Monaker Group, Inc. 8-K


 


Exhibit 10.1


 


Note
Purchase Agreement


 


This
Note Purchase Agreement (this “Agreement”),
dated as of November 23, 2020, is entered into by and between Monaker Group, Inc.,
a Nevada corporation (“Company”), and Streeterville Capital, LLC,
a Utah limited liability company, its successors and/or assigns (“Investor”).


 


A.           
Company and Investor are executing and delivering this Agreement in reliance upon an exemption from securities registration afforded
by the Securities Act of 1933, as amended (the “1933 Act”), and the rules and regulations promulgated thereunder
by the United States Securities and Exchange Commission (the “SEC”).


 


B.            
Investor desires to purchase and Company desires to issue and sell, upon the terms and conditions set forth in this Agreement,
a Secured Promissory Note, in the form attached hereto as Exhibit A, in the original principal amount of $5,520,000.00
(the “Note”).


 


C.           
This Agreement, the Note, the Investor Note (as defined below), the Security Agreement (as defined below), and all other certificates,
documents, agreements, resolutions and instruments delivered to any party under or in connection with this Agreement, as the same
may be amended from time to time, are collectively referred to herein as the “Transaction Documents”.


 


NOW,
THEREFORE, in consideration of the above recitals and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Company and Investor hereby agree as follows:


 


		1.	Purchase
                                         and Sale of Note.



 


1.1.           
Purchase of Note. Company shall issue and sell to Investor and Investor shall purchase from Company the Note. In consideration
thereof, Investor shall pay (i) the amount designated as the initial cash purchase price on the signature page to this Agreement
(the “Initial Cash Purchase Price”), and (ii) issue to Company the Investor Note (the sum of the initial principal
amount of the Investor Note, together with the Initial Cash Purchase Price, the “Purchase Price”).


 


1.2.            
Form of Payment. On the Closing Date (as defined below), (i) Investor shall pay the Purchase Price to Company by delivering
the following at the Closing: (A) the Initial Cash Purchase Price, which shall be delivered by wire transfer of immediately available
funds in U.S. Dollars to Company, in accordance with Company’s written wiring instructions; and (B) an Investor Note in
the principal amount of $1,500,000.00 duly executed by Investor and substantially in the form attached hereto as Exhibit B (“Investor Note”); and (ii) Company shall deliver the duly executed Note on behalf of Company, to Investor,
against delivery of such Purchase Price.


 


1.3.            
Closing Date. Subject to the satisfaction (or written waiver) of the conditions set forth in Section 5 and Section 6 below,
the date of the issuance and sale of the Note pursuant to this Agreement (the “Closing Date”) shall be November
23, 2020, or another mutually agreed upon date. The closing of the transactions contemplated by this Agreement (the “Closing”)
shall occur on the Closing Date by means of the exchange by email of .pdf documents, but shall be deemed for all purposes to have
occurred at the offices of Hansen Black Anderson Ashcraft PLLC in Lehi, Utah.


 


1.4.            
Collateral for the Note. The Note shall be secured by the collateral set forth in that certain Security Agreement attached
hereto as Exhibit C listing all of Company’s assets as security for Company’s obligations under the Transaction
Documents (the “Security Agreement”).


 




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1.5.            
Original Issue Discount; Transaction Expense Amount. The Note carries an original issue discount of $500,000.00 (the “OID”).
In addition, Company agrees to pay $20,000.00 to Investor to cover Investor’s legal fees, accounting costs, due diligence,
monitoring and other transaction costs incurred in connection with the purchase and sale of the Note (the “Transaction
Expense Amount”), all of which amount is included in the initial principal balance of the Note. The “Purchase
Price”, therefore, shall be $5,000,000.00, computed as follows: $5,520,000.00 initial principal balance, less the OID,
less the Transaction Expense Amount.


 


2.            
Investor’s Representations and Warranties. Investor represents and warrants to Company that as of the Closing Date:
(i) this Agreement has been duly and validly authorized; (ii) this Agreement constitutes a valid and binding agreement of Investor
enforceable in accordance with its terms; (iii) Investor is an “accredited investor” as that term is defined in Rule
501(a) of Regulation D of the 1933 Act; (iv) Investor is acquiring the Note for its own account and not with a view towards, or
for resale in connection with, the public sale or distribution thereof in violation of applicable securities laws, except pursuant
to sales registered or exempted under the 1933 Act; provided, however, by making the representations herein, Investor does not
agree, or make any representation or warranty, to hold the Note for any minimum or other specific term and reserves the right
to dispose of the Note at any time in accordance with or pursuant to a registration statement or an exemption from registration
under the 1933 Act; (v) Investor does not presently have any agreement or understanding, directly or indirectly, with any Person
(as defined below) to distribute the Note in violation of applicable securities laws; (vi) Investor and its advisors, if any,
have been furnished with all materials relating to the business, finances and operations of Company and materials relating to
the offer and sale of the Note that have been requested by Investor; (vii) Investor and its advisors, if any, have been afforded
the opportunity to ask questions of Company; (viii) neither such inquiries nor any other due diligence investigations conducted
by Investor or its advisors, if any, or its representatives shall modify, amend or affect Investor's right to rely on Company's
representations and warranties contained herein; (ix) Investor understands that its investment in the Note involves a high degree
of risk; (x) Investor has sought such accounting, legal and tax advice as it has considered necessary to make an informed investment
decision with respect to its acquisition of the Note; (xi) Investor understands that the Note has not been and is not being registered
under the 1933 Act or any state securities laws and that Company will not be obligated in the future to register the Note under
the 1933 Act or the Securities Exchange Act of 1934, as amended (the “1934 Act”), or under any state securities
laws and that Company has not made or is making any representation, warranty or covenant, express or implied, as to the availability
of any exemption from registration under the 1933 Act or any applicable state securities laws for the resale, pledge or other
transfer of the Note. For purposes of this Agreement, “Person” means an individual, a limited liability company,
a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity and any governmental
entity or any department or agency thereof.


 






