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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
DC 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported): October 6, 2023
ESPORTS
ENTERTAINMENT GROUP, INC.
(Exact
name of registrant as specified in its charter)
Nevada |
|
001-39262 |
|
26-3062752 |
(State
or other jurisdiction of |
|
(Commission |
|
(IRS
Employer |
incorporation
or organization) |
|
File
Number) |
|
Identification
No.) |
BLOCK
6,
TRIQ
PACEVILLE,
ST.
JULIANS STJ 3109
MALTA
(Address
of principal executive offices)
356
2713 1276
(Registrant’s
telephone number, including area code)
Not
Applicable
(Former
Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under
any of the following provisions:
☐ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|
|
☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
|
|
☐ |
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class |
|
Trading
Symbol(s) |
|
Name
of each exchange on which registered |
Common
Stock |
|
GMBL |
|
The
Nasdaq Stock Market LLC |
Common
Stock Purchase Warrants |
|
GMBLW |
|
The
Nasdaq Stock Market LLC |
10.0%
Series A Cumulative Redeemable Convertible Preferred Stock |
|
GMBLP |
|
The
Nasdaq Stock Market LLC |
Common
Stock Purchase Warrants |
|
GMBLZ |
|
The
Nasdaq Stock Market LLC |
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405
of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
growth company ☐
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01 Entry into a Material Definitive Agreement.
Settlement
Agreement and Waiver
Partial
Settlement of Registration Delay Payments under Registration Rights Agreement
On
October 6, 2023, Esports Entertainment Group, Inc. (the “Company” “we” or “us”) entered into a settlement
agreement (“October Settlement
Agreement”) with the holder of the Company’s outstanding Series C Convertible Preferred Stock and Series D Convertible Preferred
Stock (the “Holder”) to continue to issue common stock in partial settlement of Registration Rights Fees payable (“RRA
Fees”) by the Company under the Registration Rights Agreement, dated May 22, 2023 (the “Registration Rights Agreement”),
between the Company and the Holder, in connection with a delay in the filing of a registration statement for the purpose of registering
the resale of the common stock issuable under the Holder’s Series D Convertible Preferred Stock and common warrants, despite the
Company’s best efforts to avoid such delay. The Company is obligated to pay to the Holder a Registration Delay Payment of approximately
$64,500 (subject to increase with respect to any additional RRA Fees that may accrue, from time to time, under the Registration Rights
Agreement (and subject to decrease in accordance with the October Settlement
Agreement as described below). The Company and the Holder had previously entered into a settlement agreement, dated August 15, 2023 (“August
2023 Settlement Agreement”), in partial settlement of the RRA Fees. On September 30, 2023, the August 2023 Settlement Agreement
expired pursuant to its terms.
The
terms of the October Settlement
Agreement provide for the Company to issue an additional 10,000 shares at $0.05 per share (“Continued Settlement Price Per Share”)
in partial settlement of RRA Fees. The Company further agreed to settle an additional $1,000 (or
either (x) if less, the remaining Registration Delay Balance (as defined in the October Settlement Agreement) or (y) or
such other amount as the parties shall mutually agree) on each seven (7) day anniversary of the October
Settlement Agreement (or another date mutually
agreed between the parties), until the earlier of (I) the date that the parties mutually terminate the October
Settlement Agreement in writing, and (II) such
time as the remaining balance of the RRA Fees are paid in full, as applicable, to satisfy up to the remaining balance of the RRA Fees
at a price per share equal to the lower of (1) 90% of the lowest volume weighted average price (“VWAP”) per share of the
common stock during the ten (10) consecutive trading day period ending and including the trading day immediately preceding the additional
share settlement, and (2) the Continued Settlement Price Per Share. As part of the settlement, the Holder also agreed to continue to
waive, in part, applicable antidilution provisions within the Certificates of Designations governing the Series C Convertible Preferred
Stock and Series D Convertible Preferred Stock such that the issuances of any settlement shares in accordance with the October
Settlement Agreement shall not result in a Conversion
Price for the applicable Conversion Amount (as such terms are defined in the Certificates of Designations governing the Series C Convertible
Preferred Stock and Series D Convertible Preferred Stock) subject to such conversion less than the lesser of (A) the Conversion Price
then in effect (without giving effect to any adjustments to the Conversion Price arising solely as a result of the issuances of the settlement
shares under the October Settlement
Agreement) and (B) the greater of (x) the Conversion Price then in effect (after giving effect to all adjustments to the Conversion Price
(including, without limitation, such adjustments arising as a result of the issuances of the settlement shares under the October
Settlement Agreement)) and (y) 90% of the lowest
VWAP of the common stock during the ten (10) consecutive trading day period ending and including such applicable conversion date under
the terms of the Series C Convertible Preferred Stock or Series C Convertible Preferred Stock, as applicable.
The
October Settlement
Agreement further provides that, notwithstanding anything in the applicable Certificate of Designations for the Series C Convertible
Preferred Stock or Certificate of Designations for the Series D Convertible Preferred Stock to the contrary, with respect to any given
conversion of any Series C Convertible Preferred Stock or Series D Convertible Preferred Stock, to the extent such Conversion Price,
as so adjusted, is greater than 90% of the lowest VWAP of the common stock during the ten (10) consecutive trading day period ending
and including the trading day of the applicable conversion notice, a Conversion Floor Price Condition (as defined in the Certificates
of Designations governing the Series C Convertible Preferred Stock and Series D Convertible Preferred Stock) shall be deemed to have
occurred with respect to such conversion of the Series C Convertible Preferred Stock or Series D Convertible Preferred Stock, as applicable.
Partial
Waiver of Subsequent Placement Optional Redemption of Preferred Shares
The
Company also entered into a waiver agreement (“Waiver”) on October 6, 2023, with the Holder, as a condition to access any
net proceeds from the future sale of shares of common stock under the Company’s previously announced “at the market”
(or “ATM”) equity offering program pursuant to a prospectus supplement that was filed with the Securities and Exchange Commission
on September 15, 2023. The Holder agreed to partially waive its rights to ATM proceeds under the terms of a Subsequent Placement Optional
Redemption, as defined in each of the Series C Certificate of Designations and Series D Certificate of Designations, but only with respect
to sales under the ATM equity offering program (“ATM Sales”) and not with respect to any other future Subsequent Placement
(as defined in each of the Series C Certificate of Designations and Series D Certificate of Designations) and, further, only to the extent
of a waiver that provides that
50% of the net proceeds from ATM Sales (after deducting the agent’s commissions pursuant to the “at the market” offering
and other reasonable and customary offering expenses) be retained by the Company and the remaining 50% of the net proceeds from ATM Sales
be used by the Company to redeem first, the outstanding shares of Series D Convertible Preferred Stock and second, the outstanding shares
of Series C Convertible Preferred Stock (“Redemption Proceeds”), unless the Holder elects to change such allocations (or
waive such redemption, in whole or in part, with respect to one or more ATM Sales) as evidenced by a written notice to the Company (“Subsequent
Placement Limited Waiver”). Concurrent with the execution of the October Settlement
Agreement, the Company executed an escrow agreement (“Escrow Agreement”) with an independent third-party escrow agent (“Escrow
Agent”), pursuant to which Redemption Proceeds received from each closing of ATM Sales shall be promptly deposited into a non-interest
bearing escrow account (“Escrow Account”) and disbursed to the Holder under the terms and conditions contained in the October
Settlement Agreement and the Escrow Agreement.
