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): October 3, 2017

 

SNAP INTERACTIVE, INC.
(Exact name of registrant as specified in its charter)

 

Delaware   000-52176   20-3191847
(State or other jurisdiction   (Commission File Number)   (IRS Employer
of incorporation)       Identification No.)

 

122 East 42nd Street,

New York, NY

  10168
(Address of principal executive offices)   (Zip Code)

 

Registrant’s telephone number, including area code: (212) 594-5050

 

(Former name or former address, if changed since last report)

Not Applicable

 

 

 

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 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))

 

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.

 

As previously announced, on September 6, 2017, Snap Interactive, Inc. (the “Company”), LiveXLive Media, Inc., a Delaware corporation (“Buyer”), LXL Video Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of Buyer (“Merger Sub”), and Jason Katz, as the agent of the stockholders of the Company, entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, among other things, the Company agreed to merge with and into Merger Sub, with Merger Sub surviving as a wholly owned subsidiary of Buyer (the “Merger”). The Merger Agreement is filed as Exhibit 2.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on September 11, 2017.

 

On October 3, 2017, the Company, Buyer, Merger Sub and Mr. Katz entered into Amendment No. 1 (“Amendment No. 1”) to the Merger Agreement. Amendment No. 1 amends the Merger Agreement to: (i) extend the date by which the “Buyer Public Offering” (as defined in the Merger Agreement) shall have priced prior to triggering the Company’s right to terminate the Merger Agreement from October 9, 2017 to October 27, 2017; and (ii) extend the outside date by which the “Closing” (as defined in the Merger Agreement) shall have occurred prior to triggering the Company’s right to terminate the Merger Agreement from December 8, 2017 to January 3, 2018. Other than as expressly modified by Amendment No. 1, the Merger Agreement remains in full force and effect as originally executed on September 6, 2017.

 

On October 10, 2017, the Company, Buyer, Merger Sub and Mr. Katz entered into Amendment No. 2 (“Amendment No. 2”) to the Merger Agreement. Amendment No. 2 amends the Merger Agreement to, among other things, provide that the Company shall prepare and file with the SEC, and mail to its stockholders, a proxy statement on Schedule 14A relating to a meeting of the stockholders of the Company to be called for the purpose of seeking the approval of the stockholders of the Company of the Merger Agreement and the Merger, with the receipt of such approval being a condition to the closing of the Merger. Other than as expressly modified by Amendment No. 2, the Merger Agreement remains in full force and effect as originally executed on September 6, 2017 (and as modified by Amendment No. 1).

 

In addition, in connection with Amendment No. 2, the Company will seek to have certain stockholders of the Company enter into a Voting Agreement with Buyer, pursuant to which such stockholders would agree, among other things and subject to the terms thereof, to vote all shares of the common stock of the Company beneficially owned by such stockholders in favor of the Merger and against certain matters, including other proposals to acquire the Company.

 

The foregoing description of Amendment No. 1 and Amendment No. 2 does not purport to be complete and is qualified in its entirety by reference to Amendment No. 1 and Amendment No. 2, which are filed as Exhibit 2.2 and Exhibit 2.3 hereto, respectively, and are incorporated herein by reference. For a detailed discussion of the Merger and the terms of the Merger Agreement, see the Company’s Current Report on Form 8-K filed with the SEC on September 11, 2017.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit #   Description
     
2.1*   Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on September 11, 2017).
     
2.2   Amendment No. 1, dated as of October 3, 2017, to the Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz.
     
2.3   Amendment No. 2, dated as of October 10, 2017, to the Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz.

 

* Schedules have been omitted pursuant to Item 601(b)(ii) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the SEC upon request.

 

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Important Information for Investors and Shareholders

 

This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. In connection with the proposed acquisition by Buyer of the Company, Buyer will file with the SEC a registration statement on Form S-4 that will include a proxy statement of the Company that also constitutes a prospectus of Buyer. The definitive proxy statement/prospectus will be delivered to stockholders of the Company. INVESTORS AND SECURITY HOLDERS ARE URGED TO READ THE DEFINITIVE PROXY STATEMENT/PROSPECTUS AND OTHER DOCUMENTS THAT WILL BE FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION. Investors and security holders will be able to obtain free copies of the registration statement and the definitive proxy statement/prospectus (when available) and other documents filed with the SEC by Buyer and the Company through the website maintained by the SEC at www.sec.gov. Copies of the documents filed with the SEC by Buyer will be available free of charge on Buyer’s internet website at http://www.livexlive.com or by contacting Buyer’s Investor Relations Department at (310) 601-2500. Copies of the documents filed with the SEC by the Company will be available free of charge on the Company’s internet website at http://www.snap-interactive.com or by contacting the Company at (212) 594-5050.

