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 19, 2021 (Item 1.01 only) and April 7, 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.) |
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)
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.
Warrant Grants
On or around March 19, 2021 and March 22, 2021, Monaker Group, Inc. (the “Company”, “we” and “us”), issued warrants to purchase an aggregate of 160,000 shares of common stock to seven warrant holders (all unrelated third parties) in consideration for the immediate exercise of newly granted warrants. The warrants replaced prior warrants which had expired in 2020 (which had exercise prices from between $3.75 and $5.00 per share) and had an exercise price of $2.00 per share and an expiration date on March 31, 2021 (the “New Warrants”). Those warrants were subsequently exercised for cash on or around March 31, 2021, and the Company received cash of $320,000 in connection with such exercises. The 160,000 shares of common stock issuable upon exercise thereof were issued on or around April 1, 2021. The Company has agreed to register the shares of common stock issuable upon exercise of the warrants in the future.
Warrant Exchanges
On or around March 19, 2021 and March 22, 2021, the Company exchanged warrants to purchase an aggregate of 51,900 shares of common stock held by two of the same warrant holders who were granted New Warrants, which had an exercise price of $5.13 per share and an expiration date of July 30, 2022, for new warrants had an exercise price of $2.00 per share and an expiration date on March 31, 2021 (the “Exchanged Warrants”). Those warrants were subsequently exercised for cash on or around March 31, 2021, and the Company received cash of $103,800 in connection with such exercises. The 51,900 shares of common stock issuable upon exercise thereof were issued on or around April 1, 2021. The Company has agreed to register the shares of common stock issuable upon exercise of the warrants in the future.
Lock-Up Agreements with Directors
On April 7, 2021, the Company entered into a Lock-Up Agreement with each of the non-executive members of the Board of Directors. Pursuant to the Lock-Up Agreements, each non-executive director agreed not to transfer, sell, pledge or assign any of their applicable Fiscal 2022 Board Compensation Shares (as defined below in Item 5.02), until March 1, 2022.
Convertible Promissory Notes
On April 8, 2021, the Company entered into an Exchange Agreement with William Kerby, its Chief Executive Officer and director and Monaco Investment Partners II, LP (“MI Partners”), of which Donald P. Monaco is the managing general partner and the Chairman of the Board of Directors of the Company (the “Exchange Agreement”). Pursuant to the Exchange Agreement, the terms of which were approved by the Board of Directors of the Company, Mr. Kerby and MI Partners exchanged their right to an aggregate of $1,016,314 in accrued dividends (the “Accrued Dividends”) which had accrued on the Company’s outstanding Series A Preferred Stock, which had been held by Mr. Kerby and MI Partners prior to the conversion of such Series A Preferred Stock into common stock of the Company in August 2017, for Convertible Promissory Notes. Specifically, Mr. Kerby exchanged rights to $430,889 of accrued dividends on the Series A Preferred Stock for a Convertible Promissory Note with a principal balance of $430,889 and MI Partners exchanged rights to $585,425 of accrued dividends on the Series A Preferred Stock for a Convertible Promissory Note with a principal balance of $585,425 (the “Convertible Promissory Notes”).
The Convertible Promissory Notes accrue interest at the rate of 12% per annum, compounded monthly at the end of each calendar month, with such interest payable at maturity or upon conversion. The principal and accrued interest owed under the Convertible Promissory Notes is convertible, at the option of the holders thereof, into shares of the Company’s common stock, at any time beginning seven days after the Closing Date (defined below) and prior to the payment in full of such Convertible Promissory Notes by the Company, at a conversion price equal to the greater of (i) the closing consolidated bid price of the Company’s common stock on April 8, 2021 (which was $3.02); and (ii) the five-day volume weighted average price of the Company’s common stock for the five trading days following the Closing Date.
“Closing Date” means the closing date of the share exchange contemplated by that certain Share Exchange Agreement, dated July 21, 2020, between the Company, HotPlay Enterprise Limited (“HotPlay”) and the stockholders of HotPlay (as amended to date, the “HotPlay Exchange Agreement”), and as 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 Convertible Promissory Notes are unsecured, have a maturity date of April 7, 2022, and include standard and customary events of default.
* * * * *
The description of the New Warrants and Exchanged Warrants, Lock-Up Agreement, Exchange Agreement and Convertible Notes above is not complete and is qualified in its entirety by the full text of the Form of Warrant to Purchase Common Stock, Form of Lock-Up Agreement, Exchange Agreement and Convertible Notes, a copy of which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4 and 10.5, respectively, and are incorporated by reference in this Item 1.01 in their entirety.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
The description of the Convertible Promissory Notes above in Item 1.01, under “Convertible Promissory Notes”, is incorporated by reference in this Item 2.03 in its entirety.
Item 3.02 Unregistered Sales of Equity Securities.
As described in greater detail above under Item 1.01, under “Warrant Grants”, “Warrant Exchanges” and “Convertible Promissory Notes”, which information is incorporated by reference in this Item 3.02 in its entirety, we granted warrants to purchase an aggregate of 211,900 shares of common stock in March 2021 to various warrant holders, and issued an aggregate of $1,016,314 in Convertible Promissory Notes on April 8, 2021, to Mr. Kerby and MI Partners.
The grant of the New Warrants and Exchanged Warrants and the issuance of the Convertible Promissory Notes is exempt from registration pursuant to Section 4(a)(2) and/or Rule 506 of Regulation D of the Securities Act of 1933, as amended (the “Securities Act”), since the foregoing grants/issuances did not involve a public offering, the recipients were “accredited investors”, 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 offered without any general solicitation by us or our representatives. The securities 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 New Warrants and Exchanged Warrants have since been exercised pursuant to their terms for 211,900 shares of common stock.
If converted in full (without factoring in interest which may accrue thereon), the Convertible Notes would convert into a maximum of 336,528 shares of the Company’s common stock.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
(b)
On April 7, 2021, each of Mr. Pasquale “Pat” LaVecchia, Mr. Doug Checkeris, Mr. Rupert Duchesne, Mr. Robert “Jamie” Mendola, Jr. and Ms. Alexandra C. Zubko, each then members of the Board of Directors of the Company, provided letters of resignation to the Company, resigning as directors (and from any other positions they hold with the Company), with such resignations effective automatically as of the closing of the HotPlay Exchange Agreement.
Such resignations were solely in connection with the required terms and conditions of the HotPlay Exchange Agreement, which requires that the Board of Directors of the Company at the closing thereof increase to nine members, with four appointed by HotPlay, two appointed by Monaker, and three appointed mutually by Monaker and HotPlay, as described in further detail in the Definitive Proxy Statement on Schedule 14A filed by the Company with the Securities and Exchange Commission on March 4, 2021.
(e)
On April 7, 2021, the Board of Directors of the Company, consistent with Mr. Kerby’s employment agreement, which provides for Mr. Kerby to receive a base salary of $400,000 per year, and an annual bonus payable at the discretion of the Board of Directors, of up to 100% of his base salary (50% based on meeting short term goals and 50% based on meeting long-term goals), and other bonuses which may be granted from time to time in the discretion of the Board of Directors, agreed to award Mr. Kerby a discretionary bonus for fiscal 2021 of $400,000, which is payable in cash or shares of common stock, at Mr. Kerby’s option, under the Company’s Amended and Restated 2017 Equity Incentive Plan (the “Plan”), with a conversion price of $3.02 per share, the closing sales price of the Company’s common stock on the date the Board of Directors approved such bonus. If Mr. Kerby exercises his right to receive the entire bonus in shares of common stock he would be due 132,450 shares of common stock.
