U.S. 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 29, 2017

 

GROM SOCIAL ENTERPRISES, INC.

(Exact name of small business issuer as specified in its charter)

 

Florida 000-55585 46-5542401

(State or other jurisdiction

of incorporation)

(Commission File Number) (IRS Employer ID No.)

 

2060 NW Boca Raton Blvd., #6

Boca Raton, FL 33431

(Address of principal executive offices)

 

(561) 287-5776

(Issuer’s Telephone Number)

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

 

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 July 1, 2016, Grom Social Enterprises, Inc. (the “Company”) acquired 100% of the common stock of TD Holdings Limited (“TDH”) including its primary subsidiary, Top Draw Animation. Pursuant to the terms of the transaction, we entered into a Share Sale Agreement to acquire all of the issued and outstanding stock of TD Holdings Limited (the “Stock Purchase Agreement”) in consideration for the issuance of a two year, 5% $4.0 Million Secured Promissory Note (the “Note”) payable to the TDH Sellers on July 1, 2018. Under the terms of the Note, the interest is due to be paid annually in arrears. As of the date of this report, we were in full compliance with all of terms of both the Stock Purchase Agreement and the Note.

 

On January 3, 2018, we entered into an Amending Agreement to the Stock Purchase Agreement and the Note (the “Amendment”). Under the terms of the Amendment, the parties agreed as follows:

 

· The Sellers agreed to extend the maturity date of the Note one year until July 1, 2019;

 

· The interest rate on the Note during the one-year extension period from July 2, 2018 to July 1, 2019 was changed to 10%.  The interest rate on the Note remained at 5%, payable annually in arrears, until June 30, 2018;

 

· During the one-year extension period, the interest will be paid quarterly in arrears, instead of annually in arrears.  The first such quarterly interest payment of $100,000 is due on September 30, 2018; and

 

· Under the terms of the terms Stock Purchase Agreement, the Sellers had an opportunity to earn up to $5.0 million in contingent Earnout payments upon TDH reaching certain operating milestones post-closing. The consideration, if earned is payable 75% in Common Stock, and 25% in cash. To date, the TDH Sellers have not achieved the operating milestones necessary to earn any of the $5.0 million Earnout.  The original Earnout measurement period under the Stock Purchase Agreement was to end on December 31, 2018.  As part of the consideration for the Sellers agreeing to enter the Amendment, we agreed to extend the Earnout measurement period, one year, to December 31, 2019.

 

As consideration for the Amendment we issued an additional 800,000 shares of our Common Stock to the Sellers.

 

The Company relied upon an exemption from the registration requirements under Section 4(a)(2) under the Securities Act of 1933 and Rule 506 of Regulation D promulgated thereunder with respect to the foregoing issuance.

 

Item 3.02 Unregistered Sales of Equity Securities.

 

The information above in Item 1.01 regarding the issuance of shares of to the Sellers is incorporated herein by reference in response to this Item 3.02.

 

On December 29, 2017, Grom Social Enterprises, Inc. (the “Company”) had outstanding loan balances of $1,624,351 and $1,009,135, due respectively to Darren Marks, its Chairman and Melvin Leiner, its Executive Vice President, COO, CFO and Secretary. These loans are non-interest bearing and callable on demand.  Messrs. Marks and Leiner agreed to convert an aggregate of $500,000 of their combined loan balances into shares of our Common Stock, at a conversion price of $0.50 per share, which was above the closing price of the Company’s common stock of $.30 on December 29, 2017.  Mr. Marks converted $333,333 of his loan into 666,666 shares; and Mr. Leiner converted $166,667 into 333,334 shares. As a result of the transaction, Mr. Marks and Mr. Leiner’s loan balances were reduced to $1,291,018 and $842,468, respectively. Mr. Marks and Mr. Leiner now beneficially own 15,204,731 and 9,313,136 shares of our Common Stock, respectively.

 

The Company relied upon an exemption from the registration requirements under Section 4(a)(2) under the Securities Act of 1933 and Rule 506 of Regulation D promulgated thereunder with respect to the foregoing issuance.

