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): March 8, 2021 (as to Item 1.01 only) and March 16, 2021 (as to the other Items)

 

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.)

 

1560 Sawgrass Corporate Parkway, Suite 130

Sunrise, Florida 33323

(Address of principal executive offices zip code) 

 

(954) 888-9779

(Registrant’s telephone number, including area code) 

 

2893 Executive Park Drive, Suite 201

Weston, Florida 33331

(Former name or former address, if changed since last report.)

 

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.

 

Soma Innovation Lab Joint Venture

 

On March 8, 2021, Monaker Group, Inc. (the “Company”, “we" or “us“) entered into a Joint Venture Agreement with Soma Innovation Lab (“Soma”). Pursuant to the agreement, the parties agreed to form a joint venture for designing hyper-personalized experiences for targeted gamers. The agreement requires us to provide Soma the use of the HotPlay technology, assuming we acquire ownership of such technology as a result of the closing of our pending Share Exchange (as defined below), with HotPlay (as defined below), which technology is owned by HotPlay, and that we would issue the principals of Soma 72,000 shares of restricted common stock (valued at $180,000), of which $45,000 was earned immediately and the remaining shares will be earned at the rate of 6,000 per month. Pursuant to the agreement, Soma agreed to provide us use of an email client list and other services. The joint venture is owned 50/50 between us and Soma, with net profits/revenues paid pursuant to the same 50/50 split. In the event the joint venture achieves revenue in excess of expenses and the Company recovers the $180,000 value of the shares, then we agreed to issue Soma a bonus of 50,000 shares of restricted common stock. The joint venture (and agreement) each have a term of two years. The Company also agreed to use Soma for certain work to be performed on its websites and travel magazine, and agreed to pay Soma $75,000 per month ($225,000 in aggregate) for such work, payable by way of the issuance of 90,000 shares of restricted common stock.

 

The foregoing description of the Joint Venture Agreement above is subject to and qualified in its entirety by, the Joint Venture Agreement, attached as Exhibit 10.3 hereto, which is incorporated in this Item 1.01 by reference in its entirety.

 

March 2021 HotPlay Convertible Notes

 

On March 16, 2021, and March 19, 2021, HotPlay Enterprise Limited (“HotPlay”, which is a party, together with its stockholders, to a Share Exchange Agreement, dated July 21, 2020, with us (as amended to date, the “Exchange Agreement”)), loaned the Company $9 million and $1 million (collectively, the “March 2021 Loans”).

  

The March 2021 Loans were made pursuant to the terms of the Exchange Agreement. The Exchange Agreement and related transactions are described in greater detail in the Current Report on Form 8-K filed with the Securities and Exchange Commission (SEC) on July 23, 2020, the Current Report on Form 8-K filed with the SEC on October 29, 2020 (describing the first amendment thereto), the Current Report on Form 8-K filed with the SEC on November 18, 2020 (describing the second amendment thereto), the Current Report on Form 8-K filed with the SEC on January 11, 2021 (describing the third amendment thereto), and the Current Report on Form 8-K filed with the SEC on February 26, 2021 (describing the fourth amendment thereto).

The March 2021 Loans were evidenced by Convertible Promissory Notes dated effective March 16, 2021 and March 19, 2021, in the amount of $9,000,000 and $1,000,000, respectively (collectively, the “March 2021 HotPlay Notes”).

HotPlay previously advanced the Company (a) $300,000 under the terms of a substantially similar convertible promissory note on September 1, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on September 8, 2020, (b) $700,000 under the terms of a substantially similar convertible promissory note on September 18, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on September 24, 2020; (c) $1,000,000 under the terms of a substantially similar convertible promissory note on September 30, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on October 1, 2020; (d) $400,000 under the terms of a substantially similar convertible promissory note on or around November 3, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on November 6, 2020; (e) $100,000 under the terms of a substantially similar convertible promissory note on or around November 24, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on November 27, 2020; (f) $350,000 under the terms of a substantially similar convertible promissory note on or around December 8, 2020, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on December 14, 2020; and (g) $150,000 under the terms of a substantially similar convertible promissory note effective as of January 6, 2021, as disclosed in the Current Report on Form 8-K filed by the Company with the SEC on January 7, 2021.

The advance was, and the entry into the March 2021 HotPlay Notes was, a required condition to the Exchange Agreement, under which HotPlay is required to have at least $15 million in cash on hand as of the closing of such Exchange Agreement, less amounts loaned to the Company, of which a total of $13 million has been loaned to the Company from HotPlay to date, when including the March 2021 HotPlay Notes.

 

 
 

 

The March 2021 HotPlay Notes and the Convertible Promissory Notes entered into to evidence the other $3 million in HotPlay Loans (collectively, the “HotPlay Notes”) have an interest rate of 1% per annum.

 

The HotPlay Notes are automatically forgiven by HotPlay in the event the Exchange Agreement is terminated:

 

(a) by written agreement of the parties thereto;

 

(b) by HotPlay (and its stockholders) if the closing has not occurred on or before the required date set forth in the Exchange Agreement (currently April 30, 2021, provided that such termination date shall be extended automatically, until up to May 31, 2021, in the event that the Company is continuing to work in good faith to complete the closing of the Exchange Agreement)(the “Termination Date”);

  

(c) by the Company if the closing has not occurred on or before the Termination Date, unless the failure of the closing to have occurred is attributable to a failure on the part of the Company;

 

(d) by the Company, if there is a material adverse effect on HotPlay or any schedule delivered by HotPlay is found to be materially misleading or conflict with any prior written or oral statement delivered to the Company; or

 

(e) by the Company, if any representations or warranties made by HotPlay or its stockholders in the Exchange Agreement are found to be materially inaccurate or any covenants are breached.

 

Alternately, if the Exchange Agreement is terminated:

 

(a) by HotPlay or its principal stockholder (as applicable) because a governmental authority of competent jurisdiction issues a final non-appealable order, or takes any other action having the effect of, permanently restraining, enjoining, or otherwise prohibiting the consummation of the transactions contemplated by the Exchange Agreement (a “Government Action”);

 

(b) by HotPlay if any event occurs that makes it impossible to satisfy a condition precedent to the Exchange Agreement;

 

(c) by HotPlay if there is a material adverse effect on the Company; or

 

(d) by HotPlay if any representations or warranties made by the Company in the Exchange Agreement are found to be materially inaccurate or any covenant of the Company is breached; or by the Company in connection with a Government Action or any event occurs that makes it impossible to satisfy a condition precedent to the Exchange Agreement (except as discussed above in connection with events which result in the automatic forgiveness of the HotPlay Notes),

 

then the outstanding principal amount of the HotPlay Notes together with all accrued and unpaid interest thereon, automatically convert into fully paid and nonassessable shares of the Company’s common stock at a conversion price of $2.00 per share, subject to the NASDAQ Limitation, described below.

 

In the event the transactions contemplated by the Share Exchange close, it is anticipated that the HotPlay Notes will be forgiven as intracompany loans.

