Exhibit 10.1

Exchange Agreement

BY AND AMONG

Simplicity Esports and Gaming Company,

Diverted River Technology, LLC,

The Member(s) of Diverted River Technology, LLC from Time to Time

And

Zachary Johnson as the Members’ Representative

TABLE OF CONTENTS

EXCHANGE AGREEMENT

Dated as of September 28, 2022

This Exchange Agreement (this “Agreement”) is entered into as of the date first set forth above (the “Effective Date”) by and between (i) Simplicity Esports and Gaming Company, a Delaware corporation (the “Company”); (ii) Diverted River Technology, LLC, an Indiana limited liability company (“DRT”), (iii) Diamond Dogs Investments, LLC, an Indiana limited liability company (“DDI”), which is the sole member of DRT as of the Effective Date, (iv) any Person (as defined below) who may become a member of DRT following the Effective Date and who shall join this Agreement as set forth herein (the “Joining Members”) and (v) Zachary Johnson as the Representative of the DRT Members, as defined below (the “Members’ Representative”). Each of DRT and the DRT Members at any applicable time may be referred to collectively herein as the “DRT Parties” and separately as a “DRT Party”. Each of the Company, each DRT Party and the Members’ Representative may be referred to herein collectively as the “Parties” and separately as a “Party”.

WHEREAS, at the Closing (as defined below), the Company agrees to acquire from the DRT Members 100% of the membership interests of DRT (the “Membership Interests”) held by the DRT Members as of the Closing in exchange for the issuance by the Company to the DRT Members of shares of the Company’s common stock, par value $0.0001 per share (the “Company Common Stock”); and

WHEREAS, DRT will become a wholly owned subsidiary of the Company;

NOW THEREFORE, on the stated premises and for and in consideration of the mutual covenants and agreements hereinafter set forth and the mutual benefits to the Parties to be derived herefrom, and intending to be legally bound hereby, it is hereby agreed as follows:

ARTICLE I. DEFINITIONS AND INTERPRETATIONS

Section 1.01 Definitions. The following terms, as used herein, have the following meanings

Section 1.02 Interpretive Provisions. Unless the express context otherwise requires (i) the words “hereof,” “herein,” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement; (ii) terms defined in the singular shall have a comparable meaning when used in the plural, and vice versa; (iii) the terms “Dollars” and “$” mean United States Dollars; (iv) references herein to a specific Section, Subsection, Recital or Exhibit shall refer, respectively, to Sections, Subsections, Recitals or Exhibits of this Agreement; (v) wherever the word “include,” “includes,” or “including” is used in this Agreement, it shall be deemed to be followed by the words “without limitation”; (vi) references herein to any gender shall include each other gender; (vii) references herein to any Person shall include such Person’s heirs, executors, personal Representatives, administrators, successors and assigns; provided, however, that nothing contained herein is intended to authorize any assignment or transfer not otherwise permitted by this Agreement; (viii) references herein to a Person in a particular capacity or capacities shall exclude such Person in any other capacity; (ix) references herein to any Contract or agreement (including this Agreement) mean such Contract or agreement as amended, supplemented or modified from time to time in accordance with the terms thereof; (x) with respect to the determination of any period of time, the word “from” means “from and including” and the words “to” and “until” each means “to but excluding”; (xi) references herein to any Law or any license mean such Law or license as amended, modified, codified, reenacted, supplemented or superseded in whole or in part, and in effect from time to time; and (xii) references herein to any Law shall be deemed also to refer to all rules and regulations promulgated thereunder.

ARTICLE II. THE TRANSACTIONS

Section 2.01 DRT Members.

Section 2.02 The Exchange.

Section 2.03 Closing. The closing of the Transactions (the “Closing”) shall occur on second Business Day following the satisfaction or waiver (by the Party for whose benefit the conditions to exist) of the conditions to closing set forth in Section 6.01, Section 6.02 and Section 6.03, or at such other date, time or place as the Parties may agree (the date and time at which the Closing is actually held being the “Closing Date”), via the exchange of electronic documents and other items as required herein.

Section 2.04 Directors and Officers; Employment Agreements.

Section 2.05 DRT Deliverables at the Closing. At the Closing, DRT or the DRT Members, as applicable, shall deliver to the Company the following:

Section 2.06 Company Deliverables at the Closing. At the Closing, the Company shall:

Section 2.07 Actions Prior to the Closing. The Parties acknowledge and agree that, prior to the Closing and as a condition thereto, the Company shall complete an amendment of its Certificate of Incorporation to increase the authorized shares of Company Common Stock to 250,000,000 shares (the “Authorized Shares Increase”), and the representations and warranties related thereto shall be deemed automatically updated upon the completion of the Authorized Shares Increase.

