NextPlay Technologies, Inc. 8-K


 


Exhibit 10.1


 


EXECUTION
COPY


 


EXCHANGE
AGREEMENT


 


This
Exchange Agreement (the “Agreement”) is entered into as of this 22nd day of September, 2021, by and between
NextPlay Technologies, Inc. (f/k/a Monaker Group, Inc.), a Nevada corporation with offices located at 1560 Sawgrass Corporate
Parkway, Suite 130, Sunrise, Florida 33323 (the “Company”), and the Holder signatory hereto (the “Holder”),
with reference to the following facts:


 


A.       Prior
to the date hereof, (i) pursuant to that certain Securities Purchase Agreement, dated as of September 28, 2018, by and between
the Company and the investors party thereto (as amended, the “Securities Purchase Agreement”), the Company
issued to the Holder, among other things, a Common Stock Purchase Warrant to acquire such aggregate number of shares of Common
Stock (defined in the Securities Purchase Agreement) as set forth on the signature page of the Holder attached hereto (the “Existing
Warrant”). Capitalized terms used but not otherwise defined herein shall have the meanings as set forth in the Securities
Purchase Agreement (as amended hereby) and (ii) in accordance with Section 3(e) of the Existing Warrant, the Holder has elected
to require the redemption of this Warrant for a cash payment of the Black Scholes Value (as defined in the Warrant) (the “Existing
Required Payment”).


 


B.       In
lieu of the Existing Required Payment, the Company and the Holder desire, on the basis and subject to the terms and conditions
set forth in this Agreement, to exchange (the “Exchange” or the “Transaction”) the Existing
Warrant for a promissory note in the form attached hereto as Exhibit A for such aggregate principal amount as set forth
on the signature page of the Holder attached hereto (the “New Note”). The New Note and this Agreement and such
other documents and certificates related thereto are collectively referred to herein as the “Exchange Documents.”


 


C.       The
Exchange is being made in reliance upon the exemption from registration requirements of the Securities Act of 1933, as amended
(the “1933 Act”), provided by Section 3(a)(9) promulgated thereunder.


 


NOW,
THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the sufficiency of which
is acknowledged by the parties, the parties hereto agree as follows:


 


1.                 
Exchange. Immediately following the Effective Time (as defined below), in lieu of the Existing Required Payment
and in connection with the consummation of the Exchange pursuant to Section 3(a)(9) of the 1933 Act, (a) the Holder hereby
conveys, assigns and transfers the Existing Warrant to the Company in exchange for which the Company agrees to issue the New Note
to the Holder and (b) in exchange for the Existing Warrant, the Company shall issue and deliver the New Note to the Holder.


 


2.                 
Delivery of New Note; Effective Time.


 


(a)              
 Within five (5) Trading Days after the Effective Time, the Company shall deliver a certificate evidencing the New Note to
the Holder. Notwithstanding the foregoing, as of the Effective Time, the Holder shall be deemed for all corporate purposes to
have become the holder of record of the New Note and shall be entitled to exercise all of its rights with respect to the New Note
and, irrespective of the date the Company delivers the actual certificate evidencing such New Note to the Holder.


 






     

     


    

 (b)              
 On or prior to the Effective Time, the Company shall pay the Legal Fee Amount (as defined below) to Kelley Drye & Warren,
LLP in accordance with the invoice attached hereto as Schedule 2(b).


 


(c)                This
Agreement shall be deemed to be effective (the “Effective Time”) upon the time of full execution and delivery
by the parties hereto of this Agreement and the other Exchange Documents.


 


3.                 
Ratifications; Incorporation of Terms under Transaction Documents.


 


(a)              
Ratifications. Except as otherwise expressly provided herein, the Securities Purchase Agreement, and each other Transaction
Document, is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all respects, except
that on and after the date hereof: (i) all references in the Securities Purchase Agreement to “this Agreement,” “hereto,”
“hereof,” “hereunder” or words of like import referring to the Securities Purchase Agreement shall mean
the Securities Purchase Agreement as amended by this Agreement, and (ii) all references in the other Transaction Documents to
the “Securities Purchase Agreement,” “thereto,” “thereof,” “thereunder” or words
of like import referring to the Securities Purchase Agreement shall mean the Securities Purchase Agreement as amended by this
Agreement and the Exchange Documents.


 


(b)              
Amendments and Incorporation of Terms under Transaction Documents. Effective as of the Effective Time, the Securities Purchase
Agreement and each of the other Transaction Documents are hereby amended as follows (and any such agreements, covenants and related
provisions therein shall be deemed incorporated by reference herein, mutatis mutandis, as amended as such):


 


(i)The
defined term “Warrants” is hereby amended to include the New Note (as defined herein), except for those set forth
in Section 3.1(f) of the Securities Purchase Agreement as relates to the Registration Statement.