Item 8.01 Other Events.
Also on April 7, 2021, the Board of Directors of the Company ratified the current compensation payable to members of the Board of Directors, which provides that each non-executive member of the Board be paid (a) compensation of 20,000 shares per year; (b) compensation of 5,000 shares per year, if they are the chairperson of any committee of the Board of Directors; and (c) compensation of 10,000 shares per year, to the Chairman of the Board (collectively, the “Board Compensation Terms”), except that all shares due to the Directors serving as of March 1, 2021, for the fiscal year ending February 28, 2022, were agreed to be issued up front and to be fully-vested/earned on the date of grant, instead of vesting over time, as previously awarded. In total, an aggregate of 165,000 shares of common stock were issued to the non-executive directors on April 8, 2021 for compensation for fiscal 2022 (such shares, the “Fiscal 2022 Board Compensation Shares”). The Fiscal 2022 Board Compensation Shares were issued under the Plan.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
* 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: April 9, 2021 | By: | /s/ William Kerby | |
| Name: | William Kerby | ||
| Title: | Chief Executive Officer | ||
Exhibit 10.1
THIS WARRANT AND THE SHARES ISSUABLE UPON THE EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY APPLICABLE STATE SECURITIES LAW. THIS WARRANT OR SUCH SHARES MAY NOT BE SOLD, DISTRIBUTED, PLEDGED, OFFERED FOR SALE, ASSIGNED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNLESS: (A) THERE IS AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAW COVERING ANY SUCH TRANSACTION INVOLVING SAID SECURITIES; (B) THE COMPANY (DEFINED BELOW) RECEIVES AN OPINION OF LEGAL COUNSEL FOR THE HOLDER OF THIS WARRANT STATING THAT SUCH TRANSACTION IS EXEMPT FROM REGISTRATION AND SUCH OPINION IS IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY; OR (C) PURSUANT TO RULE 144 UNDER SUCH ACT.
WARRANT
TO PURCHASE COMMON STOCK OF
MONAKER GROUP, INC.
THIS IS TO CERTIFY that, as of the March 22, 2021 for value received and subject to the provisions hereinafter set forth, [Holder], or its assigns (the “Holder”), is entitled to purchase from MONAKER GROUP, INC., a Nevada corporation (the “Company”), at a price of $2.00 per share, subject to adjustment as herein provided (as may be adjusted, the “Warrant Price”), [shares] shares of Common Stock of the Company (“Common Stock”), less the number of shares purchased by the Holder upon the exercise of this Warrant from time to time as noted on Schedule A hereto (the number of shares available for purchase hereunder at any time, subject to adjustment as hereinafter provided, is referred to as the “Warrant Number”). This agreement will replace all Warrant Agreements issued but not exercised by the holder noted on Schedule B.
| 1. | Exercise of Warrant. |
1.1. Terms of Exercise. Subject to the conditions hereinafter set forth, this Warrant may be exercised in whole at any time, or in part from time to time, by the Holder hereof, by the surrender of this Warrant, together with written instructions as to the number of shares to be purchased, at the principal office of the Company Sunrise, Florida or at such other office as the Company may designate by written notice to the Holder hereof within the above-mentioned period and upon payment to the Company of the aggregate Warrant Price (or the proportionate part thereof if exercised in part) for the shares so purchased in current funds. This Warrant and all rights hereunder shall expire and shall be null and void to the extent not exercised before this Warrant expires March 31, 2021 (the “Expiration Date”).
1.2. Payment of Exercise Price; Payment for the Warrants may be made in cash, by certified or official bank check or electronic bank transfer.
1.3. Partial Exercise. Each time this Warrant shall be exercised in respect of fewer than all of the shares of Common Stock at the time purchasable hereunder (and there shall be no limitation on the number of times the Holder may partially exercise this Warrant), and upon surrender of this Warrant by the Holder to the Company upon exercise, then, at the election of the Company, either (i) the Holder hereof shall be entitled to receive a replacement Warrant covering the number of shares in respect of which this Warrant shall not have been exercised and setting forth the aggregate Warrant Price applicable to such shares, which replacement Warrant shall be identical in all respects to this Warrant except for the date of issuance and the number of shares issuable upon the exercise thereof, or (ii) the Company shall make a notation on Schedule A hereto reflecting the number of shares of Common Stock purchased upon any exercise hereof.
1.4 Issuance of Certificate. The shares of Common Stock so purchased shall be deemed to be issued to the Holder, as the record owner of such shares, as of the close of business on the date on which this Warrant shall have been surrendered, the completed exercise agreement shall have been delivered, and payment shall have been made for such shares as set in Section 1.2 above. Certificates, in the form of book entry certificates, for the shares of Common Stock so purchased, representing the aggregate number of shares specified in the exercise agreement, shall be delivered to the Holder within a reasonable time, not exceeding ten (10) business days, after this Warrant shall have been so exercised. The certificates so delivered shall be in such denominations as may be reasonably requested by the Holder and shall be registered in the name of the Holder. If this Warrant shall have been exercised only in part, then, unless this Warrant has expired, the Company shall, at its expense, at the time of delivery of such certificates, deliver to the Holder a new warrant representing the number of shares of Common Stock with respect to which this Warrant shall not then have been exercised.
1.5 Exercise Period. This Warrant may be exercised any time before 5:00 p.m., Eastern Standard time, on the Expiration Date.
2. Reservation of Common Stock. The Company covenants and agrees that during the period within which the rights represented by this Warrant may be exercised, the Company will at all times have authorized, and in reserve, a sufficient number of shares of its Common Stock to provide for the exercise of the rights represented by this Warrant.
3. Protection Against Dilution. The Warrant Number is subject to adjustment from time to time upon the occurrence of the events enumerated in, or as otherwise provided in, this Section 3.
| 3.1 | Adjustment for Change in Capital Stock. If the Company: |
(1) pays a dividend or makes a distribution on its Common Stock in shares of its Common Stock;
(2) subdivides or reclassifies its outstanding shares of Common Stock into a greater number of shares;
(3) combines or reclassifies its outstanding shares of Common Stock into a smaller number of shares;
(4) makes a distribution on its Common Stock in shares of capital stock other than Common Stock; or
| (5) | issues by reclassification of its Common Stock any shares of its capital stock; |
then the Warrant Number in effect immediately prior to such action shall be proportionately adjusted so that the Holder may receive the aggregate number and kind of shares of capital stock of the Company or other capital stock which such Holder would have owned immediately following such action if such Warrant had been exercised immediately prior to such action. If, as a result of any adjustment pursuant to this Section 3.1, the Holder shall become entitled to receive shares of two or more classes or series of securities of the Company or otherwise, the Board of Directors of the Company shall equitably determine the allocation of the adjusted Warrant Price between or among such classes or series.
The adjustment shall become effective immediately after the record date in the case of a dividend or distribution and immediately after the effective date in the case of a subdivision, combination or reclassification.
Such adjustment shall be made successively whenever any event listed above shall occur.
3.2 Notice of Adjustment. Whenever the Warrant Number is adjusted, the Company shall provide notice thereof to the Holder.
3.3 Additional Adjustments. In the event of any and all adjustments to the Warrant Number in accordance with this Section 3, the per share Warrant Price shall be adjusted so that it is equal to the quotient of (a) the aggregate Warrant Price and (b) the Warrant Number as adjusted.