Section 2.08 Additional Documents. At and following the Closing, the Company, DRT, the Members’ Representative and the DRT Members shall execute, acknowledge, and deliver (or shall ensure to be executed, acknowledged, and delivered), any and all certificates, opinions, financial statements, schedules, agreements, resolutions, rulings or other instruments required by this Agreement to be so delivered at or prior to or following the Closing, together with such other items as may be reasonably requested by the Parties and their respective legal counsel in order to effectuate or evidence the Transactions.

Section 2.09 Change of Name. The Parties acknowledge and agree that, following the Closing, the Company expects to undertake a change of name to “Diverted River Technology, Inc.” or such other name as determined by the Company Board following the Closing.

Section 2.10 Conveyance Taxes. Each DRT Member will pay all sales, use, value added, transfer, stamp, registration, documentary, excise, real property transfer or gains, or similar Taxes incurred by such DRT Member as a result of the Transactions.

ARTICLE III. Representations and Warranties of the DRT Parties

As an inducement to, and to obtain the reliance of the Company, the DRT Parties, jointly and severally (other than with respect to the representations and warranties as set forth in Section 3.08 and Section 3.26 which are given by each DRT Member individually, severally and not jointly and severally, and solely with respect to the Membership Interests held by such DRT Member and with respect to the Exchange Shares to be received by such DRT Member, as applicable) represent and warrant to the Company, as of the Effective Date, as of the Joinder Date if applicable, and as of the Closing Date, except as otherwise specifically set forth below as to representations and warranties which speak solely with respect to a particular date as follows:

Section 3.01 Corporate Existence and Power. DRT is a limited liability company duly organized, validly existing, and in good standing under the Laws of the state of Indiana, and has the corporate power and is duly authorized under all applicable Laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. DRT has delivered to the Company complete and correct copies of the formation documents, organizational documents and operating agreement of DRT as in effect on the Effective Date (collectively, the “DRT Organizational Documents”). DRT has full limited liability company power and authority to carry on its businesses as it is now being conducted and as now proposed to be conducted and to own or lease its properties and assets. DRT does not own any Equity Securities of any other Person and has no subsidiaries.

Section 3.02 Due Authorization. The execution, delivery and performance of this Agreement does not, and the consummation of the Transactions will not, violate any provision of the DRT Organizational Documents. DRT has taken all actions required by Law, the DRT Organizational Documents or otherwise to authorize the execution, delivery and performance of this Agreement and to consummate the Transactions.

Section 3.03 Valid Obligation. This Agreement and all Transaction Documents executed by DRT and the DRT Members in connection herewith constitute the valid and binding obligations of DRT and the DRT Members, as applicable, enforceable in accordance with its or their terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.

Section 3.04 No Conflict With Other Instruments. The execution of this Agreement by DRT and the DRT Members and the consummation of the Transactions by DRT and the DRT Members will not result in the breach of any term or provision of, constitute a default under, or terminate, accelerate or modify the terms of, any indenture, mortgage, deed of trust, or other material agreement or instrument to which DRT or any DRT Member is a party or to which any of their respective assets, properties or operations are subject.

Section 3.05 Governmental Authorization. Neither the execution, delivery nor performance of this Agreement by any DRT Party requires any consent, approval, license or other action by or in respect of, or registration, declaration or filing with any Governmental Authority.

Section 3.06 Authorized Interests.

Section 3.07 Validity of Interests. The Membership Interests to be delivered at the Closing shall be duly and validly issued, fully paid and non-assessable and free and clear of any Liens.

Section 3.08 Title to and Issuance of the Membership Interests. Such DRT Member is, on the Effective Date if this Agreement is executed by such DRT Member on the Effective Date and on the Joinder Date if this Agreement is executed by such DRT Member on a Joinder Date, and on the Closing Date will be, the record and beneficial owner and holder of the Membership Interests to be delivered at the Closing, as set forth on the Capitalization Table at the applicable time, free and clear of all Liens. None of the Membership Interests held by such DRT Member is subject to pre-emptive or similar rights, either pursuant to any DRT Organizational Document, requirement of Law or any Contract, and no Person has any pre-emptive rights or similar rights to purchase or receive any Membership Interests or other interests in DRT from such DRT Member. If such DRT Member is an entity, the governing or managing body or persons of such DRT Member has authorized the execution and delivery of this Agreement by such DRT Member and has approved this Agreement and the Transactions.