 


(ii)The
defined term “Transaction Documents” is hereby amended to include this Agreement and the Exchange Documents.


 


4.                 
Representations and Warranties. Except as set forth in the correspondingly numbered Section of the Disclosure Schedules,
the Company represents and warrants to Holder that the statements contained in this Section 4 are true
and correct as of the date hereof and will be at the Effective Time:


 


(a)              
Organization and Qualification. Each of the Company and each of its Subsidiaries are entities duly organized and validly
existing and in good standing under the laws of the jurisdiction in which they are formed, and have the requisite power and authority
to own their properties and to carry on their business as now being conducted and as presently proposed to be conducted. Each
of the Company and each of its Subsidiaries is duly qualified as a foreign entity to do business and is in good standing in every
jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material
Adverse Effect (as defined below). As used in this Agreement, “Material Adverse Effect” means any material
adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial
or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated
hereby or in any of the other Exchange Documents or (iii) the authority or ability of the Company or any of its Subsidiaries to
perform any of their respective obligations under any of the Exchange Documents (as defined below). Other than the Persons (as
defined below) listed in the SEC Documents (as defined in Section 4(h) below), the Company has no Subsidiaries. “Subsidiaries”
means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity
or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration
of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.” For purposes
of this Agreement, (x) “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 and (y) “Governmental Entity” means any nation, state, county, city, town, village, district, or other
political jurisdiction of any nature, federal, state, local, municipal, foreign, or other government, governmental or quasi-governmental
authority of any nature (including any governmental agency, branch, department, official, or entity and any court or other tribunal),
multi-national organization or body; or body exercising, or entitled to exercise, any administrative, executive, judicial, legislative,
police, regulatory, or taxing authority or power of any nature or instrumentality of any of the foregoing, including any entity
or enterprise owned or controlled by a government or a public international organization or any of the foregoing.






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(b)              
Authorization and Binding Obligation. The Company has the requisite corporate power and authority to enter into and perform
its obligations under this Agreement and each of the other agreements entered into by the parties hereto in connection with the
transactions contemplated by the Exchange Documents and to consummate the Transactions (including, without limitation, the issuance
of the New Note in accordance with the terms hereof). The execution and delivery of the Exchange Documents by the Company and
the consummation by the Company of the transactions contemplated hereby and thereby, including, without limitation, the issuance
of the New Note in accordance with the terms hereof, has been duly authorized by the Company’s Board of Directors and no
further filing, consent, or authorization is required by the Company, its Board of Directors or its stockholders. This Agreement
and the other Exchange Documents have been duly executed and delivered by the Company, and constitute the legal, valid and binding
obligations of the Company, enforceable against the Company in accordance with their respective terms, except as such enforceability
may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except
as rights to indemnification and to contribution may be limited by federal or state securities laws.


 



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(c)               
No Conflict. The execution, delivery and performance of the Exchange Documents by the Company and the consummation by the
Company of the transactions contemplated hereby and thereby (including, without limitation, the issuance of the New Note in accordance
with the terms hereof) will not (i) result in a violation of any other organizational documents of the Company or any of its Subsidiaries,
any capital stock of the Company or any of its Subsidiaries or bylaws of the Company or any of its Subsidiaries, (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to
others any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or instrument to which
the Company or any of its Subsidiaries is a party, or (iii) to the knowledge of the Company, result in a violation of any law,
rule, regulation, order, judgment or decree (including foreign, federal and state securities laws and regulations and the rules
and regulations of the Nasdaq Capital Market (the “Principal Market”) and including all applicable federal
laws, rules and regulations) applicable to the Company or any of its Subsidiaries or by which any property or asset of the Company
or any of its Subsidiaries is bound or affected.


 


(d)              
No Consents. Neither the Company nor any Subsidiary is required to obtain any consent from, authorization or order of,
or make any filing or registration with the Securities and Exchange Commission (the “SEC”) or state securities
agencies, any court, governmental agency or any regulatory or self-regulatory agency or any other Person in order for it to execute,
deliver or perform any of its respective obligations under or contemplated by this Agreement and the Exchange Documents, in each
case, in accordance with the terms hereof or thereof. All consents, authorizations, orders, filings and registrations which the
Company or any Subsidiary is required to obtain pursuant to the preceding sentence have been obtained or effected on or prior
to the date hereof, and neither the Company nor any of its Subsidiaries are aware of any facts or circumstances which might prevent
the Company or any of its Subsidiaries from obtaining or effecting any of the registration, application or filings contemplated
by the Exchange Documents. The Company is not in violation of the requirements of the Principal Market and has no knowledge of
any facts or circumstances which would reasonably lead to delisting or suspension of the Common Stock in the foreseeable future.


 


(e)              
 Securities Law Exemptions. Assuming the accuracy of the representations and warranties of the Holder contained herein,
the offer and issuance by the Company of the New Note is exempt from registration under the 1933 Act pursuant to the exemption
provided by Rule 3(a)(9) thereof.


