U.S. federal income tax purposes at any time
during the shorter of the five-year period ending on the date of
disposition or the period that the Non-U.S. holder held our Class A
common stock or Private Placement Warrants and, in the case where
shares of our Class A common stock are regularly traded on an
established securities market, the Non-U.S. holder has owned,
directly or constructively, more than five percent (5%) of our
Class A common stock at any time within the shorter of the
five-year period preceding the disposition or such Non-U.S.
holder’s holding period for the shares of our Class A common stock
or Private Placement Warrants. There can be no assurance that our
Class A common stock is or has been treated as regularly traded on
an established securities market for this purpose.
Unless an applicable treaty provides otherwise, gain described in
the first bullet point above will be subject to tax at generally
applicable U.S. federal income tax rates as if the Non-U.S. holder
were a U.S. resident. Any gains described in the first bullet point
above of a corporate Non-U.S. holder may also be subject to an
additional “branch profits tax” at a thirty percent (30%) rate (or
a lower applicable income tax treaty rate). If the second bullet
point applies to a Non-U.S. holder, such Non-U.S. holder will be
subject to U.S. tax on such Non-U.S. holder’s net capital gain for
such year (which will include any gain realized in connection with
the redemption and may be reduced by certain U.S. source capital
losses) at a tax rate of thirty percent (30%).
If the third bullet point above applies to a Non-U.S. holder, gain
recognized by such holder will be subject to tax at generally
applicable U.S. federal income tax rates. In addition, a buyer may
be required to withhold U.S. federal income tax at a rate of
fifteen percent (15%) of the amount realized upon such disposition.
We believe that we are not, and do not anticipate becoming, a
United States real property holding corporation. However, such
determination is factual in nature and subject to change and no
assurance can be provided as to whether we would be treated as a
United States real property holding corporation in any future
year.
Exercise, Lapse or Redemption of a Private Placement
Warrant
The U.S. federal income tax treatment of a Non-U.S. holder’s
exercise of a Private Placement Warrant, or the lapse of a Private
Placement Warrant held by a Non-U.S. holder, or the redemption of a
Private Placement Warrant held by a Non-U.S. holder generally will
correspond to the U.S. federal income tax treatment of the
exercise, lapse or redemption of a Private Placement Warrant by a
U.S. holder, as described above under “U.S.
Holders — Exercise, Lapse or Redemption of a Private Placement
Warrant”
above, although to the extent a cashless exercise or redemption of
a Private Placement Warrant results in a taxable exchange, the
consequences would be similar to those described above under
“Non-U.S.
Holders — Gain or Loss on Sale, Taxable Exchange or Other Taxable
Disposition of Class A Common Stock and Private Placement
Warrants.”
Information Reporting and Backup Withholding
Information returns will be filed with the IRS in connection with
payments of dividends and the proceeds from a sale or other
disposition of our Class A common stock and Private Placement
Warrants. A Non-U.S. holder may have to comply with certification
procedures to establish that it is not a U.S. person in order to
avoid information reporting and backup withholding requirements.
The certification procedures required to claim a reduced rate of
withholding under a treaty generally will satisfy the certification
requirements necessary to avoid the backup withholding as
well.
Backup withholding is not an additional tax. The amount of any
backup withholding from a payment to a Non-U.S. holder will be
allowed as a credit against such holder’s U.S. federal income tax
liability and may entitle such holder to a refund, provided that
the required information is timely furnished to the
IRS.
All Non-U.S. holders should consult their tax advisors regarding
the application of information reporting and backup withholding to
them.
