UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549 

 

FORM 8-K

 

CURRENT REPORT 

 

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934 

 

Date of Report (Date of Earliest Event Reported): January 6, 2021 

 

Monaker Group, Inc.

(Exact name of Registrant as specified in its charter) 

 

Nevada
(State or other jurisdiction of incorporation)

 

001-38402 26-3509845
(Commission File Number) (I.R.S. Employer Identification No.)

 

2893 Executive Park Drive, Suite 201

Weston, Florida 33331

(Address of principal executive offices zip code) 

 

(954) 888-9779

(Registrant’s telephone number, including area code) 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
   
☒ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
   
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
   
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class Trading Symbol(s) Name of each exchange on which registered

Common Stock,

$.0001 Par Value Per Share

MKGI

The NASDAQ Stock Market LLC

(Nasdaq Capital Market)

 

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

 

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 13(a) of the Exchange Act. ☐

 

 
 

  

Item 1.01. Entry into a Material Definitive Agreement.

As disclosed in the Current Report on Form 8-K filed by Monaker Group, Inc. (the “Company”, “Monaker”, “we” and “us”), with the Securities and Exchange Commission (SEC) on July 23, 2020, on July 23, 2020, the Company entered into a Share Exchange Agreement (as amended by the first amendment thereto dated October 28, 2020, as disclosed in the Current Report on Form 8-K filed with the SEC on October 29, 2020 and the second amendment thereto dated November 12, 2020, as disclosed in the Current Report on Form 8-K filed with the SEC on November 18, 2020, the “HotPlay Exchange Agreement” and the transactions contemplated therein, the “HotPlay Share Exchange”) with HotPlay Enterprise Limited (“HotPlay”) and the stockholders of HotPlay (the “HotPlay Stockholders”). The transactions contemplated by the HotPlay Exchange Agreement are subject to certain closing conditions, including, but not limited to, the approval of such transactions, and the issuance of the shares of common stock in connection therewith, by the shareholders of the Company.

Additionally, as disclosed in the Current Report on Form 8-K filed with the SEC on November 18, 2020, on November 12, 2020, the Company entered into an Amended and Restated Share Exchange Agreement (the “Axion Exchange Agreement”) with certain stockholders holding shares of Axion Ventures, Inc. (“Axion” and the “Axion Stockholders”) and certain debt holders holding debt of Axion (the “Axion Creditors”)(the “Axion Share Exchange”, and collectively with the HotPlay Exchange Agreement, the “Exchange Agreements” and the transactions contemplated therein, the “Share Exchanges”). The transactions contemplated by the Axion Exchange Agreement closed on November 16, 2020.

On January 6, 2021, the Company, HotPlay and the HotPlay Stockholders entered into a Third Amendment to Share Exchange Agreement (the “Third HotPlay Amendment”), which amended the HotPlay Exchange Agreement to:

●

Fix the number of shares of the Company’s common stock issuable to the HotPlay Stockholders at the closing of the HotPlay Share Exchange at 52,000,000 shares of common stock (previously such number was variable, based on 67.87% of the Company’s post-closing capitalization (when taking into account shares of Company common stock issuable upon conversion of the Company’s outstanding Series B Convertible Preferred Stock and Series C Convertible Preferred Stock));

●

Extend the date by which the HotPlay Exchange Agreement is required to be completed until February 28, 2021 (from December 31, 2020);

●

Allow the Company the ability to issue (a) shares of common stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the board of directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company and (b) securities issued upon the exercise or exchange of or conversion of any securities outstanding on the date of the agreement, without the prior consent of HotPlay or the HotPlay Stockholders and further allow for additional securities of the Company to be issued prior to closing with the approval of HotPlay or Red Anchor Trading Corporation, the largest HotPlay Stockholder (“Red Anchor”);

●

Provide for HotPlay and the HotPlay Stockholders to approve all transactions of the Company which were disclosed in the Company’s SEC filings from the date of the original HotPlay Share Exchange Agreement, through the date of the Third HotPlay Amendment;

 
 

 

●

Provide for there to be eight members of the board of directors at closing of the HotPlay Share Exchange (provided that the parties have since agreed informally to increase such number of directors to nine), with four appointed by HotPlay, two appointed by the Company, and two (now three pursuant to the informal agreement of the parties) appointed mutually by the Company and HotPlay; and

●

Allow for the Company to enter into agreements and take actions outside of the ordinary course of business through the closing date of the HotPlay Exchange Agreement, with the prior consent of HotPlay.

Also, on January 6, 2021, the Company, the Axion Stockholders and the Axion Creditors entered into a First Amendment to the Amended and Restated Share Exchange Agreement (the “First Axion Amendment”), which amended the Amended and Restated Share Exchange, to:

●

correct certain errors originally included in the Amended and Restated Share Exchange Agreement, regarding the ownership of certain shares of Axion which were exchanged by the Axion Stockholders party thereto, and to correct the allocation of the shares of Series B Convertible Preferred Stock issuable to certain of the Axion Stockholders in connection therewith;

●

provide for the assignment of various shares of Series B Convertible Preferred Stock between certain of the Axion Stockholders to correct the allocations of the Series B Convertible Preferred Stock between such stockholders, based on the pro rata issuance of such shares in exchange for the shares of Axion held by such Axion Stockholders on the effective date of such Amended and Restated Share Exchange Agreement;

●

remove Uniq Other Vendors as an Axion Stockholder (and Series B Convertible Preferred Stock holder), from such Amended and Restated Share Exchange Agreement;

●

allow for the parties to mutually determine to not transfer record ownership of the shares of Axion which the Company acquired pursuant to the Amended and Restated Share Exchange Agreement to the Company and that the parties can instead enter into an agreement providing the Company voting and economic rights to such shares, until such time, if ever, as the Company determines it is in its best interests to affect such transfer of record ownership of such shares; and

●

agree to the amendment and restatement of the Series B Convertible Preferred Stock designation of the Company as discussed below in Item 5.03.

The foregoing description of the Third HotPlay Amendment and First Axion Amendment above, is subject to, and qualified in its entirety by, the Third HotPlay Amendment and First Axion Amendment, attached as Exhibits 2.4 and Exhibit 2.7 hereto, respectively, which are incorporated in this Item 1.01 by reference in their entirety.

 
 

  

Item 3.02. Unregistered Sales of Equity Securities.

 

The A&R Series B Designation, as discussed in Item 5.03, below, changed the conversion rate of the outstanding Series B Convertible Preferred Stock of the Company, to fix such conversion rate at 0.74177 of a share of common stock, for each share of Series B Convertible Preferred Stock converted (subject to adjustment in connection with stock splits and stock dividends), which based on the 10,000,000 outstanding shares of Series B Convertible Preferred Stock would total 7,417,700 shares of common stock upon full conversion thereof.

 

We claim an exemption from registration for the transaction described above pursuant to Section 4(a)(2) and/or Rule 506(b) of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), since: the transaction did not involve a public offering, the holders of the Series B Convertible Preferred Stock were (a) “accredited investors”; and/or (b) had access to similar documentation and information as would be required in a Registration Statement under the Securities Act, and the recipients acquired the securities for investment only and not with a view towards, or for resale in connection with, the public sale or distribution thereof. The securities were not registered under the Securities Act and such securities may not be offered or sold in the United States absent registration or an exemption from registration under the Securities Act and any applicable state securities laws.

 

The maximum number of shares of common stock issuable upon conversion of the 10,000,000 outstanding shares of Series B Convertible Preferred Stock, after the filing of the A&R Series B Designation, is 7,417,700 shares of common stock. The conversion of the Series B Convertible Preferred Stock is subject to among other things, the approval of the issuance of such shares by the shareholders of the Company pursuant to applicable Nasdaq Capital Market rules.

The issuance of the shares of common stock upon the conversion of the Series B Convertible Preferred Stock will create substantial dilution to existing shareholders.

 

Item 3.03. Material Modification to Rights of Security Holders.

 

To the extent required by Item 3.03 of Form 8-K, the information contained in Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.

 

Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

 

Effective on January 5, 2021, the stockholders holding all of the outstanding shares of Series B Convertible Preferred Stock of the Company, via a written consent to action without meeting, approved an amendment and restatement of the designation of the Series B Convertible Preferred Stock, which was previously approved by the Board of Directors, and which amended and restated designation was filed with the Secretary of State of Nevada on January 7, 2021, and became effective on the same date.

 

The amended and restated designation of the Series B Convertible Preferred Stock (the “A&R Series B Designation”) amended the conversion rate of each share of Series B Convertible Preferred Stock to 0.74177 of a share of common stock for each share of Series B Convertible Preferred Stock converted (subject to adjustment in connection with stock splits and stock dividends). This fixed the number of shares of common stock issuable upon conversion of the 10,000,000 outstanding shares of Series B Convertible Preferred Stock at 7,417,700 shares of the Company’s common stock—previously the Series B Convertible Preferred Stock converted into a fluctuating percentage of shares of the Company’s common stock based on the number of outstanding shares of the Company’s common stock at the time of the closing of the HotPlay Share Exchange, which would have increased as the number of outstanding shares of the Company increased. The Series B Convertible Preferred Stock will automatically convert into common stock of the Company based on the conversion rate, at such time as the conditions to conversion of such preferred stock are met, which require, among other things, the approval by the shareholders of the Company of the issuance of shares of common stock upon conversion thereof, which has not been received to date.

 

* * * * *

 

 
 

 

Except as amended as described above, the description of the Company’s Series B Convertible Preferred Stock remains substantially the same as set forth under “Item 5.03—Series B Convertible Preferred Stock”, in the Company’s Current Report on Form 8-K filed with the SEC on November 18, 2020, on November 12, 2020, which description is incorporated by reference herein.

