Item 9.01. Financial Statements and Exhibits
Prior to the Share Exchange, we were a "shell company" (as such term is defined
in Rule 12b-2 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")). As a result of the Share Exchange, we have ceased to be a
shell company. The information contained in this Current Report constitutes the
current "Form 10 information" necessary to satisfy the conditions contained in
Rule 144(i)(2) under the Securities Act of 1933, as amended (the "Securities
Although Symbid Holding B.V., Symbid B.V. and their subsidiaries maintain their
books and records in their functional currency, the Euro ("EUR"), the currency
of the Netherlands, for financial reporting purposes Symbid B.V. uses the United
States dollar ("U.S. dollars," "USD" or "$") .
Entry into a Material Definitive Agreement
The information contained in Item 2.01 below relating to the various agreements
described therein is incorporated herein by reference.
Completion of Acquisition or Disposition of Assets
THE SHARE EXCHANGE AND RELATED TRANSACTIONS
Share Exchange Agreement
On December 6, 2013
(the "Closing Date"), the Company, Symbid Holding B.V.
the shareholders of Symbid Holding B.V.
entered into a Share Exchange Agreement
(the "Share Exchange Agreement"), which closed on the same date. Pursuant to the
terms of the Share Exchange Agreement, the 19 shareholders of Symbid Holding
sold all of their capital stock in Symbid Holding B.V.
to us in exchange
for 21,170,000 shares of our Common Stock. As a result of this share exchange,
Symbid Holding B.V.
became a wholly-owned subsidiary of Symbid Corp.
Prior to the Share Exchange, we ceased being an e-commerce marketplace that
offered daily discounts on goods and services through a proprietary website and
became a "shell company". Pursuant to the Share Exchange, we acquired the
business of Symbid Holding B.V.
, to engage in the creation and operation of
online investment "crowd funding" platforms. Prior to the time of the Share
Exchange, there were no relationships between the Company (formerly known as
known as HapyKidz.com, Inc.
) and Symbid Holding B.V.
and its affiliates. Symbid
, which became a wholly owned subsidiary of Symbid Holding B.V.
as part of a
corporate reorganization which took place in October 2013
(discussed below) was
introduced to the Company in July 2013
by Montrose Capital Limited
a co-sponsor of the Share Exchange. Montrose was introduced to Symbid B.V.
FireRock Capital, Inc.
("FireRock") to act as a co-sponsor of the Share
Exchange. FireRock, a New York
-based family office that invests in small to
medium-sized public and private companies, had a prior existing relationship
with Symbid B.V.
Symbid decided to proceed with the Share Exchange with the
Company following a due diligence review of the Company. Pursuant to a
nonbinding term sheet entered into between Montrose and Symbid B.V in July 2013
Montrose agreed to assist Symbid B.V.
in connection with its intent to become a
publicly traded company and in a related private placement. Montrose introduced
to the Company in July 2013
. Montrose did not have a relationship
with the Company prior to this time, though Mark Tompkins
, the principal of
Montrose had purchased free trading shares of common stock of the Company in
in arms-length transactions. As a result of disagreements among
Montrose, FireRock and Symbid B.V.
concerning the proposed terms of the Share
Exchange, the term sheet with Montrose was terminated in November 2013
FireRock assumed full responsibility as sole sponsor of the Share Exchange and
related transactions and a new term sheet was entered into between FireRock and
Symbid Holding B.V.
in December 2013
. In December 2013
, an affiliate of
FireRock and a number of existing shareholders of Symbid Corp.
purchased all but
1,000,000 of the free trading shares of common stock of the Company owned by Mr.
as part of the termination of Montrose's relationship with Symbid.Symbid B.V.
and Symbid Holding B.V.