FATCA Withholding Taxes
Sections 1471 through 1474 of the Code and the Treasury regulations
and administrative guidance promulgated thereunder (commonly
referred as the “Foreign Account Tax Compliance Act” or “FATCA”)
generally impose withholding at a rate of thirty percent (30%) in
certain circumstances on dividends in respect of our securities
which are held by or through certain foreign financial institutions
(including investment funds), unless any such institution (1)
enters into, and complies with, an agreement with the IRS to
report, on an annual basis, information with respect to interests
in, and accounts maintained by, the institution that are owned by
certain U.S. persons and by certain non-U.S. entities that are
wholly or
partially owned by U.S. persons and to withhold on certain
payments, or (2) if required under an intergovernmental agreement
between the U.S. and an applicable foreign country, reports such
information to its local tax authority, which will exchange such
information with the U.S. authorities. An intergovernmental
agreement between the U.S. and an applicable foreign country may
modify these requirements. Accordingly, the entity through which
our securities are held will affect the determination of whether
such withholding is required. Similarly, dividends in respect of
our securities held by an investor that is a non-financial non-U.S.
entity that does not qualify under certain exceptions will
generally be subject to withholding at a rate of thirty percent
(30%), unless such entity either (1) certifies to us or the
applicable withholding agent that such entity does not have any
“substantial United States owners” or (2) provides certain
information regarding the entity’s “substantial United States
owners,” which will in turn be provided to the U.S. Department of
Treasury. All prospective investors should consult their tax
advisors regarding the possible implications of FATCA on their
investment in our securities.
PLAN OF DISTRIBUTION
We are registering the issuance by us of up to 9,204,168 shares of
Class A common stock that are issuable upon the exercise of the
Warrants by the holders thereof. We are also registering the resale
by the Selling Securityholders or their permitted transferees from
time to time of (i) up to 95,237,463 shares of Class A common
stock, including up to 10,693,624 shares that are issuable as
Earnout Shares and 3,636,755 Option Shares, and (ii) 3,821,667
Private Placement Warrants.
We are required to pay all fees and expenses incident to the
registration of the shares of our common stock to be offered and
sold pursuant to this prospectus. The Selling Securityholders will
bear all commissions and discounts, if any, attributable to their
sale of shares of our common stock.
We will not receive any of the proceeds from the sale of the
securities by the Selling Securityholders.
We will receive proceeds from Warrants exercised in the event that
such Warrants are exercised for cash. The aggregate proceeds to the
Selling Securityholders will be the purchase price of the
securities less any discounts and commissions borne by the Selling
Securityholders. The shares of common stock beneficially owned by
the Selling Securityholders covered by this prospectus may be
offered and sold from time to time by the Selling Securityholders.
The term “Selling Securityholders” includes donees, pledgees,
transferees, or other successors in interest selling securities
received after the date of this prospectus from a Selling
Securityholder as a gift, pledge, partnership distribution, or
other transfer. The Selling Securityholders will act independently
of us in making decisions with respect to the timing, manner, and
size of each sale. Such sales may be made on one or more exchanges
or in the over-the-counter market or otherwise, at prices and under
terms then prevailing or at prices related to the then current
market price or in negotiated transactions. The Selling
Securityholders may sell their shares of common stock by one or
more of, or a combination of, the following methods:
•purchases
by a broker-dealer as principal and resale by such broker-dealer
for its own account pursuant to this prospectus;
•ordinary
brokerage transactions and transactions in which the broker
solicits purchasers;
•in
underwriter transactions;
•block
trades in which the broker-dealer so engaged will attempt to sell
the shares as agent but may position and resell a portion of the
block as principal to facilitate the transaction or any other
national securities exchange on which our securities are listed or
traded;
•an
over-the-counter distribution in accordance with the rules of the
Nasdaq;
•through
trading plans entered into by a Selling Securityholder pursuant to
Rule 10b5-1 under the Exchange Act, that are in place at the time
of an offering pursuant to this prospectus and any applicable
prospectus supplement hereto that provide for periodic sales of
their securities on the basis of parameters described in such
trading plans;
•to
or through underwriters or broker-dealers;
•in
“at the market” offerings, as defined in Rule 415 under the
Securities Act, at negotiated prices, at prices prevailing at the
time of sale or at prices related to such prevailing market prices,
including sales made directly on a national securities exchange or
sales made through a market maker other than on an exchange or
other similar offerings through sales agents;
•in
privately negotiated transactions;
•through
the writing of options (including put or call options), whether the
options are listed on an options exchange or
otherwise;
•through
the distribution of the securities by any Selling Securityholder to
its partners, members, or stockholders;
•in
short sales entered into after the effective date of the
registration statement of which this prospectus is a
part;
•by
pledge to secured debts and other obligations;
•through
a combination of any of the above methods of sale; or
•any
other method permitted pursuant to applicable law.
