Filed Pursuant to Rule 424(b)(2)
Registration No. 333-232764
PROSPECTUS
XPRESSPA GROUP, INC.
$50,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
This prospectus will allow us to issue,
from time to time at prices and on terms to be determined at or prior to the time of the offering, up to $50,000,000 of any combination
of the securities described in this prospectus, either individually or in units. We may also offer common stock or preferred stock
upon conversion of or exchange for the debt securities; common stock upon conversion of or exchange for the preferred stock; common
stock, preferred stock or debt securities upon the exercise of warrants or rights.
This prospectus describes the general terms
of these securities and the general manner in which these securities will be offered. We will provide you with the specific terms
of any offering in one or more supplements to this prospectus. The prospectus supplements will also describe the specific manner
in which these securities will be offered and may also supplement, update or amend information contained in this document. You
should read this prospectus and any prospectus supplement, as well as any documents incorporated by reference into this prospectus
or any prospectus supplement, carefully before you invest.
Our securities may be sold directly by
us to you, through agents designated from time to time or to or through underwriters or dealers. For additional information on
the methods of sale, you should refer to the section entitled “Plan of Distribution” in this prospectus and in the
applicable prospectus supplement. If any underwriters or agents are involved in the sale of our securities with respect to which
this prospectus is being delivered, the names of such underwriters or agents and any applicable fees, commissions or discounts
and over-allotment options will be set forth in a prospectus supplement. The price to the public of such securities and the net
proceeds that we expect to receive from such sale will also be set forth in a prospectus supplement.
Our common stock is quoted on The Nasdaq
Capital Market, or Nasdaq, under the symbol “XSPA.” On July 12, 2019, the last reported sale price of our common stock
was $1.50 per share. The applicable prospectus supplement will contain information, where applicable, as to any other listing,
if any, on The Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the prospectus
supplement. Prospective purchasers of our securities are urged to obtain current information as to the market prices of our securities,
where applicable.
As of July 26, 2019, the aggregate market value of our common stock held by non-affiliates pursuant to
General Instruction I.B.6. of Form S-3 was approximately $13.1 million, which was calculated based on 2,916,919 outstanding shares
of our common stock, of which 2,781,162 shares are held by non-affiliates, and a price of $4.71 per share, the closing sale price
of our common stock reported on The Nasdaq Capital Market on June 30, 2019. As a result, we are currently eligible to offer and
sell up to an aggregate of approximately $4.3 million of our securities pursuant to General Instruction I.B.6 of Form
S-3. During the prior twelve calendar month period that ends on the date of this prospectus, we did not offer securities pursuant
to General Instruction I.B.6 on Form S-3. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell shares pursuant
to this prospectus with a value of more than one-third of the aggregate market value of our common stock held by non-affiliates
in any 12-month period, so long as the aggregate market value of our common stock held by non-affiliates is less than $75 million.
Investing in our securities involves
risks. Before deciding whether to invest in our securities, you should consider carefully the risks that we have described on page
2 of this prospectus under the caption “Risk Factors.” We may include specific risk factors in supplements to this
prospectus under the caption “Risk Factors.” This prospectus may not be used to sell our securities unless accompanied
by a prospectus supplement.
Neither the Securities and Exchange
Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy
of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is July
30, 2019.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration
statement that we filed with the Securities and Exchange Commission, or SEC, utilizing a “shelf” registration process.
Under this shelf registration process, we may offer shares of our common stock and preferred stock, various series of debt securities
and/or warrants, rights to purchase any of such securities, either individually or in units, in one or more offerings, with a total
value of up to $50,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we
offer a type or series of securities under this prospectus, we will provide a prospectus supplement that will contain specific
information about the terms of that offering.
This prospectus does not contain all of
the information included in the registration statement. For a more complete understanding of the offering of the securities, you
should refer to the registration statement, including its exhibits. The prospectus supplement may also add, update or change information
contained or incorporated by reference in this prospectus. However, no prospectus supplement will offer a security that is not
registered and described in this prospectus at the time of its effectiveness. This prospectus, together with the applicable prospectus
supplements and the documents incorporated by reference into this prospectus, includes all material information relating to the
offering of securities under this prospectus. You should carefully read this prospectus, the applicable prospectus supplement,
the information and documents incorporated herein by reference and the additional information under the heading “Where You
Can Find More Information” before making an investment decision.
You should rely only on the information
we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to
provide you with information different from that contained or incorporated by reference in this prospectus. No dealer, salesperson
or other person is authorized to give any information or to represent anything not contained or incorporated by reference in this
prospectus. You must not rely on any unauthorized information or representation. This prospectus is an offer to sell only the securities
offered hereby, but only under circumstances and in jurisdictions where it is lawful to do so. You should assume that the information
in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information
we have incorporated herein by reference is accurate only as of the date of the document incorporated by reference, regardless
of the time of delivery of this prospectus or any sale of a security.
We further note that the representations,
warranties and covenants made by us in any agreement that is filed as an exhibit to any document that is incorporated by reference
in the accompanying prospectus were made solely for the benefit of the parties to such agreement, including, in some cases, for
the purpose of allocating risk among the parties to such agreements, and should not be deemed to be a representation, warranty
or covenant to you. Moreover, such representations, warranties or covenants were accurate only as of the date when made. Accordingly,
such representations, warranties and covenants should not be relied on as accurately representing the current state of our affairs.
This prospectus may not be used to consummate
sales of our securities, unless it is accompanied by a prospectus supplement. To the extent there are inconsistencies between any
prospectus supplement, this prospectus and any documents incorporated by reference, the document with the most recent date will
control.
Unless the context otherwise requires,
references to “we,” “our,” “us,” or the “Company” in this prospectus mean XpresSpa
Group, Inc., together with its subsidiaries.
PROSPECTUS SUMMARY
The following is a summary of
what we believe to be the most important aspects of our business and the offering of our securities under this prospectus. We urge
you to read this entire prospectus, including the more detailed consolidated financial statements, notes to the consolidated financial
statements and other information incorporated by reference from our other filings with the SEC or included in any applicable prospectus
supplement. Investing in our securities involves risks. Therefore, carefully consider the risk factors set forth in any prospectus
supplements and in our most recent annual and quarterly filings with the SEC, as well as other information in this prospectus and
any prospectus supplements and the documents incorporated by reference herein or therein, before purchasing our securities. Each
of the risk factors could adversely affect our business, operating results and financial condition, as well as adversely affect
the value of an investment in our securities.
Overview
On January 5, 2018, we changed our name
to XpresSpa Group, Inc. (“XpresSpa Group” or the “Company”) from FORM Holdings Corp. Our Common Stock,
par value $0.01 per share, which had previously been listed under the trading symbol “FH” on the Nasdaq Capital Market,
has been listed under the trading symbol “XSPA” since January 8, 2018. Rebranding to XpresSpa Group aligned our corporate
strategy to build a pure-play health and wellness services company, which we commenced following our acquisition of XpresSpa Holdings,
LLC (“XpresSpa”) on December 23, 2016.