were founded by Korstiaan Zandvliet
Slakhorst and Maarten van der Sanden
To our knowledge, as disclosed in the Company's registration statement on Form
S-1 (the "Original Registration Statement") originally filed with the SEC
October 25, 2011
, there were no persons who may be deemed "promoters" of the
Company as that term is defined under the Securities Act other than Holli
. As indicated in the Original Registration Statement, on July 11, 2011
the Company issued to Ms. Morris 7,500,000 shares of the Company's restricted
common stock for services rendered to the Company by Ms. Morris in connection
with the formation of the Company. Ms. Morris served as the Company's sole
officer and director until her resignation on May 14, 2013
On May 14, 2013
, before her resignation, Ms. Morris, then sole director,
appointed Noah Levinson
to fill Ms. Morris' position as the director of the
Company and to be its sole executive officer. Because of these appointments, as
of May 14, 2013
, Mr. Levinson
became a "control" person of the Company as that
term is defined under the Securities Act. Mr. Levinson
resigned from all of his
positions with the Company on December 6, 2013
, the date of effectiveness of the
Share Exchange. Mr. Levinson
in cash compensation from the
Company for services rendered to the Company in 2013.
At the closing of the Share Exchange, each of the 30,672 shares of Symbid
common stock issued and outstanding immediately prior to the
closing of the Share Exchange was exchanged for 690.20605 shares of our Common
Stock. As a result, an aggregate of 11,400,000 shares of our Common Stock were
issued to the holders of Symbid Holding B.V.'s
common stock and 9,770,000 shares
of our Common Stock were delivered to the Escrow Agent (defined below), 600,000
of which are being held by the Escrow Agent in accordance with the
indemnification provisions of the Share Exchange Agreement and the remaining
9,170,000 of which are being held in connection with Symbid's planned
acquisitions discussed below. Symbid Holding B.V.
did not have any stock
purchase warrants or any stock options outstanding at the time of the Share
The Share Exchange Agreement contained customary representations and warranties
and pre- and post-closing covenants of each party and customary closing
conditions. Breaches of the representations and warranties will be subject to
customary indemnification provisions, subject to specified aggregate limits of
The Share Exchange will be treated as a recapitalization of the Company for
financial accounting purposes. Symbid Holding B.V.
will be considered the
acquirer for accounting purposes, and the historical financial statements of
, before the Share Exchange will be replaced with the historical
financial statements of Symbid Holding B.V.
before the Share Exchange in all
future filings with the SEC
The parties have taken all actions necessary to ensure that the Share Exchange
is treated as a tax-free exchange under Section 351 of the Internal Revenue Code
of 1986, as amended.
The issuance of shares of our Common Stock to holders of Symbid Holding B.V.'s
capital stock in connection with the Share Exchange was not registered under the
Securities Act, in reliance upon the exemption from registration provided by
Section 4(a)(2) of the Securities Act, which exempts transactions by an issuer
not involving any public offering, and Regulation D and/or Regulation S
promulgated by the SEC
under that section. These securities may not be offered
or sold in the United States
absent registration or an applicable exemption from
the registration requirement, and are subject to further contractual
restrictions on transfer as described below.
We also agreed not to register under the Securities Act the resale of the shares
of our Common Stock received in the Share Exchange by our officers, directors
and key employees and holders of 10% or more of our Common Stock for a period of
two years following the closing of the Share Exchange.
The Share Exchange Agreement is filed as an exhibit to this Report. All
descriptions of the Share Exchange Agreement herein are qualified in their
entirety by reference to the text thereof filed as an exhibit hereto, which is
incorporated herein by reference.
As soon as practical following the Closing Date, Symbid Corp.
shall deliver to
Gottbetter & Partners, LLP
(the "Escrow Agent") certificates (issued in the name
of the Escrow Agent or its nominee) representing (i) 600,000 shares of our
Common Stock (the "Indemnification Escrow Shares") for the purpose of securing
the indemnification obligations of the Symbid Holding B.V.
Stockholders named in
the Share Exchange Agreement and (ii) 9,170,000 shares of our Common Stock (the
"Acquisition Escrow Shares"). The Acquisition Escrow Shares shall be held in
escrow for six months after the closing of the Share Exchange. Symbid Corp.
(directly and/or through Symbid Holding B.V.
or another subsidiary) intends to
acquire 100% ownership of both Gambitious B.V.