 

If the Company fails to deliver the shares due upon a conversion within five business days, or the Company enters into a voluntary or involuntary bankruptcy proceeding, then HotPlay can declare the entire amount of the notes due and payable (provided the notes are automatically due upon the occurrence of certain bankruptcy events), and such note will accrue interest at the rate of 18% per annum until paid in full.

 

 
 

 

The maximum number of shares of common stock to be issued in connection with the conversion of the March 2021 HotPlay Notes and other HotPlay Convertible Notes, cannot (i) exceed 19.9% of the outstanding shares of common stock on the date of the applicable note, (ii) exceed 19.9% of the combined voting power of the then outstanding voting securities of the Company on the date of the applicable note, in each of subsections (i) and (ii) before the issuance of the common stock under such notes, or (iii) otherwise exceed such number of shares of common stock that would violate applicable listing rules of The NASDAQ Capital Market in the event the Company’s stockholders do not approve the issuance of the common stock (as applicable, the “NASDAQ Limitation”).

 

The foregoing description of the March 2021 HotPlay Notes above is subject to and qualified in its entirety by, the March 2021 HotPlay Noted, attached as Exhibit 10.1 and Exhibit 10.2 hereto, which are incorporated in this Item 1.01 by reference in their entirety.

 

Item 2.03. Creation of Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information in Item 1.01 above under the heading “March 2021 HotPlay Convertible Notes”, including, but not limited to, the description of such March 2021 HotPlay Notes and $9,000,000 and $1,000,000 HotPlay loans, are incorporated into this Item 2.03 in their entirety by reference.

 

Item 3.02. Unregistered Sales of Equity Securities. 

 

The issuance of the 162,000 shares of restricted common stock pursuant to the Soma joint venture, described in Item 1.01 above, are exempt from registration pursuant to Section 4(a)(2), Rule 506 of Regulation D, or Regulation S of the Securities Act of 1933, as amended (the “Securities Act”), since the foregoing issuances did not involve a public offering, and the securities were offered without any general solicitation by us or our representatives. The securities are subject to transfer restrictions, and the certificates evidencing the securities will contain an appropriate legend stating that such securities have not been registered under the Securities Act and may not be offered or sold absent registration or pursuant to an exemption therefrom.

 

The issuance of the March 2021 HotPlay Notes is intended to be exempt from registration pursuant to Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act, since the foregoing issuance did not involve a public offering, the recipient confirmed that it was an “accredited investor”, and the recipient 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 offered without any general solicitation by us or our representatives. The securities are subject to transfer restrictions, and the certificates evidencing the securities will contain an appropriate legend stating that such securities have not been registered under the Securities Act and may not be offered or sold absent registration or pursuant to an exemption therefrom. If converted in full (without factoring in accrued interest), the March 2021 HotPlay Notes would convert into an aggregate of 5,000,000 shares of the Company’s common stock, subject to the NASDAQ Limitation.

 

The Company is party to a November 2, 2020 Stock Purchase Agreement, as amended, entered into with Dr. Jason Morton (“Morton”), as previously disclosed on the Current Report on Form 8-K filed by the Company with the Securities and Exchange Commission on November 19, 2020, pursuant to which the Company acquired Longroot, Inc. Pursuant to the terms of the Stock Purchase Agreement, the Company owed Morton $300,000 due on or prior to March 16, 2020 and $150,000 due on or prior to April 15, 2021, which, at the option of Morton, could be satisfied in shares of the Company’s restricted common stock, based on a price of $3.00 per share. On March 19, 2021, Morton exercised the option to receive the consideration due in shares, and the Company issued Morton 150,000 shares of restricted common stock in full satisfaction of the amounts due. Morton also holds registration rights in connection with such shares. We claim an exemption from registration for the issuance described above pursuant to Section 4(a)(2) and/or Rule 506(b) of Regulation D of the Securities Act, since: the foregoing issuance did not involve a public offering, the recipient is (a) an “accredited investor”; and/or (b) had access to similar documentation and information as would be required in a Registration Statement under the Securities Act, and the recipient 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 offered without any general solicitation by us or our representatives. No underwriters or agents were involved in the foregoing issuances and we paid no underwriting discounts or commissions. The securities sold are subject to transfer restrictions, and the certificates evidencing the securities contain an appropriate legend stating that such securities have not been registered under the Securities Act and may not be offered or sold absent registration or pursuant to an exemption therefrom. 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.

 

Item 9.01. Financial Statements and Exhibits.

 

(d) Exhibits. 

Exhibit
Number 		  Description of Exhibit
10.1*   $9,000,000 Convertible Note by and among Monaker Group, Inc. and HotPlay Enterprise Limited, dated March 16, 2021
10.2*   $1,000,000 Convertible Note by and among Monaker Group, Inc. and HotPlay Enterprise Limited, dated March 19, 2021 
10.3*   Joint Venture Agreement dated March 8, 2021, by and between Monaker Group, Inc. and Soma Innovation Lab

* Filed herewith.

 

 
 

 

 

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: March 22, 2021 By: /s/ William Kerby
    Name:   William Kerby
    Title:  Chief Executive Officer

 

 

 

 

 

Monaker Group, Inc. 8-K

Exhibit 10.1

 

 

CONVERTIBLE NOTE

 

THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

 

MONAKER GROUP, INC.

CONVERTIBLE PROMISSORY NOTE

 

 

$9,000,000.00

March 16, 2021

 

FOR VALUE RECEIVED, MONAKER GROUP, INC., a Nevada corporation (the “Company”) promises to pay to HOTPLAY ENTERPRISE LIMITED, or its registered assigns (“Investor”), in lawful money of the United States of America the principal sum of Nine Million Dollars ($9,000,000.00), or such lesser amount as shall equal the then outstanding principal amount hereof, together with simple interest from the date of this Convertible Promissory Note (this “Note”) on the then outstanding principal balance at a rate equal to ONE PERCENT (1%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All then outstanding principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be converted or forgiven as set forth herein. This Note may be prepaid in whole or in part, at any time and from time to time, without premium or penalty.

 

1. Definitions. As used in this Note, the following capitalized terms have the following meanings:

(a) “Charter” shall mean the Company’s articles of incorporation as may be amended or restated from time to time.

(b) “Common Stock” shall mean common stock of the Company.
(c) “Conversion Price” shall mean a conversion price equal to $2.00 per share of Common Stock.

(d) “Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, claim, charge or other encumbrance.

 

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(e) “Obligations” shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor of every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note, including all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq.), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.
(f) “Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.
(g) “Share Exchange Agreement” shall mean that certain Share Exchange Agreement entered into by and among the Company, the Investor and various stockholders of the Investor, as may be amended from time to time.

 

2. Payments.
(a) Interest. Accrued interest on this Note shall be converted or forgiven as set forth herein.

(b) Automatic Forgiveness in Certain Circumstances. In the event the Share Exchange Agreement is terminated pursuant to Section 10.1(a) of the Share Exchange Agreement; by Investor and Principal Stockholder (as such term is defined in the Share Exchange Agreement), pursuant to Section 10.1(b) of the Share Exchange Agreement; or by the Company pursuant to Sections 10.1(c), 10.1(e)(solely in the event that the Company terminates the Share Exchange pursuant to Section 10.1(e) because Investor (x) is not able to obtain audited and interim financial statements in the form required by the Securities and Exchange Commission, or (y) does not supply all of the information required in order for the Company to file its initial Proxy Statement, by the date which falls 75 days after the date the Share Exchange Agreement was entered into), 10.1(g), or 10.1(i), then outstanding principal amount of this Note, plus all accrued and unpaid interest, shall be forgiven in full and the Company shall have no further obligation to the Investor hereunder.