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3.            
Company’s Representations and Warranties. Company represents and warrants to Investor that as of the Closing Date:
(i) Company is a corporation duly organized, validly existing and in good standing under the laws of its state of incorporation
and has the requisite corporate power to own its properties and to carry on its business as now being conducted; (ii) Company
is duly qualified as a foreign corporation to do business and is in good standing in each jurisdiction where the nature of the
business conducted or property owned by it makes such qualification necessary; (iii) Company has registered its shares of common
stock, $0.00001 per share (the “Common Stock”), under Section 12(b) of the 1934 Act, and is obligated to file
reports pursuant to Section 13 or Section 15(d) of the 1934 Act; (iv) each of the Transaction Documents and the transactions contemplated
hereby and thereby, have been duly and validly authorized by Company and all necessary actions have been taken; (v) this Agreement,
the Note, the Security Agreement, and the other Transaction Documents have been duly executed and delivered by Company and constitute
the valid and binding obligations of Company enforceable in accordance with their terms; (vi) the execution and delivery of the
Transaction Documents by Company and the consummation by Company of the other transactions contemplated by the Transaction Documents
do not and will not conflict with or result in a breach by Company of any of the terms or provisions of, or constitute a default
under (a) Company’s certificate of incorporation or bylaws, each as currently in effect, (b) any indenture, mortgage, deed
of trust, or other material agreement or instrument to which Company is a party or by which it or any of its properties or assets
are bound, or (c) any existing applicable law, rule, or regulation or any applicable decree, judgment, or order of any court,
United States federal, state or foreign regulatory body, administrative agency, or other governmental body having jurisdiction
over Company or any of Company’s properties or assets, except for, with respect to clauses
(b) and (c) above, for any breach or default that would not reasonably be expected to result in a material adverse effect on Company’s
the condition (financial or otherwise), results of operations, business or assets (a “Material Adverse Effect”);
(vii) no further authorization, approval or consent of any court, governmental body, regulatory agency, self- regulatory
organization, or stock exchange or market or the stockholders or any lender of Company is required to be obtained by Company for
the issuance of the Note to Investor or the entering into of the Transaction Documents; (viii) none of Company’s filings
with the SEC contained, at the time they were filed, any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements made therein, in light of the circumstances under which
they were made, not misleading; (ix) Company has filed all reports, schedules, forms, statements and other documents required
to be filed by Company with the SEC under the 1934 Act on a timely basis or has received a valid extension of such time of filing
and has filed any such report, schedule, form, statement or other document prior to the expiration of any such extension; (x)
there is no action, suit, proceeding, inquiry or investigation before or by any court, public board or body pending or, to the
knowledge of Company, threatened against Company before or by any governmental authority or non-governmental department, commission,
board, bureau, agency or instrumentality or any other person, wherein an unfavorable decision, ruling
or finding would reasonably be expected to have a Material Adverse Effect or which would adversely affect the validity or enforceability
of, or the authority or ability of Company to perform its obligations under, any of the Transaction Documents; (xi) Company
has not consummated any financing transaction that has not been disclosed in a periodic filing or current report with the SEC
under the 1934 Act; (xii) Company is not, nor has it been at any time in the previous twelve (12) months, a “Shell Company,”
as such type of “issuer” is described in Rule 144(i)(1) under the 1933 Act; (xiii) Investor shall have no obligation
with respect to any commissions, placement agent or finder’s fees or similar payments (“Broker Fees”)
or with respect to any claims made by or on behalf of other persons for fees of a type contemplated in this subsection that may
be due in connection with the transactions contemplated hereby and Company shall indemnify and hold harmless each of Investor,
Investor’s employees, officers, directors, stockholders, managers, agents, and partners, and their respective affiliates,
from and against all claims, losses, damages, costs (including the costs of preparation and attorneys’ fees) and expenses
suffered in respect of any such claimed or existing Broker Fees; (xiv) neither Investor nor any of its officers, directors, members,
managers, employees, agents or representatives has made any representations or warranties to Company or any of its officers, directors,
employees, agents or representatives except as expressly set forth in the Transaction Documents and, in making its decision to
enter into the transactions contemplated by the Transaction Documents, Company is not relying on any representation, warranty,
covenant or promise of Investor or its officers, directors, members, managers, employees, agents or representatives other than
as set forth in the Transaction Documents; (xv) Company acknowledges that the State of Utah has a reasonable relationship and
sufficient contacts to the transactions contemplated by the Transaction Documents and any dispute that may arise related thereto
such that the laws and venue of the State of Utah, as set forth more specifically in Section 7.2 below, shall be applicable to
the Transaction Documents and the transactions contemplated therein; and (xvi) Company has performed due diligence and background
research on Investor and its affiliates including, without limitation, John M. Fife, and, to its satisfaction, has made inquiries
with respect to all matters Company may consider relevant to the undertakings and relationships contemplated by the Transaction
Documents including, among other things, the following: http://investing.businessweek.com/research/stocks/people/person.asp?personId=7505107&ticker=UAHC;
SEC Civil Case No. 07-C-0347 (N.D. Ill.); SEC Civil Action No. 07-CV-347 (N.D. Ill.); and FINRA Case #2011029203701. In addition,
Investor is involved in ongoing litigation with the SEC regarding broker-dealer registration (see SEC Civil Case No. 1:20-cv-05227
(N.D. Ill.)). Company, being aware of the matters described in subsection (xvi) above, acknowledges and agrees that such matters,
or any similar matters, have no bearing on the transactions contemplated by the Transaction Documents and covenants and agrees
it will not use any such information as a defense to performance of its obligations under the Transaction Documents or in any
attempt to avoid, modify, offset or reduce such obligations.


 






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4.            
Company Covenants. Until all of Company’s obligations under the Note are paid and performed in full, or within the
timeframes otherwise specifically set forth below, Company will at all times comply with the following covenants: (i) so
long as Investor beneficially owns the Note and for at least twenty (20) Trading Days (as defined in the Note) thereafter, Company
will timely file on the applicable deadline all reports required to be filed with the SEC pursuant to Sections 13 or 15(d) of
the 1934 Act, and will take all reasonable action under its control to ensure that adequate current public information with respect
to Company, as required in accordance with Rule 144 of the 1933 Act, is publicly available, and will not terminate its status
as an issuer required to file reports under the 1934 Act even if the 1934 Act or the rules and regulations thereunder would permit
such termination; (ii) the Common Stock shall be listed or quoted for trading on any of (a) NYSE, (b) NASDAQ, (c) OTCQX, or (d)
OTCQB; (iii) trading in Company’s Common Stock will not be suspended, halted, chilled, frozen, reach zero bid or otherwise
cease trading on Company’s principal trading market; (iv) Company will make a payment on the Note equal to twenty percent
(20%) of the gross proceeds Company receives from the sale of any of its Common Stock or preferred stock, within ten (10) days
of receiving such an amount; (v) Company will not enter into any financing transaction with John Kirkland or any entity owned
by or affiliated with John Kirkland; (vi) within ten (10) days of the Closing Date, Company will repay all indebtedness owed to
Republic Bank and any other secured creditor (other than Iliad Research and Trading, L.P.) and file UCC-3 termination statements
terminating all existing UCC financing statement currently filed against Company; (vii) Company will not transfer, assign, sell,
pledge, hypothecate or otherwise alienate or encumber the Investor Note in any way without the prior written consent of Investor,
which consent may be given or withheld in Investor’s sole and absolute discretion; and (viii) Company will use all proceeds
received pursuant to the Transaction Documents to: (a) repay indebtedness owed to Republic Bank and any other secured creditor
(other than Iliad Research and Trading, L.P.); and (b) purchase common stock of Axion Venture, Inc, and Longroot Ltd., and for
no other purpose.


 


5.            
Conditions to Company’s Obligation to Sell. The obligation of Company hereunder to issue and sell the Note to Investor
at the Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions:


 


5.1.            
Investor shall have executed this Agreement and the Investor Note and delivered the same to Company.


 


5.2.            
Investor shall have delivered the Purchase Price to Company in accordance with Section 1.2 above.


 


6.            
Conditions to Investor’s Obligation to Purchase. The obligation of Investor hereunder to purchase the Note at the
Closing is subject to the satisfaction, on or before the Closing Date, of each of the following conditions, provided that these
conditions are for Investor’s sole benefit and may be waived by Investor at any time in its sole discretion:


 


6.1.            
Company shall have executed this Agreement, the Security Agreement, and the Note, and delivered the same to Investor.


 




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6.2.            
Company shall have delivered to Investor a fully executed Secretary’s Certificate substantially in the form attached hereto
as Exhibit D evidencing Company’s approval of the Transaction Documents.


 


6.3.            
Company shall have delivered to Investor fully executed copies of all other Transaction Documents required to be executed by Company
herein or therein.


 


7.            
Miscellaneous. The provisions set forth in this Section 7 shall apply to this Agreement, as well as all other Transaction
Documents as if these terms were fully set forth therein; provided, however, that in the event there is a conflict between any
provision set forth in this Section 7 and any provision in any other Transaction Document, the provision in such other Transaction
Document shall govern.