("Gambitious") and Equidam
private limited liability corporations in
which Symbid Holding B.V.
currently holds minority interests. 3,000,000 of the
Acquisition Escrow Shares will be assigned to the purchase of Equidam BV
("Equidam Escrow Shares") and 5,000,000 of the Acquisition Escrow Shares will be
assigned to the purchase of Gambitious BV
("Gambitious Escrow Shares"). In the
event that Symbid Corp.
acquires Equidam BV
within the six month period, then
the amount of Equidam Escrow Shares equal to the number of shares of Symbid
Corp. Common Stock
to be issued as consideration for Equidam BV
cancelled, and the remainder of the Equidam Escrow Shares shall be distributed
pro rata to the Symbid Holding B.V.
Stockholders after such acquisition is
completed. In the event that Symbid Corp.
acquires Gambitious BV
within the six
month period, then the amount of Gambitious Escrow Shares equal to the number of
shares of Symbid Corp. Common Stock
to be issued as consideration for the
purchase of the remaining interest in Gambitious BV
shall be cancelled, and the
remainder of the Gambitious Escrow Shares shall be distributed pro rata to the
Symbid Holding B.V.
Stockholders after such acquisition is completed. If either
transaction is not completed within six months after the closing of the Share
Exchange, then the Acquisition Escrow Shares allocated to that transaction shall
be cancelled, and if both such acquisitions are not completed within six months
after the closing of the Share Exchange, then all of the Acquisition Escrow
Shares shall be cancelled. The issuance of shares by Symbid Corp.
and Gambitious B.V.
shall be subject to the same five percent indemnity
clause applicable to the Indemnification Escrow Shares with such escrow shares
to be held back from the issuances to the shareholders of Gambitious BV
. Alternatively, Symbid Corp.
management will escrow additional shares
necessary to cover the five (5%) percent.
Irrespective of whether Symbid Corp.
or Symbid Holding B.V.
ownership of Equidam or Gambitious within the six month period following the
closing under the Share Exchange, in recognition of the fact that Symbid Holding
, indirectly through Symbid B.V.
, presently owns 9% of Equidam and 13.05% of
Gambitious, the amount of Acquisition Escrow Shares equal to 9% of the amount of
the Equidam Escrow Shares (270,000 shares) and 13.05% of the amount of the
Gambitious Escrow Shares (652,500 shares), shall be distributed on a pro-rata
basis upon the earlier of the closings of the respective balance purchases or
six months following the Closing under the Share Exchange to the pre-Share
Exchange stockholders of Symbid Holding B.V.
This will have no effect on whether
other Acquisition Escrow Shares shall be distributed to Symbid Holding B.V.
stockholders in connection with the prospective balance purchases of Equidam and
Gambitious. The 1,170,000 Acquisition Escrow Shares to be distributed pursuant
to this paragraph (the "Automatically Distributable Acquisition Escrow Shares")
will also be subject to a five percent indemnity clause with 58,500 of such
Automatically Distributable Acquisition Escrow Shares to be held back from the
issuance to the pre-Share Exchange stockholders of Symbid Holding B.V.Symbid
management may, in its discretion, determine to escrow the shares
necessary to cover the five percent.Zomer B.V.
, Gastropoda Equus B.V.
, Arena Amnis B.V.
, and Sanden Beheer B.V.
each of which is a pre-Share Exchange officer and/or director of Symbid Holding
and a pre-Share Exchange shareholder of Symbid Holding B.V.
Company Shareholders") have agreed to deliver the Indemnification Escrow Shares
on behalf of themselves and the other shareholders of Symbid Holding B.V.
The Indemnification Escrow Shares and Additional Indemnification Escrow Shares
shall be held by the Escrow Agent pursuant to that certain Escrow Agreement of
even date herewith, a copy of which is set forth in Exhibit 10.11 attached
hereto. The Indemnification Escrow Shares and Additional Indemnification Escrow
Shares shall be held as a trust fund and shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of any
party, and shall be held and disbursed solely for the purposes and in accordance
with the terms of the Escrow Agreement. Maarten Timmerman
Representative") shall not be liable to any Symbid Holding B.V.
actions taken in his capacity as Indemnification Representative under this
Agreement or the Escrow Agreement, except for actions constituting gross
negligence or willful misconduct.