 






(f)               
Issuance of New Note. The issuance of the New Note is duly authorized and, upon issuance in accordance with the terms of
this Agreement, the New Note shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights,
mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other
encumbrances (collectively “Encumbrances”) with respect to the issue thereof. The Company intends the New Note
to be a “security” under the 1933 Act.


 



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(g)              
Transfer Taxes. On the date hereof, all share transfer or other taxes (other than income or similar taxes) which are required
to be paid in connection with the issuance of the New Note to be exchanged with the Holder hereunder will be, or will have been,
fully paid or provided for by the Company, and all laws imposing such taxes will be or will have been complied with.


 


(h)              
SEC Documents; Financial Statements. As of the Effective Time, the Company has met all of its filing requirements of periodic
reports under Section 13 or Section 15(d) of Securities Exchange Act of 1934, as amended (the “1934 Act”) (all
of the foregoing filed prior to the date hereof, including without limitation, Current Reports on Form 8-K filed by the Company
with the SEC whether required to be filed or not (but excluding Item 7.01 thereunder), and all exhibits and appendices included
therein (other than Exhibits 99.1 to Form 8-K) and financial statements, notes and schedules thereto and documents incorporated
by reference therein being hereinafter referred to as the “SEC Documents”). Upon request by the Holder, the
Company has delivered or has made available to the Holder or its representatives true, correct and complete copies of each of
the SEC Documents not available on the EDGAR system. As of their respective dates, the SEC Documents complied in all material
respects with the requirements of the 1934 Act and the rules and regulations of the SEC promulgated thereunder applicable to the
SEC Documents, and none of the SEC Documents, at the time they were filed with the SEC, contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading. As of their respective dates, the financial statements
of the Company included in the SEC Documents complied in all material respects with applicable accounting requirements and the
published rules and regulations of the SEC with respect thereto as in effect as of the time of filing. Such financial statements
have been prepared in accordance with generally accepted accounting principles (“GAAP”), consistently applied,
during the periods involved (except (i) as may be otherwise indicated in such financial statements or the notes thereto, or (ii)
in the case of unaudited interim statements, to the extent they may exclude footnotes or may be condensed or summary statements)
and fairly present in all material respects the financial position of the Company as of the dates thereof and the results of its
operations and cash flows for the periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments
which will not be material, either individually or in the aggregate). No other information provided by or on behalf of the Company
to the Holder which is not included in the SEC Documents (including, without limitation, information in the disclosure schedules
to this Agreement) contains any untrue statement of a material fact or omits to state any material fact necessary in order to
make the statements therein not misleading, in the light of the circumstance under which they are or were made. The Company is
not currently contemplating to amend or restate any of the financial statements (including, without limitation, any notes or any
letter of the independent accountants of the Company with respect thereto) included in the SEC Documents (the “Financial
Statements”), nor is the Company currently aware of facts or circumstances which would require the Company to amend
or restate any of the Financial Statements, in each case, in order for any of the Financials Statements to be in compliance with
GAAP and the rules and regulations of the SEC. The Company has not been informed by its independent accountants that they recommend
that the Company amend or restate any of the Financial Statements or that there is any need for the Company to amend or restate
any of the Financial Statements.


 