4. Mergers, Consolidations, Sales; Non-Impairment of Rights. The Company will not, by amendment of its Articles of Incorporation or through any reorganization, recapitalization, transfer of assets, consolidation, merger, dissolution, issuance or sale of securities or any other voluntary action, avoid or seek to avoid the performance of any of the terms of this Warrant, but will at all times in good faith take all necessary action to carry out the intent of all such terms. Without limiting the generality of the foregoing, the Company (a) will not cause the par value of any securities receivable on exercise of this Warrant to be in excess of the amount payable therefor on such exercise, and (b) will take all action as may be necessary or appropriate so that the Company may validly and legally issue fully paid and nonassessable shares (or other securities or property deliverable hereunder) upon the exercise of this Warrant.
This Warrant shall bind the successors and assigns of the Company. In the case of any consolidation or merger of the Company with another entity, or the sale of all or substantially all of its assets to another entity, or any reorganization or reclassification of the Common Stock or other equity securities of the Company (except a split up or combination, provision for which is made in Section 3), then, as a condition of such consolidation, merger, sale, reorganization or reclassification, lawful and adequate provision shall be made whereby the Holder of this Warrant shall thereafter have the right to receive upon the basis and upon the terms and conditions specified herein and in lieu of the shares of Common Stock immediately theretofore purchasable hereunder, such shares of stock, securities or assets as may (by virtue of such consolidation, merger, sale, reorganization or reclassification) be issued or payable with respect to or in exchange for a number of outstanding shares of Common Stock equal to the number of shares of Common Stock immediately theretofore so purchasable hereunder had such consolidation, merger, sale, reorganization or reclassification not taken place, and in any such case appropriate provision shall be made with respect to the rights and interests of the Holder of this Warrant to the end that the provisions hereof (including, without limitation, provisions for adjustment of the Warrant Number and the per share Warrant Price) shall thereafter be applicable as nearly as may be, in relation to any shares of stock, securities or assets thereafter deliverable upon exercise of this Warrant. The Company shall not affect any such consolidation, merger or sale, unless prior to or simultaneously with the consummation thereof, the successor entity (if other than the Company) resulting from such consolidation or merger or the entity purchasing such assets shall assume by written instrument the obligation to deliver to the Holder such shares of stock, securities or assets as, in accordance with the foregoing provisions, such Holder may be entitled to receive.
Notwithstanding the foregoing, if any event occurs as to which the other provisions of this Warrant are not strictly applicable or if strictly applicable would not fairly protect the purchase rights of this Warrant in accordance with the essential intent and principles of such provisions, then the Board of Directors shall make an adjustment in the application of such provisions, in accordance with such essential intent and principles, in order to protect such purchase rights, and shall provide notice thereof to the Holder of this Warrant.
5. Dissolution or Liquidation. In the event of any proposed distribution of the assets of the Company in dissolution or liquidation (except under circumstances when the foregoing Section 4 shall be applicable) the Company shall mail notice thereof to the Holder of this Warrant and shall make no distribution to shareholders until the expiration of 30 days from the date of mailing of the aforesaid notice and, in any such case, the Holder of this Warrant may exercise this Warrant within 30 days from the date of mailing such notice, and all rights herein granted not so exercised within such 30 day period shall thereafter become null and void.
6. Fractional Shares. The Company shall not issue any fractional shares nor scrip representing fractional shares upon exercise of any portion of this Warrant.
7. Fully Paid Stock; Taxes. The Company covenants and agrees that the shares of stock represented by each and every certificate for its Common Stock to be delivered on any exercise of this Warrant shall, at the time of such delivery, be duly authorized, validly issued and outstanding and be fully paid and nonassessable. The Company further covenants and agrees that it will pay when due and payable any and all federal and state taxes, other than taxes on income, which may be payable in respect of this Warrant or any Common Stock or certificates therefor upon the exercise of the rights herein provided for pursuant to the provisions hereof. The Company shall not, however, be required to pay any tax which may be payable in respect of any transfer involved in the transfer and delivery of stock certificates in the name other than that of the Holder of the Warrant converted, and any such tax shall be paid by such Holder at the time of presentation.
8. Closing of Transfer Books. The Holder of this Warrant shall continue to have the right to exercise this Warrant even during a period when the stock transfer books of the Company for its Common Stock are closed. The Company shall not be required, however, to deliver certificates of its Common Stock upon such exercise while such books are duly closed for any purpose, but the Company may postpone the delivery of the certificates for such Common Stock until the opening of such books, and they shall, in such case, be delivered forthwith upon the opening thereof, or as soon as practicable thereafter.
9. Assignments. The Holder shall be permitted to assign, sell or otherwise transfer this Warrant, subject to the Company’s receipt of an opinion of counsel to the Holder, which counsel and which opinion shall be reasonably acceptable to the Company, to the effect that such assignment, sale or other transfer is permitted under applicable state and federal securities laws.
10. Lost, Stolen Warrants, etc. In case any Warrant shall be mutilated stolen or destroyed, the Company may issue a new Warrant of like date, tenor and denomination and deliver the same in exchange and substitution for and upon surrender and cancellation of any mutilated Warrant, or in lieu of any Warrant lost, stolen or destroyed, upon receipt of evidence satisfactory to the Company of the loss, theft or destruction of such Warrant, and upon receipt of indemnity satisfactory to the Company.
11. Warrant Holder Not Shareholder. This Warrant does not confer upon the Holder hereof any right to vote or to consent or to receive notice as a shareholder of the Company, as such, in respect of any matters whatsoever, or any other rights or liabilities as a shareholder, prior to the exercise hereof as hereinbefore provided.
12. Payment of Expenses. The Company shall reimburse the Holder of this Warrant for all costs and expenses incurred by such Holder (including without limitation the legal fees of the Holder) in connection with: (i) the negotiation, preparation, execution and delivery of this Warrant and the other agreements to be executed in connection herewith; (ii) the issuance of certificates for shares of Common Stock upon the exercise of this Warrant; and (iii) the enforcement by the Holder of this Warrant. The Company shall pay any issuance tax in connection with the issuance of certificates for the shares of Common Stock upon the exercise of the Warrant; provided, however, that the Holder shall be responsible for any income or other taxes in connection with such issuance.
13. Severability. Should any part of this Warrant for any reason be declared invalid, such decision shall not affect the validity of any remaining portion, which remaining portion shall remain in force and effect as if this Warrant had been executed with the invalid portion thereof eliminated, and it is hereby declared the intention of the parties hereto that they would have executed and accepted the remaining portion of this Warrant without including therein any such part, parts or portion which may, for any reason, be hereafter declared invalid.
14. Notice. All notices and other communications required or permitted to be given under any Agreement shall be personally delivered or shall be sent by certified mail, return receipt requested, postage prepaid, overnight delivery or confirmed facsimile transmission to the Company at its principal address in Sunrise, Florida and to the Holder of this Warrant at that Holder’s address in the records of the Company or, as to either party or any subsequent Holder of this Warrant, to such other address and/or facsimile number as such party designates by written notice to the other party or parties.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed and attested by its duly authorized officers as of the day and year first set forth above.
| Monaker Group, Inc. | |||
| By: | |||
| William Kerby | |||
| Chief Executive Officer | |||
Schedule A
Shares of Common Stock Purchased Upon Exercise
|
Date of
Exercise |
Number of
|
Signature of an
authorized officer of Monaker Group, Inc. |
Signature of the Holder of the Warrant |
Schedule B
Warrants issued but not exercised. Replaced under this Agreement
|
Doc # |
EFFECTIVE
($/form received date) |
# shares |
Exercise
|
Expiry (# yr - 1 day) |
Post-Split
|
ASSIGNMENT
FOR VALUE RECEIVED __________________________ hereby sells, assigns and transfers unto ___________________________the within Warrant and all rights evidenced thereby and does irrevocably constitute and appoint____________________________, attorney, to transfer the said Warrant on the books of the within named Company.