Upon the closing of the Share Exchange, under the terms of a split-off agreement
and a general release agreement, the Company transferred all of its pre-Share
Exchange operating assets and liabilities to its wholly-owned special-purpose
subsidiary, Symbid Split Corp.
, a Delaware
corporation ("Split-Off Subsidiary"),
formed on October 14, 2013
. Thereafter, pursuant to the split-off agreement, the
Company transferred all of the outstanding shares of capital stock of Split-Off
Subsidiary to Holli Morris
, the pre-Share Exchange majority stockholder of the
Company, and a former sole officer and director of the Company (the
"Split-Off"), in consideration of and in exchange for (i) the surrender and
cancellation of an aggregate of 187,500,000 shares of our Common Stock held by
Ms. Morris (which were cancelled and will resume the status of authorized but
unissued shares of our Common Stock) and (ii) certain representations, covenants
Pursuant to the terms of the Split-Off agreement between the Company and Ms.
Morris and as detailed therein, at the closing of the Split-Off, the Company
transferred all assets and liabilities of its pre-Share Exchange legacy business
to Ms. Morris. Because the Company had discontinued its legacy business prior
to the Share Exchange, we believe that the value of the assets and liabilities
transferred to Ms. Morris in the Split-Off was nominal. Prior to the closing of
the Share Exchange and Split-Off, Ms. Morris entered into a settlement and
release agreement with the Company dated March 8, 2013
, pursuant to which she
forgave an aggregate of $45,500
in Company liabilities outstanding as of that
date relating to cash loaned and advances made by her to the Company and to
accrued management fees due her. Pursuant to the terms of this agreement, Ms.
Morris also assumed and undertook to pay $44,584
in accounts payable and accrued
liabilities outstanding as of March 8, 2013
relating to general expenditures,
administrative expenses and professional fees of the Company. To our knowledge,
at the time of the closing of the Split-Off, there were no outstanding
liabilities transferred in the Split-Off. As such, we believe that prior at the
time of the Share Exchange, the value of the shares of our common stock
surrendered by Ms. Morris in exchange for the outstanding shares of the
Split-Off Subsidiary was nominal. Ms. Morris agreed to surrender all of her
shares in the Company as a condition to the completion of the Share Exchange.
To our knowledge, there were no oral or written agreements with Ms. Morris with
respect to any intention on her part to use the Company to acquire an operating
company or to engage in a reverse merger.
All descriptions of the split-off agreement and the general release agreement
herein are qualified in their entirety by reference to the text thereof filed as
exhibits hereto, which are incorporated herein by reference.
Concurrently with the closing of the Share Exchange and in contemplation of the
Share Exchange, Symbid Corp.
held a closing of its PPO in which it sold
3,098,736 units of its securities, at a price of $0.50
per unit. Each unit
consisted of one share of the Company's common stock and a warrant to purchase
one share of the Company's common stock. The warrants are exercisable for a
period of three (3) years at a purchase price of $0.75
The units sold in the PPO have anti-dilution protection such that if within
twelve (12) months after the closing the Company issues additional shares of its
common stock or common stock equivalents (subject to customary exceptions) for a
consideration per share less than the purchase price of the units (the "Lower
Price"), each investor in the PPO will be entitled to receive from the Company
additional units in an amount that, when added to the number of units initially
purchased by such investor, will equal the number of units that such investor's
PPO subscription amount would have purchased at the Lower Price. The investor
warrants include "weighted average" anti-dilution protection for a period of
twelve (12) months from the closing of the PPO, subject to customary exceptions,
including but not limited to, issuances under the Company's 2013 Plan (defined
As a result of this closing of the PPO, the Company received gross proceeds
(before deducting commissions and expenses of the PPO) of $1,549,368
. The PPO
was conducted on a "best efforts" basis. This closing of the PPO and the
closing of the Share Exchange were conditioned upon each other.