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(i)                
Absence of Certain Changes. Except as set forth in the SEC Documents, since the date of the Company’s most recent
audited financial statements contained in the Company’s Annual Report on Form 10-K for the fiscal year ended February 28,
2021, there has been no material adverse change and no material adverse development in the business, assets, liabilities, properties,
operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any of its Subsidiaries.
Since the date of the Company’s most recent audited financial statements contained in the Company’s Annual Report
on Form 10-K for the fiscal year ended February 28, 2021, neither the Company nor any of its Subsidiaries has (i) declared or
paid any dividends, (ii) sold any assets, individually or in the aggregate, outside of the ordinary course of business or (iii)
except as disclosed in the SEC Documents, made any capital expenditures, individually or in the aggregate, outside of the ordinary
course of business. Neither the Company nor any of its Subsidiaries has taken any steps to seek protection pursuant to any law
or statute relating to bankruptcy, insolvency, reorganization, receivership, liquidation or winding up, nor does the Company or
any Subsidiary have any knowledge or reason to believe that any of their respective creditors intend to initiate involuntary bankruptcy
proceedings or any actual knowledge of any fact which would reasonably lead a creditor to do so. The Company and its Subsidiaries,
individually and on a consolidated basis, are not as of the date hereof, and after giving effect to the transactions contemplated
hereby to occur on the date hereof, will not be Insolvent (as defined below). For the purpose of this Agreement (x) “Insolvent”
means, (i) with respect to the Company and its Subsidiaries, on a consolidated basis, (A) the present fair saleable value of the
Company’s and its Subsidiaries’ assets is less than the amount required to pay the Company’s and its Subsidiaries’
total Indebtedness (as defined below), (B) the Company and its Subsidiaries are unable to pay their debts and liabilities, subordinated,
contingent or otherwise, as such debts and liabilities become absolute and matured or (C) the Company and its Subsidiaries intend
to incur or believe that they will incur debts that would be beyond their ability to pay as such debts mature; and (ii) with respect
to the Company and each Subsidiary, individually, (A) the present fair saleable value of the Company’s or such Subsidiary’s
(as the case may be) assets is less than the amount required to pay its respective total Indebtedness, (B) the Company or such
Subsidiary (as the case may be) is unable to pay its respective debts and liabilities, subordinated, contingent or otherwise,
as such debts and liabilities become absolute and matured or (C) the Company or such Subsidiary (as the case may be) intends to
incur or believes that it will incur debts that would be beyond its respective ability to pay as such debts mature; (y) “Indebtedness”
of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed
as the deferred purchase price of property or services (including, without limitation, “capital leases” in accordance
with GAAP) (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all
reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations
evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the
acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title
retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds
of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are
limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which,
in connection with GAAP, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness
referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent
or otherwise, to be secured by) any Encumbrance upon or in any property or assets (including accounts and contract rights) owned
by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such
indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to
in clauses (A) through (G) above; and (z) “Contingent Obligation” means, as to any Person, any direct or indirect
liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another
Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance
to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will
be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.


 



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(j)                
No Undisclosed Events, Liabilities, Developments or Circumstances. Except as set forth in the SEC Documents, no event,
liability, development or circumstance has occurred or exists, or is reasonably expected to exist or occur with respect to the
Company, any of its Subsidiaries or any of their respective businesses, properties, liabilities, prospects, operations (including
results thereof) or condition (financial or otherwise), that (i) would be required to be disclosed by the Company under applicable
securities laws on a registration statement on Form S-1 filed with the SEC relating to an issuance and sale by the Company of
its Common Stock and which has not been publicly announced, (ii) would reasonably expected to have a material adverse effect on
the Holder’s investment hereunder or (iii) would reasonably be expected to have a Material Adverse Effect on the Company.


 


(k)              
Conduct of Business; Regulatory Permits. Neither the Company nor any of its Subsidiaries is in violation of any term of
or in default under its Articles of Incorporation, any certificate of designation, preferences or rights of any other outstanding
series of preferred stock of the Company or any of its Subsidiaries or Bylaws or their organizational charter, certificate of
formation, memorandum of association, articles of association, Articles of Incorporation or bylaws, respectively, except in all
cases for possible violations which could not, individually or in the aggregate, have a Material Adverse Effect. Except as set
forth in the SEC Documents, neither the Company nor any of its Subsidiaries is in violation of any judgment, decree or order or
any statute, ordinance, rule or regulation applicable to the Company or any of its Subsidiaries, and neither the Company nor any
of its Subsidiaries will conduct its business in violation of any of the foregoing, except in all cases for possible violations
which could not, individually or in the aggregate, have a Material Adverse Effect. Except as set forth in the SEC Documents, without
limiting the generality of the foregoing, the Company is not in violation of any of the rules, regulations or requirements of
the Principal Market and has no knowledge of any facts or circumstances that could reasonably lead to delisting or suspension
of the Common Stock by the Principal Market in the foreseeable future. Except as set forth in the SEC Documents, during the two
years prior to the date hereof, (i) the Common Stock has been listed or designated for quotation on the Principal Market, (ii)
trading in the Common Stock has not been suspended by the SEC or the Principal Market and (iii) the Company has received no communication,
written or oral, from the SEC or the Principal Market regarding the suspension or delisting of the Common Stock from the Principal
Market. The Company and each of its Subsidiaries possess all certificates, authorizations and permits issued by the appropriate
regulatory authorities necessary to conduct their respective businesses, except where the failure to possess such certificates,
authorizations or permits would not have, individually or in the aggregate, a Material Adverse Effect, and neither the Company
nor any such Subsidiary has received any notice of proceedings relating to the revocation or modification of any such certificate,
authorization or permit. There is no agreement, commitment, judgment, injunction, order or decree binding upon the Company or
any of its Subsidiaries or to which the Company or any of its Subsidiaries is a party which has or would reasonably be expected
to have the effect of prohibiting or materially impairing any business practice of the Company or any of its Subsidiaries, any
acquisition of property by the Company or any of its Subsidiaries or the conduct of business by the Company or any of its Subsidiaries
as currently conducted other than such effects, individually or in the aggregate, which have not had and would not reasonably
be expected to have a Material Adverse Effect on the Company or any of its Subsidiaries.