As a result of the transition to a pure-play
health and wellness services company, we currently have one operating segment that is also our sole reporting unit, XpresSpa, a
leading airport retailer of spa services. XpresSpa is a well-recognized airport spa brand with 56 locations, consisting of 51 domestic
and 5 international locations as of December 31, 2018. XpresSpa offers travelers premium spa services, including massage, nail
and skin care, as well as spa and travel products. During 2018 and 2017, XpresSpa generated $49,294,000 and $48,373,000 of
revenue, respectively. In 2018, approximately 83% of XpresSpa’s total revenue was generated by services, primarily massage
and nailcare, and 17% was generated by retail products, primarily travel accessories.
We own certain patent portfolios, which
we look to monetize through sales and licensing agreements. During the year ended December 31, 2018, we determined that our intellectual
property operating segment will no longer be an area of focus for us and, as such, will no longer be reflected as a separate operating
segment, as it is not expected to generate any material revenues or operating costs.
In October 2017, we completed the sale
of FLI Charge, Inc. (“FLI Charge”) and in March 2018, we completed the sale of Group Mobile Int’l LLC (“Group
Mobile”). These two entities previously comprised our technology operating segment. The results of operations for FLI Charge
and Group Mobile are presented in the consolidated statements of operations and comprehensive loss as consolidated net loss from
discontinued operations. The carrying amounts of assets and liabilities belonging to Group Mobile as of December 31, 2018, and
FLI Charge and Group Mobile as of December 31, 2017, are presented in the consolidated balance sheets as assets held for disposal
and liabilities held for disposal, respectively.
Company Information
We were incorporated in Delaware
as a corporation on January 9, 2006 and completed an initial public offering in June 2010. Our principal executive offices are
located at 780 Third Avenue, 12
th
Floor, New York, New York 10017. Our telephone number is (212) 309-7549 and our website
address is
www.xpresspagroup.com
. We also operate the website
www.xpresspa.com
. References in this
prospectus to our website address does not constitute incorporation by reference of the information contained on the website.
RISK FACTORS
Investing in our securities involves significant
risk. The prospectus supplement applicable to each offering of our securities will contain a discussion of the risks applicable
to an investment in us. Prior to making a decision about investing in our securities, you should carefully consider the specific
factors discussed under the heading “Risk Factors” in the applicable prospectus supplement, together with all of the
other information contained or incorporated by reference in the prospectus supplement or appearing or incorporated by reference
in this prospectus. You should also consider the risks, uncertainties and assumptions discussed under the heading “Risk Factors”
included in our
most recent annual report on Form 10-K
, as revised or supplemented by our subsequent
quarterly reports on Form 10-Q
or our
current reports on Form 8-K
that we have filed with the SEC, all of which are incorporated herein by
reference, and which may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the
future. The risks and uncertainties we have described are not the only ones we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial may also affect our operations. The occurrence of any of these risks might cause
you to lose all or part of your investment in the offered securities.
SPECIAL NOTE REGARDING FORWARD-LOOKING
STATEMENTS
This prospectus and the documents incorporated
by reference in this prospectus include forward-looking statements within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act that relate to future events or our future financial performance and involve known and unknown
risks, uncertainties and other factors that may cause our actual results, levels of activity, performance or achievements to differ
materially from any future results, levels of activity, performance or achievements expressed or implied by these forward-looking
statements. Words such as, but not limited to, “believe,” “expect,” “anticipate,” “estimate,”
“intend,” “may,” “plan,” “potential,” “predict,” “project,”
“targets,” “likely,” “will,” “would,” “could,” “should,”
“continue,” and similar expressions or phrases, or the negative of those expressions or phrases, are intended to identify
forward-looking statements, although not all forward-looking statements contain these identifying words. Although we believe that
we have a reasonable basis for each forward-looking statement contained in this prospectus and incorporated by reference in this
prospectus, we caution you that these statements are based on our projections of the future that are subject to known and unknown
risks and uncertainties and other factors that may cause our actual results, level of activity, performance or achievements expressed
or implied by these forward-looking statements, to differ. The sections in our periodic reports, including our
Annual Report on Form 10-K for the fiscal year ended December 31, 2018
, entitled “Business,” “Risk Factors,” and “Management’s
Discussion and Analysis of Financial Condition and Results of Operations,” as well as other sections in this prospectus and
the documents or reports incorporated by reference in this prospectus, discuss some of the factors that could contribute to these
differences. These forward-looking statements include, among other things, statements about:
These risks and uncertainties, many of
which are beyond our control, include, but are not limited to, the following:
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our ability to continue as a going concern;
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the impact of our business and asset acquisitions on our operations and operating results including
our ability to realize the expected value and benefits of such acquisitions;
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our ability to develop and offer new products and services;
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our ability to raise additional capital to fund our operations and business plan and the effects
that such financing may have on the value of the equity instruments held by our stockholders;
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general economic conditions and level of consumer and corporate spending on health and wellness
and travel;
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our ability to secure new locations, maintain existing ones, and ensure continued customer traffic
at those locations;
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our ability to hire a skilled labor force and the costs associated with that labor;
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our ability to accurately forecast the costs associated with opening new retail locations and maintaining
existing ones and the revenue derived from our retail locations;
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performance by our Airport Concession Disadvantaged Business Enterprise partners on obligations
set forth in our joint venture agreements;
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our ability to protect our confidential information and customers’ financial data and other
personal information;
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failure or disruption to our information technology systems;
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the impact of the recently passed federal tax reform bill;
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our ability to retain key members of our management team;
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the loss of, or an adverse change with regard to, one or more of our significant suppliers, distributors,
vendors or other business relationships;
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unexpected events and trends in the health and wellness and travel industries;
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market acceptance, quality, pricing, availability and useful life of our products and/or services,
as well as the mix of our products and services sold;
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competitive conditions within our industries;
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our compliance with laws and regulations in the jurisdictions in which we do business and any changes
in such laws and regulations;
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lawsuits, claims, and investigations that may be filed against us and other events that may adversely
affect our reputation;
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our ability to protect and maintain our intellectual property rights; and
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our ability to license and monetize our patents, including litigation outcomes.
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We may not actually achieve the plans,
intentions or expectations disclosed in our forward-looking statements, and you should not place undue reliance on our forward-looking
statements. Actual results or events could differ materially from the plans, intentions and expectations disclosed in the forward-looking
statements we make. We have included important cautionary statements in this prospectus or in the documents incorporated by reference
in this prospectus, particularly in the “Risk Factors” section, that we believe could cause actual results or events
to differ materially from the forward-looking statements that we make. For a summary of such factors, please refer to the section
entitled “Risk Factors” in this prospectus, as updated and supplemented by the discussion of risks and uncertainties
under “Risk Factors” contained in any supplements to this prospectus and in our
most recent annual report on Form 10-K
,
as revised or supplemented by our subsequent
quarterly reports on Form 10-Q
or our
current reports on Form 8-K
, as well as any
amendments thereto, as filed with the SEC and which are incorporated herein by reference. The information contained in this document
is believed to be current as of the date of this document. We do not intend to update any of the forward-looking statements after
the date of this document to conform these statements to actual results or to changes in our expectations, except as required by
law.