 

3. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:

(a) Failure to Convert. The Company shall fail to convert when due any principal or interest hereunder into shares of Common Stock of the Company within five (5) business days after the date required hereunder;
(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its or any of its creditors, (iii) be dissolved or liquidated, (iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect or consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (v) take any action for the purpose of effecting any of the foregoing.

 

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(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company, if any, or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and 0an 0order for relief entered or such proceeding shall not be dismissed or discharged within 60 days of commencement.

 

4. Rights of Investor upon Default. Upon the occurrence of any Event of Default (other than an Event of Default described in Sections 3(b) or 3(c)) and at any time thereafter during the continuance of such Event of Default, Investor may, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Sections 3(b) or 3(c), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may, with the written consent of the Investor, exercise any other right, power or remedy granted to it by this Note or otherwise permitted to it by law, either by suit in equity or by action at law, or both. Additionally, upon the occurrence of any Event of Default, the outstanding principal balance of this Note shall bear interest (“Default Interest”) while such default exists at the lesser of: (a) eighteen percent (18%) per annum and (b) the maximum legally permissible rate (the “Default Rate”).

 

5. Conversion.
(a) Automatic Conversion in Certain Circumstances. If the Share Exchange Agreement is terminated by Investor and/or Principal Stockholder (as applicable) pursuant to Sections 10.1(d), 10.1(e), 10.1(f), or 10.1(h) of the Share Exchange Agreement or by the Company pursuant to Sections 10.1(d), or 10.1(e)(except as otherwise provided in Section 2(b) above, in which case Section 2(b) above shall apply) of the Share Exchange Agreement, then the then outstanding principal amount of this Note together with all accrued and unpaid interest under this Note shall automatically convert into fully paid and nonassessable shares of Common Stock at a price per share equal to the Conversion Price. The Company shall cause to be delivered stock certificates to or as directed by Investor as set forth in this Section 5.

 

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(b) Conversion Procedure.
(i) Conversion Pursuant to Section 5(a). If this Note is to be automatically converted pursuant to Section 5(a), written notice shall 0be 0delivered to Investor at the address last shown on the records of the Company for Investor or given by Investor to the Company for the purpose of notice, notifying Investor 0of 0the general terms of the conversion to be effected, specifying the Conversion Price, the principal amount of the Note to be converted, together with all accrued and unpaid interest and the date on which such conversion is expected to occur and calling upon Investor to surrender to the Company, in the manner and at the place designated, this Note. The Company shall, as soon as practicable thereafter, issue and deliver to Investor a certificate or certificates for the number of 0shares to which Investor shall be entitled upon such conversion, or shall otherwise issue such shares in book-entry form and provide Investor confirmation thereof.
(ii) Fractional Shares; Interest; Effect of Conversion. No fractional shares shall be issued upon conversion of this Note. In lieu 0of 0the Company issuing any fractional shares to Investor upon the conversion of this Note, the Company shall round up any fractional share of 0Common Stock which would otherwise be due to the Investor upon conversion hereof. Upon conversion of this Note in full and the payment of the amounts specified in this paragraph, the Company shall be forever released from all its Obligations and liabilities under this Note and this Note shall be deemed of no further force or effect, whether or not the original of this Note has been delivered to the Company for cancellation.
(c) 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 this Note (and upon conversion or exercise of any other securities required to be aggregated with the conversion of this Note pursuant to the applicable rules and requirements of the NASDAQ Capital Market), or otherwise as provided herein, shall not (i) exceed 19.9% of the outstanding shares of Common Stock on the date of this Note, (ii) exceed 19.9% of the combined voting power of the then outstanding voting securities of the Company on the date of this Note, in each of subsections (i) and (ii) before the issuance of the Common Stock hereunder in connection with any conversion, or (iii) otherwise exceed such number of shares of Common Stock that would violate applicable listing rules of the NASDAQ Capital Market in the event the Company’s stockholders do not approve the issuance of the Common Stock issuable in connection with a conversion of this Note (and upon conversion or exercise of any other securities required to be aggregated with the conversion of this Note pursuant to the applicable rules and requirements of the NASDAQ Capital Market), or otherwise as provided herein.

 

6. Representations and Warranties of the Company. The Company represents and warrants to the Investor that:

(a) Due Incorporation, Qualification, etc. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada (ii) has the power and authority to own, lease and operate its properties and carry on itsbusiness as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a material adverse effect on the Company.

 

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(b) Authority. The execution, delivery and performance by the Company of the Note and the consummation of the transactions contemplated thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary actions on the part of the Company.
(c) Enforceability. The Note has been, or will be, duly executed and delivered by the Company and constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by the Company of the Note and the performance and consummation of the transactions contemplated hereby do not and will not (i) violate the Charter or bylaws of the Company, or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; or (ii) result in the creation or imposition of any Lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.
(e) Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of the Notes by the Company and the performance and consummation of the transactions contemplated thereby, other than such as have been obtained and remain in full force and effect and other than such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Note.

 

7. Representations and Warranties of Investor. Investor represents and warrants to the Company upon the acquisition of the Note as follows:

(a) Binding Obligation. Investor has full legal capacity, power and authority to execute and deliver this Note and to perform its obligations hereunder. This Note constitutes valid and binding obligations of Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

 

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(b) Securities Law Compliance. Investor has been advised that the Note and the underlying securities have not been registered under the Act and any applicable state securities laws and, therefore, cannot be resold unless it or they are registered under the Act and applicable state securities laws or unless an exemption from such registration requirements is available. Investor is aware that the Company is under no obligation to affect any such registration with respect to the Note or the underlying securities or to file for or comply with any exemption from registration. Investor has not been formed solely for the purpose of making this investment and is purchasing the Note for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor has such knowledge and experience in financial and business matters that Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time. Investor is an “accredited investor” as such term is defined in Rule 501 of Regulation D under the Act and shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The residency of Investor (or, in the case of a partnership or corporation, such entity’s principal place of business) is correctly set forth beneath Investor’s name on the signature page hereto.

(c) Access to Information. Investor acknowledges that the Company has given Investor access to the corporate records and accounts of the Company and to all information in its possession relating to the Company, has made its officers and representatives available for interview by Investor, and has furnished Investor with all documents and other information required for Investor to make an informed decision with respect to the purchase of the Note.
(d) Tax Advisors. Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Note. With respect to such matters, Investor relies solely on any such advisors and not on any statements or representations of the Company or any of its agents, written or oral. Investor understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated by this Note.
(e) Purchase Price. Investor shall have delivered to the Company the principal sum of One Million Dollars ($1,000,000.00).