agreed to pay the placement agent in the PPO, Gottbetter Capital
, a registered broker-dealer, a cash commission of 10% of the gross
funds raised from investors in the PPO introduced by the placement agent. In
addition, the placement agent received warrants exercisable for a period of
three (3) years to purchase a number of shares of the Company's common stock
equal to ten percent (10%) of the number of units sold in the PPO to investors
introduced by the placement agent, with a per share exercise price of $0.50
The placement agent received fifty percent (50%) of the cash fee and warrants
for investors in the PPO introduced by FireRock Capital, Inc.
agent did not receive any cash fees or warrants for PPO investors who were
pre-Share Exchange shareholders of Symbid Holding B.V.
or PPO investors who were
introduced by Symbid. As a result of the foregoing arrangements, the placement
agent was paid an aggregate commission of $35,250
and was issued warrants to
purchase an aggregate of 77,500 shares of the Company's common stock.
The Company agreed to indemnify the placement agent and its sub-agents to the
fullest extent permitted by law, against certain liabilities that may be
incurred in connection with this PPO, including certain civil liabilities under
the Securities Act, and, where such indemnification is not available, to
contribute to the payments the placement agent and its sub-agents may be
required to make in respect of such liabilities.
All descriptions of the placement agent warrants herein are qualified in their
entirety by reference to the text of the form of placement agent warrant filed
as an exhibit hereto and incorporated herein by reference.
On February 5, 2014
, the Company conducted a second closing of the PPO in which
it sold an additional 373,844 units for aggregate gross proceeds of $186,922
As a result of this closing, the placement agent was paid $7,750
aggregate commissions and was issued warrants to purchase an additional 15,500
shares of the Company's common stock.
In connection with the PPO, we entered into a registration rights agreement (the
"Registration Rights Agreement"), pursuant to which we have agreed that no later
than ninety (90) calendar days from the final closing date of the PPO, we shall
file a registration statement (on Form S-1, or similar form) with the SEC
covering (a) the shares of Common Stock issued in the PPO, and (b) the shares of
Common Stock issuable upon exercise of the PPO warrants (but not including the
shares of Common Stock underlying the PPO placement agent warrants) (the
"Registration Statement"). We shall use commercially reasonable efforts to
ensure that such Registration Statement is declared effective within one hundred
eighty (180) calendar days of filing with the SEC
If we are late in filing the Registration Statement or if the Registration
Statement is not declared effective within one hundred eighty (180) days of
filing with the SEC
, monetary penalties payable by us to the holders of
registrable Common Stock that has not been so registered will commence to accrue
and cumulate at a rate equal to one percent (1%) of the PPO offering price per
share for each full month that (a) we are late in filing the Registration
Statement, or (b) the Registration Statement is late in being declared effective
by the SEC
; provided, however, that in no event shall the aggregate of any such
penalties exceed ten percent (10%) of the purchase price per unit.
Notwithstanding the foregoing, no penalties shall accrue with respect to any
shares of Common Stock removed from the Registration Statement in response to a
comment from the staff of the SEC
limiting the number of shares of Common Stock
which may be included in the Registration Statement (a "Cutback Comment") or
after the shares may be resold under Rule 144 or another exemption from
registration under the Securities Act.
We shall keep the Registration Statement "evergreen" for two (2) years from the
date it is declared effective by the SEC
, or until Rule 144 of the Securities
Act is available to the holders of registrable shares with respect to all of
their shares, whichever is earlier.
In any follow-on "best efforts" private placement offering of our securities
that provides for registration rights, the investors in the PPO will be entitled
to "piggyback" registration rights.