| By: | ||
| Its: |
Dated: _________________________________
PARTIAL ASSIGNMENT
FOR VALUE RECEIVED___________________________________hereby sells, assigns and transfers unto___________________________that portion of the within Warrant and the rights evidenced thereby which will as of the date hereof entitle the holder to purchase ____________ shares of Common Stock of Monaker Group Inc., and does hereby irrevocably constitute and appoint__________________________, attorney, to transfer that part of the said Warrant on the books of the within named Company.
| By | ||
| Its |
Dated:____________________________________________
SUBSCRIPTION
(To be completed and signed only upon an exercise of the Warrant in whole or in part)
TO: Monaker Group, Inc..:
Attn: Brian Hampson
Bhampson@monakergroup.com
The undersigned, the holder of the attached Warrant, hereby irrevocably elects to exercise the purchase right represented by the Warrant for, and to purchase thereunder,________shares of Common Stock (or other securities or property), and herewith makes payment of $ therefor in cash, by certified or official bank check or such other form of payment as may be permitted under the Warrant. The undersigned hereby requests that the Certificate(s) for such securities be issued in the name(s) and delivered to the address(es) as follows:
| Name: | |
| Address: | |
| Social Security Number: | |
| Deliver to: | |
| Address: |
If the foregoing Subscription evidences an exercise of the Warrant to purchase fewer than all of the Shares (or other securities or property) to which the undersigned is entitled under such Warrant, please issue a new Warrant, of like date and tenor, for the remaining portion of the Warrant (or other securities or property) in the name(s), and deliver the same to the address(ee’s), as follows:
| Name: | |
| Address: | |
| (Social Security or Taxpayer ID of Holder) | (Name of Holder) |
| DATED:_______________________, 20___ | |
| (Signature of Holder or Authorized Signatory) | |
| Signature Guaranteed: | |
Exhibit 10.2
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this “Agreement”), made as of this 7th day of April 2021, by and among the individuals who have signed a form of page 5 of this Agreement below (each a “Signature Page”, each signatory a “Stockholder” and collectively, the “Stockholders”) and Monaker Group, Inc., a Nevada corporation (the “Company” or “Monaker”).
W I T N E S S E TH:
WHEREAS, on or around April 7, 2021, the Company issued certain shares of fully-vested common stock to each of the Stockholders (with such number of shares of common stock issued to each Stockholder, as applicable, set forth on each Stockholder’s individual Signature Page hereof, on the line “Shares”, as applicable, the “Shares”), who were then each directors of the Company, conditioned on each Stockholder entering into a form of this Agreement; and
WHEREAS, the parties hereto desire to enter into this Agreement upon the terms and conditions contained hereinafter to set forth conditions pursuant to which the Stockholder may transfer and sell the Shares.
NOW, THEREFORE, in consideration of the mutual premises set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each Stockholder, the parties hereto hereby agree as follows.
1. Lock-Up. Each Stockholder, individually, and not jointly, hereby agrees that the Stockholder will not, directly or indirectly Transfer of any of the Shares until March 1, 2022, without the prior written approval of the Company. The obligations and restrictions of the Stockholder as set forth in this Section 1 are defined as the “Lock-Up”.
1.1. “Transfer” means the direct or indirect, offer for sale, sale, pledge, hypothecation, transfer, assignment or other disposition of (or to enter into any transaction or device that is designed to, or could be expected to, result in the sale, pledge, hypothecation, transfer, assignment or other disposition at any time) (including, without limitation, by operation of law), or the entry into any swap or other derivatives transaction that transfers to another, in whole or in part, any of the economic benefits or risks of ownership of the Shares, whether any such transaction is to be settled by delivery of Shares or other securities, in cash or otherwise.
1.2. Notwithstanding the above Section 1, a Transfer of Shares as a bona fide gift, by will or intestacy or to a family member or trust for the benefit of a family member (for purposes of this Agreement, “family member” means any relationship by blood, marriage or adoption, not more remote than first cousin); or transfers of Shares to a charity or educational institution; provided that in the case of any transfer pursuant to the foregoing clauses any such transfer shall not involve a disposition for value and each transferee shall sign and deliver to the Company a form of this Agreement and a Signature Page hereof prior to such transfer being completed.
Page 1 of 5
Monaker Group, Inc.
Director Compensation Lock-Up Agreement
April 7, 2021
1.3. Any attempted Transfer of Shares by any Stockholder which is not in compliance with the Lock-Up or which is in violation of the terms of this Agreement shall be void ab initio.
2. Right to Reject Dispositions. In furtherance of the foregoing, Monaker and its transfer agent are hereby authorized (i) to decline to make any transfer of securities if such transfer would constitute a violation or breach of this Agreement and (ii) to imprint on any certificate representing Shares beneficially owned by a Stockholder (or any book-entry relating to such Shares) with a legend describing the restrictions contained herein.
3. Power and Authority. Each party hereto respectively represents and warrants that such party has full power and authority to enter into this Agreement and that, upon request of the Company, each Stockholder will execute any additional documents necessary in connection with the enforcement hereof.
4. No Assignment; Binding Nature. No party may assign this Agreement in whole or in part, without the written consent of the other parties. This Agreement shall be binding upon the parties and their respective successors and permitted assigns.
| 5. | Miscellaneous. |
5.1. Severability of Invalid Provision. If any provision of this Agreement is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of this Agreement will remain in full force and effect. Any provision of this Agreement held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable.
5.2. Specific Performance. The parties agree that the covenants and obligations contained in this Agreement relate to special, unique and extraordinary matters and that a violation of any of the terms hereof or thereof would cause irreparable injury in an amount which would be impossible to estimate or determine and for which any remedy at law would be inadequate. As such, the parties agree that if either party fails or refuses to fulfill any of its obligations under this Agreement, then the other party shall have the remedy of specific performance, which remedy shall be cumulative and nonexclusive and shall be in addition to any other rights and remedies otherwise available under any other contract or at law or in equity and to which such party might be entitled. The Stockholder therefore agrees that, in the event of any such breach or threatened breach of this Agreement or the terms and conditions hereof by the Stockholder, the Company shall be entitled, in addition to all other available remedies, to an injunction restraining any breach or threatened breach, without the necessity of showing economic loss and without any bond or other security being required.
5.3. Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED, INTERPRETED AND ENFORCED ACCORDING TO, THE LAWS OF THE STATE OF FLORIDA, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS PROVISIONS THEREOF AND SHALL BE BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS. Any judicial proceeding brought by or any party regarding any dispute arising out of this Agreement or any matter related hereto may be brought in the courts of the State of Florida and, by execution and delivery of this Agreement, each party hereby submits to the jurisdiction of such courts. EACH PARTY HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN CONNECTION WITH ANY MATTER CONTESTED UNDER, OR ARISING OUT OF, THIS AGREEMENT.
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Monaker Group, Inc.
Director Compensation Lock-Up Agreement
April 7, 2021
5.4. Review of Agreement and Representations. Each party herein expressly represents and warrants to all other parties hereto that (a) before executing this Agreement, said party has fully informed itself of the terms, contents, conditions and effects of this Agreement; (b) said party has relied solely and completely upon its own judgment in executing this Agreement; (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 Agreement;
(d) said party has acted voluntarily and of its own free will in executing this Agreement; and (e) this Agreement is the result of arm’s length negotiations conducted by and among the parties and their respective counsel.
5.5. Counterparts, Effect of Facsimile, Emailed and Photocopied 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 (email) or downloaded from a website or data room (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.