(f) No “Bad Actor” Disqualification Events. Neither (i) the Investor, (ii) any of its directors, executive officers, general partners or managing members, nor (iii) any beneficial owner of any of the Company’s voting equity securities (in accordance with Rule 506(d) of the Act) held by the Investor if such beneficial owner is deemed to own 20% or more of the Company’s outstanding voting securities (calculated on the basis of voting power) is subject to any disqualifications described in Rule 506(d)(1)(i) through (viii) of the Act (“Disqualification Events”), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Act and disclosed reasonably in advance of the date hereof in writing in reasonable detail to the Company.

 

8. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Note may be amended, waived or modified only with the written consent of the Company and of the Investor.

  (b) Governing Law. This Note and all actions arising out of or in connection herewith or therewith shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of law provisions of the State of Florida or of any other state.

 

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(c) Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Note.

(d) Jurisdiction and Venue. Investor and the Company irrevocably consent to the exclusive jurisdiction of, and venue in, the state courts in Broward County in the State of Florida, in connection with any matter based upon or arising out of this Note or the matters contemplated herein or therein, and agree that process may be served upon them in any manner authorized by the laws of the State of Florida for such Persons.
(e) Waiver of Jury Trial; Judicial Reference. Investor hereby agrees and the Company hereby agrees to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note.
(f) Successors and Assigns. Subject to the restrictions on transfer set forth herein, the rights and obligations of the Company and Investor under this Note shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.
(g) Transfer and Replacement of this Note. The Company will keep, at its principal executive office, books for the recordation of the Investors and recordation of transfer of this Note. Prior to presentation of this Note for transfer, the Company shall treat the Person in whose name this Note is recorded as the owner and holder of this Note for all purposes whatsoever, whether or not this Note shall be overdue, and the Company shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in this Note, the holder of this Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor this Note in the principal requested by such holder, dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note and recorded in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of this Note. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of this Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as this Note, in the same principal amount as the unpaid principal amount of this Note and dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note.
(h) Transfer of this Note or Securities Issuable on Conversion Thereof. Subject to the proviso in the following sentence, neither this Note nor the securities issued upon conversion hereof may be transferred by Investor without the prior written consent of the Company. Investor shall have no further restrictions on transferability of the underlying securities following the earlier of: (a) consummation of the Share Exchange Agreement and (b) the date that is six months from the date of this Note, provided that all transfers of this note and/or any securities underlying this Note shall comply with applicable law.

 

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(i) Assignment by the Company. The rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Investor.
(j) Entire Agreement. This Note constitutes and contains the entire agreement among the Company and Investor and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.
(k) Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and faxed, mailed, emailed or delivered to each party as follows: (i) if to Investor, at Investor’s address, facsimile number or electronic mail address set forth beneath Investor’s name on the signature page hereto, or at such other address, facsimile number or electronic mail address as Investor shall have furnished the Company in writing, or (ii) if to the Company, at the Company’s address, facsimile number or electronic mail address set forth beneath the Company’s name on the signature page hereto, or at such other address, facsimile number or electronic mail address as the Company shall have furnished to Investor in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being deposited with an overnight courier service of recognized standing, (iv) four days after being deposited in the U.S. mail, first class with postage prepaid, (v) if sent via facsimile, upon confirmation of facsimile transfer or (vi) if sent via electronic mail, when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.
(l) Expenses. The Company and Investor shall be responsible for their own legal fees and other expenses incurred in connection with the negotiation, drafting and execution of this Note.
(m) Severability of this Note. If any provision of this Note shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(n) Usury. If any interest is paid on this Note that is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note.
(o) Waivers. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.
(p) Review and Knowledge. Each party herein expressly represents and warrants to all other parties hereto that (a) before executing this Note, said party has fully informed itself of the terms, contents, conditions and effects of this Note; (b) said party has relied solely and completely upon its own judgment in executing this Note; (c) said party has had the opportunity to seek and has obtained the advice of its own legal, tax and business advisors before executing this Note; (d) said party has acted voluntarily and of its own free will in executing this Note; and (e) this Note is the result of arm’s length negotiations conducted by and among the parties and their respective counsel.

 

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(q) Counterparts. This Note and any signed agreement or instrument entered into in connection with this Note, 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.

 

(Signature Page Follows)

 

 

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The parties have caused this Note to be duly executed and delivered as of the date first written above.

 

 

COMPANY:

   
   
 

MONAKER GROUP, INC.

   
  a Nevada corporation
   
  By: /s/ Bill Kerby
  Name: Bill Kerby
  Title: CEO
  Address: 893 Executive Park Drive, #201
    Weston, Florida 33331

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The parties have caused this Note to be duly executed and delivered as of the date first written above.

 

  Investor:
   
 

HOTPLAY ENTERPRISE LIMITED

   
   
   
    By: /s/ Nithinan Boonyawattanapisut & Athid Nanthawaroon
   

(Signature)

     
    Name: Nithinan Boonyawattanapisut & Athid Nanthawaroon
 

(Print name of Investor)

     
    Title: Authorized Directors
   

(If signing on behalf of an entity)

     
    Address:  

 

 

 

 

 

 

 

 

 

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Monaker Group, Inc. 8-K

Exhibit 10.2 

 

 

CONVERTIBLE NOTE

 

THIS NOTE AND THE SECURITIES ISSUABLE UPON THE CONVERSION HEREOF HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), OR UNDER THE SECURITIES LAWS OF ANY STATE. THESE SECURITIES MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED EXCEPT AS PERMITTED UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION THEREFROM. THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH THE ACT AND ANY APPLICABLE STATE SECURITIES LAWS.

 

MONAKER GROUP, INC.

CONVERTIBLE PROMISSORY NOTE

 

$1,000,000.00  

March 19, 2021

 

FOR VALUE RECEIVED, MONAKER GROUP, INC., a Nevada corporation (the “Company”) promises to pay to HOTPLAY ENTERPRISE LIMITED, or its registered assigns (“Investor”), in lawful money of the United States of America the principal sum of One Million Dollars ($1,000,000.00), or such lesser amount as shall equal the then outstanding principal amount hereof, together with simple interest from the date of this Convertible Promissory Note (this “Note”) on the then outstanding principal balance at a rate equal to ONE PERCENT (1%) per annum, computed on the basis of the actual number of days elapsed and a year of 365 days. All then outstanding principal, together with any then unpaid and accrued interest and other amounts payable hereunder, shall be converted or forgiven as set forth herein. This Note may be prepaid in whole or in part, at any time and from time to time, without premium or penalty.

 

1. Definitions. As used in this Note, the following capitalized terms have the following meanings:

(a) “Charter” shall mean the Company’s articles of incorporation as may be amended or restated from time to time.

(b) “Common Stock” shall mean common stock of the Company.
(c) “Conversion Price” shall mean a conversion price equal to $2.00 per share of Common Stock.

(d) “Lien” shall mean, with respect to any property, any security interest, mortgage, pledge, lien, claim, charge or other encumbrance.