 

The foregoing description of the A&R Series B Designation does not purport to be complete and is qualified in its entirety by reference to the A&R Series B Designation, a copy of which is incorporated by reference as Exhibit 3.1 to this Current Report on Form 8-K and incorporated in this Item 5.03 by reference. 

 

Item 5.07. Submission of Matters to a Vote of Security Holders.

 

As described above in Item 5.03, which information is incorporated by reference in this Item 5.07, effective on January 5, 2021, via a written consent to action without meeting, all of the shareholders of the Company’s outstanding Series B Convertible Preferred Stock approved the filing of the A&R Series B Designation.

 

Item 8.01. Other Events.

 

The Company recently became aware of an error in the Company’s Current Report on Form 8-K which was filed with the Securities and Exchange Commission on December 31, 2020 (the “Prior Report”), to report the closing of the Company’s firm commitment underwritten public offering. Specifically, the first paragraph under Item 1.01 of such Prior Report incorrectly stated that the underwriters in the offering had exercised in full, the over-allotment option to purchase up to an additional 462,000 shares of common stock to cover over-allotments. No portion of the over-allotment option has been exercised to date and the reference to such over-allotment option being exercised was made in error. The underwriter’s over-allotment option remains in place until 45-days following the closing of the offering (December 31, 2020). Other than as described above, the remainder of disclosures in the Prior Report, including, but not limited to, the disclosure of the net proceeds from the offering, were correct.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits. 

Exhibit
Number 		  Description of Exhibit
2.1#   Share Exchange Agreement by and among Monaker Group, Inc., HotPlay Enterprise Limited and the Stockholders of HotPlay Enterprise Limited, dated as of July 21, 2020 (filed as Exhibit 2.1 to the Current Report on Form 8-K filed by Monaker Group, Inc. with the Securities and Exchange Commission on July 23, 2020, and incorporated by reference herein)(File No. 001-38402)
2.2   First Amendment to Share Exchange Agreement by and among Monaker Group, Inc., HotPlay Enterprise Limited and the Stockholders of HotPlay Enterprise Limited, entered into October 28, 2020, and dated as of October 23, 2020 (filed as Exhibit 2.2 to the Current Report on Form 8-K filed by Monaker Group, Inc. with the Securities and Exchange Commission on October 29, 2020, and incorporated by reference herein)(File No. 001-38402)
2.3   Second Amendment to Share Exchange Agreement by and among Monaker Group, Inc., HotPlay Enterprise Limited and the Stockholders of HotPlay Enterprise Limited, dated November 12, 2020 (filed as Exhibit 2.3 to the Current Report on Form 8-K filed by Monaker Group, Inc. with the Securities and Exchange Commission on November 18, 2020, and incorporated by reference herein)(File No. 001-38402)
2.4*   Third Amendment to Share Exchange Agreement by and among Monaker Group, Inc., HotPlay Enterprise Limited and the Stockholders of HotPlay Enterprise Limited, dated January 6, 2021
2.6#   Amended and Restated Share Exchange Agreement by and among Monaker Group, Inc. and the Stockholders Holding Shares or Debt of Axion Ventures, Inc., dated as of November 12, 2020 (filed as Exhibit 2.6 to the Current Report on Form 8-K filed by Monaker Group, Inc. with the Securities and Exchange Commission on November 18, 2020, and incorporated by reference herein)(File No. 001-38402)
2.7*   First Amendment to Amended and Restated Share Exchange Agreement by and among Monaker Group, Inc. and the Stockholders Holding Shares or Debt of Axion Ventures, Inc., dated as of January 6, 2021
3.1*   Amended and Restated Certificate of Designation of Monaker Group, Inc. Establishing the Designation, Preferences, Limitations and Relative Rights of Its Series B Convertible Preferred Stock as filed with the Secretary of State of Nevada on January 7, 2021

* Filed herewith.

 

 
 

 

Forward-Looking Statements 

 

Certain of the matters discussed in this communication which are not statements of historical fact constitute forward-looking statements that involve a number of risks and uncertainties and are made pursuant to the Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995. Words such as “strategy,” “expects,” “continues,” “plans,” “anticipates,” “believes,” “would,” “will,” “estimates,” “intends,” “projects,” “goals,” “targets” and other words of similar meaning are intended to identify forward-looking statements but are not the exclusive means of identifying these statements.

 

Important factors that may cause actual results and outcomes to differ materially from those contained in such forward-looking statements include, without limitation, the ability of the parties to close the HotPlay Exchange Agreement and the transactions contemplated therein, on a timely basis, if at all; the occurrence of any event, change or other circumstances that could give rise to the right of one or all of HotPlay, the HotPlay Stockholders, or the Company (collectively, the “Share Exchange Parties”) to terminate the HotPlay Exchange Agreement; the effect of such terminations; the outcome of any legal proceedings that have been, and may be, instituted against Share Exchange Parties or their respective directors; the ability of the HotPlay Stockholders to timely obtain required audits and related financial statements of HotPlay and where applicable, its subsidiary; the ability to obtain regulatory and other approvals and meet other closing conditions to the HotPlay Exchange Agreement on a timely basis or at all, including the risk that regulatory and other approvals required for the HotPlay Exchange Agreement are not obtained on a timely basis or at all, or are obtained subject to conditions that are not anticipated or that could adversely affect the combined company or the expected benefits of the transaction; the ability to obtain approval by the Company’s stockholders on the expected schedule of the transactions contemplated by the HotPlay Exchange Agreement; delays in obtaining required financial statements for HotPlay and prior acquisitions of the Company, to the extent required; difficulties and delays in integrating HotPlay’s and the Company’s businesses; prevailing economic, market, regulatory or business conditions, or changes in such conditions, negatively affecting the parties; risks associated with COVID-19 and the global response thereto; risks that the transactions disrupt the Company’s or HotPlay’s current plans and operations; failing to fully realize anticipated cost savings and other anticipated benefits of the HotPlay Share Exchange when expected or at all; potential adverse reactions or changes to business relationships resulting from the announcement or completion of the HotPlay Share Exchange; the ability of HotPlay and the Company to retain and hire key personnel; the diversion of management’s attention from ongoing business operations; uncertainty as to the long-term value of the common stock of the combined company following the HotPlay Share Exchange; the significant dilution which will be created to ownership interests of the Company in connection with the closing of the HotPlay Share Exchange; the continued availability of capital and financing following the HotPlay Share Exchange; the ability of the Company to obtain sufficient funding to support its operations through the closing date of the HotPlay Share Exchange; the business, economic and political conditions in the markets in which Share Exchange Parties operate; and the fact that the Company’s reported earnings and financial position may be adversely affected by tax and other factors.

 

Other important factors that may cause actual results and outcomes to differ materially from those contained in the forward-looking statements included in this communication are described in the Company’s publicly filed reports, including, but not limited to, the Company’s Annual Report on Form 10-K for the year ended February 29, 2020, and its Quarterly Report on Form 10-Q for the quarter ended August 31, 2020, and subsequently filed quarterly reports.

 

The Company cautions that the foregoing list of important factors is not complete, and does not undertake to update any forward-looking statements except as required by applicable law. All subsequent written and oral forward-looking statements attributable to the Company or any person acting on behalf of any Share Exchange Parties are expressly qualified in their entirety by the cautionary statements referenced above.

 

 
 

 

Additional Information and Where to Find It

 

In connection with the proposed HotPlay Share Exchange, the Company will file with the Securities and Exchange Commission (SEC) a proxy statement to seek stockholder approval for the HotPlay Share Exchange and the issuance of shares of common stock pursuant thereto and in connection therewith, which, when finalized, will be sent to the stockholders of the Company seeking their approval of the respective transaction-related proposals. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE PROXY STATEMENT, AS WELL AS ANY AMENDMENTS OR SUPPLEMENTS TO THOSE DOCUMENTS AND ANY OTHER RELEVANT DOCUMENTS FILED OR TO BE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED HOTPLAY SHARE EXCHANGE, WHEN THEY BECOME AVAILABLE, BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, HOTPLAY, AND THE PROPOSED HOTPLAY SHARE EXCHANGE, AND RISKS ASSOCIATED THEREWITH.

 

Investors and security holders may obtain copies of these documents free of charge through the website maintained by the SEC at www.sec.gov or from the Company at its website, www.monakergroup.com. Certain documents filed with the SEC by the Company will also be available free of charge by accessing the Company’s website at www.monakergroup.com under the heading “Stock Info” or, and all documents filed by the Company with the SEC are available by directing a request by mail, email or telephone to Monaker Group, Inc. at 2893 Executive Park Drive, Suite 201, Weston, Florida 33331; info@monakergroup.com; or (954) 888-9779, respectively.

 

Participants in the Solicitation

 

The Company and certain of its respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the respective stockholders of the Company in respect of the proposed HotPlay Exchange Agreement under the rules of the SEC. Information about the Company’s directors and executive officers is available in the Company’s Annual Report on Form 10-K/A (Amendment No. 1) for the year ended February 29, 2020, as filed with the Securities and Exchange Commission on June 25, 2020. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement and other relevant materials to be filed with the SEC regarding the HotPlay Exchange Agreement when they become available. Investors should read the proxy statement carefully when it becomes available before making any voting or investment decisions. You may obtain free copies of these documents from the Company using the sources indicated above.

 

No Offer or Solicitation

 

This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities, in any jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. 

 

 
 

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. 

 

  MONAKER GROUP, INC.
     