 


7.1.            
Arbitration of Claims. The parties shall submit all Claims (as defined in Exhibit E) arising under this Agreement
or any other Transaction Document or any other agreement between the parties and their affiliates or any Claim relating to the
relationship of the parties to binding arbitration pursuant to the arbitration provisions set forth in Exhibit E attached
hereto (the “Arbitration Provisions”). For the avoidance of doubt, the parties agree that the injunction described
in Section 7.3 below may be pursued in an arbitration that is separate and apart from any other arbitration regarding all other
Claims arising under the Transaction Documents. The parties hereby acknowledge and agree that the Arbitration Provisions are unconditionally
binding on the parties hereto and are severable from all other provisions of this Agreement. By executing this Agreement, Company
represents, warrants and covenants that Company has reviewed the Arbitration Provisions carefully, consulted with legal counsel
about such provisions (or waived its right to do so), understands that the Arbitration Provisions are intended to allow for the
expeditious and efficient resolution of any dispute hereunder, agrees to the terms and limitations set forth in the Arbitration
Provisions, and that Company will not take a position contrary to the foregoing representations. Company acknowledges and agrees
that Investor may rely upon the foregoing representations and covenants of Company regarding the Arbitration Provisions.


 


7.2.            
Governing Law; Venue. This Agreement shall be construed and enforced in accordance with, and all questions concerning the
construction, validity, interpretation and performance of this Agreement shall be governed by, the internal laws of the State
of Utah, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Utah or any
other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Utah. Each party
consents to and expressly agrees that the exclusive venue for arbitration of any dispute arising out of or relating to any Transaction
Document or the relationship of the parties or their affiliates shall be in Salt Lake County, Utah. Without modifying the parties’
obligations to resolve disputes hereunder pursuant to the Arbitration Provisions, for any litigation arising in connection with
any of the Transaction Documents, each party hereto hereby (i) consents to and expressly submits to the exclusive personal jurisdiction
of any state or federal court sitting in Salt Lake County, Utah, (ii) expressly submits to the exclusive venue of any such court
for the purposes hereof, and (iii) waives any claim of improper venue and any claim or objection that such courts are an inconvenient
forum or any other claim, defense or objection to the bringing of any such proceeding in such jurisdiction or to any claim that
such venue of the suit, action or proceeding is improper. Finally, Company covenants and agrees to name Investor as a party in
interest in, and provide written notice to Investor in accordance with Section 7.12 below prior to bringing or filing any action
(including without limitation any filing or action against any person or entity that is not a party to this Agreement) that is
related in any way to the Transaction Documents or any transaction contemplated herein or therein, and further agrees to timely
name Investor as a party to any such action. Company acknowledges that the governing law and venue provisions set forth in this
Section 7.2 are material terms to induce Investor to enter into the Transaction Documents and that but for Company’s agreements
set forth in this Section 7.2 Investor would not have entered into the Transaction Documents.


 




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7.3.            
Specific Performance. Company acknowledges and agrees that Investor may suffer irreparable harm in the event that Company
fails to perform any material provision of this Agreement or any of the other Transaction Documents in accordance with its specific
terms. It is accordingly agreed that Investor shall be entitled to one or more injunctions to prevent or cure breaches of the
provisions of this Agreement or such other Transaction Document and to enforce specifically the terms and provisions hereof or
thereof, this being in addition to any other remedy to which Investor may be entitled under the Transaction Documents, at law
or in equity. Company specifically agrees that following an Event of Default (as defined in the Note) under the Note and during
the period such Event of Default remains in place, the Company shall pay Investor, as a payment on the Note, thirty percent (30%)
of the gross proceeds the Company receives from the sale of any of its Common Stock or preferred stock, within ten (10) days of
receiving such an amount. Company also agrees that in the event it fails to timely pay over proceeds as required pursuant to the
previous sentence, Investor shall have the right to seek and receive injunctive relief from a court or an arbitrator prohibiting
Company from issuing any of its Common Stock or preferred stock to any party unless the Note is being paid in full simultaneously
with such issuance. Company specifically acknowledges that Investor’s right to obtain specific performance constitutes bargained
for leverage and that the loss of such leverage would result in irreparable harm to Investor. For the avoidance of doubt, in the
event Investor seeks to obtain an injunction from a court or an arbitrator against Company or specific performance of any provision
of any Transaction Document, such action shall not be a waiver of any right of Investor under any Transaction Document, at law,
or in equity, including without limitation its rights to arbitrate any Claim pursuant to the terms of the Transaction Documents,
nor shall Investor’s pursuit of an injunction prevent Investor, under the doctrines of claim preclusion, issues preclusion,
res judicata or other similar legal doctrines, from pursuing other Claims in the future in a separate arbitration.


 


7.4.            
No Shorting. During the period beginning on the Closing Date and ending on the date the Note has been repaid in full or
sold by Investor to a third party that is not an affiliate of Investor, Investor will not directly or through an affiliate engage
in any open market Short Sales (as defined below) of the Common Stock; provided; however, that unless and until Company
has affirmatively demonstrated by the use of specific evidence that Investor is engaging in open market Short Sales, Investor
shall be assumed to be in compliance with the provisions of this Section 7.4 and Company shall remain fully obligated to fulfill
all of its obligations under the Transaction Documents; and provided, further, that (i) Company shall under no circumstances be
entitled to request or demand that Investor either (A) provide trading or other records of Investor or of any party or (B) affirmatively
demonstrate that Investor or any other party has not engaged in any such Short Sales in breach of these provisions as a condition
to Company’s fulfillment of its obligations under any of the Transaction Documents, (ii) Company shall not assert Investor’s
or any other party’s failure to demonstrate such absence of such Short Sales or provide any trading or other records of
Investor or any other party as all or part of a defense to any breach of Company’s obligations under any of the Transaction
Documents, and (iii) Company shall have no setoff right with respect to any such Short Sales. As used herein, “Short
Sale” has the meaning provided in Rule 200 promulgated under Regulation SHO under the 1934 Act.


 


7.5.            
Counterparts. Each Transaction Document may be executed in any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another
party’s executed counterpart of a Transaction Document (or such party’s signature page thereof) will be deemed to
be an executed original thereof.


 


7.6.             Document
Imaging. Investor shall be entitled, in its sole discretion, to image or make copies of all or any selection of the
agreements, instruments, documents, and items and records governing, arising from or relating to any of Company’s
loans, including, without limitation, this Agreement and the other Transaction Documents, and Investor may destroy or archive
the paper originals. The parties hereto (i) waive any right to insist or require that Investor produce paper originals, (ii)
agree that such images shall be accorded the same force and effect as the paper originals, (iii) agree that Investor is
entitled to use such images in lieu of destroyed or archived originals for any purpose, including as admissible evidence in
any demand, presentment or other proceedings, and (iv) further agree that any executed facsimile (faxed), scanned, emailed,
or other imaged copy of this Agreement or any other Transaction Document shall be deemed to be of the same force and effect
as the original manually executed document.


 






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7.7.            
Headings. The headings of this Agreement are for convenience of reference only and shall not form part of, or affect the
interpretation of, this Agreement.


 


7.8.            
Severability. In the event that any provision of this Agreement is invalid or unenforceable under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent that it may conflict therewith and shall be deemed
modified to conform to such statute or rule of law. Any provision hereof which may prove invalid or unenforceable under any law
shall not affect the validity or enforceability of any other provision hereof.


 


7.9.            
Entire Agreement. This Agreement, together with the other Transaction Documents, contains the entire understanding of the
parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither
Company nor Investor makes any representation, warranty, covenant or undertaking with respect to such matters. For the avoidance
of doubt, all prior term sheets or other documents between Company and Investor, or any affiliate thereof, related to the transactions
contemplated by the Transaction Documents (collectively, “Prior Agreements”), that may have been entered into
between Company and Investor, or any affiliate thereof, are hereby null and void and deemed to be replaced in their entirety by
the Transaction Documents. To the extent there is a conflict between any term set forth in any Prior Agreement and the term(s)
of the Transaction Documents, the Transaction Documents shall govern.


