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 30, 2017
LIVEXLIVE MEDIA, INC.
(Exact name of registrant as specified in its charter)
| Delaware | 333-167219 | 98-0657263 | ||
|
(State or other jurisdiction
of incorporation) |
(Commission File Number) |
(I.R.S. Employer
Identification No.) |
269 South Beverly Drive, Suite 1450
Beverly Hills, California 90212
(Address of principal executive offices) (Zip Code)
(310) 601-2500
(Registrant’s telephone number, including area code)
(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 (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. |
On October 30, 2017, LiveXLive Media, Inc. (the “Company”) entered into Amendment No. 2 (“Amendment No. 2”) to the Agreement and Plan of Merger, dated as of August 25, 2017 (as amended, the “Merger Agreement”), as amended by Amendment No. 1, dated as of September 28, 2017 (“Amendment No. 1”), with LXL Music Acquisition Corp., a Delaware corporation and wholly owned subsidiary of the Company (the “Merger Sub”), Slacker, Inc., a Delaware corporation (“Slacker”), and Fortis Advisors LLC, in its capacity as the substitute stockholders’ agent in connection with the transactions contemplated by the Merger Agreement. Pursuant to the Merger Agreement, at the closing of the transactions contemplated therein (the “Closing”), the Merger Sub will merge with and into Slacker (the “Merger”), and following the Merger, the separate corporate existence of the Merger Sub will cease and Slacker will continue as the surviving corporation of the Merger and a wholly owned subsidiary of the Company.
Pursuant to Amendment No. 2, the parties agreed to decrease and limit the cash portion of the merger consideration payable by the Company (after giving effect to the purchase price adjustments and repayment by the Company of any Incremental Stockholder Loan (as defined in the Merger Agreement) incurred by Slacker prior to the closing of the Merger) to $14,000,000, with the remaining portion of the merger consideration to be paid in shares of the Company’s common stock. As a result, the total number of shares of the Company’s common stock issuable by the Company as the stock portion of the merger consideration will increase to an amount equal to (a) the quotient that results from dividing (i) $20,000,000 plus the amount by which the Incremental Stockholder Loan exceeds $500,000 by (ii) the offering price (the “Offering Price”) of the Company’s contemplated underwritten public offering of its shares of common stock (the “Public Offering”) to be registered on a Registration Statement on Form S-1, as may be amended from time to time and as filed with the Securities and Exchange Commission (the “SEC”), plus (b)(i) if the Cash Merger Consideration (as defined in Amendment No. 2) that would be payable if the stock consideration in foregoing clause (a) was the sole Stock Merger Consideration (without giving effect to the $14,000,000 closing cash consideration ceiling set forth in Amendment No. 2, referred to as the Closing Cash Consideration Target in Amendment No. 2) would exceed the Closing Cash Consideration Target, then an additional amount of shares of the Company’s common stock equal to the quotient of (A) the amount of such excess divided by (B) the Offering Price (collectively, the “Stock Merger Consideration”). The foregoing is anticipated to result in an increase in the Stock Merger Consideration by approximately $14,000,000 of shares of the Company’s common stock and a corresponding decrease in the Cash Merger Consideration payable at Closing by approximately $14,000,000.
In addition, pursuant to Amendment No. 2, the parties agreed, among other things, to:
| · | increase the maximum number of additional shares of the Company’s common stock issuable to certain stockholders of Slacker that provide the Incremental Stockholder Loan to Slacker prior to the closing of the Merger for the purpose of funding Slacker’s working capital, to an amount equal to $750,000 divided by the Offering Price (rounded down to the nearest whole share); |
| · | extend the date by which the Public Offering must be priced to November 10, 2017; |
| · | extend the date by which the Closing must be consummated to November 17, 2017; and |
| · | amend certain definitions used in the Merger Agreement. |
There can be no assurance that the Merger or the Public Offering will be consummated or as to the date by which the Merger or the Public Offering may be consummated, if at all.