In light of these assumptions, risks and
uncertainties, the results and events discussed in the forward-looking statements contained in this prospectus or in any document
incorporated herein by reference might not occur. Investors are cautioned not to place undue reliance on the forward-looking statements,
which speak only as of the date of this prospectus or the date of the document incorporated by reference in this prospectus. We
are not under any obligation, and we expressly disclaim any obligation, to update or alter any forward-looking statements, whether
as a result of new information, future events or otherwise. All subsequent forward-looking statements attributable to us or to
any person acting on our behalf are expressly qualified in their entirety by the cautionary statements contained or referred to
in this section.
RATIO OF EARNINGS TO FIXED CHARGES
Any time debt securities are offered pursuant
to this prospectus, we will provide a table setting forth our ratio of earnings to fixed charges on a historical basis in the applicable
prospectus supplement, if required.
USE OF PROCEEDS
Unless otherwise indicated in the applicable
prospectus supplement, we intend to use any net proceeds from the sale of securities under this prospectus for our operations and
for other general corporate purposes, including, but not limited to, general working capital. We have not determined the amounts
we plan to spend on any of the areas listed above or the timing of these expenditures. As a result, our management will have broad
discretion to allocate the net proceeds, if any, we receive in connection with securities offered pursuant to this prospectus for
any purpose. Pending application of the net proceeds as described above, we may initially invest the net proceeds in short-term,
investment-grade, interest-bearing securities or apply them to the reduction of short-term indebtedness.
PLAN OF DISTRIBUTION
We may offer securities under this prospectus
from time to time pursuant to underwritten public offerings, negotiated transactions, block trades or a combination of these methods.
We may sell the securities (1) through underwriters or dealers, (2) through agents or (3) directly to one or more
purchasers, or through a combination of such methods. We may distribute the securities from time to time in one or more transactions
at:
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a fixed price or prices, which may be changed from time to time;
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market prices prevailing at the time of sale;
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prices related to the prevailing market prices; or
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We may directly solicit offers to purchase
the securities being offered by this prospectus. We may also designate agents to solicit offers to purchase the securities from
time to time, and may enter into arrangements for “at-the-market,” equity line or similar transactions. We will name
in a prospectus supplement any underwriter or agent involved in the offer or sale of the securities.
If we utilize a dealer in the sale of the
securities being offered by this prospectus, we will sell the securities to the dealer, as principal. The dealer may then resell
the securities to the public at varying prices to be determined by the dealer at the time of resale.
If we utilize an underwriter in the sale
of the securities being offered by this prospectus, we will execute an underwriting agreement with the underwriter at the time
of sale, and we will provide the name of any underwriter in the prospectus supplement which the underwriter will use to make resales
of the securities to the public. In connection with the sale of the securities, we, or the purchasers of the securities for whom
the underwriter may act as agent, may compensate the underwriter in the form of underwriting discounts or commissions. The underwriter
may sell the securities to or through dealers, and the underwriter may compensate those dealers in the form of discounts, concessions
or commissions.
With respect to underwritten public offerings,
negotiated transactions and block trades, we will provide in the applicable prospectus supplement information regarding any compensation
we pay to underwriters, dealers or agents in connection with the offering of the securities, and any discounts, concessions or
commissions allowed by underwriters to participating dealers. Underwriters, dealers and agents participating in the distribution
of the securities may be deemed to be underwriters within the meaning of the Securities Act, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may be deemed to be underwriting discounts and commissions.
We may enter into agreements to indemnify underwriters, dealers and agents against civil liabilities, including liabilities under
the Securities Act, or to contribute to payments they may be required to make in respect thereof.
If so indicated in the applicable prospectus
supplement, we will authorize underwriters, dealers or other persons acting as our agents to solicit offers by certain institutions
to purchase securities from us pursuant to delayed delivery contracts providing for payment and delivery on the date stated in
each applicable prospectus supplement. Each contract will be for an amount not less than, and the aggregate amount of securities
sold pursuant to such contracts shall not be less nor more than, the respective amounts stated in each applicable prospectus supplement.
Institutions with whom the contracts, when authorized, may be made include commercial and savings banks, insurance companies, pension
funds, investment companies, educational and charitable institutions and other institutions, but shall in all cases be subject
to our approval. Delayed delivery contracts will not be subject to any conditions except that:
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the purchase by an institution of the securities covered under that contract shall not at the time
of delivery be prohibited under the laws of the jurisdiction to which that institution is subject; and
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if the securities are also being sold to underwriters
acting as principals for their own account, the underwriters shall have purchased such securities not sold for delayed delivery.
The underwriters and other persons acting as our agents will not have any responsibility in respect of the validity or performance
of delayed delivery contracts.
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One or more firms, referred to as “remarketing
firms,” may also offer or sell the securities, if a prospectus supplement so indicates, in connection with a remarketing
arrangement upon their purchase. Remarketing firms will act as principals for their own accounts or as our agents. These remarketing
firms will offer or sell the securities in accordance with the terms of the securities. Each prospectus supplement will identify
and describe any remarketing firm and the terms of its agreement, if any, with us and will describe the remarketing firm’s
compensation. Remarketing firms may be deemed to be underwriters in connection with the securities they remarket. Remarketing firms
may be entitled under agreements that may be entered into with us to indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for us in the ordinary
course of business.
Certain underwriters may use this prospectus
and any accompanying prospectus supplement for offers and sales related to market-making transactions in the securities. These
underwriters may act as principal or agent in these transactions, and the sales will be made at prices related to prevailing market
prices at the time of sale. Any underwriters involved in the sale of the securities may qualify as “underwriters” within
the meaning of Section 2(a)(11) of the Securities Act. In addition, the underwriters’ commissions, discounts or concessions
may qualify as underwriters’ compensation under the Securities Act and the rules of the Financial Industry Regulatory Authority,
Inc., or FINRA.
Shares of our common stock sold pursuant
to the registration statement of which this prospectus is a part will be authorized for listing and trading on The Nasdaq Capital
Market. The applicable prospectus supplement will contain information, where applicable, as to any other listing, if any, on The
Nasdaq Capital Market or any securities market or other securities exchange of the securities covered by the prospectus supplement.
Underwriters may make a market in our common stock, but will not be obligated to do so and may discontinue any market making at
any time without notice. We can make no assurance as to the liquidity of or the existence, development or maintenance of trading
markets for any of the securities.
In order to facilitate the offering of
the securities, certain persons participating in the offering may engage in transactions that stabilize, maintain or otherwise
affect the price of the securities. This may include over-allotments or short sales of the securities, which involve the sale by
persons participating in the offering of more securities than we sold to them. In these circumstances, these persons would cover
such over-allotments or short positions by making purchases in the open market or by exercising their over-allotment option. In
addition, these persons may stabilize or maintain the price of the securities by bidding for or purchasing the applicable security
in the open market or by imposing penalty bids, whereby selling concessions allowed to dealers participating in the offering may
be reclaimed if the securities sold by them are repurchased in connection with stabilization transactions. The effect of these
transactions may be to stabilize or maintain the market price of the securities at a level above that which might otherwise prevail
in the open market. These transactions may be discontinued at any time.