[Remainder of page left intentionally blank. Signature page follows.]
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Monaker Group, Inc.
Director Compensation Lock-Up Agreement
April 7, 2021
IN WITNESS WHEREOF, parties have caused this Agreement to be signed and delivered as of the date first set forth above.
| THE COMPANY: | ||
| Monaker Group, Inc. | ||
| By: | ||
| Its: | ||
| Printed Name: |
[Signature Pages of Stockholders follow.]
Page 4 of 5
Monaker Group, Inc.
Director Compensation Lock-Up Agreement
April 7, 2021
STOCKHOLDER:
| By: |
| Printed Name: |
| Shares: |
Page 5 of 5
Monaker Group, Inc.
Director Compensation Lock-Up Agreement
April 7, 2021
Exhibit 10.3
EXCHANGE AGREEMENT
This Exchange Agreement (this “Agreement”) dated April 8, 2021 (the “Effective Date”), is by and between, Monaker Group, Inc., a Nevada corporation (the “Company”), and Mr. William Kerby (“Kerby”) and Monaco Investment Partners II, LP (“Monaco”) (Kerby and Monaco are collectively referred to herein as the “Accrued Dividend Holders”), each a “Party” and collectively the “Parties.”
W I T N E S S E T H:
WHEREAS, dividends in arrears on the previously outstanding shares of Series A Preferred Stock shares of the Company total $1,016,314 as of the Effective Date (the “Accrued Dividends”);
WHEREAS, notwithstanding the prior conversion of all shares of Series A Preferred Stock into common stock of the Company, such Accrued Dividends remained outstanding and are only payable when and if declared by the Board of Directors;
WHEREAS, the Accrued Dividends are owed to Accrued Dividend Holders, each former holders of the Company’s Series A Preferred Stock; and
WHEREAS, the Company desires to exchange, and the Board of Directors of the Company have approved the exchange of, the Accrued Dividends for Convertible Promissory Notes (the “Exchange”); and
WHREAS, the Company and the Accrued Dividend Holders desire to set forth in writing herein the terms and conditions of their agreement and understanding concerning the Exchange.
NOW, THEREFORE, in consideration of the premises and the mutual covenants, agreements, and considerations herein contained, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties hereto agree as follows:
1. Exchange.
(a) The Accrued Dividend Holders and the Company, pursuant their entry into this Agreement, hereby exchange the full amount of the Accrued Dividends (held 57.6/42.4 by Monaco and Kerby, respectively) for Convertible Promissory Notes in the form of Exhibit A hereto, in the aggregate principal amount of $1,016,314 ($585,425 for Monaco and $430,889 for Kerby)(the “Convertible Notes”).
(b) Accrued Dividend Holders represent that they are the sole owners of the Accrued Dividends (held 57.6/42.4) and have good and marketable title to the Accrued Dividends, free and clear of any liens, claims, charges, options, rights of tenants or other encumbrances. The Accrued Dividend Holders have sole managerial and dispositive authority with respect to the Accrued Dividends.
Exchange Agreement
Monaker Group, Inc. and Accured Dividend Holders
Page 1 of 4
2. Full Satisfaction.
(a) Accrued Dividend Holders agree that they are accepting the Convertible Notes in full satisfaction of the Accrued Dividends.
3. Representations of Accrued Dividend Holders.
(a) Each of the Accrued Dividend Holders represent and warrant to the Company that each is acquiring its Convertible Note, for his/its own account, for investment purposes only and not with a view to, or for sale in connection with, a distribution, as that term is used in Section 2(11) of the Securities Act of 1933, as amended (the “Securities Act,” or the “Act”) in a manner which would require registration under the Securities Act or any state securities laws. Such Party can bear the economic risk of investment in the applicable Convertible Note, has knowledge and experience in financial business matters, is capable of bearing and managing the risk of investment in the applicable Convertible Note and is an “accredited investor” as defined in Regulation D under the Securities Act.
4. Miscellaneous.
(a) Applicable Law. This Agreement shall be construed under and governed by the laws of the State of Florida, excluding any provision which would require the use of the laws of any other jurisdiction.
(b) Entire Agreement, Amendments, and Waivers. This Agreement constitutes the entire agreement of the Parties regarding the subject matter of the Agreement and expressly supersedes all prior and contemporaneous understandings and commitments, whether written or oral, with respect to the subject matter hereof. No variations, modifications, changes or extensions of this Agreement or any other terms hereof shall be binding upon any Party hereto unless set forth in a document duly executed by such Party or an authorized agent of such Party.
(c) Headings; Gender. The paragraph headings contained in this Agreement are for convenience only, and shall in no manner be construed as part of this Agreement. All references in this Agreement as to gender shall be interpreted in the applicable gender of the Parties.
(d) Binding Effect. This Agreement shall be binding on the Company and Accrued Dividend Holders. Upon such execution, this Agreement shall be binding on and inure to the benefit of each of the Parties and their respective heirs, successors, assigns, directors, officers, agents, employees, and personal representatives.
Exchange Agreement
Monaker Group, Inc. and Accured Dividend Holders
Page 2 of 4
(e) Severability. Should any clause, sentence, paragraph, subsection, Section or Article of this Agreement be judicially declared to be invalid, unenforceable or void, such decision will not have the effect of invalidating or voiding the remainder of this Agreement, and the Parties agree that the part or parts of this Agreement so held to be invalid, unenforceable or void will be deemed to have been stricken herefrom by the Parties, and the remainder will have the same force and effectiveness as if such stricken part or parts had never been included herein.
(f) Counterparts, Effect of Facsimile, Emailed and Photocopied 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. At the request of any Party, each other Party shall re-execute the original form of this Agreement and deliver such form to all other Parties. 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.]
Exchange Agreement
Monaker Group, Inc. and Accured Dividend Holders
Page 3 of 4
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and year first written above.
| “Company” | ||
| Monaker Group, Inc. | ||
| By | /s/ Sirapop Taepakdee | |
| Its: | Chief Financial Officer |
| Printed Name: | Sirapop Taepakdee |
“Accrued Dividend Holders”
/s/ William Kerby
William Kerby
Monaco Investment Partners II, LP
/s/ Donald P. Monaco
Donald P. Monaco
General Partner
Exchange Agreement
Monaker Group, Inc. and Accured Dividend Holders
Page 4 of 4
Exhibit 10.4
THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (THE “SECURITIES”) HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT” OR THE “SECURITIES ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE AND ANY SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE (EXCEPT AS OTHERWISE PROVIDED BELOW).
CONVERTIBLE PROMISSORY NOTE
| CN-1 | Effective April 8, 2021 |
NOW THEREFORE FOR VALUE RECEIVED, the undersigned, Monaker Group, Inc., a Nevada corporation (the “Maker”), hereby promises to pay to the order of Mr. William Kerby and assigns (“Holder”), the principal amount of $430,889 (the “Principal”), in lawful money of the United States of America, which shall be legal tender, bearing interest and payable as provided herein. This Convertible Promissory Note (this “Note” or “Promissory Note”) has an effective date of April 8, 2021 (the “Effective Date”).
1. Interest (“Interest”) shall accrue on the Principal amount of this Note then outstanding at the rate of 12% per annum (the “Interest Rate”), compounded monthly at the rate of 1/12th of such annual interest per month, on the last day of each calendar month (“Monthly Interest”). The Monthly Interest shall accrue and be payable on the Maturity Date, if not paid prior to such Maturity Date, or converted into Shares (as defined in Section 2) as provided herein.
