MONAKER GROUP, INC. 8-K


 


Exhibit 10.1 





 


FIRST
AMENDMENT TO WARRANT 


This
First Amendment to Warrant (this “Agreement”) dated January 10, 2018 (the “Effective Date”),
is by and among Monaker Group, Inc., a Nevada corporation (the “Company”) and Pacific Grove Capital
LP, a Delaware limited partnership (the “Warrant Holder”), each a “Party”
and collectively the “Parties.”


W
I T N E S S E T H:


WHEREAS,
on August 11, 2017, the Company closed the transactions contemplated by the Common Stock and Warrant Purchase Agreement, entered
into by the Company on July 31, 2017 (the “Purchase Agreement”), with certain accredited investors named
therein, including the Warrant Holder (collectively, the “Purchasers”);


WHEREAS,
under the terms of the Purchase Agreement, the Company sold the Purchasers an aggregate of 1,532,500 shares of common stock (the
“Shares”) and 1,532,500 warrants to purchase one share of common stock (the “Offering Warrants”);


WHEREAS,
pursuant to the Purchase Agreement, the Warrant Holder subscribed for 875,000 Shares and 875,000 Offering Warrants;


WHEREAS,
the Purchase Agreement included certain liquidated damage provisions which require the Company to grant to the Purchasers, as
partial liquidated damages for any delay in obtaining an uplisting to the NASDAQ Capital Market, which uplisting was required
pursuant to the Purchase Agreement, to have occurred on or before December 9, 2017, additional warrants (on substantially similar
terms as the Offering Warrants) equal to each Purchaser’s pro rata share of 1% of the Offering Warrants sold pursuant to
the Purchase Agreement (the “Liquidated Damages”);


WHEREAS,
the Warrant Holder is due additional warrants to purchase 271,250 shares of the Company’s common stock in connection with
the Liquidated Damages as of the Effective Date (the “Liquidated Damage Warrants” and together with
the Offering Warrants, the “Warrants”), which Liquidated Damage Warrants the Company has granted to
the Warrant Holder as of the date of this Agreement;


WHEREAS,
the Company desires to incentivize the Warrant Holder to exercise the Warrants by reducing the exercise price of the Warrants
from $2.10 per share to $1.05 per share, provided that the Warrant Holder agrees to immediately exercise such Warrants for cash;


WHEREAS,
the Warrant Holder desires to immediately exercise the Warrants for cash subject to the reduction in exercise price described
above; and




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WHEREAS,
the Parties now desire to amend the Warrant Agreements evidencing the Warrants (the “Warrant Agreements”)
to reduce the exercise price of such Warrants in consideration for the immediate cash exercise of such Warrants by the Warrant
Holder, pursuant to the terms and conditions of this Agreement and the Warrant Agreements as amended hereby.


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


1.       


Amendment
to Warrant Agreements and Warrant Holder Exercise.


(a)       


Effective
as of the Effective Date, the definition of “Exercise Price” set forth in Section 1 of the Warrant
Agreements are hereby amended and replaced by the following definition:


““Exercise
Price” means $1.05, subject to adjustment in accordance with Section 9.”


(b)       


Effective
as of the Effective Date, the Warrant Holder shall be deemed to have affected a cash exercise of the full amount of the Warrants,
i.e., the Warrant Holder shall be deemed to have exercised the Warrant Agreements in full in cash at the Exercise Price as amended
hereby;


(c)       


Concurrently
with the Warrant Holder’s entry into this Agreement and effective as of the Effective Date, but no later than two (2) Business
Days after the Effective Date (the “Deadline”), the Warrant Holder shall provide the Company (a) Notice
of Exercises in the form of Exhibit A attached hereto (the “Notice of Exercises”), confirming
and documenting the exercise of such Warrants in cash pursuant to the terms and conditions thereof (the “Exercise”);
and (b) the aggregate Exercise Price of the Warrants ($1,203,562.50)(the “Aggregate Exercise Price”).


(d)       


Unless
extended by the Company in its sole discretion, in the event the Notice of Exercises and the Aggregate Exercise Price are not
received by the Company by the Deadline, this Agreement shall be rescinded and shall be void ab initio, the Exercise shall
be voided, the Exercise Price of the Warrants shall revert to $2.10 per share, and this Agreement shall have no force or effect
on the date immediately following the Deadline.


2.       


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




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3.       


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


(a)       


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


(b)       


The
execution and delivery by such Party and the consummation of the transactions contemplated hereby and thereby do not and shall
not, by the lapse of time, the giving of notice or otherwise: (i) constitute a violation of any law; or

(ii) constitute a breach of any provision contained in, or a default under, any governmental approval, any writ, injunction, order,
judgment or decree of any governmental authority or any contract to which such Party is bound or affected; and


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


4.       