Section 3.09 Litigation and Proceedings. There are no actions, suits, proceedings, or investigations pending or, to the Knowledge of DRT, threatened, by or against DRT or affecting DRT or its properties, at law or in equity, before any court or other governmental agency or instrumentality, domestic or foreign, or before any arbitrator of any kind. DRT does not have any knowledge of any material default on its part with respect to any judgment, order, injunction, decree, award, rule, or regulation of any court, arbitrator, or governmental agency or instrumentality or of any circumstances which, after reasonable investigation, would result in the discovery of such a default.

Section 3.10 General Compliance. To the Knowledge of DRT, it is not: (i) in default under or in violation of (and no event has occurred that has not been waived that, with notice, lapse of time or both, would result in a default by DRT under), nor has DRT received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived); (ii) in violation of any judgment, decree or order of any court, arbitrator or other governmental authority; or (iii) or has not been, in violation of any statute, rule, ordinance or regulation of any governmental authority, including without limitation all foreign, federal, state and local Laws relating to Taxes, registration as a charitable organization, and employment and labor matters, except in each case as could not have or reasonably be expected to result in a Material Adverse Effect.

Section 3.11 Compliance with Laws; Permits.

Section 3.12 Contracts.

Section 3.13 Intellectual Property.

Section 3.14 Condition and Sufficiency of Assets. Except for ordinary wear and tear, the buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property of DRT are structurally sound, are in good operating condition and repair, and are adequate for the uses to which they are being put, and none of such buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property is in need of maintenance or repairs except for ordinary, routine maintenance and repairs that are not material in nature or cost. The buildings, plants, structures, furniture, fixtures, machinery, equipment, vehicles and other items of tangible personal property currently owned or leased by DRT, together with all other properties and assets of DRT, are sufficient for the conduct of DRT’s business as conducted as of the Effective Date and as of the Closing and constitute all of the rights, property and assets necessary to conduct the business of DRT as conducted as of the Closing.

Section 3.15 Accounts Receivable. The accounts receivable reflected on the books and records of DRT and the accounts receivable arising after the date thereof (a) have arisen from bona fide transactions entered into by DRT involving the sale of goods or the rendering of services in the Ordinary Course of Business; (b) constitute only valid, undisputed claims of DRT not subject to claims of set-off or other defenses or counterclaims other than normal cash discounts accrued in the Ordinary Course of Business; and (c) are collectible in full within ninety (90) calendar days after billing.

Section 3.16 Title. DRT has good and marketable title in fee simple to all real property owned by it, or leases such real property pursuant to valid and in-force lease agreements, and has good and marketable title in all personal property owned by it that is material to the business of DRT, in each case free and clear of all Liens and, except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by DRT and Liens for the payment of federal, state or other Taxes, the payment of which is neither delinquent nor subject to penalties. Any real property and facilities held under lease by DRT is held under valid, subsisting and enforceable leases with which DRT is in compliance with such exceptions as are not material and do not interfere with the use made and proposed to be made of such property and buildings by DRT.

Section 3.17 Insurance. DRT is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as management of DRT believes to be prudent and customary in the businesses in which DRT is engaged. DRT has not been refused any insurance coverage sought or applied for, and DRT has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not materially and adversely affect the condition, financial or otherwise, or the earnings, business or operations of DRT, taken as a whole.

Section 3.18 Taxes.

Section 3.19 Transactions with Affiliates. None of the members, managers or officers or directors of DRT and, to the Knowledge of DRT, none of the employees of DRT, is presently a party to any transaction with DRT (other than for services as employees, officers and directors), including any Contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee or, to the Knowledge of DRT, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of the lesser of (i) $120,000 or (ii) one percent of the average of DRT’s total assets at year-end for the last two completed fiscal years, other than for (i) payment of salary or consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of DRT and (iii) other employee benefits, including stock option agreements under any stock option plan of DRT.

Section 3.20 Foreign Corrupt Practices. Neither DRT, nor, to the Knowledge of DRT, any agent or other Person acting on behalf of DRT, has (i) directly or indirectly, used any funds for unlawful contributions, gifts, entertainment or other unlawful expenses related to foreign or domestic political activity, (ii) made any unlawful payment to foreign or domestic government officials or employees or to any foreign or domestic political parties or campaigns from corporate funds, (iii) failed to disclose fully any contribution made by DRT (or made by any Person acting on its behalf of which DRT is aware) which is in violation of Law, or (iv) violated in any material respect any provision of the Foreign Corrupt Practices Act of 1977, as amended.

Section 3.21 Money Laundering. DRT is in compliance with, and has not previously violated, the USA PATRIOT ACT of 2001 and all other applicable U.S. and non-U.S. anti-money laundering Laws and regulations, including, but not limited to, the Laws, regulations and Executive Orders and sanctions programs administered by the U.S. Office of Foreign Assets Control, including, but not limited, to (i) Executive Order 13224 of September 23, 2001 entitled, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism” (66 Fed. Reg. 49079 (2001)); and (ii) any regulations contained in 31 CFR, Subtitle B, Chapter V.