In addition, any shares that qualify for sale pursuant to Rule 144
may be sold under Rule 144 rather than pursuant to this
prospectus.
To the extent required, this prospectus may be amended or
supplemented from time to time to describe a specific plan of
distribution. In connection with distributions of the shares or
otherwise, the Selling Securityholders may enter into hedging
transactions with broker-dealers or other financial institutions.
In connection with such transactions, broker-dealers or
other
financial institutions may engage in short sales of shares of
common stock in the course of hedging the positions they assume
with Selling Securityholders.
The Selling Securityholders may also sell shares of common stock
short and redeliver the shares to close out such short positions.
The Selling Securityholders may also enter into option or other
transactions with broker-dealers or other financial institutions
which require the delivery to such broker-dealer or other financial
institution of shares offered by this prospectus, which shares such
broker-dealer or other financial institution may resell pursuant to
this prospectus (as supplemented or amended to reflect such
transaction). The Selling Securityholders may also pledge shares to
a broker-dealer or other financial institution, and, upon a
default, such broker-dealer or other financial institution, may
effect sales of the pledged shares pursuant to this prospectus (as
supplemented or amended to reflect such transaction).
A Selling Securityholder may enter into derivative transactions
with third parties, or sell securities not covered by this
prospectus to third parties in privately negotiated transactions.
If an applicable prospectus supplement indicates, in connection
with those derivatives, the third parties may sell securities
covered by this prospectus and the applicable prospectus
supplement, including in short sale transactions. If so, the third
party may use securities pledged by any Selling Securityholder or
borrowed from any Selling Securityholder or others to settle those
sales or to close out any related open borrowings of stock, and may
use securities received from any Selling Securityholder in
settlement of those derivatives to close out any related open
borrowings of stock. If applicable through securities laws, the
third party in such sale transactions will be an underwriter and
will be identified in the applicable prospectus supplement (or a
post-effective amendment). In addition, any Selling Securityholder
may otherwise loan or pledge securities to a financial institution
or other third party that in turn may sell the securities short
using this prospectus. Such financial institution or other third
party may transfer its economic short position to investors in our
securities or in connection with a concurrent offering of other
securities.
In effecting sales, broker-dealers or agents engaged by the Selling
Securityholders may arrange for other broker-dealers to
participate. Broker-dealers or agents may receive commissions,
discounts, or concessions from the Selling Securityholders in
amounts to be negotiated immediately prior to the
sale.
In offering the securities covered by this prospectus, the Selling
Securityholders and any broker-dealers who execute sales for the
Selling Securityholders may be deemed to be “underwriters” within
the meaning of the Securities Act in connection with such sales.
Any profits realized by the Selling Securityholders and the
compensation of any broker-dealer may be deemed to be underwriting
discounts and commissions.
In order to comply with the securities laws of certain states, if
applicable, the securities must be sold in such jurisdictions only
through registered or licensed brokers or dealers. In addition, in
certain states the securities may not be sold unless they have been
registered or qualified for sale in the applicable state or an
exemption from the registration or qualification requirement is
available and is complied with.
We have advised the Selling Securityholders that the
anti-manipulation rules of Regulation M under the Exchange Act may
apply to sales of securities in the market and to the activities of
the Selling Securityholders and their affiliates. In addition, we
will make copies of this prospectus available to the Selling
Securityholders for the purpose of satisfying the prospectus
delivery requirements of the Securities Act. The Selling
Securityholders may indemnify any broker-dealer that participates
in transactions involving the sale of the shares against certain
liabilities, including liabilities arising under the Securities
Act.
At the time a particular offer of securities is made, if required,
a prospectus supplement will be distributed that will set forth the
number of securities being offered and the terms of the offering,
including the name of any underwriter, dealer, or agent, the
purchase price paid by any underwriter, any discount, commission,
and other item constituting compensation, any discount, commission,
or concession allowed or reallowed or paid to any dealer, and the
proposed selling price to the public.
