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): December 14, 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. |
The information set forth in Item 5.02 below is incorporated herein by reference.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
(e) On December 14, 2017, LiveXLive Media, Inc. (the “Company”) entered into Amendment No. 1 (the “Ellin Amendment”) to that certain Employment Agreement, dated as of September 7, 2017, with Robert Ellin, the Company’s Chief Executive Officer and Chairman. Pursuant to the Ellin Amendment, Mr. Ellin agreed to reduce his annual cash base salary payable to him commencing on the day of the closing of the Company’s contemplated underwritten public offering (the “Public Offering”) from $650,000 to $500,000.
On December 14, 2017, the Company also entered into Amendment No. 1 (the “Gold Amendment”) to that certain Amended and Restated Employment Agreement, dated as of September 1, 2017 (the “Gold Employment Agreement”), with Jerome N. Gold, the Company’s Chief Financial Officer, Executive Vice President and Secretary. Pursuant to the Gold Amendment, Mr. Gold agreed to (i) reduce his annual cash base salary payable to him commencing on the day of the closing of Public Offering from $400,000 to $300,000, (ii) reduce the cash bonus payable to him in connection with the closing of the Public Offering from $250,000 to $100,000, and (iii) delay the payment of such bonus to March 31, 2019.
In addition, on December 14, 2017 (the “Grant Date”), pursuant to the Gold Amendment, Mr. Gold was granted options to purchase 333,333 shares of the Company’s common stock at an exercise price of $4.00 per share (the “Options”). The Options were granted pursuant to the Company’s 2016 Equity Incentive Plan. The Options shall vest in increments, with the first tranche of one-twelfth of the shares underlying the Options vesting three months from the Grant Date, with an additional one-twelfth of the shares underlying the Options vesting every third month thereafter over a period of three years. Each tranche of the Options shall become exercisable on the earlier of (i) one year after the date such portion shall vest, (ii) the second anniversary of the Grant Date, or (iii) the earliest date vested equity awards become exercisable or transferable for similarly situated executives of the Company. In the event of a Change of Control (as defined in the Gold Employment Agreement), any unvested portion of the Options shall vest and become exercisable effective immediately prior to such event. Each tranche of the Options and the shares underlying such options is subject to a lock-up restriction for a period of twelve months from the date that such tranche of the options vests; provided, that such restriction period shall terminate with respect to all Options and the shares underlying such options twenty-four months from the Grant Date.
There can be no assurance that the Public Offering will be consummated or as to the date by which the Public Offering may be consummated, if at all.
The foregoing description of the Gold Amendment and the Ellin Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of such agreements, which are filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form 8-K, and are incorporated herein by reference.
| Item 9.01 | Financial Statements and Exhibits. |
| (d) | Exhibits: |
* Filed herewith.
| 1 |
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: December 15, 2017 | Title: Chief Executive Officer and Chairman |
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Exhibit 10.1
AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO EMPLOYMENT AGREEMENT (this “ Amendment ”), dated as of December 14, 2017, is entered into by and between LiveXLive Media, Inc., a Delaware corporation (the “ Company ”), and Robert Ellin (the “ Executive ”). The Company and the Executive 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 Employment Agreement (as defined below).
WHEREAS, the Parties have previously entered into that certain Employment Agreement, dated as of September 7, 2017 (the “ Employment Agreement ”);
WHEREAS, the Parties now desire to amend the Employment Agreement as set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Employment Agreement, the Employment 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 Employment Agreement .
(a) Section 5.1(a) of the Employment Agreement is hereby amended by inserting the bold, underlined text and deleting the stricken through text as follows:
“During the Employment Period, the Company shall pay to Executive a cash base salary from and after the date on which the First Underwritten Public Offering is consummated (the “ Public Offering Date ”) at the rate of not less than Five Six Hundred Fifty Thousand Dollars ($ 500 650 ,000) per annum. During the Employment Period, the Board (or the Compensation Committee) shall review Executive’s annual cash base salary not less frequently than on an annual basis and may increase (but not decrease, including as it may be increased from time to time) such base salary. Executive’s annual cash base salary, as it may be increased from time to time, is referred to herein as the “ Base Salary ”. The Company shall pay the Base Salary to Executive in accordance with the Company’s generally applicable payroll practices for senior executive officers, but not less frequently than in equal monthly installments.”
(b) Except for the amendments expressly set forth in this Section 1 , the text of the Employment Agreement shall remain unchanged and in full force and effect.
Section 2. Miscellaneous . The provisions of Sections 8.8 and 9 of the Employment Agreement are incorporated herein by reference.
[ Signature page follows ]
IN WITNESS WHEREOF, the Parties have entered into and signed this Amendment as of the date and year first above written.
| COMPANY: | ||
| LIVEXLIVE MEDIA, INC. | ||
| By: | /s/ Jerome N. Gold | |
| Name: | Jerome N. Gold | |
| Title: | Chief Financial Officer | |
| EXECUTIVE: | ||
| ROBERT ELLIN | ||
| /s/ Robert Ellin | ||
| (signature) | ||
Exhibit 10.2
AMENDMENT NO. 1 TO AMENDED AND RESTATED
EMPLOYMENT AGREEMENT
This AMENDMENT NO. 1 TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “ Amendment ”), dated as of December 14, 2017, is entered into by and between LiveXLive Media, Inc., a Delaware corporation (the “ Company ”), and Jerome N. Gold (the “ Executive ”). The Company and the Executive 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 Employment Agreement (as defined below).
WHEREAS, the Parties have previously entered into that certain Amended and Restated Employment Agreement, dated as of September 1, 2017 (the “ Employment Agreement ”);
WHEREAS, the Parties now desire to amend the Employment Agreement as set forth herein; and
WHEREAS, pursuant to Section 9.1 of the Employment Agreement, the Employment 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 Employment Agreement .