The underwriters, dealers and agents may
engage in other transactions with us, or perform other services for us, in the ordinary course of their business.
DESCRIPTION OF COMMON STOCK
We are authorized to issue 150,000,000
shares of common stock, par value $0.01 per share. As of July 12, 2019, we had 2,916,477 shares of common stock outstanding and
approximately 49 stockholders of record.
The following summary of certain provisions
of our common stock does not purport to be complete. You should refer to the section of this prospectus entitled “Certain
Provisions of Delaware Law and of the Company’s Certificate of Incorporation and Bylaws” and our amended and restated
certificate of incorporation, as amended, and our amended and restated bylaws, both of which are included as exhibits to the registration
statement of which this prospectus is a part. The summary below is also qualified by provisions of applicable law.
General
Holders of our common stock are entitled
to one vote for each share held on all matters submitted to a vote of stockholders and do not have cumulative voting rights. An
election of directors by our stockholders shall be determined by a plurality of the votes cast by the stockholders entitled to
vote on the election. Holders of common stock are entitled to receive proportionately any dividends as may be declared by our board
of directors, subject to any preferential dividend rights of any then outstanding series of preferred stock. All shares of common
stock outstanding as of the date of this prospectus and, upon issuance and sale, all shares of common stock that we may offer pursuant
to this prospectus, will be fully paid and nonassessable.
In the event of our liquidation or dissolution,
the holders of common stock are entitled to receive proportionately our net assets available for distribution to stockholders after
the payment of all debts and other liabilities and subject to any preferential rights of any then outstanding series of preferred
stock. Holders of common stock have no preemptive, subscription, redemption or conversion rights. There are no redemption or sinking
fund provisions applicable to the common stock. The voting, dividend and liquidation rights of holders of common stock are subject
to and may be adversely affected by the rights of the holders of shares of our existing series of preferred stock or any series
of preferred stock that we may designate and issue in the future.
Transfer Agent and Registrar
The transfer agent and registrar for our
common stock is American Stock Transfer & Trust Company, LLC, with offices at 6201 15th Avenue, Brooklyn, New York 11219.
Stock Exchange Listing
Our common stock is listed for quotation
on The Nasdaq Capital Market under the symbol “XSPA.”
DESCRIPTION OF PREFERRED STOCK
The following description of preferred
stock and the description of the terms of any particular series of preferred stock that we choose to issue hereunder are not complete.
These descriptions are qualified in their entirety by reference to our amended and restated certificate of incorporation and the
certificate of designation relating to any series of preferred stock issued by us. The powers, preferences, rights and restrictions
of the preferred stock of each series will be fixed by the certificate of designation relating to that series.
Our amended and restated certificate of
incorporation, as amended, authorizes us to issue 5,000,000 shares of preferred stock. As of July 12, 2019, we had:
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designated and issued 6,968 shares of our preferred stock as “Series A Convertible Preferred
Stock” with no shares outstanding;
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designated and issued 300,000 shares of our preferred stock as “Series C Junior Preferred
Stock” with no shares outstanding;
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designated 500,000 shares of our preferred stock as “Series D Convertible Preferred Stock,”
issued 23,760 shares of Series D Convertible Preferred Stock with 21,027 shares outstanding;
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designated 2,397,060 shares of our preferred stock as “Series E Convertible Preferred Stock,”
issued 48,387 shares of Series E Convertible Preferred Stock with 48,387 shares outstanding; and
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designated and issued 9,000 shares of our preferred stock as “Series F Convertible Preferred
Stock” with 9,000 shares outstanding.
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Our board of directors has the authority,
without further action by the stockholders, to issue up to an additional 1,786,972 shares of preferred stock in one or more series
and to fix the rights, preferences, privileges and restrictions granted to or imposed upon the preferred stock. Any or all of these
rights may be greater than the rights of our common stock.
Our board of directors, without stockholder
approval, can issue preferred stock with voting, conversion or other rights that could negatively affect the voting power and other
rights of the holders of our common stock. Preferred stock could thus be issued quickly with terms calculated to delay or prevent
a change in control of the Company or make it more difficult to remove our management. Additionally, the issuance of preferred
stock may have the effect of decreasing the market price of our common stock.
Our board of directors may specify the
following characteristics of any preferred stock:
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the maximum number of shares;
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the designation of the shares;
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the annual dividend rate, if any, whether the dividend rate is fixed or variable, the date or dates
on which dividends will accrue, the dividend payment dates, and whether dividends will be cumulative;
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the price and the terms and conditions for redemption, if any, including redemption at our option
or at the option of the holders, including the time period for redemption, and any accumulated dividends or premiums;
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the liquidation preference, if any, and any accumulated dividends upon the liquidation, dissolution
or winding up of our affairs;
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any sinking fund or similar provision, and, if so, the terms and provisions relating to the purpose
and operation of the fund;
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the terms and conditions, if any, for conversion or exchange of shares of any other class or classes
of our capital stock or any series of any other class or classes, or of any other series of the same class, or any other securities
or assets, including the price or the rate of conversion or exchange and the method, if any, of adjustment;
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any or all other preferences and relative, participating, optional or other special rights, privileges
or qualifications, limitations or restrictions; and
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any preferred stock issued will be fully paid and nonassessable upon issuance.
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Transfer Agent and Registrar
The transfer agent and registrar for our
preferred stock will be set forth in the applicable prospectus supplement.
DESCRIPTION OF DEBT SECURITIES
The following description, together with
the additional information we include in any applicable prospectus supplements, summarizes the material terms and provisions of
the debt securities that we may offer under this prospectus. While the terms we have summarized below will apply generally to any
future debt securities we may offer pursuant to this prospectus, we will describe the particular terms of any debt securities that
we may offer in more detail in the applicable prospectus supplement. If we so indicate in a prospectus supplement, the terms of
any debt securities offered under such prospectus supplement may differ from the terms we describe below, and to the extent the
terms set forth in a prospectus supplement differ from the terms described below, the terms set forth in the prospectus supplement
shall control.
We may sell from time to time, in one or
more offerings under this prospectus, debt securities, which may be senior or subordinated. We will issue any such senior debt
securities under a senior indenture that we will enter into with a trustee to be named in the senior indenture. We will issue any
such subordinated debt securities under a subordinated indenture, which we will enter into with a trustee to be named in the subordinated
indenture. We have filed forms of these documents as exhibits to the registration statement, of which this prospectus is a part.
We use the term “indentures” to refer to either the senior indenture or the subordinated indenture, as applicable.
The indentures will be qualified under the Trust Indenture Act of 1939, as in effect on the date of the indenture. We use the term
“debenture trustee” to refer to either the trustee under the senior indenture or the trustee under the subordinated
indenture, as applicable.
The following summaries of material provisions
of the senior debt securities, the subordinated debt securities and the indentures are subject to, and qualified in their entirety
by reference to, all the provisions of the indenture applicable to a particular series of debt securities.