 

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(e) “Obligations” shall mean and include all loans, advances, debts, liabilities and obligations, howsoever arising, owed by the Company to Investor of every kind and description, now existing or hereafter arising under or pursuant to the terms of this Note, including all interest, fees, charges, expenses, attorneys’ fees and costs and accountants’ fees and costs chargeable to and payable by the Company hereunder and thereunder, in each case, whether direct or indirect, absolute or contingent, due or to become due, and whether or not arising after the commencement of a proceeding under Title 11 of the United States Code (11 U. S. C. Section 101 et seq.), as amended from time to time (including post-petition interest) and whether or not allowed or allowable as a claim in any such proceeding.
(f) “Person” shall mean and include an individual, a partnership, a corporation (including a business trust), a joint stock company, a limited liability company, an unincorporated association, a joint venture or other entity or a governmental authority.
(g) “Share Exchange Agreement” shall mean that certain Share Exchange Agreement entered into by and among the Company, the Investor and various stockholders of the Investor, as may be amended from time to time.

 

2. Payments.
(a) Interest. Accrued interest on this Note shall be converted or forgiven as set forth herein.

(b) Automatic Forgiveness in Certain Circumstances. In the event the Share Exchange Agreement is terminated pursuant to Section 10.1(a) of the Share Exchange Agreement; by Investor and Principal Stockholder (as such term is defined in the Share Exchange Agreement), pursuant to Section 10.1(b) of the Share Exchange Agreement; or by the Company pursuant to Sections 10.1(c), 10.1(e)(solely in the event that the Company terminates the Share Exchange pursuant to Section 10.1(e) because Investor (x) is not able to obtain audited and interim financial statements in the form required by the Securities and Exchange Commission, or (y) does not supply all of the information required in order for the Company to file its initial Proxy Statement, by the date which falls 75 days after the date the Share Exchange Agreement was entered into), 10.1(g), or 10.1(i), then outstanding principal amount of this Note, plus all accrued and unpaid interest, shall be forgiven in full and the Company shall have no further obligation to the Investor hereunder.

 

3. Events of Default. The occurrence of any of the following shall constitute an “Event of Default” under this Note:

(a) Failure to Convert. The Company shall fail to convert when due any principal or interest hereunder into shares of Common Stock of the Company within five (5) business days after the date required hereunder;
(b) Voluntary Bankruptcy or Insolvency Proceedings. The Company shall (i) apply for or consent to the appointment of a receiver, trustee, liquidator or custodian of itself or of all or a substantial part of its property, (ii) make a general assignment for the benefit of its or any of its creditors, (iii) be dissolved or liquidated, (iv) commence a voluntary case or other proceeding seeking liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effector consent to any such relief or to the appointment of or taking possession of its property by any official in an involuntary case or other proceeding commenced against it, or (v) take any action for the purpose of effecting any of the foregoing.

 

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(c) Involuntary Bankruptcy or Insolvency Proceedings. Proceedings for the appointment of a receiver, trustee, liquidator or custodian of the Company, or of all or a substantial part of the property thereof, or an involuntary case or other proceedings seeking liquidation, reorganization or other relief with respect to the Company, if any, or the debts thereof under any bankruptcy, insolvency or other similar law now or hereafter in effect shall be commenced and an order for relief entered or such proceeding shall not be dismissed or discharged within 60 days of commencement.

 

4. Rights of Investor upon Default. Upon the occurrence of any Event of Default (other than an Event of Default described in Sections 3(b) or 3(c)) and at any time thereafter during the continuance of such Event of Default, Investor may, by written notice to the Company, declare all outstanding Obligations payable by the Company hereunder to be immediately due and payable without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. Upon the occurrence of any Event of Default described in Sections 3(b) or 3(c), immediately and without notice, all outstanding Obligations payable by the Company hereunder shall automatically become immediately due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived, anything contained herein to the contrary notwithstanding. In addition to the foregoing remedies, upon the occurrence and during the continuance of any Event of Default, Investor may, with the written consent of the Investor, exercise any other right, power or remedy granted to it by this Note or otherwise permitted to it by law, either by suit in equity or by action at law, or both. Additionally, upon the occurrence of any Event of Default, the outstanding principal balance of this Note shall bear interest (“Default Interest”) while such default exists at the lesser of: (a) eighteen percent (18%) per annum and (b) the maximum legally permissible rate (the “Default Rate”).

 

5. Conversion.
(a) Automatic Conversion in Certain Circumstances. If the Share Exchange Agreement is terminated by Investor and/or Principal Stockholder (as applicable) pursuant to Sections 10.1(d), 10.1(e), 10.1(f), or 10.1(h) of the Share Exchange Agreement or by the Company pursuant to Sections 10.1(d), or 10.1(e)(except as otherwise provided in Section 2(b) above, in which case Section 2(b) above shall apply) of the Share Exchange Agreement, then the then outstanding principal amount of this Note together with all accrued and unpaid interest under this Note shall automatically convert into fully paid and nonassessable shares of Common Stock at a price per share equal to the Conversion Price. The Company shall cause to be delivered stock certificates to or as directed by Investor as set forth in this Section 5.

 

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(b) Conversion Procedure.
(i) Conversion Pursuant to Section 5(a). If this Note is to be automatically converted pursuant to Section 5(a), written notice shall be delivered to Investor at the address last shown on the records of the Company for Investor or given by Investor to the Company for the purpose of notice, notifying Investor of the general terms of the conversion to be effected, specifying the Conversion Price, the principal amount of the Note to be converted, together with all accrued and unpaid interest and the date on which such conversion is expected to occur and calling upon Investor to surrender to the Company, in the manner and at the place designated, this Note. The Company shall, as soon as practicable thereafter, issue and deliver to Investor a certificate or certificates for the number of shares to which Investor shall be entitled upon such conversion, or shall otherwise issue such shares in book-entry form and provide Investor confirmation thereof.
(ii) Fractional Shares; Interest; Effect of Conversion. No fractional shares shall be issued upon conversion of this Note. In lieu of the Company issuing any fractional shares to Investor upon the conversion of this Note, the Company shall round up any fractional share of Common Stock which would otherwise be due to the Investor upon conversion hereof. Upon conversion of this Note in full and the payment of the amounts specified in this paragraph, the Company shall be forever released from all its Obligations and liabilities under this Note and this Note shall be deemed of no further force or effect, whether or not the original of this Note has been delivered to the Company for cancellation.
(c) 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 this Note (and upon conversion or exercise of any other securities required to be aggregated with the conversion of this Note pursuant to the applicable rules and requirements of the NASDAQ Capital Market), or otherwise as provided herein, shall not (i) exceed 19.9% of the outstanding shares of Common Stock on the date of this Note, (ii) exceed 19.9% of the combined voting power of the then outstanding voting securities of the Company on the date of this Note, in each of subsections (i) and (ii) before the issuance of the Common Stock hereunder in connection with any conversion, or (iii) otherwise exceed such number of shares of Common Stock that would violate applicable listing rules of the NASDAQ Capital Market in the event the Company’s stockholders do not approve the issuance of the Common Stock issuable in connection with a conversion of this Note (and upon conversion or exercise of any other securities required to be aggregated with the conversion of this Note pursuant to the applicable rules and requirements of the NASDAQ Capital Market), or otherwise as provided herein.