     
Date: January 11, 2021 By: /s/ William Kerby
    Name:   William Kerby
    Title:  Chief Executive Officer

 

 

 

 

MONAKER GROUP, INC. 8-K 

 

Exhibit 2.4

 

THIRD AMENDMENT TO

SHARE EXCHANGE AGREEMENT

 

This Third Amendment to Share Exchange Agreement (this “Agreement”), dated and effective as of January 6, 2021 (the “Effective Date”), amends that certain Share Exchange Agreement dated July 21, 20201, as amended by that certain First Amendment to Share Exchange Agreement dated October 23, 20202 and that certain Second Amendment to Share Exchange dated November 12, 20203 (as amended to date, the “Exchange Agreement”), by and among Monaker Group, Inc., a Nevada corporation (“Monaker”), Hotplay Enterprise Limited, a British Virgin Islands company (“HotPlay”), Red Anchor Trading Corporation, a British Virgin Islands corporation and the principal stockholder of HotPlay (the “Principal Stockholder”) and T&B Media Global (Thailand) Company Limited, Tree Roots Entertainment Group Co., Ltd. and Dees Supreme Company Limited, the minority stockholders of HotPlay (collectively, the “Minority Stockholders,” and together with the Principal Stockholder, individually, a “Stockholder” and collectively, the “Stockholders”). Each of Monaker, HotPlay and the Stockholders are sometimes referred to herein individually, as a “Party” and collectively, as the “Parties.”

 

Certain capitalized terms used below but not otherwise defined shall have the meanings given to such terms in the Exchange Agreement. References in the quoted paragraphs of Section 1 hereof to “Agreement” refer to the Exchange Agreement, whereas references to “Agreement” in the other Sections of this Agreement refer to this Agreement.

 

WHEREAS, the Parties desire to amend the Exchange Agreement on the terms and conditions set forth below.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants, agreements, and considerations herein contained, and other good and valuable consideration, which consideration the Parties hereby acknowledge and confirm the receipt and sufficiency thereof, the Parties hereto agree as follows:

 

1.             Amendments to Exchange Agreement.

 

A.       Effective as of the Effective Date, the definitions of the following terms as set forth in Article I of the Exchange Agreement are amended and restated to read as follows:

 

“Restricted Monaker Shares” means 52,000,000 shares of restricted Monaker Common Stock (as adjusted for stock splits and stock dividends occurring prior to Closing).

 

“Termination Date” means February 28, 2021. 

 

 

1 https://www.sec.gov/Archives/edgar/data/1372183/000158069520000288/ex2-1.htm 

2 https://www.sec.gov/Archives/edgar/data/1372183/000158069520000399/ex2-2.htm 

3 https://www.sec.gov/Archives/edgar/data/1372183/000158069520000408/ex2-3.htm

 

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Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

 

B.       Effective as of the Effective Date, a new definition of “Excepted Issuances” is added to Article I of the Exchange Agreement and reads as follows:

 

“Excepted Issuance” means the issuance of (a) shares of Common Stock or options to employees, consultants, officers or directors of the Company pursuant to any stock or option plan duly adopted for such purpose, by a majority of the non-employee members of the Board of Directors or a majority of the members of a committee of non-employee directors established for such purpose for services rendered to the Company, (b) securities issued upon the exercise or exchange of or conversion of any securities outstanding on the date of this Agreement, and (c) securities approved by HotPlay or the Principal Stockholder.

 

C.       Effective as of the Effective Date, the definitions of “Axion Percentage”, “HotPlay Percentage” and “Post-Closing Capitalization of Monaker” as set forth in Article I of the Exchange Agreement, are deleted and removed from the Agreement in their entirety.

 

D.       Effective as of the Effective Date, Section 9.1(h) of the Exchange Agreement is amended and restated to read:

 

“(h) Contemporaneous Election of New Directors. At Closing, Monaker’s initial board of directors shall be comprised of eight (8) members, four (4) of which shall be nominated by the Principal Stockholder and two (2) of which shall be nominated by NewMonaker, of which at least two of such Principal Stockholder appointed members, and one of such New Monaker appointed members, shall be independent in accordance with the rules of the Principal Market, and the Principal Stockholder and NewMonaker shall mutually agree on a seventh and eighth director, each of who shall be independent, unless otherwise agreed between the Principal Stockholder and Monaker. At Closing Monaker shall maintain a majority of independent board of directors. Such appointments shall be approved by the then current Board of Directors of Monaker pursuant to the powers provided to such Board of Directors pursuant to Nevada law and the Bylaws of Monaker or by the stockholders of Monaker at a duly called stockholders meeting.”

 

E.       Effective as of the Effective Date, Section 6.1 of the Exchange Agreement is amended and restated to read:

 

“Section 6.1 Conduct of Business. At all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to the terms hereof or the Closing, Monaker, HotPlay and HP Thailand shall (a) carry on their respective businesses diligently and in the usual, regular and Ordinary Course of Business, in substantially the same manner as heretofore conducted and in compliance with all applicable Laws, except as to Monaker, as set forth in Section 6.2 of the Monaker Disclosure Schedule; (b) pay or perform its material obligations when due; (c) use its commercially reasonable efforts, consistent with past practices and policies, to preserve intact its present business organization, keep available the services of its present officers and employees and preserve its relationships with customers, suppliers, distributors, licensors, licensees and others with which it has business dealings; and (d) keep their business and properties substantially intact, including their present operations, physical facilities and working conditions, in each case, except as to Monaker, with the approval of HotPlay and except with HotPlay and HP Thailand, with the approval of Monaker. In furtherance of the foregoing and subject to applicable Law, Monaker on the one hand and HotPlay and HP Thailand on the other shall confer with the other Party, as promptly as practicable, prior to taking any material actions or making any material management decisions with respect to the conduct of the business of Monaker or HotPlay and HP Thailand, except as to Monaker, as set forth in Section 6.2 of the Monaker Disclosure Schedule. Any of the obligations of Monaker and HotPlay and HP Thailand as set forth in this Section 6.1 may be waived with the consent of Monaker (as to HotPlay and HP Thailand) and HotPlay (as to Monaker).”

 

Page 2 of 7

Third Amendment to Monaker and HotPlay Share Exchange Agreement  

 

 

 

F.       Effective as of the Effective Date, the first paragraph of Section 6.2 of the Exchange Agreement is amended and restated to read:

 

“Section 6.2 Restrictions on Conduct of Business. Without limiting the generality of the terms of Section 6.1 hereof, except as required by the terms hereof, except as to Monaker, as set forth in Section 6.2 of the Monaker Disclosure Schedule, and except to the extent that the other Party (either Monaker or HotPlay, for purposes of Section 6.2) shall otherwise consent, which shall not be unreasonably withheld, at all times during the period commencing with the execution and delivery of this Agreement and continuing until the earlier of the termination of this Agreement pursuant to the terms hereof or the Closing, Monaker and HotPlay and HP Thailand shall not do (and HotPlay shall see that HP Thailand does not do) any of the following, where applicable:”

 

G.       Effective as of the Effective Date, the first paragraph of Section 6.2(d) of the Exchange Agreement is amended and restated to read:

 

“(d) except as to the Excepted Issuances, the issuaces contemplated by this Agreement, issuances approved by the Principal Stockholder or HotPlay, or pursuant to agreements in place at the time this Agreement is entered into, issue, deliver, sell, authorize, pledge or otherwise encumber, or propose any of the foregoing with respect to, any shares of capital stock or any securities convertible into, or exercisable or exchangeable for, shares of capital stock of Monaker or HotPlay or HP Thailand, or subscriptions, rights, warrants or options to acquire any shares of capital stock or any securities convertible into, or exercisable or exchangeable for, shares of capital stock of Monaker or HotPlay or HP Thailand, or enter into other Contracts or commitments of any character obligating it to issue any such shares of capital stock of Monaker or HotPlay or HP Thailand or securities convertible into, or exercisable or exchangeable for, shares of capital stock of Monaker or HotPlay or HP Thailand;”

 

2.       Approval and Consent to Prior Transactions. By their entry into this Agreement, each of the Stockholders approve and consent to each issuance of shares of Common Stock of Monaker and each agreement, understanding and transaction entered into by Monaker from the original date of the Parties’ entry into the Exchange Agreement, to the date hereof, as disclosed in Monaker’s filings with the Securities and Exchange Commission and/or which Monaker has provided notice of to HotPlay and/or the Principal Stockholder.

 

3.       Consideration. Each of the Parties agrees and confirms by signing below that they have received valid consideration in connection with this Agreement and the transactions contemplated herein.

 

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Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

 

4.            Mutual Representations, Covenants and Warranties. Each of the Parties, for themselves and for the benefit of each of the other Parties hereto, represents, covenants and warranties that:

 

(a)      Such Party has all requisite power and authority, corporate or otherwise, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes the legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general equitable principles;

 

(b)      The execution and delivery by such Party and the consummation of the transactions contemplated hereby and thereby do not and shall not, by the lapse of time, the giving of notice or otherwise: (i) constitute a violation of any law; or (ii) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which such Party is bound or affected; and

 

(c)      Any individual executing this Agreement on behalf of an entity has authority to act on behalf of such entity and has been duly and properly authorized to sign this Agreement on behalf of such entity.

 

5.            Further Assurances. The Parties agree that, from time to time, each of them will take such other action and to execute, acknowledge and deliver such contracts, deeds, or other documents as may be reasonably requested and necessary or appropriate to carry out the purposes and intent of this Agreement and the transactions contemplated herein.

 

6.            Effect of Agreement. Upon the effectiveness of this Agreement, each reference in the Exchange Agreement to “Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to such Exchange Agreement as modified or amended hereby.

 

7.            Exchange Agreement to Continue in Full Force and Effect. Except as specifically modified or amended herein, the Exchange Agreement and the terms and conditions thereof shall remain in full force and effect.

 

8.            Entire Agreement. This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties and representations among the Parties with respect to the transactions contemplated hereby and thereby, and supersedes all prior agreements, arrangements and understandings between the Parties, whether written, oral or otherwise.