The foregoing description of Amendment No. 2 is a summary only, does not purport to set forth the complete terms of Amendment No. 2 and is qualified in its entirety by reference to Amendment No. 2, filed as Exhibit 2.3 to this Current Report on Form 8-K and hereby incorporated 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 August 31, 2017. For a detailed discussion of Amendment No. 1, see the Company’s Current Report on Form 8-K, filed with the SEC on October 5, 2017.
| Item 9.01. | Financial Statements and Exhibits. |
| (d) | Exhibits: |
* Filed herewith
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.
| LIVEXLIVE MEDIA, INC. | ||
| /s/ Robert S. Ellin | ||
| Name: | Robert S. Ellin | |
| Dated: November 3, 2017 | Title: | Chief Executive Officer and Chairman of the Board of Directors |
Exhibit 2.3
AMENDMENT NO. 2 TO MERGER AGREEMENT
This AMENDMENT NO. 2 TO MERGER AGREEMENT (this “ Amendment ”), dated as of October 30, 2017, is entered into by and among LiveXLive Media, Inc., a Delaware corporation (“ Buyer ”), LXL Music Acquisition Corp., a Delaware corporation and wholly owned subsidiary of Buyer (“ Merger Sub ”), Slacker, Inc., a Delaware corporation (the “ Company ”), and Fortis Advisors LLC, in its capacity as the substitute stockholders’ agent in connection with the transactions contemplated by the Merger Agreement (as defined below) (the “ Stockholders’ Agent ”). Buyer, Merger Sub, the Company and the Stockholders’ Agent shall collectively be referred to herein as the “ Parties ”. Capitalized terms used in this Amendment but not defined herein have the meanings ascribed to them in the Merger Agreement.
WHEREAS, the Parties have previously entered into that certain Agreement and Plan of Merger dated as of August 25, 2017, as amended by the certain Amendment No. 1 to Merger Agreement dated as of September 26, 2017 (the “ Merger Agreement ”);
WHEREAS, the Parties now desire to amend the Merger Agreement as set forth herein; and
WHEREAS, pursuant to Section 10.7 of the Merger Agreement, the Merger Agreement may be amended by the Parties pursuant to a written instrument duly executed by each of the Parties.
NOW, THEREFORE, in consideration of the representations, warranties, covenants, agreements and conditions contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, intending to be legally bound hereby, agree as follows:
Section 1. Amendments to the Merger Agreement .
(a) The following defined terms in Section 1.1 of the Merger Agreement are hereby amended by inserting the bold, underlined text and deleting the strickenthrough text as follows:
“ Cash Merger Consideration” means the portion of Merger Consideration payable to Company Stockholders pursuant to the terms of this Agreement in cash , but in no event shall such cash amount exceed the Closing Cash Consideration Target .
“ Convertible Notes Payoff Amount ” means an amount equal to the aggregate outstanding principal balance of the Convertible Promissory Notes plus all accrued and unpaid interest thereon as of the Closing Date plus any amounts that are or become due and payable in connection with the prepayment of such notes in accordance their terms.
“
Outside
Pricing Date
” means
October 23, 2017
November 10, 2017
.
“
Purchase
Price Adjustment Escrow Amount
” means
$1,500,000.
$500,000.
“
Stock
Merger Consideration
” means the portion of Merger Consideration payable to Company Stockholders pursuant to the terms
of this Agreement in an aggregate number of Buyer Common Shares equal to
the sum of (a)
the quotient that results
from
dividing
(a)
(x)
$
6,000,000
(i) $20,000,000 plus (ii) the amount
by which the Incremental Stockholder Loan exceeds $500,000
by
(b)
(y)
the Buyer Public Offering
Price (rounded down to the nearest whole share)
plus (b)(i) if the Cash Merger Consideration calculated based on the foregoing
clause (a) as the sole Stock Merger Consideration (without giving effect to the Closing Cash Consideration Target limitation) would
exceed the Closing Cash Consideration Target, the quotient that results from dividing (A) the amount of such excess by (B) the
Buyer Public Offering Price (rounded down to the nearest whole share), or (ii) otherwise, zero (0)
.