2. Holder’s Option to Convert This Note Into Shares.
(a) At any time beginning 7 days after the Closing Date and prior to the payment in full by the Maker of this Note, subject to the provisions of Section 2, below, Holder shall have the option to convert the Principal (or any portion thereof) and accrued Interest (or any portion thereof), into shares (the “Shares”) of common stock of the Maker (“Common Stock”), at the Conversion Price (the “Holder Conversion Option”), which shall apply for the conversion of Principal and all accrued Interest (each a “Conversion”). The “Conversion Price” shall equal the greater of (i) the closing consolidated bid price on the date of this Note (as calculated according to applicable NASDAQ rules and requirements); and (ii) the five-day volume weighted average price of the Company’s common stock for the five trading days following the Closing Date. “Closing Date” means the date that the share exchange contemplated by the Company’s July 2020 Share Exchange Agreement entered into with HotPlay Enterprise Limited and its stockholders, as amended from time to time, closes.
Convertible Promissory Note CN-1
Monaker Group, Inc.
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(b) In order to exercise this Holder Conversion Option, the Holder shall provide the Maker a written notice of its intentions to exercise this Holder Conversion Option, which notice shall set forth the amount of this Promissory Note to be converted, the applicable Principal and Interest to be converted and the calculation of the applicable Conversion Price, which shall be in the form of Exhibit A, attached hereto (“Notice of Conversion”). Within three (3) business days of the Maker’s receipt of the Notice of Conversion (reflecting the Conversion Price confirmed by the Maker), the Maker shall deliver or cause to be delivered to the Holder, written confirmation that the Shares have been issued in the name of the Holder. If the Maker reasonably believes that there is an error in Holder’s calculation of the Shares issuable in connection with the Notice of Conversion or the Conversion Price provided for therein, or another issue with the conversion, the Maker shall not be obligated to honor such defective Notice of Conversion and shall promptly notify Holder of such errors.
3. General Provisions Relating to the Shares and Conversions.
(a) Conversion calculations pursuant to Section 2, shall be rounded to the nearest whole share of Common Stock.
(b) If the Maker at any time or from time to time on or after the Effective Date effects a subdivision of its outstanding Common Stock, the Conversion Price then in effect immediately before that subdivision shall be proportionately decreased, and conversely, if the Maker at any time or from time to time on or after the Effective Date combines its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price then in effect immediately before the combination shall be proportionately increased.
4. All past-due Principal and Interest shall bear interest at the lesser of (a) the rate of eighteen percent (18%) per annum; and (b) the Maximum Rate, until paid in full (the “Default Rate”).
5. The “Maturity Date” of this Note shall be the earlier of (a) April 7, 2022; and (b) the date that the Holder has affected an Acceleration as described in Section 16, below.
6. Upon the occurrence of an Event of Default hereunder the Principal amount of this Note and any accrued Interest thereon shall bear interest at the Default Rate.
7. This Note may be prepaid in whole or in part, at any time and from time to time, without premium or penalty, with such payments to be applied as described in Section 8 below.
Convertible Promissory Note CN-1
Monaker Group, Inc.
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8. All payments made by Maker under this Note will be applied: (i) first, to late charges, costs of collection or enforcement, and similar amounts due, if any, under the Note; (ii) second, to Interest that is due and payable under this Note, if any; and (iii) third, the remainder to Principal due and payable under this Note.
9. If any payment of Principal or Interest on this Note shall become due on a non-business day, such payment shall be made on the next succeeding business day.
10. Notwithstanding anything to the contrary in this Note or any other agreement entered into in connection herewith, whether now existing or hereafter arising and whether written or oral, it is agreed that the aggregate of all Interest and any other charges constituting interest, or adjudicated as constituting interest, and contracted for, chargeable or receivable under this Note or otherwise in connection with this loan transaction, shall under no circumstances exceed the Maximum Rate.
11. If an Event of Default (as defined herein) occurs (unless all Events of Default have been cured or waived by the Holder), the Holder, may, by written notice to the Maker, declare the Principal amount then outstanding of, and the accrued Interest and all other amounts payable on, this Note to be immediately due and payable (an “Acceleration”) (provided that upon the occurrence of an Event of Default described in Section 16(c) below, the Principal amount then outstanding of, and the accrued Interest and all other amounts payable on, this Note shall immediately be due and payable) and can take any and all other actions provided for under applicable law. The following events and/or any other Events of Default defined elsewhere in this Note are “Events of Default” under this Note, unless waived in writing by the Holder:
(a) Maker shall fail to pay, when and as due, the Principal, Interest or any other amount payable hereunder (including, the Shares), and such failure has continued for ten (10) days from the date that the Holder has provided the Maker written notice of such failure; or
(b) Maker shall have breached in any material respect any covenant, term or conditions in this Note, and, with respect to breaches capable of being cured, such breach shall not have been cured within ten (10) days from the date that the Holder has provided the Maker written notice of such breach; or
(c) Maker shall: (i) become insolvent or take any action which constitutes its admission of inability to pay its debts as they mature; (ii) make an assignment for the benefit of creditors, file a petition in bankruptcy, petition or apply to any tribunal for the appointment of a custodian, receiver or a trustee for it or a substantial portion of its assets; (iii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation or statute of any jurisdiction, whether now or hereafter in effect; (iv) have filed against it any such petition or application in which an order for relief is entered or which remains undismissed for a period of ninety (90) days or more; (v) indicate its consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for it or a substantial portion of its assets; or (vi) suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of ninety (90) days or more; or
Convertible Promissory Note CN-1
Monaker Group, Inc.
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(d) Maker shall take any action authorizing, or in furtherance of, any of the foregoing.
In case any one or more Events of Default shall occur and be continuing, the Holder, may proceed to protect and enforce the rights of the Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise. In case of a default in the payment of any Principal of or premium, if any, or Interest on this Note, Maker will pay to the Holder such further amount as shall be sufficient to cover the reasonable cost and expenses of collection, including, without limitation, reasonable attorneys’ fees, expenses and disbursements. No course of dealing and no delay on the part of the Holder in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice the Holder’s rights, powers or remedies. No right, power or remedy conferred by this Note upon the Holder shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise.
12. Except as expressly provided otherwise in this Note, Maker and every endorser or guarantor, if any, of this Note waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note, and assent to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral available to the Holder, if any, and to the addition or release of any other party or person primarily or secondarily liable.
13. If from any circumstance any holder of this Note shall ever receive Interest or any other charges constituting interest, or adjudicated as constituting interest, the amount, if any, which would exceed the Maximum Rate shall be applied to the reduction of the Principal amount owing on this Note, and not to the payment of interest; or if such excessive interest exceeds the unpaid balance of Principal hereof, the amount of such excessive interest that exceeds the unpaid balance of Principal hereof shall be refunded to Maker. In determining whether or not the interest paid or payable exceeds the Maximum Rate, to the extent permitted by applicable law (i) any non-Principal payment shall be characterized as an expense, fee or premium rather than as Interest; and (ii) all Interest at any time contracted for, charged, received or preserved in connection herewith shall be amortized, prorated, allocated and spread in equal parts during the period of the full stated term of this Note. The term “Maximum Rate” shall mean the maximum rate of interest allowed by applicable federal or state law.
Convertible Promissory Note CN-1
Monaker Group, Inc.
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14. It is the intention of the parties hereto that the terms and provisions of this Note are to be construed in accordance with and governed by the laws of the State of Florida, except as such laws may be preempted by any federal law controlling the rate of Interest which may be charged on account of this Note. The parties hereby consent and agree that, in any actions predicated upon this Note, venue is properly laid in Florida and Florida, shall have full subject matter and personal jurisdiction over the parties to determine all issues arising out of or in connection with the execution and enforcement of this Note.