 

9.            Construction. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neuter genders.

 

Page 4 of 7

Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

 

10.       Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to conflicts of law principles except to the extent that United States federal law preempts Florida law, in which case United States federal law (including, without limitation, copyright, patent and federal trademark law) shall apply, without reference to conflicts of law principles.

 

11.       Heirs, Successors and Assigns. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

12.       Counterparts and Signatures. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

[Remainder of page left intentionally blank. Signature page follows.]

 

Page 5 of 7

Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written to be effective as of the Effective Date.

 

“Monaker”:

 

  MONAKER GROUP, INC.
  a Nevada corporation
       
    By: /s/ William Kerby
       
    Name: William Kerby
       
    Title: CEO

 

“HotPlay”:

 

  HOTPLAY ENTERPRISE LIMITED
  a British Virgin Islands Company
       
    By: /s/ Athid Nanthawaroon
       
     

/s/ Nithinan Boonyawattanapisut

       
    Name: Mr. Athid Nanthawaroon and Ms. Nithinan Boonyawattanapisut
       
    Title: Authorized Directors
       

“Stockholders”:

 

  “Principal Stockholder”
   
  RED ANCHOR TRADING CORPORATION
       
    By: /s/ Nithinan Boonyawattanapisut
       
    Name: Ms. Nithinan Boonyawattanapisut
       
    Title: Authorized Director

 

Page 6 of 7

Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

 

  “Minority Stockholders”
   

 

 

T&B MEDIA GLOBAL (THAILAND)
COMPANY LIMITED
   
    By: /s/ Jwanwat Ahriyavraromp
       
     

/s/ Pornsinee Chalermrattawongz  

       
    Name: Mr. Jwanwat Ahriyavraromp and Mrs. Pornsinee Chalermrattawongz
       
    Title: Authorized Directors
   
  TREE ROOTS ENTERTAINMENT 
GROUP CO., LTD.
       
    By: /s/ Jwanwat Ahriyavraromp
       
     

/s/ Athid Nanthawaroon

       
    Name: Mr. Jwanwat Ahriyavraromp and Athid Nanthawaroon
       
    Title: Authorized Directors

 

  DEES SUPREME COMPANY LIMITED
       
    By: /s/ Warunya Punawakul
       
     

/s/ Vithit Arparpardh

       
    Name: Ms. Warunya Punawakul and Mr. Vithit Arparpardh
       
    Title: Authorized Directors

 

Page 7 of 7

Third Amendment to Monaker and HotPlay Share Exchange Agreement 

 

 

MONAKER GROUP, INC. 8-K 

 

Exhibit 2.7

 

FIRST AMENDMENT TO AMENDED AND RESTATED

SHARE EXCHANGE AGREEMENT

 

This First Amendment to Amended and Restated Share Exchange Agreement (this “Agreement”), dated as of January 6, 2021, and effective as of November 12, 2020 (the “Effective Date”), amends that certain Amended and Restated Share Exchange Agreement dated November 12, 20201 (as amended to date, the “Exchange Agreement”), by and among Monaker Group, Inc., a Nevada corporation (“Monaker”), Uniq Ventures (“Uniq Ventures”), Uniq Other Vendors (“Uniq Other”), Cern One Limited, (“Cern One”), CC Asia Pacific Ventures Ltd. (“CC Asia”), and Michael Bonner, an individual (the “Principal Stockholder” and together with Uniq Ventures, Uniq Other, Cern One and CC Asia, the “Stockholders” with each individually referred to as a “Stockholder”) and Red Anchor Trading Corporation, a British Virgin Islands corporation (“Red Anchor”), Cern One, Nithinan Boonyawattanapisut (“Boonyawattanapisut”), and John Todd Bonner (“John Bonner”, and together with Red Anchor, Cern One (in its capacity as an Axion Creditor) and Boonyawattanapisut, the “Axion Creditors” and each an “Axion Creditor”). Each of Monaker, the Stockholders and the Axion Creditors are sometimes referred to herein individually, as a “Party” and collectively, as the “Parties.”

 

Certain capitalized terms used below but not otherwise defined shall have the meanings given to such terms in the Exchange Agreement.

 

WHEREAS, the Parties entered into the Exchange Agreement on November 12, 2020, and closed the transactions contemplated by the Exchange Agreement on November 16, 2020 (the “Closing Date”);

 

WHEREAS, since the Closing Date, the Parties have determined that Schedule 1.1 to the Exchange Agreement, which set forth the holders of the Axion Shares exchanged, among other things, included errors (the “Errors”); and

 

WHEREAS, the Parties desire to amend the Exchange Agreement on the terms and conditions set forth below to correct the Errors.

 

NOW, THEREFORE, in consideration of the premises and the mutual covenants, agreements, and considerations herein contained, and other good and valuable consideration, which consideration the Parties hereby acknowledge and confirm the receipt and sufficiency thereof, the Parties hereto agree as follows:

 

1.       Amendment to Exchange Agreement. Effective as of the Effective Date, Schedule 1.1 of the Exchange Agreement is amended and restated to read as set forth on the attached Schedule 1.1. Such amended Schedule 1.1 corrects the original Schedule 1.1 and confirms the number of Series B Convertible Preferred Stock shares and Series C Convertible Preferred Stock shares issuable to the Stockholders and Axion Creditors, as applicable.

 

2.       Assignments. Concurrently with their entry into this Agreement, (a) Uniq Other shall execute a form of Stock Power and Assignment of Uncertificated Series B Convertible Preferred Stock Shares in the form of Exhibit A hereto, to assign 1,542,103 shares of Series B Preferred Stock originally issued to Uniq Other, to Uniq Ventures (in accordance with the amendment and correction to Schedule 1.1 described in Section 1, above); and (b) CC Asia, shall execute a form of Stock Power and Assignment of Uncertificated Series B Convertible Preferred Stock Shares in the form of Exhibit B hereto, to assign 921,901 shares of Series B Preferred Stock originally issued to CC Asia, to Cern One (in accordance with the amendment and correction to Schedule 1.1 described in Section 1, above).

 

 

1 https://www.sec.gov/Archives/edgar/data/1372183/000158069520000408/ex2-6.htm 

 

Page 1 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

 

3.       Confirmation of Uniq Other. By signing below, Uniq Other acknowledges and represents that effective upon the effectiveness of this Agreement, and the execution of the Stock Power and Assignment of Uncertificated Series B Convertible Preferred Stock Shares, attached hereto as Exhibit A, Uniq Other will have no ownership of, or rights to, any Series B Preferred Stock or other securities of the Company.

 

4.       Transfer of Axion Shares. Notwithstanding the terms and requirements of the Exchange Agreement, the Parties may mutually determine to not transfer record ownership of the Transferred Shares to the Company and may instead enter into an agreement providing the Company voting and economic rights to such Transferred Shares, until such time, if ever, as the Company determines it is in its best interests to affect such transfer of record ownership of such Transferred Shares.

 

5.       Amendment to Series B Preferred Stock Designation. Each of the Parties, by signing this Agreement below, agrees to the terms of the Amended and Restated Certificate of Designation of Monaker Group, Inc. Establishing the Designation, Preferences, Limitations and Relative Rights of Its Series B Convertible Preferred Stock, in the form of Exhibit C hereto, subject to the formal approval of such amendment by the holders of the Series B Convertible Preferred Stock of the Company and the Company’s Board of Directors (as applicable).

 

6.       Consideration. Each of the Parties agrees and confirms by signing below that they have received valid consideration in connection with this Agreement and the transactions contemplated herein.

 

7.       Mutual Representations, Covenants and Warranties. Each of the Parties, for themselves and for the benefit of each of the other Parties hereto, represents, covenants and warranties that:

 

(a)      Such Party has all requisite power and authority, corporate or otherwise, to execute and deliver this Agreement and to consummate the transactions contemplated hereby and thereby. This Agreement constitutes the legal, valid and binding obligation of such Party enforceable against such Party in accordance with its terms, except as such enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and general equitable principles;

 

(b)      The execution and delivery by such Party and the consummation of the transactions contemplated hereby and thereby do not and shall not, by the lapse of time, the giving of notice or otherwise: (i) constitute a violation of any law; or (ii) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order, judgment or decree of any governmental authority or any contract to which such Party is bound or affected; and

 

Page 2 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

 

(c)      Any individual executing this Agreement on behalf of an entity has authority to act on behalf of such entity and has been duly and properly authorized to sign this Agreement on behalf of such entity.

 

8.       Further Assurances. The Parties agree that, from time to time, each of them will take such other action and to execute, acknowledge and deliver such contracts, deeds, or other documents as may be reasonably requested and necessary or appropriate to carry out the purposes and intent of this Agreement and the transactions contemplated herein.

 

9.       Effect of Agreement. Upon the effectiveness of this Agreement, each reference in the Exchange Agreement to “Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to such Exchange Agreement as modified or amended hereby.

 

10.     Exchange Agreement to Continue in Full Force and Effect. Except as specifically modified or amended herein, the Exchange Agreement and the terms and conditions thereof shall remain in full force and effect, pursuant to their terms.

 

11.     Entire Agreement. This Agreement sets forth all of the promises, agreements, conditions, understandings, warranties and representations among the Parties with respect to the transactions contemplated hereby and thereby, and supersedes all prior agreements, arrangements and understandings between the Parties, whether written, oral or otherwise.

 

12.     Construction. In this Agreement words importing the singular number include the plural and vice versa; words importing the masculine gender include the feminine and neuter genders.

 

13.     Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Florida, without reference to conflicts of law principles except to the extent that United States federal law preempts Florida law, in which case United States federal law (including, without limitation, copyright, patent and federal trademark law) shall apply, without reference to conflicts of law principles.