 



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(l)                
Indebtedness and Other Contracts. Neither the Company nor any of its Subsidiaries, (i) except as disclosed in the SEC Documents,
has any outstanding debt securities, notes, credit agreements, credit facilities or other agreements, documents or instruments
evidencing Indebtedness of the Company or any of its Subsidiaries or by which the Company or any of its Subsidiaries is or may
become bound, (ii) is a party to any contract, agreement or instrument, except as disclosed in the SEC Documents, the violation
of which, or default under which, by the other party(ies) to such contract, agreement or instrument could reasonably be expected
to result in a Material Adverse Effect, (iii) has any financing statements securing obligations in any amounts filed in connection
with the Company or any of its Subsidiaries, except as disclosed in the SEC Documents; (iv) is in violation of any term of, or
in default under, any contract, agreement or instrument relating to any Indebtedness, except where such violations and defaults
would not result, individually or in the aggregate, in a Material Adverse Effect, or (v) is a party to any contract, agreement
or instrument relating to any Indebtedness, the performance of which, in the judgment of the Company’s officers, has or
is expected to have a Material Adverse Effect. Neither the Company nor any of its Subsidiaries have any liabilities or obligations
required to be disclosed in the SEC Documents which are not so disclosed in the SEC Documents, other than those incurred in the
ordinary course of the Company’s or its Subsidiaries’ respective businesses and which, individually or in the aggregate,
do not or could not have a Material Adverse Effect.


 


(m)            
   Litigation. Except as otherwise disclosed by the Company in its SEC Documents, there is no action, suit,
arbitration, proceeding, inquiry or investigation before or by the Principal Market, any court, public board, other Governmental
Entity, self-regulatory organization or body pending or, to the knowledge of the Company, threatened against or affecting the
Company or any of its Subsidiaries, the Common Stock or any of the Company’s or its Subsidiaries’ officers or directors
that would reasonably be expected to have a Material Adverse Effect on the Company or its Subsidiaries, whether of a civil or
criminal nature or otherwise, in their capacities as such, except as disclosed in the SEC Documents. No director, officer or employee
of the Company or any of its Subsidiaries has willfully violated 18 U.S.C. §1519 or engaged in spoliation in reasonable anticipation
of litigation. Without limitation of the foregoing, there has not been, and to the knowledge of the Company, there is not pending
or contemplated, any investigation by the SEC involving the Company, any of its Subsidiaries or any current or former director
or officer of the Company or any of its Subsidiaries. The SEC has not issued any stop order or other order suspending the effectiveness
of any registration statement filed by the Company under the 1933 Act or the 1934 Act. Neither the Company nor any of its Subsidiaries
is subject to any order, writ, judgment, injunction, decree, determination or award of any Governmental Entity.


 



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(n)                
Disclosure. The Company confirms that neither it nor any other Person acting on its behalf has provided the Holder or its
agents or counsel with any information that constitutes or would reasonably be expected to constitute material, non-public information
concerning the Company or any of its Subsidiaries, other than the existence of the transactions contemplated by this Agreement
and the other Exchange Documents. The Company understands and confirms that the Holder will rely on the foregoing representations
in effecting transactions in securities of the Company. All disclosure provided to the Holder regarding the Company and its Subsidiaries,
their businesses and the transactions contemplated hereby, including the schedules to this Agreement, furnished by or on behalf
of the Company or any of its Subsidiaries is true and correct and does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under
which they were made, not misleading. No event or circumstance has occurred or information exists with respect to the Company
or any of its Subsidiaries or its or their business, properties, liabilities, prospects, operations (including results thereof)
or conditions (financial or otherwise), which, under applicable law, rule or regulation, requires public disclosure at or before
the date hereof or announcement by the Company but which has not been so publicly announced or disclosed.


 


5.                 
Holder’s Representations and Warranties. As a material inducement to the Company to enter into this Agreement
and consummate the Transactions, the Holder represents, warrants and covenants with and to the Company as of the date hereof and
the Effective Time, as follows:


 


(a)              
 Reliance on Exemptions. The Holder understands that the New Note is being offered and exchanged in reliance on specific
exemptions from the registration requirements of United States federal and state securities laws and that the Company is relying
in part upon the truth and accuracy of, and the Holder’s compliance with, the representations, warranties, agreements, acknowledgments
and understandings of the Holder set forth herein and in the Exchange Documents in order to determine the availability of such
exemptions and the eligibility of the Holder to acquire the New Note.


 


(b)              
 No Governmental Review. The Holder understands that no United States federal or state agency or any other government
or governmental agency has passed on or made any recommendation or endorsement of the New Note or the fairness or suitability
of the investment in the New Note nor have such authorities passed upon or endorsed the merits of the offering of the New Note.