 

6. Representations and Warranties of the Company. The Company represents and warrants to the Investor that:

(a) Due Incorporation, Qualification, etc. The Company (i) is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada; (ii) has the power and authority to own, lease and operate its properties and carry on its business as now conducted; and (iii) is duly qualified, licensed to do business and in good standing as a foreign corporation in each jurisdiction where the failure to be so qualified or licensed could reasonably be expected to have a material adverse effect on the Company.

 

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(b) Authority. The execution, delivery and performance by the Company of the Note and the consummation of the transactions contemplated thereby (i) are within the power of the Company and (ii) have been duly authorized by all necessary actions on the part of the Company.
(c) Enforceability. The Note has been, or will be, duly executed and delivered by the Company and constitutes, or will constitute, a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.
(d) Non-Contravention. The execution and delivery by the Company of the Note and the performance and consummation of the transactions contemplated hereby do not and will not (i) violate the Charter or bylaws of the Company, or any material judgment, order, writ, decree, statute, rule or regulation applicable to the Company; or (ii) result in the creation or imposition of any Lien upon any property, asset or revenue of the Company or the suspension, revocation, impairment, forfeiture, or nonrenewal of any material permit, license, authorization or approval applicable to the Company, its business or operations, or any of its assets or properties.
(e) Approvals. No consent, approval, order or authorization of, or registration, declaration or filing with, any governmental authority or other Person (including, without limitation, the shareholders of any Person) is required in connection with the execution and delivery of the Notes by the Company and the performance and consummation of the transactions contemplated thereby, other than such as have been obtained and remain in full force and effect and other than such qualifications or filings under applicable securities laws as may be required in connection with the transactions contemplated by this Note.

 

7. Representations and Warranties of Investor. Investor represents and warrants to the Company upon the acquisition of the Note as follows:

(a) Binding Obligation. Investor has full legal capacity, power and authority to execute and deliver this Note and to perform its obligations hereunder. This Note constitutes valid and binding obligations of Investor, enforceable in accordance with its terms, except as limited by bankruptcy, insolvency or other laws of general application relating to or affecting the enforcement of creditors’ rights generally and general principles of equity.

 

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(b) Securities Law Compliance. Investor has been advised that the Note and the underlying securities have not been registered under the Act and any applicable state securities laws and, therefore, cannot be resold unless it or they are registered under the Act and applicable state securities laws or unless an exemption from such registration requirements is available. Investor is aware that the Company is under no obligation to affect any such registration with respect to the Note or the underlying securities or to file for or comply with any exemption from registration. Investor has not been formed solely for the purpose of making this investment and is purchasing the Note for its own account for investment, not as a nominee or agent, and not with a view to, or for resale in connection with, the distribution thereof, and Investor has no present intention of selling, granting any participation in, or otherwise distributing the same. Investor has such knowledge and experience in financial and business matters that Investor is capable of evaluating the merits and risks of such investment, is able to incur a complete loss of such investment without impairing Investor’s financial condition and is able to bear the economic risk of such investment for an indefinite period of time. Investor is an “accredited investor” as such term is defined in Rule 501 of Regulation D under the Act and shall submit to the Company such further assurances of such status as may be reasonably requested by the Company. The residency of Investor (or, in the case of a partnership or corporation, such entity’s principal place of business) is correctly set forth beneath Investor’s name on the signature page hereto.

(c) Access to Information. Investor acknowledges that the Company has given Investor access to the corporate records and accounts of the Company and to all information in its possession relating to the Company, has made its officers and representatives available for interview by Investor, and has furnished Investor with all documents and other information required for Investor to make an informed decision with respect to the purchase of the Note.
(d) Tax Advisors. Investor has reviewed with its own tax advisors the U.S. federal, state and local and non-U.S. tax consequences of this investment and the transactions contemplated by this Note. With respect to such matters, Investor relies solely on any such advisors and not on any statements or representations of the Company or any of its agents, written or oral. Investor understands that it (and not the Company) shall be responsible for its own tax liability that may arise as a result of this investment and the transactions contemplated by this Note.
(e) Purchase Price. Investor shall have delivered to the Company the principal sum of One Million Dollars ($1,000,000.00).

(f) No “Bad Actor” Disqualification Events. Neither (i) the Investor, (ii) any of its directors, executive officers, general partners or managing members, nor (iii) any beneficial owner of any of the Company’s voting equity securities (in accordance with Rule 506(d) of the Act) held by the Investor if such beneficial owner is deemed to own 20% or more of the Company’s outstanding voting securities (calculated on the basis of voting power) is subject to any disqualifications described in Rule 506(d)(1)(i) through (viii) of the Act (“Disqualification Events”), except for Disqualification Events covered by Rule 506(d)(2)(ii) or (iii) or (d)(3) under the Act and disclosed reasonably in advance of the date hereof in writing in reasonable detail to the Company.

 

8. Miscellaneous.
(a) Waivers and Amendments. Any provision of this Note may be amended, waived or modified only with the written consent of the Company and of the Investor.

  (b) Governing Law. This Note and all actions arising out of or in connection herewith or therewith shall be governed by and construed in accordance with the laws of the State of Florida without regard to the conflicts of law provisions of the State of Florida or of any other state.

 

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(c) Survival. The representations, warranties, covenants and agreements made herein shall survive the execution and delivery of this Note.

(d) Jurisdiction and Venue. Investor and the Company irrevocably consent to the exclusive jurisdiction of, and venue in, the state courts in Broward County in the State of Florida, in connection with any matter based upon or arising out of this Note or the matters contemplated herein or therein, and agree that process may be served upon them in any manner authorized by the laws of the State of Florida for such Persons.
(e) Waiver of Jury Trial; Judicial Reference. Investor hereby agrees and the Company hereby agrees to waive their respective rights to a jury trial of any claim or cause of action based upon or arising out of this Note.
(f) Successors and Assigns. Subject to the restrictions on transfer set forth herein, the rights and obligations of the Company and Investor under this Note shall be binding upon and benefit the successors, assigns, heirs, administrators and transferees of the parties.
(g) Transfer and Replacement of this Note. The Company will keep, at its principal executive office, books for the recordation of the Investors and recordation of transfer of this Note. Prior to presentation of this Note for transfer, the Company shall treat the Person in whose name this Note is recorded as the owner and holder of this Note for all purposes whatsoever, whether or not this Note shall be overdue, and the Company shall not be affected by notice to the contrary. Subject to any restrictions on or conditions to transfer set forth in this Note, the holder of this Note, at its option, may in person or by duly authorized attorney surrender the same for exchange at the Company’s chief executive office, and promptly thereafter and at the Company’s expense, except as provided below, receive in exchange therefor this Note in the principal requested by such holder, dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note and recorded in the name of such Person or Persons as shall have been designated in writing by such holder or its attorney for the same principal amount as the then unpaid principal amount of this Note. Upon receipt by the Company of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of this Note and (a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it; or (b) in the case of mutilation, upon surrender thereof, the Company, at its expense, will execute and deliver in lieu thereof a new Note executed in the same manner as this Note, in the same principal amount as the unpaid principal amount of this Note and dated the date to which interest shall have been paid on this Note or, if no interest shall have yet been so paid, dated the date of this Note.
(h) Transfer of this Note or Securities Issuable on Conversion Thereof. Subject to the proviso in the following sentence, neither this Note nor the securities issued upon conversion hereof may be transferred by Investor without the prior written consent of the Company. Investor shall have no further restrictions on transferability of the underlying securities following the earlier of: (a) consummation of the Share Exchange Agreement and (b) the date that is six months from the date of this Note, provided that all transfers of this note and/or any securities underlying this Note shall comply with applicable law.  