A holder of Warrants may exercise its Warrants in accordance with
the Warrant Agreement on or before the expiration date set forth
therein by surrendering, at the office of the Warrant Agent,
Continental Stock Transfer & Trust Company, the certificate
evidencing such Warrant, with the form of election to purchase set
forth thereon, properly completed and duly executed, accompanied by
full payment of the exercise price and any and all applicable taxes
due in connection with the exercise of the Warrant, subject to any
applicable provisions relating to cashless exercises in accordance
with the Warrant Agreement.
LEGAL MATTERS
The validity of any securities offered by this prospectus will be
passed upon for us
by Davis Polk & Wardwell LLP, Menlo Park,
California.
EXPERTS
The consolidated financial statements of PLAYSTUDIOS, Inc. as of
December 31, 2021 and 2020, and for each of the three years in the
period ended December 31, 2021, incorporated by reference into this
prospectus have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their
reports. Such financial statements are incorporated by reference in
reliance upon reports of such firm given their authority as experts
in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement on Form S-1 on
Form S-3 we filed with the SEC under the Securities Act and does
not contain all the information set forth or incorporated by
reference in the registration statement. Whenever a reference is
made in this prospectus to any of our contracts, agreements or
other documents, the reference may not be complete, and you should
refer to the exhibits that are a part of the registration statement
or the exhibits to the reports or other documents incorporated by
reference into this prospectus for a copy of such contract,
agreement or other document. You may obtain copies of the
registration statement and its exhibits as described
below.
We are required to file annual, quarterly and current reports,
proxy statements and other information with the SEC as required by
the Exchange Act. You can read our SEC filings, including this
prospectus, over the Internet at the SEC’s website at
http://www.sec.gov.
Our website address is https://playstudios.com. Through our
website, we make available, free of charge, the following documents
as soon as reasonably practicable after they are electronically
filed with, or furnished to, the SEC: our Annual Reports on Form
10-K; our proxy statements for our annual and special stockholder
meetings; our Quarterly Reports on Form 10-Q; our Current Reports
on Form 8-K; Forms 3, 4, and 5 and Schedules 13D with respect to
our securities filed on behalf of our directors and our executive
officers; and amendments to those documents. The information
contained on, or that may be accessed through, our website is not a
part of, and is not incorporated into, this
prospectus.
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The rules of the SEC allow us to incorporate information into this
prospectus by reference. This means that we are disclosing
important information to you by referring you to other documents
filed separately with the SEC. The information incorporated by
reference is considered to be part of this prospectus and any
applicable prospectus supplement, except for any information
superseded by information contained directly in this prospectus or
the applicable prospectus supplement or in any subsequently filed
incorporated document. This prospectus and any applicable
prospectus supplement incorporate by reference the documents listed
below that we have previously filed with the SEC (other than any
portions thereof, which under the Exchange Act, and applicable SEC
rules, are not deemed “filed” under the Exchange Act), and all
documents that we subsequently file with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the
termination of the offering of securities by means of this
prospectus, from their respective filing dates (other than any
portions thereof, which under the Exchange Act, and applicable SEC
rules, are not deemed “filed” under the Exchange Act):
•our
Annual Report on Form 10-K for the year ended December 31, 2021,
filed with the SEC on
March
3,
2022;
•our
Quarterly Report on Form 10-Q for the quarterly period ended March
31, 2022, filed with the SEC on
May 6, 2022;
and
•our
Current Reports on Form 8-K filed with the SEC on
February
24, 2022
(as amended by Amendment No. 1 to our Current Report on Form 8-K/A
filed with the SEC on
February 25, 2022),
April 1, 2022,
April 28, 2022,
May 5, 2022,
May 18,
2022,
and
June 10,
2022.
The information incorporated by reference into this prospectus is
an important part of this prospectus. Neither we nor any
underwriters have authorized anyone to provide you with information
other than that contained in or incorporated by reference into this
prospectus. You should not assume that the information in this
prospectus is accurate as of any date other than the date of this
prospectus.