Section 3.22 Illegal or Unauthorized Payments; Political Contributions. Neither DRT nor, to the Knowledge of DRT, any of the managers, officers, directors, employees, agents or other representatives of DRT or any other business entity or enterprise with which DRT is or has been affiliated or associated, has, directly or indirectly, made or authorized any payment, contribution or gift of money, property, or services, whether or not in contravention of applicable Law, (a) as a kickback or bribe to any Person or (b) to any political organization, or the holder of or any aspirant to any elective or appointive public office except for personal political contributions not involving the direct or indirect use of funds of DRT.

Section 3.23 Environmental Laws. To Knowledge of DRT, DRT (i) is in compliance with any and all applicable foreign, federal, state and local Laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or contaminants (“Environmental Laws”), (ii) has received all Permits, licenses or other approvals required of it under applicable Environmental Laws to conduct its respective businesses and (iii) is in compliance with all terms and conditions of any such Permit, license or approval, except where, in each of the three foregoing clauses, the failure to so comply could not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.

Section 3.24 Investment Company. DRT is not an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

Section 3.25 No Disqualification Events. None of DRT, any of its predecessors, any affiliated issuer, any director, executive officer, other officer of DRT, any beneficial owner of 20% or more of DRT’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Securities Act) connected with DRT in any capacity at the time of sale (each, an “Issuer Covered Person”) is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) under the Securities Act (a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3) under the Securities Act. DRT has exercised reasonable care to determine whether any Issuer Covered Person is subject to a Disqualification Event.

Section 3.26 Investment Representations. For purposes of this Section 3.26, any reference to the “Exchange Shares” shall be deemed solely to be a reference to the portion of the Exchange Shares being delivered to such applicable DRT Member.

Section 3.27 Approval of Agreement. The DRT Members and any manager of DRT have each authorized the execution and delivery of this Agreement by DRT and the DRT Members and have approved this Agreement and the Transactions. The execution of a Joinder by any DRT Member who joins this Agreement following the Effective Date shall be deemed, and shall be, an approval and authorization of this Agreement by such DRT Member as of the Joinder Date.

Section 3.28 No Brokers. No DRT Party has retained any broker or finder in connection with any of the Transactions, and no DRT Party has incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee, finder’s fee or other similar fee or commission with respect to any of the Transactions.

ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF THE COMPANY

As an inducement to, and to obtain the reliance of DRT and the DRT Members, the Company represents and warrants to DRT and the DRT Members, as of the Effective Date and as of the Closing Date except as otherwise specifically set forth below as to representations and warranties which speak solely with respect to a particular date, and other than as set forth in the reports and filings made by the Company with the SEC pursuant to the Securities Act or the Exchange Act (the “SEC Reports”), as follows:

Section 4.01 Corporate Existence and Power. The Company is a corporation duly organized, validly existing, and in good standing under the Laws of the State of Delaware and has the corporate power and is duly authorized under all applicable Laws, regulations, ordinances, and orders of public authorities to carry on its business in all material respects as it is now being conducted. The SEC Reports contain copies of the articles of incorporation and bylaws of the Company as in effect on the Effective Date (the “Company Organizational Documents”). The execution and delivery of this Agreement does not, and the consummation of the Transactions will not, violate any provision of the Company Organizational Documents. The Company has taken all action required by Law, the Company Organizational Documents, or otherwise to authorize the execution and delivery of this Agreement, and the Company has full power, authority, and legal right and has taken all action required by Law, the Company Organizational Documents or otherwise to consummate the Transactions.

Section 4.02 Due Authorization. The execution, delivery and performance of this Agreement does not, and the consummation of the Transactions will not, violate any provision of the Company Organizational Documents. The Company has taken all actions required by Law, the Company Organizational Documents or otherwise to authorize the execution, delivery and performance of this Agreement and to consummate the Transactions.

Section 4.03 Valid Obligation. This Agreement and all agreements and other documents executed by the Company in connection herewith constitute the valid and binding obligations of the Company, enforceable in accordance with its or their terms, except as may be limited by bankruptcy, insolvency, moratorium or other similar Laws affecting the enforcement of creditors’ rights generally and subject to the qualification that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.

Section 4.04 No Conflict With Other Instruments. The execution of this Agreement by the Company and the consummation of the Transactions by the Company will not result in the breach of any term or provision of, constitute a default under, or terminate, accelerate or modify the terms of, any indenture, mortgage, deed of trust, or other material agreement or instrument to which the Company is a party or to which any of its assets, properties or operations are subject.