15. Neither this Note nor any term hereof may be amended or waived orally or in writing, except that any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), upon the approval of the Maker and the written consent of the Holder.
16. The Note constitutes the entire agreement of the parties regarding the matters contemplated herein, or related thereto, and supersedes all prior and contemporaneous agreements, and understandings of the parties in connection therewith.
17. This Note and any signed agreement or instrument entered into in connection with this Note, 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. At the request of any party, each other party shall re execute the original form of this Note and deliver such form to all other parties. 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.]
Convertible Promissory Note CN-1
Monaker Group, Inc.
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IN WITNESS WHEREOF, Maker has duly executed this Promissory Note as of April 8, 2021, with an Effective Date as provided above.
| “Maker” | ||
| Monaker Group, Inc. | ||
| By: | /s/ Sirapop Taepakdee | |
| Its: | Chief Financial Officer | |
| Printed Name: | Sirapop Taepakdee |
Convertible Promissory Note CN-1
Monaker Group, Inc.
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EXHIBIT A
Conversion Election Form
____________, 20__
Re: Conversion of Convertible Promissory Note CN-1
Ladies and Gentlemen:
You are hereby notified that, pursuant to, and upon the terms and conditions of that certain Convertible Promissory Note CN-1 of Monaker Group, Inc. (the “Company”) dated April 8, 2021 in the amount of $430,889 (the “Note” – certain capitalized terms used herein have the meanings given to such terms in the Note), held by us, we hereby elect to exercise our Holder Conversion Option (as such term in defined in the Note), in connection with $__________ of the amount currently owed under the Note (including $___________ of Principal and $_________ of accrued Interest), effective as of the date of this writing, which amount will convert into __________ shares of the Common Stock of the Company (the “Conversion”), respectively, based on Conversion Price of $___________ (as defined in the Note). Please issue certificate(s) for the applicable securities issuable upon the Conversion, in the name of the person provided below.
| Very truly yours, | |
| ________________________________ | |
| Name:____________________________ | |
| If on behalf of Entity: | |
| Entity Name:___________________ | |
|
Signatory’s Position with Entity: __________________________________ |
|
| If held jointly: | |
| Joint Holder:________________________ | |
| Name:_____________________________ |
Please issue certificate(s) for Common Stock as follows:
Name______________________________________________
Address______________________________________________
Social Security No./EIN of Shareholder ______________________________________
Please send the certificate(s) evidencing the Common Stock to:
Attn:___________________________________________
Address:________________________________________
Convertible Promissory Note CN-1
Monaker Group, Inc.
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Exhibit 10.5
THIS NOTE AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE (THE “SECURITIES”) HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND MAY NOT BE TRANSFERRED UNTIL (i) A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT” OR THE “SECURITIES ACT”) SHALL HAVE BECOME EFFECTIVE WITH RESPECT THERETO OR (ii) RECEIPT BY THE COMPANY OF AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO THE EFFECT THAT REGISTRATION UNDER THE ACT IS NOT REQUIRED IN CONNECTION WITH SUCH PROPOSED TRANSFER NOR IS IN VIOLATION OF ANY APPLICABLE STATE SECURITIES LAWS. THIS LEGEND SHALL BE ENDORSED UPON ANY NOTE ISSUED IN EXCHANGE FOR THIS NOTE AND ANY SECURITIES ISSUABLE UPON CONVERSION OF THIS NOTE (EXCEPT AS OTHERWISE PROVIDED BELOW).
CONVERTIBLE PROMISSORY NOTE
| CN-2 | Effective April 8, 2021 |
NOW THEREFORE FOR VALUE RECEIVED, the undersigned, Monaker Group, Inc., a Nevada corporation (the “Maker”), hereby promises to pay to the order of Monaco Investment Partners II, LP and assigns (“Holder”), the principal amount of $585,425 (the “Principal”), in lawful money of the United States of America, which shall be legal tender, bearing interest and payable as provided herein. This Convertible Promissory Note (this “Note” or “Promissory Note”) has an effective date of April 8, 2021 (the “Effective Date”).
1. Interest (“Interest”) shall accrue on the Principal amount of this Note then outstanding at the rate of 12% per annum (the “Interest Rate”), compounded monthly at the rate of 1/12th of such annual interest per month, on the last day of each calendar month (“Monthly Interest”). The Monthly Interest shall accrue and be payable on the Maturity Date, if not paid prior to such Maturity Date, or converted into Shares (as defined in Section 2) as provided herein.
2. Holder’s Option to Convert This Note Into Shares.
(a) At any time beginning 7 days after the Closing Date and prior to the payment in full by the Maker of this Note, subject to the provisions of Section 2, below, Holder shall have the option to convert the Principal (or any portion thereof) and accrued Interest (or any portion thereof), into shares (the “Shares”) of common stock of the Maker (“Common Stock”), at the Conversion Price (the “Holder Conversion Option”), which shall apply for the conversion of Principal and all accrued Interest (each a “Conversion”). The “Conversion Price” shall equal the greater of (i) the closing consolidated bid price on the date of this Note (as calculated according to applicable NASDAQ rules and requirements); and (ii) the five-day volume weighted average price of the Company’s common stock for the five trading days following the Closing Date. “Closing Date” means the date that the share exchange contemplated by the Company’s July 2020 Share Exchange Agreement entered into with HotPlay Enterprise Limited and its stockholders, as amended from time to time, closes.
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Monaker Group, Inc.
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(b) In order to exercise this Holder Conversion Option, the Holder shall provide the Maker a written notice of its intentions to exercise this Holder Conversion Option, which notice shall set forth the amount of this Promissory Note to be converted, the applicable Principal and Interest to be converted and the calculation of the applicable Conversion Price, which shall be in the form of Exhibit A, attached hereto (“Notice of Conversion”). Within three (3) business days of the Maker’s receipt of the Notice of Conversion (reflecting the Conversion Price confirmed by the Maker), the Maker shall deliver or cause to be delivered to the Holder, written confirmation that the Shares have been issued in the name of the Holder. If the Maker reasonably believes that there is an error in Holder’s calculation of the Shares issuable in connection with the Notice of Conversion or the Conversion Price provided for therein, or another issue with the conversion, the Maker shall not be obligated to honor such defective Notice of Conversion and shall promptly notify Holder of such errors.
3. General Provisions Relating to the Shares and Conversions.
(a) Conversion calculations pursuant to Section 2, shall be rounded to the nearest whole share of Common Stock.
(b) If the Maker at any time or from time to time on or after the Effective Date effects a subdivision of its outstanding Common Stock, the Conversion Price then in effect immediately before that subdivision shall be proportionately decreased, and conversely, if the Maker at any time or from time to time on or after the Effective Date combines its outstanding shares of Common Stock into a smaller number of shares, the Conversion Price then in effect immediately before the combination shall be proportionately increased.
4. All past-due Principal and Interest shall bear interest at the lesser of (a) the rate of eighteen percent (18%) per annum; and (b) the Maximum Rate, until paid in full (the “Default Rate”).
5. The “Maturity Date” of this Note shall be the earlier of (a) April 7, 2022; and (b) the date that the Holder has affected an Acceleration as described in Section 16, below.
6. Upon the occurrence of an Event of Default hereunder the Principal amount of this Note and any accrued Interest thereon shall bear interest at the Default Rate.
7. This Note may be prepaid in whole or in part, at any time and from time to time, without premium or penalty, with such payments to be applied as described in Section 8 below.