General
Each indenture provides that debt securities
may be issued from time to time in one or more series and may be denominated and payable in foreign currencies or units based on
or relating to foreign currencies. Neither indenture limits the amount of debt securities that may be issued thereunder, and each
indenture provides that the specific terms of any series of debt securities shall be set forth in, or determined pursuant to, an
authorizing resolution and/or a supplemental indenture, if any, relating to such series.
We will describe in each prospectus supplement
the following terms relating to a series of debt securities:
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the title or designation;
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the aggregate principal amount and any limit on the amount that may be issued;
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the currency or units based on or relating to currencies in which debt securities of such series
are denominated and the currency or units in which principal or interest or both will or may be payable;
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whether we will issue the series of debt securities in global form, the terms of any global securities
and who the depositary will be;
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the maturity date and the date or dates on which principal will be payable;
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the interest rate, which may be fixed or variable, or the method for determining the rate and the
date interest will begin to accrue, the date or dates interest will be payable and the record dates for interest payment dates
or the method for determining such dates;
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whether or not the debt securities will be secured or unsecured, and the terms of any secured debt;
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the terms of the subordination of any series of subordinated debt;
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the place or places where payments will be payable;
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our right, if any, to defer payment of interest and the maximum length of any such deferral period;
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the date, if any, after which, and the price at which, we may, at our option, redeem the series
of debt securities pursuant to any optional redemption provisions;
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the date, if any, on which, and the price at which we are obligated, pursuant to any mandatory
sinking fund provisions or otherwise, to redeem, or at the holder’s option to purchase, the series of debt securities;
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whether the indenture will restrict our ability to pay dividends, or will require us to maintain
any asset ratios or reserves;
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whether we will be restricted from incurring any additional indebtedness;
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a discussion of any material or special U.S. federal income tax considerations applicable to a
series of debt securities;
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the denominations in which we will issue the series of debt securities, if other than denominations
of $1,000 and any integral multiple thereof; and
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any other specific terms, preferences, rights or limitations of, or restrictions on, the debt securities.
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We may issue debt securities that provide
for an amount less than their stated principal amount to be due and payable upon declaration of acceleration of their maturity
pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other
special considerations applicable to any of these debt securities in the applicable prospectus supplement.
Conversion or Exchange Rights
We will set forth in the prospectus supplement
the terms, if any, on which a series of debt securities may be convertible into or exchangeable for our common stock or our other
securities. We will include provisions as to whether conversion or exchange is mandatory, at the option of the holder or at our
option. We may include provisions pursuant to which the number of shares of our common stock or our other securities that the holders
of the series of debt securities receive would be subject to adjustment.
Consolidation, Merger or Sale; No Protection
in Event of a Change of Control or Highly Leveraged Transaction
The indentures do not contain any covenant
that restricts our ability to merge or consolidate, or sell, convey, transfer or otherwise dispose of all or substantially all
of our assets. However, any successor to or acquirer of such assets must assume all of our obligations under the indentures or
the debt securities, as appropriate.
Unless we state otherwise in the applicable
prospectus supplement, the debt securities will not contain any provisions that may afford holders of the debt securities protection
in the event we have a change of control or in the event of a highly leveraged transaction (whether or not such transaction results
in a change of control), which could adversely affect holders of debt securities.
Events of Default Under the Indenture
The following are events of default under
the indentures with respect to any series of debt securities that we may issue:
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if we fail to pay interest when due and our failure continues for 90 days and the time for
payment has not been extended or deferred;
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if we fail to pay the principal, or premium, if any, when due and the time for payment has not
been extended or delayed;
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if we fail to observe or perform any other covenant set forth in the debt securities of such series
or the applicable indentures, other than a covenant specifically relating to and for the benefit of holders of another series of
debt securities, and our failure continues for 90 days after we receive written notice from the debenture trustee or holders
of not less than a majority in aggregate principal amount of the outstanding debt securities of the applicable series; and
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if specified events of bankruptcy, insolvency or reorganization occur as to us.
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No event of default with respect to a particular
series of debt securities (except as to certain events of bankruptcy, insolvency or reorganization) necessarily constitutes an
event of default with respect to any other series of debt securities. The occurrence of an event of default may constitute an event
of default under any bank credit agreements we may have in existence from time to time. In addition, the occurrence of certain
events of default or an acceleration under the indenture may constitute an event of default under certain of our other indebtedness
outstanding from time to time.
If an event of default with respect to
debt securities of any series at the time outstanding occurs and is continuing, then the trustee or the holders of not less than
a majority in principal amount of the outstanding debt securities of that series may, by a notice in writing to us (and to the
debenture trustee if given by the holders), declare to be due and payable immediately the principal (or, if the debt securities
of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of
and premium and accrued and unpaid interest, if any, on all debt securities of that series. Before a judgment or decree for payment
of the money due has been obtained with respect to debt securities of any series, the holders of a majority in principal amount
of the outstanding debt securities of that series (or, at a meeting of holders of such series at which a quorum is present, the
holders of a majority in principal amount of the debt securities of such series represented at such meeting) may rescind and annul
the acceleration if all events of default, other than the non-payment of accelerated principal, premium, if any, and interest,
if any, with respect to debt securities of that series, have been cured or waived as provided in the applicable indenture (including
payments or deposits in respect of principal, premium or interest that had become due other than as a result of such acceleration).
We refer you to the prospectus supplement relating to any series of debt securities that are discount securities for the particular
provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an
event of default.
Subject to the terms of the indentures,
if an event of default under an indenture shall occur and be continuing, the debenture trustee will be under no obligation to exercise
any of its rights or powers under such indenture at the request or direction of any of the holders of the applicable series of
debt securities, unless such holders have offered the debenture trustee reasonable indemnity. The holders of a majority in principal
amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the debenture trustee, or exercising any trust or power conferred on the debenture trustee,
with respect to the debt securities of that series, provided that:
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the direction so given by the holder is not in conflict with any law or the applicable indenture;
and
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subject to its duties under the Trust Indenture Act, the debenture trustee need not take any action
that might involve it in personal liability or might be unduly prejudicial to the holders not involved in the proceeding.
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A holder of the debt securities of any
series will only have the right to institute a proceeding under the indentures or to appoint a receiver or trustee, or to seek
other remedies if:
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the holder previously has given written notice to the debenture trustee of a continuing event of
default with respect to that series;
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the holders of at least a majority in aggregate principal amount of the outstanding debt securities
of that series have made written request, and such holders have offered reasonable indemnity to the debenture trustee to institute
the proceeding as trustee; and
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the debenture trustee does not institute the proceeding, and does not receive from the holders
of a majority in aggregate principal amount of the outstanding debt securities of that series (or at a meeting of holders of such
series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series represented
at such meeting) other conflicting directions within 60 days after the notice, request and offer.
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These limitations do not apply to a suit
instituted by a holder of debt securities if we default in the payment of the principal, premium, if any, or interest on, the debt
securities.
We will periodically file statements with
the applicable debenture trustee regarding our compliance with specified covenants in the applicable indenture.