 


7.10.         
No Reliance. Company acknowledges and agrees that neither Investor nor any of its officers, directors, members, managers,
representatives or agents has made any representations or warranties to Company or any of its officers, directors, representatives,
agents or employees except as expressly set forth in the Transaction Documents and, in making its decision to enter into the transactions
contemplated by the Transaction Documents, Company is not relying on any representation, warranty, covenant or promise of Investor
or its officers, directors, members, managers, agents or representatives other than as set forth in the Transaction Documents.


 


7.11.         
Amendments. No provision of this Agreement may be waived or amended other than by an instrument in writing signed by both
parties hereto.


 


7.12.         
Notices. Any notice required or permitted hereunder shall be given in writing (unless otherwise specified herein) and shall
be deemed effectively given on the earliest of: (i) the date delivered, if delivered by personal delivery as against written receipt
therefor or by email to an executive officer, or by facsimile (with successful transmission confirmation), (ii) the earlier of
the date delivered or the third business day after deposit, postage prepaid, in the United States Postal Service by certified
mail, or (iii) the earlier of the date delivered or the third business day after mailing by express courier, with delivery costs
and fees prepaid, in each case, addressed to each of the other parties thereunto entitled at the following addresses (or at such
other addresses as such party may designate by five (5) calendar days’ advance written notice similarly given to each of
the other parties hereto):


 




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If
to Company:


 


Monaker
Group, Inc.


Attn:
William Kerby


2893
Executive Park Drive, Suite 201


Weston,
Florida 33331


 


With
a copy to (which copy shall not constitute notice):


 


The
Loev Law Firm, PC 


Attn:
David M. Loev


6300
West Loop South, Suite 280


Bellaire,
Texas 77401


 


       If to Investor:


 


Streeterville
Capital, LLC


Attn:
John Fife


303
East Wacker Drive, Suite 1040


Chicago,
Illinois 60601


 


With
a copy to (which copy shall not constitute notice):


 


 Hansen
Black Anderson Ashcraft PLLC


Attn:
Jonathan K. Hansen


3051
West Maple Loop Drive, Suite 325


Lehi, Utah 84043


 


7.13.         
Successors and Assigns. This Agreement or any of the severable rights and obligations inuring to the benefit of or to be
performed by Investor hereunder may be assigned by Investor to its affiliates, in whole or in part, without the need to obtain
Company’s consent thereto. Except as set forth above, neither Investor nor Company may assign its rights or obligations
under this Agreement or delegate its duties hereunder without the prior written consent of the other party.


 


7.14.         
Survival. The representations and warranties of the parties and the agreements and covenants set forth in this Agreement
shall survive the Closing hereunder notwithstanding any due diligence investigation conducted by or on behalf of each party. Each
party agrees to indemnify and hold harmless the other and all its respective officers, directors, employees, attorneys, and agents
for loss or damage arising as a result of or related to any breach or alleged breach by the other party of any of its representations,
warranties and covenants set forth in this Agreement or any of its covenants and obligations under this Agreement, including advancement
of expenses as they are incurred.


 


7.15.         
Further Assurances. Each party shall do and perform, or cause to be done and performed, all such further acts and things,
and shall execute and deliver all such other agreements, certificates, instruments and documents, as the other party may reasonably
request in order to carry out the intent and accomplish the purposes of this Agreement and the consummation of the transactions
contemplated hereby.


 






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7.16.          Rights
and Remedies Cumulative. All rights, remedies, and powers conferred in this Agreement and the Transaction Documents are
cumulative and not exclusive of any other rights or remedies, and shall be in addition to every other right, power, and
remedy that any party may have, whether specifically granted in this Agreement or any other Transaction Document, or existing
at law, in equity, or by statute, and any and all such rights and remedies may be exercised from time to time and as often
and in such order as such party may deem expedient.


 


7.17.         
Attorneys’ Fees and Cost of Collection. In the event any suit, action or arbitration is filed by either party against
the other to interpret or enforce any of the Transaction Documents, the unsuccessful party to such action agrees to pay to the
prevailing party all costs and expenses, including attorneys’ fees incurred therein, including the same with respect to
an appeal. The “prevailing party” shall be the party in whose favor a judgment is entered, regardless of whether judgment
is entered on all claims asserted by such party and regardless of the amount of the judgment; or where, due to the assertion of
counterclaims, judgments are entered in favor of and against both parties, then the arbitrator shall determine the “prevailing
party” by taking into account the relative dollar amounts of the judgments or, if the judgments involve nonmonetary relief,
the relative importance and value of such relief. Nothing herein shall restrict or impair an arbitrator’s or a court’s
power to award fees and expenses for frivolous or bad faith pleading. If (i) the Note is placed in the hands of an attorney for
collection or enforcement prior to commencing arbitration or legal proceedings, or is collected or enforced through any arbitration
or legal proceeding, or Investor otherwise takes action to collect amounts due under the Note or to enforce the provisions of
the Note, or (ii) there occurs any bankruptcy, reorganization, receivership of Company or other proceedings affecting Company’s
creditors’ rights and involving a claim under the Note; then Company shall pay the reasonable costs incurred by Investor
for such collection, enforcement or action or in connection with such bankruptcy, reorganization, receivership or other proceeding,
including, without limitation, attorneys’ fees, expenses, deposition costs, and disbursements.


 


7.18.         
Waiver. No waiver of any provision of this Agreement shall be effective unless it is in the form of a writing signed by
the party granting the waiver. No waiver of any provision or consent to any prohibited action shall constitute a waiver of any
other provision or consent to any other prohibited action, whether or not similar. No waiver or consent shall constitute a continuing
waiver or consent or commit a party to provide a waiver or consent in the future except to the extent specifically set forth in
writing.


 


7.19.         
Waiver of Jury Trial. EACH PARTY TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS SUCH PARTY MAY HAVE TO DEMAND
THAT ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, ANY OTHER TRANSACTION DOCUMENT,
OR THE RELATIONSHIPS OF THE PARTIES HERETO BE TRIED BY JURY. THIS WAIVER EXTENDS TO ANY AND ALL RIGHTS TO DEMAND A TRIAL BY JURY
ARISING UNDER COMMON LAW OR ANY APPLICABLE STATUTE, LAW, RULE OR REGULATION. FURTHER, EACH PARTY HERETO ACKNOWLEDGES THAT SUCH
PARTY IS KNOWINGLY AND VOLUNTARILY WAIVING SUCH PARTY’S RIGHT TO DEMAND TRIAL BY JURY.


 


7.20.         
Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of this Agreement
and the other Transaction Documents.


 





    9


     


    




7.21.          Voluntary
Agreement. Each party has carefully read this Agreement and each of the other Transaction Documents and has asked any
questions needed for such party to understand the terms, consequences and binding effect of this Agreement and each of
the other Transaction Documents and fully understand them. Each party has had the opportunity to seek the advice of an
attorney of such party’s choosing, or has waived the right to do so, and is executing this Agreement and each of the
other Transaction Documents voluntarily and without any duress or undue influence by the other party or anyone
else.


 


[Remainder
of page intentionally left blank; signature page follows]


 




    10


     


    

IN
WITNESS WHEREOF, the undersigned Investor and Company have caused this Agreement to be duly executed as of the date first above
written.


 


SUBSCRIPTION
AMOUNT:


 





	Principal Amount of Note: 	$5,520,000.00
	 	 
	Initial Cash Purchase Price: 	$3,500,000.00



  





	 	INVESTOR:
	 	 
	 	Streeterville
    Capital, LLC
	 	 	 
	 	By:	 
	 	 	John M. Fife, President



 


	 	COMPANY:
	 	 
	 	Monaker
    Group, Inc.
	 	 	 
