Special Offering of up to $1,250,000 of Units
Exhibit 10.1
Special Offering
of up to
$1,250,000 of Units
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SUBSCRIPTION AND INVESTMENT REPRESENTATION AGREEMENT
The Company is doing a special offering of up to $1,250,000 of Units for sale with each Unit comprised of one (1) shares of common stock, at $2.00 per share (the “Common Stock”) and one (1) warrant, with each warrant allowing the purchase of one (1) additional share of Common Stock at $2.00 per share, (collectively the “Unit” or “Units”)
(Except as otherwise noted, all references to “dollars” or “$” are in United States dollars).
The undersigned, _________________(the “undersigned” or the “Investor”), hereby subscribes for the purchase of Units of Monaker Group, Inc. Monaker , a Nevada corporation (“Monaker”), in the aggregate amount of $ USD. The undersigned herewith submits the undersigned’s check or effects a wire transfer of immediately available funds in the amount of $_ _ USD in full payment for such Units (the “Subscription Price”). In exchange for such payment of the Subscription Price, the undersigned shall receive from the Monaker ___ ______ Units representing _ common shares and __ warrants.
The undersigned understands that (i) Monaker is offering $1,250,000 in Units and may expand or retract the offering at its discretion. The minimum number of Units that may be purchased under this offering shall not be less than $75,000, (ii) the offering and sale of the Units will only remain open until February 28th, 2017 unless such offer is extended by the Company.
The undersigned hereby agrees to send payment of the $ __________ Subscription Price either:
a.
by mailing a check, payable to Monaker Group, Inc. “
b.
wiring payment of the Subscription Price to the account set forth below
Name of Bank: Bank of America
Address of Bank: 0000 Xxxxxx Xx, Xxxxxx XX
Account Name: Monaker Group, Inc.
Account No.: _____________
ABA No.: ________________
Reference: Monaker Group, Inc.
In either case, the undersigned agrees to execute this Subscription and Investment Representation Agreement and mail same to Monaker Group Inc., 0000 Xxxxxx Xx, Xxxxx 000, Xxxxxx, Xxxxxxx, 00000, Attn: Xxxx Xxxxx – CEO.
Consummation of the sale of the Securities to the undersigned and to all other Investors in connection with the offering of Units shall be completed on or before February 28th, 2017 (the “Closing Date”), unless such Closing Date shall be extended by the Company.
1. Certain Representations of the Subscriber
In connection with, and in consideration of, the sale of the Securities to the undersigned, the undersigned hereby represents and warrants to the Company and its officers, directors, employees, agents and shareholders that the undersigned:
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(a)
Is familiar with (i) Monaker’s Public Filings and is entering this Agreement in connection with Monaker’s unit offering comprised of common shares of Monaker Group Inc and warrants with each warrant having a Three (3) year term and an exercise price of TWO Dollars ($2.00) for Monaker Common Stock and (ii) such other information as the undersigned has received from Monaker (collectively, the “Monaker Materials”).
(b)
Has had an opportunity to review and ask questions of an officer of Monaker concerning the Monaker Materials and desires no further information respecting such Monaker Materials.
(c)
Realizes that Monaker has incurred losses since its inception and must raise additional funds to support its operations.
(d)
Realizes and accepts the personal financial risk attendant to the fact that purchase of the Units represents a speculative investment involving a high degree of risk, and should not be purchased by any persons not prepared to lose their entire investment.
(e)
Can bear the economic risk of an investment in the Units for an indefinite period of time, can afford to sustain a complete loss of such investment, has no need for liquidity in connection with an investment in the Units, and can afford to hold the Units indefinitely.
(f)
Realizes that there will be a limited market for the Units, and that there are significant restrictions on the transferability of such Units.
(g)
Realizes that the Units have not been registered for sale under the Securities Act of 1933, as amended (the “Act”), or applicable state securities laws (the “State Laws”), and they may be sold only pursuant to registration under the Act and State Law, or an opinion of counsel that such registration is not required.