The holders of any shares of Common Stock removed from the Registration
Statement as the result of a cutback comment from the SEC
shall be entitled to
"piggyback" registration rights with respect to such removed shares at any time
following the SEC Registration Statement effective date with respect to a
registration statement filed by us which would permit the inclusion of such
In addition, for a period of twenty-four (24) months following the closing of
the transactions described herein, we shall not register, nor shall we take any
action to facilitate registration, under the Securities Act, the shares of our
Common Stock issued pursuant to the Share Exchange to the "Restricted Holders,"
as defined below. The above restriction shall not prohibit us from registering
on Form S-8 Common Stock issued under the 2013 EIP (as defined below), as and to
the extent permitted under the Securities Act, to persons other than Restricted
The form of the Registration Rights Agreement is filed as an exhibit to this
2013 Equity Incentive Plan
Before the Share Exchange, our Board of Directors adopted, and our stockholders
approved, our 2013 Equity Incentive Plan (the "2013 Plan"), which provides for
the issuance of incentive awards of up to 5,000,000 shares of our Common Stock
to officers, key employees, consultants and directors. To date, no awards have
been granted under the 2013 Plan. See "Market Price
of and Dividends on Common
Equity and Related Stockholder Matters - Securities Authorized for Issuance
under Equity Compensation Plans" below for more information about the 2013 Plan
and the outstanding stock options.
Departure and Appointment of Directors and Officers
Our Board of Directors is authorized to consist of five (5) members and
currently consists of two (2) members, leaving three (3) vacancies. On the
Closing Date, Noah Levinson
, our sole director before the Share Exchange,
resigned his position as a director, and Korstiaan Zandvliet
and Robin Slakhorst
were appointed to the Board of Directors.
Also on the Closing Date, Mr. Levinson
, our President, Secretary, Treasurer and
sole officer before the Share Exchange, resigned from these positions, and
was appointed as our Chief Executive Officer and President,
Maarten van der Sanden
was appointed as our Chief Financial Officer and
Treasurer and Robin Slakhorst was appointed as our Secretary and our Chief
Commercial Officer by the Board.
See "Management - Directors and Executive Officers" below for information about
our new directors and executive officers.
Lock-up Agreements and Other Restrictions
In connection with the Share Exchange, each of our executive officers and
directors named above and each person holding 10% or more of our Common Stock
after giving effect to the Share Exchange, the Split-Off and the PPO (the
"Restricted Holders"), holding at that date in the aggregate 11,832,892 shares
of our Common Stock, entered into agreements (the "Lock-Up and No Shorting
Agreements"), whereby they are restricted for a period of 24 months after the
Share Exchange from certain sales or dispositions of our Common Stock held by
them immediately after the Share Exchange, except in certain limited
circumstances (the "Lock-Up").
Further, for a period of 24 months after the Share Exchange, each Restricted
Holder has agreed in the Lock-Up and No Shorting Agreements to be subject to
restrictions on engaging in certain transactions, including effecting or
agreeing to effect short sales, whether or not against the box, establishing any
"put equivalent position" with respect to our Common Stock, borrowing or
pre-borrowing any shares of our Common Stock, or granting other rights
(including put or call options) with respect to our Common Stock or with respect
to any security that includes, relates to or derives any significant part of its
value from our Common Stock, or otherwise seeks to hedge his position in our
Additionally, Mark Tompkins
, the principal of Montrose Capital Limited
former sponsor of the Share Exchange, agreed to a Lock-Up for a period of 12
months of the 1,000,000 shares of our common stock owned by him.
Forward Stock SplitSymbid Corp.
effected a 25-for-1 forward stock split on its common stock in the
form of a dividend with a record date of September 16, 2013
and a payment date
of September 17, 2013
. All share amounts referenced in this Current Report,
including those applicable to periods prior to the forward stock split, give
effect to the forward stock split unless otherwise indicated.
Immediately after giving effect to (i) the Share Exchange and (ii) the
cancellation of 187,500,000 shares in the Split-Off, and (iii) the closing of
the PPO there were 34,268,736 issued and outstanding shares of our Common Stock,
The 19 stockholders of Symbid Holding B.V.
prior to the Share Exchange hold
21,170,000 shares of our Common Stock (including 600,000 Indemnification Escrow
Shares and 9,170,000 Acquisition Escrow Shares); and
the stockholders of the Company prior to the Share Exchange (excluding Holli
, who surrendered her shares in the Split-Off) hold 10,000,000 shares of
our Common Stock.
the investors in the PPO hold 3,098,736 shares of our Common Stock and warrants
to purchase 3,098,736 shares of our Common Stock, subject to adjustment in
certain circumstances as provided therein;
the placement agents and their permitted sub-agents hold placement agent
. . .