Modification of Indenture; Waiver
The debenture trustee and we may change
the applicable indenture without the consent of any holders with respect to specific matters, including:
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to fix any ambiguity, defect or inconsistency in the indenture; and
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to change anything that does not materially adversely affect the interests of any holder of debt securities of any series issued
pursuant to such indenture.
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In addition, under the indentures, the
rights of holders of a series of debt securities may be changed by us and the debenture trustee with the written consent of the
holders of at least a majority in aggregate principal amount of the outstanding debt securities of each series (or, at a meeting
of holders of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of
such series represented at such meeting) that is affected. However, the debenture trustee and we may make the following changes
only with the consent of each holder of any outstanding debt securities affected:
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extending the fixed maturity of the series of debt securities;
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reducing the principal amount, reducing the rate of or extending the time of payment of interest,
or any premium payable upon the redemption of any debt securities;
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reducing the principal amount of discount securities payable upon acceleration of maturity;
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making the principal of or premium or interest on any debt security payable in currency other than
that stated in the debt security; or
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reducing the percentage of debt securities, the holders of which are required to consent to any
amendment or waiver.
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Except for certain specified provisions,
the holders of at least a majority in principal amount of the outstanding debt securities of any series (or, at a meeting of holders
of such series at which a quorum is present, the holders of a majority in principal amount of the debt securities of such series
represented at such meeting) may on behalf of the holders of all debt securities of that series waive our compliance with provisions
of the indenture. The holders of a majority in principal amount of the outstanding debt securities of any series may on behalf
of the holders of all the debt securities of such series waive any past default under the indenture with respect to that series
and its consequences, except a default in the payment of the principal of, premium or any interest on any debt security of that
series or in respect of a covenant or provision, which cannot be modified or amended without the consent of the holder of each
outstanding debt security of the series affected;
provided
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however
, that the holders of a majority in principal
amount of the outstanding debt securities of any series may rescind an acceleration and its consequences, including any related
payment default that resulted from the acceleration.
Discharge
Each indenture provides that we can elect
to be discharged from our obligations with respect to one or more series of debt securities, except for obligations to:
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the transfer or exchange of debt securities of the series;
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replace stolen, lost or mutilated debt securities of the series;
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maintain paying agencies;
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hold monies for payment in trust;
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compensate and indemnify the trustee; and
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appoint any successor trustee.
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In order to exercise our rights to be discharged
with respect to a series, we must deposit with the trustee money or government obligations sufficient to pay all the principal
of, the premium, if any, and interest on, the debt securities of the series on the dates payments are due.
Form, Exchange, and Transfer
We will issue the debt securities of each
series only in fully registered form without coupons and, unless we otherwise specify in the applicable prospectus supplement,
in denominations of $1,000 and any integral multiple thereof. The indentures provide that we may issue debt securities of a series
in temporary or permanent global form and as book-entry securities that will be deposited with, or on behalf of, The Depository
Trust Company or another depositary named by us and identified in a prospectus supplement with respect to that series.
At the option of the holder, subject to
the terms of the indentures and the limitations applicable to global securities described in the applicable prospectus supplement,
the holder of the debt securities of any series can exchange the debt securities for other debt securities of the same series,
in any authorized denomination and of like tenor and aggregate principal amount.
Subject to the terms of the indentures
and the limitations applicable to global securities set forth in the applicable prospectus supplement, holders of the debt securities
may present the debt securities for exchange or for registration of transfer, duly endorsed or with the form of transfer endorsed
thereon duly executed if so required by us or the security registrar, at the office of the security registrar or at the office
of any transfer agent designated by us for this purpose. Unless otherwise provided in the debt securities that the holder presents
for transfer or exchange or in the applicable indenture, we will make no service charge for any registration of transfer or exchange,
but we may require payment of any taxes or other governmental charges.
We will name in the applicable prospectus
supplement the security registrar, and any transfer agent in addition to the security registrar, that we initially designate for
any debt securities. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or
approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent
in each place of payment for the debt securities of each series.
If we elect to redeem the debt securities
of any series, we will not be required to:
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issue, register the transfer of, or exchange any debt securities of that series during a period
beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any debt securities that
may be selected for redemption and ending at the close of business on the day of the mailing; or
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register the transfer of or exchange any debt securities so selected for redemption, in whole or
in part, except the unredeemed portion of any debt securities we are redeeming in part.
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Information Concerning the Debenture
Trustee
The debenture trustee, other than during
the occurrence and continuance of an event of default under the applicable indenture, undertakes to perform only those duties as
are specifically set forth in the applicable indenture. Upon an event of default under an indenture, the debenture trustee under
such indenture must use the same degree of care as a prudent person would exercise or use in the conduct of his or her own affairs.
Subject to this provision, the debenture trustee is under no obligation to exercise any of the powers given it by the indentures
at the request of any holder of debt securities unless it is offered reasonable security and indemnity against the costs, expenses
and liabilities that it might incur.
Payment and Paying Agents
Unless we otherwise indicate in the applicable
prospectus supplement, we will make payment of the interest on any debt securities on any interest payment date to the person in
whose name the debt securities, or one or more predecessor securities, are registered at the close of business on the regular record
date for the interest.
We will pay principal of and any premium
and interest on the debt securities of a particular series at the office of the paying agents designated by us, except that unless
we otherwise indicate in the applicable prospectus supplement, will we make interest payments by check which we will mail to the
holder. Unless we otherwise indicate in a prospectus supplement, we will designate the corporate trust office of the debenture
trustee in the City of New York as our sole paying agent for payments with respect to debt securities of each series. We will name
in the applicable prospectus supplement any other paying agents that we initially designate for the debt securities of a particular
series. We will maintain a paying agent in each place of payment for the debt securities of a particular series.
All money we pay to a paying agent or the
debenture trustee for the payment of the principal of or any premium or interest on any debt securities which remains unclaimed
at the end of two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder
of the security thereafter may look only to us for payment thereof.
Governing Law
The indentures and the debt securities
will be governed by and construed in accordance with the laws of the State of New York, except to the extent that the Trust Indenture
Act is applicable.
Subordination of Subordinated Debt Securities
Our obligations pursuant to any subordinated
debt securities will be unsecured and will be subordinate and junior in priority of payment to certain of our other indebtedness
to the extent described in a prospectus supplement. The subordinated indenture does not limit the amount of senior indebtedness
we may incur. It also does not limit us from issuing any other secured or unsecured debt.
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase shares
of our common stock, preferred stock and/or debt securities in one or more series together with other securities or separately,
as described in the applicable prospectus supplement. Below is a description of certain general terms and provisions of the warrants
that we may offer. Particular terms of the warrants will be described in the warrant agreements and the prospectus supplement relating
to the warrants.