 


(c)                
Validity; Enforcement. This Agreement and the Exchange Documents to which the Holder is a party have been duly and validly
authorized, executed and delivered on behalf of the Holder and shall constitute the legal, valid and binding obligations of the
Holder enforceable against the Holder in accordance with their respective terms, except as such enforceability may be limited
by general principles of equity or to applicable bankruptcy, insolvency, reorganization, moratorium, liquidation and other similar
laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies.


 



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(d)              
 No Conflicts. The execution, delivery and performance by the Holder of this Agreement and the Exchange Documents
to which the Holder is a party, and the consummation by the Holder of the transactions contemplated hereby and thereby will not
(i) result in a violation of the organizational documents of the Holder or (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, any agreement, indenture or instrument to which the Holder is a party, or (iii) result in a violation
of any law, rule, regulation, order, judgment or decree (including federal and state securities laws) applicable to the Holder,
except in the case of clauses (ii) and (iii) above, for such conflicts, defaults, rights or violations which would not, individually
or in the aggregate, reasonably be expected to have a material adverse effect on the ability of the Holder to perform its obligations
hereunder.


 


(e)                
Investment Risk; Sophistication. The Holder is acquiring the New Note hereunder in the ordinary course of its business.
The Holder has such knowledge, sophistication, and experience in business and financial matters so as to be capable of evaluation
of the merits and risks of the prospective investment in the New Note, and has so evaluated the merits and risk of such investment.
The Holder is an “accredited investor” as defined in Rule 501(a) of Regulation D promulgated under the 1933 Act. Investor
is acquiring the New Note solely for its own account for investment purposes and not with a view to, or for offer or sale in connection
with, any distribution thereof. Investor acknowledges that the New Note is not registered under the 1933 Act, or any state securities laws,
and that such securities may not be transferred or sold except pursuant to the registration provisions of the 1933 Act or
pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable.


 


(f)               
 Ownership of Existing Warrant; Status of New Note. The Holder owns the Existing Warrant free and clear of any Encumbrances
(other than the obligations pursuant to this Agreement and applicable securities laws) and has not assigned any Person any right
in, or to acquire, the Warrant or any portion thereof (including, but not limited to, any Common Stock issuable upon exercise
thereof). The Holder intends the New Note to be a “security” under the 1933 Act.


 


6.                 
Disclosure of Transaction. The Company shall, on or before 8:30 a.m., New York City Time, on or prior to the fourth
business day after the date of this Agreement, file a Current Report on Form 8-K describing the terms of the transactions contemplated
hereby in the form required by the 1934 Act and attaching this Agreement and the form of New Note as exhibits to such filing (excluding
schedules, the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed
all material, non-public information (if any) provided up to such time to the Holder by the Company or any of its Subsidiaries
or any of their respective officers, directors, employees or agents. In addition, upon the filing of the 8-K Filing, the Company
acknowledges and agrees that any and all confidentiality or similar obligations under any agreement with respect to the transactions
contemplated by the Exchange Documents or as otherwise disclosed in the 8-K Filing, whether written or oral, between the Company,
any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and
any of the Holder or any of their affiliates, on the other hand, shall terminate. Neither the Company, its Subsidiaries nor the
Holder shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided,
however, the Company shall be entitled, without the prior approval of the Holder, to issue a press release or make
such other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously
therewith or (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the Holder shall be
consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the
prior written consent of the Holder (which may be granted or withheld in the Holder’s sole discretion), except as required
by applicable law, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of
the Holder in any filing, announcement, release or otherwise.


 



    	 	10	 



     


    




7.                 
No Integration. None of the Company, its Subsidiaries, any of their affiliates, or any Person acting on their behalf
shall, directly or indirectly, make any offers or sales of any security (as defined in the 1933 Act) or solicit any offers to
buy any security or take any other actions, under circumstances that would require registration of any of the New Note under the
1933 Act or cause this offering to be integrated with such offering or any prior offerings by the Company for purposes of Regulation
D under the 1933 Act.


 


8.                 
Fees. The Company shall reimburse Kelley Drye & Warren, LLP (counsel to the lead Holder) in an aggregate non-accountable
amount of $15,000 (the “Legal Fee Amount”) for costs and expenses incurred by it in connection with drafting
and negotiation of the Exchange Documents. Each party to this Agreement shall bear its own expenses in connection with the structuring,
documentation, negotiation and closing of the transactions contemplated hereby, except as provided in the previous sentence and
except that the Company shall be responsible for the payment of any placement agent’s fees or financial advisory fees relating
to or arising out of the transactions contemplated hereby.