(b) Section 1.1 of the Merger Agreement shall be amended by inserting the following in alphabetical order:
“ Closing Cash Consideration Target ” means amount equal to (a) $14,000,000 minus (b) the Convertible Note Payoff Amount minus (c) the Transaction Expenses to be paid at the Closing pursuant to Section 5.13 .
(c) Section 5.22(d) of the Merger Agreement is hereby amended by inserting the bold, underlined text and deleting the strickenthrough text as follows:
For purposes of
this Section 5.22, “
Stockholder Loan Fee Cap”
means
$750,000
(i) if the pricing of the
Buyer Public Offering occurs on or prior to October 9, 2017, $250,000, (ii) if the pricing of the Buyer Public Offering occurs
between October 10, 2017 and October 16, 2017, $375,000, and (iii) if the pricing of the Buyer Public Offering occurs between October
17, 2017 and October 23, 2017, $500,000.
(d) Section 8.2(a) of the Merger Agreement is hereby amended by inserting the bold, underlined text and deleting the strickenthrough text as follows:
the Closing
shall not have occurred on or before the
October 31, 2017
November 17, 2017
, or such other date as
may have been agreed upon in writing by Buyer and the Company (such applicable date, the “
Outside Date
”); or
(e) Section 2.16(a) of the Merger Agreement is hereby amended by inserting the bold, underlined text and deleting the strickenthrough text as follows:
Final Closing
Statement
. As soon as practicable, but in any event no later than
sixty (60) days
ten (10) Business
Days
, after the Closing Date, Buyer shall deliver to the Stockholders’ Agent a statement, together with reasonable
supporting detail (the “
Final Closing Statement
”), setting forth Buyer’s good faith calculation of the
Final Purchase Price and the components thereof, including (i) Closing Indebtedness, (ii) Closing Net Working Capital, and (iii)
Convertible Notes Payoff Amount. The Final Closing Statement shall be prepared in accordance with the Applicable Accounting Principles.
For purposes of complying with the terms of this
Section 2.16
, after the delivery of the Final Closing Statement, Buyer
and the Surviving Corporation shall make their respective Representatives reasonably available to the Stockholders’ Agent
to discuss the Final Closing Statement and related supporting documentation described above during normal business hours.
(f) Except for the amendments expressly set forth in this Section 1 , the text of the Merger Agreement shall remain unchanged and in full force and effect.
Section 2. Further Amendment . The Merger Agreement may be further amended by the Parties at any time by compliance with Section 10.7 of the Merger Agreement.
Section 3. Miscellaneous . The provisions of Sections 10.8 (Assignments; No Third Party Rights), 10.9 (Waiver), 10.10 (Severability), 10.11 (Governing Law; Jurisdiction; Venue; No Trial by Jury), 10.13 (Construction), 10.15 (Headings) and 10.16 (Counterparts) of the Merger Agreement are incorporated herein by reference, mutatis mutandis .
[Signature page follows.]
IN WITNESS WHEREOF, the parties hereto have entered into and signed this Amendment as of the date and year first above written.
| BUYER | ||
| LIVEXLIVE MEDIA, INC. | ||
| By: | /s/ Jerome N. Gold | |
|
Name: Jerome N. Gold
Title: Executive Vice President and CFO |
||
| MERGER SUB: | ||
|
LXL Music Acquisition Corp. |
||
| By: | /s/ Jerome N. Gold | |
|
Name: Jerome N. Gold
Title: CFO and Secretary |
||
| COMPANY: | ||
| SLACKER, INC. | ||
| By : | /s/ Duncan Orrell-Jones | |
|
Name: Duncan Orrell-Jones
Title: President and CEO |
||
IN WITNESS WHEREOF, the parties hereto have entered into and signed this Amendment as of the date and year first above written.
| STOCKHOLDERS’ AGENT: | ||
| FORTIS ADVISORS LLC L.P. | ||
| By: | /s/ Richard Fink | |
|
Name:
Title: |
Richard Fink
Managing Director
|
|
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