Section 4.05 Governmental Authorization. Neither the execution, delivery nor performance of this Agreement by the Company requires any consent, approval, license or other action by or in respect of, or registration, declaration or filing with any Governmental Authority.

Section 4.06 Authorized Shares and Capital. The authorized capital stock and the issued and outstanding capital stock of the Company is as set forth in the SEC Reports.

Section 4.07 Validity of Shares. The Exchange Shares to be delivered at the Closing shall be duly and validly issued, fully paid and non-assessable and free and clear of any Liens.

Section 4.08 Approval of Agreement. The Company Board has authorized the execution and delivery of this Agreement by the Company and has approved this Agreement and the Transactions.

Section 4.09 No Brokers. The Company has not retained any broker or finder in connection with any of the Transactions, and the Company has not incurred or agreed to pay, or taken any other action that would entitle any Person to receive, any brokerage fee, finder’s fee or other similar fee or commission with respect to any of the Transactions.

Section 4.10 No Liabilities. At Closing, the Company has no (i) outstanding debt instruments that are convertible into Company Common Stock or Company preferred stock; (ii) outstanding liabilities related to the purchase, lease, or rental of any real property; (iii) outstanding state or federal tax liabilities accruing prior to Closing; or (iv) debt to any Person who is or was an executive officer, director, or nominee for director of the Company, any shareholder, or an immediate family member or Affiliate of any such Person.

ARTICLE V. ADDITIONAL COVENANTS OF THE PARTIES

Section 5.01 Delivery of Books and Records. At the Closing, DRT shall deliver to the Company the originals of the minute books, books of account, Contracts, records, and all other books or documents of DRT now in the possession of DRT or its Representatives.

Section 5.02 Third Party Consents and Certificates. The Company and the DRT Parties agree to cooperate with each other in order to obtain any required third party consents to this Agreement and the Transactions.

Section 5.03 Notices of Certain Events. In addition to any other notice required to be given by the terms of this Agreement, each of the Parties shall promptly notify each of the other Parties of:

Section 5.04 Due Diligence Review.

Section 5.05 No-Shop.

Section 5.06 Affirmative Covenants. Between the Effective Date and the Closing Date or earlier termination of this Agreement in accordance with its terms, and except as otherwise contemplated by this Agreement or as the Company shall otherwise consent in writing in advance, each DRT Party shall, and shall cause each of their Representatives to:

Section 5.07 Negative Covenants.

ARTICLE VI. CONDITIONS TO THE CLOSING

Section 6.01 Conditions to the Obligations of all of the Parties. The obligations of all of the Parties to consummate the Closing are subject to the satisfaction, or waiver by each of the Parties, at or before the Closing Date, of all the following conditions:

Section 6.02 Conditions to the Obligations of the Company for the Closing. The obligations of the Company to consummate the Closing are subject to the satisfaction (or waiver by the Company), at or before the Closing Date, of the following conditions:

Section 6.03 Condition to the Obligations of the DRT Parties For the Closing. The obligations of the DRT Parties to consummate the Closing are subject to the satisfaction (or waiver by DRT and the Members’ Representative on behalf of the DRT Members), at or before the Closing Date, of the following conditions:

ARTICLE VII. TERMINATION; SURVIVAL

Section 7.01 Termination. This Agreement may be terminated at any time prior to the Closing:

Section 7.02 Specific Enforcement. Notwithstanding the foregoing, the Parties acknowledge and agree that (i) if the Company has a right to terminate this Agreement pursuant to the provisions of clause (ii) of Section 7.01(b), the Company may elect not to terminate this Agreement and may instead seek to specifically enforce this Agreement pursuant to the provisions of Section 9.19; and (ii) if DRT and the Members’ Representative has a right to terminate this Agreement pursuant to the provisions of clause (ii) of Section 7.01(c), DRT and the Members’ Representative may elect not to terminate this Agreement and may instead seek to specifically enforce this Agreement pursuant to the provisions of Section 9.19.

Section 7.03 Survival After Termination. If this Agreement is terminated by in accordance with Section 7.01, this Agreement shall become void and of no further force and effect with no liability to any Person on the part of any Party hereto (or any officer, agent, employee, direct or indirect holder of any equity interest or securities, or Affiliates of any Party); provided, however, that this Section 7.03 and Article IX shall survive the termination of this Agreement and nothing herein shall relieve any Party from any liability for fraud or any breach of the provisions of this Agreement occurring prior to the termination of this Agreement.