The applicable prospectus supplement will
contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are
payable;
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the designation, amount and terms of the securities purchasable upon exercise of the warrants;
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if applicable, the exercise price for shares of our common stock and the number of shares of common
stock to be received upon exercise of the warrants;
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if applicable, the exercise price for shares of our preferred stock, the number of shares of preferred
stock to be received upon exercise, and a description of that series of our preferred stock;
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if applicable, the exercise price for our debt securities, the amount of debt securities to be
received upon exercise, and a description of that series of debt securities;
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the date on which the right to exercise the warrants will begin and the date on which that right
will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you
may exercise the warrants;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global
form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the
form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants, if any, and of any other depositaries, execution
or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the
warrants on any securities exchange;
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if applicable, the date from and after which the warrants and the common stock, preferred stock
and/or debt securities will be separately transferable;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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the anti-dilution provisions of the warrants, if any;
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any redemption or call provisions;
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whether the warrants may be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the
exchange and exercise of the warrants.
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Transfer Agent and Registrar
The transfer agent and registrar for any
warrants will be set forth in the applicable prospectus supplement.
DESCRIPTION OF RIGHTS
General
We may issue rights to our stockholders
to purchase shares of our common stock, preferred stock or the other securities described in this prospectus. We may offer rights
separately or together with one or more additional rights, debt securities, preferred stock, common stock, warrants, or any combination
of those securities in the form of units, as described in the applicable prospectus supplement. Each series of rights will be issued
under a separate rights agreement to be entered into between us and a bank or trust company, as rights agent. The rights agent
will act solely as our agent in connection with the certificates relating to the rights of the series of certificates and will
not assume any obligation or relationship of agency or trust for or with any holders of rights certificates or beneficial owners
of rights. The following description sets forth certain general terms and provisions of the rights to which any prospectus supplement
may relate. The particular terms of the rights to which any prospectus supplement may relate and the extent, if any, to which the
general provisions may apply to the rights so offered will be described in the applicable prospectus supplement. To the extent
that any particular terms of the rights, rights agreement or rights certificates described in a prospectus supplement differ from
any of the terms described below, then the terms described below will be deemed to have been superseded by that prospectus supplement.
We encourage you to read the applicable rights agreement and rights certificate for additional information before you decide whether
to purchase any of our rights. We will provide in a prospectus supplement the following terms of the rights being issued:
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the date of determining the stockholders entitled to the rights distribution;
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the aggregate number of shares of common stock, preferred stock or other securities purchasable
upon exercise of the rights;
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the aggregate number of rights issued;
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whether the rights are transferrable and the date, if any, on and after which the rights may be
separately transferred;
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the date on which the right to exercise the rights will commence, and the date on which the right
to exercise the rights will expire;
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the method by which holders of rights will be entitled to exercise;
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the conditions to the completion of the offering, if any;
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the withdrawal, termination and cancellation rights, if any;
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whether there are any backstop or standby purchaser or purchasers and the terms of their commitment,
if any;
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whether stockholders are entitled to oversubscription rights, if any;
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any applicable material U.S. federal income tax considerations; and
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any other terms of the rights, including terms, procedures and limitations relating to the distribution,
exchange and exercise of the rights, as applicable.
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Each right will entitle the holder of rights
to purchase for cash the principal amount of shares of common stock, preferred stock or other securities at the exercise price
provided in the applicable prospectus supplement. Rights may be exercised at any time up to the close of business on the expiration
date for the rights provided in the applicable prospectus supplement.
Holders may exercise rights as described in the applicable prospectus supplement. Upon receipt of payment and the rights certificate properly completed and duly executed at the corporate trust office of the rights agent or any other office indicated in the prospectus supplement, we will, as soon as practicable, forward the shares of common stock, preferred stock or other securities, as applicable, purchasable upon exercise of the rights. If less than all of the rights issued in any rights offering are exercised, we may offer any unsubscribed securities directly to persons other than stockholders, to or through agents, underwriters or dealers or through a combination of such methods, including pursuant to standby arrangements, as described in the applicable prospectus supplement.
Rights Agent
The rights agent for any rights we offer
will be set forth in the applicable prospectus supplement.
DESCRIPTION OF UNITS
The following description, together with
the additional information that we include in any applicable prospectus supplements summarizes the material terms and provisions
of the units that we may offer under this prospectus. While the terms we have summarized below will apply generally to any units
that we may offer under this prospectus, we will describe the particular terms of any series of units in more detail in the applicable
prospectus supplement. The terms of any units offered under a prospectus supplement may differ from the terms described below.
We will incorporate by reference from reports
that we file with the SEC, the form of unit agreement that describes the terms of the series of units we are offering, and any
supplemental agreements, before the issuance of the related series of units. The following summaries of material terms and provisions
of the units are subject to, and qualified in their entirety by reference to, all the provisions of the unit agreement and any
supplemental agreements applicable to a particular series of units. We urge you to read the applicable prospectus supplements related
to the particular series of units that we may offer under this prospectus, as well as any related free writing prospectuses and
the complete unit agreement and any supplemental agreements that contain the terms of the units.
General
We may issue units consisting of common
stock, preferred stock, one or more debt securities, warrants, rights for the purchase of common stock, preferred stock and/or
debt securities in one or more series, in any combination. Each unit will be issued so that the holder of the unit is also the
holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each
security included in the unit. The unit agreement under which a unit is issued may provide that the securities included in the
unit may not be held or transferred separately, at any time or at any time before a specified date.
We will describe in the applicable prospectus
supplement the terms of the series of units being offered, including:
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the designation and terms of the units and of the securities comprising the units, including whether
and under what circumstances those securities may be held or transferred separately;
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any provisions of the governing unit agreement that differ from those described below; and
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the
securities comprising the units.
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The provisions described in this section,
as well as those set forth in any prospectus supplement or as described under “Description of Common Stock,” “Description
of Preferred Stock,” “Description of Debt Securities,” “Description of Warrants” and “Description
of Rights” will apply to each unit, as applicable, and to any common stock, preferred stock, debt security, warrant or right
included in each unit, as applicable.
Unit Agent
The name and address of the unit agent,
if any, for any units we offer will be set forth in the applicable prospectus supplement.
Issuance in Series
We may issue units in such amounts and
in such numerous distinct series as we determine.
Enforceability of Rights by Holders
of Units
Each unit agent will act solely as our
agent under the applicable unit agreement and will not assume any obligation or relationship of agency or trust with any holder
of any unit. A single bank or trust company may act as unit agent for more than one series of units. A unit agent will have no
duty or responsibility in case of any default by us under the applicable unit agreement or unit, including any duty or responsibility
to initiate any proceedings at law or otherwise, or to make any demand upon us. Any holder of a unit may, without the consent of
the related unit agent or the holder of any other unit, enforce by appropriate legal action its rights as holder under any security
included in the unit.
CERTAIN PROVISIONS OF DELAWARE LAW AND
OF THE COMPANY’S CERTIFICATE OF INCORPORATION AND BYLAWS
Anti-Takeover Provisions
Delaware Law
We are subject to Section 203 of the
Delaware General Corporation Law. Subject to certain exceptions, Section 203 prevents a publicly held Delaware corporation
from engaging in a “business combination” with any “interested stockholder” for three years following the
date that the person became an interested stockholder, unless the interested stockholder attained such status with the approval
of our board of directors or unless the business combination is approved in a prescribed manner. A “business combination”
includes, among other things, a merger or consolidation involving us and the “interested stockholder” and the sale
of more than 10% of our assets. In general, an “interested stockholder” is any entity or person beneficially owning
15% or more of our outstanding voting stock and any entity or person affiliated with or controlling or controlled by such entity
or person.