We will provide to each person, including any beneficial owner, to
whom a prospectus is delivered, a copy of any or all of the
information that has been
incorporated by reference in the prospectus but not delivered with
the prospectus, including
any exhibits that are specifically incorporated by reference in
that information. We will provide this information upon written or
oral request, at no cost to the requester. You may request this
information by contacting PLAYSTUDIOS, Inc.,
10150 Covington Cross Drive, Las Vegas, Nevada
89144,
Attn: Investor Relations Department, Phone:
(725) 877-7000.
See section titled “Where
You Can Find More Information.”
PART II
Information Not Required in Prospectus
ITEM 14. Other Expenses of Issuance and
Distribution.
The following is an estimate of the expenses (all of which are to
be paid by the registrant) that we may incur in connection with the
securities being registered hereby.
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Amount |
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SEC registration fee |
$ |
90,419 |
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Legal fees and expenses |
50,000 |
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Accounting fees and expenses |
10,000 |
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Miscellaneous |
10,000 |
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Total |
160,419 |
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ITEM 15. Indemnification of Directors and
Officers.
Section 145 of the DGCL provides that a corporation may indemnify
directors and officers as well as other employees and individuals
against expenses (including attorneys’ fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such
person in connection with any threatened, pending or completed
actions, suits or proceedings in which such person is made a party
by reason of such person being or having been a director, officer,
employee or agent to the registrant. The DGCL provides that Section
145 is not exclusive of other rights to which those seeking
indemnification may be entitled under any bylaw, agreement, vote of
stockholders
or disinterested directors or otherwise. Article 8 of our
Certificate of Incorporation provides for indemnification by the
registrant of its directors, officers and employees to the fullest
extent permitted by the DGCL. We have entered into indemnification
agreements with each of our current directors and executive
officers to provide our directors and executive officers additional
contractual assurances regarding the scope of the indemnification
set forth in our amended and restated certificate of incorporation
and amended and restated bylaws and to provide additional
procedural protections. There is no pending litigation or
proceeding involving any of our directors or executive officers for
which indemnification is sought.
Section 102(b)(7) of the DGCL permits a corporation to provide in
its certificate of incorporation that a director of the corporation
shall not be personally liable to the corporation or its
stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s
duty of loyalty to the corporation or its stockholders, (ii) for
acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) for unlawful
payments of dividends or unlawful stock repurchases, redemptions or
other distributions, or (iv) for any transaction from which the
director derived an improper personal benefit. Our
Certificate
of Incorporation provides for such limitation of
liability.
We have purchased and intend to maintain insurance on behalf of any
person who is or was a director or officer against any loss arising
from any claim asserted against him or her and incurred by him or
her in any such capacity, subject to certain
exclusions.
ITEM 16. Exhibits.
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Exhibit Number |
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of February 1, 2021, by and
among Acies Acquisition Corp., Catalyst Merger Sub I, Inc., a
wholly owned subsidiary of Acies Acquisition Corp., Catalyst Merger
Sub II, LLC, a wholly owned subsidiary of Acies Acquisition Corp.
and PlayStudios, Inc. (incorporated by reference to Exhibit 2.1 to
Acies Acquisition Corp.’s Current Report on Form 8-K filed February
2, 2021).
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3.1 |
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3.2 |
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4.1 |
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4.2 |
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5.1 |
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10.1 |
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23.1* |
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23.2 |
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24.1 |
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Power of Attorney (included on page II-6 of the original filing of
this Registration Statement).
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ITEM 17. Undertakings.
(a)The
undersigned registrant hereby undertakes:
(1)To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration
statement:
(i)to
include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii)to
reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form
of prospectus filed with the Securities and Exchange Commission
(the “Commission”) pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than 20 percent
change in the maximum aggregate offering price set forth in the
“Calculation of Registration Fee” table in the effective
registration statement; and
(iii)to
include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided,
however,
that: Paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this
section do not apply if the information required to be included in
a post-effective amendment by those paragraphs is contained in
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act that
are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b)
that is part of the registration statement.