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Monaker Group, Inc.
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8. All payments made by Maker under this Note will be applied: (i) first, to late charges, costs of collection or enforcement, and similar amounts due, if any, under the Note; (ii) second, to Interest that is due and payable under this Note, if any; and (iii) third, the remainder to Principal due and payable under this Note.
9. If any payment of Principal or Interest on this Note shall become due on a non-business day, such payment shall be made on the next succeeding business day.
10. Notwithstanding anything to the contrary in this Note or any other agreement entered into in connection herewith, whether now existing or hereafter arising and whether written or oral, it is agreed that the aggregate of all Interest and any other charges constituting interest, or adjudicated as constituting interest, and contracted for, chargeable or receivable under this Note or otherwise in connection with this loan transaction, shall under no circumstances exceed the Maximum Rate.
11. If an Event of Default (as defined herein) occurs (unless all Events of Default have been cured or waived by the Holder), the Holder, may, by written notice to the Maker, declare the Principal amount then outstanding of, and the accrued Interest and all other amounts payable on, this Note to be immediately due and payable (an “Acceleration”) (provided that upon the occurrence of an Event of Default described in Section 16(c) below, the Principal amount then outstanding of, and the accrued Interest and all other amounts payable on, this Note shall immediately be due and payable) and can take any and all other actions provided for under applicable law. The following events and/or any other Events of Default defined elsewhere in this Note are “Events of Default” under this Note, unless waived in writing by the Holder:
(a) Maker shall fail to pay, when and as due, the Principal, Interest or any other amount payable hereunder (including, the Shares), and such failure has continued for ten (10) days from the date that the Holder has provided the Maker written notice of such failure; or
(b) Maker shall have breached in any material respect any covenant, term or conditions in this Note, and, with respect to breaches capable of being cured, such breach shall not have been cured within ten (10) days from the date that the Holder has provided the Maker written notice of such breach; or
(c) Maker shall: (i) become insolvent or take any action which constitutes its admission of inability to pay its debts as they mature; (ii) make an assignment for the benefit of creditors, file a petition in bankruptcy, petition or apply to any tribunal for the appointment of a custodian, receiver or a trustee for it or a substantial portion of its assets; (iii) commence any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution or liquidation or statute of any jurisdiction, whether now or hereafter in effect; (iv) have filed against it any such petition or application in which an order for relief is entered or which remains undismissed for a period of ninety (90) days or more; (v) indicate its consent to, approval of or acquiescence in any such petition, application, proceeding or order for relief or the appointment of a custodian, receiver or trustee for it or a substantial portion of its assets; or (vi) suffer any such custodianship, receivership or trusteeship to continue undischarged for a period of ninety (90) days or more; or
Convertible Promissory Note CN-2
Monaker Group, Inc.
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(d) Maker shall take any action authorizing, or in furtherance of, any of the foregoing.
In case any one or more Events of Default shall occur and be continuing, the Holder, may proceed to protect and enforce the rights of the Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or for an injunction against a violation of any of the terms hereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise. In case of a default in the payment of any Principal of or premium, if any, or Interest on this Note, Maker will pay to the Holder such further amount as shall be sufficient to cover the reasonable cost and expenses of collection, including, without limitation, reasonable attorneys’ fees, expenses and disbursements. No course of dealing and no delay on the part of the Holder in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice the Holder’s rights, powers or remedies. No right, power or remedy conferred by this Note upon the Holder shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise.
12. Except as expressly provided otherwise in this Note, Maker and every endorser or guarantor, if any, of this Note waive presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note, and assent to any extension or postponement of the time of payment or any other indulgence, to any substitution, exchange or release of collateral available to the Holder, if any, and to the addition or release of any other party or person primarily or secondarily liable.
13. If from any circumstance any holder of this Note shall ever receive Interest or any other charges constituting interest, or adjudicated as constituting interest, the amount, if any, which would exceed the Maximum Rate shall be applied to the reduction of the Principal amount owing on this Note, and not to the payment of interest; or if such excessive interest exceeds the unpaid balance of Principal hereof, the amount of such excessive interest that exceeds the unpaid balance of Principal hereof shall be refunded to Maker. In determining whether or not the interest paid or payable exceeds the Maximum Rate, to the extent permitted by applicable law (i) any non-Principal payment shall be characterized as an expense, fee or premium rather than as Interest; and (ii) all Interest at any time contracted for, charged, received or preserved in connection herewith shall be amortized, prorated, allocated and spread in equal parts during the period of the full stated term of this Note. The term “Maximum Rate” shall mean the maximum rate of interest allowed by applicable federal or state law.
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Monaker Group, Inc.
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14. It is the intention of the parties hereto that the terms and provisions of this Note are to be construed in accordance with and governed by the laws of the State of Florida, except as such laws may be preempted by any federal law controlling the rate of Interest which may be charged on account of this Note. The parties hereby consent and agree that, in any actions predicated upon this Note, venue is properly laid in Florida and Florida, shall have full subject matter and personal jurisdiction over the parties to determine all issues arising out of or in connection with the execution and enforcement of this Note.
15. Neither this Note nor any term hereof may be amended or waived orally or in writing, except that any term of this Note may be amended and the observance of any term of this Note may be waived (either generally or in a particular instance and either retroactively or prospectively), upon the approval of the Maker and the written consent of the Holder.
16. The Note constitutes the entire agreement of the parties regarding the matters contemplated herein, or related thereto, and supersedes all prior and contemporaneous agreements, and understandings of the parties in connection therewith.
17. This Note and any signed agreement or instrument entered into in connection with this Note, 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. At the request of any party, each other party shall re execute the original form of this Note and deliver such form to all other parties. 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.]
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Monaker Group, Inc.
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IN WITNESS WHEREOF, Maker has duly executed this Promissory Note as of April 8, 2021, with an Effective Date as provided above.
| “Maker” | ||
| Monaker Group, Inc. | ||
| By: | /s/ Sirapop Taepakdee | |
| Its: | Chief Financial Officer | |
| Printed Name: | Sirapop Taepakdee |
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Monaker Group, Inc.
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EXHIBIT A
Conversion Election Form
____________, 20__
Re: Conversion of Convertible Promissory Note CN-2
Ladies and Gentlemen:
You are hereby notified that, pursuant to, and upon the terms and conditions of that certain Convertible Promissory Note CN-2 of Monaker Group, Inc. (the “Company”) dated April 8, 2021 in the amount of $585,425 (the “Note” – certain capitalized terms used herein have the meanings given to such terms in the Note), held by us, we hereby elect to exercise our Holder Conversion Option (as such term in defined in the Note), in connection with $__________ of the amount currently owed under the Note (including $___________ of Principal and $_________ of accrued Interest), effective as of the date of this writing, which amount will convert into __________ shares of the Common Stock of the Company (the “Conversion”), respectively, based on Conversion Price of $___________ (as defined in the Note). Please issue certificate(s) for the applicable securities issuable upon the Conversion, in the name of the person provided below.
| Very truly yours, | |
| ________________________________ | |
| Name:____________________________ | |
| If on behalf of Entity: | |
| Entity Name:___________________ | |
|
Signatory’s Position with Entity: __________________________________ |
|
| If held jointly: | |
| Joint Holder:________________________ | |
| Name:_____________________________ |
Please issue certificate(s) for Common Stock as follows:
Name______________________________________________
Address______________________________________________
Social Security No./EIN of Shareholder ______________________________________
Please send the certificate(s) evidencing the Common Stock to:
Attn:___________________________________________
Address:________________________________________
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Monaker Group, Inc.
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