(h)
Is experienced and knowledgeable in financial and business matters, capable of evaluating the merits and risks of investing in the Units and does not need or desire the assistance of a knowledgeable representative to aid in the evaluation of such risks (or, in the alternative, has a knowledgeable representative whom such investor intends to use in connection with a decision as to whether to purchase the Units).
(i)
Realizes that (a) there are substantial restrictions on the transfer of the Units; (b) there is currently limited public market for the Units and accordingly, for the above and other reasons, the undersigned may not be able to liquidate an investment in such securities for an indefinite period.
2.
REPRESENTATIONS AND WARRANTIES OF MONAKER . Monaker represents and warrants to and agrees with Investor, as follows:
(a)
The Monaker Materials as of their respective dates do not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(b)
Monaker is authorized to issue 500,000,000 shares of its Common Stock. As of the date of the last quarterly filing, an aggregate of 9,913,663 shares of Common Stock are issued and outstanding.
(c)
All of the outstanding shares of capital stock of Monaker have been duly authorized and validly issued, are fully paid and non-assessable.
(d)
Monaker has the requisite corporate power and authority to enter into and execute, deliver and perform their obligations under this Agreement, the Units and the Warrants (collectively, the “Transaction Documents”), including, without limitation to permit the exercise of such Warrants into Common Stock of Monaker . Each of the Transaction Documents has been duly and validly authorized by Monaker and, when executed and delivered by Monaker , will constitute a valid and legally binding agreement of Monaker , enforceable against Monaker in accordance with their terms except as the enforcement thereof may be limited by (A) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally or (B) general principles of equity and the discretion of the court before which any proceeding therefore may be brought (regardless of whether such enforcement is considered in a proceeding at law or in equity) (collectively, the “Enforceability Exceptions”).
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(e)
The Units have been duly authorized and, when issued upon payment thereof in accordance with this Agreement, will have been validly issued, fully paid and nonassessable. The stockholders of Monaker have no preemptive or similar rights with respect to the Common Stock.
(f)
The execution, delivery and performance by Monaker of the Transaction Documents and the consummation by Monaker of the transactions contemplated thereby and the fulfillment of the terms thereof will not violate, conflict with or constitute or result in a breach of or a default under (i) the articles of incorporation of Monaker or the bylaws of Monaker (or similar organizational document) or (ii) any statute, judgment, decree, order, rule or regulation of any court or governmental agency or other body applicable to Monaker or any of its respective properties or assets.
3.
Investment Intent
The undersigned has been advised that the Units have not been registered under the Act or relevant State Laws but are being offered, and will be offered, and sold pursuant to exemptions from the Act and State Laws, and that Monaker’s reliance upon such exemption is predicated in part on the undersigned’s representations contained herein. The undersigned represents and warrants that the Units are being purchased for the undersigned’s own account and for long term investment and without the intention of reselling or redistributing the Units; that the undersigned has made no agreement with others regarding any of the Units; and that the undersigned’s financial condition is such that it is not likely that it will be necessary for the undersigned to dispose of any of the Units in the foreseeable future. The undersigned is aware that (1) there is presently no public market for the Units, and in the view of the Securities and Exchange Commission a purchase of securities with an intent to resell by reason of any foreseeable specific contingency or anticipated change in market values, or any change in the liquidation or settlement of any loan obtained for the acquisition of any of the Units and for which the Units were or may be pledged as security would represent an intent inconsistent with the investment representations set forth above, and (2) the transferability of the Units is restricted and (a) requires the written consent of Monaker , and (b) will be further restricted by a legend placed on the certificate(s) representing the Units containing substantially the following language:
The securities represented by this certificate have not been registered under either the Securities Act of 1933 or applicable state securities laws and may not be sold, transferred, assigned, offered, pledged or otherwise distributed for value unless there is an effective registration statement under such Act and such laws covering such securities, or Monaker receives an opinion of counsel acceptable to Monaker stating that such sale, transfer, assignment, offer, pledge or other distribution for value is exempt from the registration and prospectus delivery requirements of such Act and such laws.
The undersigned further represents and agrees that if contrary to the undersigned’s foregoing intentions, the undersigned should later desire to dispose of or transfer any of the Units in any manner, the undersigned shall not do so without first obtaining (1) an opinion of counsel satisfactory to Monaker that such proposed disposition or transfer may be made lawfully without the registration of such Units pursuant to the Act and applicable State Laws, or (2) registration of such Units (it being expressly understood that Monaker shall not have any obligation to register such Units except as explicitly provided by written agreement).
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4.
Residence
The undersigned represents and warrants that the undersigned is a bona fide resident of United States and/or Canada and that the Units are being accepted by the undersigned in the undersigned’s name solely for the undersigned’s own beneficial interest and not as nominee for, on behalf of, for the beneficial interest of, or with the intention to transfer to, any other person, trust or organization except as specifically set forth in this Agreement).
PARAGRAPH 6 BELOW IS REQUIRED IN CONNECTION WITH EXEMPTIONS FROM THE ACT AND STATE LAWS BEING RELIED ON BY MONAKER WITH RESPECT TO OFFER AND SALE OF THE UNITS. ALL OF SUCH INFORMATION WILL BE KEPT CONFIDENTIAL AND WILL BE REVIEWED ONLY BY MONAKER , THE AGENT, AND THEIR COUNSEL. THE UNDERSIGNED AGREES TO FURNISH ANY ADDITIONAL INFORMATION WHICH MONAKER OR THEIR COUNSEL DEEMS NECESSARY IN ORDER TO VERIFY THE RESPONSES SET FORTH ABOVE.
5.
Accredited Status
The undersigned represents and warrants as follows (check if applicable):
a.
Accredited Investor: Individual
(1)_______ The undersigned is an individual with a net worth, or a joint net worth together with his or her spouse, in excess of $1,000,000. (In calculating net worth, you may include equity in personal property and real estate, excluding your principal residence, cash, short term investments, stock and securities. Equity in personal property and real estate should be based on the fair market value of such property minus debt secured by such property.)
(2)________ The undersigned is an individual who had an individual income in excess of $200,000 in each of the prior two years and reasonably expects an income in excess of $200,000 in the current year; or
(3)________ The undersigned is an individual who had with his/her spouse joint income in excess of $300,000 in each of the prior two years and reasonably expects an income in excess of $300,000 in the current year.
(4)________ The undersigned is a director or executive officer of the Company.
b.
Accredited Investor: Entity
(1)________ The undersigned is an entity all of whose equity owners meet one of the tests set forth in a through d above.
(2)________ The undersigned is an entity and is an “Accredited Investor” as defined in Rule 501(a) of Regulation D under the Act. This representation is based on the following (check one or more, as applicable):
(a)______ The undersigned (or in the case of a trust, the undersigned trustee) is a bank or savings and loan association as defined in Sections 3(a)(2) and 3(a)(5)(A) of the Act, acting either in its individual or fiduciary capacity.
(b)______ The undersigned is an insurance company as defined in Section 2(13) of the Act.
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(c)_______ The undersigned is an investment company registered under the Investment Company Act of 1940 or a business development company as defined in Section 2(a)(48) of that Act.
(d)________ The undersigned is a Small Business Investment Company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958.
(e)________ The undersigned is an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974 and either (check one of more, as applicable):
(i)________ the investment decision is made by a plan fiduciary, as defined in Section 3(21) of such Act, which is either a bank, savings and loan association, insurance company, or registered investment advisor; or
(ii)________ the employee benefit plan has total assets in excess of $5,000,000; or
(iii)________ the plan is a self-directed plan with investment decisions made solely by persons who are “Accredited Investors” as defined under the 1933 Act.
(f)________ The undersigned is a private business development company as defined in Section 202(a)(22) of the Investment Advisors Act of 1940.
(g)________ The undersigned has total assets in excess of $5,000,000, was not formed for the specific purpose of acquiring shares of the Company and is one or more of the following (check one or more, as appropriate):
(i)________an organization described in Section 501(c)(3) of the Internal Revenue Code; or
(ii)________ a corporation; or
(iii)________ a Massachusetts or similar business, trust; or
(iv)________ a partnership.
(h)_________ The undersigned is a trust with total assets exceeding $5,000,000, which was not formed for the specific purpose of acquiring shares of the Company and whose purchase is directed by a person who has such knowledge and experience in financial and business matters that he/she is capable of evaluating the merits and risks of the investment in the Units. IF ONLY THIS RESPONSE IS CHECKED, PLEASE CONTACT THE COMPANY TO RECEIVE AND COMPLETE AN INFORMATION STATEMENT BEFORE THIS SUBSCRIPTION CAN BE CONSIDERED BY MONAKER .
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6.
Miscellaneous
(a)
The undersigned agrees that the undersigned understands the meaning and legal consequences of the agreements, representations, and warranties contained herein; agrees that such agreements, representations and warranties shall survive and remain in full force and effect after the execution of the Units; and further agrees to indemnify and hold harmless Monaker , each of their current and future officers, directors, employees, agents and shareholders from and against any and all loss, damage or liability due to, or arising out of, a breach of any agreement, representation or warranty of the undersigned contained herein.
(b)
This Agreement shall inure to the benefit of and be binding upon Investor, Monaker and their respective successors and legal representatives. Neither Monaker , nor any Investor may assign this Agreement or any rights or obligation hereunder without the prior written consent of the other party.
(c)
This Agreement, together with Transaction Documents, constitutes the entire agreement among the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, among the parties hereto with respect to the subject matter hereof and thereof.
(d)
If any provision of this Agreement is held to be invalid or unenforceable in any respect, the validity and enforceability of the remaining terms and provisions of this Agreement shall not in any way be affected or impaired thereby.
(e)
THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO PROVISIONS RELATING TO CONFLICTS OF LAW TO THE EXTENT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY. THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREE THAT ACTIONS, SUITS OR PROCEEDINGS ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT ONLY IN STATE OR FEDERAL COURTS LOCATED IN THE CITY OF NEW YORK, NEW YORK AND HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS FOR SUCH PURPOSE.
(f)
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.
(g)
Facsimile signatures shall be construed and considered original signatures for purposes of enforcement of the terms of this agreement.
(h) Manner in Which Title Is to Be Held: (check one)
_____________ Individual Ownership
_____________ Joint Tenant with Right of
_____________ Survivorship
_____________ Partnership
_____________ Tenants in Common
_____________ Corporation
_____________ Other ______________ (describe)
SIGNATURE PAGE FOLLOWS
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SIGNATURE PAGE
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INDIVIDUAL SUBSCRIBERS:______ __________________________ Signature ___ ___________________________ Name (Typed or Printed) ________________________________ Signature (If more than one Individual subscriber) ________________________________ Name (Typed or Printed) ENTITY SUBSCRIBERS:______ __________________________ Signature ___ ___________________________ Name & Title (Typed or Printed) ___ ___________________________ Name of Entity All SUBSCRIBERS: __________________________________________ Street Address __________________________________________ City, State and Zip Code __________________________________________ Telephone Number __________________________________________ SSN or SIN or EIN __________________________________________ Email Address
To be completed by Monaker Group for Acceptance Monaker Group, Inc., hereby acknowledges receipt from _______________ of such subscriber’s check/wire in the amount of $______________ USD, and accepts this subscription as of _____________2017. ________________________________________ Signature _______William Xxxxx - CEO________________ Name (Typed or Printed) and Title |
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