 


9.                 
Holding Period. For the purposes of Rule 144, the Company acknowledges that the holding period of the New Note
is expected to be tacked onto the holding period of the Existing Warrant and the Company agrees not to take a position contrary
to this Section 9. The Company acknowledges and agrees that (assuming the Holder is not an “affiliate” of the
Company as that term is defined in the 1933 Act): (i) the New Note is eligible to be resold without restriction pursuant to Rule
144, (ii) the Company is not aware of any event reasonably likely to occur that would reasonably be expected to result in the
New Note becoming ineligible to be resold without restriction by the Holder pursuant to Rule 144 and (iii) in connection with
any resale of the New Note pursuant to Rule 144, the Holder shall solely be required to provide reasonable assurances that such
applicable New Note is eligible for resale, assignment or transfer under Rule 144, which shall not include an opinion of Holder’s
counsel.


 


10.                
Variable Rate Transactions. Effective as of the Effective Time, the parties hereto hereby waive Section 4.12(b)
of the Securities Purchase Agreement and, in lieu thereof, agree that at any time the New Note remains outstanding (excluding
any offering in which the proceeds, in whole in part, is used to repay in full all outstanding obligations under the New Note),
the Company shall be prohibited from effecting or entering into an agreement to effect any issuance by the Company or any of its
Subsidiaries of Common Stock or Common Stock Equivalents (or a combination of units thereof) involving a Variable Rate Transaction.
“Variable Rate Transaction” means a transaction in which the Company (i) issues or sells any debt or equity
securities that are convertible into, exchangeable or exercisable for, or include the right to receive additional shares of Common
Stock either (A) at a conversion price, exercise price or exchange rate or other price that is based upon and/or varies with the
trading prices of or quotations for the shares of Common Stock at any time after the initial issuance of such debt or equity securities,
or (B) with a conversion, exercise or exchange price that is subject to being reset at some future date after the initial issuance
of such debt or equity security or upon the occurrence of specified or contingent events directly or indirectly related to the
business of the Company or the market for the Common Stock or (ii) enters into, or effects a transaction under, any agreement,
including, but not limited to, an equity line of credit or at-the-market offering program, whereby the Company may issue securities
at a future determined price. The Holder shall be entitled to obtain injunctive relief against the Company to preclude any such
issuance, which remedy shall be in addition to any right to collect damages. For the purpose of this Section 10, “Common
Stock Equivalents” means any securities of the Company or the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, right, option, warrant or other instrument
that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder thereof to receive,
Common Stock.


 



    	 	11	 



     


    




11.               
Blue Sky. The Company shall make all filings and reports relating to the Exchange required under applicable securities
or “Blue Sky” laws of the states of the United States following the date hereof, if any.


 


12.                 Most
Favored Nation. The Company hereby represents and warrants as of the date hereof and covenants and agrees that none of
the terms offered to any Person with respect to any amendment, modification, waiver or exchange of any warrant to purchase Common
Stock (or other similar instrument), including, without limitation with respect to any consent, release, amendment, settlement,
or waiver relating thereto (each an “Settlement Document”), is or will be more favorable to such Person (other
than any reimbursement of legal fees) than those of the Holder and this Agreement. If, and whenever on or after the date hereof
until the first anniversary that all of the obligations arising under the New Note and this Agreement have been repaid (or otherwise
satisfied) in full, the Company enters into a Settlement Document, then (i) the Company shall provide notice thereof to the Holder
promptly following the occurrence thereof and (ii) the terms and conditions of this Agreement shall be, without any further action
by the Holder or the Company, automatically amended and modified in an economically and legally equivalent manner such that the
Holder shall receive the benefit of the more favorable terms and/or conditions (as the case may be) set forth in such Settlement
Document, provided that upon written notice to the Company at any time the Holder may elect not to accept the benefit of any such
amended or modified term or condition, in which event the term or condition contained in this Agreement shall apply to the Holder
as it was in effect immediately prior to such amendment or modification as if such amendment or modification never occurred with
respect to the Holder. The provisions of this Section 12 shall apply similarly and equally to each Settlement Document.


 



    	 	12	 



     


    




13.             
  Independent Nature of Holder’s Obligations and Rights. The obligations of the Holder under this Agreement
are several and not joint with the obligations of any other holder of securities of the Company (each, an “Other Holder”),
and the Holder shall not be responsible in any way for the performance of the obligations of any Other Holder under any other
agreement by and between the Company and any Other Holder (each, an “Other Agreement”). Nothing contained herein
or in any Other Agreement, and no action taken by the Holder pursuant hereto, shall be deemed to constitute the Holder and Other
Holders as a partnership, an association, a joint venture or any other kind of entity, or create a presumption that the Holder
and Other Holders are in any way acting in concert or as a group with respect to such obligations or the transactions contemplated
by this Agreement or any Other Agreement and the Company acknowledges that, to the best of its knowledge, the Holder and the Other
Holders are not acting in concert or as a group with respect to such obligations or the transactions contemplated by this Agreement
or any Other Agreement. The Company and the Holder confirm that the Holder has independently participated in the negotiation of
the transactions contemplated hereby with the advice of its own counsel and advisors. The Holder shall be entitled to independently
protect and enforce its rights, including, without limitation, the rights arising out of this Agreement, and it shall not be necessary
for any Other Holder to be joined as an additional party in any proceeding for such purpose.