 

 

 

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Item 8.01 Other Events

 

On January 4, 2018, Mr. Marks and Mr. Leiner voluntarily agreed to defer a large portion of their demand loans until July 1, 2019.  Mr. Marks agreed to defer $991,018 of his loan balance, and Mr. Leiner agreed to defer $542,468, leaving each individual with a current principal balance due of $300,000.

 

Item 9.01 Financial Statements and Exhibits

 

(d) Exhibits. The following exhibit is included in this Report:

 

No. Description
   
10.7 Amending Agreement to the Share Sale Agreement for the Entire Issued Share Capital of TD Holdings Limited and the Secured Promissory Note

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

  

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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.

 

Dated:  January 5, 2018 GROM SOCIAL ENTERPRISES, INC.
  (Registrant)
   
   
  By: /s/ Darren Marks
         Darren Marks, Chief Executive Officer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Exhibit 10.7

 

DATED 1 JANUARY 2018

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDING AGREEMENT TO

 

THE SHARE SALE AGREEMENT FOR THE ENTIRE ISSUED SHARE CAPITAL OF TD HOLDINGS LIMITED

 

AND THE SECURED PROMISSORY NOTE

 

 

 

 

 

 

 

 

 

 

 

 

 

TD Holdings Limited

Suite 601, 6 th Floor, West Tower, Philippine Stock Exchange Center

Exchange Road, Ortigas Center, Pasig City, Philippines

 

 

 

 

 

 

     

 

THIS AGREEMENT is made on 1 January 2016

 

 

 

BETWEEN

 

(1) GROM SOCIAL ENTERPRISES, INC. a company incorporated in the State of Delaware, the United States of America, and having its principal office at 2060 NW Boca Raton Boulevard, Suite #6 Boca Raton Florida 33431 (“ Buyer ”);

 

(2) WAYNE EDWARD DEARING of 12 Zinia Street, Valle Verde 2, Brgy Ugong, Pasig City 1605, DAVID ARDEN PEABODY of 4 Banaba Rd Bgy, Forbes Park, Forbes Park South, Makati City, Philippines and MICHAEL ALLARDICE GORDON HISCOCK of 85 Wanganella Street, Balgowlah 2093, Sydney, Australia (collectively the “ Sellers ”);

 

WHEREAS

 

(A) On or about 30 June 2016 the Buyer and the Sellers entered into an agreement for the sale and purchase of the entire issued share capital of TD Holdings Limited (“Original Agreement”) a private company incorporated in Hong Kong company number 996145 (the “Company”).

 

(B) The Buyer and the Sellers now wish to amend the terms and conditions of the Original Agreement and the Secured Promissory Note by entering into this Agreement.

 

IT IS AGREED as follows:

 

1. Definitions

 

1.1 In this Agreement, the following words and expressions shall have the following meanings unless the context otherwise requires:

 

Agreement means this Agreement (including any Schedule to it which shall have the same force and effect as if set out in the body of this Agreement).

 

Buyer Notes means:

 

(a) The secured promissory notes made by Buyer payable to each Seller in the aggregate principal amount of $4,000,000, issued:

 

(i) For a term of three years from the Closing Date;

 

(ii) At an interest rate of five percent per annum from the Closing Date to 30 June 2018;

 

(iii) At an interest rate of ten percent per annum from 1 July 2018 to 30 June 2019;

 

(iv) Secured by the Sellers Security;

 

(v) Subject to adjustment as is provided in this Agreement and the Buyer Notes agreement; and

 

(vi) Generally on the terms and conditions of the Buyer Notes agreement dated on or around the date of this Agreement.

 

(b) Any secured promissory notes made by the Buyer payable to each Seller pursuant to Clause 5.6(a).

 

Earnout Years means each of the three years following the Closing Date:

 

(a) Commencing 1 January 2016 and ending 31 December 2016;

 

(b) Commencing 1 January 2017 and ending 31 December 2017; and

 

(c) Commencing 1 January 2018 and ending 31 December 2018.

 

 

 

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Secured Promissory Note means the loan note created by the Sellers and the Buyer dated 16 June 2016 to give effect to the Buyer Notes referred to in the Original Agreement.