 

14.     Heirs, Successors and Assigns. This Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

 

Page 3 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

 

15.       Counterparts and Signatures. This Agreement and any signed agreement or instrument entered into in connection with this Agreement, and any amendments hereto or thereto, may be executed in one or more counterparts, all of which shall constitute one and the same instrument. Any such counterpart, to the extent delivered by means of a facsimile machine or by .pdf, .tif, .gif, .jpeg or similar attachment to electronic mail (any such delivery, an “Electronic Delivery”) shall be treated in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. No Party shall raise the use of Electronic Delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except to the extent such defense relates to lack of authenticity.

 

[Remainder of page left intentionally blank. Signature page follows.]

  

Page 4 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

 

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first above written to be effective as of the Effective Date.

 

MONAKER:  
   
  MONAKER GROUP, INC.  
  a Nevada corporation  
   
  By: /s/ William Kerby    
  Name: William Kerby  
  Title: CEO  

 

STOCKHOLDERS:  
   
  Uniq Ventures  
   
  By: /s/ Michael John Fawdry    
  Name: Michael John Fawdry  
  Title: Sole Director  

 

  Uniq Other Vendors    
         
  By: /s/ Michael John Fawdry    
  Name: Michael John Fawdry  
  Title: Sole Director  

 

  Cern One Limited    
         
  By: /s/ Nithinan Boonyawattanapisut    
  Name: Nithinan Boonyawattanapisut  
  Title: Sole Director  

 

  CC Asia Pacific Ventures Ltd.    
         
  By: /s/ Chen Chung Hong    
  Name: Chen Chung Hong  
  Title: Managing Partner  

 

  /s/Michael Bonner    
  Michael Bonner, an individual  

 

Page 5 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

 

AXION CREDITORS:  
   
/s/ Nithinan Boonyawattanapisut  
Nithinan Boonyawattanapisut, an individual
   
/s/ John Todd Bonner  
John Todd Bonner, an individual  
   
Red Anchor Trading Corporation  
   
By: /s/ Nithinan Boonyawattanapisut  
Name: Nithinan Boonyawattanapisut  
Title: Authorized Director  

 

Cern One Limited  
   
By: /s/ Nithinan Boonyawattanapisut  
Name: Nithinan Boonyawattanapisut  
Title: Sole Director  
     

Page 6 of 6

First Amendment to Monaker and Axion Amended and Restated Share Exchange Agreement

 

Schedule 1.1

 

Stockholder   Number of Axion Shares
Being Exchanged 		  Number of Monaker Series B
Preferred Stock Shares Due
Uniq Ventures   34,688,098   4,818,236
Cern One Limited   24,804,757   3,445,423
CC Asia Pacific Ventures Ltd.   7,560,633   1,050,185
Michael Bonner   4,939,870   686,156
    71,993,358   10,000,000
         
Axion Creditors    Amount of Debt
Being Exchanged 		   Number of Monaker Series
C Preferred Stock Shares
Due
Cern One   $2,013,000   1,006,497
Red Anchor Trading Corp. Limited   $4,960,561   2,480,273
Nithinan Boonyawattanapisut   $628,462   314,230
John Todd Bonner   $55,000   27,500
    $7,657,023   3,828,500
         

 

 

 

  

EXHIBIT A

 

 

 

 

Stock Power and Assignment of Uncertificated
Series B Convertible Preferred Stock Shares 

FOR VALUE RECEIVED, Uniq Other Vendors, pursuant to that certain First Amendment to Amended and Restated Share Exchange Agreement, dated on or around the date of this Stock Power and Assignment, by and between Monaker Group, Inc., a Nevada corporation (the “Company”), and certain stockholders and creditors of Axion Ventures, Inc., as named therein, by signing below, hereby sells, assigns, and transfers unto Cern One Limited, 1,542,103 shares of the Series B Convertible Preferred Stock, $0.00001 par value per share, of the Company (the “Shares”). Such Shares are not represented by certificates, are held in book entry form and stand in the undersigned’s name on the books and records of the Company. The undersigned does hereby irrevocably constitute the Secretary of the Company as attorney-in-fact, with full power of substitution, to transfer said stock on the books of said Company.

Dated: January ___, 2021

 

Uniq Other Vendors

 

By: _________________________

 

Name: Michael Fawdry

 

Title:   Sole Director

  

 

 

 

EXHIBIT B

 

 

 

 

Stock Power and Assignment of Uncertificated
Series B Convertible Preferred Stock Shares

 

FOR VALUE RECEIVED, CC Asia Pacific Ventures Ltd., pursuant to that certain First Amendment to Amended and Restated Share Exchange Agreement, dated on or around the date of this Stock Power and Assignment, by and between Monaker Group, Inc., a Nevada corporation (the “Company”), and certain stockholders and creditors of Axion Ventures, Inc., as named therein, by signing below, hereby sells, assigns, and transfers unto Cern One Limited, 921,901 shares of the Series B Convertible Preferred Stock, $0.00001 par value per share of the Company (the “Shares”). Such Shares are not represented by certificates, are held in book entry form and stand in the undersigned’s name on the books and records of the Company. The undersigned does hereby irrevocably constitute the Secretary of the Company as attorney-in-fact, with full power of substitution, to transfer said stock on the books of said Company.

Dated: January ___, 2021

 

CC Asia Pacific Ventures Ltd.

 

By: _________________________

 

Name: Chen Chung Hong

 

Title:   Sole Director

 

 

 

 

EXHIBIT C

 

 

 

 

[Attach A&R Designation of Series B Preferred Stock]

 

 

 

MONAKER GROUP, INC. 8-K 

 

Exhibit 3.1

 

 

 

 

     

 

 

AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

OF

MONAKER GROUP, INC.

ESTABLISHING THE DESIGNATION, PREFERENCES,

LIMITATIONS AND RELATIVE RIGHTS OF ITS

SERIES B CONVERTIBLE PREFERRED STOCK

 

Pursuant to Section 78.1955 of the Nevada Revised Statutes (the “NRS”), Monaker Group, Inc., a company organized and existing under the State of Nevada (the “Corporation”),

 

DOES HEREBY CERTIFY that, (a) the Board of Directors of the Corporation, at a meeting duly called and held on December 14, 2020; and (b)  stockholders holding shares in the Corporation entitling them to exercise a Majority In Interest (as defined below) of the then aggregate shares of Series B Preferred Stock, voting as a class, as of January 5, 2021, duly adopted this Amended and Restated Certificate of Designation of Monaker Group, Inc. Establishing the Designation, Preferences, Limitations and Relative Rights of Its Series B Convertible Preferred Stock, by adoption of a resolution which reads as follows, and which shall amend, replace and supersede the Certificate of Designation of Monaker Group, Inc. Establishing the Designation, Preferences, Limitations and Relative Rights of Its Series B Convertible Preferred Stock, previously filed by the Corporation with the Secretary of State of Nevada on November 13, 2020 (as amended to date, the “Prior Designation”), which resolution is and reads as follows:

 

RESOLVED, that pursuant to the authority expressly granted to and invested in the Board of Directors by the provisions of the Articles of Incorporation of the Corporation, as amended and Section 78.1955 of the NRS, a series of the preferred stock, par value $0.00001 per share, of the Corporation be, and it hereby is, established; and

 

FURTHER RESOLVED, that the series of preferred stock of the Corporation be, and it hereby is, given the distinctive designation of “Series B Preferred Stock”; and

 

FURTHER RESOLVED, that the Series B Preferred Stock shall consist of Ten Million (10,000,000) shares; and

 

FURTHER RESOLVED, that the Series B Preferred Stock shall have the powers and preferences, and the relative, participating, optional and other rights, and the qualifications, limitations, and restrictions thereon set forth in this Certificate of Designation (the “Designation” or the “Certificate of Designation”), which shall amend, replace and supersede the Prior Designation in its entirety:

 

1.            Definitions. In addition to other terms defined throughout this Designation, the following terms have the following meanings when used herein:

 

1.1        “Applicable Law” means any applicable statute, law, regulation, ordinance, rule, judgment, rule of law, decree, permit, requirement, or other governmental restriction or any similar form of decision of, or any provision or condition issued under any of the foregoing by, or any determination by any governmental authority having or asserting jurisdiction over the matter or matters in question, whether now or hereafter in effect and in each case as amended (including, without limitation, all of the terms and provisions of the common law of such governmental authority), as interpreted and enforced at the time in question, including, but not limited to the NRS.

 

 

 

 

1.2        “Approval Date” means the later of (a) the fifth (5th) Business Day after the date that all of the requirements of Shareholder Approval are met; (b) the Business Day that the Corporation has affected a reverse stock split of its outstanding Common Stock subsequent to the Shareholder Approval, to the extent such reverse stock split is deemed necessary by a Majority In Interest in writing prior to the date of Shareholder Approval; (c) the date that NASDAQ has approved the continued listing of the Corporation’s Common Stock on NASDAQ following the HotPlay Combination; and (d) the HotPlay Closing.

 

1.3        “Axion Creditors” mean those certain debt holders of Axion who are party to the Share Exchange Agreement and who have agreed to exchange certain debt owed to such debt holders by Axion for (a) shares of Series B Preferred Stock; and (b) the Warrants, pursuant to the Share Exchange Agreement.

 

1.4        “Axion Stockholders” mean those certain stockholders of Axion who are party to the Share Exchange Agreement and who have agreed to exchange Common Shares of Axion for shares of Series B Preferred Stock pursuant to the Share Exchange Agreement.

 

1.5        “Axion” means Axion Ventures, Inc., a British Columbia corporation whose common shares are traded on the TSX Venture exchange under the trading symbol “AXV”.

 

1.6        “Business Day” means any day except Saturday, Sunday or any day on which banks are authorized by law to be closed in the City of Weston, Florida.

 

1.7        “Cern One” means Cern One Limited, which is an Axion Stockholder and Axion Creditor.

 

1.8        “Closing Date” means the ‘Closing Date’ as defined in the Share Exchange Agreement.