 

Participants in the Merger Solicitation

 

The Company, Buyer, their respective directors and certain of their executive officers and employees may be considered participants in the solicitation of proxies in connection with the proposed transaction. Information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the Company’s stockholders in connection with the proposed merger will be set forth in the proxy statement/prospectus when it is filed with the SEC. Information about the directors and executive officers of the Company is set forth in its proxy statement for its 2017 annual meeting of stockholders, which was filed with the SEC on April 25, 2017 and certain of its Current Reports on Form 8-K. Information about the directors and executive officers of Buyer is set forth in Buyer’s Annual Report on Form 10-K for its fiscal year ended March 31, 2017, which was filed with the SEC on June 14, 2017 and certain of its Current Reports on Form 8-K. Additional information regarding the participants in the proxy solicitations and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement/prospectus filed with the above-referenced registration statement on Form S-4 and other relevant materials to be filed with the SEC when they become available.

 

Cautionary Statement Regarding Forward-Looking Statements

 

This Current Report on Form 8-K release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995. Such statements may be preceded by the words “intends,” “may,” “will,” “plans,” “expects,” “anticipates,” “projects,” “predicts,” “estimates,” “aims,” “believes,” “hopes,” “potential” or similar words. Forward-looking statements are not guarantees of future performance, are based on certain assumptions and are subject to various known and unknown risks and uncertainties, many of which are beyond the control of the Company and Buyer, and cannot be predicted or quantified and consequently, actual results may differ materially from those expressed or implied by such forward-looking statements. Such risks and uncertainties include, without limitation: the ability of the Company and Buyer to consummate the Merger, including the ability to satisfy conditions to closing the Merger; risks and uncertainties associated with general economic, industry and market sector conditions; future growth and the ability to obtain additional financing to implement growth strategies; the ability to successfully develop and launch new applications, including dating applications with live video features; the ability to successfully combine the product and services portfolio of the Company and Buyer; the ability to market products and services internationally and derive revenue therefrom; the ability to successfully license products and platforms; the ability to increase or recognize revenue, decrease expenses and increase the number of active subscribers, new subscription transactions or monthly active users; the ability to enter into new advertising and licensing agreements; the ability to diversify new user acquisition channels or improve the conversion of users to paid subscribers; the ability to anticipate and respond to changing user and industry trends and preferences; industry competition; and circumstances that could disrupt the functioning of the applications of the Company or Buyer. More detailed information about the Company and Buyer and the risk factors that may affect the realization of forward-looking statements is set forth in the filings of the Company and Buyer with the SEC, including the most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q for such entities. Investors and security holders are urged to read these documents free of charge on the SEC’s web site at http://www.sec.gov.

 

All forward-looking statements speak only as of the date on which they are made. The Company and Buyer undertake no obligation to update any forward-looking statement or statements to reflect events or circumstances after the date on which such statement was made, except to the extent required by applicable securities laws.

 

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SIGNATURES

 

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 10, 2017    
       
    SNAP INTERACTIVE, INC .
       
    By: /s/ Alexander Harrington
      Alexander Harrington
      Chief Executive Officer

 

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EXHIBIT INDEX

 

Exhibit #   Description
     
2.1*   Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz (incorporated by reference to Exhibit 2.1 to the Company’s Current Report on Form 8-K, filed with the SEC on September 11, 2017).
     
2.2   Amendment No. 1, dated as of October 3, 2017, to the Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz.
     
2.3   Amendment No. 2, dated as of October 10, 2017, to the Agreement and Plan of Merger, dated as of September 6, 2017, by and among LiveXLive Media, Inc., LXL Video Acquisition Corp., Snap Interactive, Inc. and Jason Katz.

 

* Schedules have been omitted pursuant to Item 601(b)(ii) of Regulation S-K. A copy of any omitted schedule will be furnished supplementally to the SEC upon request.