(a) Section 5.1(a) of the Employment Agreement is hereby amended by inserting the bold, underlined text and deleting the stricken through, italicized text in as follows:
“During the Employment
Period, the Company shall pay to Executive a cash base salary at the following applicable rates: (i) during the period starting
on the Effective Date and ending on the date immediately prior to the date on which the First Underwritten Public Offering (as
hereinafter defined) is consummated: at the rate of not less than One Hundred Twenty Thousand Dollars ($120,000) per annum; and
(ii) from and after the date on which the First Underwritten Public Offering is consummated: at the rate of not less than
Three
Four
Hundred Thousand Dollars ($
3
4
00,000) per annum. During the Employment
Period the Board (or the Compensation Committee) shall review Executive’s annual cash base salary not less frequently than
on an annual basis and may increase (but not decrease, including as it may be increased from time to time) such base salary. Executive’s
annual cash base salary, as it may be increased from time to time, is referred to herein as the “
Base Salary
.”
The Company shall pay the Base Salary to Executive in accordance with the Company’s generally applicable payroll practices
for senior executive officers, but not less frequently than in equal monthly installments.”
(b) Section 5.2 of the Employment Agreement is hereby amended and restated in its entirety to read as follows:
“ Public Offering Bonus . In addition to the Base Salary and the Performance Bonus defined in Section 5.3 , the Company shall pay to Executive a cash bonus in an amount equal to One Hundred Thousand Dollars ($100,000) (the “ Public Offering Bonus ”) in a single lump sum payment on March 31, 2019, if the First Underwritten Public Offering is consummated on or before such date and during the Employment Period.”
(c) Section 5.4 of the Employment Agreement is hereby amended by deleting the stricken through text as follows:
“In addition to any other equity-based compensation or equity awards the Company or any other member of the Company Group grants to Executive on or after the Effective Date, the Company shall grant to Executive, as soon as practicable following the Effective Date, nonqualified options to purchase a total of one million (1,000,000) shares of the Company’s common stock, par value $0.001 (collectively, the “ Shares ” and each, individually, a “ Share ”), at a price of fifty-five cents ($0.55) per Share which the parties agree reflects the fair market value of the Shares (the “ Option ”). Such Option shall vest as follows, subject to Executive’s continued service to the Company and the other provisions of this Agreement: (i) the Option shall have a term of ten (10) years from the date of grant (the “ Option Expiration Date ”); and (ii) the Option shall vest as to one-twelfth (1/12) of the Shares three (3) months after the Effective Date, and as to an additional one-twelfth (1/12) of the Shares on such date every third month thereafter through the date three (3) years after the Effective Date. Each tranche of Shares subject to the Service Option shall become exercisable on the earlier of (i) one (1) year after the date each tranche shall vest, (ii) the second anniversary of the Effective Date, or (iii) the earliest date vested equity awards become exercisable or transferable for similarly situated executives of the Company. Notwithstanding the foregoing, in the event of a “Change of Control” (as defined in the Company’s 2016 Equity Incentive Plan) any unvested portion of the Service Option shall vest and become exercisable effective immediately prior to such event.”
(d) Definition of “Other Equity Awards” in Section 8.1 of the Employment Agreement is hereby amended by deleting the stricken through text as follows:
“
“
Other
Equity Awards
”
means all equity compensation or other equity
awards granted by any member of the Company Group to Executive on or after the Effective Date (including restricted stock, restricted
stock units, stock appreciation rights, and stock options), excluding the
Service
Option.”
(e) In addition to any other equity-based compensation or equity awards that the Company has granted to the Executive prior to the date hereof, the Company shall grant to the Executive, as soon as practicable following the date hereof (such actual grant date shall be referred to herein as the “ Grant Date ”), nonqualified options to purchase a total of three hundred thirty three thousand three hundred thirty three (333,333) shares of the Company’s common stock, par value $0.001 (collectively, the “ Shares ” and each, individually, a “ Share ”), at a price of four dollars ($4.00) per Share which the parties agree reflects the fair market value of the Shares (the “ Additional Option ”). Such Additional Option shall vest as follows, subject to Executive’s continued service to the Company and the other provisions of this Agreement and the Employment Agreement: (i) the Additional Option shall have a term of ten (10) years from the Grant Date; and (ii) the Additional Option shall vest as to one-twelfth (1/12) of the Shares three (3) months after the Grant Date, and as to an additional one-twelfth (1/12) of the Shares on such date every third month thereafter through the date three (3) years after the Grant Date. Each tranche of Shares subject to the Additional Option shall become exercisable on the earlier of (i) one (1) year after the date each tranche shall vest, (ii) the second anniversary of the Grant Date, or (iii) the earliest date vested equity awards become exercisable or transferable for similarly situated executives of the Company. Notwithstanding the foregoing, in the event of a “Change of Control” (as defined in the Company’s 2016 Equity Incentive Plan) any unvested portion of the Additional Option shall vest and become exercisable effective immediately prior to such event.
(f) Except for the amendments expressly set forth in this Section 1 , the text of the Employment Agreement shall remain unchanged and in full force and effect.
Section 2. Miscellaneous . The provisions of Sections 8.8 and 9 of the Employment Agreement are incorporated herein by reference.
[ Signature page follows ]
| 2 |
IN WITNESS WHEREOF, the Parties have entered into and signed this Amendment as of the date and year first above written.
| COMPANY: | ||
| LIVEXLIVE MEDIA, INC. | ||
| By: | /s/ Robert S. Ellin | |
| Name: | Robert S. Ellin | |
| Title: | CEO and Chairman | |
| EXECUTIVE: | ||
| jerome n. gold | ||
| /s/ Jerome N. Gold | ||
| (signature) | ||
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