 

2. Interpretation

 

2.1 In this Agreement, unless the context otherwise requires:

 

(a) Defined words used in this Agreement shall have the meaning ascribed to them in the Original Agreement and the Secured Promissory Note;

 

(b) references to times of day are, unless the context otherwise requires, to Hong Kong time and references to a day are to a period of twenty four hours running from midnight on the previous day;

 

(c) any amount expressed to be in $ or dollars, shall be to the lawful currency of the United States of America;

 

(d) the index, headings and any descriptive notes in brackets following references to statutes in this Agreement are for convenience only and shall not affect its construction or interpretation;

 

(e) references to Clauses, Recitals or Schedules are to clauses of and recitals and schedules to this Agreement and references in a Schedule or a part of a Schedule to a paragraph are to a paragraph of that Schedule or that part of that Schedule;

 

(f) all Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein shall have the meaning as defined in this Agreement;

 

(g) use of the singular shall include the plural and vice versa, and the use of any gender shall include all other genders;

 

(h) references to any document in the agreed form means in a form agreed by the parties and for the purposes of identification initialled by each party;

 

(i) a party means a party to this Agreement and includes its permitted assignees and successors in title and, in the case of an individual, his estate and personal representatives;

 

(j) a Person shall include any individual, firm, company, state or agency of the state or any association or partnership or other body or entity (wherever and howsoever incorporated or established), and in each case, vice versa;

 

(k) includes or including shall mean including without limitation;

 

(l) general words shall not be given a restrictive meaning;

 

(m) writing or written includes faxes and any non-transitory form of visible reproduction including e-mail;

 

(n) The words “hereof,” “herein,” “hereto” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement.

 

(o) the captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.

 

(p) unless the context of this Agreement clearly requires otherwise, the term "or" has, except where otherwise indicated, the inclusive meaning represented by the phrase "and/or."

 

(q) a rule of construction does not apply to the disadvantage of a party because the party was responsible for the preparation of this Agreement or any part of it; and

 

(r) where any agreement, acknowledgement, covenant, representation, warranty, indemnity, undertaking, obligation or liability is expressed to be made, undertaken or given by two or more persons their liability shall be deemed to be joint and several.

 

 

 

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3. Agreement to Amend

 

3.1 The Sellers agree to extend the term of the Buyer Notes by one year for maturity and repayment in full on 1 July 2019 in consideration for:

 

(a) An increase in the interest rate on the Buyer Notes to 10 percent per annum commencing on 1 July 2018, and payable quarterly in arrears commencing on 1 October 2018;

 

(b) An extension of the Earnout Years by one year to 31 December 2019; and

 

(c) Receipt of 800,000 Buyer Shares.

 

3.2 Effective 1 January 2018, the Buyer and the Sellers agree that:

 

(a) The Definitions, and the terms and conditions of this Agreement, hereby amend the terms and conditions of the Original Agreement and the Secured Promissory Notes;

 

(b) In particular and for the avoidance of doubt;

 

  - The definitions of “Buyer Notes” and “Earnout Years” in the Original Agreement are replaced by the new definitions of those defined terms in this Agreement;

 

  - The words “second anniversary” appearing in clause 2(i) of the Secured Promissory Note shall be replaced with the words “third anniversary”.

 

  - Clause 2(a) of the Secured Promissory Note is amended by adding a new sentence at the end of the clause as follows:“Commencing on 1 July 2018, the outstanding Principal Amount shall bear interest at the rate of ten (10%) percent per annum calculated on the basis of a 360 day”.

 

  - Clause 2(c) of the Secured Promissory Note is amended by adding a new sentence at the end of the clause as follows: “Commencing on 1 July 2018, interest only shall be due and payable by the Company quarterly in arrears commencing 1 October 2018”.

 

(c) Notwithstanding anything in this Agreement, for the purposes of clause 3(b) of the Secured Promissory Note the definition of Note Term will not be extended by one year and will remain for a period of two years.

 

(d) If there is an inconsistency between this Agreement and the Original Agreement or the Secured Promissory Note, the Definitions and terms and conditions of this Agreement will prevail.