Under
the terms of the October Settlement
Agreement and the Escrow Agreement, the proceeds from ATM Sales shall be released in full to the Holder from the Escrow Agent upon the
written instruction of the Company or the Holder to the Escrow Agent at such time as either:
|
● |
(i)(a)
the Redemption Proceeds deposited into the Escrow Account equal or exceed $250,000 (the “Escrow Amount Condition”) and
(b) the Company has publicly disclosed the number of shares of common stock sold through the placement agent under the Sales Agreement
(“Placement Agent”), the aggregate net proceeds from such sales, the Redemption Proceeds from such aggregate net proceeds
allocated to the Holder pursuant to the October Settlement
Agreement, and the compensation paid by the Company to the Placement Agent with respect to the such sales, by any method compliant
with Regulation FD (including by a Current Report on Form 8-K or a press release publicly disseminated via a national newswire) (the
“ATM Disclosure”) with a copy to the Escrow Agent, which ATM Disclosure shall be publicly disclosed by the Company within
five (5) Business Days from the date of the October Settlement
Agreement and within each subsequent five (5) Business Day anniversary of the date of the October
Settlement Agreement, provided, however,
that the Company has consummated one or more sales under the Sales Agreement within such applicable five (5) Business Day period
(the “Disclosure Condition”, and together with the Escrow Amount Condition, the “Redemption Proceeds Release Conditions”); |
|
● |
(ii)
any time a Triggering Event (as defined in the October Settlement
Agreement) or a material breach of the October Settlement
Agreement shall occur or be continuing; or |
|
|
|
|
● |
(iii)
in the event that the Sales Agreement expires or is terminated pursuant to its terms (provided any required ATM Disclosure shall
be promptly made by the Company, if not already done so). |
If
at any time that the Escrow Amount Condition is not met, upon the written instruction of the Holder to the Escrow Agent, the Redemption
Proceeds in the Escrow Account shall be returned to the Company. The Subsequent Placement Limited Waiver shall not apply at any time
a Triggering Event (as defined in each of the Certificates of Designation governing the Series C Preferred Stock and Series D Preferred
Stock) shall occur or be continuing.
The
Escrow Agreement contains customary representations of the parties, fees payable to the Escrow Agent by the Company, and provisions requiring
the Company to indemnify the Placement Agent and the Escrow Agent for certain losses that may arise under the Escrow Agreement, all as
set forth in the Escrow Agreement. The Escrow Agreement shall terminate upon the earlier of (1) April 6, 2024, (2) the deposit of all
escrow funds into a court in the events described in the Escrow Agreement, or (3) the Escrow Agent’s receipt of a written certification
from each of the Company and Holder that the rights and obligations under Section 7(b) of the Company’s Certificates of Designations
for the Series C Preferred Stock and Series D Preferred Stock regarding a Subsequent Placement Optional Redemption are no longer in force
and effect.
The
foregoing is only a summary of the material terms of the October Settlement
Agreement and Escrow Agreement and other related transaction documents and does not purport to be a complete description of the rights
and obligations of the parties thereunder.
The
summary of the October Settlement
Agreement and Escrow Agreement is qualified in its entirety by reference to the forms of such agreements, which are filed as exhibits
to this Current Report and incorporated herein by reference.
The
agreements contain representations and warranties by us, which were made only for purposes of that agreements and as of specified dates.
The representations, warranties and covenants in the agreements were made solely for the benefit of the parties to the agreements; may
be subject to limitations agreed upon by the contracting parties, including being subject to confidential disclosures that may modify,
qualify or create exceptions to such representations and warranties; may be made for the purposes of allocating contractual risk between
the parties to the agreements instead of establishing these matters as facts; and may be subject to standards of materiality applicable
to the contracting parties that differ from those applicable to investors. In addition, information concerning the subject matter of
the representations, warranties and covenants may change after the date of the agreements, which subsequent information may or may not
be fully reflected in our public disclosures.
Forward-Looking
Statements
The
information contained herein includes forward-looking statements, as defined in the Private Securities Litigation Reform Act of 1995.
Forward-looking statements generally can be identified by words such as “anticipates,” “believes,” “estimates,”
“expects,” “intends,” “plans,” “predicts,” “projects,” “will be,”
“will continue,” “will likely result,” and similar expressions. These statements relate to future events or to
our future financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results,
levels of activity, performance, or achievements to be materially different from any future results, levels of activity, performance
or achievements expressed or implied by these forward-looking statements, including, the amount of equity settlements that we will effect,
the settlement price, and for what period of time such settlements will continue to occur, if at all, and the amount and allocation of
net proceeds from ATM Sales that we will receive pursuant to the October Settlement
Agreement and Sales Agreement. You should not place undue reliance on forward-looking statements since they involve known and unknown
risks, uncertainties and other factors which are, in some cases, beyond our control and which could, and likely will, materially affect
actual results, levels of activity, performance or achievements. Factors that could cause or contribute to such differences include,
but are not limited to, those discussed in our most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q,
and those discussed in other documents we file with the SEC, including, our obligations under our outstanding preferred stock, our ability
to continue as a going concern, and our ability to maintain compliance with Nasdaq Listing Rules. Any forward-looking statement reflects
our current views with respect to future events and is subject to these and other risks, uncertainties and assumptions relating to our
operations, results of operations, growth strategy and liquidity. We assume no obligation to publicly update or revise these forward-looking
statements for any reason, or to update the reasons actual results could differ materially from those anticipated in these forward-looking
statements, even if new information becomes available in the future, unless required by law.
Item
9.01 Financial Statements and Exhibits.
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
Date:
October 10, 2023
|
ESPORTS
ENTERTAINMENT GROUP, INC. |
|
|
|
|
By: |
/s/
Michael Villani |
|
Name:
|
Michael
Villani |
|
Title: |
Chief
Financial Officer |
Exhibit
10.1
|
|
Esports Entertainment
Group |
|
|
Block 6, |
|
|
Triq Paceville, |
|
|
St. Julians, STJ 3109 |
|
|
Malta |
October
6, 2023
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B
c/o
Ayrton Capital LLC
55
Post Rd W
Westport,
CT 06880
Re: |
Partial
Settlement of Registration Delay Payments under Registration Rights Agreement;
Subsequent
Placement Optional Redemption of Preferred Shares |
Dear
Sirs:
Reference
is hereby made to the Settlement Agreement, dated August 15, 2023 (the “Original Settlement Agreement”), between the
Company and the undersigned (“you” or the “Holder”), which terminated on September 30, 2023, pursuant
to its terms.
Reference
is hereby further made to (a) that certain Securities Purchase Agreement, dated April 30, 2023, by and among Esports Entertainment Group,
Inc., a Nevada corporation (the “Company”) and you (the “Securities Purchase Agreement”), (b) that
certain Registration Rights Agreement, dated May 22, 2023, by and among the Company and the Holder (the “Registration Rights
Agreement”), pursuant to which the Company granted you certain registration rights with respect to the Registrable Securities,
and (c) that certain Equity Distribution Agreement, dated as of September 15, 2023 (as in effect as of the date hereof, the “Sales
Agreement”), between the Company and Maxim Group LLC (and/or any successor thereto, “Agent”), under which the Company
may offer and sell, from time to time at its sole discretion, shares of the Common Stock through an “at the market” equity
offering program. Capitalized terms not defined herein shall have the meaning as set forth in the Securities Purchase Agreement, the
Registration Rights Agreement, or the applicable COD (as defined below).
Partial
Settlement of Registration Delay Payments under Registration Rights Agreement
As
of the date hereof, the Company is obligated to pay to the Holder a Registration Delay Payments of $64,500 (subject to increase with
respect to any additional Registration Delay Payments that may accrue, from time to time, under the Registration Rights Agreement (and
subject to decrease in accordance herewith upon any issuance of Settlement Shares (as defined below) on each applicable Share Settlement
Date (as defined below)), the “Registration Delay Balance”) with respect to certain Registrable Securities of the
Holder required to be registered on a Registration Statement pursuant to the terms of the Registration Rights Agreement.
In
continued partial satisfaction and settlement of the Registration Delay Payments, the Company hereby agrees to promptly issue you an
additional 10,000 shares of Common Stock of the Company (the “Continued Settlement Shares”) at a price per share of
$0.05 within two (2) Trading Days of the date hereof (the “Continued Share Settlement Date”). The Company further
agrees to settle an additional $1,000 (or either (x) if less, the remaining Registration Delay Balance or (y) such other amount as the
parties shall mutually agree) of the Registration Delay Balance on each seven (7) day anniversary of the date hereof (or such other date
as the parties shall mutually agree) (each, an “Additional Share Settlement Date”, and together with the Continued
Share Settlement Date, each a “Share Settlement Date”) until the earlier of (A) the date that the parties mutually
terminate this agreement in writing, and (B) such time as the Registration Delay Balance has been paid in full, as applicable, by issuing
you on each such Additional Share Settlement Date, additional shares of Common Stock (the “Additional Settlement Shares”,
and together with the Continued Settlement Shares, the “Settlement Shares”) at a price per share equal to the lower
of (1) 90% of the lowest VWAP of the Common Stock during the ten (10) consecutive Trading Day period ending and including the Trading
Day immediately preceding such applicable Additional Share Settlement Date, and (2) $0.05. The parties hereto acknowledge and agree for
the purpose of the Securities Purchase Agreement, the defined term “Conversion Shares” shall be deemed to include the Settlement
Shares, mutatis mutandis, and for the purpose of the Securities Purchase Agreement and the CODs, the definition of “Transaction
Documents” shall be amended to include this letter agreement (the “New Settlement Agreement”).
Reference
is also made to the Certificates of Designations (the “Series C Preferred Stock COD”) governing the Series C Convertible
Preferred Stock (the “Series C Preferred Shares”) and the Certificate of Designations (the “Series D Preferred
Stock COD”, and together with the Series C Preferred Stock COD, the “CODs” and each, a “COD”)
governing the Series D Convertible Preferred Stock (the “Series D Preferred Shares,” and together with the Series
C Preferred Shares, the “Preferred Shares”). Pursuant to Section 9(a) of each of the CODs (collectively, the “Antidilution
Provisions”), upon any issuance by the Company of shares of Common Stock in which the New Issuance Price is less than the price
equal to the Conversion Price in effect immediately prior to such issuance, the Conversion Price(s) then in effect under each of the
Series C Preferred Stock COD and Series D Preferred Stock COD shall be reduced to an amount equal to the New Issuance Price. The parties
hereto acknowledge and agree (x) that any issuance of Common Stock hereunder at a New Issuance Price less than the Conversion Price then
in effect shall result in an adjustment to each Conversion Price in the CODs pursuant to the Antidilution Provisions, subject to the
partial waiver in the next paragraph applicable to certain conversions of Preferred Shares after the date hereof and (y) notwithstanding
anything in the applicable COD to the contrary, with respect to any given conversion of any Preferred Shares, to the extent such Conversion
Price, as so adjusted, is greater than 90% of the lowest VWAP of the Common Stock during the ten (10) consecutive Trading Day period
ending and including the Trading Day of the applicable Conversion Notice, a Conversion Floor Price Condition shall be deemed to have
occurred with respect to such conversion.
Notwithstanding
the foregoing, with respect to any conversion of any Series C Preferred Shares and/or Series D Preferred Shares, as applicable, after
the date hereof, the Holder hereby waives, in part, the Antidilution Provisions applicable thereto such that the issuances of any Settlement
Shares in accordance herewith shall not result in a Conversion Price for the applicable Conversion Amount subject to such conversion
less than the lesser of (A) the Conversion Price then in effect (without giving effect to any adjustments to the Conversion Price arising
solely as a result of the issuances of the Settlement Shares hereunder) and (B) the greater of (x) the Conversion Price then in effect
(after giving effect to all adjustments to the Conversion Price (including, without limitation, such adjustments arising as a result
of the issuances of the Settlement Shares hereunder)) and (y) 90% of the lowest VWAP of the Common Stock during the ten (10) consecutive
Trading Day period ending and including such applicable Conversion Date.
Subsequent
Placement Optional Redemption of Preferred Shares
The
undersigned hereby waives, in part, its rights under Section 7(b) of each of the CODs (collectively, the “Subsequent Placement
Optional Redemption Provisions”) to require the Company to cause a Subsequent Placement Optional Redemption (as defined in
each of the CODs) of the Preferred Shares using the gross proceeds from the sale of shares of the Common Stock pursuant to the terms
of the Sales Agreement (“ATM Sales”), but solely with respect to such ATM Sales and not with respect to any other
Subsequent Placement and, further, the Holder only waives the Subsequent Placement Redemption Provisions to the extent that 50% of the
net proceeds from such ATM Sales (after deducting the agent’s commissions pursuant to the Sales Agreement and other customary and
reasonable offering expenses) be retained by the Company and the remaining 50% of the net proceeds from such ATM Sales (the “Redemption
Proceeds”) be used by the Company to redeem first, the outstanding shares of Series D Preferred Shares and second, the outstanding
shares of Series C Preferred Shares, unless the Holder elects to change such allocations (or waive such redemption, in whole or in part,
with respect to one or more ATM Sales) as evidenced by a written notice to the Company (the “Subsequent Placement Limited Waiver”).
Concurrent with the execution of this New Settlement Agreement, the Company shall execute an escrow agreement in the form attached hereto
as Exhibit A (“Escrow Agreement”) with an independent third-party escrow agent (“Escrow Agent”),
pursuant to which Redemption Proceeds received from each closing of ATM Sales shall be promptly deposited into a non-interest bearing
escrow account (“Escrow Account”) and disbursed to the Holder under the terms and conditions contained herein and
in the Escrow Agreement.
The
Redemption Proceeds will be released in full to the Holder from the Escrow Account upon the written instruction of either the Company
or Holder to the Escrow Agent, with a copy provided concurrently to the Holder or Company, as applicable, at such times as either:
(i)(a)
the Redemption Proceeds deposited into the Escrow Account equal or exceed $250,000 (the “Escrow Amount Condition”);
and (b) the Company has publicly disclosed the number of shares of Common Stock sold through the Agent under the Sales Agreement, the
aggregate net proceeds from ATM Sales, the Redemption Proceeds from such aggregate net proceeds allocated to the Holder pursuant to this
New Settlement Agreement (as may be amended from time to time), and the compensation paid by the Company to the Agent with respect to
the ATM Sales, by any method compliant with Regulation FD (including by a Current Report on Form 8-K or a press release publicly disseminated
via a national newswire) (the “ATM Disclosure”) with a copy to the Escrow Agent, which ATM Disclosure shall be publicly
disclosed by the Company within five (5) Business Days from the date hereof and within each subsequent five (5) Business Day anniversary
of the date hereof, provided, however, that the Company has consummated one or more ATM Sales within such applicable five (5) Business
Day period)(the “Disclosure Condition”, and together with the Escrow Amount Condition, the “Redemption Proceeds
Release Conditions”);
(ii)
any time a Triggering Event (as defined in each COD) or a material breach of this New Settlement Agreement shall occur or be continuing;
or
(iii)
in the event that the Sales Agreement expires or is terminated pursuant to its terms (provided any required ATM Disclosure shall be promptly
made by the Company, if not already done so).
For
the avoidance of doubt, during the term of the Sales Agreement, no Redemption Proceeds shall be released to the Holder until such time
as the Redemption Proceeds Release Conditions have each been met or a Triggering Event or a material breach of this New Settlement Agreement
shall occur or be continuing. In the event that a material breach of this New Settlement Agreement shall occur or be continuing the Holder
shall provide notice thereof to the Company. Notwithstanding anything herein to the contrary, if at any time that the Escrow Amount Condition
is not met, upon the written instruction of the Holder to the Escrow Agent, with a copy provided concurrently to the Company, the Redemption
Proceeds in the Escrow Account shall be returned to the Company. Notwithstanding the foregoing, the Subsequent Placement Limited Waiver
shall not apply at any time a Triggering Event (as defined in each COD) shall occur or be continuing.
The
Company shall, on or before 9:30 a.m., New York City time, on the second (2nd) Trading Day (as defined in each COD) immediately
following the date of this New Settlement Agreement, file a Current Report on Form 8-K with the SEC disclosing all material terms of
the transactions contemplated hereby and attaching the form of this New Settlement Agreement as an exhibit thereto (collectively with
all exhibits attached thereto, the “8-K Filing”). From and after the filing of the 8-K Filing with the SEC, to the
Company’s knowledge, the Buyers shall not be in possession of any material, nonpublic information received from the Company or
any of its Subsidiaries or any of their respective officers, directors, employees, affiliates or agents, that is not disclosed in the
8-K Filing. In addition, effective upon the issuance of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality
or similar obligations under any letter, 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 the Buyers or any of their affiliates, on the other hand,
shall terminate and be of no further force or effect. The Company understands and confirms that the Buyers will rely on the foregoing
representations in effecting transactions in securities of the Company.
The
Company shall reimburse Kelley Drye & Warren, LLP (counsel to the lead Holder) in an aggregate non-accountable amount of $7,500 (the
“Legal Fee Amount”) for costs and expenses incurred by it in connection with drafting and negotiation of this New
Settlement Agreement. Each party to this New Settlement 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 Escrow Agent fees, placement agent’s fees, financial advisory fees, transfer agent
fees, or Depository Trust Company fees relating to or arising out of the transactions contemplated hereby.
This
New Settlement Agreement shall be effective upon the time of due execution and delivery by the Company and the Holder of this New Settlement
Agreement.
Section
9 of the Securities Purchase Agreement is hereby incorporated by reference herein, in its entirety, mutatis mutandis.
If
you have any questions regarding the foregoing, please feel free to contact Michael Villani at [ ] or by email to [ ].
[Signature
Page Follows]
|
Sincerely, |
|
|
|
|
Esports
Entertainment Group, Inc. |
|
|
|
|
By: |
/s/
Michael Villani |
|
Name: |
Michael
Villani |
|
Title: |
Chief
Financial Officer |
Agreed
to and Acknowledged:
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B
By: |
/s/
Waqas Khatri |
|
Name: |
Waqas
Khatri |
|
Title: |
Director |
|
Exhibit
10.2
ESCROW
AGREEMENT
THIS
ESCROW AGREEMENT, dated as of October 6, 2023 (“Escrow Agreement”), is by and between Maxim Group LLC
(“Placement
Agent”); Esports Entertainment Group (the “Company”); Alto Opportunity Master Fund, SPC - Segregated Master
Portfolio B (the “Holder”); CORPORATE ESCROW MANAGEMENT INC, as Escrow Manager hereunder (“Escrow Manager” and, together with Placement Agent and the Company, the “Parties”) and InBank (“Escrow
Agent”).
BACKGROUND
A. Company
has engaged Placement Agent as its agent in connection with its assistance in sales of shares of common stock of the Company, (the “Securities”)
to investors pursuant to the Equity Distribution Agreement, dated September 15, 2023 (the “Sales Agreement”), between
the Company and the Placement Agent (the “Offering”), for a period ending on the Final Termination Date, as defined
on Exhibit A hereof, which may be extended for up to 90 days upon written notice to Escrow Agent and Holder by the Placement Agent
and the Company (the “Term”), for the purpose of complying with the terms of the Settlement Agreement (as defined
below). Capitalized terms used herein shall have the meanings ascribed to them in the Settlement Agreement or Certificates of Designations
governing the Company’s Series C Convertible Preferred Stock and Series D Convertible Preferred Stock, as applicable.
B. Pursuant
to the terms of the prospectus supplement, dated September 15, 2023, the Company desires to sell in the Offering up to the Maximum Amount,
as defined in Exhibit A hereof.
C. On
the date hereof, the Company and the Holder entered into a settlement and waiver agreement (the “Settlement Agreement”)
providing that, among other things, the Company shall retain 50% of the net proceeds from the Offering (after deducting the Placement
Agent’s commissions pursuant to the Sales Agreement and other customary and reasonable offering expenses) (the “Redemption
Proceeds”), which shall be promptly deposited into an escrow account and disbursed to the Holder pursuant to the terms and
conditions of the Settlement Agreement and this Escrow Agreement.
D. The
Parties desire to establish an escrow account with the Escrow Agent into which the Placement Agent shall deposit the Redemption Proceeds
and Escrow Agent is willing to accept such deposits in accordance with the terms hereinafter set forth.
E. The
Parties have represented and warranted to the Escrow Agent that they have not stated to any individual or entity that the Escrow Agent’s
duties will include anything other than those duties stated in this Escrow Agreement.
STATEMENT
OF AGREEMENT
NOW
THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their successors and assigns, hereby agree as follows:
1. Definitions.
In addition to the terms defined above, the following terms shall have the following meanings when used herein:
“Cash
Investment” shall mean the purchase price of the Securities being purchased by any Company investor (“Investor”)
in the Offering.
“Cash
Investment Instrument” shall mean a wire, check, money order or similar instrument, made payable to or endorsed to Escrow Agent
in the manner described in Section 3 hereof, in full payment of the Redemption Proceeds.
“Escrow
Funds” shall mean the funds deposited with the Escrow Agent pursuant to this Escrow Agreement.
“Subscription
Accounting” shall mean an accounting of all sales of the Securities received and accepted by the Company as of the date of
such accounting, the Placement Agent’s commissions and any other offering expenses pursuant to the Sales Agreement related thereto,
and the 50% of the net proceeds from the sales under the Sales Agreement that shall be retained by the Company.
2. Appointment
of and Acceptance by Escrow Agent. The Parties hereby appoint Escrow Agent to serve as depositary hereunder, and Escrow Agent hereby
accepts such appointment in accordance with the terms of this Escrow Agreement.
3.
Deposits into Escrow.
(a) The
Placement Agent shall deliver, or cause to be delivered, to Escrow Agent, Cash Investment Instruments made payable to the order of “InBank
as Escrow Agent for EEG” or via fed wire transfer to InBank. The checks or wire transfers shall be deposited into a non-interest
bearing account at Escrow Agent entitled “EEG Escrow Account” (the “Escrow Account”). ALL FUNDS SO DEPOSITED
SHALL REMAIN THE PROPERTY OF THE COMPANY AND SHALL NOT BE SUBJECT TO ANY LIEN OR CHARGE BY ESCROW AGENT OR BY JUDGMENT OR CREDITORS’
CLAIMS AGAINST COMPANY UNTIL RELEASED OR ELIGIBLE TO BE RELEASED TO HOLDER IN ACCORDANCE WITH SECTION 4(a) HEREOF.
(b) The
Parties understand and agree that all Cash Investment Instruments received by Escrow Agent hereunder are subject to collection requirements
of presentment and final payment, and that the funds represented thereby cannot be drawn upon or disbursed until such time as final payment
has been made and is no longer subject to dishonor. Upon receipt, Escrow Agent shall process each Cash Investment Instrument for collection,
and the proceeds thereof shall be held as part of the Escrow Funds until disbursed in accordance with Section 4 hereof. If, upon
presentment for payment, any Cash Investment Instrument is dishonored, Escrow Agent’s sole obligation shall be to notify the Placement
Agent and Company of such dishonor and to return such Cash Investment Instrument to the Placement Agent. Notwithstanding the foregoing,
if for any reason any Cash Investment Instrument is uncollectible or otherwise returned unpaid after payment or disbursement of the funds
represented thereby has been made by Escrow Agent, the Parties shall immediately reimburse Escrow Agent upon receipt from Escrow Agent
of written notice thereof for the uncollected amount as well as any costs and expenses incurred by Escrow Agent in connection with such
uncollectibility or return.
Placement
Agent shall provide Escrow Manager and the Company with the Subscription Accounting, together with all modifications or updates therein.
(c) Escrow
Manager shall confirm to Placement Agent, Company and Holder via facsimile or email transmission at the close of each business day prior
to the Final Termination Date, the amount of any Cash Investment Instrument received from the Placement Agent deposited with Escrow Agent
on such day and the aggregate amount deposited to date.
(d) If
any funds are to be released pursuant to Section 4 or any other provision of this Escrow Agreement, Escrow Agent may rely on information
furnished or purportedly furnished to it by any party to this Escrow Agreement.
4.
Disbursements of Escrow Funds.
(a) Release
of Redemption Proceeds to Holder. Upon the written instruction of the Company or the Holder to the Escrow Agent, with a copy provided
concurrently to the Holder or Company, as applicable, the Redemption Proceeds in full shall be released to the Holder by wire transfer
of immediately available funds at such time as:
(i)(a)
the Redemption Proceeds deposited into the Escrow Account equal or exceed $250,000 (the “Escrow Amount Condition”)
and (b) the Company has publicly disclosed the number of shares of common stock sold through the Placement Agent under the Sales Agreement,
the aggregate net proceeds from such sales, the Redemption Proceeds from such aggregate net proceeds allocated to the Holder pursuant
to the Settlement Agreement, and the compensation paid by the Company to the Placement Agent with respect to the such sales, by any method
compliant with Regulation FD (including by a Current Report on Form 8-K or a press release publicly disseminated via a national newswire)
(the “ATM Disclosure”) with a copy to the Escrow Agent, which ATM Disclosure shall be publicly disclosed by the Company
within five (5) Business Days from the date hereof and within each subsequent five (5) Business Day anniversary of the date hereof, provided,
however, that the Company has consummated one or more sales under the Sales Agreement within such applicable five (5) Business Day period
(the “Disclosure Condition”, and together with the Escrow Amount Condition, the “Redemption Proceeds Release
Conditions”);
(ii)
any time a Triggering Event (as defined in the Settlement Agreement) or a material breach of the Settlement Agreement shall occur or
be continuing; or
(iii)
in the event that the Sales Agreement expires or is terminated pursuant to its terms (provided any required ATM Disclosure shall be promptly
made by the Company, if not already done so).
The
written instruction from the Company or Holder will confirm to the Escrow Agent which of the condition(s) in (i), (ii), or (iii) above
has been met, as applicable.
The
Company shall be responsible for any unpaid fees and expenses pursuant to the provisions of Section 10. Funds shall be dispersed
no later than two (2) business days following:
(1) Escrow
Agent’s receipt of the written instruction of the Company or Holder directing the disbursement of the Redemption Proceeds and certifying
that either (i) the Redemption Proceeds Release Conditions have been met, (ii) a Triggering Event or material breach of the Settlement
Agreement is occurring or continuing, or (iii) the Sales Agreement has expired or terminated.
Escrow
Agent may rely conclusively and without liability upon the foregoing written instruction and certification of the Company or Holder,
and Escrow Agent may disburse Redemption Proceeds to the Holder without further inquiry or authorization from another party. Any objection
to such disbursement or any purported claim to the Escrow Account or any sums on deposit therein made by any person, shall not be recognized
by Escrow Agent except and to the extent (i) either a restraining order, injunction or other appropriate process has been served on Escrow
Agent, or (ii) a bond or other indemnity has been provided to Escrow Agent with such bond or indemnity satisfactory to Escrow Agent to
provide for protection from any and all liability (including liabilities for penalties), loss, damage, costs, and expenses should the
Escrow Agent act to give effect to such objection or claim, including the decision not to honor the check or other order of the person
to whose credit the deposit or other account stands on the books of the Escrow Agent.
(b) Release
of Redemption Proceeds to Company. If at any time the Escrow Amount Condition is not met, no later than two (2) business days after
receipt by Escrow Agent of a written notice from the Holder providing that the Redemption Proceeds may be returned to the Company, the
Escrow Agent shall release such funds by wire transfer of immediately available funds to the Company. Escrow Agent may rely on any such
instructions that Escrow Agent believes have been given to it by the Holder without any liability.
(c) Closed
Account Status. Upon disbursement of the funds set forth in this section, the Escrow Agent shall provide a letter of reconciliation
of the trial balance supporting the zero balance in the escrow account.
5. Suspension
of Performance or Disbursement into Court. If, at any time, (i) there shall exist any dispute between Placement Agent, the
Company, the Escrow Agent, the Escrow Manager, the Holder or any other person with respect to the holding or disposition of all or
any portion of the Escrow Funds or any other obligations of Escrow Agent hereunder, or (ii) Escrow Agent is unable to determine, to
its sole satisfaction, the proper disposition of all or any portion of the Escrow Funds or Escrow Agent’s proper actions with
respect to its obligations hereunder, or (iii) the Parties have not within 10 days of the furnishing by Escrow Agent of a notice of
resignation pursuant to Section 7 appointed a successor Escrow Agent to act hereunder, then Escrow Agent may, in its sole
discretion, take either or both of the following actions:
(a) suspend
the performance of any of its obligations (including without limitation any disbursement obligations) under this Escrow Agreement until
such dispute or uncertainty shall be resolved to the sole satisfaction of Escrow Agent or until a successor Escrow Agent shall have been
appointed (as the case may be); and
(b) petition
(by means of an interpleader action or any other appropriate method) any court of competent jurisdiction in any venue convenient to Escrow
Agent, for instructions with respect to such dispute or uncertainty, and to the extent required or permitted by law, pay into such court
all funds held by it in the Escrow Funds for holding and disposition in accordance with the instructions of such court.
Escrow
Agent shall have no liability to Placement Agent, Company, Escrow Manager, the Holder or any other person with respect to any such suspension
of performance or disbursement into court, including without limitation any liability or claimed liability that may arise, or be alleged
to have arisen, out of or as a result of any delay in the disbursement of the Escrow Funds or any delay in or with respect to any other
action required or requested of Escrow Agent.
6. Investment
of Funds. Escrow Funds will remain uninvested, in a non-interest bearing demand deposit account.
7. Resignation
or removal of Escrow Agent. Escrow Agent may resign and be discharged from the performance of its duties hereunder at any time
by giving 10 days’ prior written notice to the Placement Agent, the Company and Holder specifying a date when such resignation
shall take effect. Similarly, Escrow Agent may be removed at any time by the Parties’ giving at least 30 days’ prior
written notice to Escrow Agent, as applicable, specifying the date when such removal shall take effect. Upon any such notice of
resignation or removal, the Placement Agent, the Company and Holder jointly shall appoint a successor Escrow Agent, as applicable,
hereunder prior to the effective date of such resignation or removal. The retiring Escrow Agent shall transmit all records
pertaining to the Escrow Funds and shall pay all Escrow Funds to its successor, after making copies of such records as the retiring
Escrow Agent deems advisable and after payment by the Company or deduction from Escrow Funds (to the extent of Company’s
rights therein) of all fees and expenses (including court costs and attorneys’ fees) payable to, incurred by, or expected to
be incurred by the retiring Escrow Agent in connection with the performance of its duties and the exercise of its rights hereunder.
After any retiring Escrow Agent’s resignation or removal, the provisions of this Escrow Agreement shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Escrow Agent under this Escrow Agreement. Any corporation or
association into which the Escrow Agent may be merged or converted or with which it may be consolidated, or any corporation or
association to which all or substantially all of the escrow business of Escrow Agent’s corporate trust line of business may be
transferred, shall be the Escrow Agent under this Escrow Agreement without further act.
8. Liability
of Escrow Agent and Placement Agent
(a) Escrow
Agent undertakes to perform only such duties as are expressly undertaken by it hereunder and no duties shall be implied. Escrow Agent
has NO discretionary or fiduciary duties of any kind. Escrow Agent shall have no liability under or duty to inquire as to the provisions
of any agreement or document or facts other than as set forth in this Escrow Agreement. Escrow Agent shall not be liable for any action
taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that Escrow Agent’s
gross negligence or willful misconduct was the primary cause of any loss to any other Party hereto. Escrow Agent’s sole responsibility
shall be for the safekeeping and disbursement of the Escrow Funds held by it in accordance with the terms of this Escrow Agreement. Escrow
Agent shall have no implied duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically
set forth herein. Escrow Agent is not assuming any joint obligations under this Escrow Agreement with any of the Parties and this Escrow
Agreement is not intended to create any partnership, joint venture or similar relationship. Escrow Agent may rely upon any notice, instruction,
email, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy
of any information contained therein, which Escrow Agent shall believe to be genuine and to have been signed or presented by the person
or parties purporting to sign the same. In no event shall Escrow Agent be liable for incidental, indirect, special, consequential or
punitive damages (including, but not limited to lost profits), even if the Escrow Agent has been advised of the likelihood of such loss
or damage and regardless of the form of action. Escrow Agent shall not be obligated to take any legal action or commence any proceeding
in connection with the Escrow Funds, any account in which Escrow Funds are deposited, or this Escrow Agreement, or to appear in, prosecute
or defend any such legal action or proceeding or to take any other action that in its sole judgment may expose it to potential expense
or liability. Without limiting the generality of the foregoing, Escrow Agent shall not be responsible for or required to enforce any
agreement between or among the Parties, or with any Investor. Escrow Agent shall not be responsible or liable in any manner for the performance
by any of the Parties or any Investor of their respective obligations under any agreement nor shall Escrow Agent be responsible or liable
in any manner for the failure of Company, Placement Agent, Escrow Agent or any third party (including any Investor) to honor any of the
provisions of this Escrow Agreement. Escrow Agent may consult legal counsel selected by it in the event of any dispute or question as
to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating to any dispute
involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever in acting in accordance
with the opinion or instruction of such counsel. The Company shall promptly pay, upon demand, the reasonable fees and expenses of any
such counsel. Escrow Agent may rely without investigation on any instructions it receives from any person that is or purports to represent
any of the Parties.
(b) Placement
Agent undertakes to perform only such duties as are expressly undertaken by it hereunder and no duties shall be implied. Placement Agent
has NO discretionary or fiduciary duties of any kind. Placement Agent shall have no liability under or duty to inquire as to the provisions
of any agreement or document or facts other than as set forth in this Escrow Agreement. Placement Agent shall not be liable for any action
taken or omitted by it in good faith except to the extent that a court of competent jurisdiction determines that Placement Agent’s
gross negligence or willful misconduct was the primary cause of any loss to any other Party hereto. Placement Agent shall have no implied
duties or obligations and shall not be charged with knowledge or notice of any fact or circumstance not specifically set forth herein.
Placement Agent is not assuming any joint obligations under this Placement Agreement with any of the Parties and this Escrow Agreement
is not intended to create any partnership, joint venture or similar relationship. Placement Agent may rely upon any notice, instruction,
email, request or other instrument, not only as to its due execution, validity and effectiveness, but also as to the truth and accuracy
of any information contained therein, which Placement Agent shall believe to be genuine and to have been signed or presented by the person
or parties purporting to sign the same. In no event shall Placement Agent be liable for incidental, indirect, special, consequential
or punitive damages (including, but not limited to lost profits), even if the Placement Agent has been advised of the likelihood of such
loss or damage and regardless of the form of action. Placement Agent shall not be obligated to take any legal action or commence any
proceeding in connection with the Escrow Funds, any account in which Escrow Funds are deposited, or this Escrow Agreement, or to appear
in, prosecute or defend any such legal action or proceeding or to take any other action that in its sole judgment may expose it to potential
expense or liability. Without limiting the generality of the foregoing, Placement Agent shall not be responsible for or required to enforce
any agreement between or among the Parties, or with any Investor. Placement Agent shall not be responsible or liable in any manner for
the performance by any of the Parties or any Investor of their respective obligations under any agreement nor shall Placement Agent be
responsible or liable in any manner for the failure of Company, Placement Agent, Escrow Agent or any third party (including any Investor)
to honor any of the provisions of this Escrow Agreement. Placement Agent may consult legal counsel selected by it in the event of any
dispute or question as to the construction of any of the provisions hereof or of any other agreement or of its duties hereunder, or relating
to any dispute involving any party hereto, and shall incur no liability and shall be fully indemnified from any liability whatsoever
in acting in accordance with the opinion or instruction of such counsel. The Company shall promptly pay, upon demand, the reasonable
fees and expenses of any such counsel. Placement Agent may rely without investigation on any instructions it receives from any person
that is or purports to represent any of the Parties.
(c) Escrow
Agent is authorized, in its sole discretion, to comply with orders issued or processes entered by any court with respect to the Escrow
Funds, without determination by Escrow Agent of such court’s jurisdiction in the matter. If any portion of the Escrow Funds is
at any time attached, garnished or levied upon under any court order, or in case the payment, assignment, transfer, conveyance or delivery
of any such property shall be stayed or enjoined by any court order, or in case any order, judgment or decree shall be made or entered
by any court affecting such property or any part thereof, then and in any such event, Escrow Agent is authorized, in its sole discretion,
to rely upon and comply with any such order, writ, judgment or decree which it is advised by legal counsel selected by it, or which it
reasonably believes, is binding upon it without the need for appeal or other action; and if Escrow Agent complies with any such order,
writ, judgment or decree, it shall not be liable to any of the parties hereto or to any other person or entity by reason of such compliance
even though such order, writ, judgment or decree may be subsequently reversed, modified, annulled, set aside or vacated.
9.
Indemnification of Escrow Agent and Placement Agent.
| (a) | From
and at all times after the date of this Escrow Agreement, the Parties shall, to the fullest
extent permitted by law, jointly and severally indemnify, hold harmless and, upon request,
defend the Escrow Agent and each of their directors, officers, employees, attorneys, agents
and affiliates (collectively, the “EA Indemnified Parties”) against any
and all actions, claims (whether or not valid), losses, damages, liabilities, costs and expenses
of any kind or nature whatsoever (including without limitation reasonable attorneys’
fees, costs and expenses) incurred by or asserted against any of the EA Indemnified Parties
from and after the date hereof, whether direct, indirect or consequential, as a result of
or arising from or in any way relating to any claim, demand, suit, action or proceeding (including
any inquiry or investigation) by any person, including without limitation any of the Parties,
an Investor or any other person, whether threatened or initiated, asserting a claim for any
legal or equitable remedy against any person under any statute or regulation, including,
but not limited to, any federal or state securities laws, or under any common law or equitable
cause or otherwise, arising from or in connection with the negotiation, preparation, execution,
performance or failure of performance of this Escrow Agreement or any transactions contemplated
herein, whether or not any such EA Indemnified Party is a party to any such action, proceeding,
suit or the target of any such inquiry or investigation; provided, however, that no EA Indemnified
Party shall have the right to be indemnified hereunder for any liability finally determined
by a court of competent jurisdiction, subject to no further appeal, to have resulted solely
from the gross negligence or willful misconduct of such EA Indemnified Party. The Parties
further agree to indemnify each EA Indemnified Party for all costs, including without limitation
reasonable attorney’s fees, incurred by such EA Indemnified Party in connection with
the enforcement of the Parties’ obligations hereunder. Each EA Indemnified Party shall,
in its sole discretion, have the right to select and employ separate counsel with respect
to any action or claim brought or asserted against it, and the reasonable fees of such counsel
shall be paid upon demand by the Parties. |
| (b) | From
and at all times after the date of this Escrow Agreement, the Company shall, to the fullest
extent permitted by law hold harmless and, upon request, defend the Placement Agent and each
of their directors, officers, employees, attorneys, agents and affiliates (collectively,
the “PA Indemnified Parties”) against any and all actions, claims (whether
or not valid), losses, damages, liabilities, costs and expenses of any kind or nature whatsoever
(including without limitation reasonable attorneys’ fees, costs and expenses) incurred
by or asserted against any of the PA Indemnified Parties from and after the date hereof,
whether direct, indirect or consequential, as a result of or arising from or in any way relating
to any claim, demand, suit, action or proceeding (including any inquiry or investigation)
by any person, including without limitation any of the Parties, an Investor or any other
person, whether threatened or initiated, asserting a claim for any legal or equitable remedy
against any person under any statute or regulation, including, but not limited to, any federal
or state securities laws, or under any common law or equitable cause or otherwise, arising
from or in connection with the negotiation, preparation, execution, performance or failure
of performance of this Escrow Agreement or any transactions contemplated herein, whether
or not any such PA Indemnified Party is a party to any such action, proceeding, suit or the
target of any such inquiry or investigation; provided, however, that no PA Indemnified Party
shall have the right to be indemnified hereunder for any liability finally determined by
a court of competent jurisdiction, subject to no further appeal, to have resulted solely
from the gross negligence or willful misconduct of such PA Indemnified Party. The Company
further agree to indemnify each PA Indemnified Party for all costs, including without limitation
reasonable attorney’s fees, incurred by such PA Indemnified Party in connection with
the enforcement of the Parties’ obligations hereunder. Each PA Indemnified Party shall,
in its sole discretion, have the right to select and employ separate counsel with respect
to any action or claim brought or asserted against it, and the reasonable fees of such counsel
shall be paid upon demand by the Company. |
10. Compensation
to Escrow Agent.
(a) Fees
and Expenses. The Company agrees to compensate Escrow Agent for its services hereunder in accordance with Exhibit A attached
hereto and, in addition, shall reimburse Escrow Agent for all of its reasonable out-of-pocket expenses, including without limitation
attorneys’ fees, travel expenses, telephone and facsimile transmission costs, postage (including express mail and overnight delivery
charges) and copying charges. The additional provisions and information set forth on Exhibit A are hereby incorporated by this
reference, and form a part of this Escrow Agreement. All of the compensation and reimbursement obligations set forth in this Section
10 shall be payable by the Company upon demand by Escrow Agent.
(b) Security
and Offset. Escrow Agent and each EA Indemnified Party is hereby granted a security interest in, lien upon and right of offset against
and withdrawal from the Escrow Funds (to the extent payable to the Company hereunder) with respect to any compensation or reimbursement
due any of them hereunder (including any claim for indemnification hereunder). If for any reason the Escrow Funds are insufficient to
cover such compensation and reimbursement, the Company, the Holder, the Escrow Agent and the Placement Agent, as applicable, shall promptly
pay such amounts to the applicable EA Indemnified Party upon receipt of an itemized invoice.
11. Representations
and Warranties.
(a) Each
of the Placement Agent, the Escrow Manager, the Company and the Holder respectively makes the following representations and warranties:
|
(1) |
It
has full power and authority to execute and deliver this Escrow Agreement and to perform its obligations hereunder; |
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(2) |
It
hereby acknowledges that the status of Escrow Agent is that of agent only for the limited purposes set forth herein, and represents
and covenants that no representation or implication shall be made that the Escrow Agent has investigated the desirability or advisability
of investment in the Offering or has approved, endorsed or passed upon the merits of the investment therein and that the name of
Escrow Agent has or shall be used in any manner in connection with the offer or sale of the Securities other than to state that the
Escrow Agent has agreed to serve as depositary, for the limited purposes set forth herein; and |
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(3) |
Each
of the applicable persons designated on Exhibit B attached hereto has been duly appointed to act as its authorized representatives
hereunder and individually has full power and authority on its behalf to execute and deliver any instruction, to amend, modify or
waive any provision of this Escrow Agreement and to take any and all other actions as its authorized representative under this Escrow
Agreement, all without further consent or direction from, or notice to, it or any other person. |
(b) Each
of the Placement Agent, the Escrow Manager, the Company and the Holder acknowledge and agree that no change in designation of its authorized
representatives shall be effective until written notice of such change is delivered to each other party to this Escrow Agreement pursuant
to Section 14 and Escrow Agent has had reasonable time to act upon it.
(c) The
Company and Holder each further represents and warrants to Escrow Agent that no party other than the Company and the Holder have, or
shall have, any lien, claim or security interest in the Escrow Funds or any part thereof and that no financing statement under the Uniform
Commercial Code is on file in any jurisdiction claiming a security interest in or describing (whether specifically or generally) the
Escrow Funds or any part thereof. Placement Agent and Escrow Agent warrant that neither shall have nor assert any lien, claim of security
interest in the Escrow Funds or any part thereof.
(d) Placement
Agent further represents and warrants to Escrow Agent that the deposit with Escrow Agent by Placement Agent of Cash Investment Instruments
pursuant to Section 3 shall be deemed a representation and warranty by Placement Agent that such Cash Investment Instrument represents
a bona fide sale pursuant to the Sales Agreement of the the Securities, subject to and in accordance with the terms of the Sales Agreement
and Offering.
12. Identifying
Information. The Company, the Holder, Escrow Agent and Placement Agent acknowledge that a portion of the identifying information
set forth on Exhibit A is being requested by the Escrow Agent in connection with the USA PATRIOT Act, Pub.L.107-56 (the “Act”),
and Company, Holder and Placement Agent agree to provide any additional information requested by the Escrow Agent in connection with
the Act or any other law, rule or regulation to which Escrow Agent is subject, in a timely manner. The Company, Holder, the Escrow Manager
and the Placement Agent each represents that its respective identifying information set forth on Exhibit A, including without
limitation, its taxpayer identification number assigned by the Internal Revenue Service or any other taxing authority, is true and complete
on the date hereof and will be true and complete at the time of any disbursement of the Escrow Funds.
13. Consent
to Jurisdiction and Venue. Subject to Section 5(b), in the event that any Party hereto commences a lawsuit or other proceeding
relating to or arising from this Escrow Agreement, the parties hereto agree that state or federal courts located in the City and County
of Denver, Colorado, shall have the sole and exclusive jurisdiction over any such proceeding. Any of courts in this jurisdiction shall
be proper venue for any such lawsuit or judicial proceeding and the parties hereto waive any objection to such venue. The parties hereto
consent to and agree to submit to the jurisdiction of any of the courts specified herein and agree to accept service of process to vest
personal jurisdiction over them in any of these courts.
14. Notice.
All notices, approvals, consents, requests or other communications under this Escrow Agreement will be in writing and will be deemed
properly given and received when deemed delivered in accordance with the following. Notice may be given by (a) being delivered to an
overnight courier (in which case notice will be deemed given one business day after delivery to the courier); (b) by facsimile (in which
case the notice will be deemed given when the sending machine confirms successful transmission); (c) by registered or certified mail,
first class postage prepaid (in which case notice will be deemed given three business days after being mailed) or (d) by email (in which
case notice will be deemed given when the email is transmitted, so long as the sender does not receive any bounce-back or rejection message,
and any email shall be deemed signed by the person sending it or a facsimile of whose signature is attached to or contained in the email).
To be valid, a notice must be sent to the address, fax number or email address in Exhibit A, or to such other address, e-mail address,
or fax number as the receiving party will have specified by written notice in accordance with this Section 14.
15. Optional
Security Procedures. In the event funds transfer instructions, address changes or change in contact information are given (other
than in writing at the time of execution of this Escrow Agreement), whether in writing, by facsimile or otherwise, the Escrow Agent is
authorized but shall be under no duty to seek confirmation of such instructions by telephone call-back to the person or persons designated
on Exhibit B hereto, and the Escrow Agent may rely upon the confirmation of anyone purporting to be the person or persons so designated.
The persons and telephone numbers for call-backs may be changed only in writing actually received and acknowledged by Escrow Agent and
shall be effective only after Escrow Agent has a reasonable opportunity to act on such changes. If the Escrow Agent is unable to contact
any of the designated representatives identified in Exhibit B, the Escrow Agent is hereby authorized but shall be under no duty
to seek confirmation of such instructions by telephone call-back to any one or more of Company’s or Placement Agent’s executive
officers (“Executive Officers”), or representatives of the Holder, as the case may be, which shall include the titles
of Chief Executive Officer, President and Vice President, or Director, as the Escrow Agent may select. Such Executive Officer and director
shall deliver to the Escrow Agent a fully executed incumbency certificate, and the Escrow Agent may rely upon the confirmation of anyone
purporting to be any such officer. Company, Holder and Placement Agent agree that the Escrow Agent may at its option record any telephone
calls made pursuant to this Section 15. The Escrow Agent in any funds transfer may rely solely upon any account numbers or similar
identifying numbers provided by Company, Holder or Placement Agent to identify (a) the beneficiary, (b) the beneficiary’s bank,
or (c) an intermediary bank. The Escrow Agent may apply any of the Escrow Funds for any payment order it executes using any such identifying
number, even when its use may result in a person other than the beneficiary being paid, or the transfer of funds to a bank other than
the beneficiary’s bank or an intermediary bank designated. Company, Holder and Placement Agent acknowledge that these optional
security procedures are commercially reasonable.
16. Amendment
or Waiver. This Escrow Agreement may be changed, waived, discharged or terminated only by a writing signed by Placement Agent, the
Company, Escrow Agent, Escrow Manager, and the Holder. No delay or omission by any party in exercising any right with respect hereto
shall operate as a waiver. A waiver on any one occasion shall not be construed as a bar to, or waiver of, any right or remedy on any
future occasion.
17. Severability.
To the extent any provision of this Escrow Agreement is prohibited by or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of
this Escrow Agreement.
18. Governing
Law. This Escrow Agreement shall be construed and interpreted in accordance with the internal laws of the State of Colorado without
giving effect to the conflict of laws principles thereof.
19. Entire
Agreement. This Escrow Agreement constitutes the entire agreement between Escrow Agent and the Parties relating to the acceptance,
collection, holding, investment and disbursement of the Escrow Funds and sets forth in their entirety the obligations and duties of the
Escrow Agent with respect to the Escrow Funds. Nothing in this Escrow Agreement, express or implied, is intended to or shall confer upon
any person not a signatory party hereto any right, benefit or remedy of any nature whatsoever under or by reason of this Escrow Agreement.
20. Binding
Effect. All of the terms of this Escrow Agreement, as amended from time to time, shall be binding upon, inure to the benefit of and
be enforceable by the respective successors and assigns of Placement Agent, Company, Escrow Agent, Escrow Manager and the Holder.
21. Execution
in Counterparts. This Escrow Agreement may be executed in two or more counterparts, which when so executed shall constitute one and
the same agreement.
22. Termination.
Upon the earlier of (1) the Final Termination Date, (2) deposit of all amounts in the Escrow Funds into court pursuant to the applicable
provisions hereof, or (3) Escrow Agent’s receipt of a written certification from each of the Company and Holder that the rights
and obligations under Section 7(b) of the Company’s Certificates of Designations for the Series C Preferred Stock and Series D
Preferred Stock regarding a Subsequent Placement Optional Redemption of Preferred Shares are no longer in force and effect, this Escrow
Agreement shall terminate and Escrow Agent shall have no further obligation or liability whatsoever with respect to this Escrow Agreement
or the Escrow Funds.
23. Survival.
The provisions of Sections 8, 9, 10, 13, 14 and 18 and this Section 23 shall survive any termination
or expiration of this Agreement.
24. Dealings.
Escrow Agent and any shareholder, director, officer or employee of the Escrow Agent may buy, sell, and deal in any of the securities
of any of the Parties and become pecuniarily interested in any transaction in which any of the Parties may be interested, and contract
and lend money to any of the Parties and otherwise act as fully and freely as though it were not Escrow Agent under this Escrow Agreement.
Nothing herein shall preclude the Escrow Agent from acting in any other capacity for any of the Parties or any other entity.
BALANCE
OF PAGE LEFT INTENTIONALLY BLANK
SIGNATURE ON FOLLOWING PAGE
IN
WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement to be executed under seal as of the date first above written.
|
Esports
Entertainment Group, Inc. |
|
|
|
|
By: |
/s/
Michael Villani |
|
Name/Title: |
Michael
Villani, Chief Financial Officer |
|
|
|
|
INBANK,
as Escrow Agent |
|
|
|
|
By: |
/s/
Steve Sahli |
|
Name/Title: |
Steve
Sahli, Director of Treasury |
|
|
|
|
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B |
|
|
|
|
By: |
/s/
Waqas Khatri |
|
Name/Title: |
Waqas
Khatri, Director |
|
|
|
|
Maxim
Group, as Placement Agent |
|
|
|
|
By: |
/s/
Joseph Daneshgar |
|
Name/Title: |
Joseph
Daneshgar, Senior Vice President/Investment Banking |
|
|
|
|
CORPORATE
ESCROW MANAGEMENT INC, as Escrow Manager |
|
|
|
|
By: |
/s/
Carylyn K. Bell |
|
Name/Title: |
Carylyn
K. Bell, President &CEO |
EXHIBIT
A
1. |
Definitions. |
|
|
|
“Final
Termination Date” means April 6, 2023, unless extended with notice by the Company and the Placement Agent, which can automatically
be extended for another 90 days, with a copy provided to the Holder. |
|
|
|
“Maximum
Amount” means $7,186,257 of the Company’s common stock. |
2. |
Escrow
Account Name: “EEG Escrow Account” |
|
|
3. |
Escrow
Agent and Escrow Manager Fees and Charges |
|
● |
Escrow
Agent (bank) fee of $1,500.00 if standard escrow account or $3,000 if fully FDIC insured escrow account due at time of signing of
the Escrow Agreement. |
|
|
|
|
|
**If
account is setup but never funds, $500 will be due to Escrow Agent and $500 will be due to Escrow Manager |
|
|
|
|
● |
If
Escrow continues for more than one year, the Escrow Agent shall receive a fee of $500.00 per extension, payable in advance. |
|
|
|
|
● |
Escrow
Manager Fee $3,500.00; $1,000.00 due at signing of the Escrow Agreement, plus $2,500.00 due at time of first closing. |
4. |
Taxpayer
Identification Numbers. |
|
|
|
Placement
Agent: [ ] |
|
|
|
Company:
[ ] |
|
|
|
Holder:
[ ] |
Escrow
Agent:
Inbank
Address:
6380 S. Fiddlers Green Cir, Suite 108A, Greenwood Village, CO 80111
Telephone:
[ ]
E-mail:
[ ]
Escrow
Manager: CORPORATE ESCROW MANAGEMENT INC
Address:
2750 E CEDAR AVE, DENVER CO 80209
Telephone:
[ ]
E-mail:
[ ]
Company:
Esports
Entertainment Group, Inc.
Attention:
[ ]
Telephone:
[ ]
E-mail:
[ ]
Placement
Agent:
Maxim
Group LLC
Attention:
[ ]
Address:
300 Park Avenue, 16th Floor
New
York, New York 10022
Telephone:
E-mail:
[ ]
Holder:
Alto
Opportunity Master Fund, SPC - Segregated Master Portfolio B
Attention:
[ ]
Address:
c/o Ayrton Capital LLC
55
Port Road West, 2nd Floor
Westport,
CT 06880
Telephone:
E-mail:
[ ]
6. |
Termination
and Disbursement. In the event there is any termination of the Sales Agreement or a Triggering Event pursuant to Sections 4 of the
Escrow Agreement or a material breach of the Settlement Agreement, the Escrow Agent shall, in accordance with the Escrow Agreement
pay as soon as practicable to the Holder, by certified or bank check and by first-class mail, Redemption Proceeds in the Escrow Account. |
EXHIBIT
B
Each
of the following person(s) is a Company Representative authorized to execute documents and direct Escrow Agent as to all matters,
including fund transfers, address changes and contact information changes, on Company’s behalf (only one signature required):
|
|
|
|
Name |
|
Specimen
signature |
|
|
|
|
|
|
|
|
|
Name |
|
Specimen
signature |
|
|
|
|
|
|
|
|
|
Name |
|
Specimen
signature |
|
Each
of the following person(s) is a Placement Agent Representative authorized to execute documents and direct Escrow Agent as to all
matters, including fund transfers, address changes and contact information changes, on Placement Agent’s behalf (only one signature
required):
|
|
|
|
Name |
|
Specimen
signature |
|
|
|
|
|
|
|
|
|
Name |
|
Specimen
signature |
|
|
|
|
|
|
|
|
|
Name |
|
Specimen
signature |
|
Each
of the following person(s) is a Holder Representative authorized to execute documents and direct Escrow Agent as to all matters,
including fund transfers, address changes and contact information changes, on Company’s behalf (only one signature required):
|
|
|
|
Waqas
Khatri |
|
Specimen
signature |
|
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