 

1.9        “Closing of the Share Exchange Agreement” means the ‘Closing’ as defined in the Share Exchange Agreement.

 

1.10      “Common Stock” means the common stock, $0.00001 par value per share of the Corporation.

 

1.11      “Conversion Rate” shall equal 0.74177.

 

Monaker Group, Inc.: A&R Certificate of Designation of Series B Convertible Preferred Stock Page 2

 

 

1.12       “Corporation” has the meaning given to such term in the introductory paragraph hereof.

 

1.13       “Distribution” means the transfer of cash or other property without consideration whether by way of dividend or otherwise (other than dividends on Common Stock payable in Common Stock), or the purchase or redemption of shares of the Corporation for cash or property other than: (i) repurchases of Common Stock (or securities convertible into Common Stock) issued to or held by employees, officers, directors or consultants of the Corporation or its subsidiaries upon termination of their employment or services pursuant to agreements providing for the right or obligation of said repurchase, (ii) repurchases of Common Stock (or securities convertible into Common Stock) issued to or held by employees, officers, directors or consultants of the Corporation or its subsidiaries pursuant to rights of first refusal contained in agreements providing for such right, (iii) other repurchases and redemptions allowed pursuant to the terms of this Designation, or (iv) any other repurchases or redemptions of capital stock of the Corporation approved by a Majority In Interest.

 

1.14       “Exchange Act” means the Securities Exchange Act of 1934, as amended (and any successor thereto) and the rules and regulations promulgated thereunder.

 

1.15       “Holder” means the person or entity in which the Series B Preferred Stock is registered on the books of the Corporation, which shall initially be the person or entity which such Series B Preferred Stock is issued to, and shall thereafter be permitted and legal assigns which the Corporation is notified of by the Holder and which the Holder has provided a valid legal opinion in connection therewith to the Corporation and to whom such Preferred Stock Shares are legally transferred.

 

1.16       “HotPlay Closing” means the ‘Closing Date’ as defined in the HotPlay Share Exchange Agreement.

 

1.17       “HotPlay Combination” means the acquisition of HotPlay by the Corporation pursuant to the HotPlay Share Exchange Agreement.

 

1.18       “HotPlay Share Exchange Agreement” means that certain Share Exchange Agreement dated July 21, 2020, by and between the Corporation, HotPlay and the stockholders of HotPlay, as amended, modified and restated from time to time.

 

1.19       “HotPlay” means HotPlay Enterprise Limited, a British Virgin Islands company.

 

1.20       “Junior Securities” means each class of capital stock or series of preferred stock of the Corporation other than the Common Stock and Series B Preferred Stock in existence on or established after the Original Issue Date, which is junior to the Series B Preferred Stock in connection with distributions upon liquidation.

 

1.21       “Liquidation Preference” means $0.9272121 per share.

 

Monaker Group, Inc.: A&R Certificate of Designation of Series B Convertible Preferred Stock Page 3

 

 

1.22      “Majority In Interest” means Holders holding a majority of the then aggregate shares of Series B Preferred Stock issued and outstanding.

 

1.23      “NASDAQ” means The NASDAQ Capital Market.

 

1.24      “Original Issue Date” means the Closing Date.

 

1.25      “Original Issue Price” means the Liquidation Preference.

 

1.26      “Outstanding Series B Preferred Stock Shares” means the total number of shares of Series B Preferred Stock issued on the Original Issue Date.

 

1.27      “Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization or other entity or group.

 

1.28      “Preferred Stock Certificates” means the stock certificate(s) issued by the Corporation representing the applicable Series B Preferred Stock shares.

 

1.29      “Principal Market” means initially NASDAQ, and shall also include the NYSE American, New York Stock Exchange, the NASDAQ National Market, the OTCQB Market, the OTCQX Market, or the OTC Pink Market, whichever is at the time the principal trading exchange or market for the Common Stock, based upon share volume.

 

1.30      “Recapitalization” means any stock dividend, stock split, combination of shares, reorganization, recapitalization, reclassification or other similar event described in Sections 5.1 through 5.3.

 

1.31      “Restricted Shares” means shares of the Corporation’s Common Stock which are restricted from being transferred by the Holder thereof unless the transfer is effected in compliance with the Securities Act and applicable state securities laws (including investment suitability standards, which shares shall bear the following restrictive legend (or one substantially similar)): “The securities represented by this certificate have not been registered under the Securities Act of 1933 or any state securities act. The securities have been acquired for investment and may not be sold, transferred, pledged or hypothecated unless (i) they shall have been registered under the Securities Act of 1933 and any applicable state securities act, or (ii) the corporation shall have been furnished with an opinion of counsel, satisfactory to counsel for the corporation, that registration is not required under any such acts.”

 

1.32      “SEC” means the Securities and Exchange Commission.

 

1.33      “Securities Act” means the Securities Act of 1933, as amended (and any successor thereto) and the rules and regulations promulgated thereunder.

 

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1.34      “Senior Securities” means the Corporation’s capital leases as may be in place from time to time; and any other senior debt, equity or other security holders of the Corporation, including certain banks and/or institutions, which hold security interests over the Corporation’s assets as of the Closing Date, or which the Corporation may agree in the future to provide priority security interests to, priority right in liquidation, or priority voting rights to, which shall not require notice to, or the approval and/or consent of the Holders.

 

1.35      “Series C Preferred Stock” means the Series C Convertible Preferred Stock of the Corporation, as amended from time to time.

 

1.36      “Share Exchange Agreement” means that certain Amended and Restated Share Exchange Agreement dated November 12, 2020, by and between the Corporation, the Axion Stockholders and the Axion Creditors, as amended by the First Amendment thereto dated January 6, 2021, as further amended, modified and restated from time to time.

 

1.37      “Shareholder Approval” means (i) the approval by the shareholders of the Corporation, as required pursuant to applicable rules and regulations of NASDAQ, of (a) the transactions contemplated by the Share Exchange Agreement; and (b) the issuance of shares of Common Stock upon the Conversion of the Series B Preferred Stock and Series C Preferred Stock as provided herein and upon exercise of the Warrants; and (ii) such other terms and conditions hereof or the Share Exchange Agreement as may be required to be approved by the shareholders pursuant to the rules and regulations of NASDAQ or the SEC.

 

1.38      “Transfer Agent” means initially, the Corporation, which will be serving as its own transfer agent for the Series B Preferred Stock, but at the option of the Corporation from time to time, may also mean any successor transfer agent which the Corporation may use for its Series B Preferred Stock, including, but not limited to Colonial Stock Transfer Co, Inc.

 

1.39      “Warrants” means those certain Common Stock Purchase Warrants to purchase shares of Common Stock of the Corporation which have been granted by the Corporation to Cern One in connection with the Closing of the Share Exchange Agreement.

 

2.            Dividends.

 

2.1        Dividends in General. The Series B Preferred Stock shall not accrue any dividends.

 

2.2        Other Distributions. Subject to the terms of this Certificate of Designation, and to the fullest extent permitted by the NRS, the Corporation shall be expressly permitted to redeem, repurchase or make distributions on the shares of its capital stock in all circumstances other than where doing so would cause the Corporation to be unable to pay its debts as they become due in the usual course of business.

 

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3.            Liquidation Rights.

 

3.1       Liquidation Preference. In the event of any liquidation, dissolution or winding up of the Corporation, either voluntary or involuntary (each a “Liquidation Event”), the holders of Series B Preferred Stock shall be entitled to receive prior to the holders of the Corporation’s Junior Securities, and pro rata with the holders of the Corporation’s Common Stock and Series C Preferred Stock, but not prior to any holders of the Corporation’s Senior Securities, which holders of the Senior Securities shall have priority to the Distribution of any assets of the Corporation, an amount per share for each share of Series B Preferred Stock held by them equal to the Liquidation Preference. If upon the liquidation, dissolution or winding up of the Corporation, the assets of the Corporation legally available for distribution to the holders of the Series B Preferred Stock, Series C Preferred Stock and Common Stock (i.e., after payment of the Corporation’s liabilities and payment to any holders of the Corporation’s Senior Securities) are insufficient to permit the payment to such holders of the full amounts specified in this Section then the entire assets of the Corporation legally available for distribution shall be distributed pro rata among the holders of the Series B Preferred Stock, Series C Preferred Stock and Common Stock in proportion to the full amounts they would otherwise be entitled to receive pursuant to this Section and Applicable Law.

 

3.2       Remaining Assets. After the payment to the holders of the Series B Preferred Stock, Series C Preferred Stock and Common Stock of the full preferential amounts specified above, the entire remaining assets of the Corporation legally available for distribution by the Corporation shall be distributed with equal priority and pro rata among the holders of the Junior Securities in proportion to the number of shares of Junior Securities held by them.

 

3.3       Valuation of Non-Cash Consideration. If any assets of the Corporation distributed to stockholders in connection with any liquidation, dissolution, or winding up of the Corporation are other than cash, then the value of such assets shall be their fair market value as determined in good faith by the Board of Directors. In the event of a merger or other acquisition of the Corporation by another entity, the Distribution date shall be deemed to be the date such transaction closes.

 

4.            Conversion.

 

4.1       Conversion. On the Approval Date, each share of Series B Preferred Stock, shall automatically and without any required action by any Holder, be converted into that number of fully-paid, non-assessable shares of Common Stock as determined by multiplying the Series B Preferred Stock shares held by such Holder, by the Conversion Rate (a “Conversion”), with such shares of Common Stock issuable upon conversion of such Series B Preferred Stock on the Approval Date rounded up to the nearest whole share of Common Stock on a per Holder basis (such shares of Common Stock issuable upon a Conversion, the “Shares”).