 

 

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Exhibit 2.2

AMENDMENT NO. 1

TO

AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 1 (this “ Amendment ”), dated as of October 3, 2017, to the Agreement and Plan of Merger (the “ Merger Agreement ”), dated as of September 6, 2017, is by and among LiveXLive Media, Inc., a Delaware corporation (“ Buyer ”), LXL Video Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Buyer (“ Merger Sub ”), Snap Interactive, Inc., a Delaware corporation (the “ Company ”), and Jason Katz in his capacity as the stockholders’ agent (the “ Stockholders’ Agent ”). Buyer, Merger Sub, the Company and the Stockholders’ Agent are each sometimes referred to collectively as the “ Parties .”

WHEREAS, the Parties desire to amend certain provisions of the Merger Agreement as described herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Merger Agreement and this Amendment, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows:

1.         Definitions . Terms used and not defined herein shall have the meanings ascribed thereto in the Merger Agreement.

2.        Amendment . Section 8.2(a) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(a) the Buyer Public Offering shall not have priced on or before 5:00 p.m. (New York Time) on October 27, 2017, or the Closing shall not have occurred by the earlier of: (i) a commercially reasonable period of time following the closing of the Buyer Public Offering (taking into account all SEC and other regulatory requirements in connection with the Information Statement and Form S-4) or (ii) January 3, 2018, or such other dates and times as may have been agreed upon in writing by Buyer and the Company (such applicable date, the “ Outside Date ”);”

3.         Effect of Amendment . This Amendment shall not constitute an amendment or waiver of any provision of the Merger Agreement not expressly amended or waived herein and shall not be construed as an amendment, waiver or consent to any action that would require an amendment, waiver or consent except as expressly stated herein. The Merger Agreement, as amended by this Amendment, is and shall continue to be in full force and effect and is in all respects ratified and confirmed hereby.

4.         Counterparts . This Amendment may be executed manually or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Parties. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Amendment.

  

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5.         Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to conflicts of laws principles that would result in the application of the Law of any other state.

6.         Other Miscellaneous Terms . The provisions of Article IX ( Miscellaneous ) of the Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.

 

[ The remainder of this page is intentionally blank .]

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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed as of the date first written above.

 

    LIVEXLIVE MEDIA, INC.
     
    By: /s/ Jerome N. Gold
    Name: Jerome N. Gold
    Title: Executive Vice President and CFO
     
    LXL VIDEO ACQUISITION CORP.
     
    By: /s/ Jerome N. Gold
    Name: Jerome N. Gold
   

Title:

CFO and Secretary 

     
    SNAP INTERACTIVE, INC.
     
    By: /s/ Jason Katz
    Name: Jason Katz
    Title: President
     
     
    /s/ Jason Katz
    JASON KATZ


 

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Exhibit 2.3

AMENDMENT NO. 2

TO

AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 2 (this “ Amendment ”), dated as of October 10, 2017, to the Agreement and Plan of Merger dated as of September 6, 2017 (as amended or supplemented from time to time, including by that certain Amendment No. 1 dated as of October 3, 2017, the “ Merger Agreement ”), is by and among LiveXLive Media, Inc., a Delaware corporation (“ Buyer ”), LXL Video Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Buyer (“ Merger Sub ”), Snap Interactive, Inc., a Delaware corporation (the “ Company ”), and Jason Katz in his capacity as the stockholders’ agent (the “ Stockholders’ Agent ”). Buyer, Merger Sub, the Company and the Stockholders’ Agent are each sometimes referred to collectively as the “ Parties .”

WHEREAS, the Parties desire to amend certain provisions of the Merger Agreement as described herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained in the Merger Agreement and this Amendment, and for other good and valuable consideration, the receipt and adequacy of which are acknowledged, the Parties agree as follows:

1.         Definitions . Terms used and not defined herein shall have the meanings ascribed thereto in the Merger Agreement.

2.        Amendments .

(a)       The following definitions are hereby added to Section 1.1 of the Merger Agreement:

Company Stockholders’ Meeting ” means the meeting of the holders of Company Common Shares for the purpose of seeking Stockholders’ Approval, including any postponement or adjournment thereof.

Proxy Statement ” means the proxy statement in preliminary and definitive form relating to the Company Stockholders’ Meeting for Stockholders’ Approval to be filed with the SEC by the Company as provided herein, as it may be amended or supplemented from time to time.