ARTICLE VIII. INDEMNIFICATION

Section 8.01 Indemnification of Company. Provided that the Closing occurs, the DRT Members as of the Closing, jointly and severally, hereby agree to indemnify and hold harmless to the fullest extent permitted by applicable law the Company, each of its Affiliates and each of its and their respective members, managers, partners, directors, officers, employees, shareholders, attorneys and agents and permitted assignees and the Members’ Representative (each a “Company Indemnified Party”), against and in respect of any and all out-of-pocket loss, cost, payments, demand, penalty, forfeiture, expense, liability, judgment, deficiency or damage, and diminution in value or claim (including actual costs of investigation and attorneys’ fees and other costs and expenses) (all of the foregoing collectively, “Losses” and each individually a “Loss”) incurred or sustained by any Company Indemnified Party as a result of or in connection with any breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or nonfulfillment of any of the representations, warranties, covenants and agreements of the DRT Parties contained herein or in any of the additional agreements or any certificate or other writing delivered pursuant hereto. Notwithstanding the forgoing, with respect to any indemnification obligations of the DRT Members arising from any Losses as a result of or in connection with any breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or nonfulfillment of any of the representations, warranties, covenants and agreements of any DRT Member as set forth in Section 3.08 or Section 3.26, such indemnification obligations shall be solely the obligations of the DRT Member giving such representations, warranties, covenants and agreements from which such claim arose, severally and not jointly and severally.

Section 8.02 Indemnification of the DRT Parties. Provided that the Closing occurs, the Company hereby agrees to indemnify and hold harmless to the fullest extent permitted by applicable law the Members’ Representative, the DRT Members as of the Closing, DRT and each of its officers, directors, employees, shareholders, attorneys and agents and permitted assignees (each a “DRT Indemnified Party”), against and in respect of any and all Losses incurred or sustained by any DRT Indemnified Party as a result of or in connection with any breach, inaccuracy or nonfulfillment or the alleged breach, inaccuracy or nonfulfillment of any of the representations, warranties, covenants and agreements of the Company contained herein or in any of the additional agreements or any certificate or other writing delivered pursuant hereto.

Section 8.03 Procedure. The following shall apply with respect to all claims by any DRT Indemnified Party or Company Indemnified Party for indemnification with respect to actions by third-parties (with any references herein to an “Indemnified Party” being a reference to a DRT Indemnified Party or a Company Indemnified Party, as applicable, and any references herein to an “Indemnifying Party” being a reference to the Company or the DRT Member(s), as applicable):

Section 8.04 Periodic Payments. Any indemnification required by this Article VIII for costs, disbursements or expenses of any Indemnified Party in connection with investigating, preparing to defend or defending any Action shall be made by periodic payments by the Indemnifying Party to each Indemnified Party during the course of the investigation or defense, as and when bills are received or costs, disbursements or expenses are incurred.

Section 8.05 Insurance. Any indemnification payments hereunder shall take into account any insurance proceeds or other third-party reimbursement actually received.

Section 8.06 Time Limit. The obligations of the DRT Members and the Company under Section 8.01 and Section 8.02 shall expire two (2) years from the Closing Date, except with respect to (i) an indemnification claim asserted in accordance with the provisions of this Article VIII which remains unresolved, for which the obligation to indemnify shall continue until such claim is resolved; and (ii) resolved claims for which payment has not yet been paid to the Indemnified Party.

Section 8.07 Certain Limitations. The indemnification provided for in Section 8.01 and Section 8.02 shall be subject to the following limitations:

Section 8.08 Effect of Investigation. The representations, warranties and covenants of the Indemnifying Party, and any indemnified party’s right to indemnification with respect thereto, shall not be affected or deemed waived by reason of any investigation made by or on behalf of the any indemnified party’s or by reason of the fact that such indemnified party knew or should have known that any such representation or warranty is, was or might be inaccurate.

Section 8.09 Exclusive Remedy. In the event that the Closing occurs, the indemnification provisions contained in this Article VIII shall be the sole and exclusive remedy of the Parties with respect to the Transactions for any and all breaches or alleged breaches of any representations, warranties, covenants or agreements of the Parties hereto or any other provision of this Agreement or arising out of the Transactions, except (i) with respect to any equitable remedy to which such Party may be entitled to with respect to any claims or causes of action arising from the breach of any covenants or agreement of a Party that is to be performed subsequent to the Closing Date, or (ii) with respect to a Party, an actual and intentional fraud with respect to this Agreement and the Transactions. In furtherance of the foregoing, each Party hereto, for itself and on behalf of its Affiliates, hereby waives, from and after the Closing, to the fullest extent permitted under applicable law and except as otherwise specified in this Article VIII, any and all rights, claims and causes of action it may have against any other Party hereto relating to the subject matter of this Agreement or any other agreement, certificate or other document or instrument delivered pursuant to this Agreement, arising under or based upon any applicable law.