 

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(a)          Following the Conversion, the Corporation shall promptly issue to each Holder all Shares of Common Stock which such Holder is due in connection with the Conversion (and promptly deliver such Shares to the address of Holder which the Corporation then has on record (a “Delivery”)). The Shares issuable in connection with a Conversion shall be fully-paid, non-assessable shares of Common Stock. Unless the Shares are covered by a valid and effective registration under the Securities Act or the Holder provides a valid opinion from an attorney stating that such Shares can be issued free of restrictive legend, which shall be determined by the Corporation in its sole discretion, prior to the issuance date of such Shares, such Shares shall be issued as Restricted Shares.

 

(b)          The issuance and Delivery by the Corporation of the Shares shall fully discharge the Corporation from any and all further obligations under or in connection with the Series B Preferred Stock and shall automatically, and without any required action by the Corporation or the Holder, result in the cancellation, termination and invalidation of any outstanding Series B Preferred Stock and Preferred Stock Certificates held by a Holder or his, her or its assigns.

 

(c)          Without limiting the obligation of each Holder set forth herein (including in the subsequent clause (d)), the Corporation and/or the Corporation’s Transfer Agent shall be authorized to take whatever action necessary, if any, following the issuance and Delivery of the Shares to reflect the cancellation of the Series B Preferred Stock subject to the Conversion, which shall not require the approval and/or consent of any Holder (a “Cancellation”).

 

(d)          Notwithstanding the above, each Holder, by accepting such Preferred Stock Certificates (or such Series B Preferred Stock shares in book-entry form) hereby covenants that it will, whenever and as reasonably requested by the Corporation and the Transfer Agent, at the Corporation’s sole cost and expense, do, execute, acknowledge and deliver any and all such other and further acts, deeds, assignments, transfers, conveyances, confirmations, powers of attorney and any instruments of further assurance, approvals and consents as the Corporation or the Transfer Agent may reasonably require in order to complete, insure and perfect the Cancellation, if such may be reasonably required by the Corporation and/or the Corporation’s Transfer Agent, including, but not limited to the delivery to the Corporation of all Preferred Stock Certificates and stock powers with medallion signature guaranty in connection with the Cancellation.

 

(e)          In the event that the Delivery of any Shares is unsuccessful and/or any Holder fails to accept such Shares, such Shares shall be held by the Corporation and/or the Transfer Agent in trust (without accruing interest) and shall be released to such Holder upon reasonable evidence to the Corporation or the Transfer Agent that such Holder is the legal owner of such Shares, provided that the Holder’s failure to accept such Shares and/or the Corporation’s inability to Deliver such shares shall in no event effect the validity of the Cancellation.

 

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4.2         Fractional Shares. If any Conversion of Series B Preferred Stock would result in the issuance of a fractional share of Common Stock (aggregating all shares of Series B Preferred Stock being converted pursuant to the Conversion), such fractional share shall be rounded up to the nearest whole share of Common Stock.

 

4.3         Taxes.  The Corporation shall not be required to pay any tax which may be payable in respect to any transfer involved in the issue and delivery of shares of Common Stock upon Conversion in a name other than that in which the shares of the Series B Preferred Stock so converted were registered, and no such issue or delivery shall be made unless and until the person requesting such issue or delivery has paid to the Corporation the amount of any such tax, or has established, to the satisfaction of the Corporation, that such tax has been paid. The Corporation shall withhold from any payment due whatsoever in connection with the Series B Preferred Stock any and all required withholdings and/or taxes the Corporation, in its sole discretion deems reasonable or necessary, absent an opinion from Holder’s accountant or legal counsel, acceptable to the Corporation in its sole determination, that such withholdings and/or taxes are not required to be withheld by the Corporation.

 

4.4         No Charge or Payment. The issuance of certificates for shares of Common Stock upon Conversion of the Series B Preferred Stock pursuant to Section 4 shall be made without payment of additional consideration by, or other charge, cost or tax to, the Holder in respect thereof.

 

4.5         No Impairment. The Corporation will not through any reorganization, transfer of assets, merger, dissolution, issue or sale of any securities or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms to be observed or performed hereunder by the Corporation but will at all times in good faith assist in the carrying out of all the provisions of this Section 4 and in the taking of all such action as may be necessary or appropriate in order to protect the Conversion rights of the Holders of Series B Preferred Stock against impairment. Subject to the above noted limitation, nothing in this Section 4.5 shall prohibit the Corporation from amending its Articles of Incorporation, as amended, subject to any restrictions set forth herein, with the requisite consent of its shareholders and the Board of Directors.

 

4.6         Cap on Shares of Common Stock. Notwithstanding anything herein to the contrary, the maximum number of shares of Common Stock to be issued in connection with the Conversion of all of the outstanding shares of Series B Preferred Stock and Series C Preferred Stock shares (and upon conversion or exercise of any other securities required to be aggregated with the Series B Preferred Stock and Series C Preferred Stock shares pursuant to the applicable rules and requirements of NASDAQ), or otherwise as provided herein, shall not exceed such number of shares of Common Stock that would violate applicable listing rules of NASDAQ in the event the Corporation’s shareholders do not approve the issuance of the Common Stock issuable in connection with a Conversion (and upon conversion or exercise of any other securities required to be aggregated with the Series B Preferred Stock and Series C Preferred Stock pursuant to the applicable rules and requirements of NASDAQ), or otherwise as provided herein (the “Share Cap”). In the event the number of shares of Common Stock to be issued hereunder (and upon conversion or exercise of any other securities required to be aggregated with the Series B Preferred Stock and Series C Preferred Stock pursuant to the applicable rules and requirements of NASDAQ) in connection with a Conversion or otherwise, exceeds the Share Cap, then such shares of Series B Preferred Stock which if converted would result in the Corporation exceeding the Share Cap shall remain outstanding and not be subject to a Conversion, provided that the remaining shares shall be subject to Conversion as provided for herein.

 

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5.            Adjustments For Recapitalizations.

 

5.1        Equitable Adjustments For Recapitalizations. The (a) Liquidation Preference (the “Preferred Stock Adjustable Provisions”); (b) the Conversion Rate (the “Common Stock Adjustable Provisions”), and (c) any and all other terms, conditions, amounts and provisions of this Designation which (i) pursuant to the terms of this Designation provide for equitable adjustment in the event of a Recapitalization; or (ii) the Board of Directors of the Corporation determine in their reasonable good faith judgment is required to be equitably adjusted in connection with any Recapitalizations (collectively Sections (c)(i) and (ii), the “Other Equitable Adjustable Provisions”), shall each be subject to equitable adjustment as provided in Sections 5.2 through 5.4, below, as determined by the Board of Directors in their sole and reasonable discretion.

 

5.2        Adjustments for Subdivisions or Combinations of Common Stock. In the event the outstanding shares of Common Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Common Stock, without a corresponding subdivision of the Series B Preferred Stock, the applicable Common Stock Adjustable Provisions and the Other Equitable Adjustable Provisions (if any) in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately and equitably adjusted. In the event the outstanding shares of Common Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Common Stock, without a corresponding combination of the Series B Preferred Stock, the Common Stock Adjustable Provisions and the Other Equitable Adjustable Provisions (if any) in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately and equitably adjusted.

 

5.3        Adjustments for Subdivisions or Combinations of Series B Preferred Stock. In the event the outstanding shares of Series B Preferred Stock shall be subdivided (by stock split, by payment of a stock dividend or otherwise), into a greater number of shares of Series B Preferred Stock, the applicable Preferred Stock Adjustable Provisions and the Other Equitable Adjustable Provisions (if any) in effect immediately prior to such subdivision shall, concurrently with the effectiveness of such subdivision, be proportionately and equitably adjusted. In the event the outstanding shares of Series B Preferred Stock shall be combined (by reclassification or otherwise) into a lesser number of shares of Series B Preferred Stock, the applicable Preferred Stock Adjustable Provisions and the Other Equitable Adjustable Provisions (if any) in effect immediately prior to such combination shall, concurrently with the effectiveness of such combination, be proportionately and equitably adjusted; provided, however, that the result of any concurrent adjustment in the Common Stock (as provided under Section 5.2) and the Series B Preferred Stock (as provided under Section 5.3) shall only be to affect the equitable adjustable provisions hereof once.

 

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5.4        Adjustments for Reclassification, Exchange and Substitution. Subject to Section 3 above, if the Common Stock issuable upon Conversion of the Series B Preferred Stock shall be changed into the same or a different number of shares of any other class or classes of stock, whether by capital reorganization, reclassification or otherwise (other than a subdivision or combination of shares provided for above), then, in any such event, in lieu of the number of shares of Common Stock which the holders would otherwise have been entitled to receive, each holder of such Series B Preferred Stock shall have the right thereafter to convert such shares of Series B Preferred Stock into a number of shares of such other class or classes of stock which a holder of the number of shares of Common Stock deliverable upon Conversion of such Series B Preferred Stock immediately before that change would have been entitled to receive in such reorganization or reclassification, all subject to further adjustment as provided herein with respect to such other shares.

 

5.5        Other Adjustments. Subject to the prior written consent of a Majority In Interest, the Board of Directors of the Corporation may adjust equitably, and shall have the right to adjust equitably, any or all of the Preferred Stock Adjustable Provisions, Common Stock Adjustable Provisions or Other Equitable Adjustable Provisions from time to time, if the Board of Directors of the Corporation determine in their reasonable good faith judgment that such values and/or provisions are required to be equitably adjusted in connection with any Corporation action.

 

5.6        Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment pursuant to this Section 5, the Corporation at its expense shall promptly compute such adjustment or readjustment in accordance with the terms hereof and furnish to each holder of Series B Preferred Stock a certificate setting forth such adjustment or readjustment and showing in detail the facts upon which such adjustment or readjustment is based. The Corporation shall, upon the written request at any time of any holder of Series B Preferred Stock, furnish or cause to be furnished to such holder a like certificate setting forth (i) such adjustments and readjustments, (ii) the Conversion Rate at the time in effect and (iii) the number of shares of Common Stock and the amount, if any, of other property which at the time would be received upon the conversion of the Series B Preferred Stock.