Stockholders’ Approval ” means the Company Stockholders’ adoption of this Agreement and any other matter that must be approved by the Company Stockholders in order for the transactions contemplated by this Agreement to be consummated by the affirmative vote of the holders of a majority of the outstanding Company Common Shares entitled to vote upon such matters at the Company Stockholders’ Meeting in accordance with the DGCL and the Company Organizational Documents.

Voting Agreement ” means those agreements in a form mutually acceptable to Buyer and the Company pursuant to which certain stockholders of the Company agree, among other things, to vote the Company Common Shares held by them in favor of the adoption of this Agreement and the Merger.”

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(b)       The definitions of “Information Statement” and “Written Consent” are hereby deleted in their entirety from Section 1.1 of the Merger Agreement.

(c)       The definition of “Transaction Expenses” contained in Section 1.1 of the Merger Agreement is hereby amended so that the reference to “Information Statement” contained therein shall be a reference to “Proxy Statement”.

(d)       The third WHEREAS clause in the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“WHEREAS, as an inducement and condition to the willingness of Buyer and Merger Sub to enter into this Agreement, the Company shall cause to be delivered to Buyer and Merger Sub the Voting Agreements (as defined herein) executed by certain stockholders of the Company.”

(e)       Section 3.3 of the Merger Agreement is hereby amended: (x) to add the following at the end of the first sentence thereof: “, subject to the receipt of Stockholders’ Approval.” and (y) to amend and restate the third sentence thereof in its entirety to read as follows: “Upon receipt of Stockholders’ Approval, the Company will have obtained the necessary consent and approval of this Agreement from the Company Stockholders as required by the Company Organizational Documents and applicable Laws, and no additional Consent will be required from any Company Stockholder.”

(f)       The first sentence of Section 3.4 of the Merger Agreement is hereby amended to add the following clause immediately prior to item (a) thereof:

“(subject to the receipt of Stockholders’ Approval)”

(g)       Clause (A) of item (i) of the first sentence of Section 3.5 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(A) the Proxy Statement and a registration statement on Form S-4 pursuant to which the issuance of the Buyer Common Shares to the Company Stockholders will be registered pursuant to the Securities Act and in which the Proxy Statement will be included (together with any amendments or supplements thereto, the “ Form S-4 ”), and declaration of effectiveness of the Form S-4,”

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(h)       Section 3.8 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“3.8 Information Supplied . None of the information supplied or to be supplied by or on behalf of the Company or its Subsidiaries in writing for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement will (a) in the case of the Form S-4, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) in the case of the Proxy Statement, at the time the Proxy Statement is first mailed to the Company Stockholders, and at the time of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4, at the time it becomes effective under the Securities Act, and the Proxy Statement, at the time it is first mailed to the Company Stockholders, will (with respect to the Company, its officers and directors and the Company’s Subsidiaries) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. No representation or warranty is made hereunder as to statements made or incorporated by reference in the Form S-4 or the Proxy Statement that were not supplied by or on behalf of the Company, its Subsidiaries or any of their respective Representatives.”

(i)       Section 4.10 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“4.10 Information Supplied . None of the information supplied or to be supplied by or on behalf of Buyer and its Subsidiaries in writing for inclusion or incorporation by reference in the Form S-4 or the Proxy Statement will (a) in the case of the Form S-4, at the time it becomes effective under the Securities Act, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, or (b) in the case of the Proxy Statement, at the time the Proxy Statement is first mailed to the Company Stockholders, and at the time of the Company Stockholders’ Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading. The Form S-4, at the time it becomes effective under the Securities Act, and the Proxy Statement, at the time it is first mailed to the Company Stockholders, will (with respect to Buyer, its officers and directors and Buyer’s Subsidiaries) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the rules and regulations thereunder. No representation or warranty is made hereunder as to statements made or incorporated by reference in the Form S-4 or the Proxy Statement that were not supplied by or on behalf of Buyer, its Subsidiaries or any of their respective Representatives.”