ARTICLE IX. MISCELLANEOUS

Section 9.01 Notices.

If to the Company, to:

Simplicity Esports and Gaming Company

Attention: Roman Franklin

7000 West Palmetto Park Road, Suite 505

Boca Raton, Florida 33433

If to DRT or the Members’ Representative, to:

Diverted River Technology, LLC

Attn: Zachary Johnson

1271 Watertree Road

Terre Haute, IN 47803

Email:

If to any DRT Member, to the Members’ Representative at the address above, for further distribution to the applicable DRT Member;

Section 9.02 Governing Law. This Agreement shall be governed by, enforced, and construed under and in accordance with the Laws of the State of Delaware, without giving effect to the principles of conflicts of law thereunder. Subject to the provisions of Section 9.04, each of the Parties (a) irrevocably consents and agrees that any legal or equitable action or proceedings arising under or in connection with this Agreement shall be brought exclusively in the state or federal courts of the United States with jurisdiction in Palm Beach County, Florida. By execution and delivery of this Agreement, each Party hereto irrevocably submits to and accepts, with respect to any such action or proceeding, generally and unconditionally, the jurisdiction of the aforesaid courts, and irrevocably waives any and all rights such Party may now or hereafter have to object to such jurisdiction.

Section 9.03 Waiver of Jury Trial.

Section 9.04 Arbitration.

Section 9.05 Limitation on Damages. IN NO EVENT WILL ANY PARTY BE LIABLE TO ANY OTHER PARTY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR IN CONNECTION WITH THE TRANSACTIONS FOR SPECIAL, GENERAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOST PROFITS OR LOST OPPORTUNITY, EVEN IF THE PARTY SOUGHT TO BE HELD LIABLE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

Section 9.06 Attorneys’ Fees. In the event that any Party institutes any action or suit to enforce this Agreement or to secure relief from any default hereunder or breach hereof, the prevailing Party shall be reimbursed by the losing Party for all costs, including reasonable attorneys’ fees, incurred in connection therewith and in enforcing or collecting any judgment rendered therein.

Section 9.07 Confidentiality. Each Party agrees that, unless and until the Transactions have been consummated, it and its Representatives will hold in strict confidence all data and information obtained with respect to another Party or any subsidiary thereof from any Representative, officer, director or employee, or from any books or records or from personal inspection, of such other Party, and shall not use such data or information or disclose the same to others, except (i) to the extent such data or information is published, is a matter of public knowledge, or is required by Law to be published; or (ii) to the extent that such data or information must be used or disclosed in order to consummate the Transactions. In the event of the termination of this Agreement, each Party shall return to the applicable other Party all documents and other materials obtained by it or on its behalf and shall destroy all copies, digests, work papers, abstracts or other materials relating thereto, and each Party will continue to comply with the confidentiality provisions set forth herein.

Section 9.08 Third Party Beneficiaries. This Agreement is strictly between the Company, DRT, the DRT Members and the Members’ Representative, and except as specifically provided herein, no other Person and no director, officer, shareholder (other than the DRT Members), employee, agent, independent contractor or any other Person shall be deemed to be a third-party beneficiary of this Agreement.

Section 9.09 Expenses. Subject to Article VIII and Section 9.06, whether or not the Exchange is consummated and other than as specifically set forth herein, each of the Parties will bear their own respective expenses, including legal, accounting and professional fees, incurred in connection with the Exchange or any of the other Transactions.

Section 9.10 Entire Agreement. This Agreement and the other agreements and documents references herein represent the entire agreement between the Parties relating to the subject matter thereof and supersede all prior agreements, understandings and negotiations, written or oral, with respect to such subject matter, provided that the Parties acknowledge and agree that the Company and DRT have entered into that certain Mutual Non-Disclosure Agreement, dated June 9, 2022, which shall remain in full force and effect in accordance with its terms.

Section 9.11 Survival. The representations and warranties of the respective Parties herein shall survive the Closing Date and the consummation of the Transactions for a period of two years. The covenants and other agreements of the respective Parties herein shall survive the Closing until fully performed, or for the maximum period permitted by applicable Laws, whichever is less.

Section 9.12 Amendment; Waiver; Remedies.

Section 9.13 DRT Members’ Representative.

Section 9.14 Arm’s Length Bargaining; No Presumption Against Drafter. This Agreement has been negotiated at arm’s-length by parties of equal bargaining strength, each represented by counsel or having had but declined the opportunity to be represented by counsel and having participated in the drafting of this Agreement. This Agreement creates no fiduciary or other special relationship between the Parties, and no such relationship otherwise exists. No presumption in favor of or against any Party in the construction or interpretation of this Agreement or any provision hereof shall be made based upon which Person might have drafted this Agreement or such provision.