 

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(i) Assignment by the Company. The rights, interests or obligations of the Company hereunder may not be assigned, by operation of law or otherwise, in whole or in part, by the Company without the prior written consent of the Investor.
(j) Entire Agreement. This Note constitutes and contains the entire agreement among the Company and Investor and supersedes any and all prior agreements, negotiations, correspondence, understandings and communications among the parties, whether written or oral, respecting the subject matter hereof.
(k) Notices. All notices, requests, demands, consents, instructions or other communications required or permitted hereunder shall be in writing and faxed, mailed, emailed or delivered to each party as follows: (i) if to Investor, at Investor’s address, facsimile number or electronic mail address set forth beneath Investor’s name on the signature page hereto, or at such other address, facsimile number or electronic mail address as Investor shall have furnished the Company in writing, or (ii) if to the Company, at the Company’s address, facsimile number or electronic mail address set forth beneath the Company’s name on the signature page hereto, or at such other address, facsimile number or electronic mail address as the Company shall have furnished to Investor in writing. All such notices and communications will be deemed effectively given the earlier of (i) when received, (ii) when delivered personally, (iii) one business day after being deposited with an overnight courier service of recognized standing, (iv) four days after being deposited in the U.S. mail, first class with postage prepaid, (v) if sent via facsimile, upon confirmation of facsimile transfer or (vi) if sent via electronic mail, when directed to the relevant electronic mail address, if sent during normal business hours of the recipient, or if not sent during normal business hours of the recipient, then on the recipient’s next business day.
(l) Expenses. The Company and Investor shall be responsible for their own legal fees and other expenses incurred in connection with the negotiation, drafting and execution of this Note.
(m) Severability of this Note. If any provision of this Note shall be judicially determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(n) Usury. If any interest is paid on this Note that is deemed to be in excess of the then legal maximum rate, then that portion of the interest payment representing an amount in excess of the then legal maximum rate shall be deemed a payment of principal and applied against the principal of this Note.
(o) Waivers. The Company hereby waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor and all other notices or demands relative to this instrument.
(p) Review and Knowledge. Each party herein expressly represents and warrants to all other parties hereto that (a) before executing this Note, said party has fully informed itself of the terms, contents, conditions and effects of this Note; (b) said party has relied solely and completely upon its own judgment in executing this Note; (c) said party has had the opportunity to seek and has obtained the advice of its own legal, tax and business advisors before executing this Note; (d) said party has acted voluntarily and of its own free will in executing this Note; and (e) this Note is the result of arm’s length negotiations conducted by and among the parties and their respective counsel.

 

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(q) Counterparts. This Note and any signed agreement or instrument entered into in connection with this Note, 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.

 

(Signature Page Follows)

 

 

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The parties have caused this Note to be duly executed and delivered as of the date first written above.

 

 

COMPANY:

   
   
 

MONAKER GROUP, INC.

   
  a Nevada corporation
   
  By: /s/ Bill Kerby
  Name: Bill Kerby
  Title: CEO
  Address: 893 Executive Park Drive, #201
    Weston, Florida 33331

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The parties have caused this Note to be duly executed and delivered as of the date first written above.

 

  Investor:
   
 

HOTPLAY ENTERPRISE LIMITED

   
   
   
    By: /s/ Nithinan Boonyawattanapisut & Athid Nanthawaroon
   

(Signature)

     
    Name: Nithinan Boonyawattanapisut & Athid Nanthawaroon
 

(Print name of Investor)

     
    Title: Authorized Directors
   

(If signing on behalf of an entity)

     
    Address:  

 

 

 

 

 

 

 

 

 

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Monaker Group, Inc. 8-K

Exhibit 10.3

 

Rev. 133C838

 

JOINT VENTURE AGREEMENT

 

 

 

This Joint Venture Agreement (this “Agreement”) is entered into as of the 8th day of March, 2021 (the “Effective Date”) by and between MONAKER located at 1560 Sawgrass Corporate Parkway, # 130, Sunrise Florida 33323 and SOMA INNOVATION LAB located at 11000 SW Riverwood Road, Portland OR 97219.

 

1.                  Formation. The parties have indicated an interest in forming and establishing a joint venture for the exclusive purpose of Design hyper-personalized experiences for targeted player and audience segment. Enhancing the experiences, placements, and the rewards that all are data-based, enabling brands to "buy a result-driven - player engagement" rather than just impressions. (the “Joint Venture”). The Joint Venture shall do business under the name “Next Innovation,” and shall have its principal office and place of business at 2893 Executive Park Dr., Weston, FL 33331 or such other place(s) as shall be designated from time to time.

 

2. Contributions by the JV Partners.

 

For the purpose of the Joint Venture, the parties shall make capital contributions, in cash or property, in the following amounts or values:

 

Monaker: will agree to provide the Joint Venture the ability to use the HotPlay Technology during the term of this agreement, with the agreed to value of $200,000.00

 

Additionally, Monaker will further agree to issue 72,000 shares of Monaker Group, Inc. common stock based on a price of $2.50 per share, representing an additional contribution of up to $180,000.00. These shares will be issued to Soma in exchange for Soma’s agreement to fund operations based upon the parties understanding that operational costs will be $15,000 per month (i.e., 6000 shares per month of Monaker stock at $2.50 per share). At time of signing it will be deemed that $45,000 (i.e.18,000 shares) will have been earned and for each subsequent month the Joint Venture operates, it will be deemed that 6000 shares will have been earned by Soma until such time as the full 72,000 shares are earned.

 

During this period the Joint venture will have access:

 

— The HotPlay Inc Game Advertising technology
— Company management access / game designers
— Accounting Services
— Access to its Travel related platforms

 

Soma Innovations Lab: will agree to provide Brand Strategy Business Development Strategic Partnerships Strategic Collaborations Sales & Marketing Client List Email List Linked In Network Investor Network Fundraising Brand Partnerships Branding Expertise Brand Story Creative Design Brand Story Pitch Materials / Presentation Support XR Showroom in the value of $200,000.00

 

Monaker and Soma Innovations shall devote such time as is reasonably necessary to carry out the terms of If the Joint Venture requires additional funds beyond the initial $180,000, the parties shall make additional contributions as mutually agreed upon by the parties.