(j)       Section 5.5(d)(iv) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(iv) fail to include the Company Recommendation in the Proxy Statement;”

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(k)       Section 5.7(a) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(a) As promptly as reasonably practicable following the Agreement Date, the Company shall, with reasonable assistance of Buyer, prepare the Proxy Statement for inclusion in the Form S-4. The Company shall use its Commercially Reasonable Efforts to as promptly as reasonably practicable (and after consultation with, and the assistance of, Buyer) respond to any comments made by the SEC with respect to the Proxy Statement. The Company will provide Buyer with a reasonable opportunity to review and comment on any responses to comments from the SEC on the Proxy Statement or any amendments or supplements to the Proxy Statement prior to the filing of such responses, amendments or supplements. The Company shall cause the Proxy Statement (substantially in the form last filed and/or cleared) to be promptly filed with the SEC in definitive form and then to be mailed to the Company Stockholders as promptly as practicable, and in any event within five (5) Business Days, after the declaration by the SEC of the effectiveness of the Form S-4 (or such later date as the parties hereto shall agree).”

(l)       Section 5.7(b) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(b) Except in each case to the extent that the Company Board shall have made a Change of Recommendation as permitted by Section 5.5, the Company shall, through the Company Board, recommend to its stockholders that they give the Stockholders’ Approval, include such recommendation in the Proxy Statement and solicit and use Commercially Reasonable Efforts to obtain the Stockholders’ Approval. In the event that Stockholders’ Approval is not obtained on the date on which the Company Stockholders’ Meeting is initially convened, the Company Board shall have the right to adjourn such Company Stockholders’ Meeting on one or more occasions solely for the purpose of soliciting proxies from Company Stockholders in order to obtain Stockholders’ Approval. Notwithstanding anything contained herein to the contrary, the Company shall not be required to hold the Company Stockholders’ Meeting if this Agreement is terminated before the Company Stockholders’ Meeting is held.”

(m)       Sections 5.7(c), 5.7(d) and 5.7(e) of the Merger Agreement are hereby amended so that the references to “Information Statement” contained therein shall be references to “Proxy Statement”.

(n)       Section 6.3 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“6.3 Stockholders’ Approval . Stockholders’ Approval shall have been obtained.”

(o)       Section 6.6 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“6.6 [ Intentionally omitted ].”

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(p)       Section 7.3 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“7.3. Stockholders’ Approval . Stockholders’ Approval shall have been obtained.”

(q)       Section 7.6 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“7.6 [ Intentionally omitted ].”

(r)       Section 8.2(a) of the Merger Agreement is hereby amended so that the reference to “Information Statement” contained therein shall be a reference to “Proxy Statement”.

(s)       Section 9.1 of the Merger Agreement is hereby amended to add the following as a new second sentence of such section:

“In furtherance of the foregoing obligations, the Company hereby agrees that it shall use its Commercially Reasonable Efforts to cause the holders of not less than 70% of the outstanding Company Common Shares to execute and deliver to Buyer Voting Agreements on or prior to October 13, 2017.”

3.         Effect of Amendment . This Amendment shall not constitute an amendment or waiver of any provision of the Merger Agreement not expressly amended or waived herein and shall not be construed as an amendment, waiver or consent to any action that would require an amendment, waiver or consent except as expressly stated herein. The Merger Agreement, as amended by this Amendment, is and shall continue to be in full force and effect and is in all respects ratified and confirmed hereby.

4.         Counterparts . This Amendment may be executed manually or by facsimile by the Parties, in any number of counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Parties. Delivery of an executed counterpart of a signature page to this Amendment by facsimile transmission or by e-mail of a .pdf attachment shall be effective as delivery of a manually executed counterpart of this Amendment.

 

5.         Governing Law . This Amendment shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to conflicts of laws principles that would result in the application of the Law of any other state.

6.         Other Miscellaneous Terms . The provisions of Article IX ( Miscellaneous ) of the Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms as modified hereby.

 

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IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed as of the date first written above.

 

      BUYER:
       
      LIVEXLIVE MEDIA, INC.
       
      By: /s/ Jerome N. Gold
      Name: Jerome N. Gold
      Title: Executive Vice President and CFO
       
      MERGER SUB:
       
      LXL VIDEO ACQUISITION CORP.
       
      By: /s/ Jerome N. Gold
      Name: Jerome N. Gold
     

Title:

CFO and Secretary 

       
      COMPANY:
       
      SNAP INTERACTIVE, INC.
       
      By: /s/ Jason Katz
      Name: Jason Katz
      Title: President
       
     

STOCKHOLDERS’ AGENT:

       
      /s/ Jason Katz
      JASON KATZ

 

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