(2)That,
for the purpose of determining any liability under the Securities
Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(3)To
remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(4)That,
for the purpose of determining liability under the Securities Act
to any purchaser:
(i)if
the registrant is relying on Rule 430B
(A)Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall
be deemed to be part of the registration statement as of the date
the filed prospectus was deemed part of and included in the
registration statement; and
(B)Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5)
or (b)(7) as part of a registration statement in reliance on Rule
430B relating to an offering made pursuant to Rule 415(a)(1)(i),
(vii) or (x) for the purpose of providing the information required
by Section 10(a) of the Securities Act shall be deemed to be part
of and included in the registration statement as of the earlier of
the date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in Rule 430B, for
liability purposes of the issuer and any person that is at that
date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the
securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Provided, however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify
any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in
any such document immediately prior to such effective date;
or
(ii)If
the registrant is subject to Rule 430C (§ 230.430C of this
chapter), each prospectus filed pursuant to Rule 424(b) as part of
a registration statement relating to an offering, other than
registration statements relying on Rule 430B or other than
prospectuses filed in reliance on Rule 430A (§ 230.430A of this
chapter), shall be deemed to be part of and included in the
registration statement as of the date it is first used after
effectiveness.
Provided,
however,
that no statement made in a registration statement or prospectus
that is part of the registration statement or made in a document
incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of
contract of sale prior to such first use, supersede or modify any
statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such
document immediately prior to such date of first use.
(5)That,
for the purpose of determining liability of the registrant under
the Securities Act to any purchaser in the initial distribution of
the securities, the undersigned registrant undertakes that in a
primary offering of securities of the undersigned registrant
pursuant to this registration statement, regardless of the
underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of
any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer
or sell such securities to such purchaser:
(i)Any
preliminary prospectus or prospectus of the undersigned registrant
relating to the offering required to be filed pursuant to Rule
424;
(ii)Any
free writing prospectus relating to the offering prepared by or on
behalf of the undersigned registrant or used or referred to by the
undersigned registrant;
(iii)The
portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)Any
other communication that is an offer in the offering made by the
undersigned registrant to the purchaser.
(b)Insofar
as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with
the
securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by
the final adjudication of such issue.
(c)The
undersigned registrant hereby undertakes that:
(1)For
purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant
to Rule 424(b) (1) or (4) or 497(h) under the Securities Act shall
be deemed to be part of this registration statement as of the time
it was declared effective.
(2)For
the purpose of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, the registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Post-Effective Amendment No. 2 to the
Registration Statement on Form S-1 on Form S-3 to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Las Vegas, the State of Nevada, on the 13th day of July,
2022.
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PLAYSTUDIOS, Inc. |
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By: |
/s/ Andrew Pascal |
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Name: |
Andrew Pascal |
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Title: |
Chief Executive Officer and Chairman of the Board of
Directors |
Pursuant to the requirements of the Securities Act of 1933, as
amended, this Post-Effective Amendment No. 2 to the Registration
Statement on Form S-1 on Form S-3 has been signed below by the
following persons in the capacities and on the dates
indicated.
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SIGNATURE |
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TITLE |
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DATE |
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/s/ Andrew Pascal |
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Chief Executive Officer (Principal Executive Officer) and Chairman
of the Board |
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July 13, 2022 |
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Andrew Pascal |
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* |
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Chief Financial Officer (Principal Financial and Accounting
Officer) |
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July 13, 2022 |
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Scott Peterson |
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* |
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Director |
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July 13, 2022 |
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James Murren |
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* |
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Director |
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July 13, 2022 |
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Judy K. Mencher |
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* |
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Director |
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July 13, 2022 |
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Jason Krikorian |
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* |
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Director |
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July 13, 2022 |
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Joe Horowitz |
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* |
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Director |
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July 13, 2022 |
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Steven J. Zanella |
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*By: |
/s/ Andrew Pascal |
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Andrew Pascal |
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Attorney-in-fact |
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