	 	By:	 
	 	Name:	Bill kerby
	 	Title:	CEO




 


ATTACHED
EXHIBITS:


 


Exhibit
A                   Note


Exhibit
B                   Investor Note


Exhibit C                   Security Agreement


Exhibit
D                   Secretary’s Certificate


Exhibit
E                   Arbitration Provisions


 


[Signature
Page to Note Purchase Agreement]


 




    


     


    

EXHIBIT
E


 


ARBITRATION
PROVISIONS


 


1.     Dispute Resolution. For purposes of this Exhibit E, the term “Claims” means any disputes, claims,
demands, causes of action, requests for injunctive relief, requests for specific performance, liabilities, damages, losses, or
controversies whatsoever arising from, related to, or connected with the transactions contemplated in the Transaction Documents
and any communications between the parties related thereto, including without limitation any claims of mutual mistake, mistake,
fraud, misrepresentation, failure of formation, failure of consideration, promissory estoppel, unconscionability, failure of condition
precedent, rescission, and any statutory claims, tort claims, contract claims, or claims to void, invalidate or terminate the
Agreement (or these Arbitration Provisions (defined below)) or any of the other Transaction Documents. The parties to this Agreement
(the “parties”) hereby agree that the Claims may be arbitrated in one or more Arbitrations pursuant to these
Arbitration Provisions (one for an injunction or injunctions and a separate one for all other Claims). The parties hereby agree
that the arbitration provisions set forth in this Exhibit E (“Arbitration Provisions”) are binding on
each of them. As a result, any attempt to rescind the Agreement (or these Arbitration Provisions) or declare the Agreement (or
these Arbitration Provisions) or any other Transaction Document invalid or unenforceable for any reason is subject to these Arbitration
Provisions. These Arbitration Provisions shall also survive any termination or expiration of the Agreement. Any capitalized term
not defined in these Arbitration Provisions shall have the meaning set forth in the Agreement.


 


2.     Arbitration. Except as otherwise provided herein, all Claims must be submitted to arbitration (“Arbitration”)
to be conducted exclusively in Salt Lake County, Utah and pursuant to the terms set forth in these Arbitration Provisions. Subject
to the arbitration appeal right provided for in Paragraph 5 below (the “Appeal Right”), the parties agree that
the award of the arbitrator rendered pursuant to Paragraph 4 below (the “Arbitration Award”) shall be (a) final
and binding upon the parties, (b) the sole and exclusive remedy between them regarding any Claims, counterclaims, issues, or accountings
presented or pleaded to the arbitrator, and (c) promptly payable in United States dollars free of any tax, deduction or offset
(with respect to monetary awards). Subject to the Appeal Right, any costs or fees, including without limitation attorneys’
fees, incurred in connection with or incident to enforcing the Arbitration Award shall, to the maximum extent permitted by law,
be charged against the party resisting such enforcement. The Arbitration Award shall include default interest (as defined or otherwise
provided for in the Note, “Default Interest”) (with respect to monetary awards) at the rate specified in the
Note for Default Interest both before and after the Arbitration Award. Judgment upon the Arbitration Award will be entered and
enforced by any state or federal court sitting in Salt Lake County, Utah.


 


3.     The Arbitration Act. The parties hereby incorporate herein the provisions and procedures set forth in the Utah Uniform
Arbitration Act, U.C.A. § 78B-11-101 et seq. (as amended or superseded from time to time, the “Arbitration
Act”). Notwithstanding the foregoing, pursuant to, and to the maximum extent permitted by, Section 105 of the Arbitration
Act, in the event of conflict or variation between the terms of these Arbitration Provisions and the provisions of the Arbitration
Act, the terms of these Arbitration Provisions shall control and the parties hereby waive or otherwise agree to vary the effect
of all requirements of the Arbitration Act that may conflict with or vary from these Arbitration Provisions.


 


4.     Arbitration Proceedings. Arbitration between the parties will be subject to the following:


 


4.1          
Initiation of Arbitration. Pursuant to Section 110 of the Arbitration Act, the parties agree that a party may initiate
Arbitration by giving written notice to the other party (“Arbitration Notice”) in the same manner that notice
is permitted under Section 7.12 of the Agreement; provided, however, that the Arbitration Notice may not be given by email
or fax. Arbitration will be deemed initiated as of the date that the Arbitration Notice is deemed delivered to such other party
under Section 7.12 of the Agreement (the “Service Date”). After the Service Date, information may be delivered,
and notices may be given, by email or fax pursuant to Section 7.12 of the Agreement or any other method permitted thereunder.
The Arbitration Notice must describe the nature of the controversy, the remedies sought, and the election to commence Arbitration
proceedings. All Claims in the Arbitration Notice must be pleaded consistent with the Utah Rules of Civil Procedure.


 




    
Arbitration Provisions, Page 1



     


    

 


4.2
      Selection and Payment of Arbitrator.


 


(a)  
Within ten (10) calendar days after the Service Date, Investor shall select and submit to Company the names of three (3) arbitrators
that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com)
(such three (3) designated persons hereunder are referred to herein as the “Proposed Arbitrators”). For the
avoidance of doubt, each Proposed Arbitrator must be qualified as a “neutral” with Utah ADR Services. Within five
(5) calendar days after Investor has submitted to Company the names of the Proposed Arbitrators, Company must select, by written
notice to Investor, one (1) of the Proposed Arbitrators to act as the arbitrator for the parties under these Arbitration Provisions.
If Company fails to select one of the Proposed Arbitrators in writing within such 5-day period, then Investor may select the arbitrator
from the Proposed Arbitrators by providing written notice of such selection to Company.


 


(b)   
If Investor fails to submit to Company the Proposed Arbitrators within ten (10) calendar days after the Service Date pursuant
to subparagraph (a) above, then Company may at any time prior to Investor so designating the Proposed Arbitrators, identify
the names of three (3) arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Service
by written notice to Investor. Investor may then, within five (5) calendar days after Company has submitted notice of its
Proposed Arbitrators to Investor, select, by written notice to Company, one (1) of the Proposed Arbitrators to act as the
arbitrator for the parties under these Arbitration Provisions. If Investor fails to select in writing and within such 5-day
period one (1) of the three (3) Proposed Arbitrators selected by Company, then Company may select the arbitrator from its
three (3) previously selected Proposed Arbitrators by providing written notice of such selection to Investor.


 


(c)  
If a Proposed Arbitrator chosen to serve as arbitrator declines or is otherwise unable to serve as arbitrator, then the party
that selected such Proposed Arbitrator may select one (1) of the other three (3) Proposed Arbitrators within three (3) calendar
days of the date the chosen Proposed Arbitrator declines or notifies the parties he or she is unable to serve as arbitrator. If
all three (3) Proposed Arbitrators decline or are otherwise unable to serve as arbitrator, then the arbitrator selection process
shall begin again in accordance with this Paragraph 4.2.


 


(d)  
The date that the Proposed Arbitrator selected pursuant to this Paragraph 4.2 agrees in writing (including via email) delivered
to both parties to serve as the arbitrator hereunder is referred to herein as the “Arbitration Commencement Date”.
If an arbitrator resigns or is unable to act during the Arbitration, a replacement arbitrator shall be chosen in accordance with
this Paragraph 4.2 to continue the Arbitration. If Utah ADR Services ceases to exist or to provide a list of neutrals and there
is no successor thereto, then the arbitrator shall be selected under the then prevailing rules of the American Arbitration Association.


 


(e)  
Subject to Paragraph 4.10 below, the cost of the arbitrator must be paid equally by both parties. Subject to Paragraph 4.10 below,
if one party refuses or fails to pay its portion of the arbitrator fee, then the other party can advance such unpaid amount (subject
to the accrual of Default Interest thereupon), with such amount being added to or subtracted from, as applicable, the Arbitration
Award.