 


14.                
Miscellaneous.


 


(a)              
Successors and Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party, other than the parties hereto or their respective successors
and assigns, any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


 


(b)               
Governing Law; Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation
of this Agreement shall be governed by the internal laws of the State of New York, without giving effect to any choice of law
or conflict of law provision or rule (whether of the State of New York or any other jurisdictions) that would cause the application
of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction
of the state or federal courts sitting in The City of New York, Borough of Manhattan, for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or discussed herein, and hereby irrevocably waives, and
agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or
proceeding is improper. Each party hereby irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at the address for such notices to it under this
Agreement and agrees that such service shall constitute good and sufficient service of process and notice thereof. Nothing contained
herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. EACH PARTY HEREBY IRREVOCABLY
WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
WITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREBY.


 



    	 	13	 



     


    




(c)               
Titles and Subtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered
in construing or interpreting this Agreement.


 


(d)               
Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this
Agreement must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon
delivery, when sent by facsimile (provided confirmation of transmission is mechanically or electronically generated and kept on
file by the sending party) or by electronic mail; or (iii) one Trading Day after receipt confirmed with an overnight courier service,
in each case properly addressed to the party to receive the same. The addresses, facsimile numbers and e-mail addresses for such
communications shall be as set forth on the signature pages attached hereto or to such other address, facsimile number and/or
e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to each
other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient
of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s facsimile
machine or e-mail containing the time, date, recipient facsimile number and an image of the first page of such transmission or
(C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile or receipt
from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.


 


(e)               
Broker and Finder’s Fees. Each party represents that it neither is nor will be obligated for any finders’ fee
or broker commission in connection with this transaction.


 


(f)                Amendments
and Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the written consent of the Company
and the Holder, or successor and assignee as provided under this Agreement.


 


(g)               
Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded
and shall be enforceable in accordance with its terms so long as this Agreement as so modified continues to express, without material
change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability
of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties
or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in
good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect
of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).


 



    	 	14	 



     


    




(h)               
Entire Agreement. This Agreement together with the other Exchange Documents, represents the entire agreement and understandings
between the parties concerning the Transactions and the other matters described herein and therein and supersedes and replaces
any and all prior agreements and understandings solely with respect to the subject matter hereof and thereof. Except as expressly
set forth herein, nothing herein shall amend, modify or waive any term or condition of the other Exchange Documents.


 


(i)                
Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.


 


(j)                
Interpretation. Unless the context of this Agreement clearly requires otherwise, (i) references to the plural include the
singular, the singular the plural, the part the whole, (ii) references to any gender include all genders, (iii) “including”
has the inclusive meaning frequently identified with the phrase “but not limited to” and (iv) references to “hereunder”
or “herein” relate to this Agreement.


 


(k)              
 No Third Party Beneficiaries. This Agreement is intended for the benefit of the parties hereto and their respective
permitted successors and assigns, and is not for the benefit of, nor may any provision hereof be enforced by, any other Person.


 


(l)                 Survival.
The representations, warranties and covenants of the Company and the Holder contained herein shall survive the consummation of
the Transactions and the issuance and delivery of the New Note.


 


(m)              
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 any 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.


 


(n)               
No Strict Construction. The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied against any party.


 


[SIGNATURE
PAGE FOLLOWS]


 




    	 	15	 



     


    

IN
WITNESS WHEREOF, the Company and the Holder have each executed this Agreement as of the date set forth on the first page of
this Agreement.


 


 





	 	COMPANY:
	 	 	 	 
	 	NEXTPLAY TECHNOLOGIES, INC. (F/K/A
    MONAKER GROUP, INC.)



 


	 	By:	 /s/ Bill Kerby
	 	 	Name:	Bill Kerby
	 	 	Title:	 Co-CEO



 


	 	Address:	 
	 	 
	 	 
	 	 
	 	 	 	 


 


 


     

     


    




IN
WITNESS WHEREOF, Holders and the Company have executed this Agreement as of the date set forth on the first page of this Agreement.


 


	Aggregate Number of Shares of Common
    Stock	HOLDER:
	issuable upon exercise of the Existing
    Warrants:	 	 	 
	 	HUDSON BAY MASTER FUND LTD
	322,000	 	 



 








	Aggregate Principal Amount of New
    Note to be	By:	 /s/
    Richard Allison
	issued in the Exchange:	 	Name:	Richard Allison
	 	 	Title:	*Authorized Signatory
	$900,000	 	 	 	 









	 	Address:	 
	 	 
	 	 
	 	 
	 

                           	 	 	 


 

* Authorized Signatory
Hudson Bay Capital Management LP not individually, but solely as Investment Advisor to Hudson Bay Master Fund Ltd.