 

6.            Voting.

 

6.1        Class Voting. Except as otherwise expressly provided in Section 7, subsection (iv) of the definition of Distribution, or as required by law, the Series B Preferred Stock shall not have any voting rights.

 

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6.2              No Series Voting. Other than as provided herein or required by law, there shall be no series voting.

 

7.            Protective Provisions.

 

7.1              General Protective Provisions. Subject to the rights of series of Preferred Stock which may from time to time come into existence (subject to the terms, conditions and approval requirements of the Holders (where applicable), set forth in this Designation), so long as any shares of Series B Preferred Stock are outstanding, the Corporation shall not, without first obtaining the approval (at a meeting duly called or by written consent, as provided by law) of the holders of a Majority In Interest:

 

(a)        Increase or decrease (other than by redemption or conversion) the total number of authorized shares of Series B Preferred Stock;

 

(b)        Re-issue any shares of Series B Preferred Stock converted pursuant to the terms of this Designation;

 

(c)        Effect an exchange, reclassification, or cancellation of all or a part of the Series B Preferred Stock;

 

(d)        Effect an exchange, or create a right of exchange, of all or part of the shares of another class of shares into shares of Series B Preferred Stock;

 

(e)        Issue any shares of Series B Preferred Stock other than pursuant to the Share Exchange Agreement;

 

(f)         Alter or change the rights, preferences or privileges of the shares of Series B Preferred Stock so as to affect adversely the shares of such series; or

 

(g)        Amend or waive any provision of the Corporation’s Articles of Incorporation or Bylaws relative to the Series B Preferred Stock so as to affect adversely the shares of Series B Preferred Stock in any material respect as compared to holders of other series of shares.

 

8.            Redemption Rights. The Series B Preferred Stock shall not have any redemption rights.

 

9.            Notices. Any notices required or permitted to be given under the terms hereof shall be sent by certified or registered mail (return receipt requested) or delivered personally, by nationally recognized overnight carrier or by confirmed facsimile or email transmission, and shall be effective, unless otherwise provided herein, three days after being placed in the mail, if mailed, or upon receipt or refusal of receipt, if delivered personally or by nationally recognized overnight carrier or confirmed facsimile transmission or email, in each case addressed to a party. The addresses for such communications are (i) if to the Corporation to, William Kerby, Chief Executive Officer, 2893 Executive Park Drive, Suite 201, Weston, FL 33331, Email: William Kerby, bkerby@monakergroup.com, or such other address as the Corporation shall notify the Holders of at least ten (10) Business Days prior to the effective date of such change in record address, and (ii) if to any Holder to the address set forth in the records of the Corporation or its Transfer Agent, as applicable, or such other address as may be designated in writing hereafter, in the same manner, by such person.

 

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10.          No Preemptive Rights. No Holder shall have the right to purchase shares of capital stock of the Corporation sold or issued by the Corporation except to the extent that such right may from time to time be set forth in a written agreement between the Corporation and such stockholder.

 

11.          Reports. The Corporation shall mail to all holders of Series B Preferred Stock those reports, proxy statements and other materials that it mails to all of its holders of Common Stock which materials may, at the option of the Corporation, be provided to such Holders via email, which email will be deemed sufficient notice if it provides a link to the applicable Corporation filing on the Securities and Exchange Commission’s Electronic Data Gathering, Analysis, and Retrieval system (EDGAR).

 

12.          Replacement Preferred Stock Certificates. In the event that any Holder notifies the Corporation that a Preferred Stock Certificate evidencing shares of Series B Preferred Stock has been lost, stolen, destroyed or mutilated, the Corporation shall issue a replacement stock certificate evidencing the Series B Preferred Stock identical in tenor and date (or if such certificate is being issued for shares not covered in a redemption or conversion, in the applicable tenor and date) to the original Preferred Stock Certificate evidencing the Series B Preferred Stock, provided that the Holder executes and delivers to the Corporation and/or its Transfer Agent, as applicable, an affidavit of lost stock certificate and an agreement reasonably satisfactory to the Corporation and its Transfer Agent to indemnify the Corporation from any loss incurred by it in connection with such Series B Preferred Stock certificate, and provides the Corporation and/or its Transfer Agent such other information, documents and if applicable, bonds and indemnities as the Corporation or its Transfer Agent customarily requires for reissuances of stock certificates (collectively the “Lost Certificate Materials”); provided, however, the Corporation shall not be obligated to re-issue replacement stock certificates if the Holder contemporaneously requests the Corporation to convert or redeem the full number of shares evidenced by such lost, stolen, destroyed or mutilated certificate.

 

13.          No Other Rights or Privileges. Except as specifically set forth herein, the Holders of the Series B Preferred Stock shall have no other rights, privileges or preferences with respect to the Series B Preferred Stock.

 

14.          Construction. When used in this Designation, unless a contrary intention appears: (i) a term has the meaning assigned to it; (ii) “or” is not exclusive; (iii) “including” means including without limitation; (iv) words in the singular include the plural and words in the plural include the singular, and words importing the masculine gender include the feminine and neuter genders; (v) any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein; (vi) the words “hereof”, “herein” and “hereunder” and words of similar import when used in this Designation shall refer to this Designation as a whole and not to any particular provision hereof; (vii) references contained herein to Article, Section, Schedule and Exhibit, as applicable, are references to Articles, Sections, Schedules and Exhibits in this Designation unless otherwise specified; (viii) references to “dollars”, “Dollars” or “$” in this Designation means United States dollars; (ix) reference to a particular statute, regulation or law means such statute, regulation or law as amended or otherwise modified from time to time; (x) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein); (xi) unless otherwise stated in this Designation, in the computation of a period of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding”; (xii) references to “days” means calendar days; and (xiii) the paragraph and section headings contained in this Designation are for convenience only, and shall in no manner affect the interpretation of any of the provisions of this Designation.

 

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15.          Miscellaneous.

 

15.1          Cancellation of Series B Preferred Stock. If any shares of Series B Preferred Stock are redeemed pursuant to the terms of this Designation, the shares so redeemed shall be canceled and shall return to the status of designated, but unissued Series B Preferred Stock, subject to the terms of this Designation.

 

15.2          Further Assurances. Each Holder hereby covenants that, in consideration for receiving shares of Series B Preferred Stock, that he, she or it will, whenever and as reasonably requested by the Corporation, do, execute, acknowledge and deliver any and all such other and further acts, deeds, confirmations, agreements and documents as the Corporation or its Transfer Agent may reasonably require in order to complete, insure and perfect any of the terms, conditions or provisions of this Designation.

 

15.3          Technical, Corrective, Administrative or Similar Changes. The Corporation may, by any means authorized by law and without any vote of the Holders of shares of the Series B Preferred Stock, make technical, corrective, administrative or similar changes in this Designation that do not, individually or in the aggregate, adversely affect the rights or preferences of the Holders of shares of the Series B Preferred Stock.

 

15.4          Waiver/Amendment. Notwithstanding any provision in this Designation to the contrary, any provision contained herein and any right of the holders of Series B Preferred Stock granted hereunder may be waived and/or amended as to all shares of Series B Preferred Stock (and the Holders thereof) upon the written consent of a Majority In Interest, unless a higher percentage is required by Applicable Law, in which case the written consent of the Holders of not less than such higher percentage of shares of Series B Preferred Stock shall be required.

 

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15.5          Interpretation. Whenever possible, each provision of this Designation shall be interpreted in a manner as to be effective and valid under Applicable Law and public policy. If any provision set forth herein is held to be invalid, unlawful or incapable of being enforced by reason of any rule of law or public policy, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions of this Designation. No provision herein set forth shall be deemed dependent upon any other provision unless so expressed herein. If a court of competent jurisdiction should determine that a provision of this Designation would be valid or enforceable if a period of time were extended or shortened, then such court may make such change as shall be necessary to render the provision in question effective and valid under Applicable Law.

 

——————————————————————————

 

NOW THEREFORE BE IT RESOLVED, that the Designation is hereby approved, affirmed, confirmed, and ratified; and it is further

 

RESOLVED, that each officer of the Corporation be and hereby is authorized, empowered and directed to execute and deliver, in the name of and on behalf of the Corporation, any and all documents, and to perform any and all acts necessary to reflect the Board of Directors approval and ratification of the resolutions set forth above; and it is further

 

RESOLVED, that in addition to and without limiting the foregoing, each officer of the Corporation and the Corporation’s attorney be and hereby is authorized to take, or cause to be taken, such further action, and to execute and deliver, or cause to be delivered, for and in the name and on behalf of the Corporation, all such instruments and documents as he may deem appropriate in order to effect the purpose or intent of the foregoing resolutions (as conclusively evidenced by the taking of such action or the execution and delivery of such instruments, as the case may be) and all action heretofore taken by such officer in connection with the subject of the foregoing recitals and resolutions be, and it hereby is approved, ratified and confirmed in all respects as the act and deed of the Corporation; and it is further

 

RESOLVED, that this Designation may be executed in several counterparts, each of which is an original; that it shall not be necessary in making proof of this Designation or any counterpart hereof to produce or account for any of the other.

 

[Remainder of page left intentionally blank. Signature page follows.]

 

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IN WITNESS WHEREOF, the Corporation has unanimously approved and caused this “Amended and Restated Certificate of Designation of Monaker Group, Inc. Establishing the Designation, Preferences, Limitations and Relative Rights of Its Series B Convertible Preferred Stock” to be duly executed and approved this 7th day of January 2021.

 

    MONAKER GROUP, INC.
     
    /s/ William Kerby
    William Kerby
    Chief Executive Officer

 

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