 


4.3      Applicability of Certain Utah Rules. The parties agree that the Arbitration shall be conducted generally in accordance
with the Utah Rules of Civil Procedure and the Utah Rules of Evidence. More specifically, the Utah Rules of Civil Procedure shall
apply, without limitation, to the filing of any pleadings, motions or memoranda, the conducting of discovery, and the taking of
any depositions. The Utah Rules of Evidence shall apply to any hearings, whether telephonic or in person, held by the arbitrator.
Notwithstanding the foregoing, it is the parties’ intent that the incorporation of such rules will in no event supersede
these Arbitration Provisions. In the event of any conflict between the Utah Rules of Civil Procedure or the Utah Rules of Evidence
and these Arbitration Provisions, these Arbitration Provisions shall control.


 


4.4      Answer and Default. An answer and any counterclaims to the Arbitration Notice shall be required to be delivered to the
party initiating the Arbitration within twenty (20) calendar days after the Arbitration Commencement Date. If an answer is not
delivered by the required deadline, the arbitrator must provide written notice to the defaulting party stating that the arbitrator
will enter a default award against such party if such party does not file an answer within five (5) calendar days of receipt of
such notice. If an answer is not filed within the five (5) day extension period, the arbitrator must render a default award, consistent
with the relief requested in the Arbitration Notice, against a party that fails to submit an answer within such time period.


 






    
Arbitration Provisions, Page 2



     


    

 


4.5      Related
Litigation. The party that delivers the Arbitration Notice to the other party shall have the option to also commence concurrent
legal proceedings with any state or federal court sitting in Salt Lake County, Utah (“Litigation Proceedings”),
subject to the following: (a) the complaint in the Litigation Proceedings is to be substantially similar to the claims set forth
in the Arbitration Notice, provided that an additional cause of action to compel arbitration will also be included therein, (b)
so long as the other party files an answer to the complaint in the Litigation Proceedings and an answer to the Arbitration Notice,
the Litigation Proceedings will be stayed pending an Arbitration Award (or Appeal Panel Award (defined below), as applicable)
hereunder, (c) if the other party fails to file an answer in the Litigation Proceedings or an answer in the Arbitration proceedings,
then the party initiating Arbitration shall be entitled to a default judgment consistent with the relief requested, to be entered
in the Litigation Proceedings, and (d) any legal or procedural issue arising under the Arbitration Act that requires a decision
of a court of competent jurisdiction may be determined in the Litigation Proceedings. Any award of the arbitrator (or of the Appeal
Panel (defined below)) may be entered in such Litigation Proceedings pursuant to the Arbitration Act.


 


4.6      Discovery.
Pursuant to Section 118(8) of the Arbitration Act, the parties agree that discovery shall be conducted as follows:


 


(a)  
Written discovery will only be allowed if the likely benefits of the proposed written discovery outweigh the burden or expense
thereof, and the written discovery sought is likely to reveal information that will satisfy a specific element of a claim or defense
already pleaded in the Arbitration. The party seeking written discovery shall always have the burden of showing that all of the
standards and limitations set forth in these Arbitration Provisions are satisfied. The scope of discovery in the Arbitration proceedings
shall also be limited as follows:


 


(i)        To facts directly connected with the transactions contemplated by the Agreement.


 


(ii)       To facts and information that cannot be obtained from another source or in another manner that is more convenient, less burdensome
or less expensive than in the manner requested.


 


(b) No party shall be allowed (i) more than fifteen (15) interrogatories (including
discrete subparts), (ii) more than fifteen (15) requests for admission (including discrete subparts), (iii) more than ten (10)
document requests (including discrete subparts), or (iv) more than three (3) depositions (excluding expert depositions) for a
maximum of seven (7) hours per deposition. The costs associated with depositions will be borne by the party taking the deposition.
The party defending the deposition will submit a notice to the party taking the deposition of the estimated attorneys’ fees
that such party expects to incur in connection with defending the deposition. If the party defending the deposition fails to submit
an estimate of attorneys’ fees within five (5) calendar days of its receipt of a deposition notice, then such party shall
be deemed to have waived its right to the estimated attorneys’ fees. The party taking the deposition must pay the party
defending the deposition the estimated attorneys’ fees prior to taking the deposition, unless such obligation is deemed
to be waived as set forth in the immediately preceding sentence. If the party taking the deposition believes that the estimated
attorneys’ fees are unreasonable, such party may submit the issue to the arbitrator for a decision. All depositions will
be taken in Utah.


 


(c)  
All discovery requests (including document production requests included in deposition notices) must be submitted in writing
to the arbitrator and the other party. The party submitting the written discovery requests must include with such discovery
requests a detailed explanation of how the proposed discovery requests satisfy the requirements of these Arbitration
Provisions and the Utah Rules of Civil Procedure. The receiving party will then be allowed, within five (5) calendar days of
receiving the proposed discovery requests, to submit to the arbitrator an estimate of the attorneys’ fees and costs
associated with responding to such written discovery requests and a written challenge to each applicable discovery request.
After receipt of an estimate of attorneys’ fees and costs and/or challenge(s) to one or more discovery requests,
consistent with subparagraph (c) above, the arbitrator will within three (3) calendar days make a finding as to the likely
attorneys’ fees and costs associated with responding to the discovery requests and issue an order that (i) requires the
requesting party to prepay the attorneys’ fees and costs associated with responding to the discovery requests, and (ii)
requires the responding party to respond to the discovery requests as limited by the arbitrator within twenty-five (25)
calendar days of the arbitrator’s finding with respect to such discovery requests. If a party entitled to submit an
estimate of attorneys’ fees and costs and/or a challenge to discovery requests fails to do so within such 5-day period,
the arbitrator will make a finding that (A) there are no attorneys’ fees or costs associated with responding to such
discovery requests, and (B) the responding party must respond to such discovery requests (as may be limited by the
arbitrator) within twenty-five (25) calendar days of the arbitrator’s finding with respect to such discovery requests.
Any party submitting any written discovery requests, including without limitation interrogatories, requests for production
subpoenas to a party or a third party, or requests for admissions, must prepay the estimated attorneys’ fees and costs,
before the responding party has any obligation to produce or respond to the same, unless such obligation is deemed waived as
set forth above.


 






    
Arbitration Provisions, Page 3



     


    

 


(d)  
In order to allow a written discovery request, the arbitrator must find that the discovery request satisfies the standards set
forth in these Arbitration Provisions and the Utah Rules of Civil Procedure. The arbitrator must strictly enforce these standards.
If a discovery request does not satisfy any of the standards set forth in these Arbitration Provisions or the Utah Rules of Civil
Procedure, the arbitrator may modify such discovery request to satisfy the applicable standards, or strike such discovery request
in whole or in part.


 


(e)  
Each party may submit expert reports (and rebuttals thereto), provided that such reports must be submitted within sixty (60) days
of the Arbitration Commencement Date. Each party will be allowed a maximum of two (2) experts. Expert reports must contain the
following: (i) a complete statement of all opinions the expert will offer at trial and the basis and reasons for them; (ii) the
expert’s name and qualifications, including a list of all the expert’s publications within the preceding ten (10)
years, and a list of any other cases in which the expert has testified at trial or in a deposition or prepared a report within
the preceding ten (10) years; and (iii) the compensation to be paid for the expert’s report and testimony. The parties are
entitled to depose any other party’s expert witness one (1) time for no more than four (4) hours. An expert may not testify
in a party’s case-in-chief concerning any matter not fairly disclosed in the expert report.


 


4.6      Dispositive Motions. Each party shall have the right to submit dispositive motions pursuant Rule 12 or Rule 56 of the Utah
Rules of Civil Procedure (a “Dispositive Motion”). The party submitting the Dispositive Motion may, but is
not required to, deliver to the arbitrator and to the other party a memorandum in support (the “Memorandum in Support”)
of the Dispositive Motion. Within seven (7) calendar days of delivery of the Memorandum in Support, the other party shall deliver
to the arbitrator and to the other party a memorandum in opposition to the Memorandum in Support (the “Memorandum in
Opposition”). Within seven (7) calendar days of delivery of the Memorandum in Opposition, as applicable, the party that
submitted the Memorandum in Support shall deliver to the arbitrator and to the other party a reply memorandum to the Memorandum
in Opposition (“Reply Memorandum”). If the applicable party shall fail to deliver the Memorandum in Opposition
as required above, or if the other party fails to deliver the Reply Memorandum as required above, then the applicable party shall
lose its right to so deliver the same, and the Dispositive Motion shall proceed regardless.


 


4.7      Confidentiality. All information disclosed by either party (or such party’s agents) during the Arbitration process
(including without limitation information disclosed during the discovery process or any Appeal (defined below)) shall be considered
confidential in nature. Each party agrees not to disclose any confidential information received from the other party (or its agents)
during the Arbitration process (including without limitation during the discovery process or any Appeal) unless (a) prior to or
after the time of disclosure such information becomes public knowledge or part of the public domain, not as a result of any inaction
or action of the receiving party or its agents, (b) such information is required by a court order, subpoena or similar legal duress
to be disclosed if such receiving party has notified the other party thereof in writing and given it a reasonable opportunity
to obtain a protective order from a court of competent jurisdiction prior to disclosure, or (c) such information is disclosed
to the receiving party’s agents, representatives and legal counsel on a need to know basis who each agree in writing not
to disclose such information to any third party. Pursuant to Section 118(5) of the Arbitration Act, the arbitrator is hereby authorized
and directed to issue a protective order to prevent the disclosure of privileged information and confidential information upon
the written request of either party.


 


4.8      Authorization; Timing; Scheduling Order. Subject to all other portions of these Arbitration Provisions, the parties hereby
authorize and direct the arbitrator to take such actions and make such rulings as may be necessary to carry out the parties’
intent for the Arbitration proceedings to be efficient and expeditious. Pursuant to Section 120 of the Arbitration Act, the parties
hereby agree that an Arbitration Award must be made within one hundred twenty (120) calendar days after the Arbitration Commencement
Date. The arbitrator is hereby authorized and directed to hold a scheduling conference within ten (10) calendar days after the
Arbitration Commencement Date in order to establish a scheduling order with various binding deadlines for discovery, expert testimony,
and the submission of documents by the parties to enable the arbitrator to render a decision prior to the end of such 120-day
period.


 


4.9       Relief.
The arbitrator shall have the right to award or include in the Arbitration Award (or in a preliminary ruling) any relief
which the arbitrator deems proper under the circumstances, including, without limitation, specific performance and
injunctive relief, provided that the arbitrator may not award exemplary or punitive damages.


 






    
Arbitration Provisions, Page 4



     


    

 


4.10     Fees and Costs. As part of the Arbitration Award, the arbitrator is hereby directed to require the losing party (the party
being awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard
to any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs
and fees of the Arbitration, and (b) reimburse the prevailing party for all reasonable attorneys’ fees, arbitrator costs
and fees, deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing
party in connection with the Arbitration.


 


5.     Arbitration Appeal.


 


5.1      Initiation of Appeal. Following the entry of the Arbitration Award, either party (the “Appellant”) shall
have a period of thirty (30) calendar days in which to notify the other party (the “Appellee”), in writing,
that the Appellant elects to appeal (the “Appeal”) the Arbitration Award (such notice, an “Appeal
Notice”) to a panel of arbitrators as provided in Paragraph 5.2 below. The date the Appellant delivers an Appeal Notice
to the Appellee is referred to herein as the “Appeal Date”. The Appeal Notice must be delivered to the Appellee
in accordance with the provisions of Paragraph 4.1 above with respect to delivery of an Arbitration Notice. In addition, together
with delivery of the Appeal Notice to the Appellee, the Appellant must also pay for (and provide proof of such payment to the
Appellee together with delivery of the Appeal Notice) a bond in the amount of 110% of the sum the Appellant owes to the Appellee
as a result of the Arbitration Award the Appellant is appealing. In the event an Appellant delivers an Appeal Notice to the Appellee
(together with proof of payment of the applicable bond) in compliance with the provisions of this Paragraph 5.1, the Appeal will
occur as a matter of right and, except as specifically set forth herein, will not be further conditioned. In the event a party
does not deliver an Appeal Notice (along with proof of payment of the applicable bond) to the other party within the deadline
prescribed in this Paragraph 5.1, such party shall lose its right to appeal the Arbitration Award. If no party delivers an Appeal
Notice (along with proof of payment of the applicable bond) to the other party within the deadline described in this Paragraph
5.1, the Arbitration Award shall be final. The parties acknowledge and agree that any Appeal shall be deemed part of the parties’
agreement to arbitrate for purposes of these Arbitration Provisions and the Arbitration Act.


 


5.2      Selection and Payment of Appeal Panel. In the event an Appellant delivers an Appeal Notice to the Appellee (together with
proof of payment of the applicable bond) in compliance with the provisions of Paragraph 5.1 above, the Appeal will be heard by
a three (3) person arbitration panel (the “Appeal Panel”).


 


(a)      Within ten (10) calendar days after the Appeal Date, the Appellee shall select and submit to the Appellant the names of five (5)
arbitrators that are designated as “neutrals” or qualified arbitrators by Utah ADR Services (http://www.utahadrservices.com)
(such five (5) designated persons hereunder are referred to herein as the “Proposed Appeal Arbitrators”). For
the avoidance of doubt, each Proposed Appeal Arbitrator must be qualified as a “neutral” with Utah ADR Services, and
shall not be the arbitrator who rendered the Arbitration Award being appealed (the “Original Arbitrator”).
Within five (5) calendar days after the Appellee has submitted to the Appellant the names of the Proposed Appeal Arbitrators,
the Appellant must select, by written notice to the Appellee, three (3) of the Proposed Appeal Arbitrators to act as the members
of the Appeal Panel. If the Appellant fails to select three (3) of the Proposed Appeal Arbitrators in writing within such 5-day
period, then the Appellee may select such three (3) arbitrators from the Proposed Appeal Arbitrators by providing written notice
of such selection to the Appellant.


 


(b)      If the Appellee fails to submit to the Appellant the names of the Proposed Appeal Arbitrators within ten (10) calendar days
after the Appeal Date pursuant to subparagraph (a) above, then the Appellant may at any time prior to the Appellee so
designating the Proposed Appeal Arbitrators, identify the names of five (5) arbitrators that are designated as
“neutrals” or qualified arbitrators by Utah ADR Service (none of whom may be the Original Arbitrator) by written
notice to the Appellee. The Appellee may then, within five (5) calendar days after the Appellant has submitted notice of its
selected arbitrators to the Appellee, select, by written notice to the Appellant, three (3) of such selected arbitrators to
serve on the Appeal Panel. If the Appellee fails to select in writing within such 5-day period three (3) of the arbitrators
selected by the Appellant to serve as the members of the Appeal Panel, then the Appellant may select the three (3) members of
the Appeal Panel from the Appellant’s list of five (5) arbitrators by providing written notice of such selection to the
Appellee.


 




    
Arbitration Provisions, Page 5



     


    

(c)      If a selected Proposed Appeal Arbitrator declines or is otherwise unable to serve, then the party that selected such Proposed
Appeal Arbitrator may select one (1) of the other five (5) designated Proposed Appeal Arbitrators within three (3) calendar days
of the date a chosen Proposed Appeal Arbitrator declines or notifies the parties he or she is unable to serve as an arbitrator.
If at least three (3) of the five (5) designated Proposed Appeal Arbitrators decline or are otherwise unable to serve, then the
Proposed Appeal Arbitrator selection process shall begin again in accordance with this Paragraph 5.2; provided, however,
that any Proposed Appeal Arbitrators who have already agreed to serve shall remain on the Appeal Panel.


 


   (d)       The
date that all three (3) Proposed Appeal Arbitrators selected pursuant to this Paragraph 5.2   agree in writing (including
via email) delivered to both the Appellant and the Appellee to serve as members of the Appeal Panel hereunder is referred to herein
as the “Appeal Commencement Date”. No later than five (5) calendar days after the Appeal Commencement Date,
the Appellee shall designate in writing (including via email) to the Appellant and the Appeal Panel the name of one (1) of the
three (3) members of the Appeal Panel to serve as the lead arbitrator in the Appeal proceedings. Each member of the Appeal Panel
shall be deemed an arbitrator for purposes of these Arbitration Provisions and the Arbitration Act, provided that, in conducting
the Appeal, the Appeal Panel may only act or make determinations upon the approval or vote of no less than the majority vote of
its members, as announced or communicated by the lead arbitrator on the Appeal Panel. If an arbitrator on the Appeal Panel ceases
or is unable to act during the Appeal proceedings, a replacement arbitrator shall be chosen in accordance with Paragraph 5.2 above
to continue the Appeal as a member of the Appeal Panel. If Utah ADR Services ceases to exist or to provide a list of neutrals,
then the arbitrators for the Appeal Panel shall be selected under the then prevailing rules of the American Arbitration Association.


 


   (d)       Subject to Paragraph 5.7 below, the cost of the Appeal Panel must be paid entirely by the Appellant.


 


5.3      Appeal
Procedure. The Appeal will be deemed an appeal of the entire Arbitration Award. In conducting the Appeal, the Appeal Panel
shall conduct a de novo review of all Claims described or otherwise set forth in the Arbitration Notice. Subject to the foregoing
and all other provisions of this Paragraph 5, the Appeal Panel shall conduct the Appeal in a manner the Appeal Panel considers
appropriate for a fair and expeditious disposition of the Appeal, may hold one or more hearings and permit oral argument, and
may review all previous evidence and discovery, together with all briefs, pleadings and other documents filed with the Original
Arbitrator (as well as any documents filed with the Appeal Panel pursuant to Paragraph 5.4(a) below). Notwithstanding the foregoing,
in connection with the Appeal, the Appeal Panel shall not permit the parties to conduct any additional discovery or raise any
new Claims to be arbitrated, shall not permit new witnesses or affidavits, and shall not base any of its findings or determinations
on the Original Arbitrator’s findings or the Arbitration Award.


 


5.4    Timing.


 


   (a)         
Within seven (7) calendar days of the Appeal Commencement Date, the Appellant (i) shall deliver or cause to be delivered to the
Appeal Panel copies of the Appeal Notice, all discovery conducted in connection with the Arbitration, and all briefs, pleadings
and other documents filed with the Original Arbitrator (which material Appellee shall have the right to review and supplement
if necessary), and (ii) may, but is not required to, deliver to the Appeal Panel and to the Appellee a Memorandum in Support of
the Appellant’s arguments concerning or position with respect to all Claims, counterclaims, issues, or accountings presented
or pleaded in the Arbitration. Within seven (7) calendar days of the Appellant’s delivery of the Memorandum in Support,
as applicable, the Appellee shall deliver to the Appeal Panel and to the Appellant a Memorandum in Opposition to the Memorandum
in Support. Within seven (7) calendar days of the Appellee’s delivery of the Memorandum in Opposition, as applicable, the
Appellant shall deliver to the Appeal Panel and to the Appellee a Reply Memorandum to the Memorandum in Opposition. If the Appellant
shall fail to substantially comply with the requirements of clause (i) of this subparagraph (a), the Appellant shall lose its
right to appeal the Arbitration Award, and the Arbitration Award shall be final. If the Appellee shall fail to deliver the Memorandum
in Opposition as required above, or if the Appellant shall fail to deliver the Reply Memorandum as required above, then the Appellee
or the Appellant, as the case may be, shall lose its right to so deliver the same, and the Appeal shall proceed regardless.


 


  (b)          
Subject to subparagraph (a) above, the parties hereby agree that the Appeal must be heard by the Appeal Panel within thirty (30)
calendar days of the Appeal Commencement Date, and that the Appeal Panel must render its decision within thirty (30) calendar
days after the Appeal is heard (and in no event later than sixty (60) calendar days after the Appeal Commencement Date).


 




    
Arbitration Provisions, Page 6



     


    

5.5      Appeal Panel Award. The Appeal Panel shall issue its decision (the “Appeal Panel Award”) through the
lead arbitrator on the Appeal Panel. Notwithstanding any other provision contained herein, the Appeal Panel Award shall (a) supersede
in its entirety and make of no further force or effect the Arbitration Award (provided that any protective orders issued by the
Original Arbitrator shall remain in full force and effect), (b) be final and binding upon the parties, with no further rights
of appeal, (c) be the sole and exclusive remedy between the parties regarding any Claims, counterclaims, issues, or accountings
presented or pleaded in the Arbitration, and (d) be promptly payable in United States dollars free of any tax, deduction or offset
(with respect to monetary awards). Any costs or fees, including without limitation attorneys’ fees, incurred in connection
with or incident to enforcing the Appeal Panel Award shall, to the maximum extent permitted by law, be charged against the party
resisting such enforcement. The Appeal Panel Award shall include Default Interest (with respect to monetary awards) at the rate
specified in the Note for Default Interest both before and after the Arbitration Award. Judgment upon the Appeal Panel Award will
be entered and enforced by a state or federal court sitting in Salt Lake County, Utah.


 


5.6      Relief. The Appeal Panel shall have the right to award or include in the Appeal Panel Award any relief which the Appeal
Panel deems proper under the circumstances, including, without limitation, specific performance and injunctive relief, provided
that the Appeal Panel may not award exemplary or punitive damages.


 


5.7      Fees
and Costs. As part of the Appeal Panel Award, the Appeal Panel is hereby directed to require the losing party (the party being
awarded the least amount of money by the arbitrator, which, for the avoidance of doubt, shall be determined without regard to
any statutory fines, penalties, fees, or other charges awarded to any party) to (a) pay the full amount of any unpaid costs and
fees of the Arbitration and the Appeal Panel, and (b) reimburse the prevailing party (the party being awarded the most amount
of money by the Appeal Panel, which, for the avoidance of doubt, shall be determined without regard to any statutory fines, penalties,
fees, or other charges awarded to any part) the reasonable attorneys’ fees, arbitrator and Appeal Panel costs and fees,
deposition costs, other discovery costs, and other expenses, costs or fees paid or otherwise incurred by the prevailing party
in connection with the Arbitration (including without limitation in connection with the Appeal).


 


6.    Miscellaneous.


 


6.1      Severability. If any part of these Arbitration Provisions is found to violate or be illegal under applicable law, then
such provision shall be modified to the minimum extent necessary to make such provision enforceable under applicable law, and
the remainder of the Arbitration Provisions shall remain unaffected and in full force and effect.


 


6.2      Governing Law. These Arbitration Provisions shall be governed by the laws of the State of Utah without regard to the conflict
of laws principles therein.


 


6.3      Interpretation. The headings of these Arbitration Provisions are for convenience of reference only and shall not form part
of, or affect the interpretation of, these Arbitration Provisions.


 


6.4      Waiver. No waiver of any provision of these Arbitration Provisions shall be effective unless it is in the form of a writing
signed by the party granting the waiver.


 


6.5    
 Time is of the Essence. Time is expressly made of the essence with respect to each and every provision of these Arbitration
Provisions.


 


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