Section 9.15 Headings. The headings contained in this Agreement are intended solely for convenience and shall not affect the rights of the Parties.

Section 9.16 No Assignment or Delegation. This Agreement shall be binding upon and shall inure to the benefit of the Parties and their respective successors and permitted assigns. No Party shall have any power or any right to assign or transfer, in whole or in part, this Agreement, or any of its rights or any of its obligations hereunder, including, without limitation, any right to pursue any claim for damages pursuant to this Agreement or the transactions contemplated herein, or to pursue any claim for any breach or default of this Agreement, or any right arising from the purported assignor’s due performance of its obligations hereunder, without the prior written consent of the other Parties and any such purported assignment in contravention of the provisions herein shall be null and void and of no force or effect.

Section 9.17 Commercially Reasonable Efforts. Subject to the terms and conditions herein provided, each DRT Party and the Company shall use their respective commercially reasonable efforts to perform or fulfill all conditions and obligations to be performed or fulfilled by it under this Agreement so that the Transactions shall be consummated as soon as practicable, and to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective this Agreement and the Transactions.

Section 9.18 Further Assurances. From and after the Effective Date, each Party shall execute and deliver such documents and take such action, as may reasonably be considered within the scope of such Party’s obligations hereunder, necessary to effectuate the Transactions.

Section 9.19 Specific Performance. The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed by them in accordance with the terms hereof or were otherwise breached and that each Party hereto shall be entitled to an injunction or injunctions, specific performance and other equitable relief to prevent breaches of the provisions hereof and to enforce specifically the terms and provisions hereof, without the proof of actual damages, in addition to any other remedy to which they are entitled at law or in equity. Each Party agrees to waive any requirement for the security or posting of any bond in connection with any such equitable remedy, and agrees that it will not oppose the granting of an injunction, specific performance or other equitable relief on the basis that (a) the other Party has an adequate remedy at law, or (b) an award of specific performance is not an appropriate remedy for any reason at law or equity.

Section 9.20 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and all of which taken together shall be but a single instrument. Counterparts may be delivered via facsimile, electronic mail (including pdf or any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.

[Signatures Appear on Following Pages]

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Annex 1

Joinder to Exchange Agreement

This Joinder to Exchange Agreement (this “Joinder”) is entered into pursuant to the Exchange Agreement, dated as of September 28, 2022, originally by and among (i) Simplicity Esports and Gaming Company; (ii) Diverted River Technology, LLC, an Indiana limited liability company, (iii) Diamond Dogs Investments, LLC; and (iv) Zachary Johnson, which agreement contemplates the joinder of the undersigned thereto once the undersigned became a DRT Member (the “Agreement”). Defined terms used herein without definition have the meanings set forth in the Agreement.

The undersigned hereby joins, accepts, and becomes a party to, the Agreement as a DRT Member in connection with the acquisition of Membership Interests and by its signature below signifies its agreement to be bound by the terms and conditions of the Agreement and hereby makes the representations and warranties, and agrees to the covenants, applicable to a DRT Member therein and herein as of the date hereof.

The undersigned hereby represents and warrants that the undersigned is:

If the above-named DRT Member is a Non-U.S. Person, then the above-named DRT Member certifies that this Joinder has been executed by such DRT Member at:

Date: ______________________________, 2022.

[Joinder to Exchange Agreement]

Agreed and Accepted as of the date set forth above:

[Joinder to Exchange Agreement]

Exhibit A

This Assignment of Membership Interests (“Assignment”) dated this [   ] day of [      ], 2022, is entered into by and between [____________] (“Assignor”) and Simplicity Esports and Gaming Company, a Delaware corporation (“Assignee”).

Assignor currently holds [ ]% of the membership interests of Diverted River Technology, LLC, an Indiana limited liability company (the “Company”).

Assignor, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good and valuable consideration received from or on behalf of the Assignee at or before the ensealing and delivery of these presents, the receipt and sufficiency whereof is hereby acknowledged, now hereby assigns, transfers and sets over unto the Assignee all right, title and interest in all of the membership interests in the Company held by Assignor (the “Transferred Interests”), which Transferred Interests have been delivered to Assignee on the date hereof, to have and to hold the same unto the Assignee, the Assignee’s legal representatives, successors and assigns forever.

Assignor, in connection with Assignor’s assignment of the Transferred Interests, does hereby warrant, covenant and agree with the Assignee that Assignor has good right and authority to execute this Assignment and Assignor is the sole beneficial owner of the Transferred Interests as of the date hereof.

IN WITNESS WHEREOF, the Assignor and Assignee have each caused this Assignment to be executed on the date written below.

Signed, sealed and delivered in the presence of: