8-K
GOOD GAMING, INC. (GMER)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 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): September 30, 2021
GOOD
GAMING, INC.
(Exact name of registrant as specified in charter)
| Nevada | 000-53949 | 46-3917807 |
|---|---|---|
| (State<br> or other jurisdiction | (Commission | (IRS<br> Employer |
| of<br> incorporation) | File<br> Number) | Identification<br> No.) |
415McFarlan Road, Suite 108
KennettSquare, PA 19348
(Address of Principal Executive Offices) (Zip Code)
(888)295-7279
(Registrant’s Telephone Number, Including Area Code)
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 (see General Instruction A.2. below):
| ☐ | Written<br> communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting<br> material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement<br> communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement<br> 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<br> Stock, $0.001 par value per share | GMER | OTC<br> Markets |
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. ☐
Item1.01 Entry into a Material Agreement.
EmployeeServices Agreement with ViaOne Services, LLC
On September 30, 2021, Good Gaming, Inc. (the “Registrant”) entered into an Employee Services Agreement (the “Services Agreement”) with ViaOne Services, LLC (“ViaOne”) effective as of September 1, 2021 (the “Effective Date”). Pursuant to the Services Agreement, ViaOne shall provide to the Registrant services relating to the Registrant’s human resources, payroll, marketing, advertising, accounting and financing (the “Services”) for a monthly management fee of $42,000 (the “Monthly Management Fee”) for a period of one year commencing from the Effective Date and automatically renewing for successive terms of one (1) year each unless either party provides the other party with at least ninety (90) days advance written notice of its intent not to renew the Services Agreement. In accordance with the terms of the Services Agreement, ViaOne shall have the right to convert part or all of the Monthly Management Fee into shares of the Registrant’s common stock, par value $0.001 per share (the “Common Stock”) at the Conversion Rate equal to 125% of the Conversion Amount, divided by the Conversion Price, as those terms are defined in the Services Agreement.
The foregoing description of the terms of the Services Agreement is not complete and is qualified in its entirety by reference to the full text of the Services Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein. Unless specified in this Current Report, capitalized terms have the meanings defined in the Services Agreement.
RevolvingConvertible Promissory Note with ViaOne Services, LLC
On September 30, 2021, the Registrant entered into a revolving convertible promissory note (the “Revolving Note”) with ViaOne. Under the terms of the Revolving Note, the Registrant promises to pay to ViaOne the principal sum of $1,000,000 or such lesser amount as may be advanced to the Registrant by ViaOne from time to time, pursuant to the Revolving Note. In consideration for extending the Revolving Note to the Registrant, the Registrant granted ViaOne warrants to purchase 1,000,000 shares of Common Stock at an exercise price of $0.42, a premium of 20% to the closing bid price of the Common Stock the trading day prior to the execution of the Revolving Note. Payment of all obligations under the Revolving Note is secured by a security interested granted to ViaOne by the Registrant in all of the right, title and interest of the Registrant in all of the assets of the Registrant currently owned or acquired hereafter.
The Revolving Note (and any unpaid interest or liquidated damages amount) may be converted into shares of Common Stock at a conversion price of eighty-five percent (85%) of the VWAP for the five (5) trading days immediately prior to the date of the notice of conversion. The Revolving Note contains customary events of default, including, among others, the failure by the Registrant to make a payment of principal or interest when due. Following an event of default, ViaOne is entitled to accelerate the entire indebtedness under the Revolving Note. The restrictions are also subject to certain additional qualifications and carveouts, as set forth in the Revolving Note.
The foregoing description of the terms of the Revolving Note is not complete and is qualified in its entirety by reference to the full text of the Revolving Note, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein. Unless specified in this Current Report, capitalized terms have the meanings defined in the Revolving Note.
Item9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit<br> Number | Description |
|---|---|
| 10.1 | Employment Services Agreement with ViaOne Services, LLC |
| 10.2 | Revolving Convertible Promissory Note with ViaOne Services, LLC |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: October 5, 2021
| GOOD GAMING, INC. | |
|---|---|
| By: | /s/ David B. Dorwart |
| Title: | David<br> B. Dorwart |
| Name: | Chief<br> Executive Officer |
Exhibit10.1
EMPLOYEESERVICES AGREEMENT
This Employee Services Agreement (this “Agreement”), effective as of September 1, 2021 (the “Effective Date”), is entered into by and between ViaOne Services, LLC, a Texas limited liability company (“ViaOne”), and Good Gaming, Inc. (“Client”).
RECITALS:
WHEREAS, Client is an independent online amateur and professional eSports tournaments operator that provides a safe, friendly, and competitive environment for all gamers and promotes professional gaming with a healthy vision towards innovation and technology (“Client Business”); and
WHEREAS, ViaOne is in the business of providing certain outsourced accounting, finance, human resources, marketing, management, administrative, inventory management and other related services (the “Employee Services”) to third parties; and
WHEREAS, the parties originally entered into an Employee Services Agreement effective March 1, 2017, pursuant to which ViaOne has been providing Employee Services to Client on a monthly basis, which agreement was amended on January 1, 2018 (the “Original Agreement”) which shall terminate on August 31, 2021; and
WHEREAS, the parties wish to allow the Original Agreement to expire and to enter into a new a Employee Services Agreement to replace and supersede the Original Agreement pursuant to and in accordance with the terms and conditions as set forth herein;
NOW,THEREFORE, in consideration of the mutual covenants and agreements herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and on the terms and subject to the conditions herein set forth, the parties agree as follows:
Engagement by Client. Client hereby engages ViaOne, and ViaOne hereby accepts such engagement, to serve as Client’s provider of Employee Services, as defined below. ViaOne shall have all necessary authority to perform, and hereby agrees to perform, the Employee Services.
Independent Contractors. ViaOne intends to act and perform as independent contractor under this Agreement, and the provisions hereof are not intended to create any partnership, joint venture, agency or employment relationship between the parties. ViaOne shall not exercise control or direction over the Client Business nor shall it interfere with the business and other relationships Client maintains with its vendors, customers, employees and others.
Employee Services. ViaOne shall provide or arrange for the provision to the Client of those certain Employee Services selected by the Client as set forth on the Service Details attached hereto as Exhibit A. ViaOne is authorized to perform the Employee Services hereunder as is necessary or appropriate for the efficient provision of such Employee Services to Client and to third parties to whom ViaOne is providing similar services from time to time. Except as necessary to comply with applicable laws, regulations or professional standards, Client will not act in a manner which would prevent ViaOne from performing its duties hereunder and will provide such information and assistance to ViaOne as reasonably required by ViaOne to perform its Employee Services hereunder. ViaOne shall cause its employees to comply with all applicable federal, state and local laws, rules and regulations respecting the Employee Services.
Employees.
a. ViaOne shall employ or retain all individuals who are to be employed or engaged in the provision of the Employee Services (the “Employee Services’ Employees”). The daily work, performance and activities of the Employee Services’ Employees shall be supervised by ViaOne. The Employee Services’ Employees shall be qualified to perform such duties and responsibilities as required by ViaOne and by applicable professional standards and federal, state, and local law, rules and regulations. ViaOne shall pay all wages, compensation, employee benefits, payroll taxes, worker’s compensation insurance premiums, unemployment insurance premiums and other costs of employment incurred in connection with the Employee Services’ Employees (the “Services Employees’ Expenses”).
b. ViaOne also shall employ or retain all individuals who are to be engaged in daily business and operations of the Client Business (the “Client Business Employees”) and shall hereby provide such Client Business Employees exclusively to the Client to perform such daily business activities and other services in connection with the Client Business as required by the Client. The daily work, performance and activities of the Client Business Employees shall be supervised by the Client. The Client Business Employees shall be qualified to perform such duties and responsibilities as required by the Client any by applicable professional standards and federal, state, and local law, rule and regulation. Notwithstanding that the Client Business Employees shall be exclusively assigned to and supervised by the Client, ViaOne shall pay all wages, compensation, employee benefits, payroll taxes, worker’s compensation insurance premiums, unemployment insurance premiums and other costs of employment incurred in connection with the Client Business Employees (the “Client Business Employees Expenses”).
5. Services Fee. In exchange for the Employee Services provided by ViaOne, Client shall pay ViaOne a monthly Management Fee as outlined on the Service Schedule attached hereto as Exhibit A or as otherwise mutually agreed upon by Client and ViaOne from time to time. The Management Fee shall be invoiced by ViaOne to Client on a monthly basis for Employee Services rendered in the prior month and shall be payable by Client to ViaOne on or before the fifteenth (15^th^) day of each month. ViaOne shall have the right to convert its Monthly Management Fee into Client’s Common Stock on the terms set forth in Exhibit A.
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6. Confidential Information. ViaOne and Client acknowledge and agree that any and all Confidential Information, as hereinafter defined, of either party communicated to, learned of, developed or otherwise acquired by the other party during the term of this Agreement is and shall remain the property of the disclosing party. ViaOne and Client further acknowledge and agree that their use or disclosure of the other party’s Confidential Information other than as provided in this Agreement will result in irreparable injury and damage to such other party. Therefore, ViaOne and the Client agree, during the term of this Agreement and at all times thereafter, to hold in strictest confidence and not to use for itself or for any other individual or entity, and not to disclose to any person, firm or corporation, the Confidential Information of the other party without the prior written consent of such other party. Upon termination of this Agreement for any reason, each party (a) shall cease all use of any of the other party’s Confidential Information, (b) shall execute such documents as may be reasonably necessary to evidence their abandonment of any claim thereto, and (c) shall will promptly deliver or cause to be delivered to the other party all documents, data and other information in their possession that contains any of such other party’s Confidential Information. As used herein, “Confidential Information” means all trade secrets and other confidential and/or proprietary information of either party, including information derived from reports, investigations, research, work in progress, codes, marketing and sales programs, billing and collection information, financial projections, cost summaries, pricing formula, contract analyses, financial information, and all other confidential concepts, methods of doing business, ideas, materials or information. The provisions of this Section 6 shall survive the termination or expiration of this Agreement.
7. Remedies. The parties acknowledge and agree that a remedy at law for any breach or attempted breach of the provisions of Sections 6 above shall be inadequate, and therefore, each party shall be entitled to injunctive or other equitable relief in the event of any such breach or attempted breach by the other party in addition to any other rights or remedies available at law or in equity. Each party waives any requirement for the securing or posting any bond in connection with obtaining any such injunctive or other equitable relief. The provisions of this Section 7 shall survive the termination or expiration of this Agreement for any reason.
8. Term of Agreement. This Agreement shall commence on the Effective Date and shall continue for a period of one (1) year. Thereafter, the term of this Agreement shall automatically renew for successive terms of one (1) year each unless either party provides the other party with at least ninety (90) days advance written notice of its intent to not renew the term of this Agreement. This Agreement may be modified periodically as agreed upon by mutual agreement.
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9. Termination. Either party may terminate this Agreement with or without cause upon ninety (90) days advance written notice to the other party. In addition, one party may terminate this Agreement immediately upon written notice to the other party (after the giving of any required notices and the expiration of any applicable waiting periods set forth below) upon the occurrence of any the following events.
a. The non-terminating party shall admit in writing its inability to generally pay its debts when due, apply for or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its assets, file a petition in bankruptcy or make an assignment for the benefit of creditors, or upon other action taken or suffered by the non-terminating party, voluntarily or involuntarily, under any federal or state law for the benefit of creditors, except for the filing of a petition in involuntary bankruptcy against the non-terminating party which is dismissed within ninety (90) days thereafter; or
b. The non-terminating party shall default in the performance of any material duty or material obligation imposed upon it by this Agreement and such default shall continue for a period of thirty (30) days after written notice thereof has been given to the non-terminating party by the terminating party.
10. Assignment. Neither party shall have the right to assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party.
11. Amendments. This Agreement shall not be modified or amended except by a written document executed by all parties to this Agreement.
12. Waiver. Any waiver of any terms and conditions hereof must be in writing, and signed by the parties hereto. The waiver of any of the terms and conditions of this Agreement shall not be construed as a waiver of any other terms and conditions hereof.
13. Entire Agreement. This Agreement constitutes the entire agreement of the parties regarding the subject matter hereof, and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof.
14. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws effective during the term hereof, such provision shall be fully severable and this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision never comprised a part hereof; and the remaining provisions hereof shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance therefrom.
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15. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS (BUT NOT THE RULE GOVERNING CONFLICTS OF LAWS) OF THE STATE OF TEXAS.
16. No Waiver; Remedies Cumulative. No party hereto shall by any act, delay, indulgence, omission or otherwise be deemed to have waived any right or remedy hereunder or to have acquiesced in any default in or breach of any of the terms and conditions hereof. Neither failure to exercise, nor any delay in exercising, on the part of any party hereto, any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. No remedy set forth in this Agreement or otherwise conferred upon or reserved to any party shall be considered exclusive of any other remedy available to any party, but the same shall be distinct, separate and cumulative and may be exercised from time to time as often as occasion may arise or as may be deemed expedient.
17. Notice. Whenever this Agreement requires or permits any notice, request, or demand from one party to another, the notice, request, or demand must be in writing to be effective and shall be deemed to be delivered and received (i) if personally delivered or if delivered by telex, telegram, facsimile or courier service, when actually received by the party to whom notice is sent or (ii) if delivered by mail (whether actually received or not), at the close of business on the third business day next following the day when placed in the mail, postage prepaid, certified or registered, addressed to the appropriate party or parties, at the address of such party set forth next to their signatures below (or at such other address as such party may designate by written notice to all other parties in accordance herewith).
18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
| Notice Addresses: | ||
|---|---|---|
| ViaOne: | ViaOne Services, LLC | |
| 415<br> McFarlan Road, Suite 108 | By: | /s/ Domenic Fontana |
| Kennett<br> Square, PA 19348 | Name: | Domenic<br> Fontana |
| Title: | SVP,<br> Finance | |
| Date: | ||
| Client: | ||
| Good Gaming, Inc. | ||
| 415<br> McFarlan Road, Suite 108 | By: | /s/ David B. Dorwart |
| Kennett<br> Square, PA 19348 | Name: | David<br> B. Dorwart |
| Title: | CEO | |
| Date: |
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ExhibitA - Service Schedule
EmployeeServices Agreement Costs:
Services to include:
| 1. | HR/Payroll<br> Services |
|---|---|
| 2. | Marketing<br> & Advertising |
| --- | --- |
| 3. | Accounting/Finance |
| --- | --- |
TheMonthly Management Fee due and payable to ViaOne is $42,000 per month which upon ViaOne’s written notice (“Conversion Notice”),may be payable, in part or in full, by shares of Client’s Common Stock at the Conversion Rate as defined below.
TheConversion Rate= Conversion Amount x Conversion Premium
ConversionPrice
“ConversionAmount” means, with respect to the Management Fee, the dollar amount of the aggregate Management Fee that is being converted intoshares of the Client’s Common Stock.
“ConversionPremium” means One Hundred Twenty-Five Percent (125%).
“ConversionPrice” means, with respect to Management Fee, eighty-five percent (100%) of the volume weighted average price (“VWAP”)for the five (5) trading days immediately prior to the date of the notice of conversion, which price shall be indicated in the conversionnotice (in the form attached hereto as Exhibit B, the “Conversion Notice”)
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ExhibitA - Service Details
Accounting/FinanceDetail Description:
FinancialServices
| ● | Create<br> a QuickBooks company file to house this information which is the property of the company |
|---|---|
| ● | Reconcile<br> Bank Account(s) Activity monthly |
| ● | Crypto<br> Account Balance Management and reconciliation |
| ● | Accounts<br> Payable processing |
| ● | Payroll<br> services will be paid appropriately at $1000/month plus the cost of a payroll provider like ADP and their respective reporting services<br> and costs. Our fee is strictly for the processing of payroll. |
| ● | Payroll<br> processing will not include annual 1099 reporting which will be an extra charge at year-end. |
| ● | Budgeting<br> will be prepared annually and presented to management. |
| ● | A<br> budgeting best view will be updated quarterly and provided/presented to management. |
| ● | This<br> agreement does not include any tax reporting and/or preparation services. |
| ● | Assistance<br> with Financial Statement audits will be provided on an ongoing basis as Via One will be the provider of data. Any non-Financial Statement<br> audit work will be billed separately. |
| ● | Preparation<br> of all public financial reporting requirements 10k, 10Q and any other reports as required by law. |
FinancialReporting
| ● | Balance<br> Sheet with all balance sheet accounts reconciled quarterly. |
|---|---|
| ● | Income<br> Statement prepared monthly and in accordance with GAAP. |
| ● | Statement<br> of Cash Flows (Printed by QuickBooks) monthly or as needed. |
| ● | Cashflow<br> Forecasting updated weekly and always a minimum of 90 days forecasted out (90 days of current month-end) - This will be prepared<br> via a shared document. |
MonthlyFinancial Statements
| ● | Balance<br> Sheet as of Month End |
|---|---|
| ● | MTD,<br> QTD & YTD Income Statement |
| ● | MTD,<br> QTD & YTD Statement of Cash Flows |
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YearEnd Financial Services
| ● | YTD<br> Balance Sheet |
|---|---|
| ● | YTD<br> Income Statement |
| ● | YTD<br> Statement of Owner’s Equity |
| ● | YTD<br> Statement of Cash Flows |
Marketing& Advertising Detail Description:
CustomerAcquisition
| ● | Online<br> Acquisition Strategy Development |
|---|---|
| ● | Web<br> Development & Design |
| ● | Social<br> Media Management |
| ● | Content<br> Writing |
| ● | Prospecting<br> & List Services Research |
| ● | Automated<br> Email & SMS Strategy |
| ● | Product<br> Development Strategy |
| ● | Consumer<br> Research & Study Groups |
| ● | SEM/PPC/Display/Video/Social<br> Paid Marketing Strategy |
| ● | SEM/PPC/Display/Video/Social<br> Paid Marketing Execution |
| ● | SEM/PPC/Display/Video/Social<br> Paid Marketing Analytics & Optimization |
| ● | SEM/PPC/Display/Video/Social<br> Paid Marketing Budget Development & Maintenance |
| ● | SEM/PPC/Display/Video/Social<br> Paid Marketing KPI Development Customer |
Retention
| ● | Overall<br> Retention Strategy & Execution |
|---|---|
| ● | Automated<br> Email & SMS Messaging Strategy |
| ● | Billing<br> & Payment Strategies |
| ● | Retention<br> Promotion Strategies |
| ● | Customer<br> Exit Interviews & Surveys |
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GeneralMarketing Services
| ● | Ad<br> Image/Voice Consistency & Standardization |
|---|---|
| ● | Consumer<br> Targeting & Demographics |
| ● | Ad<br> Related Graphic Design |
| ● | Ad<br> Related Copywriting |
| ● | Ad<br> & Web Analytics |
| ● | Partner<br> / Vendor Management and Recruiting |
| ● | Partner<br> & Affiliate Marketing Strategies |
| ● | Weekly<br> Team Meeting |
| ● | Weekly<br> 1:1 |
| ● | Monthly<br> board meeting preparations/updates |
DoesNOT Include:
| ○ | Royalty<br> Free or Royalty Artwork/Graphics (Shutterstock, iStock, etc.) |
|---|---|
| ○ | Production<br> Costs |
| ○ | Collateral<br> Costs |
| ○ | Advertising<br> Costs |
| ○ | PPC<br> / SEM Costs |
| ○ | Postage |
| ○ | Third<br> Party Supportive Software (surveys, analytics, etc.) |
| ○ | Any<br> other fees above and beyond hours described to perform the tasks above |
| ○ | Projects<br> outside the scope described above will be quoted separately |
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Exhibit 10.2
REVOLVING CONVERTIBLE PROMISSORY NOTE
(Revolving Note)
| $1,000,000.00 | September 30, 2021 |
|---|
1. Promiseto Pay. At the times stated in this Note, for value received, Good Gaming, Inc., a Nevada corporation duly organized and existing under the laws of the State of Nevada (“Borrower”), promises to pay to ViaOneServices, LLC, a Texas limited liability Borrower (“Lender”) the principal sum of up to One Millionand 00/100 Dollars ($1,000,000.00) (the “Maximum Amount”) or such lesser amount as may be advanced by Lender under the below-defined Revolving Loan Agreement, with interest, from the date of initial disbursement of all or any part of the principal of this Note, on the unpaid principal at the interest rate or interest rates provided for in this Note.
2. InterestRate; Payment of Principal and Interest.
2.1 Certain Definitions. For purposes of this Note, the following terms shall have the following definitions:
| (a) | Expiration<br> Date. Expiration Date means the earlier of (i) on demand or (ii) the date that is three<br> (3) years from the Original Issue Date. |
|---|
(b) Note Rate. This note will be subject to a simple interest rate of 8% per annum.
(c) Original Issue Date. The date that this Note was issued to the Borrower hereunder.
(d) Payment Date. The third anniversary of the Original Issue Date.
2.2 Interest. Interest shall accrue at a rate equal to the Note Rate, subject always to Section 5 below.
2.3 Grantof Security Interest. Payment of all obligations under this Note is secured by a security interest granted to the Lender by the Borrower in all of the right, title and interest of the Borrower in, whether now existing or hereafter from time to time acquired, all of the assets of the Borrower currently owned or acquired hereafter, including, but not limited to all (i) accounts, (ii) chattel paper, (iii) documents, (iv) equipment, (v) general intangibles, (vi) goods, (vii) instruments, (viii) insurance policies covering any or all of the Collateral, (ix) inventory, (x) investment property and issued and outstanding equity interests (including shares of capital stock and interests in any general partnership, limited partnership, limited liability partnership and limited liability company) that are directly owned by the Borrower, (xi) letter of credit rights, (xii) money, (xiii) rights to payment, (xiv) commercial tort claims, (xv) to the extent not otherwise included above, all other personal property of any kind and all books, records, ledger cards, files, correspondence, customer lists, supplier lists, blueprints, technical specifications, manuals, computer software and related documentation, computer printouts, tapes, disks and other electronic storage media and related data processing software and similar items that at any time evidence or contain information relating to any of the Collateral or are otherwise necessary or helpful in the collection thereof or realization thereupon, and to the extent not otherwise included above, (xvi) all proceeds, products, accessions, rents and profits of or in respect of any of the foregoing, in each case as defined in the Uniform Commercial Code (collectively, the “Collateral”). Notwithstanding the foregoing, the Collateral does not include any of the following, whether now owned or hereafter acquired by the Borrower: any copyright rights, copyright applications, copyright registrations and like protections in each work of authorship and derivative work, whether published or unpublished, any patents, patent applications and like protections, including improvements, divisions, continuations, renewals, reissues, extensions, and continuations-in-part of the same, trademarks, service marks and, to the extent permitted under applicable law, any applications therefor, whether registered or not, and the goodwill of the business of the Borrower connected with and symbolized thereby, know-how, operating manuals, trade secret rights, rights to unpatented inventions, and any claims for damage by way of any past, present or future infringement of any of the foregoing; provided, however, the Collateral shall include all Accounts, license and royalty fees and other revenues, proceeds, or income arising out of or relating to any of the foregoing (“BorrowerIntellectual Property”).
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2.4 Payments. Principal and interest shall be due and payable as follows:
(a) Payment on Expiration Date; Payment in Full. The entire unpaid principal balance of this Note and all accrued and unpaid interest thereon shall be due and payable on the Expiration Date or the date of any earlier acceleration of this Note. In any event, interest shall be paid on the date of payment in full of principal of this Note if no further advances of the Revolving Loan may be made under the Revolving Loan Agreement.
(b) Advances. The Borrower may request advances of principal (each, an “Advance”) under this Note as provided herein. Borrower may be entitled to make requests for Advances hereunder in an aggregate principal amount not to exceed the Maximum Amount of this Note made by Borrower contemporaneously with this Note and held by the Lender, by delivering to the Lender at least [5] business days in advance of the requested funding date a written request (an “Advance RequestCertificate”) substantially in the form of Exhibit A hereto. The Lender is authorized to, and so long as it holds this Note shall, record the date and amount of each Advance made by the Lender on the schedule annexed hereto and consisting a part hereof, and any such recordation shall constitute prima facie evidence of the accuracy of the information recorded, provided that failure of the Lender to make such recordation (or any error in recordation) shall not affect the obligations of the Borrower under this Note.
2. InterestComputation. All payments under this Note shall be made in immediately available funds and shall be credited (except as otherwise provided in the Revolving Loan Agreement) first to accrued interest then due, thereafter to unpaid principal, and then to other charges, fees, costs, and expenses payable by Borrower under this Note or in connection with any advances of the Revolving Loan in such order and amounts as Lender may determine in its sole and absolute discretion. If any payment of interest is not made when due, at the option of Lender, such interest payment shall bear interest at the below-described Default Rate from and after the due date of the interest payment. Principal and interest shall be payable only in lawful money of the United States of America. The receipt of any check or other item of payment (a “Payable Item”) by Lender, at its option, shall not be considered a payment until such payment item is honored when presented for payment at the drawee bank or institution, and Lender, at its option, may delay the credit of such payment until such payment item is so honored. Notwithstanding anything to the contrary contained in this Note, interest at the rates provided for in this Note shall be computed on the basis of a three hundred sixty (360) day year for the actual number of days during which any principal of this Note is outstanding. Borrower acknowledges and agrees that the calculation of interest on the basis described in the immediately preceding sentence may result in the accrual and payment of interest in amounts greater than those which would be payable if interest were calculated on the basis of a three hundred sixty-five (365) day year.
3.Optional Prepayment*.* Borrower may prepay this Note in whole or in part at any time, without premium or penalty. Amounts so prepaid are available for re-borrowing.
4. AfterMaturity/Default Rate of Interest. From the earlier of (a) the occurrence of an Event of Default and during the continuance thereof (whether or not Lender has elected to accelerate unpaid principal and interest under this Note as a result of such Event of Default) after any required notice has been given and applicable period for cure has expired or (b) the maturity of this Note (whether the Expiration Date or the maturity date resulting from Lender’s acceleration of unpaid principal and interest) and thereafter until payment in full, interest on the unpaid principal balance of this Note shall continue to accrue at the Note Rate until this Note has been paid in full.
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5.Conversion. This Note (and any unpaid interest or liquidated damages amount) may be converted into shares of the Borrower’s common stock, par value $0.001 per share, at a conversion price of eighty-five percent (80%) of the volume weighted average price (“VWAP”) for the five (5) trading days immediately prior to the date of the notice of conversion, which price shall be indicated in the conversion notice (in the form attached hereto as Exhibit B, the “Conversion Notice”).
6.Commitment Warrants. In consideration for the Lender’s commitments and agreements herein with respect to the Note, the Borrower shall issue to the Lender warrants (the “Warrants”) to purchase One Million (1,000,000) shares of Common Stock at an exercise price equal to a twenty percent (20%) premium of the closing bid price on the date prior to the execution of this Note, and expiring within five (5) years of the issuance thereof.
7. LateCharge. If any payment of interest, principal, or both principal and interest under this Note is not paid in full within ten (10) days after the date on which it is due, Borrower shall immediately pay a late charge equal to 10 percent (10%) of the amount due to Lender. Borrower agrees that the actual damages suffered by Lender because of any late payment are extremely difficult and impracticable to ascertain, and the late charge described in this Section represents a reasonable attempt to fix such damages under the circumstances existing at the time this Note is executed. Lender’s acceptance of any late charge shall not constitute a waiver of any of the terms of this Note and shall not affect Lender’s right to enforce any of its rights and remedies against any Person liable for payment of this Note.
8. Waivers. Borrower and all sureties, guarantors, endorsers and other Persons liable for payment of this Note (a) waive presentment, demand for payment, protest, notice of demand, dishonor, protest and nonpayment, and all other notices and demands in connection with the delivery, acceptance, performance, default under, and enforcement of this Note; (b) waive the right to assert any statute of limitations as a defense to the enforcement of this Note to the fullest extent permitted by law; (c) consent to all extensions and renewals of the time of payment of this Note and to all modifications of this Note by Lender and Borrower without notice to and without in any way affecting the liability of any Person for payment of this Note; and (d) consent to any forbearance by Lender and to the release, addition, and substitution of any Person liable for payment of this Note and of any or all of the security for this Note without notice to and without in any way affecting the liability of any Person for payment of this Note.
9.Default. The occurrence of any of the following events shall constitute an “Event of Default”: (a) the failure of Borrower to pay all or any portion of the principal and interest due and payable under this Note and such failure continues for five (5) business days after the Lender notifies Borrower in writing of such failure; (b) the filing against Borrower of an involuntary petition or other pleading seeking the entry of a decree or order for relief under the United States Bankruptcy Code or any similar federal or state insolvency or other similar law ordering: (a) the liquidation of Borrower, (b) a reorganization of Borrower or the business and affairs of Borrower, or (c) the appointment of a receiver, liquidator, assignee, custodian, trustee or similar official for Borrower or the property of Borrower, and the failure to have such petition or other pleading denied or dismissed within thirty (30) days from the date of filing; (c) the commencement by Borrower of a voluntary case under the United States Bankruptcy Code or any similar federal or state insolvency or other similar law, (a) the consent by Borrower to the appointment or taking possession by a receiver, liquidator, assignee, trustee, custodian or similar official for Borrower or any of the property of Borrower, or (b) the making by Borrower of an assignment for the benefit of creditors and (d) the breach of any term of any of the Note by the Borrower. Lender, at its option and without notice to or demand on Borrower or any other Person, may terminate any or all obligations which it may have to extend further credit to Borrower and may declare the entire unpaid principal balance of this Note and all accrued interest thereon to be immediately due and payable upon the occurrence of any Event of Default as defined in the Revolving Loan Agreement.
10.Application of Payments. Upon the occurrence of any Event of Default, Lender, at its option, shall have the right to apply all payments made under this Note to principal, interest, and other charges, fees, costs and expenses payable by Borrower under this Note or in connection with any advance of the Revolving Loan in such order and amounts as Lender may determine in its sole and absolute discretion.
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11.Modifications; Cumulative Remedies; Loss of Note; Time of Essence. No modification or waiver by Borrower of any of the terms of this Note shall be valid or binding on Lender unless such modification or waiver is in writing and signed by Lender. Lender’s rights and remedies under this Note are cumulative with and in addition to all other legal and equitable rights and remedies which Lender may have in connection with the Revolving Loan. The headings to sections of this Note are for convenient reference only and shall not be used in interpreting this Note. If this Note is lost, stolen, or destroyed, upon Borrower’s receipt of a reasonably satisfactory indemnification agreement executed by Lender, or if this Note is mutilated, upon Lender’s surrender of the mutilated Note to Borrower, Borrower shall execute and deliver to Lender a new promissory note which is identical in form and content to this Note to replace the lost, stolen, destroyed or mutilated Note. Time is of the essence in the performance of each provision of this Note by Borrower.
12.Attorneys’ Fees. If Borrower defaults under any of the terms of this Note, Borrower shall pay all costs and expenses, including without limitation reasonable attorneys’ fees and costs, incurred by Lender in enforcing this Note immediately upon Lender’s demand, whether or not any action or proceeding is commenced by Lender.
13.Applicable Law; Successors. This Note shall be governed by and interpreted in accordance with the laws of the State of Nevada. This Note shall be the joint and several obligation of all Persons executing this Note as Borrower and all sureties, guarantors, and endorsers of this Note, and this Note shall be binding upon each of such Persons and their respective successors and assigns. This Note shall inure to the benefit of Lender and its successors and assigns. Venue for any proceedings hereunder shall be as provided in the Revolving Loan Agreement.
14.Security. This Note is secured as provided by the security interest pursuant to Section 2.3 herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Secured Convertible Promissory Note as of the day and year first written above.
| GOOD GAMING, INC. | |
|---|---|
| By: | /s/ Domenic Fontana |
| Name: | Domenic<br> Fontana |
| Title: | Treasurer |
AGREED TO AND ACCEPTED:
VIAONESERVICES, LLC
| By: | /s/ David B. Dorwart |
|---|---|
| Name: | David<br> B. Dorwart |
| Title: | Chairman<br> and CEO |
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Schedule A
Schedule of Advances
| Date | Amount of Advance | Principal Balance |
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ExhibitA
AdvanceRequest Certificate
RevolvingConvertible Promissory Note
Pursuant to the terms of the Revolving Convertible Promissory Note (the “Note”) dated as of [_______________, 2021] between Good Gaming, Inc. (the “Borrower”) and ViaOne Services, LLC (the “Holder”), the undersigned hereby requests that the Holder advance funds as follows:
Amount of Advance: $_________________
Date of Advance: _________________
Deposit account to be credited: ________________________
To the Note: $__________________________
Capitalized terms used herein and not otherwise defined shall have the meanings therein defined in the Note.
To induce the Holder to make the requested Advance the undersigned certifies as follows:
1. The undersigned is in compliance with all of the terms, covenants and conditions of the Note.
2. No Event of Default under the Note has occurred which has not been waived in writing by the Holder.
Good Gaming, Inc.
| By: |
|---|
| Name: |
| Title: |
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