 

As an incentive to Soma to accelerate operations of the Joint Venture such that it achieves:

 

i)   revenue in excess of expenses (i.e., Profit)

and

ii) Monaker is able to recover its $180,000 initial share contribution from the Revenues generated by the Joint Venture

 

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At any point up to the 18 month anniversary of the agreement, then Soma will earn an additional share Bonus of 50,000 Monaker shares.

 

3. Ownership. The parties shall own interest in the Joint Venture in the following percentages: Monaker: 50%
Soma Innovations Lab: 50%

4. Distribution of Profits. Net profits and net losses accruing to the Joint Venture shall be distributed to the parties in accordance with each party's respective ownership interests. The Parties shall agree on the amount and timing of Distributions after the repayment of the initial $180,000 Monaker payment.

 

5. Management. The management committee consisting of Bill Kerby, Todd Bonner, E. C. Morgan, Karen Morgan, will be responsible for the following duties and obligations of the Joint Venture: (a) managing day to day business affairs; (b) monitoring, controlling and directing the financial, business and operational affairs; (c) properly maintaining account books and financial records according to standard accounting practices; (d) using express or implied authority granted by this Agreement to handling all other issues; (e) hiring production and administration staff and third party contractors as needed, including any required labor negotiations; (f) capital needs; and (g) preparation of financial budgets.

 

6. Duties of Parties. The parties will be responsible for the following duties under the Joint Venture:

 

Monaker: Monaker will provide: - up to $15,000 per month in operating capital during the first year of the JV to pay for marketing, creative design and business strategy and development cost of Next Innovation. - will provide access to the HotPlay Technologies platform for marketing purposes, work to develop development strategic partnerships and strategic collaborations in Asia and Europe - handle Asian Sales & Marketing utilizing their Client List, Email List, LinkedIn Network, and Investor Network - assist Joint Venture with future Fundraising.

 

Soma Innovations Lab: Soma will provide: - turnkey digital media platform with end-to-end services for global brand campaigns targeting brands, advertisers, and studios. - work to define a Brand Strategy and Business Strategy - Use their expertise to create branding, creative designs, pitch materials and presentation materials - work to develop development strategic partnerships and Strategic Collaborations in North America and Europe - handle North American Sales & Marketing utilizing their Client List, Email List, LinkedIn Network, and Investor Network - assist Joint Venture with future Fundraising - contribute the XR Showroom.

 

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7. No Partnership. The Joint Venture shall not be construed to create a partnership or any other fiduciary obligations between the parties except as provided herein.

 

8. No Exclusivity. This Agreement does not obligate either party to conduct business exclusively with the other party.

 

9. Confidentiality.

 

  a. Confidential and Proprietary Information. In the course of the Joint Venture, the parties will be exposed to confidential and proprietary information. “Confidential Information” shall mean any data or information that is competitively sensitive material and not generally known to the public, including, but not limited to, information relating to development and plans, marketing strategies, finance, operations, systems, proprietary concepts, documentation, reports, data, specifications, computer software, source code, object code, flow charts, data, databases, inventions, know-how, trade secrets, customer lists, customer relationships, customer profiles, supplier lists, supplier relationships, supplier profiles, pricing, sales estimates, business plans and internal performance results relating to the past, present or future business activities, technical information, designs, processes, procedures, formulas, improvements, and other information which the parties consider confidential and proprietary. The parties acknowledge and agree that each parties’ Confidential Information is valuable property, developed over a long period of time at substantial expense and that it is worthy of protection.
     
b. Confidentiality Obligations. Except as otherwise expressly permitted in this Agreement, the parties shall not disclose or use in any manner, directly or indirectly, any Confidential Information either during the term of this Agreement or at any time thereafter, except as required to perform their respective duties and responsibilities or with the other party’s prior written consent. Both parties agree that all Confidential Information disclosed and received shall remain secret and confidential during the term of this Agreement and continue thereafter for one (1) year after this Agreement is terminated or expires.
     
  c. Rights in Confidential and Proprietary Information. All ideas, concepts, work product, information, written material or other Confidential Information disclosed to either party (i) are and shall remain the sole and exclusive property of the disclosing party, and (ii) are disclosed or permitted to be acquired by the receiving party solely in reliance on this Agreement to maintain them in confidence and not to use or disclose them to any other person except in furtherance of the Joint Venture. Except as expressly provided herein, this Agreement does not confer any right, license, ownership or other interest or title in, to or under the Confidential Information to the receiving party.

 

d. Irreparable Harm. Each party acknowledges that the use or disclosure of any Confidential Information in a manner inconsistent with this Agreement will give rise to irreparable injury for which damages would not be an adequate remedy. Accordingly, in addition to any other legal remedies which may be available at law or in equity, the disclosing party shall be entitled to equitable or injunctive relief against the unauthorized use or disclosure of Confidential Information. The disclosing party shall be entitled to pursue any other legally permissible remedy available as a result of such breach, including but not limited to damages, both direct and consequential. In any action brought by the disclosing party under this Section, the disclosing party shall be entitled to recover its attorney’s fees and costs from receiving party.

 

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10. Notices. All notices given under this Agreement must be in writing. A notice is effective upon receipt and shall be sent via one of the following methods: delivery in person, overnight courier service, certified or registered mail, postage prepaid, return receipt requested, addressed to the party to be notified at the address first stated above, or to such other address as such party may designate upon reasonable notice to the other party.

 

11. Termination. This Agreement will terminate two (2) years from the Effective Date, (the “Termination Date”) unless terminated earlier by a written agreement of the Parties, The Parties shall determine the obligations upon termination, unless agreed by the Parties the Agreement shall terminate on the Termination Date and all services shall cease.

 

12. Amendment. This Agreement may be amended or modified only by a written agreement signed by both parties.

 

13. Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of Florida, without regard to the principles of conflict of laws.

 

14. Disputes. If the parties disagree on a material issue and cannot agree on a mutually satisfactory decision or solution, then a deadlock shall be deemed to have occurred. If a deadlock occurs, the parties accept and understand that they will engage in mediation in Broward County, Florida.

 

15. Assignment. Neither party may assign its rights or delegate its duties under this Agreement without the other party’s prior written consent.

 

16. Miscellaneous. This Agreement will inure to the benefit of and be binding on the respective successors and permitted assigns of the parties. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable in whole or in part, the remaining provisions shall not be affected and shall continue to be valid, legal and enforceable as though the invalid, illegal or unenforceable parts had not been included in this Agreement. Neither party will be charged with any waiver of any provision of this Agreement, unless such waiver is evidenced by a writing signed by the party and any such waiver will be limited to the terms of such writing. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which together, shall constitute one and the same document. This Agreement contains the entire agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior negotiations, understandings and agreements.

 

17. Other. either party may offer to purchase the other parties interest by setting an offer price and agreeing the party setting the price will allow the other party to use the pricing to either purchase the others interest or sell their interest at the offer price

 

 

 

Balance of page intentionally left blank.

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

 

MONAKER GROUP, Inc    

CEO Monaker Group

Name of Party   Representative Signature   Representative Name and Title
         
         
         
SOMA INNOVATIONS LAB      
Name of Party   Representative Signature   Representative Name and Title

 

 

 

 

 

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