Charter Documents
Our amended and restated certificate of
incorporation provides that amendments by our stockholders of our amended and restated bylaws require the approval of at least
66
2
/
3
% of the voting power of all outstanding stock. These provisions could discourage a potential acquirer
from making a tender offer or otherwise attempting to obtain control of the Company and could delay changes in management.
Our amended and restated bylaws provide
that a special meeting of stockholders may be called at any time by our board of directors. Because our stockholders do not have
the right to call a special meeting, a stockholder cannot force stockholder consideration of a proposal over the opposition of
our board of directors by calling a special meeting of stockholders prior to such time as a majority of our board of directors
believes the matter should be considered and such stockholder would only be able to force consideration of such proposal at the
next annual meeting,
provided
that the requestor met the applicable notice requirements. The restriction on the ability
of our stockholders to call a special meeting means that a proposal to replace one or more directors on our board of directors
also could be delayed until the next annual meeting.
Limitation of Liability and Indemnification
Our amended and restated certificate of
incorporation contains provisions that limit the liability of our directors for monetary damages to the fullest extent permitted
by Delaware law. Consequently, our directors will not be personally liable to us or our stockholders for monetary damages for any
breach of fiduciary duties as directors, except liability for:
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any breach of the director’s duty of loyalty to us or our stockholders;
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any act or omission not in good faith or that involves intentional misconduct or a knowing violation
of law;
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unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174
of the DGCL; or
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any transaction from which the director derived an improper personal benefit.
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Our amended and restated certificate of
incorporation and amended and restated bylaws provide that we are required to indemnify our directors and officers, in each case
to the fullest extent permitted by Delaware law. The amended and restated bylaws also provide that we are obligated to advance
expenses incurred by a director or officer in advance of the final disposition of any action or proceeding, and permit us to secure
insurance on behalf of any officer, director, employee or other agent for any liability arising out of his or her actions in that
capacity regardless of whether we would otherwise be permitted to indemnify him or her under Delaware law.
We have entered and expect to continue
to enter into agreements to indemnify our directors, executive officers and other employees as determined by our board of directors.
With specified exceptions, these agreements provide for indemnification for related expenses including, among other things, attorneys’
fees, judgments, fines and settlement amounts incurred by any of these individuals in any action or proceeding brought against
them by reason of the fact that they are or were our agents. We believe that these provisions in our amended and restated certificate
of incorporation and amended and restated bylaws and indemnification agreements are necessary to attract and retain qualified directors
and officers. We also maintain directors’ and officers’ liability insurance. This description of the limitation of
liability and indemnification provisions of our amended and restated certificate of incorporation, amended and restated bylaws
and indemnification agreements is qualified in its entirety by reference to these documents.
LEGAL MATTERS
Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C., New York, New York, will pass upon the validity of the issuance of the securities to be offered by this prospectus.
EXPERTS
CohnReznick LLP, independent registered public accounting firm, has audited our financial statements included
in our
Annual Report on Form 10-K for the year ended December 31, 2018
, as set forth in their report (which includes an explanatory
paragraph referring to the Company’s ability to continue as a going concern), which is incorporated by reference in this
prospectus and elsewhere in this Registration Statement. Our financial statements are incorporated by reference in reliance on
CohnReznick LLP’s report, given on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We are a public company and file annual,
quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file
at the SEC’s Public Reference Room at Station Place, 100 F Street, N.E., Washington, D.C. 20549. You can request copies of
these documents by writing to the SEC and paying a fee for the copying cost. Please call the SEC at 1-800-SEC-0330 for more information
about the operation of the Public Reference Room. Our SEC filings are also available to the public at the SEC’s web site
at http://www.sec.gov, and on our web site at http://www.xpresspa.com. The information contained on our web site is not included
or incorporated by reference into this prospectus. In addition, our common stock is listed for trading on The Nasdaq Capital Market
under the symbol “XSPA.” You can read and copy reports and other information concerning us at the offices of the Financial
Industry Reporting Authority located at 1735 K Street, N.W., Washington, D.C. 20006.
This prospectus is only part of a Registration
Statement on Form S-3 that we have filed with the SEC under the Securities Act, and therefore omits certain information contained
in the Registration Statement. We have also filed exhibits and schedules with the Registration Statement that are excluded from
this prospectus, and you should refer to the applicable exhibit or schedule for a complete description of any statement referring
to any contract or other document. You may:
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inspect a copy of the Registration Statement, including the exhibits and schedules, without charge at the Public Reference Room,
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obtain a copy from the SEC upon payment of the fees prescribed by the SEC, or
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obtain a copy from the SEC’s web site or our web site.
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INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE
The SEC allows us to “incorporate
by reference” the information we file with it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is considered to be part of this prospectus and information we
file later with the SEC will automatically update and supersede this information. We incorporate by reference into this prospectus
the documents listed below and any future filings made by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange
Act (1) after the date of this prospectus and prior to the time that we sell all of the securities offered by this prospectus
or the earlier termination of the offering, and (2) after the date of the initial registration statement of which this prospectus
forms a part and prior to the effectiveness of the registration statement (except in each case the information contained in such
documents to the extent “furnished” and not “filed”). The documents we are incorporating by reference as
of their respective dates of filing are:
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Our Current Reports on Form 8-K filed with the SEC on
February 13, 2019
,
February 22, 2019
,
March 15, 2019
,
March 22, 2019
,
April 30, 2019
,
May 17, 2019
,
June 17, 2019
,
June 27, 2019
and
July 8, 2019
(except for the information
furnished under Items 2.02 or 7.01 and the exhibits furnished thereto);
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All reports and other documents subsequently filed by us pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this prospectus and prior to the termination or completion of the offering of securities
under this prospectus shall be deemed to be incorporated by reference in this prospectus and to be a part hereof from the date
of filing such reports and other documents.
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Any statement contained in this prospectus
or in a document incorporated or deemed to be incorporated by reference into this prospectus will be deemed to be modified or superseded
for purposes of this prospectus to the extent that a statement contained in this prospectus or any other subsequently filed document
that is deemed to be incorporated by reference into this prospectus modifies or supersedes the statement. Any statement so modified
or superseded will not be deemed, except as so modified or superseded, to constitute a part of this prospectus.
You may request, orally or in writing,
a copy of these documents, which will be provided to you at no cost, by contacting XpresSpa Group, Inc., 780 Third Avenue, 12th
Floor, New York, NY 10017 Attention: Investor Relations. The Investor Relations Department can be reached via telephone at (212)
838-3777.
XpresSpa, Inc.
$50,000,000
COMMON STOCK
PREFERRED STOCK
DEBT SECURITIES
WARRANTS
RIGHTS
UNITS
PROSPECTUS
July 30, 2019
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