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


5.       


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


6.       


Exercise
of Warrants In Full; Termination of Warrant Agreements. Effective upon the Effective Date
and in connection with the Exercise, except for the right to receive Warrant Shares in connection with the Exercise of the Warrants
pursuant to the terms of this Agreement above and the terms of the Warrant Agreements (to the extent not modified hereby), the
Warrant Agreements and the Warrants shall be deemed to have been exercised in full, shall have no further force or effect, shall
be deemed terminated, and the Warrant Holder shall have no further rights, and the Company shall have no further obligation under,
such Warrant Agreements, effective on the Effective Date.




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7.       


Benefit
and Burden. This Agreement shall inure to the benefit of, and shall be binding upon, the Parties hereto and their successors
and permitted assigns.


8.       


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


9.       


Fully
Informed; Arm’s Length Transaction. 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.


10.       


No
Presumption from Drafting. This Agreement has been negotiated at arm’s-length between persons knowledgeable in the
matters set forth within this Agreement. Accordingly, given that all Parties have had the opportunity to draft, review and/or
edit the language of this Agreement, no presumption for or against any Party arising out of drafting all or any part of this Agreement
will be applied in any action relating to, connected with or involving this Agreement. In particular, any rule of law, legal decisions,
or common law principles of similar effect that would require interpretation of any ambiguities in this Agreement against the
Party that has drafted it, is of no application and is hereby expressly waived. The provisions of this Agreement shall be interpreted
in a reasonable manner to effect the intentions of the Parties.


11.       


Effect
of Facsimile 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.




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 First Amendment To Warrant	 



     


    

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


 


	(“Company”)
	 
	Monaker
    Group, Inc. 
	 
	 	By:	/s/ Bill Kerby	 
	 
	 	Its:	CEO	 
	 
	 	Printed Name:	Bill Kerby	 
	 
	 
	(“Warrant
    Holder”)
	 
	Pacific
    Grove Capital LP
	 
	 	By:	/s/ Mark Simmons	 
	 
	 	Its:	Chief Financial Officer	 
	 
	 	Printed Name:	Mark Simmons	 


 




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EXHIBIT
A


 




    	 



    	 



    




EXERCISE
NOTICE


The
undersigned Holder hereby irrevocably elects to purchase 875,000 shares of Common Stock pursuant to the attached
Warrant. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.


(1)       The
undersigned Holder hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.


(2)       The
Holder intends that payment of the Exercise Price shall be made as (check one):


 ☒ “Cash Exercise” under Section 10


 ☐ “Cashless Exercise” under Section 10


(3)       If
the holder has elected a Cash Exercise, the holder shall pay the sum of $918,750 to the Company in accordance with
the terms of the Warrant.


(4)       Pursuant
to this Exercise Notice, the Company shall deliver to the holder Warrant Shares in accordance with the terms of the Warrant.


	Dated:
    January 10, 2018	Name of Holder:
	 	 
	 	(Print)
	 	 
	 	Pacific Grove Capital LP
	 	 
	 	 
	 	By:	/s/ Mark Simmons	 
	 	 	 	 
	 	Its:	Chief Financial Officer	 
	 	 
	 	Printed Name:	Mark Simmons	 
	 	 	(Signature must conform in all respects to name of holder
as specified on the face of the Warrant)	 



 



    	 



    	 



    

EXERCISE
NOTICE


The
undersigned Holder hereby irrevocably elects to purchase 271,250 shares of Common Stock pursuant to the attached
Warrant. Capitalized terms used herein and not otherwise defined have the respective meanings set forth in the Warrant.


(1)       The
undersigned Holder hereby exercises its right to purchase Warrant Shares pursuant to the Warrant.


(2)       The
Holder intends that payment of the Exercise Price shall be made as (check one):


☒ “Cash Exercise” under Section 10


☐  “Cashless Exercise” under Section 10


(3)       If
the holder has elected a Cash Exercise, the holder shall pay the sum of $284,812.50 to the Company in accordance
with the terms of the Warrant.


(4)       Pursuant
to this Exercise Notice, the Company shall deliver to the holder Warrant Shares in accordance with the terms of the Warrant.


	Dated:
    January 10, 2018	Name of Holder:
	 	 
	 	(Print)
	 	 
	 	Pacific Grove Capital LP
	 	 
	 	 
	 	By:	/s/ Mark Simmons	 
	 	 	 	 
	 	Its:	Chief Financial Officer 	 
	 	 
	 	Printed Name:	Mark Simmons	 
	 	 	(Signature must conform in all respects to name of holder
as specified on the face of the Warrant)