 

4. Confidentiality

 

4.1 The parties undertake to keep confidential the terms of this Agreement and all information about each other, and will ensure that the same level of confidentiality binds its employees, agents and advisors.

 

4.2 The parties shall be entitled to disclose the information where:

 

(a) Information becomes public knowledge other than as a direct or indirect result of the information being disclosed in breach of this Agreement;

 

 

 

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(b) The parties agree in writing that such information is not confidential; and

 

(c) The disclosure is required by law, or by a regulatory body, tax authority or securities exchange.

 

5. Assignment

 

5.1 This Agreement shall be binding on and shall enure for the benefit of the successors in title of each party.

 

5.2 No party shall be entitled to assign the benefit of any rights under this Agreement without the prior written consent of the other parties, such consent not to be unreasonably withheld.

 

6. Further Assurance

 

Each party shall execute or procure that any necessary third party shall execute all such documents and/or do or procure the taking of such steps as the other party shall after Closing reasonably require in order to give effect to this Agreement (and any document entered into pursuant to it) and to give each party the full benefit of the provisions of such documents.

 

7. Waiver, Variation and Release

 

7.1 No failure or delay by a party in exercising any claim, remedy, right, power or privilege under this Agreement shall operate as a waiver, nor shall any single or partial exercise of any claim, remedy, right, power or privilege preclude any further exercise of any other claim, right, power or privilege.

 

7.2 No variation of this Agreement shall be effective unless it is agreed in writing and executed by each party.

 

8. Costs

 

The Buyer shall pay the Sellers legal costs relating to this Agreement up to a maximum of US$7,500.

 

9. Counterparts

 

This Agreement may be entered into in two or more counterparts, and by the parties to it on separate counterparts, but shall not be effective until each party has executed at least one counterpart, and each counterpart, when executed and delivered shall be an original, and all counterparts shall together constitute one and the same document.

 

10. Invalidity

 

Each of the provisions of this Agreement shall be read and construed independently of the other provisions as entirely separate and is severable. If any provision (or part thereof) is found by any court or competent authority to be illegal, invalid or unenforceable in any jurisdiction, that provision (or part thereof) shall be deemed not to be part of this Agreement and shall not affect the continuation in force of the remainder of this Agreement.

 

11. Third Party Rights

 

This Agreement and the documents referred to in it are made for the benefit of the parties to them and their successors and permitted assigns, and are not intended to benefit, or be enforceable by, anyone else.

 

12. Governing Law and Jurisdiction

 

12.1 This Agreement and any dispute claim or obligation (whether contractual or non-contractual) shall be governed by and construed in all respects in accordance with the law of Hong Kong.

 

12.2 The parties irrevocably agree to submit to the exclusive jurisdiction of the courts of Hong Kong in relation to any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with this Agreement or the legal relationships established by it.

 

 

  

 

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IN WITNESS WHEREOF THIS AGREEMENT has been executed by the parties

 

EXECUTED by GROM SOCIAL ENTERPRISES, INC. in accordance with its constituting documents and the laws by which it is governed by:

 

 

)

)

)

)

 

 

 

 

/s/ Darren Marks

Darren Marks, Director

   

 

/s/ Mel Leiner

Mel Leiner, Director

 

 

 

EXECUTED by WAYNE EDWARD DEARING in the presence of:

 

 

 

Signature of Witness

 

Name of Witness

 

 

)

)

)

)

)

 

 

 

 

 

  /s/ Wayne Edward Dearing

Wayne Edward Dearing

EXECUTED by DAVID ARDEN PEABODY in the presence of:

 

 

 

Signature of Witness

 

Name of Witness

 

 

)

)

)

)

)

 

 

 

 

 

 

/s/ David Arden Peabody

David Arden Peabody

 

 

 

EXECUTED by MICHAEL ALLARDICE GORDON HISCOCK in the presence of:

 

 

 

Signature of Witness

 

Name of Witness

 

 

)

)

)

)

)

 

 

 

 

 

/s/ Michael Allardice Gordon Hiscock

Michael Allardice Gordon Hiscock

 

 

 

 

 

 

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